author: Hooker, J. Moore, J.

text:
    PEOPLE v. FRITCH.
    1. Criminal Law — Appeal and Error — Staying Execution op Sentence.
    The authority for staying the execution of sentence, like the power to review, is purely statutory, in a criminal case, and. its exercise must depend on a compliance with the requirements of statute.
    2. Same — Procedure—Practice—Writ op Error — Rail.
    After a respondent has been convicted of a crime, if a bill of exceptions is settled after sentence, he may, as a matter of course, take out a writ of error, unless he desires an order staying execution of sentence, and enlargement on bail, when an allowance of the writ and an order admitting to bail are required. 8 Comp. Laws, §§ 10490 et seq., 10964 et seq.

    8. Same — Staying Execution op Sentence.
    Under proceedings for the allowance of a writ of error as in the case of exceptions before sentence, a stay and admission to bail cannot be granted if it appear that the exceptions are frivolous, immaterial or dilatory merely.
    4. Same — Showing—Affidavits.
    Where the trial court refuses to stay the execution of sentence and to admit respondent to bail on the ground that exceptions taken are frivolous, the Supreme Court will not reverse such action on affidavits as to the contents of the record unaccompanied by the record itself, or a bill of exceptions duly signed.
    5. Same — Presumption.
    After conviction of a crime, the presumption of innocence no longer attaches to a respondent.
    George A. Fritch was convicted of manslaughter and sentenced to imprisonment for not less than 7£ nor more than 15 years in the State prison at Jackson: On motion for a writ of error, stay of execution of sentence, and to be admitted to bail pending the appeal.
    Submitted March 19, 1910.
    ( Calendar No. 23,934.)
    Motion denied April 1, 1910.

      Lodge & Brown, for the motion.

      Philip T. Van Zile, Prosecuting Attorney, contra.

   Hooker, J.

Defendant, having been convicted in the recorder’s court of Detroit of the offense of manslaughter, and sentenced to confinement in the “State’s prison,” where he now is, has filed a petition, addressed to “the justices of the Supreme Court,” praying that we allow a writ of error in said cause, and a stay of the execution of sentence, and that he be admitted to bail pending the hearing and determination of his case in this court.

The authority for staying the execution of sentence, like the power to review, is purely statutory, and its exercise must depend on compliance with the requirements of the statute. See People v. West, 143 Mich. 587 (107 N. W. 283).

We there held that the statute has provided two ways by which a defendant may have his cause reviewed; one on exceptions before sentence, and the other by writ of error after sentence. In the former the sentence must be deferred and enlargement on bail permitted, provided a bill of exceptions, which the trial judge shall find to be true, shall be presented during the term at which he was convicted, and provided further that it shall not clearly appear to said judge that such exceptions are frivolous, immaterial, or intended only for delay. See 3 Comp. Laws, §§ 11964, 11965. Otherwise he must be sentenced. But if no bill of exceptions is presented, the defendant has the right after sentence to take a writ of error. This issues as a matter of course, and unless he desires an order staying execution of the sentence, and enlargement on bail, no allowance of said writ or other order is necessary. 3 Comp. Laws, §§ 10490, 1049,1; People v. West, supra.

It is under these sections that the present application is made; no bill of exceptions having been presented to the trial judge, and none being presented to us, and none having been prepared and settled. We held, in People v. West, supra, that there was an analogy between the two methods of review, and that under the proceedings for the allowance of a writ of error, etc., a stay and admission to bail could not be granted if it should appear that the exceptions taken were frivolous, immaterial, or intended for delay only, as is the case where the application is made to the trial judge on exceptions before sentence. By the same analogy the settlement of a bill of exceptions should precede the allowance of the writ of error and be made a part of the application for the allowance and stay, as it is where the application is made before sentence to the trial judge, for, under the statute providing for exceptions before sentence, it is only after finding the bill of exceptions to be true, and signing the same, that the trial judge may stay proceedings and enlarge a convicted man upon bail before sentence. With all of his familiarity with the case, his power to enlarge for the purpose of review, is so limited that he is prohibited from acting until the record is made upon which the review is to be made.

The defendant may, for any one of many reasons, fail to get a bill of exceptions that will present the points he seeks to raise. He may abandon his alleged intention to appeal, the judge may refuse to settle such a bill, and he may be warranted in such refusal by other portions of the record, only a part of which is set up in the affidavits.

Under a statute which puts it in the power of any circuit judge to enlarge a defendant whom another judge has deliberately sentenced, after overruling a motion for a postponement of sentence to permit a review of the case, on the express ground that it is intended only for delay, it is not to be supposed that such action was intended to be permitted after sentence upon any less showing than what was required to be presented to the trial judge to obtain a postponement of sentence and admit to bail.

There have been cases where writs of error have been allowed and orders staying proceedings and admitting to bailmade, before bills of exceptions were settled. That was the case in People v. Gotshall, afterwards heard on exceptions and reported in 123 Mich. 474 (82 N. W. 274); People v. Rich, afterwards affirmed in 133 Mich. 14 (94 N. W. 375); and People v. Hodge, afterwards affirmed in 141 Mich. 312 (104 N. W. 599, 113 Am. St. Rep. 525). All of.those cases were apparently considered by us all; each apparently having been submitted by the judge to whom the application for allowance of the writ, stay, and bail was made to his associates for direction, and action having been finally taken upon such showing as was required of counsel. The records are now incomplete in some of them; but in one or more of them a certified copy of the proceedings upon the trial was required, and yet two of the three cases were without error and would have so appeared had we had the record as finally settled before us. .Whether, aside from authority derived from the statute cited (which does not contemplate application to the court), this court has authority to stay the execution of a sentence, we need not decide, for we are disinclined in this ease, in view of the express announcement of the recorder that the exceptions in the case were frivolous and the application intended only for delay, to grant this motion without a bill of exceptions duly signed and certified by him. .We cannot allow this judicial statement to be questioned and overcome by a mere affidavit, when the appeal must ultimately turn on what the judge shall certify.

We therefore refrain from a discussion of the question of our power as a court to act in these matters. We are very clear, however, that a judge of the circuit court or of this court should refuse to allow a writ of error, stay the execution of sentence, or admit to bail, unless presented with a certified copy of the bill of exceptions duly signed, or of the record in a case where a bill of exceptions is not required to raise the point relied on.

It will doubtless be urged that under prevailing methods time is necessary to obtain a bill of exceptions, and that in the meantime some prejudiced judge will be likely to “railroad ” to prison some innocent man, thus subjecting him to unnecessary inconvenience and ignominy. We cannot assume that any judge will “railroad” any man to prison unjustly. It is just and desirable to put a guilty man in prison, as soon as is consistent with his rights of review. We must assume that all judges are honest and fair, disposed to give to all convicted persons their full rights, and not disposed to deny to a convicted man a chance to take his case to this court on exceptions before sentence if his counsel will act with reasonable expedition, and can make a bill of exceptions that is not frivolous or made for delay only. If there is a judge who is justly chargeable with unjust and oppressive practices, the remedy is at the polls, not the adoption of a practice enlarging men upon affidavits upon a possibility at variance with settled legal presumption.

After a man has been convicted, the presumption of innocence, of which so much is made in our practice, attends him no longer. He has been convicted by a jury, and he has the burden of convincing the trial judge or some other judge that the record upon which he stands convicted is open to serious question, and to do this he must present the record to him, not affidavits of what the record is, and if his own convenience or that of his counsel does not permit him to do this without delay, or if his case is so apparently lacking in merit, or his proposed action so indicative of an intention only to delay, as to cause the trial judge to so certify, we know of nothing more for him to do but to submit to imprisonment until the necessary record can be completed. Such a practice, we think, will be conducive to a very necessary reform in the defense of persons charged with crime and productive of expedition in the punishment of guilty and the discharge of innocent persons — both matters of great public concern and unrest. It is a profound public conviction that courts of justice unnecessarily dally with the cases of persons charged with crime, and that public interests are made to yield to the convenience of counsel and the policy of delay so valuable to criminals and detrimental to the general welfare.

In a recent case a sentence “was pronounced on November 4, 1907, and the appeal was not argued until June 7, 1909. The trial occupied six days. The appeal book contains 142 pages, and the briefs of counsel on both sides 23. So long a delay is a reproach to the administration of justice, and no allowance will be made to counsel until a satisfactory excuse is presented to the court.” People v. Hampartjoomian, 196 N. Y. 77 (89 N. E. 451).

The question raised here bears directly upon the matters of delay, and a questionable appeal. Already nearly three weeks have passed since defendant’s conviction. Within that time, a bill of exceptions should have been settled. The same material is brought before us in the shape of affidavits, on an application to stay the sentence and allow the defendant to go on bail, until in the process of time he shall have his counsel make a bill of exceptions which he can get the judge to sign, and which when made may or may not show the alleged errors set up in his affidavit, provided in the meantime he shall not abandon the project.

The application is denied. We will neither stay the sentence, admit to bail, nor allow the writ of error on tbia record.

Ostrander, McAlvay, Brooke, Blair, and Stone, JJ., concurred with Hooker, J.

Moore, J.

I agree with the result reached by Justice Hooker in this case, but I am not prepared to say that a stay of sentence and admission to bail should in no case be allowed until a bill of exceptions is settled.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    AUDITOR GENERAL v. BISHOP.
    1. Municipal Corporations — Taxation—Special Assessments—
    Jurisdictional Defects.
    Under the provisions of the charter of the city of Port Huron for assessment of sewer taxes, the action of the city engineer in preparing an assessment roll in pursuance of the resolution of the council and in apportioning the tax according to benefits is a compliance with the jurisdictional requirements except in so far as he may have based his action upon the areas of the several parcels.
    2. Same — Basis.
    An assessment of special taxes for constructing a sewer involving a large territory, divided into city lots that are subject to various distinctions, is invalid where it is based on the area of each lot instead of the actual benefit.
    3. Same — Taxation—Res Judicata — Judgment.
    A decree sustaining the validity of one of several annual installments of a special tax is conclusive as to remaining in - stallments objected to on similar grounds.
    4. Same — Special Tax — Laches—Estoppel.
    Although the defendant in proceedings for the sale of land for taxes made no objection to the construction of a sewer on the ground that the assessment was invalid, he is not bound by laches, under a statute which permits a contest at the foreclosure of the tax lien.
    Appeal from St. Clair; Law, J.
    Submitted February-25, 1910.
    (Docket No. 112.)
    Decided April 1, 1910.
    Rehearing denied May 9, 1910.
    Petition by Oramel B. Fuller, auditor general, for the sale of land delinquent for taxes: On objections of Arthur G. Bishop and Frederick D. Sanborn. From a decree for petitioner, defendants appeal.
    Reversed, and petition dismissed as to defendant Bishop, and affirmed as to defendant Sanborn.

      John E. Bird, Attorney General, and Joseph Walsh, City Attorney, for petitioner.

      Stevens, Graham & Stevens (William T. Mitchell, of counsel), for defendants.
   Hooker, J.

In the year 1904 the assessment in controversy in this case was made. It was for a sewer construction tax, and covered 376 acres of land. The benefits were assessed at a flat rate per square foot. The sewer was constructed at a cost of $71,250, one-eighth of which was paid by general tax, which cost was made payable in four annual installments. The auditor general filed the petition in this cause to obtain a decree against delinquent lands, and several landowners in Port Huron contested this sewer tax. The trial judge sustained the tax, and two defendants have appealed: Sanborn, who appears to have been owner when the assessment was made, and Bishop, who purchased his land later and after his grantor had paid two assessments. The third installment is involved in both instances.

The contestants urge:

(1) That the tax is void for the reason that no assessment of benefits was made by the common council.

(2) That this was an unlawful assessment, because made upon a basis of a flat rate per square foot.

The petitioner contends:

(1) That the assessment was made by the council.

(2) That the council must be held to have found that a flat rate was in compliance with the provisions of law.

(3) That the validity of the tax is res adjudicata as to Sanborn, and the right to question it has been waived by Bishop and his grantor.

Want of Jurisdiction. It is stated by the circuit judge that proceedings prior to assessment were not attacked “ for any failure of jurisdiction up to the period of assessment,” and we shall act upon that assumption. Apparently the matter of this sewer came regularly to the city engineer in his official capacity. The charter of Port Huron (Act No. 390, Local Acts 1885, chap. 17, § 4) provides :

“Upon the awarding of such contract the council shall direct the engineer to make out a special assessment roll to defray the cost and expense of doing such work, or making such improvement, and the incidental expenses therein, as fixed in the manner aforesaid.”

The engineer filed the following certificate:

“I, W. W. Phelps, city engineer, do hereby certify that I have included in the annexed assessment roll all the real estate in the assessment district as fixed and determined by the common council together with the name of each owner, or occupant of each lot, tract and parcel of land described in said roll so far as I could ascertain the same after diligent search and inquiry. And I further certify that I have assessed upon each description of land its just proportion of the amount directed to be raised by the common council. I further certify that I have apportioned the amounts assessed against each parcel of land according to the benefits resulting to each of said lots, tracts and parcels of land and that in so doing I have taken into account the area of the same. I further certify that I have assessed to the city of Port Huron its just proportion of the cost and expense of the construction of said sewer and the expenses incident thereto in like manner as I have assessed the private property mentioned and described in said roll.”

The action of the common council is shown by the following resolution which was passed by that body:

“The confirmation of the roll is in these words: By Alderman Burkholder: Resolved, that the special assessment roll No. 155 for constructing a sewer in Tenth, Beard and Twentieth streets from the St. Olair river to a point 75 feet north of Union street, as reported by the city engineer, be, and the same is hereby, accepted and adopted and confirmed.”

It is pointed out that in the certificate the words “and that in so doing I have taken into account the area of the same” were not required by section 7 of the charter as amended (Act No. 539, Local Acts 1903, chap. 17). Counsel for petitioner say that these words should be treated as surplusage, while counsel for defendants ask us to hold that they are evidence that the council and engineer were acting under section 7 as it read before the last amendment, which then required their insertion, and that they conclusively show that benefits were assessed upon no other consideration, and that the assessment was therefore void, under the cases of Thomas v. Gain, 35 Mich. 155 (24 Am. Rep. 535), and Auditor Generals. O’Neill, 143 Mich. 343 (106 N. W. 895). Counsel seem to attach much importance to a difference in the language of the two sections relating to the duties of the engineer. Before the amendment it provided that the engineer should “make out a special assessment roll,” whereas in the amended section the words are that he make out “a proposed assessment roll;” the contention being that in the former it is the duty of the engineer to assess, while in the latter the assessment of benefits must be determined by the council. We are of the opinion that what was done by this engineer as shown by his certificate was equivalent to what was required by the amended sections 5 and 7, except as it may be affected by the words quoted relating to the area, and that the resolution of the council adopting and confirming the assessment is such a determination by the council as to comply with the law substantially. We feel justified therefore in overruling defendants’ first point.

Was this Assessment Void Because of the Flat Rate ? If the record shows upon its face that the assessment was based upon the flat rate alone, it must be admitted to be an irregular assessment. It must not be understood that we can go into a trial of the question of the justice of the assessment upon oral testimony, but as we did in the case of Auditor General v. O’Neill, supra, we may say from the nature of the property as described in the record that a flat rate could not be a lawful apportionment of benefits. We think that we should say that in this case for the reason that the amount of territory involved and the fact that it is divided into city lots, etc., forbid the possibility that such assessment was according to benefits. In that respect the case is practically identical with the O’Neill Case.

In Walker v. City of Detroit, 138 Mich. 639 (101 N. W. 847), we were not able to say from the record that the assessment was not according to benefits, although at a uniform rate per square foot, inasmuch as the territory involved therein was a very limited tract, in the heart of Detroit, where there was little chance for distinction.

Res Adjudicata. It has appeared that this tax was made payable in four installments. Sanborn paid the first installment for the year 1904. He contested the payment for the year 1905 in the auditor general’s proceeding for that year, raising the same points that he has raised in this case. It is clear that the questions are res adjudicata as to Sanborn, against whom this assessment has been once sustained.

Bishop’s Defense. It is claimed by petitioner’s counsel that both defendants should be estopped by laches from questioning their assessments. This proceeding was one in which there was publication and an opportunity for review. The defendants permitted this work to be undertaken and completed at an expense of over $70,000. They took no steps to prevent such action, but waited until an effort was made to foreclose upon the premises, apparently being willing to receive the benefits of this sewer and let others pay their share of the cost. We have often refused to relieve parties under such circumstances. The following cases are in point: Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698); Harwood v. Huntoon, 51 Mich. 639 (17 N. W. 216); Brown v. City of Grand Rapids, 83 Mich. 101 (47 N. W. 117); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161); Moore v. City of Detroit, 103 Mich. 292 (61 N. W. 529); Goodwillie v. City of Detroit, 103 Mich. 283 (61 N. W. 526); Duffy v. City of Saginaw, 106 Mich. 339 (64 N. W. 581); Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Fitzhugh v. Bay City, 109 Mich. 581 (67 N. W. 904); Moore v. McIntyre, 110 Mich. 239 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Township of Walker v. Thomas, 123 Mich. 290 (82 N. W. 48); Auditor General v. Melze, 124 Mich. 285 (82 N. W. 886); Tuller v. City of Detroit, 126 Mich. 605 (85 N. W. 1080); Township of Swan Creek v. Brown, 130 Mich. 382 (90 N. W. 38); Gates v. City of Grand Rapids, 134 Mich. 96 (95 N. W. 998); Nowlen v. City of Benton Harbor, 134 Mich. 404 (96 N. W. 450); Farr v. City of Detroit, 136 Mich. 200 (99 N. W. 19); Shaw v. City of Ypsilanti, 146 Mich. 712 (110 N. W. 40); W. F. Stewart Co. v. City of Flint, 147 Mich. 700 (111 N. W. 352); Constantine v. City of Albion, 148 Mich. 403 (111 N. W. 1068); Jones v. Gable, 150 Mich. 30 (113 N. W. 577).

It is contended that this rule should not be held applicable to Bishop’s land. This is a proceeding in rem to enforce a lien for a tax against premises upon which Bishop held a mortgage, and which, if valid, would have priority over his mortgage. But the rule stated has usually been restricted to cases where relief has been sought in equity, and has been denied upon the principle that: “ He who seeks equity must do equity,” and except in drain cases, which seem to have been considered exceptional, the rule has not been applied against a defendant.

In Auditor General v. Calkins, 136 Mich. 1 (98 N. W. 742) — a paving case arising upon defense to foreclosure proceedings commenced by the auditor general — Mr. Justice Grant sustáined the objection, saying:

“This is not a case where a court of equity will leave a party complainant to his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches. If the statute, as formerly it did, gave a deed to the tax purchaser, and gave the taxpayer no opportunity to appear in court to contest it, we might then apply the rule, as in other cases, that equity will not afford him relief, but will leave him to his remedy at law.”

This was followed in Murphy v. Dobben, 137 Mich. 565 (100 N. W. 891), and W. F. Stewart Co. v. City of Flint, 147 Mich. 697 (111 N. W. 352), and the case of Auditor General v. Stoddard, 147 Mich. 332 (110 N. W. 944). Under these authorities defendant may maintain his defense, and the cause is within the holding in the Case of O’Neill.

The decree is reversed, and bill dismissed as to the lands of Bishop, with costs. In other respects it is affirmed, with costs.

Montgomery, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    STUART v. HOME TELEPHONE CO. OF DETROIT.
    1. Contracts — Offer and Acceptance — Formation.
    After plaintiffs offered to furnish defendant a certain number of castings for manhole frames and covers, defendant replied that it accepted the proposition to supply its requirements up to a large quantity, subject to minor detailed specifications; and plaintiff replied advising defendant of the entry of the order as directed and that it would receive prompt attention. Held, to constitute a contract.
    2. Same — Construction—Quantity.
    A contract to furnish requirements of defendant up to 500 of a certain manufactured article, is a contract to furnish 500 if needed in defendant's work.

      3. Same — Evidence—Previous Dealings.
    In support of plaintiff’s contention that it performed the contract substantially, it was not error to admit a letter of defendant, stating that plaintiffs performed a similar contract during the preceding season satisfactorily; the evidence showing deliveries of the property in a like manner.
    Error to Wayne; Hosmer, J.
    Submitted February 7, 1910.
    (Docket No. 115.)
    Decided April 1, 1910.
    Assumpsit by Johnson Stuart and Walter Stuart, co-partners as the Co-operative Foundry Company, against the Home Telephone Company of Detroit for breach of a contract for the sale of certain castings. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Affirmed.

      T. A. E. & Thomas J. Weadook, for appellant.

      Corliss, Leete & Joslyn, for appellees.
   McAlvay, J.

Plaintiffs are copartners engaged in business as foundry men under the name of “Co-operative Foundry Company. ” Defendant is a Michigan corporation, and in the year 1907 was engaged in constructing a telephone plant, and laying its wires in the city of Detroit. This controversy relates to certain castings which plaintiffs claim were manufactured by them under a contract with defendant, a large number of which defendant refused to receive and pay for. During the season of 1906, these parties had dealings for the same kind of castings made at the same plant. The claimed contract upon which plaintiffs rely grew out of a conversation between one of them and defendant’s agent, Mr. Daniels, early in 1907, relative to the price of manhole frames and covers.

As a result of this conversation, plaintiffs sent the following letter to defendant’s agent:

“ Detroit, Mich., April 8.
“Mr. Daniels, Pur-Agt.,
“Home Telephone Company,
“City.
Dear Sir: We will be pleased to furnish you with 375 manhole casings according to blueprints and standard weight, approximately 1,000 lbs. at $25.00 each. Delivered at storage yard or on line of work.
“ Respectfully yours,
“Co-operative Foundry,
“Johnston Stuart.”
To this defendant replied:
“April 13, 1907.
“Co-operative Foundry Co.,
“Junction and Henrietta Sts.,
“ City.
Dear Sirs: We have your letter of April 8th to hand, in which you quote us on manhole frames and covers as per blueprints and specifications submitted at the rate of twenty-five dollars ($25.00) each, net, and we herewith beg to advise you that we accept your proposition in which you agree to furnish our requirements up to the amount of 500 of these manhole frames and covers, each weighing approximately 1,000 lbs. and to conform with blueprints which you have now on file.
“ These manhole frames and covers are to be delivered upon the streets of the city of Detroit as we may require them from day to day as per our orders over the telephone, which will be followed by a written order, and we reserve the right to reject any manhole frame or cover which may be defective.
“ Trusting you will confirm this by letter at an early date, and thanking you for the courtesy you have shown us in the past, we beg to remain,
“Yours very respectfully,
“Home Telephone Company,
“W. B. Woodbury,
“General Manager.”
Plaintiffs answered as follows:
“Home Telephone Company,
“Detroit, Mich.
“Gentlemen: We have entered your order for 500 manhole frames and covers, delivered, as directed; at storage yard or on line of work.
“Thanking you for the order, which will receive our prompt and careful attention, we are,
‘ ‘ Yours respectfully,
“Co-operative Foundry,
“Johnston Stuart.”

Whatever contract was made is contained in the foregoing correspondence. Under this arrangement, plaintiffs delivered 288 manhole frames and covers as directed by defendant. Then no further orders came in. Plaintiffs went to Mr. Daniels, agent, and Mr. Woodbury, general manager, of defendant, and wrote several letters to their general manager between July 25th and October 9th giving the number of castings on hand awaiting orders for delivery and asking for an explanation. None of these letters were answered except the last one, which asked for two or three days’ time to advise with the general manager. It was written by the purchasing agent who succeeded Mr. Daniels. The record shows that defondant was procuring these castings from other sources. It also appears that more than 500 of these castings were required and used by defendant in the prosecution of its work. Plaintiffs claimed that they were at all times ready and willing to furnish and deliver the full number of 500 manhole castings, and did deliver all that were ordered without default; that they manufactured the number on hand when defendant defaulted, by order of its agent so as to be ready for delivery; and that they were entitled to recover the full price of those on hand and loss of profits on the balance of the contract number to make up the full quota of 500. On the part of the defendant it was claimed on the trial that the writings did not amount to a contract; that all the castings delivered were paid for; and that, in any event, plaintiffs had defaulted by unreasonable delay in delivering, and could recover no loss of profits. The court construed the writings as amounting to a contract and adopted plaintiffs’ theory of recovery; if not in default on their part. The jury, under the charge of the court,' returned a verdict for plaintiffs, and a judgment was entered accordingly. Defendant is here upon a writ of error asking a reversal. It is urged on its part that the court erred: (a) In holding that a contract was entered into between the parties; (b) in admitting and rejecting certain testimony; and (c) in refusing to grant a new trial.

The important question is whether the minds of these parties met and a contract was made between them. We need not repeat the letters already given, but we must consider them as parts of one transaction. The proposition by plaintiffs which the record shows was made at the suggestion of defendant’s agent, is received and considered favorable. The price, weight, etc., are satisfactory. More castings, however, are desired than plaintiffs offer. Defendant writes:

“We accept your proposition in which you agree to furnish our requirements up to the amount of 500 of these manhole frames and covers * * * ” — specifying minor details.

The terms of the proposition are in other respects accepted. A request is added by the words, “ Trusting you will confirm this by letter.” Plaintiffs promptly reply:

“We have entered your order for 500 manhole frames and covers, delivered as directed. * * * Thanking you for the order, which will receive our prompt and careful attention, we are,” etc.

The confirmation requested was certainly intended, and in our opinion, by a fair construction of this last letter, was given, and was an acceptance of the altered terms of the proposition. We understand the contention to be that this did not amount to an acceptance. The word “accepted ” is" not used; but the statement that the order had been entered by plaintiffs and thanking defendant for the order, with the assurance that it would receive prompt and careful attention, leaves no doubt or ambiguity as to what was done. Bollenbacher v. Reed, 155 Mich., at page 282 (118 N. W. 933). This was the practical construction given by both parties at the time and upon which both acted for a long time afterwards. The testimony of defendant’s general manager recognizes “this contract” which he had ordered canceled. The notice under the plea of the general issue admits that the work and labor, etc., “were done and furnished under a special contract or agreement in writing made and entered into between the parties by correspondence, by which plaintiffs agreed to furnish 875 manhole covers at $35.00 each,” claiming default by plaintiffs, in not furnishing in time; being 87 more than were ordered and delivered.

We do not find anywhere in the record, either orally or in writing, before suit, defendant at any time made a claim that a contract was not entered into with plaintiffs, although plaintiffs were persistently, in writing, calling attention to the fact. Hubbell v. Palmer, 76 Mich. 446 (43 N. W. 442).

In the case of Cooper v. Lansing Wheel Co., 94 Mich. 272 (54 N. W. 39, 34 Am. St. Rep. 341), a similar question was before this court. In a well-considered opinion by Mr. Justice Montgomery, the court said:

“ If it be held, as we think the proper doctrine is, that an offer to furnish such goods as the plaintiff may want within a stated time may, upon acceptance by the offeree before withdrawal, constitute a valid contract, it is difficult to see why, if the offeree orders any portion of the goods, and the offerer has the benefit of the sale, the entire contract may not become valid and binding. This certainly would constitute a sufficient consideration.”

In that case the buyer (who was plaintiff) wrote, “ Please enter our order for what wheels we may want,” etc. In the instant case the buyer wrote:

“We accept your proposition in which you agree to furnish our requirements up to the amount of 500 of these manhole frames and covers. * * * Confirm this by letter at an early date,” etc.

Three days later plaintiffs wrote, “We have entered your order,” etc. On this agreement orders were sent in, delivered, and paid for, from time to time, amounting to $7,300. We are unable to distinguish these cases.

Construing the clause in this contract, “to furnish our requirements up to 500 of these manhole frames and covers,” the court held that it was a contract for 500, if that number was required for use in defendant’s work. The construction of the court was correct. F. B. Holmes & Co. v. City of Detroit, 158 Mich. 137 (122 N. W. 506), and cases cited.

We have examined the numerous assignments of error on the admission and rejection of testimony. We will consider briefly such as require attention. Objection was made to the admission of a letter from defendant to plaintiffs, written on the close of the business between them during the previous season. It expressed entire satisfaction, and was admitted in connection with testimony tending to show that the deliveries were made in the same manner as during 1907. This was not error.

Much of the record is taken up with the testimony, pro and con, upon the claim of defendant that plaintiffs were dilatory in their delivery of the castings. From our examination, we are satisfied that no immaterial testimony was allowed, or that which was material to this issue of fact excluded. The question was for the jury and was submitted under proper instructions. Several errors are assigned upon the construction of the contract by the court, and his charges to the jury relating thereto. Such construction was entirely in harmony with our construction of the writings.

It follows that the motion for a new trial, which was based upon the contentions of defendant which this opinion has not accepted, was properly denied by the court.

We do not find error in the case.

The judgment is affirmed.

Montgomery, C. J., and Brooke, Blair, and Stone, JJ., concurred.


text:
    STEVENS v. WAYNE CIRCUIT JUDGE.
    Mandamus — Adequate Remedy — Appeal and Error — Equity.
    The entry oí a decree of divorce will not be ordered on mandamus against a circuit judge who finds complainant entitled to the divorce on the ground of extreme cruelty but refuses to enter the decree for want of jurisdiction of the defendant; the appropriate remedy being by appeal. Ambos v. Ingham Circuit Judge, 123 Mich. 618.
    Mandamus by Wilbur W. Stevens to compel George S. Hosmer, circuit judge of Wayne county, to render a decree in divorce proceedings.
    Submitted March 3, 1910.
    (Calendar No. 23,903½.)
    Writ denied April 1, 1910.

      Willard E. Warner, for relator.
   McAlvay, J.

Relator by mandamus proceedings seeks to compel the respondent, Hon. George S. Hosmer, one of the judges of the circuit court for Wayne county, to grant a certain specific decree in his favor in a cause of divorce heard before respondent in said court, or, in lieu thereof, to grant an order in said cause under section 488, 1 Comp. Laws.

The return of respondent shows that there is no dispute upon the facts. Relator filed his bill of complaint against his wife, praying for a divorce on the ground of extreme cruelty. No personal service was had upon defendant. A three months’ order of publication, based upon an affidavit of relator, was granted and duly published. Defendant did not appear in the case. The bill of complaint was taken as confessed against her, and a hearing was had upon pleadings and proofs offered by complainant, before respondent, then presiding. Upon the conclusion of the hearing respondent said that although the proofs in his opinion were sufficient to entitle relator to a decree of' divorce on the ground of extreme cruelty, yet, under the pleadings and the testimony given by complainant, he did not consider that the court had jurisdiction under a three months’ order to grant a decree of divorce in the case. Respondent therefore refused to sign the decree presented to him by relator, and also to grant an order presented for signature to extend the time one month for the appearance of defendant. Upon these facts the proceedings in this application are based.

In a case identical with the one here presented this court held that it would not compel a circuit judge to sign a particular decree. Ambos v. Ingham Circuit Judge, 123 Mich. 618 (82 N. W. 267). See, also, Sherwood v. Ionia Circuit Judge, 105 Mich. 540 (63 N. W. 509). Respondent has not refused to act in this case. The record shows plainly that his intention is to enter a decree dismissing the bill of complaint. The remedy of relator is by an appeal from that decree. Upon that hearing the jurisdictional questions sought to be raised by these proceedings will be before us for consideration.

The writ is denied, but without costs, which are waived by respondent.

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


author: Ostrander, J.

text:
    RUTTLE v. FOSS.
    1. Contracts — Implied — Findings on Special Questions — Inconsistent Verdict.
    In an. action for the value of services rendered, special findings by the jury, that plaintiff was not to be paid in cash, stock, or property under any agreement, are not fatally inconsistent with a verdict for the value of services rendered under an alleged agreement for compensation in some undefined manner.
    2. Same — Special Questions.
    Both parties testifying to an express agreement as to compensation for a portion of the services rendered, and disagreeing as to its terms, it was error to permit the jury under a declaration for breach of an express contract to render a verdict on the theory of an implied contract to pay what such services were worth.
    3. Evidence — Damages—Value.
    To determine the value of services rendered by plaintiff, evidence of what other persons could be or had been hired for is incompetent.
    4. Damages — Contracts — Implied Contracts — Quantum Meruit.
    One employed under an agreement for some compensation to be taken care of by defendant thereafter, and determined by subsequent arrangement to the satisfaction of both parties, may recover the value of his services upon a refusal to perform in accordance with the arrangement.
    5. Evidence — Materiality.
    In an action for services rendered by plaintiff to defendant, where the issues involved the terms of an express agreement between the parties and its alleged breach, testimony relating to plaintiff’s ownership of stock in a coal mine, the manner of its acquisition, his salary, and relating to the value of the mine with which his services were concerned was irrelevant.
    6. Appeal and Error — Bribe of Appellant.
    A compliance with Supreme Court Bule 40, requiring a statement of the errors relied on and questions involved, by appellant in his brief, is not shown in a brief which contains general discussion preceding the errors discussed, without a separate statement.
    7. Same — Record.
    Failure to reduce the testimony to narrative form and omit colloquies of court and counsel warrants the court in limiting the taxable costs to a reasonable amount.
    Error to Bay; Sharpe, J., presiding.
    Submitted February 24, 1910.
    (Docket No. 31.)
    Decided April 1, 1910.
    Assumpsit by Charles S. Ruttle against Edgar B. Foss for services rendered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      M. L. Courtright (De Vere Hall, of counsel), for appellant.

      Weadock & Duffy (T. F. Shepard, of counsel), for appellee.
    The facts m this case and those involved in Ruttle v. Mining Co., post, 150 (125 N. W. 787), are a history of relations existing between plaintiff and defendant. Like that case, this one is a suit to recover the value of the services of the plaintiff. The declaration con.tains a special count, and joined therewith are the common counts in assumpsit. The particulars of plaintiff’s demand are:
    “ 1902 — June 15, to 1904 — June 23.
    “ To personal services in and in connection with modifying and making changes in and amendments to leases, securing right of way for railroad, making contracts, and other work in procuring, constructing, developing the property afterwards and on, to wit, the 23d day of June, 1904, put into and are a part of the What Cheer Coal Mining Company’s property, $5,000.
    “ 1903 — October 26, to 1905 — July 17.
    '* To personal services in and in connection with securing leases, examining leases, getting them acknowledged, recording them, modifying and changing options, procuring leases for options and other services in connection with procurement of coal leases in Bay, Saginaw and Tuscola counties, covering an acreage of, to wit, 31,480 of an estimated value of over $150,000, $7,000.
    “Interest on the above at 5 per cent, to date of judgment.”
    During the period covered by the demand plaintiff was acting as secretary of the Wenona Coal & Mining Company, and from 1903 drawing a salary from that company of $2,000 per annum. During a portion of the time he claims to have been employed by the What Cheer Coal Mining Company, viz., from July 23, 1904, to July 17, 1905, under circumstances which required that his services should be paid for by that company.
    As to his arrangements with Mr. Foss, plaintiff testified:
    “In the latter part of 1901, fore part of 1902, I was manager of the Wenona Coal & Mining Company. In May or in spring of 1902 I entered into the employment or arrangement with Mr. Foss, for getting leases, etc.
    “ Q. What was the arrangement you made with Mr. Foss?
    “A. The arrangement was to take up the leases that are now owned by the What Cheer Coal Mining Company and make such changes and modifications in the leases as I could; that is, to reduce the advance royalty, and change the leases from a run of mine to a screened basis,etc., and to look after the drilling. These leases were mostly in Merritt township, Bay county, and Buena Vista township, Saginaw county, and were owned by Mr. Foss, and had been taken by him previous to this time. Previous to making this arrangement I had been working for the Wenona Coal & Mining Company, starting on April 16, 1901, previous to which time I had been working for the Grand Trunk.
    “ Q. Under what arrangement, if any, did you start to work on these leases, correcting and reforming the leases, and preparing this coal field for operation ?
    “A. The arrangement was practically this: That the leases were not satisfactory to Mr. Foss, and, the mines being idle, he asked me if I would take up the work of modifying the leases, and he said he wanted the whole matter kept separate from the coal mining business, the expenses; that any expenses incurred would be paid by E. B. Foss & Co., and if I were successful in getting the changes made, I would be compensated for it, or taken care of, and paid for the work I did. * * * I had nothing to do with getting those leases, or anything in connection with them, previous to that time. I took up lease by lease with the different farmers, and talked the matter of advances over with them, and had the leases modified and changed according to our ideas; the advanced royalties in some instances being reduced from $3 to $2.50. I continued working on those leases, and worked in connection with that field up to the organization of the What Cheer Coal Mining Company, and continued on until I resigned my position. I looked after the drilling, purchased all supplies for the drills, practically for the railroad, including securing the right of way, made contracts for all work in connection with the grading and building of the buildings and railroad, together with contracts for boarding house and other buildings, and everything that was connected with the construction of the mine, and looked after all details, and of all the accounts. I got special rates on material to Munger station. I think it was by correspondence. * * *

      "Q. Now, to digress a moment from the letters, you stated this forenoon that you had a talk when you began, some time in May, 1902, you had a talk with Mr. Foss about going to work and exploiting and organizing what is now known as the What Cheer coal field, and he told you to go to work, and you should be compensated for it. That is what you testified this forenoon ?

      “A. That was in 1902.

      “Q. When did you next have a discussion with him as to what interest, or what you should have, or what pay, or how should you be compensated in connection with that field for services rendered ? * * *

      “A. January 28th is my recollection of it now; that we went to Detroit on the Pere Marquette, and talked the matter over there, and at that time Mr. Foss made a proposition that I was to have so much stock in the company.

      “Q. Explain what the talk was or figured up or made out at that time.

      “A. The talk was simply this: We were sitting in the chair car going down to Detroit to see Mr. Carpenter. We had talked that matter over before in regard to arranging for track facilities, and so forth, and this trip to Detroit was to see Mr. Carpenter to talk the matter over, and Mr. Foss had an envelope, and we were sitting in the rear of the ear, as I recollect, the left-hand side' of the train, both sitting opposite each other in chairs, and he figured that this, his capital stock of $100,000, the leases were put in at so much—

      “Q. For how much ?

      “A. Well, the figures were changed somewhat. The whole thing amounted to $100,000, out of which he had me down on the envelope $15,000, and later he had me down $10,000 in stock/ At any rate—

      “Q. Wait. In that same conversation was it on that envelope fixing you at $10,000, or was it at some later date ?

      “A. It was a later date.
    “Q. It was not in that conversation F

      “A. No.

      “Q. Then you do not run them together ? At that date you say he had you down—

      “A. Mr. Foss showed on the envelope $15,000 worth of stock that I was to have in the company. The balance was made up of the leases and his proportion of the capital stock at $100,000.
    “Q. What was the $15,000 of stock to you for ?

      “A. For my services from the time I started in to change the leases and work I had done and what I would do for the company after the time of the organization. * * * There was no further talk after January 28th until the organization of the company July 23d, or at the time of the signing of the articles of association. Prior to this talk of January 28, 1904, the changes and modifications in the leases had practically all been made. * * *
    “Q. Dropping the What Cheer field and turning to Tuscola, town of Merritt, and the Saginaw field, did you have at any time any other or further arrangement with Mr. Foss in regard to services in coal leases and getting a coal field ?

      “A. Yes, sir; about November 1, 1903.
    “ Q. Tell what that conversation or arrangement between you and Mr. Foss was in regard to getting those coal leases?

      “A. Simply this: That I was to look after the leases, get all the leases that I could, have charge of the work, prospecting, etc., conduct all the details, and he was to furnish the money, and I was to have a quarter interest in all the leases.”
    On cross-examination he testified:
    “ Q. Down to January 28, 1904, we have gone over the things that you said you did when the second conversation took place, viz., the conversation on the train. It has passed from March 1, 1902, until January 28, 1904, nearly two years; and you say you were to be compensated for that work ? Is that right ?
    “ A. Yes, sir.
    “ Q. In what way ?

      “ A. There was not any price stated.
    “ Q. In what way ?

      “ A. That matter was not talked of at all.

      “ Q. Was there anything said as to whether it should be money, or what it should be ?

      “A. No, sir.

      “ Q. What words were used with reference to compensation ?

      “ A. The words I said
    “ Q. State it again.

      “A. That the expenses incurred would make an expense account to E. B. Foss, and were to be paid by E. B. Foss & Co., and if I was successful in getting the modifications made, I would be compensated. * * * On May 24, 1905, I talked with Mr. Foss on the subject of compensation. I made no claim for compensation for work in the Tuscola, Saginaw, or East Merritt fields prior to this time.

      “Q. On the 25th of May, 1905, when you had this conversation with Mr. Foss, as you claim, outside of your $2,000 contract for salary, there were three other contracts in existence: One beginning as early as 1902, terminating June 23, 1904, under which you claim $5,000; one beginning October 26, 1903, under which you claim $7,000; one against the What Cheer Company under which you claim from July 23, 1904, to the termination of your connection, $5,000. You claim those three contracts in force on the 25th of May, 1905, don’t you ?

      “A. Yes; everything was in force at that time.
    “Q. Just answer my questions.

      “A. It was in force at that time.

      “ Q. And these are the ones you say there are no writings of any character to evidence, and there is no person who heard them other than you and Mr. Foss ?

      “A. That is right. Mr. Foss’ conversation with me was always sub rosa.

      "Q. Why, was he afraid of you ?

      “A. I don’t know, but that is the way he did business. * * * On May 24, 1905, when Mr. Foss and I were on the train, he said he would carry out his agreement. I did not see him again in regard to it until some time in June, about the 15th. On this date he had to go to a bank directors’ meeting, and we did not take it up. He is a very busy man. The next talk we had was on July 6th. His son came in the office, and said there was some trouble in the mill, and he went out. The next talk we had was at the end of the dock at his office, on the 12th of July. When Ed. Foss came in the office I do no thinkhe had said that he would not carry out the arrangement. We had a talk on July 12th, and it was very plain, too.

      “Q. State what demand you made of him on July 12th at the end of the dock.

      “A. I demanded that he carry out his agreement with me or put the matter in writing, so that we would know where we were at.

      “Q. What did he say ?

      “A. Weil, he hesitated, and he offered to increase my pay, in the Wenona Coal Company by $500, and I told him it was not a question of salary at all; it was a question of his carrying out his agreement with me, and nothing more and nothing less. I made practically the same statement to him that I did on the train on May 24th.”
    Redirect:
    “ In the talk on the dock I claimed that I was entitled to a certain amount of stock when the What Cheer was organized, and he had promised to give it to me, and that I was entitled to a certain per cent. or.25 per cent, interest in the leases, which he had declined up to that time, or had not put in writing, and I told him when he would put it in writing I would continue on, but instead of doing that he offered me an increase in salary. I told him it was not a question of salary at all; it was a question of carrying out his agreement, and if that agreement was carried out, there would not have been any further trouble at all. There was nothing said in this talk about his giving me stock in the What Cheer mine for services rendered up to the time it was organized. I asked him for the stock that belonged to me in the What Cheer Company, and he said he was not going — I don’t just recall what his statement was in regard to that, but at any rate I did not get the stock. * * *
    “ In talking to Mr. Foss on the train I brought up the question of his carrying out his agreement with me, and in this conversation I told him that neither he nor I had any lease of life, and if he should die I might have some trouble in having my claims protected, and if I should die, what would my family get out of it. His reply was this: He says, ‘Never mind, Mr. Ruttle, I will see th§,t your family is taken care of.’ I says, * Mr. Foss, that is a duty which devolves upon myself, and if you intend to carry out your agreement with me, there can be no objection to your putting the arrangement in writing.’ He says, ‘ Well, I will think it over, and we will fix that matter up when I get home.’ The matter was never fixed.”
    The testimony of defendant is:
    “ In January and February of 1901 I found I had too much work to do; that I could not look after all my work properly and attend to the details. At this time I knew the plaintiff casually. I formed his acquaintance by his being Grand Trunk freight agent. I occasionally had business with the Grand Trunk. I found that having so much work that I had to give up part of my business or else get some one to take some of the details off my shoulders, and the thought came that I could probably get some man from the Ohio fields that would know something about the coal business. At this time I had other coal interests in what is known as the What Cheer field. It had not been developed, but had been tested. After testing the field, if it had not been tested for sinking a shaft, we would have to test to find the right place for the shaft. This was the status of the What Cheer field at the time I got in communication with plaintiff. The leases had all been acquired, and the field tested up. I called Mr. Ruttle up and said in substance, asking if he knew of some man from Ohio coal fields that I could employ, and he answered back asking if he would do. I can only give that in substance. I said, ‘ Come over, and we will talk it over.’ He came over, and after one or two talks I hired him.

      “Q. You may state what you said to him during these talks as to what he was to do under his employment.

      “A. The talk with Mr. Ruttle was that he was to enter my employment, the employ of the Wenona Coal Company, and do whatever I might want him to do for the Wenona Coal Company, or for myself in coal interests in general; that he was to have a salary of $1,400 per year.

      "Q. State what he said. Are you stating the agreement that was made now ?

      “A. Yes, the agreement was that—

      “Q. How did you come to hit on the sum of $1,400.

      "A. Mr. Ruttle, in answer to my inquiry, said that he was getting, as I recall, $90 per month, and railroad fares, and some street car fares and opera house tickets and other sources; he would get perhaps $10 more per month, making a salary of approximately $100 a month, or $1,200 per year, and as an inducement I gave him a couple of hundred dollars a year more than he was then getting. This salary was to be paid by the Wenona Coal Company. * * *

      “Q. When did you first speak to him about your interest in the What Cheer field ?

      “A. At the time I hired him.

      “Q. What did you tell him about your interest ?

      “A. I told him I had these leases, that the field had been tested up, and that I had not determined just what I would do with that field.

      “Q. Had you then determined ?

      “A. No, sir; I had not. Mr. Ruttle was to look after the sales of the coal under my direction. I gave him the prices; that is, the minimum prices. At times the mine would require supplies, and they would telephone or send in their requests, and Mr. Ruttle would get prices from the stores that we might want to deal with and submit them to me, and if they were satisfactory, the stock was ordered. I think we were dealing, perhaps, with most of the stores here, largely with the Jennison Hardware Company. Down to the spring of 1902 the general work of Mr. Ruttle was as I have stated. In May of 1902,1 think it was, Mr. Ruttle acquired stock in the Wenona coal mine. The stock was sold to him in this manner: He was to give his note for $5,000, that was the amount of the stock at par, say for three months, and the note was taken by me and discounted at the bank, and he was to pay the bank discount, and as dividends were declared by the Wenona Company, they would be applied on the note, and the note was reduced in that manner. He got $5,000 of stock, one-twentieth of the capital. I think he commenced to go out in the What Cheer field some time in 1902, I think somewhere about that time. He got his stock when he first commenced to go out in the field. There was no arrangement.

      “Q. What did you tell him about the field ?

      “A. I told him that some of the leases were not satisfactory, and requested him to go out and see if he could get them modified and changed.

      “Q. Was there anything said to him—

      "A. At this time there was a strike on, and there was no work in any of the mines here.

      “Q. Is this the year that the big coal strike was on, in the anthracite coal field ?
    “A. Yes, sir.
    “ Q. Were the mines operating here then ?

      “A. In my recollection they were not. My recollection is that there were several continuous months that the Wenona mine did not require Mr. Ruttle’s attention on account of the strike. I told him some of these leases in the What Cheer field wanted to be changed, and I asked him to go out. I think I probably showed him the leases and gave them to him. At this time, May, 1902, there was nothing said about his having any interest of any kind in that field. There were a few leases that were changed. I do not know how much time he might have taken. I do not think it was any large amount of time. He never made any suggestion of any character when he started out in the What Cheer field that he was to make any charge or receive any compensation for his work. He would go out with a horse and buggy. I presume he would tell me when he came in what he had done; he did, as far as I recall. I determined that I would put a shaft down out there in the latter part of 1902 or early in 1903. Every employe spending money on my account or on account of the company would be required to keep an expense book. We had weekly expense books. It was some time in 1903 that I first had any talk with Mr. Rut-tie about his acquiring any interest in the What Cheer field. I think at this time we had done a little further testing, and had secured changes in some of the leases.

      “Q. What did you tell him about an interest in the What Cheer field P

      “A. I told him that I would give him a show — not give him, but sell him, the same amount of stock in the What Cheer company, when the company might be formed, when it was formed, that he had in the Wenona —that is, $5,000, to be paid for on the same plan that the Wenona stock was paid for.
    “Q. Now, did you ever have any other or different arrangement with him in reference to any stock in the What Cheer mine or field other than you have here stated ?

      “A. No other.

      “Q. Did you ever make any modification or change of any character in that arrangement ?

      “A. None, whatever.

      “Q. Did you ever, down to the time that he announced his withdrawal from your staff, did you ever refuse to carry out that arrangement F

      “A. No, sir. * * * I do not recall any definite conversation with Mr. Ruttle on the train going to Detroit on January 28th as testified by him with reference to stock in the What Cheer Company.
    “ Q. Will you state whether in this conversation you said to Mr. Ruttle anything to the effect that he should have ten or fifteen thousand dollars in the What Cheer Coal Mining Company ?

      “A. Not at this time, or at any other time.

      “ Q. Was there any talk this day on the train about the formation of the company ?

      "A. I think likely there was.

      “ Q. Was the amount of the capital stock discussed at that time ?

      “A. I don’t recall whether I determined at that time what the capital stock would be. I am not certain about that.

      “Q. You did determine it later ?

      “A. I did determine it later. I determined the amount of capital stock sometime in 1904, previous to the formation of the company. My recollection is that it would be some time in 1904, previous to the formation of the company, that I first had any talk with Mr. Ruttle about the issuance of any stock to him in it. I think it would be after January 28th.

      “Q. You may state, and I do not think you have stated it, except inferentially, state just what the contract was in reference to the What Cheer stock ?

      “A. I agreed to sell to Mr. Buttle $5,000 of the stock in the What Cheer Company on the same basis that he bought $5,000 of stock in the Wenona.
    “Q. I think you have stated that.

      “A. Yes; to be paid out of the profits, if any.”
    As to the work of the plaintiff in the Tuscola coal field, defendant testified:
    “Mr. Buttle never asked me at anytime for any interest in the Tuscola field. He asked what I was going to do about the Tuscola field. That was in the talk on the dock. I told him that up to that time I had not found anything of moment, and I had spent something like ten or twelve thousand dollars, and it looked as though we might lose all the money we had in there. I hadn’t anything to say about it. To the best of my recollection I had surrendered some of the leases at this time. If we found, anything worth while in the Tuscola field, Mr. Buttle would have an interest after I was reimbursed.
    “I told Mr. Buttle that he could go out in the Tuscola field and get leases, and that if I got my money back out of it that I put in it, I would let him have some interest in it, provided he stayed with me. He went on with that understanding. I told him I would give him an interest to encourage him. It was for our mutual benefit. I told him on the train going to Detroit that I would let him have $5,000 of the stock of the What Cheer Company. In the conversation had on the dock I told him he could have it if he stayed in my employ; it would be paid for in dividends that the company might make. He was to give his note at 6 per cent, interest. It was to be the same arrangement as in the Wenona mine. It was to be a bankable note; it would run three or four months, and be renewed as required, for the reduced amount. If there were no dividends from the mine, then wé would not get anything for the stock, and the note would not have to be paid. It was the understanding that if no profits were made, he would not be required to pay for the stock; I would have to take up the note myself and pay it. This was the talk between us. The first talk about letting him have any stock in the What Cheer was some time before the company was organized.”
    The jury returned a general verdict for plaintiff, and also answered certain special questions submitted by the court. The questions so submitted and the answers are:
    “ (1) Was there an agreement made between plaintiff and defendant before January 28, 1904, that plaintiff should be compensated for his work in the What Cheer field by an interest in the leases ?
    “ The same was answered: No.
    “(2) Was there an agreement made between plaintiff and defendant before January 28, 1904, that plaintiff should be compensated for his work in the What Cheer field by the payment of cash ?
    "The same was answered: No.
    "(3) Was there an agreement made between plaintiff and defendant that plaintiff should render services in the Tuscola field for a quarter interest in the leases taken ?
    “The same was answered: No.
    “ (4) Was there an agreement made between plaintiff and defendant that plaintiff should render services in the Tuscola field for compensation to be paid in cash ?
    “The same was answered: No.

      “ (5) Do you find that defendant promised plaintiff $5,000 of the stock of the What Cheer Company ?

    “The same was answered: Yes, by sale.”
    In instructing the jury the court advised them that they should determine what the original contract of the parties was. If it was found to be as claimed by defendant, and no other or later contract or agreement was entered into, plaintiff could not recover. If there was an agreement that plaintiff was to receive compensation for services other than those originally contracted for, plaintiff could recover. This as to the so-called What Cheer coal field. If defendant agreed to give plaintiff a one-quarter interest in the leases secured in the Tuscola coal field, that would be an agreement for an interest in land which could not rest in parol. But, in such a case, if defendant did not carry out such agreement, plaintiff could recover the reasonable value of the services performed in that behalf. If, however, the arrangement was the one testified to by the defendant, the plaintiff could not recover. The jury was further instructed as follows:
    “ Now, gentlemen of the jury, I have stated to you that the claim of the plaintiff is that those services were rendered under an express contract, by promise on Mr. Foss’ part, to compensate him on the one hand, and give him an interest in this property on the other. That is what we call in law an ‘express contract.’ We have, however, a provision of law relative to payment for services concerning which there is no contract stated between the parties. If one man renders services to another under such circumstances as leads the man who renders the service to expect that he is going to get pay for them, and as leads the man for whom the services are rendered to expect he is going to pay the other man for them, that raises in law what we term an ‘ implied contract ’ upon the part of the one for whom the services are rendered to pay the other for them. That does not mean that a man cannot perform gratuitous services for another. Perhaps there is no year that each one of us sometimes during the year does some little act of kindness, some gratuitous service for some one, and you do not expect any compensation for it, and that one does not expect to give you any compensation for it. The law does not prevent people doing that, and it does not permit a man to recover for his services when they are rendered in that way. But when they are rendered under such circumstances as leads one man to believe he is going to be paid, and the other man to expect that he is going to pay for them, and even though there may be no positive promise to pay, yet the law permits a man to recover under such circumstances what the services were reasonably worth.”
   Ostrander, J.

(after stating the facts). There are 33 assignments of error, some 25 or 26 of which are mentioned and to some extent relied upon in the brief for appellant. The first five relate to the effect upon the general verdict of the answers to the special questions. We have taken the pains to set out testimony given by plaintiff and by defendant with respect to the bargain or arrangement existing between them. The answers to the special questions in the light of this testimony have not all the significance which is claimed for them. The answer to the fifth question is precisely in keeping with the testimony of defendant, and precisely opposed to that of plaintiff. This is true, also, of the answers to the third and fourth questions. But the answers to the first and second questions are not necessarily inconsistent with a general verdict for the value of services performed in the What Cheer coal field and described in the first item of the plaintiff’s bill of particulars. They are consistent with plaintiff’s testimony to the effect that he was to be “compensated, taken care of,” but in just what manner there was no agreement. But they are also consistent with the testimony of defendant and with the theory of plaintiff’s right to recover only upon an implied contract. Therefore, as affecting the general verdict, none of the answers have any considerable significance unless the jury awarded plaintiff something for his services in the Tuscola coal fields. It is clear, in viéw of these answers, they could not have done so and followed the instructions of the court, except upon the theory that plaintiff might recover, under an implied contract, for services in the Tuscola field. That he could not be permitted to do so is clear. The testimony expressly negatives the proposition. The special findings negative the agreement testified to by plaintiff. The only other arrangement testified to was by defendant. Both claim there was an express agreement.

We are of opinion, too, that plaintiff upon this record cannot be allowed to recover, as upon an implied contract, for services in the What Cheer coal field. There was some, though a very narrow, support for such a theory in the case of Ruttle v. Mining Co., which has been referred to, in that plaintiff there admittedly rendered services for the corporation itself, after its organization. In the case ar bar, he was either working for the defendant, under the original contract of hiring, or else he was working under some new arrangement. Plaintiff testifies that there was a new or other arrangement, and states what it was — indefinite at first as to what should be paid him, but later on made certain and definite by an agreement to give him a large amount of the stock of the concern. Inferentially at least, the jury found his testimony to be un - true, since they found he was promised, as defendant says he was, $5,000 only of the stock which was to be sold to him, and if the dividends paid were sufficient to pay for it, it was to be his without other cost to him. The express agreement testified to by the plaintiff is declared upon specially in his declaration, and the breach of the agreement, to his damage, is alleged. Under the testimony the case is not like Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671), and other cases cited for the appellee, and is like, and is controlled by, the familiar rule stated and applied in Swarthout v. Lucas, 101 Mich. 609 (60 N. W. 306); Shaw v. Armstrong, 88 Mich. 311 (50 N. W. 248); Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547). The error numbered 7 is well assigned.

There was some evidence of the value of plaintiff’s services, and the court properly refused to direct a verdict upon the ground there was no such evidence. We do not find, upon examination of the record, that the court refused to permit defendant to show what would be fair compensation for plaintiff’s services. He did refuse, and we think properly, to permit defendant to show what, in his judgment, he could have got others for, and to state that he hired a more competent man, whom he named, who was otherwise employed, at a certain salary. It is not disputed that defendant hired plaintiff originally at an agreed salary of $1,400, later increased to $2,000, per annum. This salary plaintiff continued to draw. What plaintiff claims is that, becoming proficient, he continued to earn that salary by the services originally contracted to be paid, and was also able to earn, and defendant employed him to earn, other compensation for other services.

It appears to be claimed, although the claim is not very clearly made, that the remedy of plaintiff is in an action for damages for breaches of the express oral agreements to which he testifies. If it is meant that, having been employed under an arrangement to have some compensation — to be taken care of — the manner and method being left to defendant, and defendant, having later indicated the method to plaintiff’s satisfaction, refused to carry it out, as he had the power, if not the right, to do, plaintiff is thereby debarred the action to recover what his services were worth, we do not agree with counsel. If it is assumed that compensation in some, but in an indefinite, form was promised, in consideration of which the services were performed; that defendant upon occasion stated to the satisfaction of plaintiff that compensation should be in the form of stock, in a corporation to be formed, and later, the corporation having been formed, refused all compensation — we know of no rule of law which would prevent plaintiff from recovering in money the reasonable value of his services. Whether a corporation should be organized depended upon defendant. Whether the offer of stock should be large or small depended upon defendant. Whether he should transfer any stock was a matter of his choice. The fact that he proposed to give a certain amount of stock, and plaintiff said he would accept it, if given, as his compensation, does not, the stock being refused, and all other compensation being refused, require plaintiff to forego compensation, as such, or deny him an action for its recovery.

Various assignments of error are based upon .rulings admitting testimony over objections. ■ We .think it not necessary to notice them specifically. It is to be said generally that the real issues are narrow, and that testimony concerning the defendant’s connection with the Wenona Coal & Mining Company, the salary he drew therefrom, the manner in which he acquired certain of its stock, especially that later transferred to plaintiff, is irrelevant. We regard the errors, eleventh to fifteenth, inclusive, well assigned. The same should be said of the testimony of plaintiff concerning the quantity of coal in the What Cheer field, and the seventeenth error is well assigned.

Reading the whole of the charge to the jury in connection with the requests to charge preferred by defendant does not convince us that there was error therein, except as already indicated.

Other errors assigned are not considered, since it is not likely that for the purposes of a new trial their consideration is necessary.

The manner in which the record and the brief for appellant have been prepared calls for notice. The case is one in which compliance with Rule 40 of this court would be of especial benefit to the court. The questions presented and the errors relied upon are, for the most part, discoverable only in the course of reading a general discussion, which often precedes any reference whatever to the error alleged. The record contains more than 360 pages. There has been an apparent, but only an apparent, attempt made to reduce the testimony given to narrative form. It is interspersed with the colloquies of counsel, and of counsel and the court, which are without possible consequence to the errors relied upon. We are of opinion that the case for the appellant upon this appeal ought to have been presented in a record of 150 pages, and that his taxable costs should be so limited.

The judgment is reversed, and a new trial granted.

Montgomery, C. J., and Hooker, Blair, and Stone, JJ., concurred.


text:
    RUTTLE v. WHAT CHEER COAL MINING CO.
    1. Judgment — Appeal and Error — Law op Case — Contracts.
    The decision of the Supreme Court on a former appeal, that plaintiff who brings suit to recover for services rendered is entitled to have the facts submitted to a jury, is conclusive in a subsequent appeal.
    2. Election op Remedies — Estoppel—Implied Contracts.
    Where it was not shown in a prior trial that plaintiff had elected by bringing a distinct action to hold an individual liable for the services rendered to defendant corporation, and the plaintiff’s declaration in such action against the third party does not show such election, it was proper not to direct a verdict on that theory.
    3. Trial — Conduct op Counsel — Argument — Opening Statement.
    An opening statement by plaintiff’s counsel which places before the jury incompetent facts concerning"stoek held by the plaintiff after a ruling by the Supreme Court that the facts were not admissible, and which was followed by an attempt to present similar facts on cross-examination of the defendant and by statements relative to defendant’s wealth and the profitableness of his business, constitutes prejudicial error.
    4. Appeal and Error — Record—Size—Costs.
    On a second appeal, in a case which might have been presented in a record of 150 pages, in view of the previous decision, costs for printing the same are limited accordingly.
    Error to Bay; Sharpe, J.
    Submitted February 24, 1910.
    ( Docket No. 30.)
    Decided April 1, 1910.
    Assumpsit by Charles S. Ruttle against the What Cheer Coal Mining Company for services rendered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      M. L. Courtright (De Vere Hall, oí counsel), for appellant.

      Weadoch & Duffy (T. F. Shepard, of counsel), for appellee.
   Ostrander, J.

The record of a former trial of this cause was before this court, and the judgment for the plaintiff was reversed. 153 Mich. 300 (117 N. W. 168). The contentions there presented are stated in the opinion then handed down. Upon the second trial there was a verdict and judgment for the plaintiff, and it is said in the brief for appellant, that the facts were nearly identical upon both trials. None of our former rulings are questioned. The errors for which the former judgment was reversed were the ruling of the trial judge in refusing defendant the privilege of showing the extent and character of plaintiff’s services for other masters, and the amount he charged or received for them, and the ruling which permitted plaintiff, over objection, to show certain dealings with respect to stock in another company, the real value of such stock, and the price at which plaintiff parted with it. It appears therefore that the defendant is concluded upon the subject of the right of plaintiff to take the verdict of the jury, under proper instructions.

The charge of the court was substantially the same upon both trials. If, as we assume, it did not appear at the first trial, as it now appears, that plaintiff has begun a suit against Edgar B. Foss personally to recover for certain services claimed to have been performed by plaintiff for said Foss, we agree with the trial court that it cannot be said from a reading of the declaration in that case that plaintiff elected to hold Foss responsible for the very services described in the bill of particulars in this case. Refusal to direct a verdict for defendant upon the theory that plaintiff had made the alleged election was not error.

It is again urged that the case was not properly submitted to the jury on the theory of an implied contract. While the reasons now asserted for denying the right to recover upon an implied contract are not the reasons asserted here when the cause was first before the court, it was asserted that there could be no recovery as upon an implied contract. The contention was overruled. The point is not now open to the appellant. Curtiss v. Curtiss, 148 Mich. 676 (107 N. W. 323); Pierce v. Underwood, 112 Mich. 186 (70 N. W. 419); Apsey v. Railroad Co., 104 Mich. 646 (62 N. W. 992).

Such questions as are properly for consideration we take up in the order in which they are presented in the brief for appellant.

Statements and Conduct of Counsel for Plaintiff. It appeared that Mr. Foss sold to plaintiff stock in the Wenona Coal Mining Company of the par value of $5,000, permitting plaintiff to give his note therefor and to pay the same out of dividends declared. Plaintiff was to and did pay the discounts upon the note. When plaintiff withdrew from the employment, he sold his stock to the Wenona Coal Mining Company, receiving therefor $3,000, of which amount $2,500 was dividends and $500 the discounts or interest plaintiff had paid on his note. At the first trial plaintiff was permitted to show that the book value of the stock when he resold it was 85 per cent, above par, and that he got no benefit from the increase in value. It was held that this was error. Upon the second trial, in the opening statement of counsel for the plaintiff, was the following:

‘ ‘ The matter of his (Mr. Ruttle, the plaintiff) connection then with the Wenona Company was considered, and he resigned as secretary of the Wenona Company, as well as secretary of the What Cheer Company, because Mr. Foss was in control of both. He had in the Wenona Company $5,000, or $5,000 had been sold to him along, I think, in 1903. It had been sold to him at the time Mr. George D. Jackson’s interest in the mine was purchased, and Mr. Ruttle had paid for it by giving his paper, which Mr. Foss indorsed, and Mr. Ruttle paid the discount on it, and as dividends were paid from time to time upon the stock, he applied them on the note, so that in 1905 Mr. Ruttle had paid on the note dividends received by him on the stock, $2,500. He had also paid, from time to time, out of his own moneys to the extent of about $500 interest on these notes, and Mr. Foss gave him for the Wenona Coal & Mining Company stock $3,000; that is, the amount of the dividends and the amount he had paid upon the interest, without reference to the value of the stock. We will show that the value of the stock at that time was about $1.85 for every dollar of face value.”

To this statement counsel for defendant excepted. When Mr. Foss was on the witness stand he was interrogated by counsel for defendant concerning the demands, if any, made upon him by the plaintiff at or about the time plaintiff tendered his resignation. Plaintiff had testified that he told Mr. Foss that if he did not carry out his agreement with him he (plaintiff) should quit the company altogether, and in that case wanted to sell the interest he had in the Wenona Company, and witness then gave details of the conversation he had upon the subject. On his cross-examination it developed that he had received a certain voucher for $3,000 when he assigned the stock, and another voucher for his salary before he presented to Mr. Foss any demand for pav for services. On the cross-examination of Mr. Foss the following occurred: Counsel for plaintiff:

“It is our contention that it has become a matter of concern by the action of defendant in this case. They have introduced here, for what purposes I do not know, the fact that Mr. Ruttle sold his stock. Now, Mr. Ruttle sold his stock for what he saw fit to take for it, and for what Mr. Foss or the Wenona interest saw fit to give him for it, and I am at an entire loss to understand how it could be of any possible concern to this case, or in any way material, but they put it in. The only possible use that can be made of it is the contention that Mr. Ruttle’s connection with the Wenona Company — he got $3,000. Now, we propose to show that when he bought the stock he gave his notes for it, and incurred a financial responsibility; that he applied the dividends that were paid from time to time upon that note, amounting, as stated, to $2,500, and we propose to show that when the stock was sold it was sold at a value which was other and different than the actual value of the stock itself.
The Court: Mr. Ruttle didn’t have to sell it for less value than it was worth, unless he chose.
“Mr. Weadock: Your honor has forgotten, perhaps, the testimony that Mr. Foss has stated — Mr. Ruttle gave as a reason for selling the stock — he testified that Mr. Foss stated to him that if he sold the stock to some other people, he would see that there was never any dividends paid upon it.
The Court: That would not be any concern of Mr. Ruttle’s.
“Mr. Weadock: Mr. Ruttle said, ‘If that is the condition, you can treat other people in that way, you can treat me in that way, and therefore I want to sell.’
“Mr. Hall: I want to take exception at this time to the entire statement of counsel, after your honor has ruled. It is merely getting something out that is prejudicial.
“Mr. Weadock: I move to strike out all the testimony in relation to the stock by Mr. Ruttle to the Wenona Coal & Mining Company.
The Court: I think it should stand. It seems they agreed upon the price of the stock, and so far as this case was concerned, we will assume it was a fair price.
Mr. Weadock: They put it in. We have not.
The Court: They put iifin under cross-examination of Mr. Ruttle. We think as a part of the conversation they agreed on the dock. They both agreed, I think, at that time that the question of the stock sale was talked of, and I think they had a right to put it in. I think it may stand, and the objection is sustained as to the other. The ' talk they put in was for the purpose, I think, to show the checks drawn between them, as to numbers, dates,” etc.

This was no less prejudicial to defendant upon this trial than it was upon the former trial. It cannot be assumed that the opening statement of counsel was not deliberately made.

Plaintiff performed services, and was suing to recover the value thereof. They were worth no more and no less because Mr. Foss was engaged in other business, whether that business was profitable or was unprofitable. It appeared that his business was lumbering, and that it was a large business involving an investment of $1,000,000 annually. The fact that he was so employed was, it may be inferred, and indeed Mr. Foss so stated, a reason for his employing plaintiff to look after his coal business. In his argument to the jury one of plaintiff’s counsel said:

“And Mr. Ruttle went to work as I have stated, after this talk at the time of the organization, and he conducted that business. He worked nights and Sundays and day-times to the best possible advantage as he understood the situation, in pursuance with the talk he had had with Mr. Foss that they were to go ahead and do the very best they could do out there, and that he would compensate him for his work, and Mr. Foss was down here making his hundreds of thousands of dollars a year in his lumber business—
“Mr. Hall: We take an exception to that statement.
“Mr. Weadock: Make it a million if you please, I do not care what it was, he was carrying on a prosperous business under his own statement.”

Another of his counsel said to the jury:

“ It [the Wenona Coal & Mining Company] was so prosperous and so successful that Mr. Ruttle is made secretary, and his salary increased to $2,000 a year, for the Wenona mine; and he carries it on; and, when the stock was closed out by Mr. Ruttle to Foss two years later, that stock had earned $2,500, just 50 per cent, or half its value. Mr. Ruttle had increased it so that the capital stock of that company, at $100,000, had earned in two years $50,000, and Mr. Foss had his share of those profits in his pockets, and Mr. Ruttle had his paltry $2,500 that they say they generously gave to him, but for which they held his paper and had him iron-clad and bound by his note, and by the stock put up as security for it. * * * He hired him to run the Wenona mine, to handle it and take his place, and relieve him of the pressure, relieve him of the work so he could go on making money in the lumber business, and he did it, didn’t he ? ”

These are examples of many statements calculated, and we must assume intended, to contrast the financial positions of plaintiff and Mr. Foss, and to induce the jury to’ give to plaintiff a verdict, or to enhance the verdict, upon the theory that plaintiff’s services resulted directly and indirectly in a considerable profit to Mr. Foss. Many of the statements are not based upon testimony. They are in line with efforts made during the trial to secure the admission of testimony prejudicial to defendant; as, for example, a statement from Mr. Foss of the amount he owed the Wenona Coal Company, the amount of salary he drew from that company. Unpleasant as the duty is, this court has many times enforced, by reversal, the rule that parties to litigation may not profit by arguments of counsel of similar nature. The learned trial judge was at some pains to direct attention of the jury to the real issues, and to divert attention from the false issues proposed in the argument of counsel. The case is an exceedingly close one upon the facts, in so far as opinion can be based upon the printed record. The verdict is a considerable one when it is considered that plaintiff was, during the same period, receiving a salary of $3,000 per annum, in consideration of which he claimed to be rendering services. The plaintiff performed certain services for defendant. Either they were performed under circumstances entitling him to recover what they were reasonably worth, or else they were not so performed. Whether they were or not does not depend at all upon the value of the business done by Mr. Foss, or the profits he made, or the price at which plaintiff sold certain stock. We think the case calls for the application of the rule stated.

Damages. It is said the verdict was excessive. As the case must go down fora new trial, we do not consider the point.

Errors in the Charge, and in Admitting Testimony. The charge was a fair one. As to rulings admitting testimony, we find nothing advanced in argument which calls for particular discussion beyond that which has been indulged.

The judgment is reversed and a new trial granted.

In view of the previous rulings of this court, the necessity for a record containing the substance of all the testimony is not apparent. Assuming that it was, for any reason, deemed desirable to incorporate in the bill of exceptions the substance of all the testimony, we estimate that the entire record, properly prepared, should have contained no more than 150 printed pages. Costs will be limited accordingly.

Montgomery, C. J., and Hooker, Blair, and Stone, JJ., concurred.