author: Montgomery, J. Grant, J. Hooker, J.

text:
    Robert Walker, Administrator, etc., v. The Lake Shore & Michigan Southern Railway Company.

      Master and servant — Railroad companies — Negligence—Death of employé — Scope of employment — Apparent danger— Fellow-servants — Evidence—Damages— Instructions to jury — Pleading.
    In a suit against a railway company for negligence resulting in the death of one of its section foremen, it appeared that, acting under the special instructions of the road-master of a division of the defendant’s road' to cut a trolley wire which a street-railway company had strung over defendant’s track, the decedent climbed upon a box car, which had been run underneath the wire, and, while standing upon a stepladder which he had placed on top of the car, drew the wire down by placing one arm over it, and, with a pair of nippers, cut it until it parted, and, by force of the recoil, threw him to the ground and caused his death. It further appeared that the wire was about one-third of an inch in diameter; that it was stretched across the track at a tension of about 2,000 pounds; that its breaking strength was about 3,000 pounds; that the outer portion of the wire was copper, while the inside was soft.
    1. Mr. Justice Montgomery filed an opinion, concurred in by McGrath, C. J., holding:
    a — That the contention of the defendant that the road-master and the decedent were fellow-servants, and that, therefore, the instructions given by the road-master, if they .led the decedent into danger, were the instructions of a fellow-servant, for which the defendant is not liable, cannot be upheld; that, in determining whether a servant is called upon to do work outside of the scope of his employment, the question does not turn upon that of whether the master would be liable for the personal negligence of a superior servant; that it becomes a question of authority, and, if one having authority over the servant directs him to do an act outside of the scope of his employment, the servant, in its performance, assumes the risk only of such danger as is apparent; that in order to bring the injured servant within the protection of the rule that, when called upon to perform a service outside of the scope of his employment, the master, owes the duty of -warning him .against all dangers, except those which are •obvious to a person of his capacity, skill, and experience, it is not necessary that the Order to engage in the outside service •be given by the alter ego of the master, but it is enough if the superior servant has, in this respect, controlling authority; citing Railway Co. v. Bayfield, 37 Mich. 212; Jones v. Railway Co., 49 Id. 573.
    b — That it cannot be held, as matter of law, that the danger was as apparent to the decedent as it was to any one, and -that, therefore, in consenting to engage in this work without objection, the decedent assumed the risk of the employment,— it appearing that the decedent was wholly unskilled in the work, and that trolley wires were new in the city where the work was done, and it not being shown that the decedent knew anything about the.amount of tension which the wire was sustaining, or the probable result of cutting the wire in the manner in which it was cut, and it further appearing that the work was done under the eye of one of the defendant’s linemen, and that the decedent was given no warning, — but that, under the circumstances, it was a question for the jury as to whether the danger was obvious to the decedent; citing ..Smith v. Car Works, 60 Mich. 501.
    c — That it was competent on the cross-examination of the .road-master, who had been sworn as a witness for the plaintifE, .to ask him if he ever instructed the decedent to cut the wire, .and whether he ever stated to the decedent or requested him ;to cut the wire.
    d — That it was competent to ask the same witness, on his ■ cross-examination, as bearing upon the question whether the removal of the obstruction caused by the stringing of the wire was within the line of the decedent’s duties as section foreman, how high above the top of one of the high cars an ordinary man’s lantern would be when giving certain signals, and if the witness was able to state whether, if the brakeman, an ordinary sized man, happened to be on one of the high cars, and was required to give and did give a certain signal, which had been described to the jury, his lantern would go as high as 22 feet.
    e — That it was error for the court, after stating to the jury that they were at liberty to take into account the data furnished by the proof consisting of the earnings of the decedent and his life expectancy, and to determine the amount which he would probably have contributed to the family if he had lived, to instruct them further that they were not bound to award any particular, fixed, and definite sum as the exact product of figures based upon such life expectancy, and the life expectancy of decedent’s wife, and the period of the minority of his children, and that these figures were given to the jury to enable them to have an intelligible basis for their computation, and not as an absolute rule which they must follow in arriving at a verdict in case they should award damages to the plaintiff, but that they should, however, take such figures into account in making up their verdict, in order that they might not render a verdict for an excessive amount; there being no testimony in the case which would furnish a basis for any other damages than the loss of such contributions to support as the decedent would have been able to make from his earnings, which fact the jury evidently disregarded, and reached the result evidenced by their verdict without any computation, and the Court not being prepared to say that the-jury may not have construed the language so used as authorizing them to do so.

    /-j-That the declaration is defective in not stating the facts as to the existence of the wife and children of the decedent, who would be entitled to damages by reason of his death; citing Hurst v. Railway Co., 84 Mich. 539; Charlebois v. Railroad Co., 91 Id. 59.
    3. Mr. Justice Grant filed an opinion, in which he concurred with Mr. Justice Montgomery on the question of damages, but held that there was no evidence in the case on which to base a charge of negligence against the defendant, and that the judgment should be reversed, and no new trial ordered.
    3. Mr. Justice Hooker filed an opinion in which he concurred in the reversal of the judgment, coupled with an order for a new trial, and held that it was a question for the jury to determine-whether the service performed by the decedent was of so extraordinary a character, involving latent danger, as to impose upon the defendant the duty of warning the decedent, if defendant was aware of the danger, and whether the defendant was negligent in failing to discover and warn the decedent of such danger, if it existed.
    Error to Kalamazoo. (Back, J.).
    Argued January 11, 1895.
    Decided April 16, 1895.

      Negligence case. Defendant brings error.
    Beversed.
    The facts áre stated in the opinions.

      Boudeman & Adams and O. E. Weaver, for appellant.

      Osborn, Mills & Master (E. S. Roos, of counsel), for plaintiff.

       Decedent was 40 years old at the time of his death. He was. receiving $46 per month, and left a widow whose life expectancy was 31 years, and three children, aged, respectively, 15, 13, and. 9 years. Plaintiff recovered a verdict for $7,000.

   Montgomery, J.

This action is instituted to recover damages sustained by the wife and children of deceased by his death, which is alleged to have occurred through the negligent fault of defendant.

Deceased had been in the employ of defendant company for some time as a section boss. His duties were to maintain his section of track, and keep it in good repair for the safe passage of trains and traffic on the road generally. Henry H. Houghton was the road-master of the Kalamazoo Division of defendant’s road, having headquarters at Kalamazoo, and was the superior of deceased. Some time prior to April 11, 1893, the officers of defendant had been informed that the Citizens’ Street-Bailway Company, a corporation having a franchise from the city of Kalamazoo to occupy certain of its streets with an electric railway, was about to cross its track on East Main street with rails for street cars, and was about to stretch across the track a trolley wire. On that date the engineer of the company wrote to Mr. Houghton as follows:

“ Beplying to yours of the 8th inst., in regard to street-railway crossing at Kalamazoo, we do not want them to cross us unless with frogs approved by us, and after a regular agreement has been signed. We want you to stop them at any cost until you get word from this office.”

Later, on the 21st of April, the engineer again wrote Mr. Houghton:

' “We shall insist upon their signing a regular agreement for the putting in of the crossing over us, and the putting up of. the trolley wires. We shall insist also that they maintain wires at a height of 23 feet above us, instead of 22 feet. * *' * We want you to do the best you can to keep them from either putting up their wires or laying their railroad across our right of way until an agreement is signed. * * * I have written Mr. Handy to find out if he wishes the matter placed in the hands of an attorney to obstruct by legal proceedings, and will advise you later. In the meantime, as I say, I want you to do everything in your power to prevent the crossing; and, if we have an attorney at Kalamazoo that you can call on, you might do it, and act under his advice in the way of obstructing. I do not know whether we have one there or not, however."

On the morning of the 26th of April, Mr. Houghton discovered that the street-railway company had strung its trolley wire over the track. The evidence shows that before this time he had had some talk with Mr. Walker, the deceased, with reference to preventing the placing of the trolley wire over the track. There was testimony from which the jury might have properly inferred and did infer and find that deceased, in what he did thereafter, was acting under the instructions and special orders of Houghton. The manner in which the death of Mr. Walker was occasioned is as follows: A box car was run underneath the wire. The deceased climbed upon the car, and, taking with him a stepladder, which was placed on top of the car, stepped up one or two steps, and drew the wire down, throwing one arm over it, and, with a pair of nippers, cut it until it parted, and, by force of the recoil, threw him from the car to the ground, some 16 feet from the car, causing his death. The evidence showed that the wire was about one-third of an inch in diameter, and its breaking strength was about 3,000 pounds; that the outer portion of the wire was copper, while the inside or core was soft. The wire was stretched across the track at a tension of about 2,000 pounds. The evidence showed that deceased was wholly inexperienced in such work, and that no warning or information of the danger to be apprehended was .given, except that Mr. Secord, one of the linemen of defendant, told him to hold the nippers loosely in his hand. There was also testimony tending to show that, while the .appliances which were used by the deceased were proper when used in connection with other appliances, when used alone they were improper and insufficient; that proper appliances would include blocks and falls, with heavy halter clamps, on either side of the place to be opened or ■cut, so that the slack may be pulled together, and the tension let off slowly and gradually.

The case was submitted to the jury, under instructions substantially as follows: That, if the work of removing the obstruction by cutting the wire was within the line ■of deceased's duty as section boss, plaintiff could not recover; also, that if Walker, the deceased, not being required or requested by any one to do the work of cutting the wire, volunteered to do so, and the accident «which resulted in his death was brought about by his inattention to the instructions given him by Mr. Secord, and his want cf due care and oaution, plaintiff could not recover; and, further:

“If the cutting of the wire in question was not one of .the duties of John Walker as section foreman, but he volunteered to do it, without any request being made by-any one that he should do it, and in doing it he was injured, because of the manner in which he did the work, then the defendant is not liable in this case to his estate."

On the other hand, the jury were instructed, in substance, that if they found that deceased was an inexperienced man in the business, and did not appreciate or ■understand the danger to be apprehended from the work in which he was engaged, and if the defendant knew that he was inexperienced in such work, and did not give him sufficient instructions and directions as to the manner of cutting and removing the wire, or inform him of the danger which he would run in cutting the same, and did hot provide for the proper control and holding of the trolley wire or support of the stepladder while he was. engaged in cutting - the wire, and if deceased was thrown down and met with his death without negligence on his. own part, and in consequence of the negligence of defendant, and if deceased was ordered ..and directed to cut the wire, and was supplied with the nippers and pliers for that, purpose, then the plaintiff was entitled to a verdict. With these instructions, and appropriate definitions of the term “negligence,” and other specific instructions requested, the case was left to the jury, and a verdict was found in favor of the plaintiff.

It is insisted by the defendant that Houghton and Walker were fellow-servants, and' that, therefore, the instructions given by Houghton to Walker, if they led him into danger, were the instructions of a fellow-servant, for which' the company is not liable. But we think this contention cannot be upheld. In determining whether a servant is called upon to do work outside the scope of his employment, the question does not turn upon that of whether the master would ,be liable for the personal negligence of a superior servant. It becomes a question of authority, and, if one having authority over the servant, directs him to do an act outside the scope of his employment,. the servant, in the performance of such outside-work; assumes the risk only if such danger is apparent. As is said in Bailey on Master’s Liability (page 221):

“The same duty rests upon the master as to warning- and instruction as' to duties within the scope of the employment, but, as to temporary work outside of the employment, the same presumption does not apply, to.wit, ‘that he [the servant] is competent to perform the duties of "the position which he seeks, and competent to apprehend and avoid all dangers that may be discovered by ■ordinary care.’ However, he is presumed to know and ■comprehend obvious dangers, which require no skill or experience to appreciate, or such obvious dangers as the skill and experience - he may have ought reasonably to charge him with. If, therefore, a common laborer who attempts to perform a hazardous service temporarily, outside of his employment, upon request of the master, though not objecting, • is injured while performing such duty, his apparent consent alone will not defeat his right of recovery, though the danger is apparent to a person possessed of skill, but not to a common laborer.”

See, also, Railway Co. v. Adams, 105 Ind. 165; Ferren v. Railroad Co., 143 Mass. 197; Kain v. Smith, 89 N. Y. 375; Mann v. Print Works, 11 R. I. 152; Paule v. Mining Co., 80 Wis. 356. In order to bring the injured servant within the protection of the rule that, when called upon to perform a service outside of the scope of his employment, the master owes the duty of warning him against all dangers, except those which are obvious to a person of his capacity, skill, and experience, it is not necessary that the order to engage in outside service be given by the alter ego of the defendant. It is enough, if the superior .servant have, in this respect, controlling authority. Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 212; Jones v. Railway Co., 49 Id. 573.

It is further insisted that the danger was as apparent to "the deceased as it was to any one, and that, therefore, in ■consenting to engage in this work without objection, deceased assumed the risk of the employment. We are not prepared to hold that this is true as a matter of law. It .appeared that the deceased was wholly unskilled in the work, and that trolley wires were new in the city of Kalamazoo. It does not appear that he knew anything .about the amount of tension which the wire was sustaining, or of the probable result of cutting the wire in the manner in which he did. Furthermore, the work was ■done under the eye of Seco.rd, and deceased was given no

warning. Under these circumstances, we think it was a question for the jury as to whether the danger was obvious to the deceased. It was held in Smith v. Car Works, 60 Mich. 501, that it cannot be presumed that a common laborer is possessed of the necessary scientific knowledge to enable him to comprehend and avoid danger. Nor do we think in the present case that it can be conclusively presumed that the deceased possessed the requisite knowledge of the facts which would lead him to believe that the wire in question was going to part with' sufficient force-to produce the results which it did. In Gill v. Homrighausen, 79 Wis. 634, it was held that where it appeared that a danger from a fragment of an overhanging arch would be apparent to a skilled and experienced mason, but. was not apparent to a common laborer, who was directed to work underneath the arch, the plaintiff was entitled to-recover. See Ferren v. Railroad Co., supra.

We think the instructions to the jury were full and ample, and correctly stated the law applicable to the case.

It remains to be considered whether there was error in respect to the admission of testimony or in the charge as it related to the measure of damages.

Plaintiff called as a witness the defendant’s road-master, Henry H. Houghton, who testified on direct examination to a conversation with deceased directly before the accident, and on cross-examination he was asked the question:

“Mr. Houghton, did you ever instruct Mr. Walker to cut those wires?”

This was objected to, on the ground that the question called for a conclusion. The objection was sustained, and defendant’s counsel excepted. The witness was next asked:

“Will you state whether you ever stated to John Walker or requested him to cut those wires?”

This was likewise ruled out.

We think these questions were clearly competent. This was on cross-examination oí a witness produced by the plaintiff, and one of the important questions in the case was whether deceased had volunteered to do this work, or whether he was acting under the direction of the witness. Whether he had been directed to do so was a fact within the knowledge of the witness, and one competent to be testified to; and while his negative statement might not have been conclusive, and the jury were entitled to construe it in connection with other testimony in the case,, yet it was the right of the defendant to have an answer to the question.

It was also a question in the case as to whether the removal of this obstruction was within the line of the duties of the deceased as section boss, and the same witness was asked this question:

“ How high above the top of one of the high cars would a man's lantern be when giving these signals, — an ordinary man?"

This was objected to as a conclusion, and stricken out. He was also asked:

“Are yon able to state whether, if the brakeman happened to be on one of these high cars, and was required to give and did give that signal [referring to a signal which had been described to the jury], his lantern would go as high as 22 feet, — an ordinary sized man?"

This was likewise ruled out as calling for a conclusion. We think this testimony was clearly competent. Laird v. Snyder, 59 Mich. 404; Marcott v. Railroad Co., 49 Id. 99; Laughlin v. Railway Co., 62 Id. 220; Woodbury v. City of Owosso, 64 Id. 239; Noble v. Railway Co., 98 Id. 249.

Hpon the measure of damages, the circuit judge, after instructing the jury that-they were at liberty to take into account the data furnished by the proof consisting of the earnings of the deceased and his expectancy of life, and to determine the amount which he would probably have contributed to the family if he had lived, said:

“You are not bound to award any particular, fixed, and definite sum which is the exact product of figures based npon his expectancy of life, and the expectancy of the life of ■liis wife, and the period of the minority of his children. ’These figures are given you so that you might have an intelligible basis for your computation, and not as an absolute rule which you must follow in arriving at your verdict in case you award damages to the plaintiff,” — but added: “You should, however, take these figures into account in making up your verdict, in order that you may not render a verdict for an excessive amount.”

The evidence is all reported, and we find no testimony in the record which would furnish a basis for any other damages than the loss of such contributions to support as the deceased would have been able to make from his earnings. It is very evident that the jury disregarded this fact, and must have reached the result without any computation, and we are not prepared to say that they may not have construed the language quoted as authorizing them to do so. The statute (section 8314, How. Stat.) provides that—

“In every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered.”

This statute has been construed many times by this Court. In Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 214, it was held that, in arriving at the damages, the actual pecuniary loss of the widow or next of kin should alone be considered.

In Cooper v. Railway Co., 66 Mich. 271, it was said:

“ Under this statute, the jury are not warranted in giving damages not founded upon the testimony or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. The rule of damages in actions for torts does not apply to actions of this kind. The statute gives the right to damages; but it has been held, with rare exceptions, that they must be confined to those damages which are capable of being measured by a pecuniary standard.”

See, also, Mynning v. Railroad Co., 59 Mich. 257.

We are aware that some courts have held that the jury may take into account the loss sustained by the children of the deceased for loss of physical care and mental and moral training of the father or mother; and we are not prepared to say that cases may not arise in which there may be sufficient proof of damages suffered by reason of the withdrawal of these ministrations as to justify a recovery upon that basis. But it is distinctly against the previous holdings of this Court to say that such elements may be considered, and the jury left to roam at large and draw upon their imagination as to the extent of the injury suffered through this cause.

As the case must be remanded for a new trial, it is proper to direct attention to another error assigned, which can be and should be remedied by amendment. The declaration does not set out the facts as to.the existence of the wife and children of the deceased, who would be entitled to damages by reason of his death. This was a defect, under the ruling of this Court in Hurst v. Detroit City Railway, 84 Mich. 539, and Charlebois v. Railroad Co., 91 Id. 59.

Judgment will be reversed, and a new trial ordered.

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

Grant, J.

I concur in the opinion of my Brother Montgomery in the question of damages. I cannot, however, concur with him that there is any evidence in this case on which to base a charge of negligence against the defendant. Mr. Walker was a section foreman, and it was-his duty to remove all obstructions from his section of the road; or, if there were any which he could not with safety remove, it was his duty to report the same to the proper officers of the defendant. If this trolley wire was so low as to endanger the lives of brakemen upon the cars, the-defendant would have been liable for any accident caused by it after notice of its existence. I am unable to find anything in the record which can be construed into a-direction to Mr. Walker on the part of Mr. Houghton to-cut the wire. Upon discovering its existence, it appears to-have been clearly understood by Walker, Houghton, and Secord that the wire should be cut. Mr. Tolchard testified that he ordered a tall car to be run under the wire. Mr. Walker procured a stepladder from within the car, and voluntarily climbed to the top, and the stepladder was-handed to him. He seemed to assume that, as a matter of course, he was the one to cut the wire, and he did it. voluntarily, without protest, objection, or suggestion of danger. The only danger was in holding onto one end after it had been cut. This was as apparent to one as to-another. Mr. Walker was, however, told that he must, hold onto the nippers lightly, so as to let go when the-wire broke. There was no thought of danger on the part, of any one, nor was there any except in holding onto the-wire. Every one present — those looking on as well as the railroad men — knew that the wire would bound back when severed, and people standing in the street so stated. If' this had been an unseen danger, of which the superior had knowledge, but the deceased had not, a different rule would apply. No one can doubt that, if the deceased had obeyed the instructions which were given, the accident would not have happened. No instructions were necessary, however, to guard against a patent danger.

The allegations of negligence are (1) that defendant did not furnish a safe place in which to work; (2) that it did not furnish some one to support the stepladder; and (3) that deceased was not furnished with proper tools for cutting the wire, and was not properly instructed how to use them. The-place was safe, and the ladder was used only to reach the wire and pull it down, which was safely done. These two allegations are therefore eliminated from the case, and are not argued on the part of the plaintiff. The nippers was a suitable and proper tool with which to cut the wire. The claim of the plaintiff in this regard is that the defendant should have furnished machinery with which to hold the wire solid upon each side of the place where it was to be severed; that this was the customary way on the part of street-car companies when desiring to separate it, so as hot to injure the line. In other words, it must be held that the company not only should have known this method, but should have provided the deceased with the apparatus necessary to be used to avoid injury to other parts of the trolley system when severing a wire. There is no evidence that the defendant or any of its officers lawfully intrusted with the care of this part of its road had any knowledge of any such apparatus, or of its use, or that the interior of the wire was composed of soft metal. All that the defendant had to do and all that it cared about was to cut this wire, regardless of injury to the other parts of the street-railway system. I am unable to come to any other conclusion than that the sole and proximate cause of the injury was the fact that the deceased did not let go of the wire when it was severed. If there be any force in the contention that the wire parted before it was entirely severed by the nippers, in consequence of the soft metal in the center, this was a thing unseen and unknown to any one connected with the affair, and was therefore an unseen and hidden danger, for which the defendant is not liable.

Briefly stated, the situation is this: The deceased was section foreman, upon whom was the duty to keep his section of the road clear from obstructions. He voluntarily did the work. The danger, if any, was apparent. The nippers' was a proper tool to cut the wire. The accident happened because he held on when the wire parted. Distressing as these accidents always are in their consequences, yet negligence must be established in accordance with ■sound legal principles, in order to hold the defendant liable for those consequences. Under the facts in thig case, I am unable to discover any authority or sound legal principle upon which the defendant can be found guilty of negligence.

I think the judgment should be reversed, and n<5 new trial ordered.

Hooker, J.

I agree with my brethren that the judgment must be reversed. I think it a question for the jury to determine whether this was such an extraordinary service, involving latent danger, as to impose upon the master "the duty of warning the employés, if the master was aware of the danger, and whether the master was negligent in failing to discover and warn the deceased of such danger, if it existed. The liability of the defendant must rest upon the violation of a duty, viz., that of ordinary care; and this liability cannot be based simply upon the request to perform an unusual or extraordinary service. There must be reason to suppose that there is danger, of which the servant is ignorant, or that he does not possess the skill to avoid it. The character of the service, the exigency, the intelligence and skill of the servant, and the opportunities of each to ascertain the danger, enter into the question.

I think a new trial should be ordered.

Long, J., did not sit.

       See Nelson v. Railway Co., ante, 582.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    Mrs. Harry Tucker v. The Common Council of the City of Grand Rapids.

      Criminal law — Board of witnesses for people — Authority of police commissioners — Mandamus.
    1. There is no statute in this State authorizing sheriffs or prosecuting officers to make contracts which shall bind counties for the board of persons who may be thought important witnesses in pending criminal cases.
    3. The statutory method of procuring witnesses for the people in criminal cases is by subpoena, and the law fixes their compensation and the method of its payment. If there is danger of their departing, the court may, in default of their entering into the required recognizance for their appearance, commit them to the county jail, in which case the board of supervisors must provide for the payment of their board.

    3. Upon the conviction of a respondent, the law requires that he be committed to the county jail, if no.t admitted to bail, to await sentence; and an order of the superior court of a city, ' having exclusive jurisdiction of offenses committed within the city, remanding him to the city lockup or police headquarters to await sentence, or for any other purpose, being void, cannot be made the basis of a valid contract for the board of such prisoner.
    4. The board of police and fire commissioners of the city of Grand Rapids has no power to contract for the board of a witness for the people in a criminal case while waiting to testify, or of a respondent who, upon his ' conviction in the superior court of said city, has been remanded to the police station under suspended sentence, to be detained until the trial of said case, and then used as a witness for the people therein; and mandamus will not lie to compel the common council of said city to order the payment of claims certified by said commissioners for the board furnished under said contract.

      Certiorari to Kent. (Grove, J.)
    Argued January 29, 1895.
    Decided April 16, 1895.

      Relator applied for mandamus to compel respondent to allow her claim for the board of certain witnesses for the people pending the trial of a criminal case. Respondent brings certiorari to review order allowing the writ.
    Reversed.
    The facts are stated in the opinion.

      John W. Ghamplin, for relator.

      Henry J. Felker (William Wisner Taylor, of counsel), for respondent.

       For cases bearing upon the question of the detention of witnesses to testify in behalf of the people in a criminal case, and their compensation,, see In re Lewellen, 104 Mich. 318, and note.

   Hooker, J.

A murder having been committed in Grand Rapids, the board of police commissioners took upon itself the responsibility of arranging, through the superintendent of police, with relator, for the boarding of one Ida Woods (and child), who was supposed to be the mistress of one Macard, who was suspected of the crime. By a similar arrangement made with the board, one Prame, who had been convicted of the same offense of murder before the superior court, was furnished with board while confined at the police station, under suspended sentence, to which place said court remanded him upon his plea of guilty. Ida Woods and Prame were used as witnesses upon the trial of Macard. Relator’s bills of $42 and $106, respectively, were approved by the board of police and fire commissioners as a proper claim against the city, and were certified by said board to the comptroller, who in turn reported them to the council, without recommendation. The council disallowed the claim, and the circuit court for the county made an order that a peremptory mandamus issue to the council commanding the council to order the payment of said claims. The Cause was then brought to this Court by certiorari.

The items of this claim are peculiar. It is not claimed that any statute authorizes sheriffs or prosecuting officers to make contracts which shall bind counties for the board •of persons who may be thought important witnesses in pending eases. Such officers may sometimes assume the responsibility of incurring expenditures in attempts to convict felons, which the board of supervisors may in its ■discretion allow, but the courts cannot compel it unless •the claim is for services which the statute authorizes and provides for. The statutory method of procuring witnesses is by subpoena, and the law fixes the compensation and :method of payment. If there is danger of the witness departing, the courts may commit to the county jail for want of recognizance, in which case the board of supervisors must provide for payment of board. So, too, when ■a felon is convicted, the law requires commitment to the •county jail to await sentence, if he is not admitted to bail. It nowhere provides that he may be remanded to ;the city lockup, or to police headquarters, to be kept for •that or any other purpose. An order of that kind, being void, cannot be made the basis of a valid contract for ■board. If it should be conceded that it was the duty of :the county to provide board for such convict, it is only when confined in pursuance of law that it becomes legally ■ liable. The statute authorizes payment to a sheriff for extraordinary services at the discretion of the board (How. Stat. § 9055; Lee v. Board of Supervisors, 68 Mich. 330; see Bacon v. Wayne Co., 1 Mich. 461); and this discretion is not reviewable (Kennedy v. Gies, 25 Mich. 83; Endriss v. Chippewa Co., 43 Id. 317; Sherman v. Board of Supervisors, 84 Id. 108), though action may be compelled by mandamus where the right and amount are fixed by statute, or another method of adjusting compensation is provided by law (Bristow v. Supervisors of Macomb Co., 3 Mich. 475; People v. Board of Auditors, 13 Id. 233; Mixer v. Board of Supervisors, 26 Id. 422; Stowell v. Board of Supervisors, 57 Id. 31; Cicotte v. Wayne Co., 59 Id. 509; Board of Metropolitan Police v. Board of Auditors, 93 Id. 306):

Is the matter different because the contract was made by the board of police commissioners? This board is a statutory one. Not only must it be said on general principles that it can have no powers to contract unless prescribed by law, but the charter of Grand Rapids (Act No. 417, Local Acts of 1893, § 20) expressly provides that—

“ Said board shall not be authorized to incur any indebtedness nor enter into any contract not provided for or included in said detailed annual estimate for such fiscal year, unless specially authorized so to do by a majority vote of all the members elect to the common council of said city.”

There is no attempt to show that special authority was given to make these contracts, or that they formed any part of the estimated expenses for which appropriations, had been made. It is argued that the powers conferred upon this board are broad enough to warrant its action; that it is authorized to provide “for the preservation of' the public peace, for the prevention of crime, for the arrest of all offenders against the peace and good order of' the city, and of all persons violating the ordinances of said city;” and that its action binds the city. It is unnecessary to discuss this question at length. Doubtless the conditions of urban life justify different methods of dealing-with crime and questions of police than are necessary in rural districts. In Grand Rapids the board of police commissioners has power to appoint certain officers and prescribe their duties, and provide for the preservation of the peace and for arrests. How great a discretion it may exercise must to some extent depend upon the liberality of the council, which provides a fund and audits its claims. Perhaps the council may be compelled to audit and pay' some claims for expenses or services incurred or rendered. where covered by the estimate, but the charter is conclusive against compulsion where the claim is based solely upon a contract that the council has not authorized, and which for that, if no other, reason, the board had no authority to make. The fact that it is made the duty of the board to certify claims can make no difference, The absolute prohibition of unauthorized contracts must control. The council may properly allow claims for unusual or unexpected services where such claims are meritorious, but we cannot compel it in this instance.

The order of the circuit court must be reversed, with costs.

The other Justices concurred.


author: McGrath, C. J.

text:
    Ellen B. French v. John Ryan, James Ryan, and Mark Carrington.

      False representations — Partnership — Fraud of one member of firm — Bills and notes — Evidence.
    1. Where counsel for the appellant devote the major portion of their brief to the discussion of the main question involved in the case, and simply refer, without discussion, to the remaining questions, the Court are not called upon to elaborate upon such latter questions.
    2. Representations as to the probable • earnings of a corporation which the party making them desires to organize, made to induce the party to whom they are made to become a stockholder in the corporation, may be fraudulent and constitute a basis of action if made in bad faith, with a design to deceive and mislead said party, by one possessed of superior knowledge on the subject.
    3. Pursuant to a scheme to unload the business of a firm, which 'had become unprofitable, and its property, which was heavily ■incumbered, upon a corporation to be organized as a part of the scheme, one of the partners, by fraudulent representations as to the profits of the firm business and the persons who were to join in forming the corporation, induced a party to ■subscribe for some of the corporate stock, in payment for which he gave his promissory note, which was transferred-to the other partner. In consummation of the scheme the firm ■property was transferred to the corporation, and, by reason of -the fact that the two partners controlled the directorate, the ■-same was credited to the partner who made the false representations, on the books of the corporation, at a figure largely in excess of its actual value and of the value of which it had been agreed to be taken. And in a suit upon the note it is held that, although a fraud may have been perpetrated upon the corporation, the whol'e scheme was none the less a fraud upon the maker of the note, for which the partner to whom it was transferred must be held liable, not only because a beneficiary, having received the proceeds of stock subscriptions, but because a participant in the final act which gave color to the whole transaction.
    4. It was competent for the makéf’óf the note, in support of his defense that he was induced to subscribe for the stock for which the note was given by such fraudulent representations, to show that like representations were made by the same partner to other persons to induce them to become stockholders in the corporation; citing Beebe v. Knapp, 28 Mich. 53; Cook v. Perry, 43 Id. 623; Stubly v. Beaehboard, 68 Id. 401.
    Error to Wayne. (Brevoort, J.)
    Argued January 30, 1895.
    Decided April 16, 1895.
    ■ Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts ■are stated in the opinion.

      Atkinson <& Ilaigh, (TP.. T. Mitchell, of counsel), for Appellant.

      Mliott G. Stevenson, for defendants.
   McGrath, C. J.

This suit is brought upon a promissory note of $5,000, made by John Eyan, indorsed by •James- Eyan, and given in payment for a subscription to stock in the Port Austin Manufacturing Company,, a corporation. The defense is fraud and misrepresentation respecting the business to which the corporation succeeded, •and concerning the parties who were to join in the new ■enterprise and the amount of capital which had been secured. The fact that Mark Carrington is the real owner ■of the note is not seriously .questioned.

Thomas Winsor and his father-in-law, Mark Carrington, had for some years been engaged in business, as Thomas Winsor & Go. They had a sawmill and salt blocks and a general store. The evidence tended to show 'that the sawmill was without available timber, and that 'the salt blocks had not been operated for some time, except at a loss; that the general business of the firm had been unprofitable, and Carrington and Winsor were anxious to dispose of it; that-their real estate was incumbered for $22,000, which was more than its value; that they had on hand a stock of merchandise, some, salt, logs, horses, wagons, and other personal property, ..and their, unsecured indebtedness amounted to $9,000. John Byan was induced by Thomas Winsor to take stock in the new enterprise. He first took $5,000 worth of stock, and -paid for it, and was induced to subscribe for further shares, the par value of which aggregated $5,000, for which the note in question was given.

There is no question upon this record but that there was sufficient evidence to go to the jury as to whether Thomas Winsor had not been guilty of .fraud and misrepresentation as to the profits of the business of Thomas Winsor & Go., and also respecting the persons who were to join in the enterprise and furnish the.capital. . The principal contention is that Mark Carrington was not connected with the fraud, and that whatever misrepresentations were made were not brought home to him. The ■theory of the defense was that the scheme was to unload the'assets of Thomas Winsor & Co. and the unprofitable business upon the new corporation, and to absorb the capital paid in. Winsor represented that the real estate would be turned in at the face value of the mortgage thereon, and that the personal property was worth about $10,000; that Carrington was to take $10,000 worth of stock, and that he (Winsor). was to take $10,000; that. Carrington’s stock was to be charged up against the personal property, and, if any balance remained, it was to be credited upon Winsor’s stock account, and he would pay the balance in cash. It is clear from Carrington’s testimony that he understood that this was the basis that was. being suggested. John Ryan paid for his first block of stock as follows: Cash, $300; a deed to Mark Carrington of real estate of the value of $1,200; a note for $1,000, which he afterwards paid; and a deed of another parcel of land worth $2,500, to one Smith. Smith afterwards conveyed to Winsor, and Winsor to Carrington. One Newell subscribed to stock, paid $300 in cash, and gave his note-for $1,200. The note in controversy here is alleged to-have been discounted at the bank, but the cashier testified that the money was furnished by Mark Carrington; that $1,000 of the amount was credited to Thomas Winsor &■ - Co., and the balance was paid out for the benefit of the company. James Ryan subscribed for $5,000, and paid for it by turning over 400 acres of land and the balance-in cash. T. Winsor & Go. received the proceeds of this, stock, of the John Ryan note of $1,000, and the Newell note of $1,200; and the testimony tended to show that-but a small portion of the proceeds of the sales of stock reached the treasury of the corporation. Carrington and Winsor controlled the corporation, and upon its books, notwithstanding vigorous protest, the real estate and personal property of Thomas Winsor & Co. were credited to-Thomas Winsor individually, — the former at $35,000, and the latter at $17,099, — and he was charged with the CarTington stock, the James Eyan stock, and John Eyan’s first subscription of $5,000, making a total of' $20,000, one-half of which had been paid in cash or its equivalent. Winsor represented that Carrington had capital which would be substituted in lieu of the conveyances of land made by subscribers. It would seem, therefore, that, from the start, both Carrington and Winsor began to appropriate the proceeds of the stock, and afterwards, to cover the appropriations so made, an inflated value was given to the •assets of Thomas Winsor & Co. upon .the books of the corporation. The evidence clearly indicates that the value of the real estate did- not exceed $22,000. The mortgagee held a large amount^ of collaterals to secure the amount of the mortgage indebtedness. The corporation was organized in February, 1886. It failed in August, 1887, and the real estate was conveyed back to Mark Carrington, who says that at that time he offered to deed the real estate to the creditors if they would assume and pay the mortgage, but they declined to do so.

If the assets of Thomas Winsor & Co. had been sold to •John Eyan, and as a part of the consideration the note in suit had been given, Carrington could not be heard to .say that he was not chargeable with the fraud and misrepresentation of his partner, Thomas Winsor, respecting the inducements to make the purchase. It is true that the assets were not sold to John Eyan, but. nevertheless the fraudulent scheme involved the disposition of these ■very assets. That, it is insisted, was the primary purpose. 'The corporation, it is claimed, was but a means to an end. The note does.not appear to have ever reached the corporation, to have passed through its books, or to have been •discounted by the corporation. John Eyan was induced to take the additional stock upon Winsor’s assurance that «Carrington would take the note, and advance to the corporation the money for the former’s stock. Carrington did take the note, and, conceding that he did advance the-money upon it, he is seeking to recover upon a promise-which Ryan' was induced to make by the fraudulent inducements held out to him by Winsor, in order to enable T. Winsor' & Co. to dispose of the business. Carrington, by-accepting the avails of the scheme, must be deemed to-have adopted the means by which the avails were secured. If a scheme was concocted to unload the business and property of T. Winsor & Co. upon the corporation, and misrepresentations were made respecting said business to-induce John Ryan to take part in the enterprise, and in pursuance of that scheme the property was transferred to-the corporation, and contrary to the .expressed understanding of the parties, and by reason of the fact that Winsor and Carrington controlled the directorate, that property •was credited to Winsor upon the books of the corporation; at a figure ’largely in excess of its actual value, although a fraud may have been perpetrated upon the corporation, the whole scheme was none the less a fraud upon John. Ryan, for which Carrington must be held liable, not only because a beneficiary, but because a participant in the final act which gives color to the entire transaction.

It was entirely competent to show like representations made to Newell, Van Wert, and Campbell. Beebe v. Knapp, 28 Mich. 53; Cook v. Perry, 43 Id. 623; Stubly v. Beachboard, 68 Id. 401.

■ Representations as to the probable earnings of the enterprise were not necessarily fraudulent. They may be mere expressions of opinion made in good faith, and, in such case, could not be made the basis of recovery; but if made in bad faith, by one who is possessed of superior knowledge respecting such matters, with a design to deceive and mislead, the party making them must respond.

A number of questions are raised as to the admission of testimony. This' is, however, a case where fraud is alleged, and as bearing upon that question a wide range of inquiry has usually been permitted.

We have examined the charge of the court, and do not', discover any error to plaintiff’s prejudice. '

Counsel for appellant have devoted the major portion of their brief to the discussion of the main question, which:, we have considered fully herein. To the other questions-counsel have simply referred without discussion. In such, ease we do not feel called upon to elaborate upon questions so treated by the briefs.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    George T. Mason v. The Detroit, Grand Haven & Milwaukee Railway Company.

      Municipal corporations — Drains—Jurisdiction of county commissioner.
    1. 3 How. Stat. § 1740a8, which provides that, in case it is proposed to run a part of a drain through an incorporated city, the whole of such drain shall be located, established, and constructed by the county drain commissioner, the word “township,” wherever occurring in the drain law, being construed to mean “ city,” as the case may be, applies only to cases where the drain is located partly within and partly without, the city.
    2. The action of a county drain commissioner in establishing a, drain wholly within the corporate limits of a city, the charter of which gives to the city complete jurisdiction over its. drainage, is void.

      Certiorari to Shiawassee. (Wisner, J.)
    Argued January 12, 1895.

    Decided April 16, 1895.
    Relator applied for mandamus to compel respondent to •construct a culvert across its right of way to accommodate • a drain claimed to have been established by relator as •county drain commissioner, and respondent brings certiorari •to review order granting the writ.
    Reversed, and drain ■proceedings quashed.
    The facts are stated in the opinion.

      S. F. Smith, for relator.

      L. C. Stanley, for respondent.
   Grant, J.

The drain the validity of which is contested in this case lies wholly within the city of Owosso. It was established by the county drain commissioner under authority supposed to be conferred on him by the drain law.

Section 4 of chapter 2 of the drain law (3 How. Stab § 1740«7) limits the jurisdiction of township drain commissioners to drains having their beginning, entire course, and terminus within the township. The same section provides that “the county drain commissioner shall have con•current jurisdiction with the township drain commissioner, ■■and shall also have jurisdiction over all other drains within his county,” except in cases where other counties are interested.

. It is claimed that the authority of these commissioners to act within the cities of the State is conferred by section 5 (3 How. Stat. § 1740«8), which reads as follows:

“ In case it is proposed to run a part of a drain through an incorporated city, the whole of such drain shall be located, established, and constructed, and the assessment for its construction made, by the county drain commissioner in the same manner as herein provided for the construction of other drains by county drain commissioners, and wherever the word ‘township-’ is used in this act it shall be construed to mean ‘city/ as the case may be: Provided, that when an appeal is taken from the assessment of such commissioner by the owner of lands in a city, such appeal shall be made to the common council of such city, subject in every other respect to the provisions of this act covering appeals made to township boards.”

We think that no jurisdiction to act within the territory of an incorporated city is conferred by this act upon the county commissioner, except where the proposed drain is to be located partly within the limits of such city. The expression “wherever the word ‘township5 is used in this act it shall be construed to mean ‘city/ as the case may be,” must be construed in connection with the other language of the section and the purpose designed to be accomplished. So construed, its meaning is clear, and applies only to the case previously mentioned, viz., where the drain is located partly within and partly without the city. The charter of the city.of Owosso, like those of Detroit, Grand Eapids, and other cities, gives complete jurisdiction over the drainage of the city. There seems to us no sound reason in holding that the Legislature intended to confer the extraordinary power upon this officer to enter the large cities of the State, and perform the functions of local self-government, which have, from the beginning of the State, been conferred upon these municipalities themselves. The language being susceptible of another and more reasonable construction, we cannot give it this one.

The action of the commissioner was void, and the proceedings must be quashed, with costs.

The other Justices concurred.


author: Long, J.

text:
    Emma C. Smith, Administratrix, etc., v. The Preferred Mutual Accident Association.

      'Accident insurance — Unnecessary exposure to danger — Jumping from moving train.

    In a suit upon.an accident insurance policy, it appeared that the insured, who was a traveling salesman, was injured by jumping from a passenger train after it had left a station, and when it was running at the rate of ■ from 1 to 6 miles per hour, he having at the time a satchel weighing from 40 to 50 pounds in each hand, and that death resulted from the injury. The policy provided that the insurance should not cover any injury resulting, either directly or indirectly, from voluntary or unnecessary exposure to danger or to obvious risk of injury. No necessity for decedent’s jumping from the train was shown. And it is held that the decedent voluntarily exposed himself to “obvious risk of injury,” within the meaning of the policy.
    Error to Ingham. (Person, J.)
    Submitted on briefs February 12, 1895.
    Decided April 16, 1895.

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

      Smith, Lee & Day, for appellant.

      M. V. & R. A. Montgomery, for defendant. ,
   Long, J.

This action is brought upon a policy of insurance issued by defendant, by .-which it undertook to insure the deceased against injury by accident. The deceased was a traveling salesman. He was injured at Middleville, this State, March 29, 1892, in alighting from a train which was in motion, and after it had gone from 150 to 175 feet beyond the station. On the trial in the court below, verdict and judgment were directed for the defendant.

It appears that the deceased was on the train when it pulled into the station at Middleville. ' After it had started up, and run from 150 to 175 feet, he was seen by Mr. Dietrich to step out on the platform, and with a bag in each hand jump to the ground. The witness says:

“ I saw him jump. He struck on both feet. Did not take a step, and then fell over on his head. The heft of the valises took him on his head."

He struck upon ground composed of gravel and cinders. There is no very satisfactory evidence of the speed of the train, the witness saying that it was running from one to six miles an hour. From this accident the deceased became demented, and continued so up to the time of his death, in February, 1893.

The policy provided, among other things, that it should be void if the accident occurred “either directly or indirectly, wholly or in part, from * * * either voluntary or unnecessary exposure to danger or to obvious risk of injury." It was prima facie negligence for the insured to jump from this train.. Lake Shore & M. S. Ry. Co. v. Bangs, 47 Mich. 470; Strand v. Railway Co., 64 Id. 216; McCaslin v. Railway Co., 93 Id. 553; Cousins v. Railway Co., 96 Id. 386. We see nothing in the circumstances which could justify or excuse the act of the deceased in taking the risk in jumping from the train, under the facts shown. . In Tuttle v. Insurance Co., 134 Mass. 175, it was held that under a policy of insurance against accident, providing that no claim should be made under it where the death or injury happened in consequence of exposure to any obvious or unnecessary danger, and containing a condition that the insured was required to use all due diligence for personal safety and protection, no recovery could be had for the death of the insured, which was caused by his being struck by a railroad train while running along in front of it in the night-time, for the purpose .of getting on a train approaching in an opposite direction on a parallel track. It was there said: The danger was obvious.” The deceased in the present case, in jumping from this moving train, must be held to have taken the risk, and voluntarily exposed himself to obvious risk of injury, within the meaning of the policy.

Judgment is affirmed.

The other Justices concurred.


text:
    Frank Dakin v. Chauncey J. Rumsey and Elisha H. Dakin.
    [See 97 Mich. 284.]

      Fraud — Equity—Sale of interest in estate — Consideration.
    1. Equity will not lend its assistance to one who participates in a supposed fraud upon another for his own gain when it after-wards appears that he himself was the defrauded party.
    2. One of several heirs filed a bill to set aside a sale made by him of his interest in the surplus of the estate after the payment of certain legacies, on the ground of alleged false representations made to him as to the purchase of the interest of others of the heirs, including the one who made such representations, and as to his probable interest in such surplus. On the hearing it was established by a fair preponderance of the evidence that complainant was not induced to sell his interest by any' false representations, but that he was anxious to sell, and sold voluntarily, and with full knowledge of the condition of the estate. And’ it is held that this is not a case where relief can be granted upon the ground of inadequacy of consideration; that complainant preferred to take the sum received rather than incur the expeiwe of litigation in which the estate was involved, the result of which was uncertain; that it is of no consequence, therefore, whether the purchasers of his interest made much or little, nor can the rights of either party be affected in this regard by considering the total amount of profits made from the entire purchases by the defendants.
    Appeal from Ingham. (Person, J.)
    Submitted on briefs February 13, 1895.
    Decided April 16, 1895.
    Bill to set aside the sale of complainant’s interest in his brother’s estate. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Lawton T. Remans {Smith, Lee & Bay, of counsel), for complainant.

      Ellis, Nichols & Miller, for defendants.
   Grant, J.

One John B. Dakin died, testate, July 14,1891, leaving a large estate, mostly personal property, appraised by the appraisers of the estate at $216,762.35. To this should be added $11,431.79 of questionable paper. His heirs were twelve brothers and sisters and two children of a deceased brother. The total bequests of money amounted to $124,-600. Among these bequests was $40,000, and all the household goods and certain other personal property, to his wife. The will provided that the legacy to his wife should be in lieu of the right of dower in and to his estate. The widow elected to take under the will. After making this decision, she claimed one-half of the surplus or residue of the estate after the payment of the legacies, under How. Stat. §§ 5788, 5847, since there was no residuary clause disposing of the residue of his estate. Thereupon the defendant Elisha H. Dakin filed a bill in chancery, claiming that this provision of the will and the deed of the homestead to her were in pursuance of a contract between her and her husband. A demurrer was interposed to this bill, and the demurrer sustained, which was reversed by this Court. 97 Mich. 284. It was also claimed in this bill that certain of the legacies were void, for reasons unnecessary to mention. All the legatees were made parties to that bill. While this suit was pending, the defendant Eumsey purchased the interest of complainant and several other heirs to the surplus of the estate after the payment of the legacies. Defendant Elisha H. Dakin was interested in this purchase, as was also the law firm of Ellis, Nichols & Miller. The releases and deeds were made to Eumsey. The attorneys, at their option, were to take an interest in the profits, if any were made, or to charge fees for their services. Defendant "Dakin and Nichols negotiated the purchases. Eumsey was to furnish the money. Nichols, 'was made a party defendant to the bill, but, after the proofs were taken, the suit was discontinued as to him. May 23, 1894, defendants Eumsey and Elisha H. Dakin, -Daniel L. -Dakin, and Hubbard H. Dakin settled with the widow for the sum of $20,000, and took an assignment ■ to themselves of all her interest in the estate then undisposed of, the' legacies having meanwhile b'een paid. In the mean time complainant filed the bill in this cause, praying that the sale made by him to defendant Eumsey be - set aside, on the ground of fraud. It alleges a conspiracy between defendants and Nichols to cheat and defraud him. The allegations of fraud are that defendant- Dakin falsely represented to complainant that, four of the heirs and distributees of said surplus had already transferred their interests to defendant Eumsey for the sum of $2,000 each, and that he (Elisha) had sold his interest for a like sum; that Elisha represented to him that Mr. Nichols was in possession - of all the facts relating to the estate, and that, if he desired further information about the estate and said surplus before determining whether he would transfer his interest to Eumsey, Nichols would be in Dansville the following day, and he could meet-him; that on the following day he met the defendant Dakin and Nichols, and that they falsely represented to him that there were five suits, including the chancery one above mentioned, pending concerning the •said estate, and that, if the widow was successful in said suit, he (complainant) would receive nothing from the ¡surplus, and that, if the five suits continued, the surplus would be entirely consumed; that they also falsely represented that they had purchased for Eumsey the interest of four of the distributees for the sum of $2,000 each, and that Elisha had transferred his interest for the like sum; that Elisha represented that if the claim of the widow were withdrawn, and the estate immediately settled, complainant would receive about $3,100, whereas complainant asserts that, if said suit was determined favorably to her, he would be entitled to $4,000 and upwards, and, if it was ■determined unfavorably to her, he would receive $8,000 ■and upwards. He further alleges that he was ignorant of ■the condition of the estate. Proofs were taken in open ■court, and a decree entered dismissing the bill.

John B. Dakin had left to complainant a life interest ■in a farm of 140 acres, and bequeathed him $3,000 in money. The testimony shows that he was a spendthrift ¡and a drunkard, and within the three years previous to -the hearing below had squandered the entire $3,000, and also the $2,000 paid him by Eumsey. The representations that there were five suits pending, and that Eumsey had bought out four of the heirs at $2,000 each, were true. ■Complainant was a man of fair intelligence. He admits that he had heard the will read. He therefore knew the amount of the legacies. He knew the claim made by the widow, and, if he did not know the amount of the estate, ■it was his own fault, for he had ample opportunity to investigate. Hubbard H. Dakin, his brother, testified that he wrote to him about the estate, explained it to him a good many times after he came, and told, him that the estate amounted to about $225,000. Mr. Nichols had the papers with him showing the condition of the estate, but he did not ask to examine them. He admits that he knew the estate might be worth more than he was to receive; that his brother Hubbard had told him he did not think there would be over $3,000 or $4,000. Mr. Nichols-testified that he asked complainant if he knew about the condition and situation of the estate, and he replied that-he did. Mr. Nichols further testified that he had a certified copy of the account of the administrators showing-the amount of cash on hand and a complete statement of the expensés, and stated to complainant that, if he wanted to know anything about the estate, he would try to explain it to him, and show him just. what there was of it and just what he was selling; that- complainant replied that he-had already offered his interest for $1,500; that he showed, him the deeds from the six heirs which he had already purchased, and he said he was satisfied. This is denied by the complainant, but we have no hesitation in placing-more confidence in the testimony of Mr. Nichols than in that of the complainant, and especially in view of the-testimony of other witnesses that he had offered to sell for $1,500.

We think it is established by a fair preponderance of' evidence that he was not induced to sell by any false representations, but that he was anxious to sell, and sold voluntarily and with full knowledge of the condition of' the estate. He preferred to take the $2,000 rather than incur the expense and uncertainties of litigation. Furthermore, the complainant does not, under his own testimony, come into court with clean hands and an honest purpose. He testified that his brother Elisha told him that he-wanted him (complainant) to make up his mind quick; that he (Elisha) was “looking for a telephone ’most any time to stop as soon as Rnmsey finds out that there are; five suits depending. He don’t know anything about that. I got him drunk, and got him into this myself, and just as soon as he finds out there are five suits depending he is going to stop it.” He further testified that he believed this. He, therefore, was willing and believed that he was participating in a fraud upon Eumsey. Since he has participated in a supposed fraud upon another for his own gain, equity will not lend its aid to assist him, even if ha were the defrauded party.

It is argued that the consideration paid by defendants was grossly inadequate. This is not a case where relief can be granted upon inadequacy of consideration. Several lawyers were employed. The expenses of litigation were heavy, and the result of litigation with the widow uncertain. It was regarded as so uncertain that they settled with the widow by paying her half of her claim. Complainant preferred to take $2,000 rather than incur the expense of litigation. He was entitled to only one-thirteenth of the surplus. It is of no consequence, therefore, whether the purchasers made much or little. Nor are the defendants’ or complainant’s rights to be affected in this regard by considering the total amount of profits made from the purchase of the shares now owned by the defendants.

The decree must be affirmed, with costs.

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


text:
    Archibald P. McKinnon v. Elden Meston.

      Taxes — Conclusiveness of deed — Replevin—Title to land — Possession — Evidence.
    1. It is not within the power of the Legislature to deny the right to defend against a tax deed by declaring that it shall be conclusive evidence of title in fee in the grantee; citing Taylor v. Deveaux, 100 Mich. 581.
    2. The doctrine adhered to by the courts of several of the states that, in an action of replevin for logs, evidence on' the part of the defendant that the logs were cut while he was in the bona fide and actual possession of the land from which they were taken, under a claim of title adverse to that of the plaintiff, precludes an investigation of defendant’s title in said suit, has been repudiated in this State; citing Keyser v. Sutherland, 59 Mich. 466; Busch v. Nester, 62 Id. 382, 70 Id. 529; Wilson v. Hoffman, 93 Id. 74,
    3. A bona fide and actual possession of wild lands is not clearly established by testimony tending to show that the party making such claim occupied a shanty on the land while removing timber therefrom, it not appearing who built the shanty, nor what the purpose was for which it was built, and there being a doubt as to the shanty’s being upon the land from which the timber was removed.
    4. Testimony by the father of the claimant that he once heard his son say that he calculated to buy an adjoining parcel of land, and make a home of the two parcels, was hearsay, and inadmissible; citing Elliott v. Van Buren, 33 Mich. 49; Insurance Co. v. Crampton, 43 Id. 421.
    Error to Otsego. (Sbarpe, J.)
    Submitted on briefs February 13, 1895.
    Decided April 16, 1895.
    Replevin. Plaintiff brings error.
    Reversed.
    The facts are stated in tbe opinion.

      Marshall & Townsend (Frost & Sprague, of counsel), for appellant.

      W. A. Harrington (Lanning & Lyon, of counsel), for defendant.
   Hooker, J.

The plaintiff replevied certain logs, which defendant had cut and removed from wild lands of which the plaintiff held a patent from the State. The court •directed a verdict for the defendant, apparently upon the .ground that the undisputed testimony showed him to have been the owner of the premises under a tax deed, and in possession under an adverse claim, at the time the timber was cut.

The tax deed was received in evidence, and was a deed from the county treasurer to the defendant for the taxes of 1884, 1885, 1886, and 1887, said lands having been bid off. to the State for the taxes of these years, and sold to the defendant by the State in 1892. Treasurers’ receipts were received in evidence, against the plaintiff’s objection and exception, for the purpose of proving payment by the defendant of the taxes for 1888, 1889, 1890, 1891, and 1892. It was said that the object was to show good faith. The defendant was not sworn. His brother testified that—

“At the time the logs were cut, during the winter, I worked for my brother, the defendant, and he was in possession of the land aforesaid. I think he took possession of the land in 1892. It was after the tax deed was issued to him.”

On cross-examination he said:

“What I mean in saying that defendant was in possession of the land is, he was living on the place, and had a tax deed of the place, that I know of. He went on the land to cut the timber and clear off a piece. During all this time he lived on the place. He lived there about four months. He built a log shanty. He took cooking ntensils there to cook meals for us. He did not sleep there all of the time, but slept a part of the time at his father’s house while hauling logs. He was sleeping on the place while cutting the timber, and part of the time while hauling it. The logs were replevied before he got through hauling. Defendant chopped off a piece between a quarter and a half acre. It was not for the purpose of getting timber to build a house. He slept on the land only a few nights after the logs were replevied, and since then has been away. He is not a married man.”

The defendant’s father testified that “at the time of cutting the logs the defendant was in possession' of the land.” He also said that he once heard defendant say that he “ calculated- to bay a forty that lay beside this land, and make a home of the two forties.”

The plaintiff had previously testified that he heard logs were being cut on this land on January 15, 1893, and went there. He found “ no one in possession in particular. The logs were all cut and on the roll-ways, and part were hauled up to the farm.” The defendant was with him, and said he thought the tax title was good, but 'the chance's were that he would fix it up. . The plaintiff 'marked the logs. . He saw a shanty there, but thought it was not on the land. He said that the defendant “did not say anything about being in possession of the .property, no more than he claimed to cut it.” The land was only valuable for the timber.

-The testimony raises questions of fact as to the actual .possession and the defendant’s good faith in his claim of title. These are unimportant if his tax deed was valid. Counsel for the plaintiff sought to show that the tax proceedings for 1887 were void, because’ there was no dollar sign in the column in the decree, and no report of the county treasurer of his proceedings under the decree. The court excluded this testimony, holding that the validity of the deed could not be attacked in this proceeding. The objection made was that the deed was conclusive evidence of title, under the statute; but this was held otherwise in Taylor v. Deveaux, 100 Mich. 581.

It should be stated that our understanding is that the court did not base his ruling upon the statute, but upon the ground that the evidence showed a bona ftd$ possession by the' defendant under an adverse claim that precluded an investigation of title. If right in <his view of the facts and law relating to that point, he properly declined to listen to proof in regard to the tax deed. The courts of several states adhere to the doctrine relied upon by counsel for the defendant, but it seems to have been repudiated in Michigan. Keyser v. Sutherland, 59 Mich. 466; Busch v. Nester, 62 Id. 382, 70 Id. 529; Wilson v. Hoffman, 93 Id. 74.

We think, furthermore, that bona fide and actual possession was not clearly established. Not only did the defendant refrain from testifying, but the testimony given showed that he merely occupied a shanty while' removing the timber. It does not appear who built the shanty, nor is the purpose for which it was built stated, and it may be doubted if it was upon the land from which the timber-was cut. There was ample opportunity for the jury to find that the alleged possession was a subterfuge, and; that the defendant was a trespasser merely if his tax title, was invalid.

The statement of defendant’s father that he had once heard his son state his intention to make a home, etc.,, was hearsay, and inadmissible. Farmers’ Mut. Fire Ins. Co. v. Crampton, 43 Mich. 421; Elliott v. Van Buren, 33 Id. 49.

It follows that the judgment must be reversed, and anew trial directed. . .

McGrath, C. J., Long and Montgomery, JJ., concurred with Hooker, J. Grant, J., concurred ‘in the result.

       3 How. Stat. § 1170g6.


author: Grant, J. McGrath, O. J.

text:
    Clarrie A. Apsey, Administratrix, etc., v. The Detroit, Lansing & Northern Railroad Company.

      Res judicata — Second appeal — Contributory negligence.

    Where, after the reversal of a judgment in a negligence case on the ground of the contributory negligence of the father of the decedent, the case is again tried, and on a second appeal the evidence of such negligence is the same as that given on the former trial, the question will be treated as res judicata.

    Error to Ingham. (Person, J.)
    Argued February 14, 1895.
    Decided April 16, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion, and in 83 Mich. 432.

      Black é Dodge, for appellant.

      M. V. & R. A. Montgomery, for defendant.
   Grant, J.

It was held in the former opinion that the plaintiff could not recover on account of the contributory negligence of James Apsey, the father of the deceased, who was driving at the time of the accident. The evidence of such negligence in the present record is the same as that in the other, nor does the record differ in any particular from the former. That opinion was written by Chief Justice Champlin, and concurred in by the entire Court. Upon the second trial in the circuit, the court, in accordance with the former opinion, directed a verdict for the defendant. That decision settled the law of the case, and to reverse it now would result in overruling that decision. It is unnecessary to cite authorities that the question is res judicata, and will not be reviewed upon appeal to this Court after a second trial.

Judgment affirmed.

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

McGrath, O. J.

Plaintiff’s intestate was killed at a crossing. The course of the highway is north and south,, and that of the railroad east and west. The decedent,, who was 11 years old, was in a buggy with his father, who was driving. They approached the track from the south. The train came from the west. A ditch had been made parallel with defendant’s tracks about 4 feet wide, and the bottom of which was about 18 inches below the surface of the roadbed.- This ditch was covered in the center of the highway with planking 10 feet in length, leaving a passageway of that width immediately south of the tracks. In cutting this ditch the dirt had been thrown up to the south thereof, so that, just before the planking was reached, there was an embankment over three feet high on the east side of the driveway, and 20 inches high on the west side of the traveled way. These embankments projected into the traveled way, reducing the passageway to 7 feet. Plaintiff’s theory was that the father did not discover the approach of the train until within the right of way, and near the track, and then attempted to avoid a collision by turning his horse to the east, when the right front wheel struck the embankment upon the east side of the highway, the left front wheel went off the culvert into the ditch, overturning the buggy, and throwing its occupants against the locomotive. Both were killed. The declaration charges neglect to give the crossing signals, and the failure to restore the highway to its former condition. The court instructed the jury that decedent’s father was guilty of contributory negligence, and directed a verdict for defendant.

Plaintiff’s testimony tended to show that south of defendant’s right of way, and west of the highway, there were various obstructions of the vision, consisting of buildings, orchard, and fences and higher ground, so that a traveler upon the highway, approaching the tracks from the south, could not, at any place between a point 40 rods south thereof and the south line of the right of way, see a train ■approaching the highway from the west; that the crossing ■signals had not been given; and there was testimony tending to show that the father was on the lookout as he approached the crossing. Defendant produced its civil engineer, who testified that by actual measurement the highway 50 feet south of the railroad track was 1 foot and 4 inches higher than the top of the rail at the center of the crossing, and that át 20 feet south it was 4 inches higher than the rail; that the slope of the traveled part of the highway for the 50 feet was gradual, down to the railroad track; that the highest point of the mound on the right of way, and west of the highway, which was claimed to ■obstruct the view of a train from the west, was 164 feet west of the highway; that such highest point was 6 feet higher than the railroad track opposite it, 6 feet 2 inches higher than the track at the crossing, 5 feet 6 inches higher ■than the highest point of the track in that vicinity, 4 feet •'8 inches higher than the highway 50 feet south of the crossing, and 5 feet 8 inches higher than the highway 20 feet south; that, going west from the crossing, there was an up grade at the rate of 4 feet 4 inches to the mile for a distance of 770 feet, from which point the grade descended towards the west; that the eyes of a man sitting in a buggy were 6 feet 9 inches above the ground, and that the passenger cars run on defendant’s ■ road were 14 feet high, and the smoke stacks of its engines about the same; that he had been practicing his profession about 4 years, and had taken the levels and measurements in the usual way. The plaintiff's testimony tended to show that at the time of the accident, in the month of July, the-earth west of the highway was covered with grass and weeds to the height of 29 inches, and it is insisted that the measurements given did not take into consideration this growth. Plaintiffs testimony tended to show that the horse approached the crossing on a walk. The train was running from 40 to 50 miles an hour. At the rates given, when the horse was 100 feet from the track, or 55 feet south of defendant’s right of way, the train must have been 1,100 feet, or over 65 rods, west of the crossing, and 330 feet west of the crown of the track-. Both of the parties were killéd, and the presumption is that they were in the exercise of reasonable care. There is no testimony which conclusively rebuts that presumption, and the question of contributory negligence should have gone to the jury.

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

Montgomery, J., did not sit.


text:
    Louis George et al. v. The Wyandotte Electric Light Company et al., and William Campbell et al. v. The City of Wyandotte et al. [Two cases.]

      Municipal corporations — Contract for public lighting — Injunction — Parties—Accounting.
    1. Tax-payers of a city, who are electors therein, are proper parties to a suit to enjoin the city from illegally disposing of the corporate funds, or illegally creating a corporate debt.
    2. In a suit to enjoin the carrying out of a contract with an electric company to furnish a plant for a city, the court decreed that the contract was void, and enjoined the payment ■of any more moneys thereunder. There was no dispute as to the amount of money which the city had paid on the contract. And it is held that the court should have required the ■electric company to account to the city for the money it had received, and ordered it to refund the same into the city treasury, and thus dispose of the entire controversy.
    3. Where at an election regularly petitioned for, ordered, and held under Act Ño. 186, Laws of 1891, entitled “ An act to authorize the cities and villages of this State to provide for the lighting of their streets and other public places therein by .means of electric or other lights,” a majority of the qualified ■electors of a city vote in favor of constructing works for public lighting, it is not within the power of the city council to -wholly set aside that action, and at once let a contract to private parties for lighting the city for a term of years.

      Appeals from Wayne. (Gartner, J.)
    Argued October 31, 1894.
    Decided April 16, 1895.
    Bills to determine the validity of certain contracts for public lighting. Defendant Wyandotte Electric Light Company, and complainants Campbell et al., appeal.
    Decrees modified and affirmed.
    The facts are stated in the opinion.

      Edwin F. Conely and Orla B. Taylor, for appellants.

      Charles W. Casgrmn, for complainants George et al. and defendant Western Electric Company.

      DieMnson, Thnrber & Stevenson, for defendant city of Wyandotte, and of counsel for complainants George et al.

   Long, J.

These cases were heard together in the Wayne circuit court in chancery, and are both here on appeal.' We shall refer to them as the “George case” and the “Campbell case.” The pleadings in each case are here, but there is but one record, which substantially contains all the testimony in reference to each case. The cases involve the validity of two contracts made by the city of Wyandotte, one with the Western Electric Company, of Chicago, for the construction of an electric light plant for the city, and the other with the Wyandotte Electric Light. Company for lighting the city for the period of five years.

It appears that in 1891 the Wyandotte Electric Light Company, a local company, was engaged in lighting the city under a contract which would expire February 1, 1898. Prior to the last-named date, such proceedings had been had that a' contract was let by the city to the Western Electric Company to build for it a plant of its own for the sum of $11,937, one-half to be paid on delivery of the apparatus on the ground. The mayor and city clerk were directed by resolution of the council to issue bonds of the city for the sum. of $12,000. These bonds were issued and sold, and the proceeds directed to be deposited with the city treasurer, and on February 20, 1893, the city treasurer paid to the Western Electric Company the sum of $5,-901.50. On March 1, 1893, the council declared all the proceedings to have a plant built irregular and void, and by resolution vacated and set aside such proceedings, and accepted a bid from the Wyandotte Electric Light Company to light the city for five years from that time.

The bill is filed in the George case by Mr. George and some 20 or more others, tax-payers and electors of the city of Wyandotte, against the Wyandotte Electric Light Company and the mayor, clerk, treasurer, and aldermen of the city of Wyandotte, to restrain them from carrying out the contract with the Wyandotte Electric Light Company, and to restrain the payment of any money thereunder, and that the officers and the common council of the city be directed to recognize the contract made with the Western Electric Company as legal and in full force, and to audit, allow, and pay all moneys due under said contract according to its terms. The Wyandotte Electric Light Company answered, setting up that the contract with the Western Electric Company was void, and that the contract with the Wyandotte Electric Light. Company was a valid and binding one upon the city and its officers.

In the Campbell case, the bill is filed by Mr. Campbell and others, residents, citizens, and tax-payers of the city, against the city of Wyandotte, the mayor, clerk, treasurer, and aldermen, and the Western Electric Company. This second bill sets up the regularity of the proceedings to the making of the contract with the Wyandotte Electric Light Company, and asks to have that contract enforced; and also asks to have the contract with the Western Electric Company declared void by reason of certain irregularities and illegalities in the proceedings on the part of the city council, and in the proceedings of the electors’ meeting by which the council was authorized to bond the city to raise money for building the plant. An injunction is asked restraining the Western Electric Company from completing the plant, and restraining the officers of the city from paying any more money to it for that purpose, and that the Western Electric Company and the officers of the city account to the city for the moneys the Western Electric Company has already received. The city and the Western Electric Company answered.

The causes being at issue, the testimony was taken in ojien court, and a decree entered in each cause. In the George case the court decreed, substantially, that the officers of the city refrain from paying any money to the Wyandotte Electric Light Company, and- declared that contract void. In the Campbell case the court declared the contract of the Western Electric Company void, and also directed that the city refrain from paying any more moneys thereunder. It was further provided in that decree as follows:

“That the decree shall be without prejudice to the rights of the city of Wyandotte or the Western Electric Company to bring suit against the other in relation to the purchase money of said electric light plant, or the money heretofore paid to said Western. Electric Company on account of said pretended contract.”

From this decree in the George case the defendant the Wyandotte Electric Light Company appeals. In the Campbell case the complainants appeal. The Western Electric Company and the city do not appeal.

The only contention in the Campbell case is that the court, in declaring the contract of the Western Electric Company void, should have compelled that' company and the mayor, clerk, and treasurer of the city to -enter into an accounting with the city for the moneys the Western Electric Company had received from the officers of the city illegally, and required the Western Electric Company and the mayor, clerk, and treasurer of the city to pay over any money found due the city on such accounting; and that the court was in error in remitting the parties to their action at law. We shall consider this subject first. Iu this case the complainants pray that the money be repaid into the treasury, in order that the money ma.y be a fund to meet the bonds when due, if valid by reason of being in the hands of bona fide purchasers, or otherwise. The court below found the contract between the city and the Western Electric Company void, and the city officers and the Western Electric Company have not appealed. The complainants in that case, however, do appeal, upon the ground that the court should have awarded an accounting between the city and the Western Electric Company. The only question, therefore, which we need consider on this appeal, is whether the Wrestern Electric Company shall so account. The facts were all before the court. It had full jurisdiction of the parties and the subject-matter, and, the contract being void, the Western Electric Company had in its possession a sum of money illegally and wrongfully paid by the city officers without warrant of law. There is no dispute about the amount. It is the sum of $5,961.50, and it was paid on February 20, 1893. For this amount the Western Electric Company must account in this action to the city, with interest at 6 per cent, from February 20, 1893. The principle that equity, having once acquired jurisdiction, will retain it to give such full relief as will finally dispose of the controversy, is well settled. Whipple v. Farrar, 3 Mich. 436; Miller v. Stepper, 32 Id. 194; Wallace v. Wallace, 63 Id. 326; Drayton v. Chandler, 93 Id. 383, 388; In re Petition of Axtell, 95 Id. 244; Chase v. Boughton, 93 Id. 285. The tax-payers of the city who file this bill are proper parties to. a suit to enjoin the city from illegally disposing of the corporate funds, or illegally creating a corporate debt. McCoy v. Briant, 53 Cal. 247; Withington v. Inhabitants of Harvard, 8 Cush. 66; Mayor, etc., of Baltimore v. Gill, 31 Md. 375; Merrill v. Plainfield, 45 N. H. 126; 10 Amer. & Eng. Enc. Law, p. 963, and note. We think there is no sufficient ground shown to hold the officers of the city to the payment of this fund. The Western Electric Company had the money under an illegal and void contract, and must account for it. The decree in the Campbell case will therefore be modified by requiring such accounting, and refunding into the city treasury the sum specified, with interest as above stated. In other respects that decree will be affirmed, with costs to complainants.

In the George case it appears that the council, regarding the contract with the Western Electric Company as invalid, on March 1, 1893, rescinded all action previously taken in relation thereto, and made a contract with the Wyandotte Electric Light Company for the period of five years. The statute empowers the council to enter into a contract for lighting streets and other public-places for a period of five years. Act No. 186, Laws of 1891. The former contract with the Wyandotte Electric Light Company expired on February 1, 1893. It was in writing, and on file in the city clerk’s office. On January 30, 1893, a communication was sent by that company to the city council containing a proposition to extend the contract for a term of years at $60 per light per annum. This was read to the council and filed with the city clerk. The communication was laid on the table until March 1, when it was taken up, and a resolution passed that—

“The proposition of the Wyandotte Electric Light Company aforesaid be and the same is hereby accepted, and that the term of the contract with said Wyandotte Electric Light Company be for the period of five years from and after the 1st day of March, 1893, at the rate of $60 per lamp per annum for 40 .lamps, and at the same rate for all additional lamps ordered by the council; it being understood and provided that the said Wyandotte Electric Light Company shall have 60 days within which to provide all extra lamps over those now in use. It is further resolved that the terms of this contract for lighting shall be the same as the contract with said Electrio Light Company which terminated February 1, 1893, and that the same shall be binding upon the acceptance of 'this resolution and contract by said Wyandotte Electric Light Company, which must be filed with the city cleric within five days from this date.”

This resolution was passed by a vote of six yeas and no nays, a yea and nay vote being taken, and duly recorded in the journal of the proceedings. In accordance with the terms of this resolution, a written acceptance was duly filed by the company. On March 8, 1893, a meeting of the council was held, but no motion to reconsider was made, and the minutes of the former meeting were read and approved.

It is contended, however, that this contract is void, because in direct violation of the act of 1891; {hat, after an election had been held at which the people had determined for the construction of a plant, no contract could be legally entered into with the local company to light the public places and streets; that the qualified electors had determined the manner in which they proposed to take advantage of the act of 1891, and any other contract except in accordance with such determination is void.

The title to Act No. 186, Laws of 1891, is as follows:

“An act to authorize the cities and villages of this State to provide for the lighting of their streets and other public places therein by means of electric or other lights.”

The body of the act provides for two independent methods of doing this: First, by purchase or construction of a plant; second, by contract for the furnishing of light. Section 3 of the act provides that—

“Whenever 100 or more of the qualified electors of any city or village in this State shall petition to the common council of such city or the board of trustees of such village to submit to the electors thereof the question of whether or not said city or village shall avail itself of the provisions of this act, it shall be the duty of such common council or board of trustees, as the case may be, to submit such question to the electors of such city or village at its next regular election therein; and, in case a majority of the electors shall vote in favor of such city or village availing itself of the provisions of this act, it shall thereupon become the duty of the common council of such city or the board of trustees of such village to take such action as shall be necessary to carry such resolution into effect, in the same manner and with the same effect as if such common council or board of trustees had by resolution declared the same to be expedient, as provided for in section 2 of this act,” etc.

It is evident from the reading of the whole act that it was the legislative intent to permit a majority of the qualified electors to determine the manner in which the city should be lighted, whether by the purchase or construction of a plant of its own, or by a contract for a term of not less than three nor more than ten years. It appears that on December 30,1891, a petition was presented to the council, signed by 221 of the qualified electors of the city, asking that the question be submitted to the electors whether they would avail themselves of the provisions of this act. This question was submitted by .resolution of the council at the April election in 1892, as follows:

“All electors voting in favor of such question shall vote a ballot containing the words: ‘In favor of constructing works for public lighting, — Yes.’ All electors voting against said question shall vote a ballot containing the words: ‘In favor of constructing works for public lighting, — No.’ ”

Seven hundred electors voted in favor of constructing the plant, and 29 against. While it is true that the court below found the proceedings void as to the contract with the Western Electric Company to erect a plant, — and we think properly, — by reason of the many irregularities therein contained, yet it is evident from the vote of the electors that they were in favor of availing themselves of the provisions of the act to erect a plant by the city, and consequently not in favor of a contract for a term of years. However irregular and void the proceedings of the council may have been leading up to the making of the contract with the Western Electric Company, we think, the people having exercised their option under the act to build a plant, it was not within the power of the council to wholly set aside that action, an'd at once let a contract for a term of years. The act makes the electors the judges as to the manner in which they shall avail themselves of its benefits.

The court below was therefore correct in holding the contract with the Wyandotte Electric Light Company void. That decree will be affirmed, with costs.

The other Justices concurred.