text:
    HOFFMAN v. SILVERTHORN.
    1. Judgments — Mandamus—Res Judicata — Dismissal.
    The denial of a mandamus is res judicata if the court passes upon the merits, but not if the writ was denied because no case was made which appealed to the discretionary power of the court, or because the relator had a manifest legal remedy, or because mandamus was not a proper remedy.
    .2. Appeal and Error — Grounds op Decision — Opinion.
    On error, the Supreme Court will consider only the evidence presented to the lower court, and will not resort to the recollection of the justices to determine the grounds on which a mandamus was denied, no written opinion being filed.
    3. Judgment — Res Judicata — Burden op Proof.
    Where several issues are presented, and a general judgment is rendered, the party asserting that a particular issue was determined by the judgment has the burden of proving it.
    4. Taxation — State Tax Lands — Recitals in Deed — Conclusiveness.
    A recital in a deed issued by the auditor general that a former deed was erroneously released is, at most, but evidence of the fact, and is not conclusive.
    5. Same — Mandamus—Dismissal—Res Judicata.
    Where there is no evidence before the court to show that, in denying a mandamus, the court passed upon the merits, such proceedings are not res judicata.
    6. Appeal and Error — Findings of Fact — Conclusiveness.
    The findings of fact in a trial before the court without a jury are conclusive on error to the Supreme Court.
    7. Same — Findings of Fact — Conclusiveness.
    The Supreme Court cannot, from statements in counsel’s brief, draw any inference of fact opposed to the findings of the trial judge.
    8. Taxation — State Tax Lands — Application to Purchase — Deposit.
    An application to purchase land bid in by the State for taxes, which is not accompanied by a sufficient deposit, does not give the purchaser any right to a deed.
    9. Same — Insufficient Deposit — Interest.
    An application to the auditor general for the purchase of State tax land must be accompanied by a sufficient deposit, and if it is not sufficient, and the applicant makes up the amount at a later date, he must also deposit sufficient to pay the interest to such later date.
    10. Same — Error in Computation — Void Deed.
    A deed of State tax land for a less sum than was due the State, because of an error in computation by the auditor general’s office, is void as against the owner of the original title. Clippinger v. Auditor General, 135 Mich. 1, distinguished.
    11. Same — State Tax Land — Release to State — Resale.
    Where the purchaser of State tax land releases his interest to the State, it is the duty of the auditor general to convey the land to the original owner, who has made a complete application which is still pending, rather than to redeed it to the purchaser on his original application.
    13. Parties — Erroneous Joinder — Estoppel to Object.
    Plaintiff, who himself brings in a party defendant, has no right to insist that such defendant should not have been made a party.
    Error to Marquette; Stone, J.
    Submitted April 21, 1904.
    (Docket No. 133.)
    Decided June 25, 1904.

      - Ejectment by Frank Hoffman against George Silver-thorn and Perry F. Powers, auditor general. There was ' judgment for plaintiff, and defendants bring error.
    Affirmed.

      Charles A. Blair, Attorney General (Charles W. McGill, of counsel), for appellants.

      Ball & Ball, for appellee.
   Carpenter, J.

This is an action of ejectment. It was tried by the court below without a jury, who made a finding of facts, and rendered judgment for the plaintiff. We state such of said facts as are necessary to an understanding and disposition of the legal questions raised on this appeal:

“Said Frank Hoffman is the owner in fee simple of” the lands in controversy, “having acquired the original or * government title- thereto. Said lands were duly assessed for taxes in the years 1892, 1893, and 1894, and, the same having remained delinquent, were included in the auditor general’s petition for said several years, and were duly bid off to the State. * * *
“On August 27, 1897, said lands- being held as State tax lands by the State of Michigan, the defendant George Silverthorn applied to purchase said lands, together with a number of other descriptions of lands held by the State as State tax lands and on State bids, but on said date did not deposit enough money to purchase the entire list of lands so applied for.”

On October 25th said Silverthorn deposited a sufficient sum to more than complete the purchase and payment of the taxes on the lands described in said list. The auditor general computed interest on said purchase, not to October 25, 1897, when the deposit was made sufficient, but to August 27, 1897, when the application was made, and returned the surplus, which was much more than sufficient to make good the error of computation, to said Silverthorn, and on the'8th day of November, 1897, issued a State tax land deed conveying the land in controversy to said Silver-thorn.

On the 23d of July, 1902, plaintiff applied to the auditor general to cancel said sale to Silverthorn on the ground of the above-described error in computation, and at the same time himself applied to pay and purchase the same, and deposited a sum of money more than sufficient to pay all taxes legally chargeable against said lands, with interest thereon. August 15, 1902, while the foregoing application of plaintiff was pending and undetermined, “ said Silverthorn released to said auditor general all his right, title, or claim under and by virtue of the purchase of said lands for the taxes of 1892, 1893, 1894, 1895, and 1896,” which release was duly recorded August 16, 1902, in the office of the proper register of deeds.

The trial court finds as a fact that “on the recording * * * and delivery of said release * * * the State of Michigan reacquired all the title which it had originally acquired by the sales for such delinquent taxes.”

September. 10, 1902, the auditor general refused to cancel the said sale to Silverthorn, and rejected the application of plaintiff to purchase said lands,' and on November 22, 1902, issued new State tax land deeds to Silverthorn. These deeds purported to be issued under the application of Silverthorn made on August 27, 1897. They were issued for tbe consideration which would have been due that date, and they contained the recital: “ This deed is executed to take the place of a deed issued from this office on the eighth day of November, 1897, and erroneously released on the fifteenth day of August, 1902.”

March 23, 1903, plaintiff renewed his application for the cancellation of said original sale to Silverthorn on the same ground on which the former application was based, and at the same time made a sufficient deposit, and asked to himself purchase said lands and pay all the taxes thereon. This application was also denied. Thereupon plaintiff, as relator, instituted mandamus proceedings in this court against said auditor general, as respondent. An order to show cause was issued, and the application was denied May 18,1903, without any written opinion being filed. Plaintiff did not in his petition for a mandamus make any reference to the release of Silverthorn to the auditor general, and the new deeds of November 22, 1902, because he had no knowledge of the same until the hearing of this case. And as these facts were, for some reason unknown to the court, not stated in respondent’s answer, they were not considered in denying the mandamus.

Defendants ask the court to reverse the judgment rendered on these findings for two reasons: First, the mandamus proceedings in this court are res judicata; second, the deed to Silverthorn is not defective. We will consider each of these questions separately.

Are the mandamus proceedings res judicata? If the decision in the mandamus proceedings was made upon the merits, we think that decision would be decisive between the parties to that proceeding and their privies. Weed v. Mirick, 62 Mich. 414 (29 N. W. 78). It does not follow, because the mandamus was denied, that the court passed upon the merits of plaintiff’s application. That mandamus may have been denied because no case was made that appealed to the discretionary power of the court, because relator had a manifest legal remedy of which "he could not be deprived, or because mandamus was not the proper remedy. If the mandamus was denied for either of these reasons, no authority need be cited to the proposition that that decision was not res judicata. Though the members of this court might ascertain by consulting their own recollections the precise ground upon which that decision proceeded, it is obvious to the slightest reflection that such a course cannot be adopted. We are bound to proceed, in determining this case, on legal grounds. We can avail ourselves of no evidence which was not presented to the lower court. We cannot, therefore, consider as evidence of our determination the statement relating thereto and hereafter quoted — even if such a statement affords evidence — contained in our opinion in Clippinger v. Audi tor General, 135 Mich. 1 (97 N. W. 53), for that opinion, was filed November 9, 1903, while this case was decided in the lower court September 39, 1903. The question for our determination is this: Did the trial judge correctly determine this issue, on the evidence before him, and on the facts which he might judicially know?

There are authorities which hold that when there are several issues presented, and a general judgment rendered, it will be presumed that all issues were decided in favor of the prevailing party. See Rhoads v. City of Metropolis, 144 Ill. 580 (33 N. E. 1092, 36 Am. St. Rep. 468); Day v. Vallette, 25 Ind. 42 (87 Am. Dec. 353); People v. Stephens, 51 How. Prac. 235; White v. Simonds, 33 Vt. 178 (78 Am. Dec. 620); Hall v. Zeller, 17 Or. 381 (21 Pac. 192). But the better authority, in our judgment,is opposed to this doctrine, and casts upon the party asserting that such a judgment determined a particular issue the burden of proving it. See Russell v. Place, 94 U. S. 606; Littlefield v. Huntress, 106 Mass. 121; Solly v. Clayton, 12 Colo. 30 (20 Pac. 351); Linton v. Crosby, 61 Iowa, 293 (16 N. W. 113); Garrott v. Johnson, 11 Gill & J. (Md.) 173 (35 Am. Dec. 272); Bergeron v. Richardott, 55 Wis. 129 (12 N. W. 384). See, also, Ryer v. Atwater, 4 Day (Conn.), 431. As there was no evidence before the lower court tending to prove upon what ground the decision was made, that court correctly decided that the mandamus proceedings were not res judicata.

Was the deed to Silverthorn void? Defendants’ counsel contend that Silverthorn executed this release by reason of a mistaken notion of the validity of his deed, that the auditor general refused to accept it, and that, legally speaking, the release never became effectual. The finding of facts prevents our agreeing with this contention. It is true that the deeds of November 33, 1903, contain a recital that the former deed was erroneously released; but this was, at most, no more than evidence of a fact. Though this evidence might have justified a finding of an erroneous release, no such finding was in fact made. On the contrary, the court found, as heretofore stated, that by the recording and delivery of the release the State reacquired the title. We are bound by this finding. See Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Bateman v. Blaisdell, 83 Mich. 357 (47 N. W. 223); First National Bank v. Walker, 115 Mich. 434 (73 N. W. 378); Darling Milling Co. v. Chapman, 131 Mich. 684 (92 N. W. 352).

To illustrate the claim of mistake, defendants’ counsel have printed in their brief the correspondence — not put in evidence in the court below — between the auditor general and Silverthorn respecting said release. It is doubtful if a fair construction of that correspondence supports defendants’ contention that the release never became effectual. But we will not undertake to determine this question, for it is clear that we cannot, from statements in counsel’s brief, draw any inference of fact opposed to the findings of the trial judge. We are bound, therefore, to assume that the title was effectually transferred to the State by Silverthorn, on the 15th of August, 1902.

Could this title be conveyed by the auditor general to Silverthorn on his application of August 27, 1897? That application gave him no right to a deed, because it. was not accompanied by a sufficient deposit; and it did not become a complete application until October 25, 1897, when the deposit was made adequate. Hubbard v. Auditor General, 120 Mich. 505 (79 N. W. 979). When the application was completed, it was the duty of the applicant, under section 84 of the tax law (section 3907, 1 Comp. Laws, as amended by Act No. 262 of the Public Acts of 1899), to pay interest on the amount “ at the rate of one per cent, per month or fraction thereof, from the first day of the month in which such lands were bid off to the State.” This clearly required the payment of interest to the date when the application became complete. We have held that “the auditor general has no authority, under section 84, to sell and deed State lands, except upon receiving the price required by law, and this the purchaser is bound to know.” See Hughes v. Jordan, 118 Mich., at pages 29 and 30 (76 N. W. 134); Detroit Fire & Marine Ins. Co. v. Wood, 118 Mich. 31 (76 N. W. 136); Wilkin v. Keith, 121 Mich. 66 (79 N. W. 887); Hall v. Mann, 122 Mich. 13 (80 N. W. 789).

We have held that, notwithstanding such an improper ■computation as was made in this case, the tax liens would be discharged if they were acquired by the owner of the land. See Clippinger v. Auditor General, 135 Mich. 1 (97 N. W. 53). But the record in this case presents a different question. In the Clippinger Case it was held that the failure of the auditor general to make a correct computation could not be asserted to defeat the owner’s title. There we said :

“ It would be a reproach to the law to hold that under these circumstances an owner can be deprived of his property through no fault of his own, but through a mistake of an officer of the law. ”

Here we are asked to hold — what is an entirely different proposition — that the owner cannot sustain his title by asserting that an officer of the law made a mistake. We are asked to hold that though the computation was incorrect, and the State thereby failed to receive the price to which it was entitled, nevertheless the title was acquired by Silverthorn. In support of this contention, defendant’s counsel rely upon the statement in the Clippinger Case “that the failure to figure interest correctly was settled against the contention of the relator by the recent unreported case of Hoffman v. Auditor General.” It is claimed that this reference to our decision in the mandamus proceedings heretofore referred to indicates a holding that Silverthorn’s title was unaffected by the error in computation-. If that decision, by reason of this language, is susceptible of that construction, we think we should take this early opportunity to correct it. Owing to this error of computation, Silverthorn had not “paid the price required by law,” and because of this, under the decisions above cited, his deed was void. Nor is it a sufficient excuse that a State official erred in his computation. The purchaser was bound to know the law, and we are bound to assume that he himself could make a correct computation. In so holding, we do not impose upon him any greater obligation than rests upon him under our former decisions. See Hughes v. Jordan, supra.

The deeds of November 22, 1902, are void on another ground. Silverthorn’s release of August 15, 1902, as heretofore stated, revested the State with the title which it originally had. It was a release of all that Silverthorn acquired under his application of August 27, 1897. There is nothing in the record from which we can infer that Silverthorn renewed that application, or made another. At that time, then, the only application under which the auditor general had a right to sell these lands was that of plaintiff, which at this time was pending, and supported by a proper deposit. See Wilkin v. Keith and Hall v. Mann, supra. It was therefore the duty of the auditor general to recognize plaintiff’s application, and to deed the land to him, and not to Silverthorn.

Plaintiff contends that the auditor general should not have been made a party defendant. No such contention is made by the defendants. As plaintiff has no right to insist upon this contention, having himself mad© the auditor general a party defendant, we decline to consider that question. No costs, however, will be awarded against the auditor general.

To avoid any misapprehension, we deem it proper to state that we do not determine that this record shows plaintiff to have such a legal title as to justify his maintaining an action of ejectment. That question was not raised by the defendants, and we do not deem it our duty to raise it. This case should not, therefore, be considered an authority on that proposition.

Judgment is affirmed, with costs against defendant Silverthorn.

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


source: Caselaw Access Project

author: Montgomery, J. Hooker, J.

license: Public Domain

text:
    NEWBERRY v. BUNDA.
    1. Trespass — Trimming Trees — Boundary.
    The branches of a tree projecting over a boundary line may not be cut beyond the division line by the adjoining proprietor without license.
    2. Same — License—Line Pences.
    One building a portion of a line fence by agreement with the adjoining proprietor has an implied license to trim trees to such an extent as is necessary to the construction of the fence.
    3. Same — Line Pendes — Question op Pact.
    Whether it was necessary to the building of a line fence, to cut back overhanging branches close to the body of a tree standing three feet from the line, is a question of fact. Hooker, J., dissenting.
    4. Evidence — Opinions and Conclusions.
    It was not prejudicial error to ask a witness if it was necessary, in lining out a fence, to cut out the overhanging branches of a large tree, where the witness understood the inquiry was whether a person could sight through along the line without cutting out the branches.
    Error to Lapeer.; Smith, J.
    Submitted January 6, 1904.
    (Docket No. 12.)
    Decided July 7, 1904.
    Trespass quare clausum fregit by Selden Newberry against William Bunda. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Herbert W. Smith, for appellant.

      Elmer Shumar (Stickney & Reed, of counsel), for appellee.
   Montgomery, J.

This is an action of trespass for cutting down two small apple trees on the line between the plaintiff and defendant, and for cutting limbs off .another tree standing about three feet from the line and on plaintiff’s land. The testimony was conflicting as to the exact location of the small trees, but it is fairly infer-able that the jury found that they were upon defendant’s land. The case in this court turns upon the question whether the plaintiff’s rights as to the larger tree were properly guarded by the trial court.

The facts as to this tree are that the tree stood about three feet from the line, the limbs extending over upon defendant’s land. The defendant cut the limbs off close-to' the body of the tree, and undoubtedly exceeded his-rights, as defined in Hickey v. Railroad Co., 96 Mich. 498 (55 N. W. 989, 21 L. R. A. 729, 35 Am. St. Rep. 621), unless he was acting under a license from plaintiff. Defendant claimed, and the jury found, a license. It was not claimed that there was an express license, but it was insisted that the defendant was fully within an implied license, as the cutting of these limbs was essential to the performance of the work of rebuilding a portion of the line-fence, which it was agreed between the plaintiff and defendant that the latter should build. The full line of the fence between the two properties was 15 rods. It was agreed that defendant should rebuild the east half of the-distance. The tree stood a short distance west of that portion of the fence which defendant was by his agreement required to build. It was claimed, however, that it was necessary, in order to fix the line upon which his fence was to be located, to line through on the line of the old fence from end to end, and that in order to do this it was necessary to cut the small brush which had grown up,, and also the limbs from this tree.

It is a general rule that a license to do a particular thing carries with it, by implication, the right to do those things necessary to be done in order to avail the licensee-of his rights under the license. 2 Waterman on Trespass, § 786.

The plaintiff contends that the court should have directed a verdict for the reason that, as a matter of law,, it should be held that the cutting of these branches was not, necessary to the work of rebuilding this fence. We think, however, that it was a question for the jury, and properly submitted.

Objection was made to questions put to witnesses, asking whether it was necessary, in lining out the fence, to cut out the brush and limbs of the large tree. It is doubtful whether the circuit judge understood that the objection now urged was covered by the general objection of incompetency and immateriality, but we think it manifest that the witnesses understood that the inquiry was whether a person could sight through along the line without cutting out these branches. Their answers so indicate, and this inquiry was, we think, proper.

The other questions need not be separately discussed.

We discover no prejudicial error, and the judgment is affirmed.

Moore, 0; J., Carpenter and Grant, JJ., concurred with Montgomery, J.

Hooker, J.

(dissenting). I do not concur in the view that an arrangement whereby the defendant was to build a line fence between the lands of the parties carried with it a license to cut the limbs of trees sufficiently to enable the builder to sight through from one end of the line to the other. ' We may take judicial notice that the line could have been established without it, and there is no presumption of an intention to give such a license inferable from the testimony. Even if there were, it would extend no farther than absolutely necessary, and to cut three or four feet from the line would be excessive.

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


author: Moore, C. J.

text:
    BOARD OF SUPERVISORS OF SAGINAW CO. v. HUBINGER.
    1. Statutes — Repeals by Implication — County Roads.
    The provisions of Act No. 335, Local Acts 1901, amending Act No. 419, Local Acts 1899, relating to a system of county roads for Saginaw county, are inconsistent with the provisions of sections 26 and 27, Act No. 230, Pub. Acts 1895, providing for a township road system, and therefore repeal by implication the last-named act so far as it applies to Saginaw county.
    2. Same — Repeals—Presumptions.
    The presumption is against making a statute irrepealable.
    3. Constitutional Law — Obligation op Contracts —Municipal Corporations.
    A township cannot claim that an act of the legislature, exempting such townships from taxation for county road systems as shall establish a township road system, constitutes a contract, the obligations of which a subsequent legislature cannot impair by repealing the act, as the municipality is but a government agency.
    Certiorari to Saginaw; Snow, J.
    Submitted February 3, 1904.
    (Calendar No. 20,351.)
    Decided July 7, 1904.
    Mandamus by the board of supervisors of Saginaw county to compel John G. Hubinger, as supervisor of Frankenmuth township, to spread certain county road taxes upon the rolls of said township. From an order denying the writ, relator brings certiorari.
    Reversed.

      John F. O'Keefe (James H. Davitt, of counsel), for relator.

      Ferdinand Brucker and Fred L. Travers, for respondent.
   Moore, C. J.

Application was made in the court below for mandamus to compel the respondent, John G. Hubinger, as supervisor of the township of Frankenmuth, in Saginaw county, to spread upon the rolls of his township certain county road taxes, as ordered by the board of supervisors under the authority of Act No. 419 of the Local Acts of 1899, as amended by Act No. 335 of the Local Acts of 1901. The circuit judge declined to issue the writ. This is certiorari to review his action.

It is the claim of the respondent that it had a township road system, making Act No. 419, Local Acts 1899, as amended by Act No. 335, Local Acts 1901, inapplicable to it.

Act No. 230, Pub. Acts 1895, has the following provisions : Section 2(3 of this amendment provides:

‘c That any township in any county in the State, except Marquette, * * * where the board of supervisors refuse to submit the question of adopting the county road system, or where the question has been submitted and it has failed to carry, may submit the question of a township system of roads in the same manner and by the same proceedings as is prescribed for the county road system, by substituting the words township board for board of supervisors, and township clerk for county clerk, and township roads for county roads. ”

Section 26 also provides:

“That the township board of any township adopting such road system shall, by resolution to be entered of record, designate the roads and bridges within such township to be built or maintained under such road system, and shall determine the amount of tax to be raised in such township for each year for that purpose.”

Section 27 provides:

“ That any township that shall adopt the provisions of the act, and shall raise money and build roads in good faith, shall not, without their consent by a two-thirds vote, be liable to any tax for a county road system, should the county in which said township is situated afterwards adopt the county road system.”

It is claimed by respondent that its system of roads is -governed by these provisions, and that these provisions are not repealed by the local act of 1899. It is conceded they are not repealed in direct terms, and it is also conceded repeals by implication are not favored, but it is insisted the provisions of the local act are inconsistent with, the provisions of the earlier act, and thereby repeal it.

We have already quoted from the earlier act, which the township claims should govern its highway system. The local act and its amendments already mentioned relate to Saginaw county alone. They are too long to insert here, but a reference to section 24, Act No. 335, Local Acts 1901, and sections 25, 26, 27, and 28 of Act No. 419, Local Acts 1899, will show provisions in relation to the control of the roads in the county, their improvement, and the raising of the funds to pay therefor, that are inconsistent with the idea that the township of Frankenmuth may control its own roads. There is no provision in the local acts, that Frankenmuth shall be exempt from its provisions. We think it follows that the provisions of the entire act are repealed by implication. See 23 Am. & Eng. Enc. Law (1st Ed.), 479; Morrison v. Kent, 135 Mich. 38 (97 N. W. 45); People v. Bussell, 59 Mich. 104 (26 N. W. 306); People v. Furman, 85 Mich. 110 (48 N. W. 169); Attorney General v. Parsell, 100 Mich. 170 (58 N. W. 839); Porter v. Edwards, 114 Mich. 640 (72 N. W. 614); Graham v. Muskegon County Clerk, 116 Mich. 571 (74 N. W. 729); Attorney General v. Commissioner of Railroads, 117 Mich. 477 (76 N. W. 69).

It is claimed that, as the township acted under the legislation of 1895, it constituted a contract, which could not by subsequent legislation be impaired without doing violence to section 10, art. 1, of the Federal Constitution, and section 43, art. 4, of the State Constitution.

The presumption is against making a statute irrepealable. Black on Inter, of Laws, § 51, and authorities cited; Cooley, Const. (6th Ed.) p. 146.

We have examined the authorities cited by counsel for respondent in support of their proposition, but none of them relate to legislative action of the character involved here. In the sixth edition of Cooley on Constitutional Limitations, p. 331, where there is a discussion relating to laws which impair the obligation of contracts, it is said:

“ But can these laws be regarded as contracts between the State and the officers and corporations who are, or the citizens of the State who expect to be, benefited by their passage, so as to preclude their being repealed? On these points it would seem that there could be no difficulty. When the State employs officers or creates municipal corporations as the mere agencies of government, it must have the power to discontinue the agency whenever it comes to be regarded as no longer important. The framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions adopted for internal government. * * *
“And although municipal corporations, as respects the property which they hold, control, and manage, for the benefit of their citizens, are governed by the same rules and subject to the same liabilities as individuals, yet this property, so far as it has been derived from the State, or obtained by the exercise of the ordinary powers of government, must be held subject to control by the State, but under the restriction only that it is not to be appropriated to uses foreign to those for which it has been acquired. And the franchises conferred upon such a corporation for the benefit of its citizens must be liable to be resumed at any time by that authority which may mold the corporate powers at its will, or even revoke them altogether. The greater power will comprehend the less.”

See, also, the long note at the bottom of page 333 for a further discussion of the question.

The case of New Orleans v. Waterworks Co., 142 U. S. 79 (12 Sup. Ct. 142), is an instructive one. In that case it was claimed by the city that legislation had been passed which impaired the obligation of contracts.

In disposing of the case, Justice Brown used the following language:

“ The city, being a municipal corporation and the creature of the State legislature, does not stand in a position to claim the benefit of the constitutional provision in question, since its charter can be amended, changed, or even abolished at the will of the legislature. In the Dartmouth College Case, 4 Wheat. 518, 660, 661, in which the inviolability of private charters was first asserted by this court, a distinction is taken, in the opinion of Mr. Justice Washington, between corporations for public government and those for private charity; and it is said that the first, being for public advantage, are to be governed according to the law of the land, and that such a corporation may be controlled, and its constitution altered and amended, by the government, in such manner as the public interest may require.
‘“Such legislative interferences cannot be said to impair the contract by which the corporation was formed, because there is in reality but one party to it; the trustees or governors of the corporation being merely the trustees for the public, the cestui que trust of the foundation.’
“Mr. Justice Story was also of opinion (page 694) that < corporations for mere public government,-such as towns, cities, and counties, may in many respects be subject to legislative control.’
“ In the case of Town of East Hartford v. Hartford Bridge Co., 10 How. 511, 533, 534, the constitutionality of an act of the legislature discontinuing a ferry, the franchise of which for more than 100 years had belonged to the town of Hartford, and subsequently to that of East Hartford, was drawn in question. It was claimed by the town that the State had impaired the obligation of its contract, but it was held that:
“ ‘ The parties to this grant did not, by their charter, stand in the attitude toward each other of making a contract by it such as is contemplated in the Constitution, and as could not be modified by subsequent legislation. The legislature was acting here on the one part, and the public municipal and political corporations on the other. * * * The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature. * * * Hence, generally, the doings between them and the legislature are in the nature of legislation, rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes.’
“So, in Laramie County Com’rs v. Albany County Com'rs, 92 U. S. 307, 311, it was held that the legislature had power to diminish or enlarge the area of a county whenever the public convenience or necessity required.
‘“Institutions of the kind,’ said .Mr. Justice Clifford, ‘whether called counties or towns, are the auxiliaries of the State in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon anything like a contract between them and the legislature of the State, because there is not, and cannot be, any reciprocity of stipulation, and their objects and duties are utterly incompatible with everything of the nature of compact.’
“ So, in the recent case of Williamson v. New Jersey, 130 U. S. 189, 199 (9 Sup. Ct. 453), it was held that the power of taxation on the part of- a municipal corporation is not private property or a vested right of property in its hands, but the conferring of such power is an exercise by the legislature of a public and governmental power, which cannot be imparted in perpetuity, and is always subject to revocation, modification, and control, and is not the subject of contract.
Said Mr. Justice Blatchford:
“ ‘We are clearly of opinion that such a grant of the power of taxation by the legislature of a State does not form such a contract between the State and the township as is within the protection of the provision of the Constitution of the United States which forbids the passage by a State of a law impairing the obligation of contracts.’
At the last term of this court, in the case of Essex Public Road Board v. Skinkle, 140 U. S. 334 (11 Sup. Ct. 790), it was held — the Chief Justice speaking for the court — that an executive agency created by a State for the purpose of improving public highways, and empowered to assess the cost- of its improvements upon adjoining lands, and to purchase such lands as were delinquent in the payment of the assessment, did not by such purchase acquire a contract right in the land so bought, which the State could not modify without violating the provisions of the Constitution of the United States. But further citations of authorities upon this point are unnecessary. They are full and conclusive to the point that the municipality, being a mere agent of the State, stands, in its governmental or public character, in no contract relation with 'its sovereign, at whose pleasure its charter may be amended, changed, or revoked without the impairment of any constitutional obligation, while with respect to its private or proprietary rights and interests it may be entitled to the constitutional protection. In this case the city has no more right to claim an immunity for its contract with the waterworks company than it would have had if such contract had been made directly with the State. The State, having authorized such contract, might revoke or modify it at its pleasure.”

Applying this reasoning to the case at bar, we have no difficulty in reaching the conclusion that the local acts were not unconstitutional. The other questions raised have been examined, but we do not deem it necessary to discuss them.

The supervisor of Frankenmuth should have obeyed the instruction of the board of supervisors to spread the tax upon the roll, and it is so ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    HARRISON v. DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY.
    1. Master and Servant — Assumption of Risk.
    An employé assumes the risk of all such dangers incident to the employment as he knows to exist or should acquaint himself with.
    2. Same —Street Railways — Assumption of Risk — Eleotrio Shook.
    A motorman, killed by an electric shock due to a trolley pole coming in contact with a high-tension wire while he was removing it from its socket, assumed the risk, where it appeared that, from the length of his employment, he must have known the danger from the high-tension wire, and that the wire was within reach of the trolley pole if removed from the socket, and it was not necessary that the company should instruct him that electricity would arc if the end of the pole should come within one-half inch of the high-tension wire.
    Error to Washtenaw; Kinne, J.
    Submitted February 4, 1904.
    (Docket No. 82.)
    Decided July 7, 1904.
    Case by Phila Harrison, administratrix of the estate of Herbert J. Harrison, deceased, against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for the alleged negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Corliss, Andrus, Leete & Joslyn, for appellant.

      A. J. Sawyer & Son, for appellee.
   Montgomery, J.

This action is brought by the plaintiff, as administratrix of the estate of Herbert J. Harrison, deceased, who met his death while employed by the defendant as motorman on its electric car. The principal question discussed in this court is whether there was evidence tending to show culpable neglect on the part of the defendant, and whether there was contributory negligence on the part of the deceased and his co-employés, and whether the deceased assumed the risk of the conditions of the employment as they existed. For an understanding of the case a full statement of facts is essential, and we adopt the Statement given by the counsel for the defendant, with such slight variations as the record makes essential:

For some years the defendant company operated an electric railway between Ann Arbor and Detroit by what may be termed the “direct trolley current system,” and plaintiff’s employment began while this current was used. Later the defendant acquired the necessary right of way from Ann Arbor to the city of Jackson. In order to operate an electric line for that distance it was at least commercially necessary to install a new system of transmitting electric power or current along the line, which is known as the “high-tension system.”

This system is a method of generating at the power house a large volume or current of electricity, but with a comparatively low voltage, and converting it into a small current or volume with an exceedingly high voltage, and carrying it out along the line on small wires to be taken off at different points called “substations.” At these substations the current is reconverted into the large volume again, with a pressure adjusted to the requirements of the trolley wire. The method of transmission of the current may be likened somewhat to transmitting t water through pipes. If, for instance, the water passing through a.four-inch pipe is to be sent through an inch pipe, the current or pressure in a small pipe must be many times greater than in the large pipe. If the pressure in the small pipe is greater than can be used at the other end, then it can be discharged in a four-inch pipe, when the current or pressure would be brought back to what it is in‘the four-inch pipe at the other end; less the friction. From the foregoing it will be seen that no more actual power, or even pressure, is used to propel cars than would be used by the direct trolley current. In fact, the same direct trolley current is used as before, but the surplus power carried along the line in a different form and manner until it is necessary to use it on the trolley wire.

The ordinary mode of transmission of high potential currents is by what is called the “ multiphase system.” Technically, this consists of “ the use of two or more alternating currents of equal period, but differing in phase.” “Differing in phase” means that the two alternations or ¡current waves do not come together, but one after or at a different time from the other. The three-phase system is used by the defendant. Three wires are strung along in the form of an equilateral triangle, each substation being fed from a set of these wires. Theoretically, in each of these triangular sets of wires, one of them at any given moment of time is dead, but, as it is so only for an infinitesimal part of a second, it is for all practical purposes very much alive at all times and dangerous, carrying a voltage of upwards of 22,000. To establish this system it vsras necessary to set a new line of poles. The high-tension wires were carried on two cross-arms, one above the other, the longer one being at the top, carrying four of these small wires, and the lower one carrying two. These six wires formed two triangles, with one of the points of each downward.

Below these cross-arms on the same pole is an arm long enough to extend a little past the center of the railway track, so as to carry suspended from it two trolley wires 6 inches apart and 18-J- feet above the rails. The northerly trolley wire is used by the cars going west, and the southerly by the cars going east. From the poles to the center of the track it was 6 feet 4|- inches. The trolley arm, therefore, would have to be some 3 or 4 inches longer in order to carry the farther trolley wire. The lowest high-tension wires are between 26 and 27 feet above the rail, and between 4 and 5 feet to the side of the center of the track. The poles carrying these wires and trolley arms were 35-foot poles as a rule, except in places where, to avoid trees and buildings, it became necessary to carry the high-tension wires higher to avoid contact. The undisputed testimony is that the 35-foot pole is the standard height for carrying high-tension wires in suburban railway construction.

In August, 1901, the reorganization of the line was begun. The work of stringing the wires commenced about the middle of November of that year, and was completed about the middle of February following, but a portion of the high-tension system was put in operation January 12, 1902, being something over a month before the entire work was completed. While the work of setting new poles and stringing the high-tension wires was going on, the defendant also reorganized its power house, and built its substations, and put in the new machinery and appliances for generating and handling the high potential currents as well as the necessary transformers and converters. The entire work was done by Westinghouse, Church, Kerr & Co., under the supervision of its superintendent, Mr. Charles Riley. It' is not believed that there will be any dispute over the matters contained in this preliminary statement, nor that it will be necessary to go further into the details of construction in order to give a correct understanding of the general conditions of the railway at the time of the accident which is the origin of this suit.

Herbert J. Harrison began work for the defendant in September, 1900, first as conductor, then as a motorman, on the Ann Ai'bor city line, on which he remained for about a year. During nearly all of that period, if not all of it, he lived at Inkster, Wayne county, and most of the time went to Ann Arbor in the morning and returned in the evening, riding both ways over defendant’s main line. While thus going back and forth he asked for and obtained permission to ride with the motorman, and received from him instructions in the operation of the large suburban cars. It is a conceded fact that he thus became a competent motorman. It should also be said that Mr. Harrison was a man of good habits and careful in the management of matters put in his charge.

Mr. Harrison began operating suburban cars on the main line from Detroit to Jackson some time after August ?, 1901, which was the time he left the Ann Arbor city line. It may have been immediately afterwards, as there is no evidence of his laying off. This would be about the time the work of laying out the new system began. He thus had an opportunity of daily observing the work of setting the poles and stringing the wires as it progressed. Moreover, the general headquarters of the road are at Ypsilanti. The power house at Tpsilanti was a general rendezvous of the conductors and motormen, where the work of reconstructing the system and the coming installation of the high-tension current was a matter of daily discussion and inquiry by them. Mr. Harrison was very frequently there, and made many inquiries of Mr. Riley, superintendent of construction, about the new system. He asked how high the voltage was to be, and other similar and most natural questions for one who was to use the current. Under the old system it was usual, if the trolley wire was down on the track, to pass a rope around it to pull it off, or to take a piece of dry board and push it away. Harrison asked Riley if it would be safe to put a rope around a high-tension wire. Riley said, “No; keep away from it.” It was a matter of common knowledge among all the employes that the current was dangerous, and that they should use the utmost care to prevent making a contact with the high-tension wires. Harrison himself warned one of the men to be very careful.

The trolley poles in use on defendant’s line are 11£ feet long. Each of defendant’s cars carries an extra trolley pole lashed to the top of the car, to be used in case the one in use becomes disabled. One of the duties of the men operating the car is to climb on the top of the car to change the trolley pole whenever it becomes necessary, and this is one of the duties about which they are instructed. All the men were well informed of and understood the danger of contact with a high potential current, and were warned to “ avoid in every way possible from getting a shock.”

On the night of March 11, 1902, at about 9 o’clock in the evening, car No. 6 was coming east from Jackson in charge of Henry W. Pullen, conductor, and Herbert J. Harrison, motorman. About three miles west of Chelsea, the trolley jumped from the wire twice. Then Pullen gave a signal to Harrison to come back and see what was the trouble. He did so, and discovered that the wheel or trolley would not revolve. The night was dark, and it had been raining hard, so it was decided to run to Chelsea before changing the trolley. When they arrived there they climbed upon the car to change poles. The pole which had been in use was allowed to stand nearly upright, and Pullen took hold of it while Harrison loosened the burrs or nuts which held the pole in the socket. It is customary to first loosen the pole, and then both persons lift it out, and both take hold of the new one and place it in the socket. On this occasion Harrison loosened the burrs until Pullen said he thought it would come out. Harrison said, “ Wait a minute,” and then straightened up and took hold of the trolley. They both lifted, but could not get it out. Harrison said, “I will have to loosen 'it a little more,” and proceeded to1 do so. Pullen still had hold of the pole, and was twisting it and lifting, and said again, “It is loose enough now, Herby,” and, without waiting for Harrison to help him, he lifted it, and he said, “ It gave way all at once; it just shot right up.” Then there was a flash, and that was all Pullen could remember of the transaction.

The socket is a part of the revolving stand on the top of the car. It has a very strong spring attachment which will cause the trolley pole to stand upright, or nearly so, when the trolley is taken off the wire. In removing the trolley pole the trolley stand is left so that the pole can swing back lengthwise of the car. When in that position there is no possible way of making the pole swing sidewise while it remains in the socket. While the trolley pole is standing up, it is quite close to the trolley wire. It does not reach as high as the lowest high-tension wire, and it is between 4 and 5 feet to the side of it. It cannot be brought nearer any of the high-tension wires until taken out of the socket. The trolley stand has a ground connection, so that in removing the trolley pole care must be taken not to make contact with the trolley stand and at the same time with the trolley pole after the latter is removed from the socket. If such a contact be made, then if the trolley pole touches either the trolley wire or the high-tension wires a dangerous, and perhaps fatal, shock will be received.

It was the claim of the plaintiff, and the testimony was such as to warrant a finding of fact by the jury, that the trolley pole came in contact with the high-tension wires, and by this means the death of Harrison was caused.

It appears from the measurements which the defendant presented in the ease that, when the trolley stand was rewolved so that the trolley pole would run at right angles . with the "car, the trolley could be raised within 1 foot 6£ inches of the nearest high-tension wire, which was between 4 and 5 feet to the side of the center of the car. The lowest high-tension wire is between 6 and 7 feet higher than the trolley wire, which is 5 feet 11 inches above the running board, which is on top and the highest part of the car. It was shown that the distance from the trolley to the nearest high-tension wire is fully as great on the defendant’s road as that of any other road in .the country. The overhead construction of the road is fully as good, if not better, than any other seen by the witness Riley, who is personally familiar with over 50 electric railways using the high-tension system. The same witness also testified that the distance the poles were set from the center of the track is the standard set. Another expert, Alfred C. Marshall, who is chief engineer of the Rapid Railway System, stated that the 35-foot pole is the approved standard. There was nb proof offered tending to show a faulty construction of any kind, nor was it claimed that there is any overhead construction anywhere in the country where the distance between the high-tension wires and .trolley is greater.

In our view of the case, the question of first importance is whether the deceased assumed the risk of the conditions as they existed. The general rule upon the subject of assumed risk is too well settled in this State to make it necessary to quote from the decided cases at any great length. The employé is, as matter of law, held to have assumed the risk of all such dangers incident to the employment as he knows to exist or should have acquainted himself with. Michigan Cent. R. Co. v. Smithson, 45 Mich. 221 (7 N. W. 791); Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9); Bradburn v. Railway Co., 134 Mich. 575 (96 N. W. 929).

The rule is recognized by plaintiff’s counsel, but it is contended that in the present case the plaintiff should not be held to have assumed the risk, for the reason that Harrison was not informed that the high-tension wire came within one foot and six inches of the end of the- trolley pole when placed on a direct line from the trolley stand, and that the trolley pole was therefore in danger of coming in contact with the high-tension wire while the attempt was being made to remove the pole; that it was not shown, that Harrison was instructed or knew that it was dangerous to remove the trolley pole on the side of the car towards the high-tension wire; that he was not instructed that, if the trolley pole came within one-half inch of the high-tension wire, electricity would arc.

Were instructions of this character essential before it be said that the deceased assumed the risk? He knew of the fact that contact between the trolley pole and the high-tension wire would be exceedingly dangerous. Indeed, contact between the pole and the trolley wire with a pole removed from the socket was dangerous only in less degree. He certainly knew that this wire was near enough to be reached by the trolley pole upon its being removed from the socket. Knowing, as he did, of the high voltage in the conducting wires, it would seem obvious that during the term of his employment he should have noticed that, they were near enough to come in contact with this pole if the pole was directed toward them. The occasion for special instruction that this pole of 11$ feet in length would reach that distance in whatever direction it was extended is not manifest. And that the distance from the car to the high-tension wire could be as easily estimated by deceased and his co-employés as by any alter ego of the defendant is equally manifest. This being so, it would be understood by him, as well before any instruction in that regard as after, that if this trolley pole was removed in the manner in which it was on this occasion it was likely to, or at least might, come in contact with this high-tension wire. It is undoubted that, knowing this, he knew that any such contact was almost Sudden death to on'e in whose hands the trolley pole was at the time. It seems clear to us, therefore, that the danger was obvious, and that it was one assumed by the deceased.

The suggestion that he did not have knowledge that electricity would arc is of little force. The testimony shows that electricity arcs when- a conductor like the trolley pole in question in this case is brought either in contact with the high-tension wire or within half an inch of it. If the case were one in which in the performance of the duty of the employe it became necessary for him to bring this conducting trolley pole within half an inch of the high-tension wire in the ordinary discharge of his duty, a different question might be presented. But the suggestion that he might make nice calculations as to carrying this pole within half an inch of this dangerous current, but would be guilty of negligence himself,1 or at least held to have assumed the risk, if the pole came in actual contact with the wire, is without force.

Plaintiff’s counsel cite us, as sustaining their contention that this was a case for instruction, Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542); Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215); Walker v. Railway Co., 104 Mich. 606 (62 N. W. 1032). In the Smith and Ribich Cases the duty which was neglected by the master was that of notifying the employe of a latent danger which consisted of properties of substances with which he was bound to deal, which might be unknown to an ordinary workman. In the present case the properties of this high-, tension wire were unquestionably known to the deceased. No further instruction was required as to that. The contention of plaintiff gets down to this: That he should have been told the precise location of this wire with reference to the top of the car, and that the wire could be reached by a pole of the length of the trolley pole. These facts were open to his observation and to the observation of every employé who passed over this road. The case of Walker v. Railway Co., supra, was one in which the danger to the injured party arose out of a want of knowledge of conditions which were not obvious.

In the present case we think the danger was obvious and it was assumed, and upon this ground a verdict should have been directed for the defendant. We find it unnecessary to discuss the other questions in the case.

The judgment will be reversed, and new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. NAGLE.
    1. Criminal Law — Larceny—Evidence—Res Gest.®.
    On a prosecution for stealing property from a barn in the night-time, evidence that other articles than those described in the information were taken from the barn at the same time and found in his possession, is admissible as res gestae.
    2. Larceny — Intent—Other Oeeenses.
    On a prosecution for entering a barn with intent to commit larceny, evidence of other larcenies committed by respondent is admissible as bearing upon his intent.

    Error to Berrien; Coolidge, J.
    Submitted February 26, 1904.
    (Docket No. 198.)
    Decided July 7, 1904.
    Jacob Nagle was convicted of larceny and sentenced to imprisonment for five years in the State prison at Jackson.
    Affirmed.

      Ralph W. Shauman and James O'Hara, for appellant.

      Charles A. Blair, Attorney General, and Ira W. Riford, Prosecuting Attorney, for the people.

       As to evidence of other crime in criminal case, see note to People v. Molineux, (N. Y.) 62 L. R. A. 193.

   Moore, C. J.

The respondent was convicted of an ■offense charged in the information as follows:

“That Jacob Nagle heretofore, to wit, on the 29th day of July, in the year one thousand nine hundred and two, at the county of Berrien, aforesaid, in the night-time of said day, the barn of one James Marshall, then and there situate, did then and there enter without breaking, with intent then and there to commit the crime of larceny therein, and one bridle of the value of two dollars and fifty cents, and one neck-yoke of the value of one dollar, and one pair of breast straps of the value of one dollar, and one pair of rubber boots of the value of two dollars, in all of the value of six dollars and fifty cents, of the goods and chattels of the said James Marshall, in the said barn then and there being, then and there did steal, take, and carry away, contrary to the form of the statute.”

The case is brought here by error. No testimony was offered on the part of the respondent. The testimony disclosed that the articles named in the information were in the barn of Mr. Marshall at night, and were not there in the morning; that about 10 days thereafter they were found concealed, with a large quantity of other property which had been stolen, upon the premises of the respondent, who lived a short distance from Mr. Marshall. The neck-yoke had been painted another color. When questioned about the property, the respondent stated to the officer he had bought them.

Early in the trial the following occurred:

Q. I call your attention to this wagon pole.
“Mr. Sterling: If that is alleged in the information, it is all right. Otherwise we object to it.
The Court: Is it alleged?
“Mr. Shauman: No; I don’t see it.
“Mr. Sterling: Nothing alleged about a wagon pole.
“Mr. Biford: That is true, but we have got a right to show it for the purpose of showing intent.
“The Court: I don’t think you have arrived at that place yet.
“Mr. Biford: Very well; pass it for the present.
“Mr. Shauman: Do I understand your honor to rule the presence of the articles in here is not objectionable?
“The Court: I don’t know anything about those articles at all. When the testimony comes up, I will know about them, perhaps. I saw some men bring them in, but I don’t know anything about them. Of course, if you have any objection to more than one article being produced at a time, perhaps the rest of them can be taken, out.
“Mr. Shauman: No; give me an exception to the ruling.”

Still later the following occurred:

“Mr. Shauman: I believe the people have rested. I want to-call attention'again, to get it into the record, that this stuff is again in the court-room, and ask to have removed all of the stuff except what is alleged in the information. (The same objection as was raised before.)' This crosscut saw, scoop shovel, and two or three things, not alleged in the information, I ask to have removed.
The Court: I think the goods may be removed, except what is alleged. (Goods referred to removed out of the court-room.)”

The prosecution was allowed to show that a wagon pole was taken from Mr. Marshall’s barn upon the night in question, and found in the possession of the respondent at the time the other things were found, when the following occurred:

“ The Court: So far as stealing something else belonging to other parties is concerned, your objection may be good, but it is simply this: Witness can testify to other property of his being there at the same time he found those. That I haven’t any doubt about.
‘£ Mr. Shauman: Note an exception.
“ Q. I want to call your attention to this pole.
££ The Court: The jury cannot convict this defendant for stealing anything that is not alleged.”

Still later the following occurred':

££ Q. Did you have a search warrant?
“A. Yes, sir.
££ Q. What other stuff did you find in the barn?
££ Mr. Shauman: I object to the question.
The Court: Yes, I think perhaps the objection is good. I have limited it to the property which was proved or claimed to be owned by the complaining witness. Of course, whatever the defendant said in regard to property there is admissible.
Q. Did you see a bridle with lines to it in the corn-crib?
“A. Yes, sir.
“ Q. Who was present?
“A. At that time?
“ Q. Yes.
“A. Mr. Neely, Mr. Marshall, Mr. Wheaton; I think, Mr. Murdoch. There was a number there by that time. I did not open the corncrib until after I had sent Mr. Neely with a team to get the different parties that had lost stolen property, and to get them there before I opened— started in a systematic search; but while they was gone, while he was gone getting those other witnesses, other parties that had lost—
“Mr. Shauman: Wait. I objecttothis testimony, and move it be stricken out. What is it for ?
“The Court: At the present time I do not see the necessity of it. The question is proper. The other part may be stricken out.”

The prosecutor asked the witness no other question. The attorney for the respondent at once began the cross-examination, as follows:

Q. Mr. Pearl, what was the crowd doing there that Sunday ?
“A. There was a great deal of excitement there.'
Q. Why?
“A. Because there had been a lot of stolen property found.
Q. How do you know it was stolen?
“A. It had been identified by between 30 and 40 different people.
Q. Did you see it stolen?
“A. No, sir.
“ Q. How do you know it was stolen ?
“A. I found it in this man’s possession, and it had been identified by different people.”

The cross-examination was continued at great length, and showed in detail what was found on the premises of respondent, and the various persons who claimed to own it.

Error is assigned because some of the stolen articles were permitted to be in the court-room during the progress of the trial. In view of the offer of the judge to have them removed, and produced one at a time, and the reply of counsel, we deem it unnecessary to pass upon the question.

Error is assigned because testimony of the finding of stolen property in the possession of respondent was allowed. The court had confined the prosecutor to proof of articles taken from the barn of Mr. Marshall upon the night when the property described in the information was taken. We have no doubt this testimony was admissible as part of the res gestee, even though some of the articles were not described in the information. After this ruling of the court, the attorney for the respondent brought out, upon the cross-examination, the fact that many stolen articles were found in the possession of the respondent. Under these circumstances we do not deem it necessary to discuss the assignment of error upon this branch of the case.

Counsel for respondent presented three requests to charge, all of which were refused, except as covered by the general charge. The first of the requests asked the court to direct a verdict of not guilty of the main offense charged. The other requests áre as follows':

“In considering the testimony, the jury are not at liberty to consider any testimony of other larcenies than that alleged in the information in this case, as any evidence of the larceny so alleged, or as making it more probable that the larceny for which the respondent is being tried was committed by him. The respondent is on trial only for the offense charged in the information, and he can be convicted only upon the evidence of the offense so- charged, and not upon evidence of some other offense.
I charge you that, in arriving at your verdict as to the guilt or innocence of the respondent upon the main offense alleged in the information, you have no right to consider any testimony as to any other offense than the one charged.”

In his general charge the judge said in part as follows:

“ According to the contention, gentlemen, in this case, and according to the case as it is presented before you, the only question is whether this barn was entered in the night-time or not. Now, by the word or phrase ‘nighttime’ we usually mean that period of the 24 hours when a person’s features cannot be easily discerned or readily discerned. In this definition the light of the moon is excluded; the light of the moon has nothing to do with it. * * *
“No technical rule can be laid down for you to be governed by. In some States statutes have been enacted with reference to this question. In England, for instance, by statute, night means from nine o’clock at night until six o’clock in the morning; in the State of Massachusetts, by statute, night means from one hour after sunset to one hour before sunrise; and in some localities night is meant from sunset to sunrise. But I do not lay down any technical rule. I simply lay down this general rule: That it is that period of the 24 hours in which a person’s features cannot be readily discerned. * * *
“Now, in this case you are to use your common sense. From all the evidence and from all the circumstances which have been developed upon the trial you are to say whether there is any reasonable doubt of those goods having been taken or this barn entered during the nighttime. If you have any reasonable doubt with reference to the matter, then, gentlemen, you should not convict. If you have no reasonable doubt with reference to this defendant having entered the barn in the night-time, why, then it becomes your duty to convict. * * *
“Now, gentlemen, if you find that this defendant is not guilty of entering the barn in the night-time, you can still convict of simple larceny; that is, of larceny of property of the value of less than $25. I mean to say that, if you find the defendant is not guilty of entering the barn in the night-time, you then have the power to find this defendant guilty of simple larceny. * * *
“ So, in this case there are three verdicts: One of acquittal; one guilty of entering the barn, or guilty of the charge contained in the information; or, third, guilty of larceny. Either one of these three verdicts you can bring in if the evidence appears to you to warrant.”

Error is assigned upon the refusal to give respondent’s requests. In the course of the trial the court had repeatedly told the jury that respondent could be convicted only of the offense charged in the information. There was no claim made that testimony of other larcenies could be considered except upon question of intent. The respondent-could not be convicted of the main offense charged without the people proving beyond a reasonable doubt that respondent entered the barn with intent to commit the crime of larceny. As bearing upon the question of intent, we think the juiy might consider the testimony. People v. Henssler, 48 Mich. 49 (11 N. W. 804); People v. Wakely, 62 Mich. 297 (28 N. W. 871); People v. Hawkins, 106 Mich. 479 (64 N. W. 736); People v. Ascher, 126 Mich. 637 (86 N. W. 140).

We do not find any reversible error.

Judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    THOMPSON v. CITY OF WEST BAY CITY.
    1. Municipal Corporations — Duty to Construct Sidewalks.
    The city charter of West Bay City, providing that owners and occupants of adjacent property shall build, rebuild, and maintain sidewalks, that the council may, by a two-thirds vote, pay such part of the expenses as it deems advisable, and that the building, rebuilding, and repairing shall be done under the direction of the common council, does not make it the duty of the city to construct sidewalks.
    2. Same — Sidewalks—Negligence of Contractor — Liability of City.
    A city is not liable for an injury due to the negligence of a con- - ' tractor in improperly constructing a barrier to prevent people walking on a new cement sidewalk, where the duty of building the sidewalk was not imposed by law upon the city.
    3. Same — Sidewalk Ordinance — Negligence of Contractor-Liability of City.
    An ordinance requiring the work of building sidewalks to be done under the supervision of the city engineer, and obligating the city to pay one-third of the cost, does not make the city responsible for the negligence of one building a sidewalk under a contract with the owner of the adjacent land, where the charter makes it the duty of the owner of the land to build the sidewalk.
    4 Same — Obstructions—Liability op City.
    A city charter, requiring the council to see that all ordinances relating to the keeping of sidewalks free from ice, snow, and obstructions are strictly enforced, does not make the eijy liable for the negligence of a contractor in erecting a barrier across a sidewalk, when the contractor is employed by the owner of-the adjacent property to build the sidewalk.
    5. Highways — Safe Condition — Municipal Liability — Contractor.
    1 Comp. Laws, § 3441, making it the duty of a municipality to keep its streets in a condition reasonably safe and fit for travel, makes it liable only for its own negligence or the negligence of some one for whose conduct it is legally responsible, and not for the negligence of a contractor who is not its agent, nor engaged in performing a duty imposed by law upon the municipality.
    Error to Bay; Shepard, J.
    Submitted March 16, 1904.
    (Docket No. 134.)
    Decided July 7, 1904.
    Case by Martha J. Thompson against the city of West Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      S. G. Houghton, for appellant.

      Fred W. De Foe, for appellee.
   Carpenter, J.

This is a suit for personal injuries. On the evening of October 26, 1902, plaintiff was injured by falling over an alleged improperly constructed barrier on Elm street, in said defendant city. This barrier was placed across the sidewalk to guard a newly constructed cement walk. The walk was constructed and the barrier erected by one William Green, under a contract with Israel Nontais, the owner of the adjacent property. Some time early in the preceding September, defendant had notified Nontais to construct this sidewalk. Nontais thereupon, on the 15th of September, applied for and received permission from defendant’s common council to build the walk. This permission was granted under an ordinance passed by defendant which requiredthe work to be done under the supervision of the city engineer, and obligated the city to pay one-third of its cost.

The case was submitted to the jury upon the theory that defendant was responsible for the neglect of the contractor to properly guard the walk. The jury rendered a verdict for the plaintiff. Defendant asks us to reverse that judgment. The important question in the case is whether the trial court was right in holding defendant responsible for the negligence of the contractor in erecting an unsafe barrier. In entering upon this inquiry, it is important to bear in mind the precise question involved. Plaintiff received the injury, not from a defect in the walk, but from an unsafe barrier. The question involved is not whether the city is under an obligation to put its sidewalks in a condition reasonably safe for travel after knowledge or notice of their unsafety. It is not whether the city was under an obligation to see that the contractor constructing this walk made a walk reasonably safe for travel. It is this: Is the city answerable for the neglect of the contractor, not merely in building the walk, but in performing incidental duties connected with the work ? If the contractor, in building this sidewalk, was performing a duty imposed by law upon defendant, there would be little difficulty in sustaining the ruling of the trial court. See City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118); Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574); Beattie v. City of Detroit, 129 Mich. 20 (88 N. W. 71). But we cannot say that the duty of constructing this walk legally devolved upon the defendant municipality. The law governing the matter is contained in chapter 23 of defendant’s charter. See Act ■ No. 442, Local Acts 1897. By this' act, defendant is given authority, not to itself build sidewalks, except in the contingencies hereafter mentioned, but to require the owners and occupants of adjacent property “to build, rebuild, and maintain” them, “the expense thereof to be paid by such owner or occupant; or the council may, by two-thirds vote of all the aldermen elect, pay süch part of the expenses of building * * * as they may deem proper. * * * The building, repairing, and rebuilding of all sidewalks * * * shall be done under the direction of the common council of the city.” Only in the event of the owner’s failure is authority given to defendant to build such walk at the owner’s expense, though the chapter contains a provision that “the council may, by two-thirds vote of all the aldermen elect, provide by ordinance for the rebuilding, maintaining, and keeping in repair of all sidewalks within the city, *■ * * and pay the expense thereof from the general street fund.” This latter provision is inapplicable, for two reasons:

(а) While it authorized defendant, under certain circumstances, to rebuild sidewalks, it did not authorize it to do what was being done in this case — to build them. The statute, for some reason, clearly distinguishes between building and rebuilding sidewalks.

(б) Even if this provision permitted — as it did not — defendant to build sidewalks, it could have no bearing upon its responsibility in a case like this, where it had not elected to proceed under it. Defendant could not proceed under this provision without paying the expenses of the improvement from the general street fund. If it determined, as it did in this case, that the walk should be built at the expense of the adjacent owner, it would be unreasonable to hold that the city’s responsibility was increased by the circumstance that it might at its own expense have done the work.

Did thé enactment of the ordinance change the relation created by the charter between the defendant and the contractor? The ordinance makes it unlawful for a sidewalk to be constructed without first obtaining the permission and consent of defendant’s council, and provides that no sidewalk shall be built except as provided by the ordinance or directed by the council. This in no way changed the legal relation between the contractor who built the sidewalk .and the defendant. For section 2 of chapter 23 of defendant’s charter requires sidewalks to be built “of such width, materials, and manner of construction, and within such time, as the council shall by ordinance or resolution prescribe.” It cannot possibly be maintained that defendant became responsible for the contractor’s negligence because it chose, as it had a statutory right to choose, to contribute a portion of the expense of constructing the walk. Nor is defendant responsible because it supervised the work of construction. In doing this, it was only performing an obligation imposed upon it by the express language of its charter, requiring the building of all sidewalks to be done under the direction of its common council.

Section 4 of said chapter 23 makes it the duty of defendant’s council “to see that all ordinances and resolutions relating to the building, rebuilding, and repairing of sidewalks * * * and the keeping of the same free from ice and snow and from all obstruction * * * are strictly enforced.” While it may be contended that this language imposed a duty to exercise care in supervising the building of sidewalks, it is obvious that it falls far short of making the municipality an insurer of the diligence of a third person, to whom the law gives authority to build them. ' It might very properly be held that the city is responsible for any negligence in supervising' the contractor, but the question involved in this case, as heretofore stated, does not relate to its responsibility for such negligence, but it is whether it is responsible for all negligence of the contractor whose work is thus supervised. If defendant was responsible for the contractor’s negligence to build a safe barrier, an extraordinary obligation rested upon it. The contractor was neither its agent nor servant. It had no voice in his selection. He was performing a duty which the law devolved, not upon defendant, but upon a third person. Defendant intrusted him with no authority. No contract relations existed between him and defendant. If, under these circumstances, defendant is responsible for the contractor’s negligence, there is a responsibility which can be discharged by no such general supervision of the work as will insure results. Defendant can discharge this obligation only by having a representative constantly on the ground, not merely supervising but directing every detail of the work. If there is such an obligation, it must be imposed, not by reason, but by some statutory enactment.

Defendant’s responsibility depends upon the proper construction of Act No. 264 of the Public Acts of 188? (chapter 91, 1 Comp. Laws). By section 1 of said act (section 3441, 1 Comp. Laws), a municipality is responsible for—

“Bodily injury upon any of the public highways or streets in this State by reason of neglect to keep such public highways or streets and * * * sidewalks * * * on the same, in reasonable repair and in condition reasonably safe and fit for travel.”

And it is provided by section 2 of said act (section 3442, 1 Comp. Laws):

“That in all actions brought under this act it must be shown that such township, village, or city has had reasonable time and opportunity after knowledge by or notice to such township, village, or city that such highways, streets, * * * or sidewalks * * * have become unsafe or unfit for travel, to put the same in the proper condition for use, and has not used reasonable diligence therein after such knowledge or notice.”

This language makes it clear that a municipality is liable only for its own negligence, or for the negligence of some one for whose conduct it is legally responsible. It is clearly not legally responsible for the conduct of a contractor who is not its agent or its servant, nor engaged in performing a duty imposed by law upon it. The cases of City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118); Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574); and Beattie v. City of Detroit, 129 Mich. 20 (88 N. W. 71)—have no application. In those cases the municipality was held liable for the negligence of a contractor who was performing a duty imposed by law on the defendant municipality. This holding accords with 'the principles of justice, even though the municipality was compelled to let the contract to the lowest bidder, for it could protect itself from the consequences of the contractor’s negligence by a bond. That it could not do in the case at bar. Neither is the case governed by Hayes v. City of West Bay City, 91 Mich. 418 (51 N. W. 1067). There the city voluntarily chose to permit a building to be moved through its streets under the supervision of its marshal, who had notice that it was being moved in a negligent manner. The responsibility of the city was based on the negligence of its marshal, and not on the negligence of the contractor.

There are authorities which hold a municipality responsible for all negligence of one who, acting under its license, is doing an act which endangers the safety of travelers on a highway. See District of Columbia v. Woodbury, 136 U. S., at page 464 (10 Sup. Ct. 990); Mayor, etc., of Savannah v. Donnelly, 71 Ga. 258; Russell v. Inhabitants of Town of Columbia, 74 Mo. 480 (41 Am. Rep. 325). The doctrine of these cases has been disapproved. See Masterton v. Village of Mt. Vernon, 58 N. Y. 391; City of Warsaw v. Dunlap, 112 Ind. 576 (11 N. E. 623, 14 N. E. 568); Borough of Susquehanna Depot v. Simmons, 112 Pa. St. 385 (5 Atl. 434); City of Denver v. Sherret, 88 Fed. 226, 31 C. C. A. 499. And we think it inconsistent with the decisions of this court. See Fisher v. Thirkell, 21 Mich. 1 (4 Am. Rep. 422); McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. 313, 55 Am. Rep. 687); McEvoy v. City of Sault Ste. Marie, 136 Mich. 172 (98 N. W. 1006). Even if that doctrine were sound, it would not be applicable to the case at bar. It is based upon the ground that the city has voluntarily granted a license. In the case at bar it has done no more than to permit a person to do an act which he was legally authorized to do.

Plaintiff’s counsel cites many authorities from other States. Many of them hold that, notwithstanding the obligation of the adjacent owner to build a walk, the municipality is responsible to a person injured by reason of its being in a defective condition. See City of Keokuk v. Independent District of Keokuk, 53 Iowa, 352 (5 N. W. 503, 36 Am. Rep. 226); City of Rochester v. Campbell, 123 N. Y. 405 (25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760); Russell v. Village of Canastota, 98 N. Y. 496; Flynn v. Canton Company of Baltimore, 40 Md. 312 (17 Am. Rep. 603); City of Hartford v. Talcott, 48 Conn. 525 (40 Am. Rep. 189); Noonan v. City of Stillwater, 33 Minn. 198 (22 N. W. 444, 53 Am. Rep. 23); Toutloff v. City of Green Bay, 91 Wis. 490 (65 N. W. 168). These cases are in accord with our own decision in Lynch v. Hubbard, 101 Mich. 43 (59 N. W. 443), and throw no light upon the question under discussion. In Davis v. City of Omaha, 47 Neb. 836 (66 N. W. 859), it was stated, rather than held, that under its charter the defendant city was responsible for the negligence of a lot owner building a sidewalk. But the statute there in question did not, as does the statute governing this case, make it the duty of the lot owner to build the sidewalks adjoining his property.

We conclude, therefore, that the court erred in holding defendant responsible for the negligence of the contractor. If a city is liable in a case of this character, its liability ■ must rest upon the ground that it has been guilty of negligence in failing to put a sidewalk in a proper condition for travel after it has had the statutory knowledge or notice of its unsafe condition. We cannot, as urged by plaintiff, affirm this case upon the ground that defendant neglected this duty. We could not do that unless the evidence-proved defendant’s negligence as a matter of law. We go as far as we are justified, and farther than defendant-would concede, in saying that the evidence proves that defendant knew that the walk was being constructed. We could not say that it proves that defendant knew that the walk was guarded by unsafe' barriers. It cannot be held, as a matter of law, that this evidence justifies a court in directing a verdict for the plaintiff, without assenting to the proposition that due diligence on the part of a municipality requires it, after knowledge that a walk is being constructed, to itself guard said walk by proper barriers. This proposition is equivalent to declaring that it is negligence for the municipality in such a case to assume that the person building the walk will perform the duty which requires him to properly guard it. In short, the right to direct a verdict under such circumstances rests upon the ground which, as we have already shown, is in our opinion unsound, that defendant is responsible for the negligence of the person building th& walk.

We will not, on this record, undertake to determine what will constitute sufficient evidence to warrant the jury in finding defendant responsible under the theory which, according to this opinion, will prevail on another trial. It is not even certain that such determination would be materially helpful, since we cannot assume that plaintiff’s case, when presented upon the proper ground, will not, by the introduction of other testimony, differ materially from that shown by the present record.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    NIPIGON TRANSIT CO. v. SMYTHE.
    Contracts — Agent’s Authority.
    The seller of wood wrote the buyer to find out what he could get a boat to deliver it for. The buyer,replied that the boat Westford would carry it for a certain price, which was satisfactory to the seller, and the arrangement was made that the boat should go when the wood was ready. The agent of the boat, thinking it could not go at the time agreed upon, notified the buyer’s bookkeeper that he could send another vessel, the Hayward. The seller was informed by wire that the latter boat could be sent, and not noticing the name of the boat, answered by wire to send the boat. The Hayward for some reason did not go, and the agent arranged with the buyer’s bookkeeper that the steamer Ford should carry the wood. Held, (1) that the minds of the parties did not meet on any contract regarding the Ford, (2) that the buyer’s bookkeeper was not authorized by the seller to engage the boat unconditionally.
    Error to Wayne; Donovan, J.
    Submitted April 6, 1904.
    (Docket No. 17.)
    Decided July 7, 1904.
    Assumpsit by the Nipigon Transit Company against W. R. Smytbe for an alleged breach of contract to transport certain wood. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Howard B. Bloomer, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Hooker, J.

The Nipigon Transit Company, plaintiff, owner of a steamer named “ J. C. Ford,” recovered a verdict and judgment for damages growing out of an alleged breach of contract, under which the Ford was sent to Thessalon, Ontario, for a cargo, which defendant failed to furnish. The defendant brings error, claiming that the testimony in the case did not establish a contract relation, and that the court should have directed a verdict for the defendant. Other points are also involved.

The plaintiff states that the facts were undisputed, and therefore it was the court’s duty to direct a verdict, in which the defendant concurs, but claims that it was directed for the wrong party. The defendant, Smythe, contracted to furnish and deliver at Detroit, to the Detroit Sulphite Fiber Company, several hundred cords of pulp wood. This had to be transported by boat from Thessalon. On July 12, 1902, defendant wrote the sulphite company to ascertain' what it could get the wood taken down for, * not, as counsel for plaintiff state in their brief, “to secure a vessel for him.” Lindsay, the treasurer of the sulphite company, saw Parker, of the Parker Chartering Company, brokers, who offered the steamers Westford and Monitor to carry the wood at $2.25 per cord. On July 15th Lindsay wrote Smythe, saying:

“According to your request, I saw this a. m. the Parker Chartering Co. in relation to boats to bring your wood down. They proposed to let us have the propeller West-ford and its consort, he said they would carry between them 400 cds. In two trips this would probably bring all the wood you have up there including what we have left over. The frt. they name is $2.25 per cd. They claim the expense of loading is much greater than it was formerly, I tried to induce them to make the frt. $2.00 but did not succeed. Capt. Humphrey runs the above named boats and would be a good man to work with you.”

This was acceptable to Mr. Smythe, and it was arranged that the boats should go to Thessalon when the wood should be ready. Humphrey, the captain, wrote Smythe that he would be ready to load about August 11th, and Smythe wired in reply that he feared it would be impossible to load then, and confirmed telegram by letter to Humphrey, then at Algoma Mills, saying that he had some time before written the sulphite company that he could not load before August 15th. On August 14th Humphrey wired again, inquiring when he would load, and Smythe replied, “Aug. 24, sure.” This reply was sent August 16th. Meantime Humphrey had telegraphed Parker that the wood would not be ready for three weeks, and asked what else he had for him. This was about August 9th, and Humphrey stated that he expected to fill in the time until the wood should be ready, but, receiving no orders, he proceeded to Thessalon, arriving there on August 16th or 17th. Parker, taking it for granted that Humphrey would not b8 able to take the wood at the time mentioned, informed Harris, the bookkeeper of the suphite fiber company (Lindsay being absent) that he could send the Hayward, and Harris telegraphed on the 19th to Smythe, who lived at a distance of several miles from Thessalon (his business of loading there being in charge of one Barrett), and was ignorant of Humphrey’s movements, that:

“Hayward can be up on 23d. Where will she load? Answer immediately.”

Smythe, not noting the name to be different from West-ford, replied on the 20th:

“Telegram rec’d. Send vessel to Thessalon.”

About the time that Smythe’s last telegram reached Detroit, plaintiff’s representative telephoned Parker from Port Huron, asking if he had anything to load the Ford with, and Parker gave him the charter for this wood, and notified Mr. Harris, who said he “would take the Ford, and would notify Smythe that she was coming.” Parker replied that, “if he heard nothing to the contrary, the Ford would leave Port Huron at 6 p. m. that night.” Harris wired Smythe, in the name of the fiber company, that the Ford, capacity 400 cords, would be at Thessalon on Friday night. Smythe was absent, and did not receive the telegram until late in the evening of August 21st, before which time the Ford had left Port Huron, and she arrived at Thessalon about the same time that he received the message. August 22d Capt. Morrison, of the Ford, wired Smythe:

“ Steamer Ford'arrived here last night. Wire orders at once.”

Smythe at once wired back:

“I never chartered your boat. Who sent you? And what are you after ? Mistake somewhere, am writing.”

He wrote confirming telegram, and that he had some wood, but that Westford and consort were to carry it, and that he could not let him load it unless under the distinct understanding that he was chartered by the Detroit Sulphite Fiber Company to carry the wood, as he thought there must be a blunder somewhere, for he had only the day before received a message that W estford would be there “tonight,” and told him to “ see Barrett.” Morrison replied, “Barrett not home,” etc. Considerable correspondence followed, and Morrison remained there some days, trying to get some of the wood that he might hold, for demurrage, under the instruction of his superior.

At the time of the Ford’s arrival the Westford had been ■ loading for two days, though Smythe did not know it. The Ford finally left on August 30th with a two-thirds load secured from other parties.

The court closed his charge as follows:

“ Gentlemen, it is not necessary to use a great many words in this case. Find out, when you go to your jury-room, in the language as stated to you, which one of these innocent parties — for they were both candid about it— which one of the innocent persons enabled the loss to happen, and charge him with it.”

He afterward directed a verdict for the plaintiff. The jury returned a verdict for $700 in favor of the plaintiff.

We see no reason for doubting that all of these parties acted in the best of faith. The sulphite fiber company made arrangement for the Westford and consort on behalf of defendant, which he ratified. The confusion that resulted was due, first, to a misunderstanding between Humphrey (captain of the Westford) and Parker, his broker, who then proposed sending the Hayward, and Harris wired defendant that the “ Hayward could be up on 23d. Where will she load ? ” It is quite evident that the defendant did not note the fact that this was another boat than the one contracted for, but, be that as it may, the Hayward was not sent. On the contrary, Parker found another boat that he could send, and Harris agreed with him that he would wire Smythe that she was coming, and Parker then stated that, unless he heard to the contrary, the Ford would leave Port Huron at 6 o’clock. The main question in the case is whether the court should have instructed the jury that this action of Harris in chartering the Ford was within his authority, or whether it was a question for the jury. The request made of Lindsay in the first instance was to “find out what he could get wood taken down for.” Harris subsequently wrote a letter, which indicates that, in pursuance of an understanding had between Lindsay and Smythe, it was acceptable to the latter to have the Westford and consort engaged, and that Harris, acting under Lindsay’s instruction, had engaged them. No other authority was ever given by defendant to either Lindsay or Harris to engage any other boat, unless it is to be inferred from his answer to the telegram about the Hayward. Had the Hayward gone, the case would have presented a different question. As it is, it may be said that Harris might naturally infer that Smythe’s answer justified the sending of some other vessel if the Hayward could not be had. It is clear that none of the parties could have understood that Smythe intended to have another vessel sent, unless those agreed upon — i. e., the Westford and consort — should fail him. He was not in a position to know about that, while Parker should have been, and doubtless supposed that he did know. If it be conceded that Smythe understood from the telegram (which is improbable) that another vessel than the two contracted for was to be sent, he had a right to suppose that it was because Parker had found it inconvenient or impossible to send the Westford and consort. The testimony shows that the Ford was sent under a misunderstanding, and that the minds of the parties did not meet upon any contract regarding her, nor is there any substance to the claim that Harris was authorized to engage her unconditionally under the circumstances.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.