author: Osteandee, J.

text:
    WHITFORD v. TOWNSHIP OF WASHINGTON.
    1. Municipal Corporations — Bridges—Townships—Negligence— Highways and Streets.
    The liability of a township for failure to maintain a bridge in proper repair pursuant to the requirements of Act No. 283, Pub. Acts 1909; 2 How. Stat. (2d Ed.) § 2463, depends upon notice to the township, either actual or imputed, that defects, in fact, existed in the bridge which were the ultimate cause of plaintiff’s alleged injuries: it is not enough that the officers of the township might have discovered the defect or ought to have discovered it.
    2. Same — Trial—Charge.
    In a negligence action against defendant township for injuries which were sustained by plaintiff because of a defect in the flooring of the bridge which plaintiff attempted to drive across, defendant was entitled to an instruction that, to chargé the defendant township with constructive notice, plaintiff must establish by a preponderance of the evidence that the bridge was not reasonably safe and fit for travel on the date of the accident, and that its unsafe condition was such as to be obvious and to attract attention of persons passing over it; also that the township permitted the structure to remain in this condition for such an unreasonable length of time without repairing it, that it must be presumed notice of the defect had come to the officials.
    3. Same — Trial—Charge—Requests.
    The court also erred in modifying defendant’s requests to charge in such a way as to permit the jury to find that the officers of the defendant township ought to have seen the alleged defect or should have discovered it in the exercise of their duty, where no evidence appeared in the record tending to prove that any officer saw the defect or was present when the same was clearly apparent or must have been seen.
    Error to Gratiot; Searle, J.
    Submitted November 18, 1914.
    (Docket No. 112.)
    Decided March 17, 1915.

      Case by Mary C. Whitford against the Township of Washington for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Stone & Smith, for appellant.

      Lyon & Moinet, for appellee.
   Osteandee, J.

Testimony for the plaintiff tended to prove that while she was riding in a sleigh the foot of one of the horses went through a bridge in a highway in defendant township, the horse fell, and she, in consequence, fell or was thrown out of the sleigh, sustaining injury. In the trial of the action which she brought against the township, and in which she recovered, numerous exceptions were taken by defendant, many of which, with objections to the charge given, are urged here as ground for reversal of the judgment. Plaintiff’s injury was received February 27, 1913. ■

An unusual difficulty attends upon any examination of the record, a difficulty to which the attention of counsel for appellant was directed at the hearing. In the record is found no index showing the page of the record where an exception may be found. Indeed, it does not appear by the printed record that a verdict was returned or judgment entered. Aside from this, and of more importance, because the court desires to learn and seeks the aid of counsel in determining the precise questions, which are presented and opposing counsel are required to meet only such points as are urged here, the brief for appellant does not at all conform with the provisions of Supreme Court Rule 40. The statement of facts presented does not indicate that there was any issue of fact raised by testimony. The questions involved and the manner in which raised are not presented distinct from argument, nor at all except as they may be discovered, mainly by the process of deduction, from the argument.

There is one assignment of error (the twenty-first) which is based upon the charge as given, which appears to have merit and which may properly be considered. The portion of the charge referred to reads as follows:

“In that respect I am requested to charge you by defendant’s counsel in their third request: ‘To charge the defendant township with constructive notice in this case the plaintiff must show by a preponderance of the evidence: (a) That the bridge in question was not reasonably safe and fit for public travel on the 27th day of February, 1913. (b) That its. unsafe condition was of such a character as to be clearly obvious and such as would attract and arrest the attention of persons passing over it in the daytime, and that the township permitted it to remain in such condition and neglected for an unreasonable length of time to repair it.’

“Now, gentlemen, I give you that charge, but with some modifications. I say to you that that is the rule except to this extent: that the highway officials whose duty it was to keep this bridge in reasonable repair would be bound to take perhaps a little more notice of it as they passed over it than the ordinary passer-by would, and if they discovered at any reasonable time before this accident happened that there was a condition in this plank, a rotten condition, or a hole was beginning to appear in it, which would lead an ordinarily prudent man to see that it might grow larger, then it would be the duty of the township officials to go further and make some inspection of the plank and find out to what extent the rot had affected it and take some steps then, if it was necessary, to repair it before the hole in it did grow larger so that an accident would happen.

“I don’t mean to imply by that charge that there is any evidence that any officer did see it, because I don’t understand that there is, but I tell you this as the law governing the case, so that if you find that it had existed there long enough so that in the ordinary course of events officials of the township going over it did see it, or should have seen it, provided it was obvious enough so that an official in going over it, keeping in mind his duty to look after the bridges in Ms townsMp, should have seen and discovered it, then that would be such notice to the township as would require them to act and to cause the bridge to be repaired within a reasonable time thereafter.”

Under the statute, actual or imputed knowledge or notice to the township of a defect in a highway or bridge is necessary to establish liability for injuries received on account of the defect. Act No. 283, Pub. Acts 1909. 2 How. Stat. (2d Ed.) § 2463. Assuming, as the trial judge did, that proof of actual knowledge, or of actual notice, was wanting, and that the question submitted to the jury was whether knowledge of the defect in question should be imputed to the defendant, it is a serious question whether the court correctly .stated the governing rule. The rule itself is simple ■enough, and has many times been stated by trial courts .and by this court. It is the phrasing of the statement, in applying the rule to the facts of a particular case, which has varied.

The testimony tended to prove that the defect complained about was a hole in a plank in the flooring of the bridge, and that it was caused by the exposure of the plank to the weather and to travel, by decay. The bridge spanned a drain or ditch, the span being about 10 feet and the width of the bridge 16 feet. It was a steel bridge floored with oak plank and had been built about 10 years. The highway was considerably traveled. Evidence of some decay of the plank appeared in the autumn of 1912, and was noticed by various travelers during a period of from four to six weeks before the plaintiff was hurt. Some of those using the highway saw it and some did not. It is described variously as an opening or decayed portion from 12 to 16 inches long and from 2 to 3 inches wide 3 feet or more from the end of the plank and in a part of the plank which came from the heart of the tree. Plaintiff’s son, who with his wife was with plaintiff on the occasion of her injury and drove the team, drove over the bridge three times a week, and had never noticed a hole in it. He described the hole, after the accident, as from 3 to 4 inches wide and from 1% to 2 feet long — wider in some places than in others. It was not a defect which disturbed any traveler so much that, so far as appears, he notified any officer of the township thereof. Defendant produced the overseer of highways and the highway commissioner, but they were both dismissed, with questions indicating the offices held by them. It may be said that the testimony does not tend to prove that the defect was a glaring or obtrusive one, although in some stage it had been noticed by passers-by for two months and perhaps a longer time. The testimony tends to prove that the supervisor passed over it in January, 1913, but whether at that time the bridge was covered with snow or not is not clear. Otherwise the testimony does not tend to prove that any officer of the township passed that way while the hole was noticeably in existence. It does not appear that any other defect in the bridge existed, nor when repairs were last made, if the bridge had been repaired, nor when, if ever, it had been inspected. It is proper to read here the portion of the charge preceding that already set out, the two portions comprehending all that was said in the way of stating a rule by which to determine whether the township had notice:

“Now you will notice that I said to you that the township must have either notice or knowledge of the defect a reasonable time after that in which to repair it. Now I charge you as a matter of law that there is no evidence in this case that the township had actual notice or knowledge of the defect in this bridge; that is, no one has sworn that they went and told any highway officer that it was there, or that they saw any highway officer looking at or discovering it, but the plaintiff claims that she has shown such a state of facts here as charges the township of Washington with notice of the condition there. That is what is sometimes called constructive or presumptive notice. And in that respect I charge you that it is for you to say whether or not this hole in the bridge was of such size and character and had existed for such length of time as. would charge this township with knowledge of it; that is, charge its highway officers and officials whose duty it is to keep the highway in repair with knowledge of the fact that it is there.

“You have heard the evidence as to the length of time when the hole had existed, or existed to some extent; I don’t mean to say that it existed the same size all this time, but the evidence has been given here as to when any one first discovered any hole in the plank or rotten place there, and what they discovered from that time on, and it is for you to say whether or not if people who passed over the bridge saw the hole there, whether or not the officials of the township did see it, or should have seen it during that time, or should have found it.”

In the opinion of the majority of the court handed down in Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499), in February, 1900, appears an exhaustive review of cases to that time decided by this court, in connection with an interpretation and construction then put upon the controlling statute with respect to the notice which is a condition of liability. Of the law of 1887, which so far as the subject here involved is concerned is not different from the present law, it was said:

“It will be observed that this language implies that a municipality can only be held liable for injuries through defects of which it had notice or knowledge. As this was the substantial change made, we must conclude that mere neglect was not thereafter to be enough to create a liability, and that the new act required, not only proof of negligence in permitting the defect to exist, but also knowledge or notice of its existence, and an opportunity to remedy the defect after such notice or knowledge. The pointed language of the act forbids any other construction, and we-should expect to find that thereafter proof of notice or knowledge was held indispensable. We will examine subsequent cases.”

In concluding the opinion it was said:

“From this review of the cases, it seems manifest that the plain provisions of the law óf 1887 have been kept in view by the court, and that while some allusions to the case of Township of Medina v. Perkins may, at first blush, appear to have committed the court to a broader rule of liability than the language of the statute contemplated, an examination of the questions at issue and decided in the respective cases will show that this is not so. The law undoubtedly makes it the duty of municipalities to keep their streets, etc., in good repair, but it does not follow that there is a liability for a neglect of that duty. That duty has existed ever since Michigan has been a State, but, as already shown, there was no such liability for many years. Legislation was necessary to create it, and it follows that the liability extends no further than the statute requires. The act plainly limits liability to a case arising after knowledge or notice of the defect causing the injury, whether such defect exists by reason of the negligence of the municipality or not. There was doubtless abundant reason for such a proviso in the statute in the well-recognized facility with which injured persons shift the responsibility for accidents upon the public through the medium of charitably inclined juries. . At all events, the law is plain, and we should not hold that a city or township is liable because it negligently omitted an inspection, when the legislative intention to limit recovery to cases arising from known defects is clear.

“We do not mean to be understood as. saying that notice or knowledge may not be inferred from circumstances such as the existence of an obvious defect for a period which renders a want of knowledge improbable. It has often been said that the law will presume that the municipality has notice of defects, which common observation for a long time has made notorious. This has been called ‘constructive notice,’ but it has often been said that the rule does not extend to latent defects, as I have shown. To say that a neglect to inspect is actionable is to nullify the statute.”

See, also, Pearl v. Township of Benton, 123 Mich. 411 (82 N. W. 226); s. c., 136 Mich. 697 (100 N. W. 188); Hunter v. Village of Ithaca, 141 Mich. 539 (105 N. W. 9.)

Recurring to the charge, it will be perceived that the point at which the request of counsel for defendant was aimed was a rule according to which, and the facts found by them, the jury might • determine whether the defendant, within the meaning of the statute, had had notice of the defect. Whether defendant was or was not entitled to an instruction more favorable than the one requested, the court gave it, but with modifications which left no semblance of it remaining. The infirmity of the instruction given lies in this: That it implies that township officers when crossing bridges should observe what ordinary travelers would not. It introduced to the jury a condition of things which the testimony negatived. There was no occasion to point out the duty of an official who passed over the bridge and saw the defect, because it did not appear that any such official had observed the defect. Was it so obvious a defect;, had it existed for so long a time, or was it so notorious, that notice of it may be presumed to have come to the authorities? This was the question to be answered by the jury. One or more of the things stated must have existed in order to charge the township with notice of the defect, in the absence of actual notice. In the portion of the charge last quoted, the last two ultimate facts stated, namely, whether the officers of the township “should have seen it,” or “should have found it,” were neither of them facts upon which, upon this record, the liability of the township could be predicated. Reading the whole of the charge upon this subject together, it nowhere limits the jury to the consideration of what may be properly considered in determining whether the defendant had constructive, or presumptive, notice of the defect. On the contrary, it is calculated to lead to speculation and to wrong conclusions.

For this reason, the judgment must be reversed and a new trial granted.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    BOESLER v. COPPER RANGE RAILROAD CO.
    1. Master and Servant — Eellow-Servants — Employment in Shop — Statutes.
    In an action based upon Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4110 et seq.), which abolishes the fellow-servant rule as to common carrier railroad companies, excepting employees working in shops and offices, the question whether a servant that cleaned out the ash pans of defendant’s locomotives at an ash pit located outside the roundhouse belonged to the excepted class was a proper question for the jury.
    2. Same — Evidence of Negligence.
    Where the testimony tended to show that plaintiff received injuries from the movement of a locomotive under which he was working, cleaning the ash pan, and that no notice was given of the intended change of the engine, and it might be inferred from the evidence, either that the fellow-servant of the plaintiff, or he or both were negligent, the court was not in error in submitting to the jury the question of comparative negligence under the statute.
    3. Same — Assumption of Risk — Negligence.
    The intent of the act was to abrogate the fellow-servant rule; and the provisions of the law do not have the effect of requiring the servant to assume the risk of the negligence of his associates, unless there is evidence that- he knew or had reason to apprehend that they were habitually incompetent, or unless the risk of working with them was obvious.
    4. Same — Infancy—Labor Law — Violation of Statute.
    Nor was the charge of the trial court inconsistent or conflicting, although the court did not, in first introducing the subject of plaintiff’s infancy and claim that he was under 18 years of age, inform the jury that they should take into consideration the experience which plaintiff had had and the fact that his work was done while the engine remained standing, in considering liability for violation of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4009 qt seq.), when the subject was covered in a later portion of the charge.
    5. Same — Election—Verdict.
    The plaintiff should, however, have been compelled to elect upon which statute he claimed the right to recover: defendant was entitled to have the verdict of the entire jury upon one or the other ground of recovery; and the objection is not answered by the contention that the defendant could have presented special questions to the jury distinguishing upon which count their verdict was based.
    Error to Houghton; O’Brien, J.
    Submitted November 16, 1914.
    (Docket No. 60.)
    Decided March 17, 1915.
    Case by Fred W. Boesler, Jr., by his next friend, against the Copper Range Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Stone & Wieder, for appellant.

      Le Gendre & Driscoll, for appellee.
   Ostrander, J.

It was a part of the duties of the plaintiff to clean the ash pans of defendant’s locomotive engines, they being spotted for this purpose at an ash pit outside the roundhouse by the hostler, who was plaintiff’s immediate superior. Plaintiff worked at night, and oh other than Sunday nights was employed at the ash pit until early in the morning. The engines having been put in the roundhouse, he was. employed to wipe them. The ash pit had cement sides, and, as described by plaintiff, was more than 70 feet long and 3 or 4 feet deep. A hoe or bar was used to rake ashes from the fire boxes, and in doing it plaintiff stood outside the rail, leaning over the rail, under the engine. A preliminary work, in cold weather, was opening the pans, which sometimes required the use of steam hose. Plaintiff received his injury April 2, 1911, Sunday night. He was then 17 years, 11 months, and 4 days old, and was employed to clean ash pans and wipe engines March 26, 1911. He thus describes his injury and the manner received:

“I was just cleaning the pan there, and I was almost finished, and I went to look in to see if the pan was _all cleaned. I couldn’t see the pan from the side I 'was on. I went in to see, and as I had my body over the rail, the engine started and took my hand first, and I pushed myself away and got my body out of the road. 'That was engine 52, and I had been cleaning it about 10 or 15 minutes, during which time I thought the hostler was over to the coal dock coaling up another engine, because generally he gets around the same time I get through with my work, and I hadn’t got quite finished yet. I didn’t see or hear him around there, and had no reason to believe that the hostler was in the engine at the time. Perdlewitz was up in the engine, and Driscoll was behind the engine at the turntable, but I couldn’t say what he was doing there. The wheel that ran over my hand was the back driver on the left side, the fireman’s side. The engine went backward.”

There are three counts in the declaration. In the second count plaintiff seems to rely upon Act No. 104, Pub. Acts 1909, and in the third count upon Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§ 4110 and 4009). The first count is in case for damages resulting from defendant’s negligence, and was abandoned at the trial. Upon the other counts the case went to the jury, and a verdict for plaintiff was returned, upon which judgment was entered.

Appellant states the questions involved as follows:

“Was the plaintiff an employee working in the shop of the defendant within the meaning of section 7 of Act No. 104 of the Public Acts of 1909?

“Were the plaintiff’s injuries the proximate cause of his contributory negligence or the negligence of his fellow-servants?

“Were the injuries the result of the assumed risks of the employment?

“Construction of Act No. 285 of the Public Acts of 1909 as applying to male persons under the age of 18 years.

“Should the plaintiff have been required to elect, after the close of the proofs, upon which cause of action he would go to the jury?

“The court committed error in charging that certain facts existed.

“There was no proof of any negligence on the part of the defendant.

“The verdict was not supported by the evidence, and was against the clear weight and preponderance of the evidence.

“The court erred upon certain facts in giving his reasons for denying a new trial.”

The provisions of Act No. 104, Pub. Acts 1909, do not apply to employees working in shops or offices. Defendant offered testimony to the effect that plaintiff was employed in the engine house department, that engine wipers are classified by defendant and other railroad companies as roundhouse men — shop employees. It is conceded that whether a shop employee or not is a question of fact, and contended that the court erred in refusing to admit in evidence certain instructions issued by the interstate commerce commission to railroad companies with respect to accounting, according to which engine house expenses include pay of and supplies furnished to employees engaged in wiping and cleaning fire boxes, among many others. There was nothing in the testimony received, or that which was excluded, which tended to prove that plaintiff was employed, when he was injured, in working in a shop or office. The ash pit was out of doors. Sometimes as many as 12 engines were brought to the pit in one night, under their own steam, the fire boxes cleaned, and the engines removed. It does not appear that defendant requested any instruction upon the subject, or that the court gave any. The failure to instruct is not made ground for an assignment of error. At least, a question of fact was involved, and it is impossible to say that the evidence was conclusive that plaintiff was employed in a shop within the meaning of the statute.

Of course, plaintiff’s injuries arose out of negligent conduct of his fellow-servants, or his conduct, or the conduct of his fellow-servants and himself. If defendant’s theory is supported by a preponderance of evidence, plaintiff’s fellow-servants were guilty of no negligence. The negligent conduct attributed to them is the movement of the engine, without notice, while plaintiff was working upon it, or before he was in a position of safety; that at any rate it was moved before those in charge of it were assured, as they should have been, of plaintiff’s safety. It is defendant’s theory that it was moved upon plaintiff’s own assurance that it was proper to move it. There is another possible theory, which is that one of plaintiff’s fellow-servants was mistaken, or imperfectly heard, or supposed he heard, the plaintiff’s assurance upon which the machine was moved. Assuming that the plaintiff was not a shop or office employee, the submission to the jury of the question whether defendant’s other agents or the plaintiff were guilty of greater negligence did not prejudice defendant.

Under Act No. 104 plaintiff did not assume the risk of negligence of his fellow-servants, such risk being expressly excluded by the terms of the act. If it were otherwise, the provisions of section 1 of the act would be, in large measure, nugatory and meaningless. The liability which the statute imposes is damages resulting from the negligence of officers, agents, or employees. There is no claim that plaintiff-knew or apprehended, or had reason to apprehend, that those with whom he was working were habitually careless or incompetent. There was no obvious risk incurred by working with them, no risk which, in view of the statute, plaintiff could assume. It has been held, in construing a very similar statute, that the act having expressly eliminated the defense of assumption of risk in specified cases, the intent was plain that in all other cases such assumption of risk should have its effect, as formerly, as a bar to the action of the injured employee. This was applied in a case where the employee knew of a defect in an appliance used by him, appreciated the resulting danger and continued, without objection, to use it. Seaboard, etc., Railway v. Horton, 233 U. S. 492, 34 Sup. Ct. 635. This court has, in effect, so construed the statute in question here in Bruce v. Railroad Co., 172 Mich. 441 (138 N. W. 362). It is apparent there would be no occasion for comparing the negligence of employees, as the act contemplates, if the risk of negligence of fellow-employees, at least in the ordinary and usual cases, was assumed by the injured employee. Upon the testimony produced, the court should have left to the jury no question of assumption of risk.

The court submitted to the jury the question whether plaintiff’s employment was in violation of a statute. The charge is criticised as inconsistent because, it is said, the court did not, in first introducing the subject, but did later, say that the age of plaintiff and the fact that his work was done when the engine was not in motion were facts to be considered by them in answering the question. Usually it is argued that if in the later portions of a charge the last statement of a rule is erroneous, the error is not cured by an earlier correct statement of the rule. In this case the argument is that “it is first impressions that control a jury in a case like this.” My own view of the matter is that the charge upon this subject, as a whole, was favorable to defendant.

The court should have compelled an election by plaintiff. Plaintiff is claiming the benefit of two statutes, either on& or both of which may or may not, as the jury shall find the facts to be, determine his right to recover. Defendant was entitled to have the concurrence of all the jurors in a verdict Dased upon one count or the other. See Carbary v. Railway, 157 Mich. 683 (122 N. W. 367). The jury may have believed the plaintiff was guilty of no negligence. In such a case a recovery under either count would have been proper. They may not have entirely believed the plaintiff, and found that he was himself guilty of conduct contributing to his injury, defeating a recovery under the last count and permitting' one under the other, if defendant’s agents were guilty of greater negligence. For appellee it is said that by the use of special questions the defendant might have been advised, or the court might upon request have required the jury to specify, upon which count the verdict was based. A little reflection will show, I think, that the suggestion has no merit.

There is no occasion to discuss the other subjects presented in argument. They are either disposed of by the foregoing or are not likely to again arise.

For the error pointed out the judgment must be reversed and a new trial granted.

Beooke, C. J., and McAlvay, Kuhn, Bibd, Moobe, and Steeee, JJ., concurred. Stone, J., did not sit.


text:
    ZAP v. NEWPORT MINING CO.
    Master and Servant — Mines and Mining — Negiagence — Assurance of Safety.
    Where plaintiff was employed in defendant’s mine as a trammer and in the ordinary course of his work at taking out the ore he became apprehensive that the place was dangerous and notified the shift boss, who inspected the surroundings and advised plaintiff that everything was safe and to resume work, there was no evidence which had a tendency to establish any actionable negligence on defendant’s part in relation to any duty which was nondelegable, to maintain the ordinary conditions for the safety of miners.

    Error to Gogebic; Cooper, J.
    Submitted November 13, 1914.
    (Docket No. 45.)
    Decided March 17, 1915.
    Case by Mike Zap against the Newport Mining Company for personal'injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      C. W. Westerman (Charles F. Fawsett, of counsel), for appellee.

       For what acts of superior servant master is liable, see note in 51 L. R. A. 584.

   Ostrander, J.

It is the claim of the plaintiff that while he was employed by defendant as a trammer, in. March, 1912, a quantity of earth and ore fell upon him, some of it entering into and irritating his eyes. As a result they became infected; the vision of one of them is greatly impaired; and a chronic inflammation of the eyelids (trachoma) exists. He sued for damages for his alleged injuries, and when, upon the trial of his case, the plaintiff had rested, the court, upon the motion of defendant’s counsel, directed a verdict for defendant, upon which judgment' was rendered. In directing the verdict, the court said:

“The proof offered by the plaintiff in this case clearly brings the case within the law as laid down by the Supreme Court in the case of Petaja v. Aurora Iron Mining Co. In that case, as in this, the plaintiff was a .trammer in the employ of the defendant company. The case is in volume 106 of the Michigan Reports, at page 463. At page 466 [64 N. W. at page 335] the court says: ‘This ore was loaded upon cars and removed by common laborers, called “trammers.” ’ The Supreme Court goes on to say that above them was the shift boss, just as in this case. It appears that in the Petaja Case the accident happened in a very similar manner to the accident in this case. There had been ore blasted out so that when it would be removed there would be room for another set of timbers. The trammers were at work taking out that ore; it being the intention to put up a set of timbers just as soon as the ore was taken out. While the trammers were removing that ore- they thought the place looked dangerous, and they called upon the shift boss for an inspection. On page 467 of 106 Mich, [on page 335 of 64 N. W.], it says: ‘Some indications of danger were noticed by the trammers, who called, the attention of the shift boss to it, but, after looking at it, he told them it was all right, and to quit “monkeying,” and resume work, which they did. The accident occurred about 30 minutes later.’

“That corresponds identically with the situation in this case. In this case the plaintiff, while at work tramming out the ore, thought the place looked somewhat dangerous, and he called upon the shift boss for an inspection. The shift boss looked at the place and told him it was all right, and to resume work. I am unable to see any distinction between the Petaja Case and the present case. I shall therefore direct a verdict in favor of the defendant, under that decision.”

The court was not in error in finding that the facts in the Petaja Case and in the case at bar, in respect to the conditions from which injury arose, are substantially the same; and, while counsel for the appellant seeks to distinguish the cases, the argument in its essence is that in Scendar v. Mining Co., 169 Mich. 665 (135 N. W. 951), and perhaps in other cases, the court has modified the rule of the earlier decision. That the rule of the Petaja Case has not been modified is apparent from the opinion in Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699), and cases cited in the opinion.

There is no testimony tending to prove' that the defendant was guilty of a breach of the delegable duty to maintain the ordinary conditions making for the safety of employees in such places; guilty of a breach of the duty not to be reckless. See Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423). If the contributory negligence of plaintiff was a controlling issue, the alleged assurances of the shift boss that the place was safe might be important. There is no evidence of defendant’s negligence.

The judgment is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Bird, Moore, and Steere, JJ., concurred. Stone, J., did not sit.


text:
    TURNEY v. COMBINATION BRICK CO.

      1: Mortgages — Corporations — Promoters — Fraud — Fiduciary Relation.
    Where complainant owned real, property which was suitable for the manufacture of brick and made a contract with a promoter to convey his interest to the promoter, who in turn executed an assignment of his interest to the proposed corporation which the promoter attempted to and did organize, and where it was alleged that in the interest of certain stockholders of the company the promoter made untrue representations as to its value and the amount which had been subscribed to the stock, the representations being contained also in the articles of incorporation and tending to show that a majority of the capital stock had been subscribed and paid in, although in fact the promoter had only an agreement with complainant to transfer and convey the property to him or his assigns upon the payment of the price, evidence considered, and held, insufficient to establish complainant’s complicity in the alleged fraud.
    2. Corporations — Vendor and Purchaser — Contracts—Assignments.
    Where defendant corporation, in order to secure funds with which to carry on its business upon the security of property that complainant had transferred, or agreed to transfer, to it, executed a mortgage for four thousand dollars without any action of the shareholders so as to enable complainant to assign the mortgage and procure a loan of the amount agreed upon, the mortgage was valid without the action of the stockholders: borrowing funds for ordinary needs of a corporation does not require such action, and the execution of the mortgage to secure the loan by the proper officers of the corporation constituted a valid transaction.
    Appeal from Wayne; Mandell, J.
    Submitted November 20, 1914.
    (Docket No. 140.)
    Decided March 17, 1915.
    Bill by William M. Turney and others against the Combination Brick Company to foreclose a mortgage. Judgment for complainants. Defendant appeals.
    Affirmed.

      Chamberlain, May, Denby & Webster (Stellwagen & MacKay, of counsel), for complainants.

      Lucking, Helfman, Lucking & Hanlon, for defendant.
   Ostrander, J.

The bill is filed to foreclose a real estate mortgage, dated May 23, 1911, executed by Combination Brick Company, a corporation, to William M. Turney and Alta S. Turney, his wife, in common, conveying certain premises in the county of Wayne, Mich. It purports to secure the payment of $14,500 in certain annual installments, with interest at 6 per cent, per annum; the debt being evidenced by five certain promissory notes, made by the mortgagor. The certificate of acknowledgment is dated May 26, 1911, and that of the register of deeds May 27, 1911. To secure a loan of $4,000, made to Turney and his wife, and evidenced by their promissory note, the mortgage was assigned June 10, 1911, to the Dime Savings Bank. The assignment of the mortgage was recorded June 12, 1911. This mortgage provides for declaring the whole sum secured, principal and interest, to be due for default in the payment of interest, or of taxes on the property, or of principal. Nothing having been paid on the mortgage, and the $4,000 note remaining wholly unpaid (it not falling due until three years after date), on August 16, 1912, notice of default and election was given by the bank to the mortgagor, and on August 19, 1912, the bill was filed, the mortgagees and the bank joining as complainants, setting up their rights respectively and claiming there is due the principal and all past-due installments of interest and interest on interest. Complainant bank offers to treat as due and to accept payment of the $4,000 secured by the said assignment. The defendant, Combination Brick Company, answered the bill, admitting that Turney and his wife procured certain notes and a mortgage purporting to be executed by certain officers of defendant, “as alleged in said bill of complaint,” but denies there was any consideration for the notes or that the mortgage is a valid subsisting lien on the property described therein, denies that the mortgage was lawfully authorized or executed. The charges in paragraphs 8 to 14 of the bill inclusive are neither admitted nor denied, “it not having sufficient knowledge thereof to permit it either to admit or deny the same.” Chancery Rule 10 (d). Proceeding, defendant claims the benefit of a cross-bill against complainants, and sets out with considerable detail the existence of facts and circumstances which, it is contended, require the notes and mortgage of complainants to be delivered up to be canceled and the granting of other relief against complainant William M. Turney only. To the cross-bill the Turneys filed their joint and several answer, and the bank its several answer.

It appears that William M. Turney was owner of the mortgaged premises, that he conveyed them to the defendant, first by land contract, and later by deed, that the mortgage debt was a portion of the selling price, and that another portion was represented by stock of the defendant company, held by him. It was,, and is, the contention of defendant that a fraud was perpetrated upon defendant in its organization and thereafter, by its promoters, by means of which the subscriptions of certain shareholders were secured and by means of which Turney received an exorbitant price for his property. In connecting Turney with the alleged fraud, it was, and is, asserted that he was one of the promoters of the defendant company and so occupied towards it and stockholders a fiduciary relation and a duty to disclose all facts affecting the company and its property, that intending shareholders, who afterwards became shareholders, understood, and Turney represented, that the property in question belonged to the corporation, in accordance with the facts stated in the articles of association; that a promoter’s fraud cannot be waived by the directors so as to bind the corporation and its shareholders; that Turney is estopped to deny that the land did not belong to the defendant; that the bank occupies no better position than he. A further contention was made in the court below, and is made here, namely, that, by a certain instrument and assignment thereof, Turney passed his title and interest in the land to the corporation on or about the time defendant was incorporated. But this is not the theory of the cross-bill, which charges, in substance, that Turney and his co-promoters designedly omitted and failed to have transferred and conveyed to defendant the property in question.

There is no doubt about Turney’s original ownership of the property, nor that he engaged himself morally, if not legally, in July, 1907, to agree to sell and convey the land and appurtenances to one William J. Richards, since deceased, or to such person as he should name, upon certain terms. The property is not very valuable for farming purposes, but contains a deposit of clay suitable for making brick, and there were upon it certain buildings, machinery, and utensils used in brickmaking. I have no difficulty in finding that no money was paid to Turney when this first and preliminary agreement was made, and that it was understood that Richards meant to try to dispose of the property to a corporation to be organized for making brick, and that the admitted down payment of $7,000 was for the benefit, or supposed benefit, of Richards.

In March, 1908, articles of association of the Combination Brick Company were filed with the secretary of State, indicating a capital of $50,000 with 5,000 shares of stock, it being represented in the articles that there was then subscribed $32,010, which had been paid in — $3,010 in cash and $29,000 in other property, itemized and valued, being the property, or some of it, in question in this suit. The essential facts recited in these articles were wholly untrue, since Richards, one of the subscribers, had no more than an arrangement with the owner of the property to secure it. Pursuing his plan to secure capital and embark the corporation in the business of making brick, Richards interested some persons who had money, among them Mr. R. S. Webb, and, by his assistance, some others. Turney himself agreed to take, and did take, some stock in defendant company, 3,201 shares of which appears to have been originally issued to William J. Richards, William Keith, and Robert J. Keith ■ — to the latter one share. Turney’s original and continuing purpose and desire was to sell his property at his price. He knew that Richards, to whom he was willing to pay a commission, was trying to sell it, and in the way indicated. Talked with by Webb and others, he undoubtedly spoke approvingly of the scheme and of the suitableness of the property. It may be said that he aided and abetted Richards, and in many ways supported the project. But I think it is not established that he ever represented that the property in question belonged to the corporation, or ever knew that any such representation was made by others or by another. It is doubtful if any one promoting the scheme made any such representation, orally, and it does not appear that any one subscribing for or buying stock saw the articles of incorporation or knew what was recited therein. These articles Mr. Turney did not subscribe. Under date May 11, 1910, he executed and delivered to the defendant a contract for the sale of the property for $29,000, payable, $14,500 down, the remaining payments divided and deferred. He was paid $9,500 in stock and $5,000 in cash, and the payment was indorsed on the contract. It does not distinctly appear by whom all of the outstanding stock was then held. It does appear that substantially all, if not all, of it was held by persons who then knew the exact situation of affairs. If they were any of them before that time ignorant of the fact that Turney owned the property, it was not because of his representations. Thereafter the defendant engaged in making brick. It seems likely that if Mr. Webb had lived capital could have been secured and the business continued. The authorized capital was increased, and a prospectus was issued containing representations more or less appealing to investors. No new subscriptions to stock were secured by means of the prospectus. The business was not successful. An effort to borrow some money was unsuccessful. It was then arranged to take a .deed of the property from Turney, give him a mortgage — the mortgage in suit — and that he should borrow for the defendant, on his own account and that of his wife, $4,000, using the mortgage as collateral security. This Turney and his wife did, giving their joint note therefor to the complainant bank. Defendant used the money.

I have made a somewhat general statement of the facts, but sufficient perhaps to disclose the nature of the controversy. I agree with the learned trial judge, who said:

“I am not convinced by the proofs offered here that the allegations of the cross-bill are sustained. I am not satisfied from the proofs that there was any fraud on the part of Mr. Turney that would justify the court taking the action sought.”

The contention that on March 14, 1908, Turney assigned his interest in the land to defendant is unsupported by the facts in evidence and, to go no further, the writing relied upon to prove it is open to the construction put upon it by complainants. The execution of the notes and mortgage in suit was one way of securing title to the land and getting rid of the contract. It added nothing to the debt of the corporation, and the borrowing of $4,000 for the needs of the company required no action of the shareholders.

The decree must be, and is, affirmed, with costs to appellees.

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


author: Bird, J.

text:
    BREEN v. GRAND RAPIDS & INDIANA RAILWAY CO.
    Master and Servant — Electricity — Railroads — Negiigenoe — Death — Notice.
    Oil the trial of an action for the negligent killing of plaintiffs husband, and upon motion of defendant to direct a verdict, evidence tending to show that decedent was electrocuted by a lamp which plaintiff claimed had been taken by decedent to the repair department of the defendant railway company and had been returned to decedent as in proper condition for use and proof that the repair department was the only custodian of the key which would unlock the guard of the lamp so as to permit of making the repairs, held, sufficient. to raise the issue of alleged notice to defendant of the condition of the lamp.
    Error to Kent; Brown, J.
    Submitted January 5, 1915.
    (Docket No. 7.)
    Decided March 17, 1915.
    Case by Margaret Breen, as administrator of the estate of William J. Breen, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell, for appellant.

      Dunham & Dunham, for appellee.
   Bird, J.

Plaintiff’s husband was engaged in the work of repairing locomotive boilers and fire boxes for defendant at its shops in the city of Grand Rapids. While making interior repairs in a fire box on the afternoon of August 18, 1912, he was electrocuted by an electric lamp which he was using to aid him in his work, and which had been furnished him by the defendant for that purpose.

At the conclusion of the proofs the defendant requested a directed verdict in its behalf on the ground that no negligence on the part of the defendant had been made out. This request was refused, and the jury were instructed, in substance: That if the deceased took the electric lamp to the electrical department to have it repaired, and after doing so the lamp was delivered back to him, he had the right to rely upon it that it was inspected and safe for use; and if it were handed back in a condition unsafe and unfit for use, and the deceased met his death by reason of such. impaired condition, the defendant would be guilty of negligence.

Counsel for the defendant concedes that the state of the evidence was such that the jury were justified in reaching the conclusion that the deceased was electrocuted by means of the electric lamp, but he insists that it was error for the trial court to permit the jury to find that the deceased took the lamp to the electrical department, or that it was repaired in that department. In effect, the contention is that, if the lamp was-defective, the defendant had no notice nor knowledge of it. As the case must turn upon this question, the testimony in relation thereto will have to be examined.

It appears from the record that the defendant maintained an electrical department with an electrician in charge who had three assistants, where all the defective electrical apparatus was repaired. It was located about 800 feet from where the deceased was working. It was shown to be a custom among the men to have such ¡repairs made at this department, and that this was the only place where such repairs could be made, as the wire guard which surrounded the globe could not be unlocked and taken off except with the aid of a key, which was possessed only by the electricians. It further appears that, upon the day in question, the deceased was preparing to make some repairs in the interior of the fire box of locomotive No. 89. His helper, Roys, brought the lamp and cord and attached the cord to a nearby drop cord. When he turned the key, it refused to light. He received a shock in attempting to turn it, and he thereupon handed it to the deceased with the suggestion that he have it repaired. An examination of the lamp disclosed that it was defective, in that the insulation around the shank of the key had been broken off. »In response to Roys’ suggestion, the deceased'took the lamp and cord and went away with it, and was gone about 15 minutes. When he returned, the lamp was lighted and the work proceeded. A few minutes later, the deceased, while holding the lamp, received a shock which resulted in his death. Roys testified that he took no notice where the deceased went with the lamp and cord, but assumed that he went to the electrical department. The testimony of the electricians was inconclusive, as only two of them were sworn at the trial, and it appeared that they were away from the shop a portion of the day doing outside work.

We are of the opinion that this testimony justified the trial court in submitting to the jury the question as to whether the deceased took the lamp to the electrical department and had it repaired, and whether it was handed back to him in an unsafe condition. The fact that the lamp would not light when he went away, and when he returned it did light, is very persuasive that some repairs had been made upon it, and the testimony conclusively shows that the only place where it could be repaired was at the electrical department.

As this is the only question in the case, the judgment of the trial court will be affirmed.

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


author: Moore, J.

text:
    GROVE v. MICHIGAN PAPER COMPANY.
    Master and Servant — Personal Injuries — Workmen’s Compensation Act — Industrial Accident Board.
    Upon appeal from findings of the Industrial Accident Board determining that claimant received his injuries as claimed by him from a strain which he received in lifting, where there was evidence tending to support the finding of the board, the judgment must be affirmed. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

    Certiorari to Industrial Accident Board.
    Submitted November 13, 1914.
    (Docket No. 89.)
    Decided March 17, 1915.
    Bert H. Grove presented his claim against the Michigan Paper Company for compensation to the Industrial Accident Board, which granted the award. Contestant and the Fidelity & Casualty Company of New York, its insurer, bring certiorari.
    Affirmed.

      Charles H. Rutile, for appellants.

      Person, Shields & Silsbee, for appellee.
   Moore, J.

This case is brought here by certiorari to the Industrial Accident Board. Mr. Grove claims that while he was in the employ of the Michigan Paper Company he received an accident which entitled him to compensation. By proper proceedings the case found its way to the Industrial Accident Board, which affirmed that part of the award of the committee on arbitration which established liability, but modified the amount of compensation allowed. In its return to the writ of certiorari appears the following:

“The testimony taken on the hearing before the committee on arbitration was imperfectly taken and imperfectly transcribed. The testimony as actually transcribed, with the notes of the reporter showing omissions included, with the exception of qualifying questions being in narrative form, is hereto attached as Exhibit 4.”

A finding of facts is returned, which reads as follows:

“(1) The* claimant, Bert H. Grove, was employed by one C. W. Breding of Plainwell, Mich., in February, 1913, and had worked for him for several months prior thereto as a blacksmith.

“(2) In March, 1913, the applicant, while so employed by said C. W. Breding, in the regular course of his duties shoeing horses, was suddenly jerked by one of the horses, causing a severe pain in the region of the groin. He continued to work for about two weeks, and then went to see Dr. Stuck, of Plainwell. Dr. Stuck gave him treatment and recommended that he see Dr. McNair, of Kalamazoo. He went and saw Dr. McNair on April 5th, rested one day, which was Sunday, and then returned to his regular work of horseshoeing, continuing such work until about July 1, 1913. During the month of July he was on his brother’s farm spending his time in resting and fishing and was feeling well. . The trouble caused by the jerk- from the horse, which appears to have been an aneurysm, had practically disappeared.

“(3) On August 1, 1913, the applicant entered the employ of the Michigan Paper Company at Plainwell as a helper on the beaters at a wage of $2 a day; his duties being the lifting and moving of sacks of alum and sulphite and other material necessary in the manufacture of paper, such sacks varying in weight from 100 to 200 pounds.

“(4) On September 15, 1913, claimant, while loading a truck with the sacks mentioned, sustained the alleged accident, for which compensation is claimed, in the following manner: ‘I had lifted quite a number, but the last two days. I was here the man who worked with me was sick and I had to do the work for two men. I was. loading the truck, and stooped down to get the alum, and pulled one sack like this (motioned), and then I reached down like this (motioned) to pick up another, and I felt this artery give way, * * * and I sat down on the floor.’

“(5) That the accident of September 15, 1913, caused a rupture of the femoral artery in the right leg, which immediately necessitated claimant’s giving up his duties and undergoing an operation which was performed on September 26, 1913, at Kalamazoo, Mich. The condition of the aneurysm at the time of the operation was very serious, being a pulsating tumor about four to six inches in diameter.”

It is the claim of the defendants that the condition of Mr. Grove is due to what happened at the blacksmith shop in February, 1913, and not to what happened September 15, 1913; while it is the claim of Mr. Grove that he had recovered from the strain he received in the blacksmith shop, and that his present condition was due to what happened in September, 1913.

It has already appeared that all the evidence taken before the board is not returned. It also appears there is testimony in the record tending to establish each of these theories. This being the situation disclosed, we do not understand that' we are to weigh these conflicting claims.

In Rayner v. Furniture Company, 180 Mich. 168 (146 N. W. 665), Justice Kuhn, speaking for the court, said:

“There being evidence to support this finding of fact by the terms of the act (part 3, section 12, Act No. 10, Public Acts Extra Session 1912), it becomes conclusive.”

Counsel for appellants argue many interesting questions which we think it unnecessary to pass .upon now.

The judgment of the Industrial Accident Board is affirmed, with costs against appellants.

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


text:
    WOLF v. MEGANTZ.
    1. Evidence — Landlord and Tenant' — Lease — Parol Evidence Rule.
    Where plaintiff leased premises of the defendant under a written contract containing the usual covenants, and on the trial of an action for damages because of the eviction of the tenant the lessor claimed that at the time of executing the lease she informed the plaintiff that an action was pending relating to the possession and control of the premises and that the plaintiff stated that he would take his chances, the evidence was inadmissible and the trial court committed reversible error in admitting the proof offered for the purpose of varying the terms of a written lease.
    2. Damages — Landlord and Tenant — Lease — Measure op Damages.
    As one of the elements of damages for breach of the covenant for quiet enjoyment, the lessee was entitled to recover his expenses for making alterations in the premises that were necessary to fit them for the purpose of a confectionery and tobacco shop, the purpose which the parties contemplated when the contract was entered into.
    3. Same — Covenants op Lease — Quiet Enjoyment.
    The damages recoverable for breach of the lessor’s covenant for quiet enjoyment include not only those which arise out of the difference between the rent and rental value of the property leased, but also the actual and necessary expenses, contemplated by the parties at the time of making the contract, of making the same suitable for the use which the tenant intended. It was erroneous for the trial court to limit the amount of recovery to the expenditure which might have been expressly agreed upon between plaintiff and defendant.
    Error to Wayne; Mandell, J.
    Submitted January 14, 1915.
    (Docket No. 94.)
    Decided March 17, 1915.
    Assumpsit by Elias Wolf against Rose Megantz for breach of the covenants of a lease. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Guy A. Miller, for appellant.

      Edward Pokorny and Charles P. O’Neil, for appellee.
   Bird, J.

The defendant executed and delivered to plaintiff on the 20th day of February, 1913, a written lease of her premises situate at 497 Hastings street, for a term of three years, at a monthly rental of $60. Plaintiff took possession of the premises on March 1st, the date stipulated in the lease, and began improving the interior for his use as a confectionery and tobacco store. After he had completed the alterations and repairs, and purchased fixtures, he was evicted by one Smith, who had purchased the premises from defendant upon a contract, prior to the making of the lease. Plaintiff then brought this suit to recover his damages, counting upon the covenant contained in the lease for the quiet enjoyment thereof.

It is not denied that the lease was made, but it is asserted by the defendant that, at the time the lease was executed, she advised plaintiff of the action to enforce the contract; that she had won in the lower court and hoped she would in this court, and that, after being so advised, he replied that he would take his chances; that this court afterwards held the contract valid and enforceable, and consequently the lease was of no force. Parol proof of this claimed understanding was offered and received against the objection of plaintiff, and he assigns error thereon in this court.

The theory upon which the court admitted the testimony was that it came within the holding of Cleveland Refining Co. v. Dunning, 115 Mich. 238 (73 N. W. 239), wherein it was announced that, when a written instrument was accompanied by a condition precedent to its taking effect, such condition might be shown by parol proof. This rule is not applicable to the case under consideration, for the reasons stated by Mr. Justice Stone in Smith v. Mathis, 174 Mich. 262 (140 N. W. 548), namely, that the rule is not applicable to a written instrument which has once taken effect, neither is it applicable to the contract which the statute of frauds requires to be in writing. The situation here presented appears to be a duplicate of the one presented in Smith v. Mathis, supra, and is ruled by it. The testimony should have been rejected, as its tendency was to vary the terms of a written instrument.

The trial court instructed the jury that, if they •found for the plaintiff, he was entitled to recover:

“First. The difference between the rent fixed in the lease, which is $60 a month, and the rental value of the premises during the time from the 15th day of November, 1913, to the 1st day of March, 1916.

“Second. Whatever expenditures were reasonably necessary to prepare the- premises leased for the use which the parties contemplated they should be put to.

“Third. Any depreciation in value to fixtures which were put upon the premises by plaintiff, and which were reasonably necessary in connection with the use which the parties contemplated the premises should be put to.”

No criticism is offered to this statement of the elements of damage recoverable, but exception is taken to some statements of the court which followed, in which it is claimed the jury were given to understand that damages were recoverable only for those expenditures which were the result of an express agreement between the parties. The statement of the rule as laid down in Hopkins v. Sanford, 38 Mich. 611, is contended for by the plaintiff, and is the proper one. It follows:

“In cases of breach of contract, the damages ‘should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course' of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.’ ”

This rule, as applied to a like state of facts, is well stated in Friedland v. Myers, 139 N. Y. 432 (34 N. E. 1055):

“But other damages may also be recovered, provided they are proximate in effect, and are not speculative or uncertain in character, and were fairly within the contemplation of the parties when the lease was made, or might have been foreseen as a consequence of a breach of its covenants. If the property is leased for a special purpose, which is known to the lessor, and possession is refused because of a prior lease to another party, or of other fault of the lessor, the lessee may recover as damages his actual and necessary expenses incurred in preparing for the occupation of the property in the manner contemplated by the parties.”

Inasmuch as the defendant understood, at the time the lease was made, the use which the plaintiff intended to make of the premises, and was aware that the alterations and repairs were progressing in pursuance of that understanding, we think this rule is applicable.

The judgment of the trial court is reversed, and a new trial ordered.

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


text:
    STURGIS v. MT. CLEMENS SUGAR CO.
    1. Jury — Panel — Challenge to the Array — Sherief — Act oe Deputy.
    Where it is required by statute that the sheriff draw the names of the jurors from the box, the act of the deputy in performing the duty so imposed was valid and was not sufficient ground for sustaining a challenge to the array, although a local act regulating the practice in the county in question required the sheriff to draw the names from the box.
    2. Negligence — Explosions—Inspection oe Boilers — Evidence.
    Plaintiff’s evidence tending to show that the defendant had omitted to inspect or test .its boilers used in a sugar factory before the commencement of the fall campaign, that the boiler maker who had inspected and repaired one of the boilers advised the engineer of the defendant that one of the plates was defective and apparently in a dangerous condition, that a hydrostatic test was made but that insufficient pressure was applied to discover whether the boiler would carry the ordinary pressure which was employed in operating the factory; held, sufficient to entitle plaintiff to the judgment of the jury upon the issue of defendant's negligence.
    3. Same — New Trial — Weight oe Evidence — Verdict.
    Upon appeal from the denial of a motion for a new trial, evidence considered and held, to sustain the verdict against the defendant.
    4. Same- — Motions—Newly Discovered Evidence.
    Although experts in the employ of the defendants, who had given testimony at the trial that they were unable to state the cause, made a careful examination of the boilers after the trial and arrived at an opinion as to the cause of the explosion, the trial court did not err in denying the motion for a new trial on the theory that defendant in the exercise of ordinary diligence might have secured the testimony of such experts for the first trial.
    Error to Macomb; Tucker, J.
    Submitted January 27, 1915.
    (Docket No. 48.)
    Decided March 17, 1915.

      Case by Maud Sturgis, as administratrix of the estate of Carl I. Sturgis, deceased, against the Mt. Clemens Sugar Company for the unlawful killing of the plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      S. B. Spier, W. F. Sawn, and Fred L. Vandeveer, for appellee.
   Bird, J.

Plaintiff’s husband was' a servant of the Carey Company, which had an agreement with defendant to make certain repairs on its boilers. While he was engaged in covering boiler No. 3 with asbestos, boiler No. 2 “let go” and injured and burned him so badly that he lived only six hours thereafter. The negligence complained of, and the one upon which the recovery was had, was the failure of defendant to properly and seasonably inspect and test its boilers before commencing its campaign of sugar making in the fall of 1911. Judgment having passed for the plaintiff, the defendant assigns a large number of errors, only a few of which, however, need be considered, by reason of the fact that substantially the same errors were raised and disposed of in Eberts against the same defendant. 182 Mich. 449 (148 N. W. 810).

Defendant’s demurrer was overruled, as well as its challenge of the array. What Mr. Justice Stone said upon these questions in the Eberts Case will suffice in this case, save in one particular. The point is made in connection with the challenge of the array that the deputy sheriff acted in drawing the jury, whereas the. statute provides that it shall be done by the sheriff. Act No. 387, § 9, Local Acts 1895. In Yale State Bank v. Fletcher, 173 Mich. 585 (139 N. W. 1028), a kindred question was raised as to whether a deputy county clerk could act for his superior in certain matters. What was there said, we think, answers defendant’s contention here:

“The office of deputy county clerk is one created by statute (1 Comp. Laws, § 2572) (1 How. Stat. [2d Ed.] § 1217) and, unless his powers are limited by the statute, he may perform any act which his principal may perform (29 Cyc. p. 1395). The matter was referred for assessment to the official and not to the individual, and, if it were a proper matter to refer to the clerk for assessment, the deputy had the authority to act for his principal. Dorr v. Clark, 7 Mich. 310; Andres v. Circuit Judge, 77 Mich. 85 [43 N. W. 857, 6 L. R. A. 238].”

Counsel argues that the state of the evidence was such that the trial court should have directed a verdict in defendant’s behalf. This is based upon the claimed failure of plaintiff to establish the negligence of the defendant. It may be said in brief that the declaration charged the defendant with negligence in failing to inspect and test its boilers before beginning its campaign in October, 1911. In support of this allegation it was shown that in October, 1911, one George Kopoydlowski, a boiler maker, inspected and made certain repairs on the boilers, and, in making a report thereon, advised the chief engineer of defendant that the rear stay sheet in boiler No. 2 was out of alignment, and was warped or corrugated, and that some of the stay bolts “did not look good to him.” Following this a hydrostatic test was applied to the boilers, but only to the extent of 90 pounds’ pressure. It was further shown that the 90 pounds’ test was inadequate, in view of the fact that the boilers carried a uniform pressure of 105 pounds when in operation. Expert testimony disclosed that, to make such a test effective, a boiler carrying a pressure of 105 pounds should be tested up to 130 or 155 pounds. It is argued by plaintiff that, had a proper and seasonable inspection been made with a proper hydrostatic test, it would have disclosed the defect, and thereby averted the accident. Considerable expert testimony was offered as to the cause of the explosion, but we think it is unnecessary to restate it here. The state of the testimony clearly entitled the plaintiff to go to the jury on the question of the defendant’s negligence.

A new trial was applied for, and the principal grounds upon which it was asked were that a verdict should have been directed for defendant, because no negligence was shown, and because the verdict was contrary to and not supported by the evidence. This motion was denied, and we think rightly so. The defendant’s negligence was a clean cut issue of fact. That question was submitted to the jury by the trial court in a very lucid instruction on the sole grounds of a failure to seasonably and properly inspect and test the boilers, and they were instructed by the court that, if the failure of the boilers was due to any other cause than the ones mentioned, no recovery could be had. We do not share defendant’s views that the verdict was contrary to and not supported by the evidence. The testimony was such that, if believed by the jury, they might very well have reached the conclusion which they did.

A second motion for a new trial was made, based upon the sworn conclusions of defendant’s experts after they testified in the case. Defendant’s experts were unable, at the time of the trial, to assign any cause for the explosion. Later, another and more exhaustive examination was made by them of the wrecked boiler, were unable, at the time of the trial, to assign any cause of its “letting go.” It was to get this testimony into the case that the second motion was made. It was urged on the ground of newly discovered evidence. The trial court, in denying this motion, said, in substance, that the wrecked boiler had been in defendant’s possession since the accident, and that it did not appear but that all that was discovered upon the second examination might have been discovered by the exercise of due diligence on the first examination, and that the showing was not such as to bring it within the rule of newly discovered evidence. These reasons appeal to us as valid, and-we concur in the denial of the motion.

For the reasons stated, it will be unnecessary to consider the other errors assigned. The judgment of the trial court is affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.


text:
    JAMES v. SHORES.
    Damages — Malicious Prosecution — Expenses of Defending — Elements of Damages.
    Damages recoverable in an action for slander and malicious prosecution, based upon expenses and costs incurred by tbe plaintiff in and about bis defense of criminal proceedings, wbicb be alleged defendant bad instituted, must be definite and certain, and unless supported by evidence of tbe amounts or items sucb expenses cannot be included in tbe verdict of tbe jury.-
    Error to Barry; Smith, J.
    Submitted January 7, 1915.
    (Docket No. 22.)
    Decided March 17, 1915.
    Case by Roy James, by next friend, against Marion Shores for slander and malicious prosecution. Judgment for plaintiff. Defendant brings error.
    Reversed.

      C. S. Palmerton and Philip T. Colgrove, for appellant.

      A. E. Kidder and Thomas Sullivan, for appellee.
   Moore, J.

This writ of error is sued out to review a judgment in an action of trespass on the case commenced by Roy James, by his next friend, against defendant, wherein plaintiff recovered a judgment against defendant of $575.

Defendant was the owner of a farm, which he had rented to the plaintiff’s father. At the termination of the tenancy, the elder James and family, including the plaintiff and his brother, employed upon the farm, moved away. After the tenants, including the plaintiff and his brother, left the farm, defendant claims he missed several articles of personal property which had been on the farm, and made a criminal complaint against plaintiff and his brother. They were arrested, an examination was had, and they were bound over to the circuit court. No information was filed. The plaintiff and his brother were discharged upon the recommendation of the prosecuting attorney. The plaintiff also claimed that the defendant stated certain things which were untrue, derogatory to his character and slanderous in their nature, and commenced this action, alleging malicious prosecution, false imprisonment, and slander.

The errors assigned relate to the admissibility of testimony, the conduct of the court, the charge of the court to the jury, and the refusal of the court to grant a new trial upon the motion of the defendant.

The case was a hotly contested one, and several groups of assignments of error are argued in the briefs of counsel, and were argued at length in the oral arguments made in this court. Without discussing the various groups of assignments of error, except one, we may say of them we do not think they are well taken.

Error is assigned upon that portion of the charge reading as follows:

_ “In this case, if you find for the plaintiff, you should give him such damages as will compensate him for his expenses and trouble in carrying on the suit and disproving the alleged slanderous words, and also such a just measure of compensation for injury to his feelings, in view of all the circumstances surrounding the case, as you think him entitled to. * * * Mr. Colgrove has called my attention to one or two matters, and one of them I will speak to you about. I said to you, you should give the plaintiff — if you find for the plaintiff — you should give the plaintiff such damages as shall compensate him for the wrong and injury done to him, and these depend upon the circumstances of each particular case. And in this case, if you find for the plaintiff, you should give him such damages as will compensate him for his expenses and trouble in carrying on the suit and disproving the alleged slanderous words. That would refer to the suit in justice court. So far as this suit is concerned, he recovers certain costs and damages if he recovers a verdict, but it doesn’t apply — I don’t think it should apply to his expenses in carrying on this suit, but should apply to the expenses he was put to, and the trouble he was put to in disposing of that criminal charge that Mr. Shores lodged against him.”

Defendant’s counsel say there was no evidence that plaintiff paid out anything, or made any effort to clear his name, or had any witnesses subpoenaed, or made any showing in justice’s court; and for this reason they allege it was error for the court to charge that he was entitled to his expenses and trouble in carrying on the suit in justice’s court.

Counsel for appellee reply: There might be some force to this argument, were it not for the fact that the record does show that plaintiff was represented at the examination by an attorney. That they must have made at least two trips to Hastings, one following arrest, and one to attend examination. That two days after the arrest, and before the examination, they took witnesses and went to the Shores farm, five miles distant from their home, for the purpose of finding the very property they were accused of stealing, so as to be ready to meet the charge defendant had brought against them if the same should come on for trial in the circuit court.

Counsel does not call attention to how much time was spent by the attorney or the value of his services, or how many witnesses there were, how far they traveled, or how much time was spent by them. Upon the oral argument he was requested to point out in the record where this proof was to be found, and frankly admitted he could not do so, but argiied that nevertheless the jurors themselves might make an estimate. A careful examination of the record has not disclosed to us any sufficient data to justify a verdict for any definite sum for costs and expenses of the proceedings in justice’s court. It is not surprising that in the hurry and bustle of a trial the presiding judge should overlook the absence of such testimony.

For the reasons stated, we are constrained to reverse the case and grant a new trial.

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


text:
    KNOWLSON v. FRIAR.
    1. Appeal and Error — Findings oe Fact — Trial—Non-Jurt Case.
    Upon appeal from findings and judgment of the circuit court, sitting without a jury, under conflicting testimony the findings of fact made by the court will be disturbed only if they are erroneous or indicate that the court was influenced by improper motives or misunderstood the evidence.
    2. Contracts — Actions—Building and Construction Contract— Trusts — Principal and Surety.
    Where plaintiff, who was one of the subordinate contractors in constructing an apartment house, secured an order from the principal contractor upon the disbursing agent of the parties, who declined to accept the order, although plaintiff claimed that he assured plaintiff that the amount would be paid, and where the trial court found that in fact no such assurance was made and that the agent had disbursed all funds in his hands entrusted to him by the owner up to the entire contract price, the agent, or trustee, was discharged from any liability upon evidence tending to support the finding of the circuit court and establishing that he had paid out the agreed consideration in the contract and had no funds in his hands with which to pay plaintiff’s claim.
    Error to Kent; Perkins, J.
    Submitted January 7, 1915.
    (Docket No. 47.)
    Decided March 17, 1915.
    Assumpsit in justice’s court by Abram Knowlson against James Friar for money due plaintiff. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Peter J. Danhof, for appellant.

      M. L. Dunham, H. M. Dunham, and J. M. Dunham, for appellee.
   Moore, J.

This case was commenced in justice’s court against defendant Friar and one Martin Stephan.

“The plaintiff declares orally upon the common counts in assumpsit, especially upon agreement for money and materials to his damages $300 or under, the defendant pleads orally the general issue.”

The case was discontinued as to defendant Stephan. From a judgment in favor of the plaintiff, the defendant Friar appealed the case to the circuit court. From a judgment in favor of the defendant, the case is brought here by writ of error.

The case was tried in the circuit court by the judge without a jury. Findings of fact and law were made as follows:

“(1) On March 5, 1906, one Martin Stephan entered into a written contract with one John Leff to build a house for said Leff for the sum of $3,800, and said contract provided that the defendant, James Friar, would handle the moneys and pay all bills, and defendant Friar did not sign this contract.

“ (2) I also find that, for the protection of the said John Leff, Martin Stephan gave a bond with defendant as surety to protect the said John Leff from any liens, levies, and attachments for labor and material going into the construction of said house and for the faithful performance of such work by the said Martin Stephan.

“ (3) I further find that during the progress of this work, when the said Martin Stephan required money to meet his bills, he would inform defendant Friar thereof, who would obtain such money from John Leff, pay it to Martin Stephan, who would pay such bills, taking receipts therefor, and turn them over to defendant Friar; these receipts showing the amounts so paid by Stephan and the purposes for which such payments were made.

“(4) I find that, after the making of the contract between Stephan and Leff, Martin Stephan subcontracted the mason work for said building to Pembrook & Handlin, for $350, and Pembrook & Handlin, desiring to obtain material therefor from the plaintiff, Abram B. Knowlson, and also $100 in cash gave to said Knowlson an order upon said Martin Stephan reading as follows:

‘“Grand Rapids, Mioh., 4/26/06.
‘“Martin Stephan,
“‘468 Lincoln St.,
“ ‘City.
“‘Pay A. B. Knowlson or order, $350.00 as follows: $200.00 on completion of wall and balance on completion of our mason contract.
[Signed] “ ‘Pembrook & Handlin.’

“This order was accepted by Martin Stephan in writing across its face as follows: ‘Accepted, Martin Stephan, Contractor.’ This order was written in plaintiff’s office and by himself, and, after the acceptance of this order by said Stephan, plaintiff took it to defendant Friar and asked him to O. K. it, or accept it. Defendant refused to accept said order and it was taken away by plaintiff. The materials and $100 cash were furnished Pembrook & Handlin by plaintiff after such visit, the $100 on the same day.

“(5) I further find that on or about May 15, 1906, Martin Stephan took to and deposited with defendant $200 for plaintiff and gave plaintiff an order on Friar for that amount, which plaintiff presented to Friar and received the $200 and was applied by plaintiff upon the $350 indebtedness to him from Pembrook & Handlin, and the accepted order of Martin Stephan of date April 26, 1906.

“(6) And I also find that defendant Friar had no knowledge of the purpose of this deposit and payment by Stephan or of Knowlson’s application of the same, or that it had any relation to the contract between Leff and Stephan.

“ (7) And I further find that, during the construction of the building by Stephan for Leff, defendant Friar paid in full $3,800 for labor and material going into the construction of said building upon orders from said Stephan, and that upon the completion of said building there were still some outstanding and unpaid bills for labor and material going into the construction of said building, including the balance of $150 due plaintiff from Pembrook & Handlin.

“(8) I find that thereafter Pembrook & Handlin filed a lien on this building for $350, and that said lien failed' because it was not filed within the statutory period.

“(9) I further find that thereafter Knowlson commenced an action in justice’s court against this defendant, James Friar, and Martin Stephan jointly, on the order in question to recover the unpaid $150 thereon, and that later the case was discontinued as to Stephan and continued as against defendant alone, and which cause was appealed from justice’s to this court.

“(10) I also find as a question of fact that at the time plaintiff presented the $350 order, accepted by Martin Stephan, he requested defendant Friar to accept the same, and that defendant refused to accept it, never did accept it, and never promised to pay the same or any part of it, and that plaintiff took said order away with him and has ever since had it in his possession and under his control.

“(11) I further find that the claim of $150 now sought by plaintiff to be recovered from defendant Friar was the primary obligation of Pembrook & Handlin, that by its acceptance by Martin Stephan it became a primary obligation against Pembrook & Handlin and Martin Stephan, and that defendant Friar at no time promised to pay the same in writing.

“(12) I further find as a matter of fact that James Friar, the defendant, was the disbursing agent of Leff to the extent of $3,800, and that he was to disburse that amount from time to time as required by Martin Stephan, and that from time to 'time defendant Friar obtained different amounts to meet the orders and requirements of the said Martin Stephan, and that at no time was the said $3,800, or any great part of it, in the hands of the said defendant, James Friar, for disbursement; that the modus operand! concerning such $3,800 was that when the contractor, Martin Stephan, desired money, he would inform defendant Friar as to the amount he wanted and which sum would be obtained from time to time by defendant Friar from the said John Leff and paid over to said Stephan or upon his order, and that the said James Friar disbursed the entire sum of $3,800, being the full contract price and paying for labor and material upon this building and upon orders of the said Martin Stephan.

“Conclusion of Law.

“From the foregoing facts, I conclude that the plaintiff failed to establish by a preponderance of the evidence a primary and independent contract between ■plaintiff and defendant'for the payment of said $150 or any part thereof and to recover which this action was brought, and for that reason plaintiff is not entitled to recover, and a judgment should be entered for the defendant of no cause of action, with costs to be taxed.”

The first assignments of error relate to the admission of testimony. Without going into detail, it may be said that the testimony related to what was said and done by participants in the transaction who were also witnesses at the trial. We think the testimony competent.

One of the most important questions is: What occurred when the order of Pembrook & Handlin, which was accepted by Mr. Stephan, was presented to Mr. Friar? It is agreed defendant declined to accept the order in writing, but it is claimed by plaintiff that he said the order was good, that it was unnecessary for him to O. K. it, that he would pay it. There is testimony supporting this claim. ■ This claim is denied by defendant. He insists he refused to accept or pay it, and there is other testimony than his own supporting his contention.

It has long been the law in this State that a finding of fact by the court sitting without a jury is equivalent to a verdict, and will be disturbed only when it is clearly erroneous, or shows that the judge was influenced by improper motives or misunderstood the evidence. See the many cases cited in the Michigan Digest Annotated} vol. 1, p. 308.

It has already appeared' that the testimony was in sharp conflict, and it may be significant .that the order was not accepted when it would have been the easy and natural thing to do if Mr. Friar agreed to pay it. The finding of the circuit judge upon this question must control.

We cannot present the remaining question calling for consideration better than to quote from the brief of counsel:

“Defendant’s liability was fixed, primarily, when he signed the bond and contract, and accepted the trust and entered upon its performance. He did agree not only in writing to pay plaintiff’s order for the mason work on this job, but for all other bills for labor and materials. He further agreed in writing that these bills would not be paid by him until they were O. K.’d by Stephan. When the latter accepted the order in writing, defendant could not legally neglect or refuse to pay it. He could not deny liability by refusing to O. K. it, as is claimed by him in his testimony. * * *

“The defendant by the terms of the contract was a disbursing agent and banker, and accepting the trust imposed upon him, the agreement on his part to pay all bills for labor and materials furnished and used upon said building was an original and primary obligation and not collateral. Defendant was the disbursing agent or banker for the parties. The money by express language was put in his hands impressed with a trust, viz.: It was in his hands to pay bills. This made it a primary and original obligation on his part.

“Plaintiff contends that the signing of the bond with the contract attached and to which it expressly related and referred, together with defendant’s acceptance of the trust therein created and entering upon the performance of it, made the defendant primarily liable to pay the bills for labor and materials. These bills became due when defendant had notice that they were approved and accepted by Stephan. After such notice of approval and acceptance of bills by Stephan, defendant could not refuse or neglect to pay such bills and orders.”

This contention makes it necessary to consult the contract and bond. For some reason the contract is not contained in the record. There is only an excerpt from it as follows:

‘ “Specifications of work to be done and materials to be furnished in the erection and construction of a four-family tenement flat to be built at No. 115 Scribner street, Grand Rapids, Michigan, for Mr. John Leff according to plans and specifications.

“The contractor is to provide all labor and materials of every description necessary for the erection and completion of above mentioned work according to drawings and as herein specified, all work to be done in a neat, substantial, workmanlike manner. * * *

“Contractor will be obliged to show all bills and receipts for labor and material paid.

■ “The contractor hereby agrees to have building completed in four months after signing this agreement, if not completed the said contractor forfeits five dollars per day.

“James Friar will handle all moneys and pay all bills.

[Signed] “Martin Stephan, Contractor.

“J. Leff.”

It will be noticed that the amount which was to be paid Mr. Stephan for the erection of the building is not stated in what we have quoted, but it is agreed that the amonnt was $3,800. It also appears that Mr. Friar did not sign this contract. Suppose it be assumed that Mr. Friar was trustee in handling the funds. Must it not also be assumed that, when Mr. Leff paid the full' consideration he was to pay under the contract, he would be discharged of further liability? If this is true, would it not follow as to his trustee? The court has found that the full consideration of the contract, $3,800, was paid. This finding is borne out by the record.

But it is said the contract and the bond should be read together, and when so read the liability is established. The bond is as follows:

“Know all men by these presents, that we, Martin Stephan, as principal, and James Friar, as surety, both of the city of Grand Rapids, county of Kent, State of Michigan, are held and firmly bound unto John Leff of the same place, in the sum of thirty-eight hundred dollars ($3,800.00) lawful money of the United States of America to be paid to the said John Leff or to his certain attorney, heirs, executors, administrators or assigns to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, and each and every one of them, firmly by these presents.

“Sealed with our seal, dated the 5th day of March, one thousand nine hundred and six.

“The condition of this obligation is such, that if the above-bound Martin Stephan, his executors, administrators, or assigns, shall in all things stand to and abide by and well and truly keep and perform the covenants, conditions and agreements mentioned and contained in an instrument or agreement this day entered into between himself, and the said John Leff on his, the said Martin Stephan’s part to be kept and performed at the time and in the manner and form therein specified, and to the satisfaction of the said John Leff, for the construction of a certain building on the property known as 115 Scribner street in the city of Grand Rapids, Michigan, copy of said agreement is hereunto attached, and also pay for all labor performed and material used in the construction of said building, and preserve the said John Leff free and harmless from any liens or levies for or on account of such labor performed or material furnished. Then the above obligation shall be void; otherwise to remain in full force and effect.

“Signed, sealed, and delivered in presence of:

“Martin Stephan. [L. S.]

“James Friar. [L. S.]”

It will be noticed that the only parties to the bond are Mr. Leff, Mr. Stephan, and Mr. Friar. We cannot from any aspect of.the case reach the conclusion that the liability of Mr. Friar to the plaintiff has been established.

Judgment is affirmed.

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


text:
    HAGER v. SCHLIESS.
    Partnership — Assumed or Fictitious Name — Statutes—Plea to Bill op Complaint.
    The verified plea to complainant’s bill to foreclose a mechanic’s lien setting up as an alleged defense that complainant was engaged in conducting his business under an assumed or fictitious name in violation of Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), as the Hager Lumber & Coal Company, was properly overruled by the trial court upon the ground that it was insufficient in law, plaintiff’s name being the same as that adopted in the title of the company and no fictitious or misleading name appearing in the title.
    Appeal from Eaton; Smith, J.
    Submitted January 19, 1915.
    (Docket No. 135.)
    Decided March 17, 1915.
    Bill by Alton J.- Hager against Frank C. Schliess and others to foreclose a mechanic’s lien. Defendants filed a plea to the bill. Plaintiff entered a replication, which the court struck from the files after hearing the testimony in support of the plea which the trial court held was insufficient in law. Defendants elected to abide by their plea and appeal.
    Affirmed.

      Clapperton, Owen & Hatten (Elmer N. Peters, of counsel), for complainant.

      Russell R. MePeeh, for defendants.
   Moore, J.

Some phases of this litigation were recently before this court. A reading of the opinion, found in 183 Mich. 610 (149 N. W. 1058), will make a long statement unnecessary here.

The case was argued at the January term of £he court. Counsel for appellants says — we quote from the brief:

“As we view this case there is only one question involved, viz., whether the established rules and precedents of this court relating to the practice upon and disposition of pleas in chancery are to be sustained or are to be reversed, and we shall accordingly begin our argument with a discussion of this topic.”

We cannot agree with the counsel that this is the question involved. His appeal was reinstated because he contended and the record showed that defendants had abandoned their right to answer in said cause, and had elected to abide by their, plea. The trial court found that the truth of the plea was established, but he was of the opinion that, though established, it is not sufficient in law to constitute a defense. We take it the question is, Vfas he right in so finding? This court has recently had occasion to construe Act No. 101, Pub. Acts 1907, entitled “An act to regulate the carrying on of business under an assumed or fictitious name.” The cases are Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697); Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422); Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418); Zemon v. Trim, 181 Mich. 130 (147 N. W. 540); and Cross v. Leonard, 181 Mich. 24 (147 N. W. 540). These cases are so recent and so accessible that we shall content ourselves with saying that they justify the conclusion that defendant’s plea, though true, was not a defense.

The decree is affirmed.

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