text:
    THOMAS v. TOWNSHIP OF BYRON.
    1. Trial — Conduct of Attorney — Prejudicial .Misconduct -— Examination by Physician — Privilege.
    Persistent attempts by defendant’s attorney to ask of a physician questions calling for information of a privileged nature, under repeated objection by plaintiff’s attorney, and numerous adverse rulings of the court, for the sole purpose and with the obvious intent of prejudicing the jury, was reversible error.
    2. Evidence — Privileged Information — Physicians and Surgeons — Estates of Decedents — Autopsy.
    Testimony of a physician as to conditions discovered by him in an autopsy held against the consent of the patient’s husband after he had acted as the attending physician of decedent in her lifetime, and had obtained privileged information, as a result of which situation he was enabled to make the examination after death, was improperly received over the objection of attorney for the husband, as administrator, in a personal injury action.
    3. Same — Impeachment — Immaterial or Collateral Issue — Hearsay — Admissions—Executors and Administrators.
    Admissions of the administrator concerning the result of such autopsy and the cause of his wife’s death, being hearsay, since he could not bind the estate, and because he could not be impeached on immaterial and collateral matters, were improperly admitted in evidence.

      Error to Kent; McDonald, J.
    Submitted November 22, 1911.
    (Docket No. 165.)
    Decided March 12, 1912.
    Case by Charles R. Thomas as administrator of the estate of Alta Thomas, deceased, against the township of Byron, for the wrongful injury and death of decedent. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Geo. JSJ. & M. A. Nichols, for appellant.

      Dunham & Phelps, for appellee.
   McAlvay, J.

This action was brought by plaintiff, as administrator of the estate of his deceased wife, to recover damages arising from injuries which caused her death, which injuries were received by her while riding along a highway in said township, resulting from the negligence of defendant in not maintaining such highway in reasonable repair and in condition reasonably safe and fit for travel. The result of a trial was a verdict by the jury of no cause of action, upon which a judgment was entered. Plaintiff has removed the case to this court for review upon writ of error.

The errors assigned which are presented and discussed before this court by appellant which are necessary to be considered are: (a) Relative to the conduct of counsel for defendant in persistently repeating improper questions to the attending physician after they had been passed upon and excluded by the court, (b) Relative to the admission and rejection of evidence.

The facts, as claimed by plaintiff, are that on the 25th day of November, 1907, he was driving to Byron Center, in company with his wife, to do some trading, with a single horse and buggy along a highway in this township, which had been used for public travel for many years; that part of this road runs through a swamp and had been constructed as a corduroy of logs covered with earth, which at this time was about two feet in depth; that this part of the road had been cut up by traffic over it earlier, leaving ruts and holes in the earth above the logs, one of which was of considerable size and quite deep. On the trip to town he avoided this hole, except with one wheel, by driving around it. On the return, when they came near where the hole was located, it was dark, and plaintiff, driving carefully at a walk, could not tell when he reached this hole because it was too dark. Suddenly the buggy plunged down and stopped, then started again, going over something which threw his wife forward over the wheel. .He grabbed her, and drew her back into the buggy, stopping the horse as soon as he could within a few feet. He got out to ascertain if the buggy was broken. He lighted matches and looked into the hole. His wife became sick and vomited on the way home. When they arrived home she went to bed and complained of her side. There was a mark across her side about five inches long. He rubbed some liniment on which eased the pain. She continued to complain of this pain until her death, which occurred April 3, 1908.

A physician was called some time after the accident, who visited her almost daily, and sometimes twice a day, until the child was born on December 31st. On the day after the birth of the child she had a discharge of pus of very bad odor through the rectum, and later several similar discharges. She was feverish with chills, grew thin, and always complained of her side. There appeared a hard swelling on her side at the place of the injury, which softened after the discharges. Before the injury she had always been a healthy, vigorous person. She was up and around from time to time until the latter part of March, when she took to her bed and died April 3d. The undertaker testified that in preparing the body for burial he found a swelling on her side from which he removed two or three pints of pus.

On the part of the defense it was claimed that no such hole existed in this road at the time; that deceased was in an anaemic condition at the time of her claimed injury: that her death was caused by pernicious anaemia, and not by the injury claimed.

The physician who was called to attend the deceased after the accident, and until the time of her death, was called as a witness by the defendant. He testified that he knew deceased and attended her during her last sickness. He stated the different times he so visited her, and that during that time he diagnosed her case and determined in his own mind what was the matter with her.

“Q. I will ask you what it was? (Objected to by plaintiff’s counsel as incompetent.)
“The Court: The objection is sustained. * * *
“Q. How did you examine her ? (Same objection.)
“The Court: The objection is sustained.
“Q. What did you do by way of examination ? (Same objection.)
The Court: The same ruling. * * *
“Q. What were you called there for ?
“Mr. Nichols (Counsel for plaintiff): I submit that counsel ought not to persist in that line of interrogation, may it please your honor, knowing as he does just as well as the court, and all the rest of us, that it is wholly incompetent.
“Mr. Phelps (Counsel for defendant): Well, I have a perfect right to ask the question, and if you want to object, you have a right to.
Mr. Nichols: It is objected to, that is sure.
“ The Court: The objection is sustained. * * *
“Q. Before this woman died, what did you diagnose her case to be ?
“Mr. Nichols: That is objected to as being incompetent.
The Court: The objection is sustained. * * *
“Q. During the time you were attending Mrs. Thomas, and before her death, did you see her abdomen ?
“Mr. Nichols: That is objected to as incompetent, irrelevant, and immaterial.
The Court: The objection is sustained.
“Mr. Phelps: Well, now, if your honor please, I don’t wish to insist, but I wish to follow that question. If he says he saw it, if he answers that he saw it, I wish to follow it by the question as to whether or not there was any swelling or any tumefaction. Now that question would undoubtedly come under the statute if they are a mind to take advantage of it, and if they take advantage of it, we are entitled to the advantage that we may take of it before the jury.
“Mr. Niehols: I take an exception to that kind of a performance in court.
The Court: I have ruled on it, and I have ruled the matter out, and you may proceed with the examination.
“Mr. Phelps: Well, our court bears me out.
“The Court: You have got your objection and your exception is taken. Proceed. (Exception by Mr. Phelps.)
“Q. I will ask you this question, Doctor: During any of the times that you attended Mrs. Thomas from the 13th of December, before the birth of the child, down to the time of her death, did you ever discover any black and blue marks on her side, or any discoloration, or any tumefaction or anything here upon the left side to indicate that there was a pus sac inside ?
“Mr Nichols: I object to that as incompetent and take an exception to counsel asking the question. He knows better.
“The Court: The objection is sustained.
“Mr. Phelps: I have a right to ask the question.
“Mr. Niehols: You have no right to ask these questions.
“The Court: Go on, Mr. Phelps, proceed.”

Prom the foregoing quotations from the record it appears from his own statements that counsel for defendant understood that the questions he repeatedly asked were not proper, and that, if objected to, would not be admitted, yet he continued persistently to repeat his questions, and the court was obliged many times to rule upon the same proposition. The conduct of counsel cannot be approved, and his intimation that he had a right to continue repeating these questions during his pleasure indicates a deliberate intention to get before the jury incompetent testimony. This court has repeatedly held that such conduct will not be tolerated. In an early case this court in effect said that when, upon an offer of evidence, once a distinct ruling is obtained, other offers covered by such ruling must not be made. Scripps v. Reilly, 38 Mich., at page 14. Later this case was followed, the court holding that counsel should not offer testimony in the presence of the jury which they know is incompetent. Phillips v. Benevolent Society, 120 Mich. 142 (79 N. W. 1). In a later case the court said:

“ To the rulings of' the court the attorney for the defendant seemed to pay no attention, as the following instance will illustrate: Upon the cross-examination of Mrs. Whitman the same question was repeated to her three times, notwithstanding the court each time ruled the question as incompetent, and the ruling was correct. The sole purpose of the question was to prejudice the jury. A severe reprimand, if nothing more severe, should have been administered.” Atherton v. Defreeze, 129 Mich. 865 (88 N. W. 886).

This court has never departed from this rule. It is a general rule applicable in every case. It applies not only to privileged communications excluded by the statute in question, but to all testimony persistently offered after the trial court has squarely and clearly ruled upon it as inadmissible. The court in the Scripps Case, supra, has clearly and logically stated the principle upon which this rule is founded. In a case where a physician has been allowed to testify as to the communications privileged by the statute, Mr. Justice Cooley, speaking for the court, said:

“This evidence ought not to be passed over without remark. It is surprising evidence for many reasons. One of these is that the physician had no business to give it. (The statute is cited and quoted). Every reputable physician must know of the existence of this statute; and he must know from its very terms, as well as from the obvious reasons underlying it, that it is not at his option to disclose professional secrets. A rule is prescribed which he is not to be ‘ allowed ’ to violate; a privilege is guarded which does not belong to him, but to his patient, and which continues indefinitely, and can be waived by no one but the patient himself.” Storrs v. Scougale, 48 Mich. 387 (12 N. W. 502), and cases cited.

The conduct of counsel for defendant, as herein presented, amounted to prejudicial error committed upon the trial.

On his examination the plaintiff, administrator, testified that he was not present at any autopsy upon the body of deceased, and that he refused to give his consent to have Dr. Peppier (the attending physician) perform it. The doctor, who is the same one whose testimony defendant so persistently sought to get into the case under circumstances heretofore discussed in this opinion, performed the autopsy, and, while upon the stand as a witness for defendant, testified that plaintiff, before that time, had stated that deceased had received an injury in an accident, and he knew what plaintiff claimed before he made the autopsy, and stated plaintiff was not present at the time. He was then asked the following question:

“Q. "Will you state, Doctor, what you found in your post mortem ?
“Mr. Nichols: Objected to as incompetent, immaterial, and irrelevant.
“The Court: The objection is overruled. (To which ruling plaintiff duly excepted.)
“Mr. Nichols: As representing the estate, I submit that a post mortem under such conditions is incompetent and immaterial. (The objection was overruled, and plaintiff excepted.)”

This doctor then proceeded to give in minute detail what conditions he found as the result of the autopsy. A question as to what, before her death, he had diagnosed her case to be was excluded upon objection by plaintiff, but he was allowed to testify, over a like objection with an exception, what, when he had finished the autopsy, his conclusion was as to the cause of death of this woman.

Upon the part of the plaintiff it is contended that, on this record, where neither deceased nor the representative of her estate had waived the statutory privilege, it was error to permit the physician who attended her, from the time of her injury to her death, to testify to the results of an autopsy, and his conclusions therefrom as to the cause of her death. It is a question of first impression before this court, and one upon which the authorities give no great assistance. There is no dispute but that the relation of physician and patient existed during the lifetime of plaintiff’s decedent, or that all communications and knowledge which are within the inhibition of our statute received by this physician during her lifetime were privileged and so continue, there having been no waiver; but it is claimed that the death of the plaintiff’s wife made this testimony competent. From the examination of this witness we conclude, by the questions asked, the answers to which were excluded as privileged, that he had during the lifetime of the patient made such an examination of her person, and received such information, as was necessary to diagnose her case and prescribe for her, and also that he had disclosed to defendant’s attorney such facts. We must conclude from the record that on account of this relation, which existed between the witness and deceased, it was possible for him to proceed within a few hours after her death to hold an autopsy.

No case is cited by counsel, nor have we been able to find any, where the exact question here presented has been passed upon. Defendant relies upon the case of Harrison v. Railway Co., 116 Cal. 156 (47 Pac. 1019), in support of the contention that the testimony of the doctor as to what the autopsy disclosed and his conclusions therefrom was competent and admissible. The headnote and part of the opinion in that case is misleading. The opinion states clearly that the relation of physician and patient never existed during the, life of the deceased. Deceased was a passenger on a street car which collided with a brewer’s truck, causing the injury. The doctor in the employ of the brewery came and examined the man for his employer. What the opinion states further has no bearing upon this question before us.

This statute without amendment has been in force in this State since the Revision of 1846. Its provisions are therefore a part of the fixed policy of the State. This court has given it a liberal construction in protecting the privilege of the patient created by it. To allow the testimony of this attending physician as to this autopsy, and his conclusions therefrom, would operate to take away such privilege clearly granted. This testimony is improperly in the case. Any other construction and determination is not in harmony with our construction of this statute and cannot be entertained. It was error to admit it.

Error is alleged upon the ruling of the court, over objection, allowing cross-examination of plaintiff, administrator, concerning alleged statements made by him relative to an autopsy and the cause of his wife’s death, and the liability of the township in relation thereto, and to make such cross-examination the basis for introducing impeaching testimony. The court in his charge held that this testimony was immaterial upon the issue in the case, i. e., the liability of the municipality, but was admissible as bearing upon the credibility of the witness. The witness could not bind the estate of his deceased wife by his admission, and the testimony relative to the autopsy was hearsay. The rule is well settled that a witness cannot be impeached on collateral or immaterial matters. The court was in error in admitting the testimony for that purpose.

Other errors claimed are of minor importance and do not require discussion, as there is no probability of a recurrence upon another trial.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

Steere, Brooke, and Stone JJ., concurred. Blair, J., concurred on the first and third grounds.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PRISEL v. CONEY.
    1. Appeal and Error — Master and Servant — Directing Verdict — Minor Employe.
    In considering, on error, a case for personal injuries of an em-' ployé against whom a verdict was directed by the trial court, defendant’s evidence does not require consideration: the question is whether plaintiff’s evidence, given its strongest probative force, was sufficient to support a verdict.
    2. Master and Servant — Negligence — Defective Machinery —Infants.
    And though plaintiff was young and inexperienced, and was unable to explain the nature and method of operation of the stamp press on which he was employed, his unsupported or contradicted testimony that a certain spring was loose, that the press repeated at different times when he did not trip the mechanism, that he advised his employer of the defeot, and received from him a promise to repair the defect, and was injured while working in reliance on his master’s promise before the press was repaired, presented a case for the jury.

    Error to Wayne; Donovan, J.
    Submitted November 24, 1911.
    (Docket No. 180.)
    Decided March 12, 1912.
    Case by John Prisel, by next friend, against James D. Coney for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Samuel E. Jones, for appellant.

      George F. & Peter J. Monaghan, for appellee.

       As to rights of servant continuing work on master’s promise to remove a specific cause of danger, see notes in 40 L. R. A. 782; 27 L. R. A. (N. S.) 1052 ; 29 L. R. A. (N. S.) 597.

   McAlvay, J.

Plaintiff sued defendant to recover damages claimed to have been caused to him while operating a certain machine as an employé in defendant’s factory in Detroit. After hearing all of the proofs in the ease, a verdict was instructed by the court in favor of defendant. Plaintiff reviews the judgment upon writ of error. The only error assigned relates to the instruction directing a verdict.

Defendant was a manufacturer of wire specialties. On September 27, 1906, plaintiff, then about 16 years of age, entered into the employment of defendant, at first working as directed about the shop, and then he was put at work on a machine. Finally, three or four weeks before the date of his injury, which occurred April 26, 1907, he put plaintiff at work upon the machine at which he was inj ured. The machine in question was a new stamping machine upon which were dies, which by the action of the machine stamped and bent wires into certain shapes. The negligence charged in the declaration material to be considered is that the machine upon which the plaintiff was at work became defective and dangerous, in that a certain spring therein became out of condition and defective; that plaintiff notified defendant of this defective condition, and that he promised to repair the defect and put the machine in good condition, and ordered plaintiff to remain at work until the spring and machine were repaired; that plaintiff, relying upon this promise to repair the defective machine, continued such work, and, before defendant had repaired the defective machine and spring, the spring suddenly released the stamping press which came down, and severed the thumb,from his left hand; that plaintiff was a boy 16 years and 2 months old, and he used all due care and diligence of which he was capable, considering his youth and inexperience.

Plaintiff was the only witness produced and sworn on his own behalf. There is no dispute as to his age, the experience he had had in operating the machine during his employment by defendant, or that he was injured while operating the machine in question. His testimony is that a spring within a wheel which was connected with the operation of the part of the machine which held the die, which operated up and down, became loose three days before the day of the accident, which caused the press punch to repeat; that on that morning he told defendant, personally, of this fact. He testified:

“When he came around in the morning, I told him that the spring coil in the machine was loose, and it was dangerous and defective to work upon, and I told him I was going to quit, and he told me to continue working and he would fix it as soon as possible.
“Q. Why did you continue to work?
“A. Because he ordered me to and promised to repair it.”

On the third day, soon after work began in the morning, the machine again repeated, and caught his hand while he was removing the wires which he was stamping. He testified that he was removing the wires in the manner in which he had been instructed by the defendant, and as he had always done, and the only way he knew how to do it at that time; that he did not cause the machine to repeat by putting his foot upon the treadle and releasing the press punch. It appears without dispute that this machine was operated by electric power; that the wires used in this work were placed upon a form; and that, to cause the stamp press to come down and shape these wires, it was necessary to press the foot of the operator upon a treadle located at the floor on the'right side of the machine. On cross-examination witness could not explain the mechanism of this machine, or the exact connection of the spring in the wheel with the operation of it; but throughout his testimony he claimed that the cause of the machine repeating was the loose spring in this wheel. The above is substantially the evidence on the part of the plaintiff presented by the record relative to the injury and its cause.

As the case is presented here, the evidence on the part of the defendant requires no consideration. The court is not considering the weight of the evidence in the case. The question for us to determine is whether we can say, as a matter of law, giving his testimony the strongest probative force it is entitled to, that it was not sufficient to submit to the jury the negligence of defendant. Rumsey v. Fox, 158 Mich. 248 ( 122 N. W. 526); Goda v. Maurer, 162 Mich. 621 (127 N. W. 799).

We are unable to come to that conclusion. There is evidence on the part of plaintiff tending to show the cause of this injury to have been the loose spring in the wheel where the mechanism is situated which releases the press. The weight or effect a jury might give to it is not for us to determine. Defendant contends:

(1) “Negligence upon the part of defendant was not affirmatively shown. * * * ”
(2) “The alleged promise of defendant to repair the machine, in the absence of proof of defect, imposed no liability upon him.”

The whole argument depends upon whether the record supports the first proposition. If it does, the second follows conclusively. It affirmatively appears by plaintiff’s testimony (taking it as true ) that the machine repeated three days before the accident, notice to defendant of that fact, a promise by defendant to repair, as soon as possible, and an order to plaintiff to continue at work.

Taking this view of it, the conclusion follows that the court was in error in directing a verdict for defendant.

The judgment is reversed, and a new trial ordered.

Steere, Brooke, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    KAMM & SCHELLINGER BREWING CO. v. ST. JOSEPH COUNTY VILLAGE FIRE INSURANCE CO.
    1. Insurance — Mutual Policy — Fire Insurance —Assignment of Policy — Consent of Insurer to Transfer — Change in Title — Notice.
    Under provisions of the charter of a mutual fire insurance corporation, permitting insured to assign his policy only upon the written consent of the secretary indorsed thereon, and terminating the insurance upon sale or transfer of property insured, the purchaser of insured premises, who gave no notice to the insurer, and did not obtain the written consent of its secretary to the assignment, could not recover on the ground that defendant’s collector, one of its directors, knew of the sale and assignment, and received payments from the agent of plaintiff, the assignee.
    2. Same.
    There being no privity or mutuality of contract between plaintiff and defendant so as to render plaintiff liable to the other members of the mutual company for plaintiff’s proportion of their losses, plaintiff, as assignee of such policy, obtained no rights as against the insuring corporation.
    3. Same —Principal and Agent — Officers of Corporation — Corporate Directors or Agents — Waiver.
    Agents and officers of mutual fire insurance companies, in which the charter and by-laws determine the rights of members, have less authority than those of stook companies in creating a waiver of. conditions contained in contracts: officers have no power to bind their companies by other inconsistent contracts or provisions.
    4. Same — Mutuality of Participation in Corporate Affairs.
    The principle which lies at the foundation of mutual insurance, and gives it the name, is mutuality; in other words the intervention of each person insured in the management of the affairs of the company and in the profits and losses of the business in proportion to his interest.
    5. Same — Change in Ownership.
    In order to apprise the insurer of material changes in the risk, provisions requiring notice of transfers, change of title, etc., are reasonable and enforceable.

      6. Same — Estoppel.
    And where, after a transfer of insured premises, the assignee of the policy, knowing that assessments were made to the assignor, paid such assessments without securing the required consent of defendant to the assignment, such transferee could not recover, although the collector who received the payment was a director of defendant and had knowledge of the change in title.
    Error to St. Joseph; Yaple, J.
    Submitted December 11, 1911.
    (Docket No. 196.)
    Decided March 12, 1912.
    Assumpsit by the Kamm & Schellinger Brewing Company against the St. Joseph County Village Fire Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.
    F. W. Knowlen and M. L. Howell (J. M. Harvey, Jr., of counsel),, for appellant.

      B. B. Pealer and George E. Miller (H. P. Stewart, of counsel), for appellee.
   Stone, J.

This is an action on a fire insurance policy. The plaintiff is, and since March, 1887, has been, a corporation organized and existing under the laws of Indiana, the business of which corporation is described in its articles to be the manufacture and sale of beer and malt, to be carried on in the town of Mishawaka, St. Joseph county, Ind. On the 25th day of April, 1905, the plaintiff bought by warranty deed from Mary Withers, the then owner, a lot, including the business building thereon, situate in the village of Constantine, St. Joseph county, Mich. At the time of this purchase the said premises were, and for several years theretofore had been, occupied by William E. Withers, husband and tenant of said Mary Withers, as a saloon. From and after said purchase in 1905, and until the fire hereinafter mentioned, said William E. Withers continued to occupy said premises for a saloon under a lease to him from the plaintiff. Such lease bears date March 6, 1905, and contained the following clause:

“ It is understood and agreed by and between the parties hereto that second party while occupying said saloon under this lease shall use the Kamm & Schellinger keg beer exclusively, and also handle bottle beer of said Kamm & Schellinger, and give same the preference in sales of bottle beer. Second party to have the privilege of using the ice in the ice-house on said premises, and agrees and undertakes to replace all ice so used, and to refill said ice-house before May 1, 1906.”

The defendant at the time of said fire was, and for about 20 years theretofore had been, a mutual fire insurance company, organized and existing under chapter 132, 1 How. Stat. (2 Comp. Laws, § 7266 et seq.), and the amendments thereto. By its charter it was authorized to insure business and residence buildings in St. Joseph county, Mich. By said charter the general management and control of said insurance company was vested in the board of directors, consisting of the president, secretary, treasurer, and six directors. Specifically, said board of directors had authority to adopt by-laws, assess members, adjust losses, classify property, make rates, cancel policies, and audit claims against the company. Said charter also provided for a notice of loss to the secretary, or one of the directors, and for the meeting of the board of directors to adjust the loss. By said charter the board of directors directs the secretary to make an assessment roll to meet losses and expenses for the preceding year; and upon approval by said board of such roll they certify the same to the treasurer, directing him to collect the same. Upon receiving such certified roll, it is made the duty of the treasurer to immediately serve a notice upon each and every member of the company, which notice snail contain a statement showing the total amount insured by the company, the amount of loss, and name of person sustaining the loss in each case for which the assessment is made, the amount of expenses, the amount of assessment on each $1,000 in the base class, the amount of his or her assessment, and a demand for the immediate payment of the same; also the name of the person to whom payment shall be made. Article 26 of said charter reads as follows:

“ The insurance of any member shall cease upon the sale or transfer of the title of property insured, but such member shall be liable for all assessments upon such property, and for his or her equitable share of all losses and expenses incurred "by the company, until his or her policy shall be surrendered or canceled. Provided, that upon the sale of any property insured by this company the vendor may assign his or her policy to the purchaser, but such assignment of policy shall not be valid as against this company without the written consent of the secretary indorsed on the policy.”

Article 27:

“ Any member may withdraw from this company at any time upon surrendering his or her policy to the secretary and the payment of his or her equitable share of all losses and expenses incurred by the company up to the time the policy shall be surrendered.”

By the by-laws of defendant company a schedule of classification of risks was provided, by which 12 classes were established; class No. 3 being the base class.

As the circuit judge directed a verdict for the defendant, the plaintiff is entitled to the most favorable view which can be taken of the evidence produced upon the trial. James A. Marsh, a witness for defendant, who testified that he had been a director of defendant company since 1899, and a collector since 1894, testified as follows, on direct examination, as to the practice when the holder of a policy sold the insured property and assigned the policy to the purchaser:

“Q. Now, in answer to Mr. Howell’s question in which he asked you whether you considered a person a member after an assignment, what have you to say about what is necessary to be done in order to be a member? Now, when did you regard them as members ?
“A. As soon as there was an assignment made, they took the place of the member who had taken out that policy.
“Q. Well, before the approval of the secretary?
“A. Oh, no.
Q. When the assignment was made and approved by the secretary ?
“A. I always consider when the assignment is handed to me that that is just as good as the approval, because I then forward it to the secretary.
“Q. But there is no assignment ever handed to you ?
“A. No.
“Q. No policy ever handed to you?
“A. No.
“Q. No application ever made to you ?
“A. No, sir.
“Q. For approval of the assignment?
“A. No, sir.
“Q. What do you consider the assignment includes when you become a member ?
“A. I consider that when a policy is assigned to a second person that second person becomes a member in place of the first person.
“Q. When?
*'A. When presented to me or the company.
“Q. And approved?
“A. Yes, sir.
“Q. Have you ever been given any right to approve by any action of the board, to approve of the transfer by assignment of policies ?
“A. No, sir. I don’t approve them.
“Q. You don’t approve them ?
“A. No; I don’t approve them myself, but consider that the company is binding when that assignment is handed to me, and I forward it to the company.
“Q. That is the way you consider it ?
“A. The same as though I was taking an application.
“Q. But you never had any such authority given you by the company ?
"A. No, sir.
“Q. Who approved all the assignments ?
“A. Mr. Cross.
“Q. Who is he?
“A. The secretary of the company.
“Q. Where does he live ?
“A. Centerville.
“Q. If you took an assignment — took a policy that had been assigned and sent it over to the secretary and he should refuse to approve of it — then when would you consider it was approved or disapproved ?
“A. I would consider it void from the time he would notify me — such things have been done.”

Recross-examination:

“Q. Mr. Marsh, as I understand you, when the sale of the property was made down there, and the policy was assigned and you were given notice of it, the assigning of the policy was as you regarded it, and, as the company’s practice was, the assignee of the policy was protected until the secretary disapproved of it ?
“A. When it was presented to me; yes, sir.
“Q. Yes; that is what I mean.
“A. Yes.
“Q. And approval on the policy was binding during the time from between the time of the presentation to you and the time of Mr. Green’s notifying you that it was not approved ?
“A. I always so considered it; yes, sir.
“Q. That was the way — practically that is what you always did do ?
“A. Yes, sir.
“Q. So that if a man bought a piece of property that was insured in the company and the policy was assigned to him, and you were notified of it, he was considered as entitled to notice that it was not approved, or else he would hold the company ?
“A. Yes, sir.”

Redirect examination:

“Q. When was that so ?
“A. What is that?
“Q. When was that — when did you do that way?
“A. I have always done that way.
“Q. Without the policy being presented ?
“A. Without the assignment being presented ?
“Q. Yes.
“A. Oh, no; I didn’t mean to answer that I did that. I meapt to answer that the assignment had been presented to me.
“Q. And the policy turned over to you and sent up to the secretary to be approved ?
“A. Oh, yes. The assignment is on the back of the policy.
“Q. In such a case?
“2. Then only.
“Q. Then only?
“A. Yes.
“Q. But not in the case where they were not presented at all ?
“A. Oh, no.
“Q. They were delivered to you and sent up to the secretary ?
“A. Yes, sir.
“Q. Now, from your practice whether it was only in such cases where presented to you to send up — delivered to you to send up to the secretary that you refer to ?
“M. Certainly, we couldn’t do anything without the policy.
“Q. That there may be no misunderstanding, I wish to ask you whether this policy and the assignment, purported assignment, was ever presented to you in any sort of way?
“A. The Withers’ policy ?
"Q. Yes.
“2. No; I never saw it.”

Recross-examination:

“Q. Now suppose the man who made the assignment came in and told you he had made such an assignment, and had sent the policy on to Mr. Cross, that would be just the same, wouldn’t it ?
“A, No, sir. I wouldn’t have anything to do with it.
“Q. I understand, but the giving of notice to you would be just the same wouldn’t it ?
“A. He has already sent it to Mr. Cross, and I hadn’t anything to do with it.
“Q. I see. Now, then, was this policy ever delivered to you at any time before Kamm & Schellinger bought it?
A. I don’t think so. I think that policy was taken out before I was a member of the company — director of the company.
“Q. But it was assigned twice afterwards?
“A. Well, I don’t think that I could recall it.
“Q. Take for instance the assignment of Withers to Mrs. Withers, did you regard this, when you were notified of it, if you were notified of it, and the policy was given to you, as vesting — making Mary Withers a member of the company ?
“A. I don’t think I had anything to do with it, but I cannot recall it. It has been some time ago.
“Q. The policy was the property of William E. and Frank Withers, and it was assigned to Mary by W. E. Withers only ?
“A. I have no recollection of that transaction at all.
“Q. And that was done in 1900 ?
“A. Well, that was before I had anything to do with it.
Q. And you continued collecting right straight along, didn’t you?
“A. I wasn’t a director I think until about 1899, and I collected from about 1894.
”Q. This was done in 1900, which was after you became director.
“A. I haven’t any recollection of it. Perhaps it was done there and sent by somebody.
“Q. And this was considered as protecting Mary Withers, although it wasn’t assigned to her by both owners, wasn’t it ?
“A. I told you I don’t know anything about it.
“Q. And for about five years she continued to pay premiums on it, didn’t she ?
“A. I told you that I knew nothing about that assignment. I don’t think I ever had it in my hands. I don’t remember of it, at least.”

The policy in suit was issued by defendant to Joseph R. Watson on February 9, 1892, signed by Thomas Green, president, and Samuel Cross, secretary. On July 25, 1893, said policy was duly assigned by said Watson to William E. and Frank S. Withers, purchasers of insured property, and the secretary of defendant consented in writing thereto. On June 18, 1900, Mary Withers purchased said property, and on that day said policy was duly assigned to her, and the due consent of the secretary had thereto in writing. From this time until the sale of the insured property and transfer of said policy to the plaintiff, William E. Withers, husband of said Mary Withers, occupied the insured property as his saloon, and for his wife paid each year the assessments on the policy. On April 25, 1905, Mary Withers sold and conveyed the insured property to the plaintiff, and duly assigned the policy to the plaintiff. The written consent of the secretary of the defendant company was neither asked nor obtained. The said James A. Marsh, whose testimony has been quoted above, for a number of years had been cashier of the Commercial State Bank of Constantine. Each year, from 1894 down to the time of the trial, the annual list of Constantine policy holders was sent to Marsh for collection, and the policy holders were severally notified by the treasurer to pay, and did pay, his or her assessment to said Marsh at said bank.

The notice to Mary Withers had for many years included the policy in suit, and also another policy covering a dwelling house property. The amount of this dwelling policy and its rate of assessment and amount thereof differed from the saloon risk in suit; the saloon building having been in class 7, and the residence property in class 2. The assessment upon the former was more than twice as high as on the latter. Marsh, the defendant company’s collector and director, and cashier of the bank aforesaid, knew of the sale of the property in question by Mary Withers to the plaintiff. He advised the Withers people to sell to the plaintiff, and he knew that the consideration she received from plaintiff was $6,000. This money was paid by plaintiff’s check to Mary Withers, which check was cashed by, and deposited with, said Marsh in his bank on the day of sale, and it continued on deposit for about two years; he having given Mary Withers certificates of deposit therefor.

The first annual assessment after the sale of the property, and the transfer of the policy by Mary Withers to the plaintiff, came in January, 1906. The notice of assessment upon the policy came to Mary Withers from the treasurer, and the notice directed her to pay the same to James A. Marsh at Commercial State Bank. William E. Withers, the tenant of plaintiff, went into the said bank and saw Marsh, and he asked Marsh how it came in his wife’s name after the transfer over to the plaintiff of the policy. Marsh replied that it was just neglect. He then paid Marsh for the plaintiff the amount of assessment on the policy in suit, amounting to 17.20. The notice of assessment for 1906 came, as before, to Mary Withers, and William E. Withers again paid for plaintiff the amount of assessment upon the policy in suit to Marsh in March, 1907. The third notice, namely, of the annual assessment for the year 1907, came again to Mary Withers in 1908; and before the expiration of the time given for its payment, but after the fire occurred, William E. Withers tendered to Marsh the amount of such assessment upon the policy in suit. Marsh declined to receive it. On January 19, 1908, a fire occurred in the building covered by the policy in suit, and serious damage followed. On January 20, 1908, the board of directors met at the Commercial State Bank at Constantine to consider and adjust this loss. The policy was presented to the board by the agent of the plaintiff. The board denied all liability on the sole ground that the transfer of the policy to plaintiff from Mary Withers had not been approved in writing by the secretary.

At the trial it was admitted that the plaintiff, at the time of the commencement of this suit, had not paid any franchise fee or taken any steps under the laws of this State to be authorized to do business in Michigan. At the conclusion of the testimony, defendant’s counsel moved the court for a verdict for defendant by direction, for the reason that the plaintiff had not established any evidence of waiver of provisions of the policy, and had not shown its right to bring suit at all in that court. The plaintiff presented certain requests to charge which it will not be necessary to set forth. The trial judge directed the verdict for defendant, as requested, upon the grounds that there had been no written consent of the secretary to the assignment of the policy. He advised the jury that that provision of the charter was a valid one, and that the assignee of the policy acquired no privity or contract relation with the defendant, unless such consent be obtained, or such provision waived; and he charged the jury that there had been no such waiver or estoppel as would warrant the submission of the case to them. He thereupon directed a verdict for defendant, and a judgment followed.

The plaintiff has brought the case here upon writ of error, and we shall find it necessary only to consider the sixth assignment of error — that the court erred in directing a verdict for the defendant. Although the circuit judge did not direct the verdict upon the ground that the plaintiff corporation had not complied with the laws of the State of Michigan, and therefore could not maintain suit upon the policy of insurance, nevertheless it is the contention of the defendant that this admitted fact is a bar to the action. By reference to the statute under which the defendant company was organized, and from the charter of the defendant, it appears that this company has no capital stock and was purely a mutual company, each policy holder being a member of the company, entitled to vote at the election of its officers and to take part in the transaction of its business. In other words, it is an organization of the property owners in a prescribed territory for the protection from loss by fire of the members of such organization. Each member contracts to be liable for the pro rata payment of all such losses, as well as to receive compensation for losses which he may sustain. Only the property of its members is insured. The members of the company under the charter consist of all persons holding policies of insurance and who subscribe their names to the copy of the charter and the by-laws of the company. Section 14 provides that every applicant for insurance shall sign his or her name to the application, to which a copy of the charter and by-laws of the company shall be attached, and, in case a policy shall be issued on such application, the said applicant shall thereby become a party to the contract for insurance, and be subject to all the conditions and provisions of the charter and by-laws of the company.

The plaintiff does not claim that it complied with the charter of the company, but says it took an assignment of the policy at the time it purchased the property covered by the policy, gave no notice of such assignment to the company, and did not in any manner comply with the provisions of section 26 of the charter above quoted, and never, in fact, either made application to become a member of it, or obtained the consent of the company to the assignment of the policy; but claims that its agent paid the assessments which the company made for losses, notice of such assessments having been given to Mary Withers. So we think the sole question that the plaintiff presents is whether or not its payment of such assessments, through its agent, to a director and collector of the company, under the circumstances above stated, amounted to a waiver of the provisions of the charter of the company rendering such policy void upon the sale of the property. Could the plaintiff by merely taking an assignment of the policy, without its contracting in any way to become responsible for any of the losses which other members of the company might sustain, claim in this action that such other members shall pay for losses which it sustains ? If the plaintiff had taken its policy to the secretary of the company and had obtained consent to the assignment thereof, then it would have become a member of the company, and be liable for its pro rata share of all losses which the company sustained. It did not do this. It simply took the assignment of this policy, permitted the company to go along and treat Mrs. Withers as liable under the charter for her pro rata share of the assessments, and now claims that because of the statements to Mr. Marsh, and the payment by plaintiff’s agent of the assessments against Mrs. Withers it is entitled to recover.

Let us look at this case for a moment from another point of view. Suppose, instead of plaintiff having had a fire loss, there had been a great conflagration and destruction of property owned by members of the company, such as occurred in some of the counties in this State recently, and the defendant had undertaken to enforce liability against the plaintiff as a member of this company, would the plaintiff have been held to be a member of the company, and liable for such assessments? We think not, because the charter provides how persons may become members of the company. There was no contract relation whatever between this plaintiff and this company whereby this plaintiff became a member of it at all. The contract must be mutual, and the plaintiff must be equally liable for the losses of other members of the company before it can claim that the other members of the company shall be assessed to pay its losses. Members only are liable to assessment. 2 May on Insurance (4th Ed.), § 553, p. 1290. The rights of the parties are reciprocal.

In general, it may be said that the agents and officers of companies organized with a capital stock divided into shares have greater powers in determining what shall be the terms of the contract, and in waiving a compliance with its stipulations, than those of companies organized on the mutual principle, in which the charter and by-laws are made to fix and regulate every policy as to rights of the insurer and assured alike. Mutual insurance is essentially different from stock insurance, and much of the litigation that has, grown out of this species of insurance has been owing to inattention to this difference. Its original design was to provide cheap insurance by means of local associations, the members of which should insure each other. Such associations are in their nature adapted only to local business. They need many by-laws and conditions that are not required in stock companies. And it is necessary and equitable that each person who gets insured in them should become subject to the same obligations towards his associates that he requires from them towards himself. When the company has once determined the forms in which its policies shall be made, and the conditions upon which it is willing to contract, it is nothing less than a violation of duty for the officers to undertake to bind the companies they represent by other or inconsistent contracts, parol or otherwise. Hence, where the bylaws of a company provide that subsequent insurance obtained, and subsequent alterations made, without the consent in writing of their president, shall avoid the policy, the verbal consent of the president is unauthorized. Nor, when the by-laws require that the premium shall be paid before the policy shall take effect, has any officer the power to bind the company by an agreement that, notwithstanding the nonpayment of the premium, the policy shall be effective. This rule is applicable only to by-laws which are of the essence of the contract. 1 May on Insurance (4th Ed.), § 146, and cases there cited. 19 Cyc. pp. 633, 634, 635:

“ Most policies contain a provision that they are not assignable without the consent of the insurer, and they frequently provide the mode in which such consent shall be manifested. Such provisions are valid and accomplish the purpose intended, so that the assignee acquires no privity with the insurer unless such consent be obtained. * * * If there is nothing in the policy giving consent in advance, a consent must actually be given at or subsequent to the time of the assignment to invest the assignee with rights against the insurer. If a certain method for obtaining consent to an assignment of the policy is prescribed in the policy itself, no other mode will suffice. And a forfeiture takes place, if it be provided that such will be the effect of an assignment without the insurer’s consent. * * * When the assignment has been completed and the consent of the insurer obtained, a new and independent contract has arisen by which the assignee acquires all the rights of the assignor ”— citing numerous cases.

In Excelsior Foundry Co. v. Assurance Co., 135 Mich. 474 (98 N. W. 11, 3 Am. & Eng. Ann. Cas. 707), Chief Justice Moore quotes with approval the following language from Ostrander on Fire Insurance (2d Ed.), at page 245, § 77:

“The character of the hazard being established to the satisfaction of the insurer, its next concern is that no material change shall take place without its consent; and this, too, is provided for by the terms of the policy. The insurer cannot watch its many ventures. They are often remote and widely scattered, and besides, too, the greatest dangers that menace property are those that are frequently hidden from public scrutiny. The only practicable plan, therefore, of preserving the status of the risk, is to make the validity of the policy ..depend upon the insurer being informed of any material changes made, and its consent obtained. In most cases the insured is constantly apprised of the situation of his property, while the company which has assumed the whole responsibility in case of loss has its office in a distant city, and is entirely without the means of information. The necessities of the case are apparent, and the requirements contained in the policy in regard to notice and consent are reasonable, and will be enforced by the courts with strictness.”

The principle which lies at the foundation of mutual insurance and gives it its name is mutuality; in other words, the intervention of each person insured in the management of the affairs of the company and the participation of each member in the profits and losses of the business in proportion to his interest. Huber v. Martin, 127 Wis. 412 (105 N. W. 1031, 1035, 3 L. R. A. [N. S.] 653, 115 Am. St. Rep. 1023, 7 Am. & Eng. Ann. Cas. 400).

It is contended by defendant’s counsel that under the decisions in this State in the case of a policy of insurance issued by a stock company even, under the testimony in this case, the facts would not warrant the conclusion that the company had waived any of the provisions of the pob icy, and that they certainly would not constitute a waiver of the terms of a policy of a mutual insurance company like this — citing Security Ins. Co. v. Fay, 22 Mich. 467 (7 Am. Rep. 670); New York Central Ins. Co. v. Watson, 23 Mich. 486; Reynolds v. Insurance Co., 36 Mich. 131; Western Mass. Ins. Co. v. Riker, 10 Mich. 279; Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908); Robinson v. Fire Association, 63 Mich. 90 (29 N. W. 521); Allemania Fire Ins. Co. v. Hurd, 37 Mich. 11 (26 Am. Rep. 491).

On the part of the plaintiff, it is claimed that what occurred between Mr. Withers and Mr. Marsh amounted to a waiver by the company of the necessity of the written consent of the secretary to the assignment of the policy. Viewing the testimony in its strongest light against the defendant, we are unable to find any wavier or any conduct on the part of Marsh which misled, or in any manner deceived, the plaintiff, or any conduct to the prejudice of the plaintiff. The plaintiff’s agent, with full knowledge of the fact that the assessment had been made against Mrs. Withers, saw fit to pay it. It was the duty of Mrs. Withers to pay the assessment until such time as she surrendered her policy for cancellation. The mere Temark of Mr. Marsh that there had been neglect may have meant as well the neglect to surrender the policy on the part of Mrs. Withers, or the neglect of the plaintiff to do the necessary thing to make it a member of the defendant company, as any neglect of the defendant. In speaking of mutual fire insurance companies, this court well said in Wardle v. Townsend, 75 Mich. 392 (42 N. W. 952, 4 L. R. A. 511):

“ The rights and obligations of the individual members are mutual, and each sustains a double relation to the corporation. As an assured he is entitled to be indemnified for his loss insured against by the corporation. As a member of the corporate body he, in consideration for this indemnity, agrees with the corporation, and with each member of the corporate body, to pay his just share or proportion of all losses, so that each member shall receive the same indemnity, and shall also pay his share of the expenses.”

Parties taking insurance in a mutual company under a charter like that we are here considering, take it subject to the charter and by-laws of the society. Such a provision as section 26, providing that insurance shall cease upon the sale or transfer of the property insured, operates ipso facto to determine the connection between the society and the grantor, and to forfeit his rights as such member. And we know of no case in which the grantee can become a member except by compliance with the provisions of the charter and by-laws. We are unable to find in this case that the plaintiff did anything to become a member of this company. It is not claimed that the policy was ever presented to Mr. Marsh. Had it been, another question would be before us.

Perhaps plaintiff did not desire to become such member, and incur the legal liabilities of such relation. Certainly the insurance ceased as to Mrs. Withers when she conveyed. Simply assigning the policy did not revive it. A further thing was necessary to be done, namely, to present the policy thus assigned to the secretary, make application to become a member of the company, and get the consent of the secretary indorsed thereon. Thereupon the assignee would have become a member of the company, and would have stood in the shoes of the original holder of the policy. The assessment was made against Mrs. Withers as it well might be made until the policy was surrendered and canceled; and mere payment of such assessment would not make the policy valid in the hands of the plaintiff, or constitute it a member of the company. There was no privity of contract between the plaintiff and the defendant, and the plaintiff cannot make a contract by estoppel based simply on its own neglect. The only waiver or estoppel that is claimed is that Mr. Marsh, the collector and one of the directors of the company, accepted payment of the assessment made against the grantor from William E. Withers, who says he was acting as agent of the plaintiff. We think the point is well made that Marsh neither as a director nor collector had power to bind the company by any conduct that would amount to a waiver. The charter nowhere gives .to a single director any such power. The directors when convened as a board can act, and not otherwise. There is authority to the effect that members of the board cannot bind the company they represent, except in regular or special meetings of the board. Knowledge even of the agent or collector was not notice to the defendant company. His duties were to collect and remit assessments. Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786); Brown v. Great Camp K. O. T. M. M., 167 Mich. 123 (132 N. W. 562); Grand Lodge A. O. U. W. of Connecticut v. Burns (Conn.), 80 Atl. 157. In no view of the case I which we are able to take was the plaintiff entitled to re-I cover. This renders it unnecessary for us to discuss the '^question whether or not the plaintiff had a standing in the courts of this State without having complied with the laws thereof, relating to foreign corporations doing business therein.

The judgment of the court below is affirmed.

Moore, C. J., and Steers and Brooke, JJ., concurred. Ostrander, J., concurred in the result.


text:
    CRANE v. ROSS.
    1. Evidence — Parol Testimony — Contract in Writing — Brokers — Exchange of Lands.
    Since parol evidence tending to contradict the terms of a written instrument is incompetent, defendant was erroneously permitted to show, in a suit by a broker for commissions in effecting exchange of real estate, that a contract in writing between defendant and a purchaser secured by the broker, was not a final agreement.
    2. Same — Compromise and Settlement — Offer to Adjust.
    An offer of defendant to pay plaintiff a certain amount in settlement of the brokerage commissions was incorrectly admitted and constituted prejudicial error when it appeared that a verdict for the exact amount of the offer was gendered without other evidence to sustain it.
    3. Same — Trial—Argument of Counsel — Poverty of Defendant-Sympathy.
    Testimony that defendant’s property was covered by a heavy mortgage indebtedness, accompanied by reference on the part of his attorney to the fact for the purpose of arousing sympathy of the jury, was prejudicial.
    4. Trial — Argument — Saving Questions for Review —Exoeptions.
    Exceptions to argument of oounsel made without calling on the trial court for a ruling thereon are not reviewable.
    5. Brokers — Joint Defendants — Husband and Wife —Directing Yerdiot.
    Testimony having a tendency to show that a wife knew that her husband assumed to act for her in placing property of the wife in a broker’s hands and acquiesced in the arrangement, and was shown a copy of the contract of exchange finally entered into with a purchaser, required the submission to the jury of her liability for commissions.
    Error to Washtenaw; Kinne, J.
    Submitted December 11, 1911.
    (Docket No. 37.)
    Decided March 12, 1912.
    Assumpsit by George C. Crane against George A. Ross and Mildred E. Ross for broker’s commissions. A judgment for plaintiff against defendant George A. Ross for less than the amount claimed, and for defendant Mildred E. Ross on a directed verdict, is reviewed by plaintiff on writ of error.
    Reversed.

      Frank A. Stivers, for appellant.

      Arthur Brown, for appellees.
   Stone, J.

This is an action of assumpsit to recover certain commissions claimed to be due the plaintiff from the defendants in effecting an agreement for an exchange of real estate. The defendants are husband and wife. The lands which the plaintiff claims he was to dispose of for the defendants belonged to Mildred E. Ross, and were located in St. Clair county. The parties to this suit all resided in Ann Arbor, where the defendant George A. Ross was a student in the University of Michigan.

It is the claim of the plaintiff that the lands to be disposed of for the defendants were of the value of $11,000, and that his commission for effecting an exchange was to be 2 per cent, of the value; that the prospective purchaser was a Mr. Youngs of Toledo, Ohio; that plaintiff and defendant George A. Ross made two trips to Toledo to see Mr. Youngs, and that Mr. Youngs went with the plaintiff and defendants to St. Clair county, and examined the Michigan lands proposed to be exchanged for property in and near Toledo. It is the further claim that the plaintiff and defendant George A. Ross, after previous negotiations, went to Toledo on Sunday, October 11, 1908, and that the plaintiff there brought about, and was instrumental in effecting an agreement in writing between defendant Mildred E. Ross and Frank O. Youngs, which agreement was as follows:

“This contract made between Mildred F. Ross, of Ann Arbor, Mich., party pf the first part, and Frank O. Youngs, of Toledo, Ohio, party of the second part, on October 11, 1908, to bind both first and second parties in the sale of certain prescribed lands in. Michigan, St. Clair County, Lynn township, owned by party of the first part. East half southwest quarter section 20-9-13, 80 acres. Southeast quarter, section 20-8-13, 160 acres. East half northwest quarter, section 20-8-13, 80 acres. West half of west quarter, section 20-8-13, 80 acres. Northwest quarter, section 32-8-13, 160 acres. Five hundred sixty acres more or less. Party of the first part agrees to surrender abstracts for above described lands for the consideration of the following pieces or parcels of land, and the sum herein described on condition also to be described. One house and lot 160 Potter’s addition. No. 440 St. Louis St., Toledo, Ohio. Encumbrance of $500 (five hundred dollars). Northwest quarter, section 19, range 9, twp. 7, Swanton twp. Northeast quarter, section 19, range 9, twp. 7, Swanton twp. Eighty acres more or less. One hundred and fifty $150 enc. Second party agrees to surrender all abstracts and titles for both properties and in addition the sum of $3,650.00, three thousand six hundred and fifty dollars. The transfer to be made under the following conditions. To take place April 1, 1909 or thereabouts. First party agrees to let the money $3,650.00 three thousand six hundred and fifty and 00-100 on notes secured by mtg. at 5 per cent, interest one thousand dollar $1,000 notes. To read payable on or before three years from date, April 1, 1909, second party must then pay at this time (three years) at the rate of one thousand dollars or more each year until fully paid. Then seed and labor to be settled by the vacator.
“E. O. Youngs.
“Mildred F. Ross.
“ Per G. A. Ross.”

The declaration in the case consisted of three counts. In the first count the material allegations are, in substance, that the defendants employed the plaintiff to procure a purchaser for, or to negotiate an exchange of, certain lands belonging to defendant Mildred E. Ross, and promised to pay him therefor $220; that, in consideration thereof, the plaintiff did procure such purchaser, and did negotiate a sale and exchange of said property for certain lands in the State of Ohio belonging to one Mina Youngs; and that defendants are indebted to plaintiff for said commissions. In the second count the material allegations are the same as those contained in the first count, except that, in addition, defendant George A. Ross is alleged to be the husband and agent of the defendant Mildred E. Ross, and that defendants promised to pay plaintiff for his services the usual and customary commissions in such cases, the same being 2 per cent, upon $11,000, the agreed valuation of the property to be exchanged. The third count is in the usual form of the consolidated common counts in assumpsit.

To this declaration the defendants pleaded the general issue, and gave notice thereunder that if plaintiff acted as agent or broker of defendants, or either of them, for the sale or exchange of any property, the efforts of plaintiff amounted to nothing more than the making of the contract between E. O. Youngs and said defendants, or one of them, and that said contract was made on Sunday, October 11, 1908, and was therefore wholly void, and that the same was never thereafter ratified or affirmed by either of said defendants, that Mildred E. Ross was a married woman, and that said contract was not made in respect to her separate estate or property, and that the plaintiff was the agent of the said Youngs, which fact he did not disclose to the defendants. At the close of the testimony the trial court directed a verdict in favor of the defendant Mildred E. Ross, and permitted the case to go to the jury as to the defendant George A. Ross, which resulted in a verdict and judgment for the plaintiff against George A. Ross alone for $25.

There is great conflict in the testimony, the parties being far apart in their claims as to what the real transaction was between them. The plaintiff has brought the case into this court and has assigned numerous errors; a part of them only being discussed by appellant.

The following testimony in the examination of the defendant George A. Ross, in his own behalf, is made the basis of the third, fifth, and seventh assignments of error:

“Q. At the time that you drew up this memorandum or agreement (being the agreement heretofore set forth), did you understand that you were making an agreement upon which final action was to be taken, that you were making something that was final and binding upon both parties ?
“Mr. Stivers: I object; that is calling for a conclusion. What was done is competent, and not what was in his mind, what his understanding was.
“Mr. Brown: I don’t want his opinion, but what he intended.
“Q. Was it understood between you that you were ultimately going to trade places on the basis of that memorandum ?
“Mr. Stivers: Witness can testify to what was said and done, but not to any understanding about it.
The Court: There may be some doubt about it. I am disposed to allow him to state whether he regarded that as the terms upon which they were to deal. I think he may answer.
(Exception for plaintiff.)
“Q. Did you understand at that time that this little memorandum consisted of all the terms upon which you were to exchange your properties ?
“Mr. Stivers: The same objection. It is incompetent and immaterial.
“Q. Did it contain the elements of the transfer ?
“A. No.
“Mr. Stivers: I move to strike out the answer because it is a conclusion of the witness and is not the best evidence of what happened there.
“The Court: I think he may state the entire transaction, and, if it was not all embodied in the writing, he can show what was left out.
“(Exception for plaintiff.)
He**********
“Q. Did the time ever come in your negotiations with Mr. Youngs when you and Mr. Youngs were agreed upon the terms of the transfer ?
“Mr. Stivers: The same objection. That is a conclusion for the court and jury. I have no objection to any conversation or transaction, but I do object to the conclusion of the witness.
“The Court: I think he can state whether they ever reached an agreement.
“A. No; we never reached a final agreement.
“Q. Did Mr. Youngs and Mrs. Ross and her mother ever come to a final agreement about the transfer of that property ?
“(The same objection and ruling as above.)
“A. No, sir.
“Q. In this letter of January 17, 1909, what does he mean when he (Youngs) says he is glad to know you are not willing to foreclose on the tenant ?
“Mr. Stivers: I object. It is incompetent, immaterial, and irrelevant.
“The Court: He can state what he had reference to.
“(Exception for plaintiff.)
“Q. What had he reference to ?
“A. Mrs. Ross holds a mortgage of I think $270.
“Q. On his personal property ?
“A. Yes.”

This related to a mortgage held by Mrs. Ross upon some personal property of the tenant in possession of some of Mrs. Ross’ lands in question.

“Q. I ask you again whether you and Mr. Youngs ever came to a final agreement about that trade and exchange of these parcels ?
“A. No; we did not.
“Mr. Stivers: I object. It is immaterial, and calls for a conclusion. It has been gone over once. I move to strike out the answer.
The Court: I deny the motion.
“ (Exception for plaintiff.)”

The following testimony is made the basis of the fourth assignment of error. It appears in the testimony of the same witness in which he is testifying of the plaintiff, as follows:

“All he was doing was puttering around on a 10-acre lot up there, and he was not doing much of anything that I could see, so I figured up what his expenses would be, and it came to approximately $10 even for the day he went down to Toledo on his own business, as he reported to me that day he went up to Imlay City, and Sunday he went to Toledo again. I figured that about $5 a day, that made $35. I deposited $35 in the bank, and notified Mr. Stivers if Mr. Crane wished to accept it that it was there for him, but he refused it.
“Q. That was after the suit had been commenced ?
"A. Yes.
“Q. And you did that for the purpose of compromising the matter?
“A. Certainly.
“Q. You expected if he took that, it would prevent litigation, did you ?
“Mr. Stivers: That calls for a conclusion.
“The Court: He can state why he made the tender.
“Q. You gave him a written.notice at that time, didn’t you ?
“A. Yes.#
Q. And in that written notice you stated in terms what it was for ?
“A. Yes, sir.
“Mr. Brown: Will you give us that written notice ?
“A. I gave that money to Mr. Brown, and he put it in the bank and sent notice to Mr. Stivers.
“Mr. Stivers: I object to any further testimony oh that. It is immaterial.
“(Objection overruled. Exception for plaintiff.)
“Q. I show you paper marked ‘Exhibit D,’and ask whether that is the notice ?
“A. Yes, sir.
“Mr. Brown: I offer that in evidence.
“Mr. Stivers: I object. It is incompetent and immaterial, and a transaction that occurred after the commencement , of suit and was an effort to compromise, and it is not competent. I withdraw the statement that suit had been commenced, but I object upon the ground that it was an effort at compromise, and as not tending to prove or disprove the claim of the plaintiff.”

Exhibit D was read against the objection. Exception for plaintiff. Exhibit D was as follows:

“Ann Arbor, Mich., January 29, 1909.
“To Mr. Frank A. Stivers:
Dear Sir:
“In the matter of the claim of George Crane against George Ross, I have to inform you that Mr. Ross has caused to be delivered to Michael J. Fritz, a check for the sum of $25.00, to be delivered to you as attorney for Mr. Crane, or to Mr. Crane himself, when either of you deliver to him a receipt in full of all demands against Mr. Ross or any of his family. Mr. Ross does not recognize any claim of Mr. Crane in making this tender, but does so with the view to avoid any trouble with Mr. Crane.
“ Truly yours,
“ Horatio J. Abbott,
“For Mr. Ross and Family.”

The following testimony of defendant George A. Ross upon his direct examination is made the basis of the sixth assignment of error:

“Q. Something was said about the title to that property up there that you speak of. Is the property that you referred to up in the northern part of the State free from incumbrance, or is it heavily mortgaged ?
“Mr. Stivers: I object. It is immaterial.
The Court: Is that important ?
“Mr. Brown: Yes. They have brought out that there was a vast amount of property up there. That was to get before the jury, and give the impression that these people were wealthy, and it is to counteract that.
“Mr. Stivers: I take exception to that.
“The Court: We will take the answer.
“(Exception for plaintiff.)
“A. It is heavily incumbered. Mrs. Ross has all the details of it. I know it amounts to thousands of dollars, something like $10,000. I do not know the exact figures.”

The tenth assignment of error is to the effect that there was prejudicial error in the argument of defendants’ counsel to the jury, and that the court erred in not correcting the error after plaintiff’s exception to same.

The ninth and eleventh assignments of error are to the effect that the court erred in directing a verdict for defendant Mildred E. Ross.

We shall consider together, as counsel have argued them, the third, fifth and seventh assignments of error. There was no claim on the part of the defendant George A. Ross that the agreement made at Toledo, Ohio, as above set forth, was not a completed instrument and delivered to Mr. Youngs; for he testified that he himself carried a copy of it home, and showed it to his wife. We think that the testimony of this defendant here complained of was objectionable, in that he undertook to give the meaning and effect of this agreement, and to show that the minds of the parties had not met. This is not a suit to correct the instrument. We think the paper should have been permitted to speak for itself, and that that portion of the testimony here objected to was incompetent; and, further, it called for the conclusion of the witness, and was an effort by parol testimony to alter and change the terms of the written document. We are of opinion that the court erred in admitting this testimony. It was an effort on the part of the witness to give his opinion as to his legal liability under the contract, an opinion with which the jury had no concern. First Nat. Bank of Sturgis v. Reed, 36 Mich. 263-266; Zube v. Weber, 67 Mich. 52 (34 N. W. 264); Althouse v. McMillan, 132 Mich. 145 (92 N. W. 941). Were this the only error in the record, we should not think it our duty to reverse the judgment.

Coming to the'fourth assignment of error, it appears that the defendant George A. Ross was permitted to testify as to his proposal to compromise with the plaintiff for $25; and against the objection and exception of the plaintiff the written offer of defendant’s agent to this effect was introduced in evidence. By reason of counsel not having complied with the rules of this court in giving the date of the filing of the declaration, we are unable to say from the record whether this letter was written before or after commencement of suit. In either case we think it was objectionable. It is worthy of note that the amount offered in this letter was the amount of the verdict of the jury. Aside from this testimony, there is nothing in the record to indicate the basis for the verdict of the jury as a suitable measure of damages. This court has repeatedly held that the admission in evidence of such attempts to compromise a suit is reversible error, and we think in this case that it was prejudicial error. Chandler v. Allison, 10 Mich. 460; Montgomery v. Allen, 84 Mich. 656 (48 N. W. 153); Fox v. Barrett’s Estate, 117 Mich. 162 (75 N. W. 440); Walbridge v. Barrett, 118 Mich. 433 (76 N. W. 973); Musselman Grocer Co. v. Casler, 138 Mich. 24 (100 N. W. 997).

The sixth assignment of error is based upon the ruling of the court in permitting defendant George A. Ross to testify to facts disclosing a large indebtedness of the defendants, and also for what is claimed to be a prejudicial remark of defendants’ counsel in reference thereto. We are clearly of the opinion that this testimony was immaterial and irrelevant to the issue.. Its tendency was to arouse sympathy in the minds of the jury, especially in connection with the remarks of counsel, and we think the court erred in admitting it.

The tenth assignment of error relates to certain alleged prejudicial argument of defendants’ counsel in addressing the jury. Counsel for plaintiff contented himself with taking exceptions to particular portions of the argument of defendants’ counsel without asking for, or obtaining, a ruling thereon by the court. Under repeated rulings of this court, such exceptions cannot be considered. In the late case of People v. Sartori, ante, 308 (134 N. W. 200), the more recent decisions of this court upon this subject have been collected. We have examined the record with care upon this matter, and it appears that plaintiff’s counsel made no request of the court to restrain counsel; did not ask the court in any way to advise the jury as to the claimed impropriety of the language, or to direct their attention to the fact that the language was not justified. No request was made that counsel be reprimanded by the court, or that the remarks complained of should be stricken from the consideration of the jury. Clearly, under such circumstances, the exceptions cannot be considered.

The only remaining assignments of error argued by counsel for appellant in his brief are the ninth and eleventh, which relate to the direction of the verdict for the defendant Mildred E. Ross. After a careful reading of this record, we have reached the conclusion that there was evidence tending to show that defendant Mildred E. Ross had knowledge of the agreement between George A. Ross, her husband, and the plaintiff relating to the sale or exchange of her property, and that she acquiesced therein, and that her husband had assumed to act for her respecting her property, with her knowledge and consent. The evidence was undisputed that she knew of the making of the Toledo contract, and that her husband had shown her a copy of it. This being so, we are of opinion that the court erred in directing a verdict in her favor. The case should have been submitted to the jury as to both defendants.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Moore 0. J., and Steere, Brooke, and Ostrander, JJ., concurred.


text:
    HALL v. DUPLEX-POWER CAR CO.
    1. Sales — Warranty by Implication — Contracts — Express as Excluding Implied Warranty.
    In an action for breach of an implied warranty of motor trucks, which proved to be worthless, any implied, warranty of fitness was excluded by clauses in the written contract of sale providing for prompt replacement of all defective parts, and requiring the purchaser to make all claims on account of defective equipment not made by the seller to the respective manufacturers of such portions.
    2. Same — Parol Evidence Rule.
    Evidence of an express warranty, not inoluded in the writing, was incompetent.
    3. Same — Fraud—False Representations — Trade Talk — Opinions.
    Evidence that the vendor told plaintiffs, who were inexperienced in handling motor trucks, that the cars had passed the experimental stage, that they were the best made and would do good work, and that the representations were false and induced plaintiffs to enter into the contract, tended to establish more than trade talk and warranted the submission to the jury of the question of fraud.
    4. Same — Evidence.
    All evidence, tending to prove that the trucks were not practicable and saleable as commercial machines, was competent evidence upon that issue.
    Error to Eaton; Smith, J.
    Submitted December 15, 1911.
    (Docket No. 131.)
    Decided March 12, 1912.
    Assumpsit by Eugene Hall and Clarence M. Hall, co-' partners, against the Duplex-Power Car Company for damages for fraud and breach of warranty. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Elmer N. Peters, for appellants.

      EranhA. Dean, for appellee.
   Stone, J.

The defendant is a Michigan corporation, and on November 27, 1909, was engaged in the business of manufacturing and selling automobile trucks, or motor trucks, at the city of Charlotte. The truck manufactured by the defendant is what is termed a “four-wheel drive;” that is to say, the power to drive the truck applies to all four wheels. On the day above stated the defendant entered into a contract with the plaintiff Eugene H. Hall for the manufacture and sale to him of two delivery cars and one passenger station car for the sum of $2,925. Under this contract the cars were to be delivered to the purchaser f. o. b. cars at Charlotte, Mich., not later than December 10, 1909. At the same time the defendant entered into what is termed a sales agency contract with said plaintiff, in which certain territory was assigned to the latter, in which he was to represent the defendant in selling the auto trucks manufactured by defendant. The seventh and eighth clauses of said last-named contract were as follows:

“ (7) That all claims on account of defective construction or material must be made by the party of the second part within sixty days after the delivery of the automobiles, and upon such parts being submitted to the party of the first part they will make prompt replacement, gratis, if upon examination by the party of the first part they are found to be defective. Freight and express charges on all parts returned to the factory for credit or replacement shall in all cases be prepaid.
“ (8) That all claims on account of defective equipment not manufactured by the party of the first part shall be made by the party of the second part to the respective manufacturers of such portions of equipment, and not to the party of the first part.”

At the time these contracts were entered into, the three cars contracted to be sold were in the course of construction. The plaintiff Clarence M. Hall was the partner of plaintiff Eugene H. Hall, in this transaction, and defendant’s officers knew that both plaintiffs were interested in the contracts as partners. Five hundred dollars were paid down on said November 27th, and on December 10, 1909, a further payment of $1,500 was made on the purchase price, and a note of $925 was given for the balance, signed by both plaintiffs. The trucks were delivered on board cars at Charlotte, Mich., on or about December 10, 1909, and were shipped to Kansas City, Mo.

The plaintiffs gave evidence tending to show the following facts: That they were entirely inexperienced in the matter of driving, using, or handling motor cars of any description, and were entirely inexperienced in the matter of selling automobiles and automobile trucks; and that these facts were well known to the defendant’s officers who negotiated the sale. The defendant’s officers also knew, at the time of the contracts, where the trucks were going, and that they were to be used as demonstrating cars, to enable plaintiffs to take orders and make sales of other cars. Upon the arrival of the cars at Kansas City, they were unloaded and placed for storage and exhibition with the International Garage Company of that city, which was a suitable location. Although the plaintiffs were inexperienced, and known to be so, in handling the cars, they employed competent and experienced men for that purpose, one of whom was a man recommended to them by defendant’s officers. It was the claim of the plaintiffs, and testified to, that the cars proved to be absolutely worthless for the purposes for which they were manufactured and sold; that they proved to be so faulty and poorly constructed and assembled that it was impossible to keep any one of them running a sufficient length of time to make a successful demonstration, or to effect a sale; that the workmanship throughout, in the matter of assembling, was so crude and unskillful as to render the machines valueless. There are a number of letters in evidence showing that plaintiffs kept defendant fully advised as to the situation, and of the fact that the cars were not standing up, but were defective. Within 60 days from the delivery of the cars to the plaintiffs, they returned from Kansas City to Charlotte, and went personally to the officers of the defendant, and reported to them fully their troubles with the cars, and that they had become satisfied that the cars were absolutely worthless, and attempted to get a settlement, but were unable to do so, and thereafter brought suit.

The declaration contains four counts, three of which were based upon an alleged breach of an implied warranty, and one being for fraud and deceit. The plea was the general issue. At the trial, and before any evidence was introduced, counsel for defendant objected to the introduction of any evidence, because it appeared from the contracts, which were set up in the declaration, that there was no warranty, and that the alleged representations were not such as could be made a basis of an action for fraud and deceit. The court admitted the evidence at the time, but ruled later in the trial that the plaintiffs could not recover upon the ground of breach of warranty, in view of the seventh and eighth clauses in the contract above set forth, but allowed the evidence to go in, under the count for fraud and deceit. When the plaintiffs rested their case, counsel for defendant moved the court to instruct the jury to render a verdict for the defendant, upon the ground that the evidence on behalf of the plaintiffs would not warrant a recovery for fraud and deceit, and that plaintiffs’ proofs failed to make out a case. The court thereupon directed a verdict for the defendant, and a judgment in its behalf followed.

The plaintiffs claim that there was ample evidence upon the question of fraud and deceit to have carried the case to the jury. In this connection they call attention to Exhibit A, which shows cut of Model A, Duplex-Power Cars, and the following printed matter:

“You can pay more but you cannot buy another delivery in America that can be depended upon to run the year ’round through mud, slush, and snow.
“This car will do more work than 2 horse-drawn rigs; with one less driver, costs less to maintain; quicker deliveries, well pleased customers. More of them.
“A ten-passenger bus that you won’t have to leave in the garage because of the mud or snow. Artillery wheels if you prefer them.
“ This is the 1,000 ffi>. capacity car that beat two double teams hours in a day’s laundry delivery. Making a total of 115 miles on 9£ gallons of gasoline.
“ Not a car offered for sale until they had made good on every kind of road in this country and they never flunked.
“Remember, these cars are not assembled jobs, simply put up to sell to people who do not know the difference, but they are manufactured in our own plant, where nothing but commercial cars are built, by men who gave their entire time and thought to the construction of the best commercial cars ever produced in America.”

Upon that subject the plaintiff Eugene H. Hall testified as follows:

“I think Exhibit A is the circular or part of the literature shown me at the time that we were negotiating for this purchase. We closed the contract with.E. A. Messier, who represented the defendant company. He was secretary at that time; there were representations made to me as to these machines and as to whether they had been tested, quite a good many. The representation was that they harmonized with their literature and that they were the best that were made. They represented them to be the best cars that possibly could be made; they were satisfied in their own mind they would do what other cars would not do, do great stunts; that they demonstrated to us what they could do with the cars.
“Q. Any representations made as to the quality of the material in the cars?
“A. Yes, sir; I was down through their basement where they were cutting gears, and they represented everything was of first-class quality that could be obtained.
“Q. As to the matter of workmanship ?
“A. That they employed only skilled workmen to assemble cars.”

In response to the question, “Was there anything said whether these cars had been perfected, or that they were in condition to be placed on the market ? ” he testified:

“ I know that was the climax, that they claimed they had passed their stage of experiments.” On cross-examination this plaintiff testified:
“ Q. You knew it was something of an experiment even at that ?
“A. No; it was represented to me that it had passed its stage of experiments. * * *
“Q. What was it that they said to you that deceived you?
“A. Well, they left me to believe it was past the experimental stage, and by these experiments we had with it there, it proved to be an utter failure, a complete failure.
“Q. Is that all they said or did to you that misled or deceived you ?
“A. That covered the whole proposition made, yes.
“Q. That is every statement they made that misled you, is it ?
“A. The statement was that these cars were perfect in every particular.”

This witness further testified that upon his return to Charlotte, and at a conference with Mr. Messier—

“ I told him (Messier) at that time that he represented to us that the cars were perfected, and had passed the experimental stage, and were capable of going out and doing all those stunts they were represented to do. He still made those claims. He thought the cars were all right; that it must be us. He never has denied to me that he had made those representations as to the quality of these cars. On the other hand, he claimed that the cars were exactly as represented. We claimed from our experience with those cars, that it was the general assembling of the cars which he had undertaken to put up that was imperfect. The parts we claimed would not work were parts we could not return. We claimed it was the assembling, the general construction of the cars, such as the main shaft being connected together in a manner, there was no part of it we could return here and no part we could send back. We claimed to him that the cars were generally deficient. * * * As I stated on cross-examination it was because of this claim that these cars were absolutely worthless, so fundamentally wrong they were a perfectly worthless thing, that we refused to accept their proposition made to us in writing.
“Q. Did Mr. Messier in making these representations to you merely state his thought or belief that these cars were as represented, or did he state these things as positive facts ?
“A. He stated them to be positive facts.”

The witness Clarence Hall testified to the same effect.

Morris Bollstrom, who was the inventor of the four-wheel drive, and a stockholder in defendant company, testified that he knew the representations made by Mr. Messier regarding these cars: it was that the cars had as a class been brought beyond the experimental stage; that it was certainly represented by him (Messier) that these cars had been developed to the stage that they were a salable machine, and ready to go on the market; that he remembered very distinctly the occasion of the sale of the cars to the plaintiffs; that he was present practically all of the time when the plaintiffs were negotiating with Mr. Messier regarding the transaction; that these cars were not to his satisfaction developed so that they were ready to be placed upon the market; that he protested against making a sale of any of them; that it was a patchwork job made in skeleton form, a little insertion here, a little insertion there, material here and there that was absolutely unsatisfactory to him, either as a sample or straight commercial salable proposition. He further testified that the cars of the class sold the plaintiffs had not stood practical tests in operation and use, and that he knew of their having been returned. There was other testimony to the same effect.

The plaintiffs have brought the case here by writ of error, and they assign error upon certain rulings of the court relating to the admission of evidence, and upon that part of the charge and ruling that the plaintiffs could not rely upon an implied warranty, and upon the direction of the verdict for the defendant.

Upon the subject of implied warranty, we are of opinion that the case is ruled by Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30 (107 N. W. 719). We think defendant’s counsel are correct in the claim that there can be no implied warranty when one is expressed; that the undertaking of the defendant to replace promptly all defective parts constituted a warranty within the doctrine of the case above cited. Section 7 of the contract defined the liability of the defendant, and excludes an implied warranty.

Another difficulty with plaintiffs’ position upon this branch of the case is that the evidence offered tended to show by parol an express warranty, other than that contained in the contract. This, we have held, cannot be permitted. We find no error in the ruling relating to an implied warranty.

We are of opinion, however, that the court should have submitted the case to the jury upon the question of fraud and deceit, and that it was error to direct a verdict for the defendant. Bearing in mind the nature of the representations testified to, and the entire inexperience of the plaintiffs in handling automobiles of this or any other kind, and the testimony tending to show the falsity of the representations, we must hold that there was sufficient evidence introduced, in support of the count for fraud and deceit, to entitle the plaintiffs to go to the jury upon this question. If it is a fact that these statements were made, and were relied upon by the plaintiffs, and induced plaintiffs to enter into the contract, and were false in fact, it is immaterial whether Mr. Messier believed them true. Krause v. Cook, 144 Mich. 365 (108 N. W. 81).

We cannot agree with counsel for the defendant that the statements testified to constituted mere “ trade talk,” and did not amount to material representations relied upon by the plaintiffs. See Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623), and cases there cited, bearing upon this subject.

Referring to the assignments of error relating to rulings upon the admissibility of evidence, it is sufficient to say that any competent evidence relating to the representations made by defendant’s officers to the plaintiffs in the course of the negotiations, and any competent evidence tending to show that at the time of making the contracts in question the cars had not reached a point where they were practicable and salable as commercial machines, was admissible and should not have been excluded.

We do not think that upon another trial these questions will arise, in view of what we have said upon that subject,

f For the error pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Steere, Brooke, Blair, and Ostrander, JJ., concurred.