author: McGrath, O. J.

text:
    McDONALD v. ALANSON MANUFACTURING CO.
    Garnishment — When Writ May Issue.
    A suit is commenced when the declaration is filed, within the meaning of 3 How. Stat. § 8058, authorizing the issuance of a writ of garnishment “ at the time of or after the commencement of suit.”
    Error to Emmet; Adams, J.
    Submitted October 11, 1895.
    Decided October 22, 1895.
    Garnishment proceedings by Patrick McDonald and .another against the Alanson Manufacturing Company, as garnishee of George Sinclair. From a judgment for plaintiffs, the garnishee defendant brings error.
    Affirmed.

      A. Plummer and George 8. Clapp, for appellant.

      Wade B. Smith (T. J. O’Brien and James JET. Campbell, of ■counsel), for appellees.
   McGrath, O. J.

The declaration herein was filed April 13, 3 894. A writ of garnishment was issued on the same ■day, and served April 14, 1894. Plaintiffs afterwards ■filed an affidavit of service of the declaration upon the principal defendant, in Ohio, under 2 How. Stat. § 8087. Defaults were subsequently entered, and judgments taken. On September 12, 1804, the principal defendant appeared specially, and moved to set aside the judgment against him, and at the same time parties claiming under an alleged assignment from Sinclair moved to set aside the judgment against the garnishee defendant, and that the assignees be allowed to intervene. Both motions were, on October 16, 1894, granted. Pending these motions, and on September 28, 1894, personal service upon Sinclair was obtained, his default for want of appearance was taken, made absolute, and judgment had. Subsequently, judgment was had against the garnishee, who appeals.

It is contended that no suit had been commenced, under 3 How. Stat. § 8058, when the writ of garnishment issued. The language, “ at the time of or after the commencement of suit,” was clearly intended to refer to the filing of the declaration, or other act entitling plaintiff to process. The recitation in the garnishee summons of the commencement of suit is predicated upon what appears, and not upon the delivery of the writ in the principal suit to the sheriff, or its service. Such is the practical construction which has been given to this act ever since its adoption.

The other questions in the case are ruled by Axtell v. Gibbs, 52 Mich. 639.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J. Montgomery, J.

license: Public Domain

text:
    JOHN HUTCHISON MANUFACTURING CO. v. PINCH.
    Written Contract — Parol Evidence.
    Where a writing does not embody all of the terms of a contract between the parties, an additional agreement may be shown by parol. This rule, however, does not admit of contradicting the terms of so much of the agreement as is reduced to-writing.
    Accordingly, where an order for the purchase of mill machinery provided merely that it was to be paid for “ when the mill was fixed and gave good results,” it was held that parol evidence was admissible to show an agreement by the seller to set up the machinery and repair the mill within a specified time, but not to show a representation by him that such machinery would require no more power for its operation than machinery then in use by the buyer.
    ON REHEARING.
    1. Appeal — Objections Not Raised Below.
    Objections raised for the first time in the Supreme Court will not be considered.
    2. Same — Objections to Testimony.
    Where testimony is admissible for any purpose, a general objection that it is irrelevant, incompetent, and immaterial is insufficient to raise the question that it is inadmissible because-it tends to vary the terms of a wri.ten contract.
    Error to Eaton; Smith, J.
    Submitted October 11,1895;
    original opinion, for reversal, October 22, 1895.
    Rehearing granted December 24, 1895; final opinion, vacating former order, February 26, 1896.

      Assumpsit by the John Hutchison Manufacturing Company against Benjamin W. Pinch for machinery and repairs furnished for defendant’s mill. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John M. Corbin, for appellant.

      Carry C. Fox (James M. Powers, of counsel on rehearing),, for appellee.
   Montgomery, J.

This case comes before the court for review a second time. The main- facts of the case are reported in the opinion found in 91 Mich. 156. Before the last trial, defendant amended his notice attached to the plea, setting up as a defense that at the time of the contract the plaintiff agreed that the machines which, were to be used would not require any more power than it required to run the machinery then in the mill. Defendant’s testimony upon this subject was that, upon January 11, 1890, Mr. Hutchison and Mr. Crandall, a millwright employed by plaintiff, were, in company with Mr. Horn, defendant’s miller, examining the mill for the purpose of seeing what machinery was required. During the examination, Mr. Horn said to Mr. Hutchison and Mr. Crandall:

“It seems to me you are going to put in a good deal of machinery here. We have got all the .machinery our power will carry, and, if you are going to add any machinery that will take more power, we have got to make some other arrangements.”

Mr. Hutchison then said that the machinery they were going to put in would run a great deal lighter than the old machinery, and that it would run with less power than was then required. After this conversation, the defendant subscribed the following order:

“Olivet, Mich., January 11, 1890.
“John Hutchison,
“Jackson, Midi.
“Dear Sir: Please ship me one No. 2 round flour-dressing reel; two No. 2 round flour-dressing reels for a Smith centrifugal reel; one No. 2 round grading reel, twelve silk chest, over all 13, shaft to be 14 x 2 3-16; two boxes for same, 2 3-16; one No. 2 aspirator; one No. 1 round’ rolling screen with fan; one No. 3 dustless screening separator; — f. o. b. cars, Jackson, §575. I agree to settle for the above when the mill is fixed and gives good results. Part cash and part time.
“B. W. Pinch.”

Plaintiff contended that the testimony above given was inadmissible, as it tended to vary the terms of the written order; but the court overruled the objection to the testimony, and permitted defendant to recover damages for a breach of the alleged agreement. It is contended by defendant’s counsel that the case falls within the line of decisions holding that parol testimony may be admitted when there is a writing between the parties which does not embody all the terms of the contract. It is the accepted rule that, in such case, an additional agreement may be shown, and the rule was properly applied in the present case in admitting testimony to the effect that plaintiff agreed to furnish millwrights to put the mill in order within 10 days from the time the repairs were commenced; but this rule does not admit of contradicting the terms of so much of the agreement as is reduced to writing. In the present case, the order is not silent as to the requirements of this machinery. The machinery is to be paid for “when the mill is fixed and gives good results.” This much the parties reduced to writing, and parol testimony of any agreement adding to this requirement, which is fixed in the agreement, is necessarily contradictory of the written instrument. McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 269; Nichols, Shepard & Co. v. Crandall, 77 Mich. 401; Rumehy & Co. v. Emmons, 85 Mich. 511; Seitz v. Machine Co., 141 U. S. 510; Cohen v. Jackoboice, 101 Mich. 409. While the warranty is somewhat vague, we think it is equally an invasion of the rule to permit parol testimony to show that it was in fact more definite. Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 150.

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

M.cGrath, O. J., and Grant, J., concurred. Long and Hooker, JJ., did not sit.

ON REHEARING.

Montgomery, J.

An opinion was handed down ait the ' last term of court reversing the judgment below, and directing a new trial. Ante, 12. On application, we granted a rehearing, for the reason that the fact that no exception was taken to the ruling admitting the testimony, which we held to be incompetent, escaped the attention of the court. Plaintiff’s counsel contends, however, that other evidence was received, subject to objections and exceptions, which raised the same question. This evidence was of this character: Defendant ■offered proof to show that the mill required more power than it did before the repairs were made. Upon a careful scrutiny of the record and of the objections urged, we are impressed with the view that the question discussed in the former opinion was not presented by the objections referred to. It is clear that the question was not considered by the circuit judge, and that the objections were not sufficiently specific to inform him that the plaintiff sought to make the contention that the written contract between the parties embraced the other agreement in such sense that the testimony referred to in the former opinion, or the testimony as to the requirement of increased power, should not be admitted for that reason. This view is strengthened by the consideration that the testimony showing that the increased power was made necessary by the changes in the mill would have some bearing on the question of whether the work answered to the warranty that the mill should give good results. As this testimony was objected to generally as irrelevant, incompetent, and immaterial, we think the defendant was mot apprised of the precise nature of the plaintiff’s objection, if, indeed, the counsel who then tried the case had in mind the point subsequently pressed; nor do; we think the point one which, on the objection made to this testimony, would be likely to suggest itself to the court. The point was not suggested by any request to charge, but the plaintiff’s first request, relating to the claim of damages because of the mill requiring increased power, is based upon another distinct claim, namely, thait defendant had accepted performance of plaintiff’s contract, so as to preclude him from raising the question.

Counsel for the plaintiff has discussed other questions, and those presented by his original brief have been considered. We think the amendment of the notice under the general issue was warranted, and that the proofs as to the increased amount of power being made necessary • by the repairs were not objectionable upon any ground urged before the circuit judge, and that the case was fairly submitted upon the issue as the plaintiff sought to put it before the jury.

The judgment will be affirmed.

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


author: Montgomery, J.

text:
    SHACKELTON v. MANISTEE & NORTHEASTERN RAILROAD CO.
    Master and Servant — Injury to Railroad Employe — Assumption of Risk.
    Plaintiff’s intestate, a freight conductor, was thrown from a way car, and killed, by reason of the absence of a hand rail, which,- pursuant to his instructions, had. been removed for repair a few days previously by a workman in the repair shop of the common employer. Shortly after its removal, the assistant superintendent, noticing the defect, had directed the deceased to see that it was remedied; whereupon the deceased again told the workman to repair and replace the rail, which the latter -promised to do, but neglected it. The deceased, however, continued to use the car, without protest, up to the time of the accident. Held, that the deceased assumed the risk arising from the defective condition of the car, the facts stated not bringing the case within the exception to the general rule obtaining where the servant has been induced to continue the use of defective appliances by reason of the master’s promise to repair,
    Error to Manistee; MoMakon, J.
    Submitted October 11, 1895.
    Decided October 22, 1895.
    Case by Carrie V. Shackelton, administratrix of the estate of John W. Shackelton, deceased, against the Manistee & Northeastern Railroad Company to recover damages for the alleged negligent killing of plaintiffs intestate. From a judgment for defendant upon verdict directed by the court, plaintiff brings errtor.
    Affirmed.

      Charles A. Withey and Frank E. Withey (Smurtlmaite & Foioler, of counsel), for appellant.

      T. J. Ramsdell and M. J. Smiley, for appellee.
   Montgomery, J.

Plaintiff, as administratrix, sues to recover damages for the death of her husband, alleged to have been caused by the defendant’s negligence.

The deceased was a conductor on a freight train of the defendant company, and the injuries resulting in his death were caused by his being thrown off the rear end of the way car to the track, and the train passing over him. The oar from which he was thrown had hand rails provided on either side of the steps, the rear hand rail extending to the brake, so that a sudden lurch of the car would not result in throwing one attempting to alight from the car. On the occasion in question, however, this rear hand rail had been removed, and the testimony offered by the plaintiff tends to show that while deceased was stepping down from the oar he was thrown off because of this defect. There is no room for attributing any negligence to the defendant, unless it be for the absence of this hand rail at this time.

A few days before the accident, deceased and his trainmen, when using the way car in question, allowed it to run against a car loaded with logs, which extended over the ends of the car on which they were loaded, slo that, coming in contact with the hand rail, they bent it nearly against the side of the car. Deceased thereupon called the attention of a workman in the defendant’s- repair shops to the hand rail, and asked him to take it off and repair it. The workman replied, “All right,” and took it off. Deceased then started off with the ea,r, without reporting the defect to the superintendent, as required by the rules of the company, and without making any objection to using the defective car to those in authority, or to any one connected with the defendant in any way. While on his trip that day the assistant superintendent saw the car, and -said to deceased: “You want to see that that is fixed. Get it fixed.” Deceased again called the attention of the workman in the repair shop to it, and he again promised to fix it, but neglected to- do so-. Deceased, however, continued in the use of the car without protest, until he was killed in the manner above described.

The plaintiff’s counsel recognize the general rule that the servant who engages in the use of, or continues in the use of, defective machinery o-r appliances, assumes the risks incident to the employment, but seek to bring this case within the exception to the rule which -obtains in case the servant has been induced to continue the use of the defective appliances by reason of the master’s promise to repair. The present case is not within any such exception to the rule. No one representing the master had induced deceased to continue in the use of the car in its then condition. The employé in the oar repair shop certainly gave deceased no such directions. On the contrary, he was acting under instructions received from the deceased. The statement of the assistant superintendent, so far from being authority to continue the use of the car, was more in the nature of a rebuke for using it in its then condition. The most that can be said is that the company might have been negligent in not repairing the oar soioner, but such negligence was open to the observation of the deceased, and he saw fit to continue in the use of the oar. He made no objection to using it in its crippled condition; gave no notice to any one in authority which would indicate to defendant that he refused to take the risk, which was as apparent to him as to any one connected with the road. The circuit judge was right in directing a verdict for the defendant.

The judgment will be affirmed.

McGrath, O. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


author: Grant, J.

text:
    TOWNSHIP OF PLAINFIELD v. SAGE.
    Taxes — Forest Products — Where Assessable.
    Logs stored in a lake, close by a railroad, awaiting facilities for shipment by rail, are not in transit, within the meaning of 3 How. Stat., § 1170b, subd. 4, providing for the assessment of such property at its place of destination, but are within the proviso to said section that logs piled or left, in any yard or railroad reserve shall not be deemed in transit, but shall be assessed to the owner thereof in the township where situate.
    Error to Bay; Cobb, J.
    Submitted October 11, 1895.
    Decided October 22, 1895.

      Assumpsit by the township of Plainfield against Henry W. Sage and others to recover a tax assessed against certain logs belonging to defendants. From a judgment for defendants upon verdict directed by the court, plaintiff brings error.
    Reversed.
    Defendants are residents of the State of New -York. They own a saw mill plant at West. Bay City, Mich., where they manufacture their logs into lumber. In the winter of 1890-91, in the township of Plainfield and an adjoining township, they cut and hauled 6,500,000 feet of logs, and put them into Loon lake, which is about two miles long and three-fourths of a mile wide. They placed a boom around them, upon the ice, to prevent their floating over the lake when the ice should break up. Their ultimate destination wais the defendants’ mill at West Bay City. On one side of the lake there had formerly been a hoist for the purpose of taking the logs from the lake, and loading them on the cars for transportation. A spur track had also formerly been built from the mam line of the railroad to this hoist, but had. been discontinued. This spur track and hoist were to be rebuilt for the use of the defendants. The logs were hauled upon the lake about half a mile from the hoist, and, as they were left upon the ice, extended to the hoist. The hoist was between the two points where the boom was attached to the shore, and the point where the logs were brought upon the lake was between the two ends of the boom. The boom, therefore, included both the bank-. ing ground and the hoist. As soon as the ice broke up, early in April, they commenced to crowd the logs towards the hoist with the boom sticks. The hoist and spur track were completed about June 5th, when defendants commenced the transportation by rail. A tax was assessed against these logs by the plaintiff, for the recovery of which this suit is brought.

      M. J. Oonnine (MeDonell & Hall, of counsel), for appellant.

      T. F. Shepard, for appellees.
   Grant, J.

(after stating the facts). The sole question presented is: Were these logs in transit on the second Monday in April, — the time fixed by the statute for the assessment of all property? 3 How. Stat. § 117061. The statute providing for the assessment .of forest products is as follows:

'‘Personal property of non-residents of the State, and all forest products owned by residents or non-residents or estates of deceased persons, shall be assessed to the owner or to the person having control thereof in the township or ward where the same may be, except that, where such property is in transit to some place within the State, it shall be assessed in such place: Provided, all forest products in transit on the second Monday in April, and thereafter found in the waters or streams of this State, or on the banks or shores of any lake, pond, or stream of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of such stream, unless the contrary shall be made to appear by the owner or party having the same in charge: Provided further, that all lumber, logs, timber, lath, pickets, shingles, posts, cordwood, tanbark, telegraph or telephone poles, or railroad ties, that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed 'in transit, but shall be assessed to the owner thereof in the township or ward where the same may be situate at the time provided for by law for taking any assessment.” 3 How. Stat. § 11706, subd. á.

These logs are not affected by the first proviso, since they were not in transit over any of the waters or streams of this State, within the meaning of that proviso. The last proviso is the controlling one. We held in Maurer v. Cliff, 94 Mich. 194, that logs and lumber piled along a railroad track, awaiting the convenience iof the owner or the facilities for shipment, were not in transit, and that they were liable to assessment in the township where situate. Obviously, there is no distinction between a storage on land and in the water, awaiting facilities for shipment by rail. These logs were no more in transit than they would have been had they been left upon the skidways in the woods, or piled along the railroad, awaiting shipment. They were stored in the lake, close by the railroad, and so remained for two ^months, for the convenience of the defendants. They were, therefore, not in transit, within the meaning of the statute, and were properly assessed in the plaintiff township.

Judgment reversed, and new trial ordered.

The other Justices concurred. '


text:
    HUDSON v. McKALE.
    Conditional Sale — After-Acquired Property — Lien of Vendor —Chattel Mortgage.
    A contract for the sale of a stock of goods, reserving title in the vendor until payment of the purchase price, and providing that goods purchased to replace those destroyed, “ as well as all others used in the business,” shall be subject to the lien of the agreement, operates, as to property subsequently acquired, as a mortgage, and, unless filed as required by 2 How. Stat. § 6193, is to that extent void as to creditors of the vendee.

    Error to Ingham; Person, J.
    Submitted October 12, 1895.
    Decided October 22, 1895.
    Replevin by Lester S. Hudson against William H. McKale for goods seized on attachment as the property of a third party. From a judgment for plaintiff on verdict directed by the 'court, defendant brings error.
    Reversed.

      William A. Fraser (Slornan, Groesleelc é BoMnson, of counsel), for appellant.

      M. 7. & R. A. Montgomery, for appellee.

       The Michigan cases upon the subject of conditional sales ai-e collected in a note to Pettyplace v. Manufacturing Co., 103 Mich. 160. For cases determining the character of an instrument, as a mortgage or otherwise, see note to Damm v. Mason, 98 Mich. 237. As bearing upon the construction of section 6193, see Watson v. Mead, 98 Mich. 330, and note.

   Montgomery, J.

Plaintiff was, prior to the 15th day of August, 1892, the owner of the stock and fixtures in a saloon in the city of Lansing. On that day he made a conditional sale of the property to one O. M. Webb. The contract provided that the title to the property should remain in the plaintiff until the purchase price was paid. One-half the consideration was paid down, and the rest was to be paid in installments. The contract, which was signed by both parties, contained the following provisions:

“ Said second party does severally agree to pay said first party the full and true sum of four thousand ($4,000) dollars, and the interest herein provided, according to the terms of this agreement; to use with care the property hereby intrusted to his care and use; to replace such of said property as is broken or destroyed; and to submit such substituted goods, as well as all others used in the above business, property, and chattels, to the lien and operation of this agreement.”

After the purchase, Webb continued the business at the old stand, but in his own name, and bought goods on credit. Among others who sold him goods were Sloman & Go., who caused a levy to be made by the defendant, as constable, on goods purchased in the name of Webb, and shipped to him, and received into the saloon. Plaintiff brought replevin. On the trial the circuit judge directed a verdict for the plaintiff, and defendant brings error.

The circuit judge evidently treated the agreement that all stock purchased by Webb should become the property of Hudson as a sale of the.property to Hudson; and, there being no evidence that there was fraud in fact on the part of Hudson, the court held that the rights of the parties were governed by section 6190, 2 How. Stat., and that the title passed.

Section 6193, 2 How. Stat., provides that every mortgage, or conveyance intended to operate as a mortgage, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession, shall he absolutely void, as against creditors of the mortgagor, unless the mortgage or a copy of it be filed, etc. As to instruments falling within its terms, this latter section has superseded section 6190. Cooper v. Brock, 41 Mich. 491. We are agreed that this instrument was one which, as to the property subsequently acquired by Webb, was intended to operate as a mortgage. There is no pretense that Hudson was to acquire any title, except as security for a debt, nor can it be contended that his title would continue after the debt was paid. It is true, this, court has gone far in sustaining conditional sales reserving title in the original owner, but to sustain plaintiff’s contention here would open a door to great injustice, and would be going a step beyond any ruling whiah this court has ever made. If this contention should prevail, one might make a sale of a single bale of cotton cloth to a merchant, and by contract acquire a secret title to all goods thereafter placed in stock, while, as to the general public, the stock might appear to be free from all incumbrances.

The case of Blanchard v. Cooke, 144 Mass. 207, cited by plaintiff’s counsel, does not support his contention. In that case the plaintiff had taken possession of the goods before any lien attached in favor of creditors. The court held it to be sufficient to make the mortgagee’s lien effectual “if the property is delivered to him before, and is retained by him until, the rights of third persons have attached.” But it was said in the case, distinctly:

“As the effect of the contract is that Cooke covenants that the legal title to. a fractional part of the after-acquired goods shall vest in Blanchard as security for the payment of the debt due to him, ■ Blanchard’s position, even in equity, ought not to be better than if he held an ■unrecorded mortgage of these after-acquired goods as security for the debt; and a mortgage of after-acquired goods cannot, in any event, give a better title than a mortgage of goods belonging to the mortgagor when the mortgage is executed.”

This latter reasoning we deem sound; but, while it is not necessary to a decision of this case, it is proper to say that the ruling upon which Blanchard v. Cooke would appear to have turned is not in harmony with the holdings of this court in Fearey v. Cummings, 41 Mich. 376; Waite v. Mathews, 50 Mich. 392; and Crippen v. Jacobson, 56 Mich. 386.

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

The other Justices concurred.


author: Per Curiam.

text:
    POPE v. JUDGE OF RECORDER’S COURT.
    1. Bill of Exceptions — Settlement—Mandamus.

      Mandamus will not lie to compel a trial judge to sign a bill of exceptions presented to him, where he avers the same to be incomplete and inaccurate; but upon the bill so presented, and the amendments offered thereto, he should settle such bill as he deems tó be proper.
    2. Same — Exceptions in Criminal Case.
    The respondent in a criminal case cannot be compelled to furnish a copy of the testimony as a prerequisite to the settlement of a bill of exceptions.

      Mandamus by Nellie W. Pope to compel William W. Chapin, judge of the recorder’s court of Detroit, to sign a bill of exceptions.
    Submitted October 22, 1895.
    Denied October 23, 1895.

      Henry M. Oheever and John Atkinson, for relator.

      Allan H. Fraser, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for respondent.
   Per Curiam.

In this matter relator asks for an order requiring the respondent to sign the bill of exceptions which has been presented. We do not think that the relator is entitled to the order prayed. The recorder should, however, fix a day for the settlement of a bill of exceptions, and at such time he should proceed, upon the bill presented, and such amendments as may be offered by the prosecuting attorney, to consider the matter, and to settle such bill as in his judgment is proper. We do not think that the relator can be compelled to furnish a copy of the testimony in the cause.


text:
    WALSH v. ST. CLAIR CIRCUIT JUDGE.
    Mandamus — Procedure.
    Questions arising during the course of a proceeding will not be reviewed on mandamus, at least where the decision of the lower court was not made on the merits after full consideration, but for the sole purpose of obtaining a ruling by the Supreme Court,
    Joseph Walsh, assistant prosecuting attorney for St. ■Clair county, applied for a writ of mandamus to compel :Samuel W. Vance, circuit judge of said county, to vacate an order sustaining certain objections to the petition of the auditor general for the sale of lands delinquent for taxes.
    Submitted October 24,1895.
    Order to show cause denied October 25, 1895.

      Joseph Walsh, in pro. per.

   Per Curiam.

In this matter it appears upon the face of the application that the court, for the purpose of having the determination by the Supreme Court,” held the objections made to the proceedings good. The court ■should have passed upon each of the points raised upon its merits. The questions suggested are mure properly reviewable on appeal, and the court below should have regarded the matter in that light. In any event, we do not feel called upon to review questions arising during the course of a proceeding, at least until the final judgment of the court below has been given after full consideration.

The application will therefore be denied.


text:
    OSMUN v. OAKLAND CIRCUIT JUDGE.
    Estates oe Decedents — Contingent Claim — Note Secured by ‘ Mortgage.
    A' note payable absolutely, secured by • real-estate mortgage, is not, as between the holder and the estate of the maker, a contingent claim, within 8 How. Stat. § 5983, providing that “if any person shall be liable as security for the deceased, or have any other contingent claim against his estate, which cannot be proved as a debt before the commissioners, or allowed by them, the same may b^ presented, with the proper proof, to the probate court or to the commissioners, who shall state the same in their report.”

      Mandamus by William H. Osmun, Sr., to-compel Joseph B. Moore, circuit judge of Oakland county, to set aside certain action by commissioners on claims, and to dismiss an appeal taken therefrom.
    Submitted October 22, 1895.
    Denied November 5, 1895.

      Newton & Gold and Junius Ten Eyck, for relator.

      Charles F. Collier (Clarence Tinker, of counsel), for respondent.
   Montgomery, J.

Commissioners on claims were appointed in the estate of Reuben Green, deceased, by the probate court of Oakland county. Relator, who held a note executed by the deceased, which was secured by a real-estate mortgage, filed a claim before the commissioners, in which he stated that he presented the claim for allowance as a contingent claim. The commissioners allowed the claim at $4,638.50. Relator claimed that this was little more than half the amount actually due him, and took an appeal to the circuit court. Subsequently he moved the court to set aside the appeal and the order of the commissioners making the allowance, and to dismiss the case without prejudice, on the ground that the claim is a contingent claim under the statute; and it is said, and properly, that if the claim is a contingent claim within the meaning of the statute, the sole duty of the commissioners was to take the proofs, and report them to the probate court. Buchoz v. Pray, 36 Mich. 430; Campan, v. Miller, 46 Mich. 148.

Assuming, therefore, that the relator has not by his appeal waived his right to make the contention, the sole question is whether a note, payable absolutely, secured by a real-estate mortgage, is, as between the holder and the estate of the maker, a contingent claim. Section 5932, 3 How. Stat., reads: “If any person shall be liable as security for the deceased, or have any other contingent claim against his estate, which cannot be proved as a debt before the commissioners, or allowed by them, the same may be presented, with the proper proof,” etc. This statute was referred to in Clark v. Davis, 32 Mich. 154, and it was indicated that, as between the mortgagee and the deceased, the mortgagee had the right to prove his claim as a debt against the estate.

We think that it is clear from the language of the statute that it was not intended to class as a contingent claim such a demand as the relator presents. His claim depends upon no contingency whatever. The right to present such a claim as his was also recognized in Larzelere v. Starkweather, 38 Mich. 96, in which case it was held that the presentation of the claim before the commissioners did not prevent the mortgagee from securing his claim by foreclosure.

The writ will be denied, with costs.

The other Justices concurred.


author: Hooker,, J.

text:
    LAUBACH v. O’MEARA.
    1. Mandamus — Public Officers — Assessment of Taxes.

      Mandamus will lie to compel a ministerial officer to discharge the duties imposed upon him by statute with reference to the assessment and collection of taxes, unless the circumstances are clearly such that justice requires that the writ should not issue.
    2. Same — Drain Tax.
    Where a special assessment roll for the construction of a drain has been filed with the township clerk under 3 How. Stat. § 1740/2, neither the clerk nor the supervisor can refuse to take the steps prescribed by section 1740/3, for laying the assessment before the board of supervisors, because of alleged irregularities in the proceedings to lay out the drain.

      Certiorari to Kent; Grove, J.
    Submitted October 8, 1895.
    Decided November 5, 1895.
    Benjamin Laubach and John Germain, as drain commissioners of the counties of Kent and Allegan, respectively, applied to the circuit court for a writ of mandaauub to compel Michael J. O’Meara, clerk, and James S. Toland, supervisor, of the towuship of Byron, Kent county, to lay a certain drain assessment before the board of supervisors. Respondents bring certiorari to review an order granting the writ.
    Affirmed.

      W. D. Fuller, for relators.

      Maher & Salsbury, for respondents.
   Hooker,, J.

The defendants are, respectively, township, clerk and supervisor of Byron township, Kent county;, and the relators are, respectively, drain commissioners, of the counties of Kent and Allegan. Having taken proceedings to lay out a drain known as the “Byron and Dorr County Drain,” they delivered the special assessment rolls to the township clerks of the respective townships of Byron and Dorr. The taxes were duly assessed and collected in Dorr township, but respondent O’Meara wrote to the relators to the effect that the township board refused to spread the assessment on the roll of •Byron township, and the supervisor of that township failed to lay said special assessment before the board of supervisors. The petition for mandamus charges that the respondents have Conspired to prevent the making of the assessment. The respondents defend upon the claim that the assessment, if made, would be invalid, because of irregularities in the proceedings to lay out the drain, and contend that this fact justified their failure to act. The drain has been completed.

The law (3 How. Stat. §§ 1740jf2, 17407;,) provides that the drain commissioners shall make a special assessment roll, and file it in the office of the township clerk, who is required by section 1740f3, on or before Octobér 1st, to make and deliver to the supervisor a certified statement of the taxes to be raised upon the respective descriptions of land. The supervisor is, in turn, required to lay the matters thus certified before the board of supervisors. 3 How. Stat. § 17á0fB. The duty of the clerk to certify to the supervisor, and of the supervisor to lay the matter before the board, is statutory. No discretion is lodged with either. The levy of taxes and assessments cannot depend upon'the opinion of these officers as to their regularity. While they could not be compelled to perform the specified acts unless the proper assessment roll was. filed and certificate delivered, it is not for them to sit in judgment upon the propriety of enforcing tax levies, and assessments.

In Smyth v. Titcomb, 31 Me. 286, where a treasurer refused to issue a warrant of distress against a collector who had neglected to complete the collection of a tax, the court said:

“It does not lie with the respondent, as a ministerial officer, to object that the law under which the tax was laid was unconstitutional. He is not authorized or required to adjudicate the law. On a summary hearing on a petition for a. mandamus, this court will not determine the question of the constitutionality of the law, involving the rights of third persons, but will leave that question to be settled when properly presented by parties to an action. * * * A public officer, intrusted with the collection and disbursement of revenue, * * * has no right to refuse to perform Ms ministerial duties, prescribed by law, because he may apprehend that others may be injuriously affected by it. * * * He is not responsible for the law, or for the possible wrongs which may result from its execution. * * * Public policy, as well as public necessity and justice, require prompt and efficient action from such officers. * * * The consequences would be ruinous, if they could withhold their services, and the necessary means, either from timidity or captiousness, until all questions of law which might arise in the performance of their official duties should first be judicially settled.”

In People v. HAlsey, 53 Barb. 547, the refusal of a treasurer to issue a warrant to the sheriff to make a tax from real estate was commented upon, as follows:

“This is a mere ministerial duty, which the statute imposes upon the treasurer, and peremptorily requires him to perform, upon the return of the collector being duly made containing the necessary facts. He has no discretion to exercise in the matter, and is invested with no judicial functions whatever in regard to it.”

In affirming this case, the court of appeals said that “his attempt to substitute for it his own unauthorized judgment is highly reprehensible, and should not pass without rebuke. Such conduct is subversive of good order, and detrimental to the public interests.” 37 N. Y. 344.

In Waldron v. Lee, 5 Pick. 328, where it was sought to •compel the town treasurer to act upon a certificate of the assessors, it was said:

“No more proper case can arise for an application like the present than where those intrusted with the eollec1ion of the revenue of the country refuse to perform their duty; for, without a vigorous compulsory power upon them, great public mischief might ensue.”

The case of Common Council of Hudson v. Whitney, 53 Mich. 158, is in point. In that case it was held that a recorder cannot refuse to advertise and sell lands returned for a delinquent paving tax, on the ground that he believes the action of the council in laying the tax to be illegal, if the proceedings are sufficiently fair on their face to protect ministerial action, and the work has been done, and the tax, in a great measure, paid in.

The cases from New York indicate that it is within the discretion of the court to refuse the writ in cases where the circumstances are such as to show that justice requires it, within which rule the cases of Nugent v. Erb, 90 Mich. 278, and Board of Supervisors of Cheboygan Co. v. Supervisor of Mentor Tp., 94 Mich. 386, would seem to come. In the present case, we think, there is nothing to take the case out of the general rule above stated.

The writ was properly issued as prayed, and the order of the circuit court is hereby affirmed.

The other Justices concurred.


author: Long, J.

text:
    MORGAN v. ANDREWS.

    1. Libel — Words Actionable per Se.
    A letter stating that a designated person is “ a liar and dead beat of the first order, and I would like to sue him to get what he owes me,” is libelous per se.

      2. Malicious Interference with Contract.
    Plaintiff entered into a contract to design and construct a machine which should produce certain results, but which the purchaser should have the right to reject if not satisfactory to him. A corporation was thereafter organized to continue the business of the purchaser, and defendant became a stockholder therein and manager of the business. Maliciously, and by falsehood and deceit, defendant induced the purchaser to reject the machine, which he would otherwise have accepted. Held, that defendant was liable for the resulting damage to plaintiff.
    Error to Washtenaw; Kinne, J.
    Submitted October 10, 1895.
    Decided November 5, 1895.
    Case by Benjamin B. Morgan against Fred C. Andrews for libel, and for malicious interference with a contract between plaintiff and third persons. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. Willard Babbitt (A. J. Sawyer, of counsel), for appellant.

      Maybury d Limiting, for appellee.

       Rehearing denied December 24, 1895,

   Long, J.

December 28, 1887, plaintiff entered into a written contract with Henry P. Clover and Enoch C. Bowling to construct a dress-stay machine. Payments were to be made from time to time as the work progressed, until $1,200 was paid, and payments were to be made up to $2,000 when the machine was completed and a satisfactory test made. It was also provided that further payments were to he made up to $20,000 out of moneys earned by the machine. The contract contained a stipulation that the machine must be satisfactorily completed. Plaintiff, claiming that the machine was completed, brought suit in the Wayne circuit court against Glover & Bowling for the price. He was defeated in that action, and no appeal was taken. The court held, in that case, that the test must be satisfactory to Glover & Bowling.

During the progress of that trial, the plaintiff claims that the defendant in the present case wrote Judge Hosmer, before whom the trial was then being had, the following letter:

“Ann Arbor, Mioh., 11 — 17—’92.
“Judge Hosmer: If you wish to know what kind of a man Morgan, of Ann Arbor, is, I can tell you. He is a liar and dead beat of the first order, and I would like to sue him to get what he owes me.
“Respectfully,
“George Dunn.”

The declaration in the present case contains several counts. The second and third counts are for libel, and the above letter is set out as the article relied upon. The third count sets out the making of the contract with Glover & Bowling, the completion of the machine, the delivery of it to Glover & Bowling, their refusal to pay for it, the suit in the Wayne circuit court, and the letter claimed to have been written by defendant, Andrews. In this count it is alleged that the defendant had been interested in the business with Glover & Bowling, and was interested in the outcome of the suit, and took an active part in the trial, both as a witness and in furnishing evidence to the defendants.

The fourth count sets out, substantially, that plaintiff was a mechanic, machinist, and inventor, and that Glover & Bowling were making dress stays by hand at Ypsilanti when the contract was made between the parties for the manufacture of the machine. It sets out the contract in full, and then avers that—

Plaintiff entered upon the designing and constructing of such a machine as is described in and called for by said contract, and worked upon the same by and with the consent of the said Glover & Bowling until, to wit, on or about the 1st day of January, 1890, when he had completed the said machine, ready for the final test and acceptance by said Glover & Bowling, under said contract; and said machine was equal in all respects to the. requirements of the said contract, and ought to have been accepted by the said Glover & Bowling; and plaintiff had expended upon said machine, in the construction thereof, in labor and materials, upwards of $4,600, a portion of the same, to wit, $1,200, being the means of said Glover & Bowling, and the remainder of the same being the means of the plaintiff. And the said defendant was connected, in some way unknown to the plaintiff, in business with the said Glover & Bowling during most of the time of the building of said machine, and during all of the latter part of the time, to wit, from the 1st day of January, 1889, and thereafter, and particularly during all the time of the trial tests of said machine and of the different parts thereof, -which were made at the factory of the said Glover & Bowling, where also the said defendant was engaged as superintendent or manager. And plaintiff further avers that said defendant, with intent to injure the plaintiff, and falsely, wrongfully, wickedly, and maliciously, did, by taking advantage of his said position aforesaid, by subtle devices, falsehood, deceit, and fraud, cause and procure the said Glover & Bowling to refuse to accept the said machine, and to refuse to prtonounce the test thereof satisfactory, and, by means of such fraud and falsehood, caused and procured said Glover & Bowling to reject said machine; whereas in truth and in fact the said machine would and did manufacture one thousand gross and upwards of said dress stays, per day of ten hours, pinked, and equal, as a finished product, to the handmade stays of the said Glover & Bowling, as made at the time said contract was entered into, and -in all respects said machine was equal and superior to the machine contracted for in said contract, and the same ought to have been accepted as satisfactory by the said Glover & Bowling, and they would have so accepted the same, and paid the plaintiff therefor, according to the terms of the contract, but for the false, fraudulent, and malicious conduct and machinations and devices of the defendant as aforesaid. And by means of such wrongs and injuries, falsehood and malice, of the defendant as aforesaid, plaintiff was deprived, not only of the profits of said contract, but wholly lost all that he had expended upon the construction of the said machine as aforesaid.”

The proofs tended to show that the plaintiff expended a large amount of money in the construction of said machine, about $3,000 of his own money; that he was about two years at work upon it, and completed it about December 1, 1889; that Glover & Bowling put off payment until March 1, 1890, when they finally rejected it; that, while the machine was in process of construction, a change took place in the business of Glover & Bowling, by which they added a feature to the dress stays which the machine was not designed or calculated to make,— that is, a metal tip was put at each end of the steel forming the basis of the stay. This was called “tipping.” The tipped article very soon displaced the untipped in the market, largely, and the result was that the machine became less desirable. While this was being developed, a change took place in the business of Glover & Bowling, by which Bowling retired from the management, and, in October, 1889, a corporation was formed, and defendant, who before that had been bookkeeper for Glover & Bowling, became a stockholder in the corporation to the amount of $10,000, and manager of the concern. He was the son-in-law of Bowling, and plaintiff claims that the testimony tends to show that, during the latter part of his work on the machine, the defendant set out systematically and maliciously to cause Glover & Bowling to reject the machine, and that, by defendant, Andrews’, malicious conduct and influence and fraud and deceit, he caused Glover & Bowling to reject it. The corporation, it is claimed, had no direct interest in the machine, and that no contract relations existed between the plaintiff and it. On the other hand, the defendant contends that there is no- evidence whatever, in the record here, that he maliciously, and with falsehood and. deceit, caused Glover & Bowling to reject the machine.

There is no evidence that Glover & Bowling ever accepted the machine, nor is there any direct evidence that they would have accepted it but for the deceit and fraud of defendant, Andrews. Fraud is seldom shown-by direct proof, but by facts and circumstances taken together, and the inferences to be drawn therefrom. Ross v. Miner, 67 Mich. 412. The rule is that fraud may be proved, the same -as any other fact, by facts and circumstances which satisfy the mind; and it is a question for the jury when there is any evidence to warrant the finding. Freedman, v. Campfield, 92 Mich. 118. The defendant admits that he advised Glover & Bowling against the machine. Many times, when plaintiff desired goods for the purpose of testing the machine, he refused to •furnish them, though he had been directed by Glover & Bowling to furnish them. According to some of the witnesses, he constantly put obstacles in the way of the plaintiff, in his work on the machine and in testing it. Glover & Bowling would apparently be pleased with the tests made, and, after a few moments’ conversation with Andrews-, the latter would almost immediately thereafter come to plaintiff, and say: “You need not do anything further with this. There is a question about it. You better let them alone.” It would not profit the parties or the profession to set out at length the many facts and circumstances detailed in the record, showing the conduct of the defendant towards the plaintiff and the machine. If the testimony be true, he was in the habit of speaking of and to the plaintiff in the most slighting terms, constantly disparaging the machine and its work, when the tests were being made to induce Glover & Bowling to accept it. There is little doubt, from the testimony, that Glover & Bowling should have accepted it; but, under the contract, as held in the trial of the case against Glover & Bqwling, they had the right to reject it without giving any reason therefor. In the present case, the only theory upon, which the plaintiff had a right to recover was that they would have accepted it hut for the fraud and deceit of the defendant. We think there is evidence in the case from which the jury might infer that it was due to the misconduct of the defendant that the machine was not accepted. There was also some evidence that the letter set out in the record was written by the defendant.

The court directed the jury, upon each of these counts, as follows:

“There are two counts or causes of action in the declaration in this case, and the plaintiff may recover upon one or both counts, or upon neither of them, as you may find the facts of the case under the evidence submitted to you. * * * Now, if you find from the evidence that the defendant wrote this letter, then the plaintiff is entitled to recover in this action both actual and what is known as ‘exemplary’ damages. The letter is libelous per se, and, if you find from the evidence thát it was written by the defendant, you will award to the plaintiff such damages as, in your judgment, will fully compensate him for the wrong inflicted by the defendant. * * *
“As to the second count, if you find from the evidence that the defendant maliciously and without good cause persuaded Mr. Glover to reject the machine, and that Mr. Glover would have accepted the machine but for such malicious inducements on the part of the defendant, then the plaintiff is entitled to recover in this action for the damage done him thereby. * * * If the machine was rejected by Mr. Glover and Mr. Bowling, or by Mr. Glover acting for them both, because in their opinion, or in his opinion, it did not correspond to the undertaking in that contract, or if they, or either of them, rejected it for any cause whatever, other than the influence of the defendant, then, on this branch of the case, your verdict must be for the defendant.”

This charge very fairly states the law applicable to such cases.

The case of Chipley v. Atkinson, 23 Fla. 206, is directly in point. The plaintiff there was a superintendent in a brick manufactory, and alleged that his discharge was procured by the malicious interference of the defendant. It was held that, although no action lay against the employer for his discharge, yet plaintiff might recover against a third person who had maliciously procured his discharge. It was said by the court:

“Merely to persuade a person to break his contract may not be wrongful in law or fact; still, if the persua"sion be used for the indirect purpose of injuring the plaintiff, or benefiting the defendant at the expense of the plaintiff, it is a malicious act, which, in law and in fact, is a wrongful act, and therefore an actionable act, if/ injury issues from it.”

See, also, Rice v. Manley, 66 N. Y. 82; Benton v. Pratt, 2 Wend. 385. In Rice v. Manley, one Stebbins agreed verbally to sell to Rice a large quantity of cheese. The contract was not enforceable, because within the statute of frauds. Manley induced Stebbins to believe that Rice did not want the cheese, and himself purchased it from Stebbins, Who would otherwise have delivered it to Rice, as agreed. It was held that Manley was liable in damages to Rice for his fraudulent interference with the contract, notwithstanding Stebbins was not in any wise liable to Rice. So, in Benton v. Pratt, the contract was void under the statute of .frauds; yet the court held that a recovery Could be had against a third person who maliciously interfered with the contract for his own gain or profit. Of course, this rule would not prevail where the party sought to be charged in damages was acting in the lawful exercise of Some distinct right, for the quo ■animo constitutes a large part of the gist of the action; but here the declaration charges both malice and fraud, and, as expressed by Pollock in his work on Torts (p. 452), “there must be a wrongful intent to do harm to the plaintiff before the right of action for procuring a breach of contract can be established.”

Counsel argue, however, that the defendant stands on the same footing with Glover & Bowling, because he was interested in the corporation, and was manager, and had an interest in the machine. There was no contract relation betAveen plaintiff and the defendant. By the terms of the contract, it was the right of Glover & Bowling to reject the machine if not satisfactory; but defendant had no right to reject, or to unlawfully and maliciously interfere with the acceptance of it by Glover & Bowling. The fact that defendant, Andrews, had an interest in the business as a stockholder would give him the undoubted right to express his opinion freely about the machine; but this action is framed upon his malicious and willful fraud and deceit in inducing the rejection. It was upon these lines that the court below let the case go to the jury, as the court charged that defendant had the right to express freely his convictions about the machine, and could be held liable only on the theory that, without good cause, and actuated-by ill will and malice towards plaintiff, he sought to injure him by inducing Glover & Bowling to reject the machine.

It is also contended that the court erred in the admission of evidence on the part of the plaintiff. We think not. The testimony referred to was proper, as showing the attitude of GloAmr & Bowling towards the machine before the defendant had interfered, and the court limited the inquiry to that. We think the case was fairly tried, and submitted to the jury under a charge which fully protected the rights of the defendant.

Judgment must be affirmed.

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


author: McGrath, C. J.

text:
    PABST BREWING CO. v. LUEDERS.
    l/ /Settlement — When Conclusive.
    ' ■ Payment in full, without reservation, of an account for goods , purchased, precludes the buyer from subsequently asserting that the goods were not merchantable, or that he was entitled , to a credit for a shortage in packages or for expense of \ cartage.
    2.' Set-Ofe — Action by Assignee.
    In an action upon an account by one holding a naked assignment thereof, charges existing against the assignor at the time of the assignment are available to the defendant by way of set-off to the amount of the debt assigned only, and judgment against the plaintiff for the excess is unauthorized.
    3.Account Stated — Acquiescence.
    The failure of a debtor to object within a reasonable time to monthly statements rendered to him amounts to an admission by him that the account is correctly stated.
    4.Trial — Arguments of Counsel.
    A statement by plaintiff’s counsel characterizing the defense interposed as “audacious” does not justify defendant’s attorney in arraigning plaintiff as a moneyed corporation, intent upon crushing the defendant.
    5.Evidence — Memoranda.

      Memoranda purporting to show items of shortage in goods purchased are inadmissible in evidence in the absence of testimony to prove their correctness.
    Error to Muskegon; Russell, J.
    Submitted October 28. 1895.
    Decided November 5, 1895.

      Assumpsit by the Pabst Brewing Company against Henry Lueders for goods sold and delivered. From a judgment for defendant under Ms claim of set-off, plaintiff brings error.
    Reversed.

      J. E. Turner and Brown d Lovelace, for appellant.

      Arthur J ones, for appellee.
   McGrath, C. J.

Plaintiff brings this action to recover abalance of $106.51 for beer shipped byplaintiff to defendant from Milwaukee, Wis., from December 16, 1892, to January 80, 1891, and, as assignee of the Falk, Jung & Borchert Brewing Company, for a balance of account ■claimed to be due to that company from defendant for beer furnished from October 26,1891, to October 21, 1892, making a total of $895.51. Defendant gave notice of set-off and of recoupment, and recovered the sum of $208.20. Defendant’s counterclaim was made up of a charge of $812 for cartage of empties from defendant’s place of business to the railroad depot at Muskegon, a charge of $1,028.88 for sour beer and a shortage in packages, and a further charge of $220 for work expended in connection with the sour beer.» Of the charge for cartage, $428.50 arose during the dealings with Jung & Borchert, $318.50 while dealing with the Falk, Jung & Borchert Brewing Company, and $65 since the consolidation of the Falk, Jung & Borchert Brewing Company with the plaintiff corporation. The other items are alleged to have arisen during the dealings with the Falk, Jung & Borchert Brewing Company and plaintiff.

Defendant’s testimony tended to show that he began dealing with Jung & Borchert November 17, 1881, under a verbal contract, by the terms of which defendant was to be furnished beer at a given price per barrel, free of charge for freight and cartage, ait his place of business in Muskegon, and that he was also to have deducted the cost of the cartage of the empty barrels to the railroad depot in Muskegon; that the Falk, Jung & Borchert Brewing Company succeeded Jung & Borchert in 1888, and that plaintiff succeeded the Falk, Jung & Borchert Brewing Company in 1892; that the dealings had been continuous under the contract, save that the price of beer had varied from time to time.

The assignment to plaintiff was a naked one, and there is no testimony tending to show that plaintiff ever assumed the liabilities of Juug & Borohert, or of the Falk, Jung & Borchert Brewing Company, or that the alleged contract was ever assumed or recognized by plaintiff, or that the alleged contract was ever renewed, or that defendant had not full knowledge of the changed proprietorship. Jung & Borohert deny that they ever agreed to pay the -item of cartage. At least three times after the Falk, Jung & Borchert Brewing Company succeeded to the business, viz., June 10, 1891, September 7, 1891, and October 26, 1891, defendant paid his account in full, and a receipt in full was given to him. Defendant says: ‘

“I paid Jung & Borchert what they claimed I owed them. Every time they gave me receipts in full. I don’t know how many times that was. I spoke to them about the expenses when I paid them money. I sent my money generally. The -first time was when I met Mr. Borchert in Falk, Jung & Borohert’s office. I made a payment that day. I paid them all they claimed I owed them that day. I deducted for a keg that I returned, for freight, telegraphing, and exchange; nothing else to my knowledge. I didn’t deduct for carrying the empties at that time because they wouldn’t settle with me. 1 settled with them, and got a receipt in full for that. I was not going to sue them at that time for what they owed me for carrying empties. It was after that. They never paid me anything for carrying empties, and I kept paying .them right along all that they claimed I owed them, and I never deducted anything for carrying empties. I never charged Jung & Borchert for sour beer. There was so little of it that I thought it wouldn’t be necessary. The first settlement I made was June 10, 1891, with Falk, Jung & Borchert. I paid them $1,024.68. I had some bill® with me for freight and drawage. I took them out. I don’t know about telegraph bill. I don’t know whether I took anything out for spoiled beer. I was in Milwaukee, and paid them money. I did not take anything out for drawing or carrying empties. * * * For 10 years, from 1881 to 1891,1 never insisted to Mr. Falk or Mr. Borchert, or rendered them any statement of their account with me, as regards drawing these empties or for spoiled beer. I kept on paying what they claimed was due to them from me, and taking receipts in full. I paid them because I thought I owed them the account. When I was there in June, I had a talk with Borchert about the spoiled beer. I says, ‘ We are getting a great deal of sour beer.’ He says, ‘ You shan’t lose anything on spoiled beer. We will make that all right.’ No one else was present. That was after I paid the bill. I didn’t say anything to him at the time I paid the bill. I can’t tell whether there was anything deducted at that time for spoiled beer. After this visit in June, I was there again in July. I made a payment at that time to Mr. Borchert. I took a receipt in full. Every time I paid one of these bills I took out the freight; sometimes for telegraphing and drawage; but I never took out anything for the cartage of empties on any of these bills. The next time I went there was when I visited the Pabst Brewing Company. I paid a little over $300 at that time to Mr. Best. I had a talk also with Mr. Pabst. Freight and drawage is all that was taken out of that bill. When they shipped goods they would most always send by mail one of these bills, and I would put my figures on for freight and drawage, and then send the bill back to the office; and what I paid on these bills I expected they would deduct, and send me a receipt for it; and that is what they did. I believe that is true of all these bills right here.”

Defendant insists that, when he settled the June account, he spoke about the cartage charge, and that Borchert stated that they would settle it afterwards, and that there was something said at the same time about shortage and stale beer; but twice after this time defendant remitted from Muskegon the amount of his account in full, and receipts in full were forwarded to him.

The account of the Falk, Jung & Borchert Brewing Company starts with October 26, 1891. It aggregates $5,240.24. The last two invoices, dated September 12 and October 21, 1892, amounted to $698.75, and the last two payments, dated September 12th and October 20th, aggregated $800, leaving a balance due of $789.

On September 7,1891, the Falk, Jung & Borchert Brewing Company wrote defendant as follows:

“We are in receipt of your favor of recent date, covering draft in settlement of our statement of September 1st, for which please accept our thanks. Inclosed please find receipt.”

Plaintiff’s proofs tended to show that statements of account were sent defendant on the 1st of every month from November 1,1891, down to the close of the dealings. Defendant denied the receipt of these statements, but admits having received an invoice of each shipment made during this period, some 32 in number. During the same period he made some 24 payments, aggregating, with freight and other charges and allowances, over $8,000. No statement including any of the items now claimed has ever been presented to either Jung & Borchert, the Falk, Jung & Borchert Brewing Company, or plaintiff. Although defendant visited the parties frequently, although the correspondence between the parties is shown, no mention of any unsettled claim for cartage, or for current cartage, or of an unsettled claim against the Falk, Jung & Borchert Brewing Company, appears anywhere. Yet during this entire period offsets were claimed for freight and for beer returned, items thereof were presented to the parties, and the amounts allowed to defendant. Defendant says that he received invoices, and that—

“ When I received the bill, and went to pay for the beer, and send the bill back to them, I gave them the items on the bill which I paid in advance for the beer, and then they sent them back to me the second time. I put on the bill drawage, telegraph, exchange, and, I presume, some sour beer, when there was any. Then I returned' them to the Pabst Brewing Company with my draft. They receipted them, and sent them back.”

The letters to defendant from August 8, 1890, to May 2, 1893, show that defendant had, in April, 1892, made a complaint as to the size of the half barrels, to which the Falk, Jung & Borchert Brewing Company replied:

“ As to the size of our half barrels, we desire to say that, although there may be some old ones which are a little bit too small, there are others which contain more than the required quantity; and, if you take it in the whole, you certainly get the measure you are entitled to."

That something had been said by defendant with reference to stale beer, but the reply was:

“Our beer is giving good-satisfaction, and we do not understand why you should have trouble, unless it is that you do not give it proper care, or keep the same on hand too long. If the beer is properly handled, and sold in due time, there should be no cause for complaint."

Whenever defendant made any specific claim to an allowance, it was disposed of at the time, and invariably allowed. Defendant continued to order and receive beer for years after these complaints were made. All the beer received by defendant prior to the 1st of August, 1892, was actually paid for within 90 days from that date. On the 1st of September, 1892, defendant was charged with $4,541.49. His total credits on the Falk, Jung & Borchert Brewing Company account amount to $4,451.24. The last four charges made on that account were, August 16, 1892, $406.25; August 19, $35; September-12, $406.25; and October 21, $292.50; and the balance due on the account is $789. Defendant explains that he generally took the invoices, entered upon them his counter charges, and sent the invoices back with a draft for the balance. He continued to do this generally through the dealings with plaintiff, and the payments made after October 20, 1892, were credited upon shipments made by plaintiff. The balance of the account for beer shipped by plaintiff is but $106.51, and the last shipment amounted to $100. It will thus be seen that there are practically but three or four shipments that have not been actually paid for.

There is absolutely no testimony tending to show that there was any reservation of a single item from any settlement, except that defendant says that the item of cartage on empties was excepted in the settlement made June 10,1891. There was no reservation as to any other items at that time, and none at the time of the September and October, 1891, settlements, as to even the items of cartage; and since October, 1891, no claim has been made-for freight, exchange, telegrams-, or cartage, except such as has been allowed, and no claim- for a deduction on account of stale beer. Beer has been returned, and the-amount thereof credited; but every other complaint has-been responded to by the statement that defendant alone-was responsible for that condition, and afterwards the accounts have been settled, except as stated. These settlements conclude the defendant as to the matters involved in them. He cannot now be allowed to say that the article for which he paid in full was not merchantable1, nor that he was entitled to a credit, upon accounts rendered and balanced by payment, of other items directly involved in such settlements. Upon the presentation and payment of these accounts as stated, without reservation, defendant must be deemed to have admitted their correctness. The parties with whom he dealt were entitled to notice then . and there of any claimed deduction from the accounts, to-an opportunity then to investigate the matter, and to refuse to continue dealings with a party claiming deductions of between 25 and 30 per cent, upon the bill presented. Defendant was, perhaps, entitled to go to the jury upon the question as to the claim for cartage existing June 10, 1891; but as to any other claim which he now alleges existed at that time he is concluded by that settlement. Nor can he now be permitted to insist upon allowances for items connected with subsequent shipments which he has settled for.

As to the item of cartage alleged to have been referred to, no statement had been presented of that offset or claim, and none was submitted at that time. That settlement was made some three years after the corporation of the Falk, Jung & Borchert Brewing Company had been formed. It does not appear what the state of the account was a-t the date of the incorporation, or that there was anything said that could advise the corporation that a claim was being made for cartage covering the period of the dealings with Jung & Borchert. As to these claims, they could, perhaps, be made available to offset any balance claimed to be due to Jung & Borchert at the date of the assignment, but to that extent only could they be made a charge against a party holding the account by naked assignment. The same is true as respecting any counter charges against the account of the Falk, Jung & Borchert Brewing Company. They could only be available, as against plaintiff, to apply upon or to wipe out, if sufficient for that purpose, the balance of the account which was assigned to plaintiff, and a judgment against plaintiff for charges against Jung & Borchert and the Falk, Jung & Borchert Brewing Company was wholly unwarranted.

Plaintiff was entitled to the instruction asked for that, if monthly statements are rendered to a debtor, and the statement so rendered is not objected to within a reasonable time, the acquiescence of the debtor is to be taken as an admission that the account is correctly stated. If the defendant settled the account presented June 10, 1891, and did not reserve the right to offset the claim for cartage against the subsequent bill, he is concluded by the settlement. The plaintiff denied that at the time of that settlement there was any reservation or exception made. The subsequent settlements, and the receipt of the monthly statements without objection, were in the nature of admissions by the defendant of the correctness of the accounts so settled and rendered.

Counsel for defendant, in his argument to the jury, indulged in some unwarranted comments as to the relative financial standing of the parties to this controversy. Plaintiff’s counsel had referred to the character of the •defense, and not to the standing of the defendant. This did not warrant the arraignment of plaintiff as a moneyed •corporation, an oppressor intent upon crushing the defendant.

The court was in error in admitting in evidence the slips alleged to have been made of each item of shortage by the employes of defendant. Defendant said that he could not swear that they were correct, and the makers were not called.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


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    SNOW v. McCRACKEN.
    1. Trespassing Dog — Action for Damages —Sufficiency of Declaration.
    In an action for the value of chickens alleged to have been killed by defendant’s dog, a declaration averring that the defendant was the “ owner or possessor” of the dog, which he well knew to be mischievous and in the habit of killing fowls, is sufficient, it being unnecessary to allege that defendant negligently allowed the dog to run at large.
    2. 'Vexatious Appeal — Costs.
    An additional attorney fee of $30 was allowed to the appellee upon the affirmance of the judgment of the lower court, on the ground that the appeal was frivolous in both the amount involved and the questions raised.
    Error to Muskegon; Russell, J.
    Submitted October 23, 1895.
    Decided November 5, 1895.
    Case by James Snow against Robert H. McCracken for the killing of plaintiff’s chickens by defendant’s dog. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. E. Glarlc, for appellant.

      James Snow, in pro. per. (Jerome E. Turner, of counsel), for appellee.
   Grant, J.

Defendant’s dog killed plaintiff’s chickens. Plaintiff sued in justice’s court, and filed a declamation, in which it is alleged that the defendant was the “owner or possessor” of the dog, and that he “well knew that his said dog was mischievous, and disposed to and in the habit of killing fowls.” Plaintiff recovered a judgment of $22 in the justice’s court. Defendant appealed to the circuit court, where a jury rendered a verdict against him, the amount of which is not shown by the record. No objection was made to the declamation in the justice’s court, the defendant pleading the general issue. Upon the trial in the circuit court defendant’s counsel objected to the introduction of any evidence, upon the ground that the declamation did not .state a case, and at the close of the testimony requested the court to direct a verdict for the defendant. The record discloses no reason other than that above given for the .objection or for the request. Three objections appear now to be made in his brief: That the declaration does not allege (1) that the defendant was the owner or keeper of the dog at the time of the injury, or (2) that he knew his mischievous habits, or (3) that he negligently allowed him to run at large.

The first and second objections are answered by the fact that the declaration does allege that he was the owner o.r possessor, which is the same a.s keeper, and that he did know of his vicious habits. The third objection is •answered by stating that it is unnecessary to allege that lie negligently allowed the dog to run at large. The issue clearly presented by the declaration was that the defendant owned or kept a dog, which killed plaintiff’s chickens, and that he knew tlie character of the, dog. If he desired a more specific declaration, he should have demurred.

The case is frivolous in both the amount involved and the questions raised. The appeal is therefore vexatious, and plaintiff will he allowed an additional attorney fee of $30 for a vexatious appeal.

The other Justices concurred.


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    STODDARD MANUFACTURING CO. v. MILLER.
    '1'. Settlement — Breach oe Warranty — Waiver.
    By assenting to the correctness of an account for machinery purchased, with knowledge of its failure to comply with the warranty under which it was sold, the buyer waives his rights under the warranty.
    ■2. Sale oe Machinery — Warranty.
    A contract for the sale of agricultural machinery between the manufacturer and a dealer contained a general warranty, followed by the provision that, if a machine should fail to do good work, notice should be given to the vendor, and time allowed to put it in order, and that the use of a machine for longer than one day, without giving notice of any defect, should constitute an acceptance. Held, that the conditions stated were applicable only to machines resold, and not to those that had not been set up or operated.
    3. Written Order — Parol Evidence.
    Parol evidence that, by an order for “two square feeding shafts, 4 ten-hoe drills,” it was intended only to order two shafts for 10-hoe drills, is admissible, in a suit against the purchaser, to rebut the effect that said order might otherwise have upon his contention that drills of the same kind previously purchased were defective.
    Error to Sanilac; Beach, J.
    Submitted October 28, 1895.
    Decided November 5, 1895.

      Assumpsit by the Stoddard Manufacturing- Company against Adam Miller and another for machinery sold. From a judgment for plaintiff, defendants bring error.
    Beversed.

      E. G. & S. A. Baieoek, for appellants.

      Avery Bros. & Walsh, for appellee.
   McGrath, C. J.

Defendants are dealers in farming implements at Minden City. They had had dealings with the Farmers’ Friend Manufacturing Company, and in December, 1892, entered into a written contract with said company -for six harrows, nine 9-hoe Farmers’ Friend drills, and one 10-hoe Farmers’ Friend drill. The agreement contemplated further orders, and prescribed the terms. It granted to defendants the exclusive right to sell in certain- territory, -and provided that defendants should make every effort to extend the trade in the territory, sell no competing machines, -and order as many more machines as the territory might require. It provided that the company would replace defective parts, and furnish repairs at list prices, less 25 per cent. It contained a further provision that—

“The machines furnished under this contract are warranted to be well made, -of good material, and, if properly handled, to do good work. They are to be set up and operated according to directions. If any one fails-, owing to defects or otherwise, notice must be given to the Farmers’ Friend Manufacturing Company, Dayton, Ohio, and-time allowed to put it in order or -operate it. The use of a machine longer than one day, without n-otioe o-f defect, shall be evidence that it is accepted, and this warranty shall cease.
“(Signed) Farmers’ Friend Mneg. Co.,
“By George A. Woodeord.”

On August 23, 1893, defendants, wrote to Woodford a letter as follows:

“Please ship me at w-onts to Min-den City, wo-ne ritestele weel for a drill Two square feeting schafts. 4 ten hoe -drills also -some note blanks for drills. Send it at wonts without daylay.”

Upon receipt of this order the company sent four 10-hoe drills to defendants. S-ome correspondence was-evidently had respecting this shipment, defendants claiming t-hait they had intended to order two shafts for 10-hoe drills, and not to order fo-u-r 10-hoe drills; but defendants; retained the drills. Under the contract these drills were to he paid for in 90 days. Plaintiff -sues as assignee of the account. Defendants set up a breach of the warranty.

In December, 1893, one Quig called upon the defendants for a settlement of the account. Defendants had on hand at that time five of the 9-hoe and four 10-hoe drills. Quig says that there was a partial settlement at that time, but that defendants refused to pay for the goods on hand, but wanted him to carry the articles >on hand over into the next year’s contract, which he refused to do; that at that time no mention was made to 'him 'that the goods were defective, but that the mistake in the letter of August 23d was referred to by defendants. The statement presented at that time describes the goods unsold as “on hand (not settled).”

It seems to be conceded that the drills were not the same as those which had been previously sold to defendants; that a steel frame had been substituted for a wooden frame. Defendants explained this by saying that •“they changed the drill into a steel frame, and put the sprocket in the middle, and put the chain on .the feed shaft, and it springs the shaft in the center, and stops their working.” Defendants’ testimony tended to show th!at they had sold several of these drills, which proved defective, and the parties to whom sold refused to pay for them; that they had tried to remedy this defect, but without success; that when Quig came there they explained the difficulty to him, told him that the drills would not work, that purchasers had refused to pay for them, and that they were useless; that they refused to pay for them, and requested Quig to take them back; that they told Quig that they would in no case agree to pay for them until sold, and that Quig a,greed to carry them until they were sold.

The court instructed the jury that—

“If there wa's an agreement to postpone the payment for these nine implements to the season of 1894, there can be a recovery for the plaintiff for $120 only, and interest from December 19, 1893, to this time. If the extension was made, it would also be a waiver on the part of the defendants as to defects as to workmanlike quality of the implement; that is, the defendants claim that at the time he called attention to his claim for damages, but that at the same time the time for payment was extended. Now, if that was a fact, that would be a waiver of these defects it would take these defects out of the case, if there was an extension of time. If you find as a matter of fact that there was no extension of time for the payment for these nine drills, you will then consider the question of damages. Such damages must be, confined to the nine machines on hand, for the reason that the business concerning this machinery up to that date was settled at that time. If you finid they did not comply with the warranty, and that the agent was notified of these defects, the measure of damages, if any you would find, would be the difference between the contract price of the machines and the actual value of the machines as you shall, find it to be.”

.We think the court misapprehended the effect of defendants'' testimony. The parties did nut arrive at a .settlement in December, 1893. Quig does not sa.y that they did. He .says, generally, that there was “a partial settlement.” If defendant's settled the account as to the goods not on hand, and agreed" to that account, they are concluded thereby. The controversy seems to have been over the drills on hand. Quig was then representing the company. No question seems to have been raised as to his lack of authority. Tf at that time defendants in good faith made the complaints alleged to have been made, and it was agreed that the drills should be carried by the company until sold, a recovery should not have been allowed, irrespective of any formal compliance with the terms of the warranty. Of course, if at that time there was a promise to pay in consideration of an extension of time, and the extension of time was granted, another question would arise; hut Quig does not claim that there wa,s either a promise to pay or an extension of time.

The jury evidently found that there was no extension of time; hut the court, in the course of the trial, clearly intimated that, in the absence of notice under the contract, defendants could not go into the question of the defects in the drills, and restricted them in their proofs upon the question of the depreciated value for that, reason. I-t is evident that the clauses in the contract following- the warranty were imparted into the contract in question from a contract for the sale of an individual machine. It was not expected that defendants would set up and operate these machines or use them. They purchased them to sell again. The restrictions may be applied to drills sold by them, but not to those which had not been set up or operated. Defendants had sold several of these drills during that season, and had been evidently endeavoring to satisfy the purchasers respecting them. The complaint was not ais to a defective part, but was one going to the whole machine, destroying its utility. It was a structural trouble.

As tending- to rebut any presumption that might arise as to the effect of an order given August 23d for four more of the drills complained of, we think that the defendants were entitled to show that a mistake was made in that order.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: (Grant, J.

text:
    HAND v. OSGOOD.
    Statute of Frauds — Parol Lease — Breach of Contract.
    A parol agreement to lease lands for one year, with the privilege of three, at an annual rental, is void under the statute of frauds, and, if wholly executory, .no action can be founded thereon.
    Error to Lenawee; Lane, J.
    Submitted October 23, 1895.
    Decided November 5, 1895.

      Assumpsit by Hernán Hand against Bdmuind Osgood for the breach of a parol contract for a le'ase. From a .judgment for plaintiff, defendant brings error.
    Reversed.

      Patterson c£- Flynn, for appellant.

      Wood & Bird and Walter O. Burridge, for appellee.
   (Grant, J.

Plaintiff instituted this suit to recover damages for the violation of an executory paxml agreement that defendant would execute a lease to him of certain laxxds for one year, with the privilege of thx’ee, at the ■annual rental of flOO per year. The court instructed the jury that, if they found such to be the contract, the plaintiff was entitled to recover as damages the difference between the market value of the lease and What he •agreed to pay for it.

It is conceded that, if this was a contract for a lease for •a longer period than a year, it is void under the statute of frauds. 2 How. Stat. § 6181. It is settled that such a contract, unexecuted, cannot form the basis of an action or of a defense. Salb v. Campbell, 65 Wis. 405; Carney v. Mosher, 97 Mich. 554; Grimes v. Van Vechten, 20 Mich. 410; Hall v. Soule, 11 Mich. 494. The contention of the plaintiff is that the contract may be performed within one .year, and is therefore good for that period, in support of which he cites Barton v. Gray, 57 Mich. 634; Whiting v. Ohlert, 52 Mich. 462; Blake v. Voight, 134 N. Y. 69.

In Whiting v. OKlert the sole question decided was that •a parol agreement for a year’s lease, to begin in the future, is valid. Barton v. Gray goes no further than to hold that the statute of frauds does, not apply to- contracts which leave it uncertain whether they may or may not be performed within a year, or which depend upon a contingency that may happen within the year. Blake v. Voight holds that a verbal contract which contains an option allowing either party to terminate it within a year is not within the statute, although without the ■option it would be within the statute.

Neither of these cases is like the present, or affords any light in construing this contract. Counsel for the defendant do not argue the question, but assume that the lease was to be for three years. We have been unable, after •considerable search, to find any ease involving such a contract, or one which affords uis any light. We think, however, upon principle, that it is within the mischief which the statute is designed to prevent. The ciomimct ■contemplated a lease for three years, and, so far as the defendant is concerned, it is absolute. Plaintiff has not exercised his option, and asked for a contract for a year. He comes into court relying upon a parol contract by which he was entitled to a lease for three years. His case appears to have been tried upon that theory, for his damages were not limited to one year. The defendant could not have complied with the contract by tendering a lease for a year, nor could the plaintiff compel the execution of a lease for a year, because such contracts contemplate the exercise of the option after the execution of the lease. lit follows 'that the agreement is void under the 'Statute, and cannot, therefore, be miade the basis for a recovery for a breach of contract.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    MINER v. WILSON.
    1. Equity Pleading — Multifariousness.
    The objection that a bill is multifarious should be raised by-demurrer, and not at the hearing on bill and answer.
    2. Vendor and Vendee — Possession—Notice.
    Occupancy of land, within clearly defined boundaries, as a pasture, to which purpose it is alone adapted, is sufficient to charge a purchaser with constructive notice of the rights of the occupant.
    Appeal from Allegan; Padgham, J.
    Submitted October 28,1895.
    Decided November 5, 1895.
    ■Bill by Charles Miner against John Wilson and Horace T. Conk, as executor of the last will and testament of John G-. Kellogg, deceased, to correct [he description in a deed to complainant, and to set aside a deed to defendant Wilson. From a decree for complainant, defendant Wilson appeals.
    Affirmed.

      Charles B. Wilkes, for complainant.

      Hannibal Hart, for appellant.
   Montgomery, J.

The bill in this case was filed to set aside a deed made by the defendant Cook, as executor.of the estate of John <3-. Kellogg, and to remove the cloud created by the recording of such deed. The bill also asked to have a deed previously made to complainant by Kellogg, in his lifetime, corrected. The circuit judge granted the relief prayed, and defendant Wilson appeals.

1. The bill charges that on the 12th day of January, 1878, John Gr. Kellogg owned the premises in question, that complainant on that day bargained to buy them from Kellogg, and that a deed was made to complainant, but by mistake the premises described by the deed were the south-east fraction, instead of the north-east fraction. It is also alleged that complainant has paid the taxes, has fenced in the land, and has for several years last past used it as pasture, in connection with other lands owned by him; that, while complainant was in possession of the land, defendant Wilson obtained a deed from the executor, and now asserts title to the land. Defendant Wilson answered the bill fully, but at the hearing contended that the bill was multifarious. We need not determine whether the bill would have been open to this objection if taken by demurrer, as the defendant did not take the proper course to raise the question. See Payne v. Avery, 21 Mich. 538; Snook v. Pearsall, 95 Mich. 534; Burnham v. Dillon, 100 Mich. 352.

2. There is no room for doubt that a mistake was in fact made in the original deed to complainant. As to the knowledge of defendant Wilson of complainant’s rights, the circuit judge found as follows:

“That, at the time of the purchasing of the premises, in the complainant’s bill described, by the said defendant John Wilson, the said Charles Miner was in the actual, open, and adverse possession of the same, and that the said Wilson had knowledge of the rights and interests of the said Miner such as to put him upon inquiry, and that he had actual knowledge of the rights and interests of the said Miner in and to said premises.”

We think it unnecessary to determine where the weight of evidence as to the actual notice rests, as we are well satisfied that there was such constructive notice as to put the defendant Wilson on inquiry as to the complainant’s rights. The land in question abutted on a lake, which formed the western boundary. On the north was a fence extending to the lake, and on the south there had been a fence, which had been allowed to get out of repair, evidently- because the boundary was marked by a ditch deep enough to turn stock. The premises were used as pasturage by the complainant, and their situation gave fair evidence of occupancy. Defendant himself testified as follows:

“Q. You knew Miner had land right there?
“A. That is what Tiffany told me.
“Q. Then it looked to you as though this land was right iu with Miner’s?
“A. That is what I said before. I wouldn’t have known it at all, if it hadn’t been for Mr. Tiffany telling me where the town line cut off.
“Q. It never occurred to you, if that was all fenced in together, it might belong to -one man, did it?
“A. No, it didn’t.
“Q. You didn’t ask anybody whether it belonged to Miner or not?
“A. I didn’t ask anybody, simply because Mr. Tiffany told me, before this, it didn’t belong to 'him. I didn’t think anything about the fence coming in there.”

We think it clear from the record that the complainant was in the actual occupancy of this land, had taken all necessary measures to mark the boundaries of his possession, was actually putting it to the only use to which it was adapted, and that defendant Wilson had such actual notice of its occupancy that good faith required that he should make inquiry of the occupant before assuming to purchase. See Hommel v. Devinney, 89 Mich. 522.

The decree will be affirmed, with costs.

The-other Justices concurred.


author: Hooker, J.

text:
    BLACK v. CITY OF MANISTEE.
    Defective Sidewalk — Accumulation of Ice — Contributory Negligence.
    One who voluntarily attempts to pass over an icy sidewalk, knowing it to be dangerous, is guilty of contributory negligence, precluding a recovery for injuries received from falling thereon.
    Error to Manistee; McMahon, J.
    Submitted October 11, 1895.
    Decided November 5, 1895.
    Case by Eva Black against the city of Manistee for personal injuries. From a judgment for defendant upon verdict directed by the court, plaintiff brings error.
    Affirmed.

      Smurthwaite é Fowler, for appellant.

      Peter T. Glassmire, for appellee.
   Hooker, J.

Plaintiff appeals from a judgment upon a verdict directed by the circuit judge. Her action was for damages received by slipping down upon ice which had accumulated upon a sidewalk. The negligence complained of related to the construction of the walk, whereby it is claimed that the accumulation of ice and snow was increased and made more dangerous than it would naturally have been upon a better located and constructed walk.

The fall occurred in the daytime, when, the plaintiff wras walking upon the sidewalk. She admits that she saw the ice before stepping upon the place where she fell; that she knew it was dangerous, but proceeded without taking hold of the hand rail, because she had a book and parcel in her hand, and was afraid that she would slip under the hand rail to the ground, a distance cf three or four feet below. It was not a case where to proceed was the only alternative. From her own statement she knew the walk was dangerous, yet chose to risk it. She testified that she thought there was as much danger in retracing her steps as in going on; but, if that is so, she should have retraced her steps earlier. Where a person actually sees the danger before the accident, there is as great reason for him to avoid it as there is for the municipality to provide against it beforehand. She could as well judge of the safety of this icy walk from its appearance at the time as the authorities could anticipate the danger when the walk was constructed. The allegation of her declaration that she was without fault is not supported by the evidence, and we think the judgment of the circuit court should be affirmed.

The other Justices concurred.