text:
    DUBAY v. KELLY.
    1. Covenants — Action foe Breach — Damages—Evidence.
    In an action for breach of covenant of seisin, evidence of the costs taxed against plaintiff in an ejectment suit to recover a part of the land which defendant had been notified, but had failed, to take charge of, was admissible notwithstanding the abolition of the common-law remedy of voucher in real actions by 3 Comp. Laws, § 11198.
    3. Same — Parol Evidence to Vary Deed.
    In an action for breach of covenant of seisin in a deed to a lot of land described by reference to a recorded plat, evidence that before plaintiff obtained the deed he was on the ground, and noticed that the fences did not seem to be on the lines shown by the plat, to which he called defendant’s attention, who represented that as soon as the grain was cut he would have the fences moved to the true line, was not objectionable as an attempt to contradict the deed by parol.
    3. Same — Ancient Plats — Instructions.
    In an action for breach of covenant of seisin in a deed to a lot conveyed according to a plat made in 1899, such plat not being ancient, a request to charge that few of the early plats were accurate, and that lines shown thereon should not be* corrected by new surveys, was inapplicable.
    4. Same — Damages—Instructions.
    Where, in an action for breach of covenant of seisin in a deed,, by failure of title to certain gores of land along the boundary lines, it appeared that defendant had sold the land for less than its actual value, an instruction, permitting a recovery for the difference in value between the lot with its boundaries as described, and what it was actually worth with the; gores cut out of it, as shown by the evidence, was prejudicial1, error.
    5. Same — Damages—Loss of Part of Tract.
    Where a covenant of seisin was broken as to a part of the land' conveyed, the measure of damages, in the absence of fraud, was such a proportion of the price as the part to which title failed bore to the tract conveyed, with interest.
    Error to Wayne; Donovan, J.
    Submitted February 23, 1904.
    (Docket No. 118.)
    Decided July 27, 1904.
    Assumpsit by John Dubay against George H. Kelly for breach of covenant of seisin in a deed. There was judgment for plaintiff, and defendant brings error.
    Reversed»

      Walter Barlow, for appellant.

      Jasper O. Gates, for appellee.
   Moore, C. J.

Plaintiff sued to recover damages for-breach of covenant of seisin in a warranty deed dated June 25, 1900. The plaintiff recovered a judgment. The; defendant has brought the case here by writ of error.

A reference to the plat on the following page will aid in understanding the questions involved. The Juif estate was the owner of a quantity of real estate in the township of Gratiot. In 1898 and 1899 Mason L. Brown, an engineer and surveyor, was employed to survey, subdivide, and plat it for the heirs. He did so, and made a plat in all respects, like the annexed plat, except it did not have the broken line® on it showing the location of the fences. This plat was recorded at page 117, Liber 512 of Deeds, Wayne county records. J une 25, 1900, by warranty deed, and for a consideration of $1,600, defendant conveyed to plaintiff lot 6 “according to the plat of the subdivision of the estate of Margaret Juif,-deceased, as recorded in Liber 512 of Deeds, page 117, Wayne county records.” It'is undisputed that when this deed was made defendant had neither title to nor possession of the whole of this lot 6. One Joseph L. Miner was, and still is, the owner and in possession of certain gores of lot 6, which aggregate nearly one-half acre. For the purpose of getting possession of these gores the plaintiff brought ejectment against Mr. Miner, and gave notice to Mr. Kelly to take charge of the case. Mr. Kelly paid no attention to the case. Upon the trial a judgment was rendered in favor of Mr. Miner, and his costs were taxed against the plaintiff in the sum of $43.40. The taxed bill of costs was offered in evidence. Plaintiff also gave evidence that he paid in that case an entry fee of $4, a stenographer’s fee of $3, and to Mr. Kelly $2.80 as witness fees, making a total of $53.20. Error is assigned on the admission of this testimony. Counsel says:

“ The practice endeavored to be adopted by the plaintiff to bring the defendant Kelly into that suit was the old common-law remedy known as ‘voucher to warranty.’ * * * The remedy known as ‘ voucher in real actions’ under the old common law has, however, been expressly abolished by our statute. 3 Comp. Laws, § 11198.”

We think the testimony was properly admitted, under Webb v. Holt, 113 Mich. 338 (71 N. W. 637).

Plaintiff was allowed to put in evidence tending to show that before he obtained his deed he was on the ground, and noticed that the fences did not seem to be on the lines of lot 6, and called the attention of defendant to it, and he represented that, as soon. as the grain was cut, he would have them moved upon the true line. Counsel say this was improper, because it occurred before the deed was made, and all conversations are merged in the deed. There would be much force in this construction if it was sought to dispute the deed by parol testimony; but it is not. The testimony is in harmony with the deed, and shows the negotiations between the parties. See Dikeman v. Arnold, 83 Mich. 218 (47 N. W. 113).

Counsel are not all agreed as to what is involved in this case. It is the claim of plaintiff that he was deeded lot 6 according to the recorded plat thereof, and that defendant did not make good his title to all of the land shown in* said plat; while defendant claims the action is brought to recover a claimed discrepancy in the acreage conveyed. Defendant preferred a great many requests bearing along the same line. It will answer every purpose to insert one .of them. It reads:

“Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and, if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity. But no law can sanction this course. Diehl v. Zanger, 39 Mich. 601, 605.”

The trouble with these requests is they do not apply to the record as made. The plat which is referred to in the deed was not an ancient plat, but was made in 1899. It showed the stakes and the outlines of lot 6. It did not show the location of the fences. Defendant saw fit to make this plat part of his deed. See Wilson v. Hoffman, 70 Mich. 552 (38 N. W. 558); Nichols v. Furniture Co., 100 Mich. 230 (59 N. W. 155), and cases there cited. There is no question from the record but that the lines of the lot as shown by the plat embrace more land than was inclosed within the fences. The testimony is also irresistible that defendant knew this. The -plaintiff and his witnesses say he agreed to move the fences back. He says he agreed to do what he could to have them moved back. Upon this branch of the case the court might very properly have directed a verdict in favor of the plaintiff.

We now come to the question of damages. The court was requested to charge the jury that the measure of damages is the value of the land so lost to the plaintiff as agreed on at the time of the conveyance of lot 6 to him by the defendant as expressed in the consideration of such conveyance. This is at the rate of $106,666 per acre. Upon that branch of the case the judge charged:

“It is for you to consider the situation. We are coming now to the value, the surroundings and value of this property, and to determine from the evidence how much these gores are worth; and the question is how much more lot six would have been worth if these boundaries had been as laid out in the plat, or referred to in the deed from the defendant to the plaintiff, than it was actually worth with the gores cut out of it, as shown by the evidence in the case. If you find for the plaintiff, you are to determine the amount of this value, and give the plaintiff a verdict therefor, which is proper, and you are to add interest at the rate of five per cent, from the 25th of June, 1900, the date of the delivery of the deed.”

It will be observed that the great bulk of this lot did not adjoin a highway. It was reached from the Alter Road, having only 99 feet frontage thereon, and half way back this strip was narrowed by the gore to 50 feet. The rule contended for by defendant would be very unjust. When one has failed to obtain title to land sold him his damages in a suit on the covenants of his deed are determined, not as stated in the foregoing charge, by the actual value of the land lost — as it would be in a case of a suit for fraud (see Page v. Wells, 37 Mich. 415; Jackson v. Armstrong, 50 Mich. 65 [14 N. W. 702]), but by the consideration paid for the land (see Cook v. Curtis, 68. Mich. 612-619 [36 N. W. 692]). His recovery is limited to that consideration, with interest. See 2 Warvelle on Vendors (2d Ed.), § 967. If, therefore, the title to the entire land conveyed to plaintiff by defendant had failed, plaintiff could have recovered no more than the amount paid, with legal interest thereon. In this case the title to a portion of that land lias failed. In accordance with the foregoing principle, the recovery in such case must be limited to such a proportion of the consideration paid as the value of the land, the title to which failed, is of the entire value of the parcel •conveyed; otherwise one might recover more for the loss •of a part of his land than he could for the loss of the whole. The charge would not have been prejudicial to defendant had he not sold the land for less than its actual value. The testimony shows that he sold the entire tract of 15 acres for $1,600, or $106.666 per acre. There was testimony that its actual value was $200 per acre. It is to be presumed from the jury’s verdict that they accepted this testimony, and that, therefore, defendant was prejudiced by the charge under consideration. For this ■error judgment must be reversed.

There was testimony that the land fronting on Alter Road was worth $300 an acre, or one-half more than the average price of the entire tract. Regarding this difference in value as a basis in computation, the value of the gores, according to the contract price, would be $160 per acre, or, for the .494 acres, $79.04, to which sum should be added $53.20 for costs in the ejectment suit, and interest from June 25, 1900. A judgment may be rendered iere for that amount, or a new trial will be ordered, at the option of the defendant. In either case defendant will recover costs of this court.

The other assignments of error have been examined. “We think they are without merit, but do not think it necessary to discuss them.

Judgment is reversed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant J.

license: Public Domain

text:
    ALBRING v. WARD.
    1. Adoption — Heirship.
    Heirship, except that based upon consanguinity, can be created only by a constitutional law by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature.
    2. Same — Common Law.
    Heirship by adoption is unknown to the common law.
    3. Same — Unconstitutional Statute.
    Where a statute under which complainant was adopted was: unconstitutional, and there was no contract between her and her foster parents to make complainant their heir, other than that arising from the adoption proceedings, she was not entitled to share in the real estate of which her foster father died seised.

      4. Witnesses — Competency—1Transactions With Persons Since Deceased.
    Under Act No. 30, Pub. Acts 1903, providing that no person who shall have acted as agent in the making or continuing: of a contract with any person who may have died shall be a-competent witness in any suit involving such contract, complainant’s natural father was incompetent to testify to an. agreement made between him and complainant’s foster father for her benefit when she was a child two years of age, by which deceased agreed to make complainant his heir.
    Appeal from Monroe; Lockwood, J.
    Submitted February 25, 1904.
    (Docket No. 109.)
    Decided July 27, 1904.
    Bill by Lucy Bell Albring against Edward Ward and Martha Ward to establish a right to share in the distribution of the estate of Henry Ward, deceased. From a decree for complainant, defendants appeal.
    Reversed.
    The complainant is the daughter of John Bennett and' Ann Bennett. Her mother died soon after her birth. Mr. and Mrs. Bennett had two other small children. The three were taken care of by Mr. Bennett’s mother. The mother did not feel equal to the care of the three children, and both Mr. Bennett and his mother desired to provide for her maintenance and care elsewhere. Mr. Bennett was a farmer of little means. Mr. Bennett and his mother took Lucy to the home of Henry Ward, and his wife, the defendant Martha. After keeping her a few months, they concluded to take steps under the statute to adopt her. Accordingly Mr. and Mrs. Ward and Mr. Bennett went before the judge of probate on December 8, 1881, and executed articles of adoption under the statute then supposed to be valid. In that instrument Mr. Bennett acknowledged that he executed the instrument for the purpose of giving his consent in writing to the adoption of his daughter Lucy, of the age of two years, by said Henry and Martha; that she should thereafter bear the family name of the Wards; and that he further consented that she, so adopted by them, might become their heir at law. The Wards, on their part, declared that they adopted said child as their heir at law; that they desired her to bear their family name; and that they desired the judge of probate to enter an order confirming the adoption of said child. Lucy lived with her adopted father and mother until she was 17 years of age, when she was married. She continued to live with them for a while after her marriage, and finally went away with her husband to live in Toledo. Mr. Ward died in August, 1901, leaving his widow and a son, the defendant Edward. The defendants denied the legal adoption of complainant, and thereupon she filed this bill praying to be declared the owner in fee simple of the undivided one-half of the real estate of said Henry Ward, subject to the widow’s dower interest. The bill alleges a contract between Henry Ward and complainant’s father, Mr. Bennett, to the effect that if Mr. Bennett would relinquish all claim to the custody, care, and control of his daughter, and all his rights as her father, to the said Henry Ward, the said Ward would make her his heir at law, and that at his death she should inherit a share of the property as if she were his natural child. The answer of defendant Martha alleges that Mr. Bennett and his mother brought the child to their home, saying that his mother could not keep them all; that, unless she could persuade some one to take the child, her father would be compelled to take her to the State home for dependent children; that they left said child with the Wards, promising to return later in the day and take her away; that after about a week Mr. Bennett’s mother returned, saying she hoped that they would change their mind and keep the child, and that Mr. Bennett would do anything desired to give up the legal custody and control of the child, and thereafter proceedings were taken to adopt her. Pleadings and proofs were taken in open court, and a decree entered for the complainant. The decree, according to the opinion of the learned circuit judge, is based upon his finding that Henry and Martha Ward agreed with complainant’s father that she should be an heir at law with each of them equally with their own son, Edward.

      George M. Landon and Southard & Southard, for appellants.

      C. A. Golden and Ray & Cordill, for appellee.
   Grant J.

(after stating the facts). Heirship, except that based upon consanguinity, can be created only by a constitutional law by which ‘ ‘ relations of paternity and affiliation are recognized as legally existing between persons not so related by nature.” Heirship by adoption is unknown to the common law. Morrison v. Sessions’ Estate, 70 Mich. 297 (38 N. W. 249, 14 Am. St. Rep. 500); Sarazin v. Railroad Co., 153 Mo. 485 (55 S. W. 92); Ex parte Clark, 87 Cal. 641 (25 Pac. 967). If the statute is held void, or, if valid, is not complied with, the adoption fails, and the supposed adopted person obtains no interest in the property or estate of the adopting person. Void articles of adoption are no evidence of themselves of a contract for an interest in property, real or personal. Mr. Ward and his wife, at the urgent request of the complainant’s father and grandmother, took steps under the then statute for adoption, intending to adopt the complainant. The papers drawn and the order made were such, and such only, as were provided by the statute. That statute was held unconstitutional. People v. Congdon, 11 Mich. 351 (43 N. W. 986). By the articles, even if valid, Mr. Ward made no contract with complainant’s father or with her to give her any specific interest in any of his property. Complainant had no contract with Mr. Ward, the specific performance of which she could enforce. At most, it was only a statutory proceeding to establish heirship, which left the right of property to depend alone upon such heirship. Such void articles for heirship cannot be converted into a contract for the sale of land, and complainant in this suit claims only an interest in land by virtue of a supposed contract. Complainant’s father was a witness for her, and undoubtedly endeavored to make her case as strong as possible. He stated the transaction in the following language:

“We all came to Monroe and consulted Judge Phinney, and they said they wanted to adopt the child as their own lawful heir. That was the way it was understood. That was the way I understood it. It was put down on the paper that way, and was all the arrangement we had. I signed the paper when it was prepared. I supposed it was an adoption.”

The above language of the witness is consistent with the theory of adoption. It has no reference to any other relation, or any attempt to convey any interest in property other than by adoption. But this testimony of the father is inadmissible under Act No. 30, Pub. Acts 1903, which provides that no person “who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract.” If any contract was made, it was made by Mr. Bennett on bebalf of his daughter. A more appropriate case for the application of the law cannot well be imagined. Counsel for the complainant rely mainly on Wright v. Wright, 99 Mich. 170 (58 N. W. 54, 23 L. R. A. 196). Several authorities are cited, in the opinion in that case, written by Justice Long, and concurred in by Chief Justice McGrath. The authorities were found not to be in harmony. Justice Long, in his opinion, sustained the title of the defendant upon the. ground that upon the undisputed facts there was an implied contract that the defendant was to have the property.. That case differs from this in several important particulars. Mr. Wright lived till he was about 23 years of age upon the farm, supposing he was the natural son of. Phineas R. Wright. Phineas had no children. Frank, the supposed adopted son, had rendered valuable services upon the representation and belief that he was the heir.. Phineas had accepted such services, knowing that Frank understood that he was his son and would receive the property. In my concurring opinion, I said :

Each case of this character stands upon its own peculiar circumstances and facts, upon which relief is granted, or denied. * * * They gave defendant their own. name, and, by their conduct, language, and treatment, represented to him that he was their own son. He lived with them upon this understanding until some time past, the age of majority. He had a right to rest and act upon, the belief that he was the legal heir. So long as his reputed father and mother chose to let him repose in this, belief, others had no right to interfere. * * * Defendant rendered services upon the faith of his relationship.. Those services were accepted in reliance upon such relationship, declared in the most solemn manner. There are-no children interested.”

No such state of affairs exists here. Complainant,, when a mere child, knew who her real father was. She had rendered no service in the belief she was the real daughter of Mr. Ward, or that she would be an heir to his property. About as soon as she was old enough to. Tender to Mr. and Mrs. Ward any valuable service, she was married, and soon after left them. Some witnesses testified to statements made by Mr. and Mrs. Ward in which they spoke of her as their daughter, and that she called them father, and mother. Such statements are consistent with the theory of supposed legal adoption. They are not evidence of a contract to make her an heir, or to -convey her any property. If there were any evidence of -a legal contract on the part of Mr. Ward to make complainant his heir, such statements might be of some value in proof of the contract. But as already stated, the proceedings for adoption afford the sole basis for any claim to such a contract, and they are valueless for that purpose. If Wright v. Wright is construed by the profession to •mean that void articles of adoption can afford the basis of a contract for heirship, it should, in my judgment, be overruled. Counsel for complainant cite some authorities which are not cited in Wright v. Wright. We have examined them, and find that some of them are based upon an express contract that the complainant should have a share of the estate. Such is the case of Hall v. Gilman, 77 App. Div. 458 (79 N. Y. Supp. 303), where the contract claimed was that if the claimant would live with him (the deceased), and care for him, as a daughter, until his death, she should have all his property. In so far as •any of them may be in contravention of this opinion, we decline to follow them.

Decree reversed and bill dismissed, with costs of both .courts.

The other Justices concurred.


author: Moore, C. J. Per Curiam.

text:
    GARDNER v. COUCH.
    False Imprisonment — Justices op the Peace — Errors.
    A justice of the peace, ácting under authority conferred upon, him by a city charter and ordinances to try and punish vagrancy, is not liable to one so tried and punished, though, there are errors and irregularities in his proceedings.
    ON MOTION POR REHEARING.
    1. Criminal Law — Preliminary Complaint — Sufficiency.
    A conviction under complaint and warrant containing no detailed statement of the facts constituting the offense, bub charging in general language that accused is a vagrant in. violation of a specified ordinance, will not justify detention where accused seeks relief by habeas corpus proceedings.
    2. False Imprisonment — Justices op the Peaoe — Insufficient-Complaint.
    A justice of the peace is not civilly liable for issuing a warrant and authorizing the detention of the person complained, against, where the offense named is within his general jurisdiction, though the complaint and warrant do not describe the offense with sufficient particularity to withstand inquiry-on habeas corpus.
    Case made from Chippewa; Steere, J.
    Submitted April 5, 1904.
    (Docket No. 6.)
    Decided July 27, 1904.
    Rehearing denied December 22, 1904.
    Case by Charles Gardner against John A.- Couch for false imprisonment. There was judgment for defendant,, and plaintiff assigns error.
    Affirmed.

      A. JR. Macdonell and W. A. Ooutts, for appellant.

      Sharpe & Handy, for appellee.
   Moore, C. J.

The questions involved grow out of the charge of the judge to the jury, and for that reason we insert the material portions of it here:

“ This is what is known as a suit for false imprisonment, the plaintiff suing the defendant to recover damages for an alleged illegal sentence of sixty days in the common jail of this county. The defendant admits the sentencing of this plaintiff to sixty days’ imprisonment, and he admits that his action in so doing was based upon the complaint and warrant which have been introduced in evidence, each charging plaintiff with being a vagrant. In that connection the defendant denies he ever committed this plaintiff to prison, but, on the contrary, claims he suspended sentence upon him. The claim of the plaintiff is that on the 8th of last December, after he had pleaded not guilty in the defendant’s court, when arraigned and called upon to plead to the charge of vagrancy the defendant proceeded to declare him guilty, without any further plea, hearing, or trial, and then sentenced him to sixty days in jail, proposing, in that connection, tosuspend sentence if he would leave town; but that later a commitment was issued for him under this proceeding, and he was confined in jail. That is denied by the defense, and it is asserted that upon the arraignment the plaintiff pleaded guilty. A formal sentence was thereupon pronounced, with the overture of a suspension of the sentence if he would leave town.
* ‘ Now, such a proceeding as is claimed by plaintiff on the part of the magistrate would entitle the plaintiff to recover damages, and you are instructed that to sentence a man who had pleaded not guilty without receiving any further plea, and without giving him any hearing or trial, would be an arbitrary and unwarranted proceeding, without jurisdiction, and without color of law, and the office would not protect the individual.in so doing. It would be entirely different from a case where there was an honest error of judgment in the performance of an official duty. The same rule should and does apply to justices’ courts as to the higher courts in that particular. Where the subject-matter is within the jurisdiction of the court, and an honest but erroneous conclusion is reached, although the party against whom the judgment is rendered should, by reason of the error, be injured, and entitled to have this judgment set aside, and he be restored to his former rights, yet he is not entitled to claim compensation and damages for such erroneous conclusion. But, on the contrary, if the judge of an inferior court acts in excess of his legal authority, without any authority or claim of authority} knowingly, arbitrarily, and without any color of right, his office would not protect him, and he is liable.
“ It is for you to say, from all the disputed testimony in this case, whether or not, at the time this plaintiff was arraigned in justice’s court before the defendant, he pleaded guilty to the charge. If he did not, and he was after-wards sentenced and committed, the warrant being issued out of and by authority of defendant’s court, and he imprisoned under it, he is entitled to recover — to recover such damages as the testimony shows he has suffered, including loss of time, injury to feelings,' annoyance, mortification, and disgrace, which are to be determined by the jury, according to what seems to be just and right, from all the testimony. If the defendant only proceeded to sentence this plaintiff on a plea of guilty, after the same had been made in court before him, you are instructed that the proceedings and papers in court, although somewhat irregular, would protect him in the honest exercise of what he believed to be his official duty. This charge is a charge of vagrancy, over which the court had jurisdiction. There was a complaint and warrant in the case, and plaintiff pleaded to the charge. This being so, if he pleaded guilty, mere errors or irregularities appearing in such proceedings would not, as the case presents itself, render the defendant liable.
“Whether or not there was a commitment issued, and this plaintiff taken in custody under it, and confined in .jail, is an issue of fact for you to determine. If there was a commitment issued out of the defendant’s court in the usual course .of business under this sentence which was pronounced, even though not issued by the defendant himself, but by his clerk, in the preformance of his duty under the sentence which had been pronounced, that commitment would be binding upon the defendant, so far as that phase of the case is concerned.
“ Something has been said to you in regard to the sentence being excessive. If this plaintiff pleaded guilty, even though the sentence pronounced was excessive, the plaintiff would not be entitled to recover in this case on that ground, because he would have his remedy by other proceedings. He could be legally sentenced, upon a conviction for vagrancy, to the common jail, for thirty days; and, if the sentence were pronounced for sixty daysj it would still be good for the thirty days. It would be a valid sentence for that limit of time, and at the expiration of that time he would be entitled to his release under other proceedings, and there would be no liability on the part of the magistrate by reason of the excessive sentence.
“ Those are the questions of fact before you. You are to remember that in these proceedings the burden of proof is upon the plaintiff. In order to recover upon these issues, he must satisfy you by a preponderance of evidence that when arraigned in justice’s court he pleaded not guilty; that he was sentenced without further proceedings looking to a determination of whether or not he was guilty; that he was not only sentenced, but he was committed and imprisoned under a commitment issued from defendant’s court.”

The plaintiff raises the following questions:

1. Were the complaint and warrant sufficient to give the defendant jurisdiction, as a justice of the peace, so as to protect him in causing the imprisonment of plaintiff?

2. Was the issuance of a commitment from defendant’s court necessary to his liability?

He contends the answer to both of them should be in the ■negative.

The defendant was a justice of the peace in the city of Sault Ste. Marie. The charter of that city authorized him ‘ ‘ to try and punish offenders for violations of the ordinances of the city as in such ordinances prescribed and directed.” Act No. 468, Local Acts 1901, § 32. It was conceded on the trial that the defendant was acting under this provision of the charter. An ordinance provides, “All vagrants shall be deemed disorderly persons and punished as hereinafter provided.” A complaint in the language of the ordinance was made against the plaintiff, and a warrant was issued. It is the claim of defendant -that the plaintiff pleaded guilty. This is denied by the plaintiff. It already appears that question was left by the judge to the jury, who found in favor of defendant. It is the claim here that the complaint and warrant did not state an offense, and were no justification to the magistrate, and that, in any event, he was liable for the time plaintiff was in jail after arraignment and before sentence. We do not think it necessary to decide whether the warrant is valid. The case is within Brooks v. Mangan, 86 Mich. 576 (49 N. W. 633, 24 Am. St. Rep. 137); Curnow v. Kessler, 110 Mich. 10 (67 N. W. 982); Tillman v. Beard, 121 Mich. 475 (80 N. W. 248, 46 L. R. A. 215);, and James v. Sweet, 125 Mich. 132 (84 N. W. 61). In these cases the discussion is so full and the collation of authorities so complete, we deem it unnecessary to do more than to refer to them. If any one had occasion to' complain of the charge of the court, it was not the plaintiff.

Judgment is affirmed.

The other Justices concurred.

ON MOTION FOR REHEARING.

Per Curiam.

This is an action of false imprisonment. It appears from the testimony that plaintiff was arrested December 1, 1902; remained in custody until December 8th, was then tried, convicted, and sentenced to imprisonment for 60 days. In disposing of this case we held that it must be presumed, under the charge of the court, that the jury found that the plaintiff pleaded guilty, and therefore that he could not recover in this case. By this application for a rehearing appellant represents that this disposition of the case did not determine his contention that his imprisonment for the eight days before trial was illegal. We think he is right, and that, for the purpose of determining the validity of that claim, we must consider another question, viz., was defendant liable in an action for false imprisonment because he issued the warrant for plaintiff’s arrest? The complaint and warrant contained no detailed statement of the facts which constituted plaintiff’s alleged offense. It merely charged in general language that plaintiff was a vagrant, in violation of a specified ordinance. We would be bound to hold that a conviction under such a complaint and warrant would not justify a detention if plaintiff sought relief by habeas corpus proceedings. See In the Matter of Sarah Way, 41 Mich. 299 (1 N. W. 1021). But does it follow that defendant, who was a justice of the peace, acting judicially, is responsible as a trespasser because he reached an erroneous decision. Plaintiff contends that it does, and he relies upon our decisions (see Clark v. Holmes, 1 Doug. [Mich.] 390; Shadbolt v. Bronson, 1 Mich. 85; La Roe v. Roeser, 8 Mich. 537; Sheldon v. Hill, 33 Mich. 171; Stensrud v. Delamater, 56 Mich. 144 [22 N. W. 272]) which hold a justice to be a trespasser when he acts without or in excess of jurisdiction. We do not think these decisions applicable. In the case at bar defendant had jurisdiction of the subject-matter, and it was his duty ta judicially determine whether or not a warrant should issue. Had he determined that it should not issue, surely that determination would have been a j udicial act, which might have been corrected if erroneous. His determination was none the less judicial because he erroneously decided that the warrant should issue. To hold him civilly responsible for such an erroneous decision would not only be unjust, but injurious to public interests. In deciding whether or not a warrant should issue, the magistrate should be free to act according to his judgment. If the law made a magistrate civilly responsible if he erroneously issues a warrant, it is obvious that he would be tempted to resolve all doubts against its issuance, and that, in consequence, public interests would suffer because crimes-which should be, would not be, investigated or punished.

The distinction between the above cases and the case at bar is shown by a quotation from the opinion of Justice Christiancy in La Roe v. Roeser, supra:

This was not a mere error of judgment in the performance of his judicial duties, such as an erroneous opinion or judgment on the trial of a cause of which he had jurisdiction.”

I think it may be said that no principle of law is better settled than that a judicial officer is not civilly liable for an erroneous judicial decision.

Says Justice Cooley :

“Whenever, therefore, the State confers judicial powers upon an individual, it confers them with full immunity from private suits. In effect, the State says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the State and the peace and happiness of society; that, if he shall fail in the faithful discharge of them, he shall be called to account as a criminal, but that, in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official .action in a suit for damages.” Cooley on Torts (2d Ed.), p. 477.

See, also, Webb’s Pollock on Torts (Am. Ed.), p. 138. This principle was applied in Wheaton v. Beecher, 49 Mich. 348 (13 N. W. 769). There, after this court had determined (see Beecher v. Anderson, 45 Mich. 543 [8 N. W. 539]) that a warrant was so defective that it-did not authorize an arrest, it was held that the parties who obtained that warrant were none the less exempt from responsibility in an action for false imprisonment. This proceeds upon the ground that the judicial determination "by a magistrate having jurisdiction of the subject-matter— who in that case was a justice of the peace — was their protection. It would be absurd to suppose that such judicial determination protected them, but did not protect him.

It results from these views that defendant is not responsible in damages for plaintiff’s imprisonment during the eight days which occurred before his trial. The application for a rehearing must therefore be denied.


author: Montgomery, J.

text:
    NATIONAL LIFE & TRUST CO. v. OMANS.
    1. Insurance — Premium Note —Fraud—Waiver—Failure to Repudiate.
    Though, a note given in payment of the first premium on a life policy received by defendant on her application was obtained by fraud of plaintiff’s agent, retention of the policy for an unreasonable time, and failure to notify the "company that she repudiated the transaction, waive the fraud, and bind defendant to pay the note, though the policy provides that nonpayment of a premium when due shall terminate the company’s liability; there being a provision for reinstatement, including the right to payment of a specified sum at the end of 10 years.
    2. Trial — Instructions in Absence op Counsel.
    There is no error in the court’s recalling the jury and giving further instructions in the absence of counsel.
    Error to Kent; Wolcott, J.
    Submitted April 5, 1904.
    (Docket No. 65.)
    Decided July 27, 1904.
    Assumpsit by the National Life & Trust Company against Martha J. Omans on a promissory note. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      James E. O’Keefe, for appellant.

      Don E. Minor, for appellee.
   Montgomery, J.

This action was brought to recover the amount appearing due on a promissory note signed by defendant, payable to the order of Jennie E. Heyser, an agent of the plaintiff, and now owned by the plaintiff. The defendant set up the defense that she never intentionally signed the note in question, and that, if the signature thereto was hers, it was obtained by a fraud practiced by Miss Heyser, the payee. This defense was supported by defendant’s testimony, to some extent corroborated by other witnesses, but the claim was denied by Miss Heyser, who gave testimony tending to show that the note was given in payment of the first premium on a bond or policy issued by plaintiff, and was signed at the date of making such application. The bond was promptly furnished and received by defendant. There was also testimony that in June following, when the first installment was due upon this note, the defendant received notice from a bank that it was due, and took no notice of the same. She testifies:

“ I thought like this — if Miss Heyser had given my note, she could pay it. I didn’t know any other way it could be done.”

She, however, retained the bond, and did nothing to repudiate either that contract or the note. True, she testifies that she did not know she had received the bond until September, when she had a talk with Miss Heyser and went home, made a search for the bond, and found it among some other papers. How it came to be among these papers is not explained. After this the bond was retained for two years, until suit was brought.

The circuit judge charged the jury as follows:

“There is another element in the case. It appears that the defendant received a policy of insurance, or a bond", as it is called, from the plaintiff, in response to this application which she had signed, and in payment of the premium for which the note in question is claimed to have been given. It was the duty of the defendant on receiving this policy, if she believed it was obtained by fraud, to have either returned the policy to the company, notifying the company or its agent that she would not accept the policy, and to do this within a reasonable time after receiving it, or within a reasonable time after learning of the fraud that she claimed was practiced upon her. This question is, in a sense, independent of whether or not the defendant was induced to sign the note by misrepresentation on the part of the agent. That is to say, if you should find that the defendant signed the note by reason of some fraud practiced upon her in the manner she claims, still, it appearing that this application was sent in to the company, and the policy sent to the defendant, which she retained, if, under all the evidence in the case, it has appeared in the evidence she retained it an unreasonable length of time, or failed for an unreasonable length of time to notify the company or its agent that she repudiated the transaction and would not be hound by the note, then such retention of the policy without complaint would be a waiver of any fraud she claimed, and would bind her to pay the note.”

This instruction was applicable to the facts, and would seem to be but an application of the well-understood rule that one who seeks to rescind a contract for fraud must do so within a reasonable time after the discovery of the fraud. It is urged, however, that there was no occasion for rescission, as the contract of insurance contained the following clause:

‘ ‘ The nonpayment of any premium when due shall forfeit all premiums paid on this bond and terminate the liability of the company thereunder except as hereinafter provided.”

There is a further provision for reinstatement or restoration of the bond. In any view of this provision which may be taken, the rights of a delinquent policy holder were not wholly withdrawn; The right to reinstatement existed, including the right to payment of a specified sum at the end of a 10-year term. It was therefore plainly the defendant’s duty, on discovering the facts, to make her election to rescind within a reasonable time. Bostwick v. Insurance Co., 116 Wis. 392, 408 (80 N. W. 540, 92 N. W. 246).

The court, after the jury had retired, called them in for further instructions, which were given in the absence of the parties. The instructions were taken down by the reporter in the usual manner, but it is claimed the court erred in giving these instructions in the absence of counsel. Counsel cites Snyder v. Wilson, 65 Mich. 336 (32 N. W. 642); Fox v. Color Works, 84 Mich. 676 (48 N. W. 203); Hopkins v. Bishop, 91 Mich. 328 (51 N. W. 902, 30 Am. St. Rep. 480); Le Beau v. Construction Co., 109 Mich. 302 (67 N. W. 339). None of these cases go the length of sustaining the contention of defendant’s counsel. These cases hold that it is improper for the judge to visit the jury-room or send communications to the jury in the absence of any consent of counsel, but none of them holds-that the court is made responsible for the attendance of counsel in court during trial, or when additional instructions may be given.

There is no force in the suggestion that the jurors were coerced.

The judgment is affirmed.

The other Justices concurred.


text:
    POLLOCK v. SOWERS.
    1. Drains — Proceedings to Construct — Invalidity — Subsequent Proceedings.
    2 Oomp. Laws, § 4366, as amended by Act No. 272, Pub. Acts 1899, and 2 Comp. Laws, § 4369, providing for the completion of drains begun and uncompleted because of defects in the proceedings, should be construed together, and, as so construed, authorize a county drain commissioner to complete a drain, after a tax for its construction has been declared void, for the reason that the drain was not completed at the time the tax was levied, though the proceeding instituted by the taxpayer attacked the payment of the tax only, and the drain, commissioner had certified that the drain had been completed.
    2. Same — Invalidity oe Tax — Res Judicata.
    Where, in proceedings to enforce a drain tax, the court found, that the assessment was irregular in form; that the taxes-were not placed on the tax roll under the proper heading; that the benefit to the taxpayer from the drain was slight, because it had not been completed, and that therefore it would be unjust to decree the tax against the land, — such finding did not constitute a judgment that the tax was wholly void, or that, if benefits were actually received;when the drain should be completed, complainant’s land would not be subject to proper assessment therefor, so as to preclude a completion of the drain and reassessment of the costs as authorized by 2 Comp. Laws, §§ 4366, 4369.
    3. Same — Delinquent Contractor — Completion.
    The fact that a public drain contractor becomes delinquent, and fails to complete the drain through complainant’s land as specified in the contract, will not exempt such lands from taxation for the subsequent completion of the drain by other contractors under subsequent proceedings.
    Appeal from Eaton; Smith, J.
    Submitted April 8, 1904.
    (Docket No. 24.)
    Decided July 27, 1904.
    Bill by Samuel Pollock and Lyman H. McCall against Rosslyn L. Sowers, drain commissioner of Eaton county, to restrain the completion of a drain. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Garry O. Fox, for complainants.

      Lewis J. Dann and Horace 8. Maynard, for defendant.
   Montgomery, J.

In the fall of 1896 Morrell E. NeW-comb, then county drain commissioner, received a petition to locate, establish, and construct a county drain in Eaton township, Eaton county. The proposed drain wás to traverse the lands of complainants. Both complainants signed the petition. On the 10th of April, 1897, the drain was lawfully located and established. The drain was then divided into sections. The drain commissioner sold at public auction the jobs for the construction of the drain. One of the bidders forfeited his job, and the same was re-let. The drain commissioner certified that the drain was completed, the tax was spread upon the tax rolls, and the lands owned by complainants were assessed. The taxes remaining unpaid, the auditor general filed a petition in the circuit court for the county of Eaton for the sale of these lands, and on the hearing the circuit judge refused to direct a sale of these lands for the drain tax, the summing up of his finding in the matter being as follows:

“Taking into consideration the entire case as shown by the evidence; that the drain is not completed as per the survey; that the benefits to contestant are slight, if any he has; that when this tax of four hundred dollars and upwards was levied against his lands, and when he was asked to pay it, that nothing had been done toward the construction of a drain on his land, and below it the contracts had not been completed according to the survey, and also considering the subsequent proceedings in the reletting of the job on contestant’s land and constructing of the drain thereon, and the further fact of the want of benefit to his land — it seems to me that it would be unjust to decree this tax against his land.”

The matter remained in abeyance until September, 1901, when a petition was filed by the present drain commissioner, asking that the drain be completed under the statute (section 4366, 2. Comp. Laws, as amended by Act No. 272, Pub. Acts 1899, § 13, chap. 6). The defendant commissioner was proceeding to take steps to complete the drain under this act and under section 4369 of the Compiled Laws, when this bill was filed by the complainants, and the question presented in the case is whether this statute authorizes the present proceeding.

The statute is broad in its terms, and reads as follows:

“Whenever any drain has been located, established, and the work of construction completed or partially completed, and any court has declared such proceedings illegal or void for any cause other than that such drain is unnecessary and not conducive to the public health, convenience, •or welfare, the county drain commissioner shall, without unnecessary delay, proceed to relay and complete such drain under the provisions of this act, and reassess upon the lands benefited by such drain the original cost thereof, together with the expenses of relaying and completing, and shall continue so to do until such drain has been legally established and constructed: Provided, that on such relaying or completion of such drain proceedings it shall not be necessary to readvertise a day of letting, but he shall advertise a day of review for benefits; which review may be held at the office of the county drain commissioner: Provided further, that any person who has paid the tax for benefits assessed against him for such drain shall be allowed the amount so paid and the township treasurer or other officer authorized to receive payment for taxes assessed in any township or city shall accept the receipt heretofore issued or certificate of the county treasurer that such taxes were paid, for the payment of such drain taxes as cash, the same to apply on such renewed assessment. The receipt (or certificate) so received by the township treasurer or other officer shall be credited to him and allowed as money. The provisions of this section shall also apply to drains laid out and wholly or partly constructed "under the provisions of all drain laws in force prior to the passage of this act.”

The complainants, however, contend that this section was not intended to cover cases where the drain commissioner had certified the drain as completed, and where the proceedings instituted by the taxpayer simply go to the payment of the tax. It is said that this drain has not been declared void, but that the tax imposed for the same has. We think, however, that this section should be read in connection with section 4369, which throws light upon the legislative intent, and that the real purpose of the legislature is thus made manifest.

It is the contention of the complainants in the present case that this drain was not constructed at the time the tax was levied, and never has been completely constructed, and that it has been so adjudicated by the circuit court in chancery in the case instituted by the auditor general. This appears to be the fact. The facts, therefore, bring the case directly within the language of section 13.

But it is further contended that, the tax against complainants’ lands having been declared void in the auditor general proceedings, this section cannot now be operative, for it would permit the drain commissioner to overturn a decision of the circuit court in chancery. This contention has much of plausibility in it, and appealed somewhat strongly to the court at the hearing. But a further investigation has convinced us that it cannot be said that the finding of the circuit judge in the chancery case was to the effect that this tax was wholly void. The minutes of his decision indicate that stress was laid upon the fact that the assessment was irregular in its form; that the taxes were not placed upon the roll under a proper heading; that the taxpayer has a right, before he is called upon to pay his taxes, to have the ditch built substantially as contemplated; and that, as the drain was not completed, and the benefit to the contestant was slight, and that as when this tax was levied upon complainant’s lands nothing had been done toward the construction of the drain upon his land, and the contract had not been completed — it would be unjust to decree this tax against his land. We are convinced that this is not a determination that, if the benefits were actually received, and when and as soon as the drain should be completed in accordance with the original survey, the complainant’s land would not be subject to a proper assessment. We think, therefore, the case falls within Hauser v. Burbank, 117 Mich. 463 (76 N. W. 109), and Anketell v. Hayward, 119 Mich. 525 (78 N. W. 557).

It must be assumed that the defendant, in completing this drain, will spend as much money, and no more, than is necessary to complete the same in accordance with the survey as originally made. We do not overlook the fact that the result may bear heavily upon the present complainants, and that they may be compelled to bear a burden in excess of what their taxes would have been had the drain been properly completed by the first drain commissioner. This is manifest. But we do not think the fact that the first contractors were delinquent, and failed to perform their duty, exempts the complainants’ lands from taxation for the completion of the drain. In a sense, the public officers who spread a tax for any public improvement, or who supervise the execution of contracts for such improvement, are the agents of those particularly or generally benefited by the improvement. For any dereliction of duty the party who suffers a loss by their neglect or wrong may have an action for damages. But because one contractor goes wrong we do not think it is contemplated that an entire public improvement may be arrested at a point where no benefit may result from the labor expended.

The decree of the court below, which accords with the. views herein expressed, will be affirmed.

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


author: Hooker, J.

text:
    RATHBONE v. GROH.
    1. Specific Performance — Right to Remedy.
    Specific performance is a remedy of grace rather than of right, and will he refused whenever enforcement would be inequitable.
    3. Same — Land Contract — Adequate Remedy at Law —Bona Fide Purchaser.
    Specific performance of an option to purchase real estate will be denied where the rights of a bona fide purchaser have intervened and complainant will suffer little if any loss and has an adequate remedy at law.
    Appeal from Wayne; Donovan, J.
    Submitted April 12, 1904.
    (Docket No. 41.)
    Decided July 27, 1904.
    Bill by William S. Rathbone and Alfred Graham against Albert A. Groh, Lillian C. Groh, Chase Aldona, and Tilly Aldona, impleaded with Sophia M. B. Slocum and John H. Smedley, to enforce the specific performance of a land contract. From a decree for complainants, defendants Groh and Aldona appeal.
    Reversed.

      Chamberlain & Guise and William H. Turner, for complainants.

      8. 8. Babcock, for defendants Groh.

      William, F. Atkinson, for defendants Aldona.
   Hooker, J.

Defendants Albert A', and Lillian O. Groh are husband and wife. On December 11, 1893, Louis Groh conveyed to his son, said Albert A. Groh, the lands in controversy, but the wife of said Louis Groh, then and now living, did not sign the deed. The lands were also-incumbered by a mortgage to one Slocum for $1,000. These lands adjoined lands owned by Rathbone and Ella Graham, the complainants, and the boundary was in dispute. Negotiations were had with a view to settling the same, in the course of which there was talk of a purchase of the land in controversy by the complainants Rathbone and Ella Graham, but, as they were not ready to do so at that time, the parties made the two writings following:

“Agreement made and concluded this thirteenth day of November in the year of our Lord one thousand nine hundred, between Albert A. Groh and Lillian O. Groh, his wife, of the township of Monguagon, Michigan, parties of the first part, and Ella B. Graham (formerly Ella B. Crane) by Alfred Graham, her attorney in fact, and William S. Rathbone, of the city of Detroit, Wayne county, Michigan, parties of the second part, Witnesseth, that
“Whereas, there has been a dispute between the parties hereto as to the true line between Elba Island and the lands adjoining same and now owned by the said Groh, and
“Whereas, it is the desire of all parties to have a settlement of such dispute and differences,
“Now, Therefore, it is hereby agreed that the said line shall be considered and established as follows:
“Beginning at an iron stake distance east 2,965 feet from the northwest corner of lot eight (8), as designated and located on the plat recorded in the office of the register of deeds for Wayne county, Michigan, in Liber 5 of Deeds, on page 321, and running thence north ten (10) degrees feast to the north line of section 554; thence on a straight line to the southeast corner of land conveyed by Louis Groh and Emeline, his wife, to Walter Crane by deed dated September 11th, 1889, and recorded January 23rd, 1892, in the office of the register of deeds for Wayne county, Michigan, in Liber 387 of Deeds, on page 92; said land being situated in the township of Monguagon, Wayne county, Michigan.
“ It is understood that at the time of the making of this agreement the said Emeline Groh, widow of Louis Groh, claims to have a dower interest in the land affected by this agreement, and that it is also incumbered by a mortgage given to Elliott T. Slocum.
“The said parties of the first part in consideration of. the payment of the sum of one hundred seventy-five dollars ($175.00), hereinafter mentioned to be paid by the said parties of the second part, agree that they will, in addition to executing this agreement establishing the line as above set forth, pay any claim that may arise by reason of the dowei interest of Emeline Groh in this property, also to secure a release from Elliott T. Slocum from the operation of said mortgage of so much of said land as may be necessary to enable the said parties of the first part to carry out this agreement.
“And the said parties of the first part hereby agree to warrant and defend the said parties of the second part from all claims of any other person or persons who may claim rights or interest in said lands, the intent and purpose being that the said parties of the second part shall be fully protected against" any claims or pretended interest or claims of other parties that would interfere with their peaceable enjoyment of the premises up to the line hereby agreed upon as the boundary line between the parties.
“ The said parties of the second part upon the performance of the agreements and undertakings of the parties of the first part hereto agree to pay to the said Albert A. Groh, and Lillian O. Groh, his wife, the sum of one hundred seventy-five dollars ($175.00).
“ In witness whereof, the said parties hereto have hereunto set their hands and seals the day and year first above written.
“ Albert A. Groh. [L. S.(
“ Lillian C. Groh. [L. S.'
“William S. Rathbone. S.]
“ Ella B. Graham,
“By Alfred Graham,
“Atty. in Fact. [L. S.]
1 Signed, sealed, and delivered in presence of “A. O. Slagle.
“ Stanley G. Stevens.”
“ We hereby propose to sell and convey to you, William S. Rathbone and Ella B. Graham, by deed of general warranty, at any time before April 1, 1901, all the land embraced within the following lines:
“ Beginning at a point in the center of the highway on the easterly side of Grosse Isle, being the southwest corner of lands conveyed by Louis Groh and Emeline Groh, his wife, to Walter Crane by quitclaim deed dated September 11th, 1889, and recorded in the office of the register of deeds for Wayne county, Michigan, in Liber 387 of Deeds, page 92; thence following the center line of said highway southerly to the intersection of said center line with the south line of lot number seven (7) in section 544; thence easterly on the south line of said lot seven to a point which intersects with the boundary line between Elba Island and our lands; thence northeasterly along the boundary line between Elba Island and the lands of said Groh to its intersection with the southeasterly corner of land conveyed by said Louis Groh and Emeline Groh to Walter Crane, above described; thence following the south line of said lands deeded to said Walter Crane by said Louis Groh and Emeline Groh to its intersection with said highway, all of said lands being in the township of Monguagon, Wayne county, Michigan.
“ The purpose and intent being that you shall have all of the land bounded by said highway, the south line of lot seven in section 554, Elba-Island, and the land heretofore conveyed by Louis Groh and Emeline Groh to Walter Crane and above mentioned; but I except from said land above described, so much thereof as we have agreed to convey to William Cady, and described as follows:
“Beginning at the southwest corner of land deeded, to Walter Crane by Louis Groh and Emeline Groh, as per quitclaim deed, l’ecorded January 23, 1892, in Liber 387, page 92 of Deeds, in the register’s office, Wayne county, Michigan; thence easterly along the southerly line thereof, three hundred forty (840) feet; thence in a southerly direction parallel with the center line of the highway on the easterly side of Grosse Isle two hundred and forty feet (240); thence westerly on a line parallel with the north line thereof, three hundred forty (340) feet; thence on a northerly course along said highway to the place of beginning.
“ And we hereby agree to pay any claim that may arise by reason of the dower interest of Emeline Groh in said property.
“In consideration whereof you are to pay us the sum of one thousand dollars ($1,000) less the sum of one hundred seventy-five dollars ($175.00) already paid by you Tinder the agreement of even date herewith, the purpose of which was to establish a boundary line between us; and said land shall be free from all incumbrances, assessments, and taxes of every bind.
“We also agree to furnish a Union Trust Company abstract, showing good title in ourselves, free and clear of and from all incumbrances.
“ Albert A. Groh.
“ Lillian C. Groh.
“ Signed, sealed, and delivered in presence of “ A. C. Slagle.
“ Stanley G. Stevens.
“ State of Michigan, County of Wayne — ss.:
“On this thirteenth day of November in the year of our Lord, nineteen hundred, before me, a notary public, in and for said county, personally appeared Albert A. Groh, and Lillian C. Groh, to me known to be the same persons named in and who executed the above and foregoing instrument, and severally acknowledged the same to be their free act and deed.
“ Stanley G. Stevens,
“ Notary Public, Wayne county, Michigan.”

These writings were duly acknowledged on the same day. The option was afterwards assigned by Ella Graham to her husband, Alfred Graham. The sum of $175, mentioned in the agreement regarding the boundary, was duly paid, and within the period of 90 days, to wit, on March 1,1901, they sent the following letter to Albert A. Groh:

“ Detroit, Mich., Mar. 1,1901.
■“ Mr. Albert A. Groh.
‘ ‘ Dehr Sir: We desire to notify you that we will be ready March 25,1901, and desirous to carry out the agreement made and executed the 13th day of November, 1900, whereby you and your wife, Lillian C. Groh, agree to sell us the land as specified therein for the sum of one thousand ($1,000) dollars, one hundred and seventy-five ($175) dollars of which we have paid to you, leaving a balance of eight hundred twenty-five ($825) dollars to be paid in full as per agreement. Upon the delivery to us of proper conveyance of lands described in said agreement, free and clear of all incumbrances, assessments, and taxes of any kind, we will pay to you the sum mentioned above, namely, eight hundred twenty-five ($825) dollars.
“Yours truly,
“William S. Rathbone.
“ Ella B. Graham,
“By Alfred Graham,
“ Atty. in Fact.”

Some two weeks after the expiration of the period given for acceptance of the option, Mrs. Groh, who desired to sell the place, saw Mr. Rathbone, and asked him to pay for the place or return the papers, and he said he could not return them because they were recorded. She subsequently threatened him with suit if he did not return the papers. Subsequently, ánd within two weeks of Aldona’s purchase, she had another interview with Rathbone. Of this she testified:

“The option had expired, and I wanted to see whether he really wanted it or not, and so I went to him, and I said to him, ‘Do you want the land just as it stands?’ and he says, ‘Have you got the release?’ and I says, ‘You know what we could do about that?’ and he says, ‘No; I cannot do anything with it in that way; no, I do not want it.’ * * *
“Q. Now, what do you say Mr. Rathbone said to you?
“A. .He said, ‘No, he could not.’ I said, ‘Do you want it just as it stands?’ and he said, ‘Have you got the release?’ and I said, ‘No, you know we could not get it;’ and he said, T do not want it.’ I cannot just remember all.
“Q. Give the substance.
“A. I says, ‘Do you want it as it stands?’ and he says,, ‘No.’”

Thereupon she sold it to Aldona.for $25 less than she would have received from complainants, had they taken it under their contract.

This bill was filed to compel specific performance, and the defendants have appealed from a decree for the complainants ; the defendants Aldona claiming to be bona fide purchasers for value.

Aldona testified that he paid'$800 for the property in ignorance of any claim or interest of the complainants, and received a warranty deed on May 7, 1901. The tenant on the place afterwards attorned to Aldona. Complainants put their option upon record June 3, and Aldona caused his deed to be recorded on June 7,1901.

We discover nothing in the record which indicates that Aldona was not a bona fide purchaser for value, and he should be protected in his purchase, unless the fact that the record of complainants’ contract before the record of his deed precludes it. The testimony shows that Aldona bought at a time when complainants’ option was not of record, and in ignorance of its existence. He paid $809 for the property, and has since made improvements upon the place, which he must lose if he is defeated in this case upon the technical rule that, by recording this option before Aldona recorded his deed, the complainants have superior equities. Had Aldona taken title during the period of the option, it may be that he should be held to have taken subject to the contract, but he did not. If the option had been of record when he purchased, there was nothing indicate that it had not expired. After it was recorded, the same thing was true, except the fact of its subsequent record; and, had Aldona actual notice of the making of the contract, there was nothing to indicate to him that the complainants had acted upon it, or had longer any equitable claim under it. Specific performance is a remedy of grace, rather than right (see Chambers v. Livermore, 15 Mich. 381; Chapman v. Morgan, 55 Mich. 124 [20 N. W. 820]), and will be refused where it is inequitable to grant it (Munch v. Shabel, 37 Mich. 166; Rust v. Conrad, 47 Mich. 449 [11 N. W. 265, 41 Am. Rep. 720]; Pingle v. Conner, 66 Mich. 193 [33 N. W. 385]).

In Chambers v. Livermore, supra, Mr. Justice Cooley said:

“Specific performance, even of a binding contract, is not a matter of right, and a court of equity will refuse it, and turn the complainant over to his remedy at law, if not clearly satisfied that it embodies the real understanding of the parties.”

Again authorities are numerous that unconscionable bargains will not be so enforced. In the present case there is evidence that convinces us that this agreement was based upon a mutual expectation that Slocum would be willing to release his mortgage, and the understanding that complainant could and would procure such release for him. The proof shows that complainant tried to accomplish this, but failed, and so informed the defendant G-roh, who then asked him if he wanted the deed as it stood, and he said “No,” whereupon she sold it for $25 less to other parties. This justified her in believing that the complainant did not insist upon his option, and in selling elsewhere. Now he seeks to impose on her and another innocent party, Aldona, the burden of such obligation. But whether this was complainant’s intention or not, viz., to waive his right under the option, it is inequitable to insist upon the letter of his writing, which did not fairly state the bargain, and it is inequitable to ask that Aldona be subjected to loss, when the complainant will suffer but little, if any, loss in any event, and has another remedy at law if the Grohs have broken their contract.

The decree of the circuit court is reversed, and the bill is dismissed, with costs of both courts.

Moore, O. J., Carpenter and Montgomery, JJ., concurred. Grant, J., did not sit.


author: Moore, C. J.

text:
    STEWART v. CITY OF DETROIT.
    Municipal Corporations — Street Improvements — Assessments —Vacation—Equity—Estoppel.
    An abutting owner, having knowledge of defects in the proceedings to improve a street and failing to make them known,' while he stands by and sees the improvement made and the city obligate itself for payment, is estopped to set up the defect in a bill to restrain collection of the special tax, though he remonstrated against the improvement on general grounds.
    Appeal from Wayne; Hosmer, J.
    Submitted April 13, 1904.
    (Docket No. 48.)
    Decided July 27, 1904.
    Bill by Martha F. Stewart against the city of Detroit, William B. Thompson, city treasurer, and Thomas M. Lucking, receiver of taxes, to restrain the collection of a paving tax. From a decree for complainant, defendants appeal.
    Reversed.

      James H. Pound, for complainant.

      Timothy E. Tarsney (John W. McGrath, of counsel), for defendants.
   Moore, C. J.

Section 6 of chapter 11 of the charter of the city of Detroit (1893) provides:

“ That the common council shall not in any one year enter into contracts for the grading and paving of streets, alleys, and public places, the cost of which will exceed in the aggregate two hundred thousand dollars, except upon the petition of the holders of the larger portion of the real estate directly abutting upon the portions of the street or alley proposed to be improved.”

On April 25, 1899, a petition was presented to the common council of the city for the pavement of Lothrop avenue from Woodward avenue to Third avenue. Upon its face the petition showed the required majority of frontage, and it was so certified and so reported to the council May 2, 1899, by the board of public works. At the same meeting a resolution was adopted ordering the paving. At this meeting remonstrances were presented to the common council by complainant and Samuel W. Stewart, her son, who was acting for Mrs. Stewart, against said improvement, which set forth specifically the grounds of protest, to wit, that the pavement should be extended westerly beyond Third avenue to Hamilton Boulevard; that the public would not derive any benefit from the pavement of that portion of the street; that the purpose of the pavement is to enable petitioners to get so much of their property as they choose on the market. At the next meeting of the council, held May 9th, a motion was made to reconsider the action of the council ordering the pavement, pending the consideration of which a letter from the president of the board of public works was read. This letter recited that, after the usual investigation of looking up the signers of the petition in the assessor’s books for confirmation, the result showed that the majority of the feet frontage was represented by the property owners signing the petition. The motion to reconsider was lost.

On May 31, 1899, the complainant and her son each filed a second remonstrance, in which, by certain preambles, they set forth that the pavement had been ordered, but that the contract had not been confirmed, and they notify the council: First, that the said petition and all proceedings thereunder are absolutely null and void; second, that the property abutting upon said street, which is sought to be charged under such petition and proceedings with the cost of such improvement, is not liable therefor under said void proceedings; third, that any contract made or confirmed for such proposed improvement under said petition and proceedings would be made and confirmed at the cost of the city of Detroit, and not of the abutting property; fourth, that any pavement laid under the said petition and proceedings will be laid at the sole risk and expense i>f the city of Detroit, and that the entire expense thereof must be borne by the city of Detroit, and no part thereof b>y the property claimed to be benefited thereby.

Samuel W. Stewart was personally present in the council when the last remonstrance was presented. This remonstrance was served upon the council before the contract was confirmed. Samuel W. Stewart knew when the work under the contract was commenced. He knew all the facts relating to the insufficiency of the petition for the pavement prior to the time when the last remonstrance was filed. It was shown that before the filing of the bill of complaint in this case the city had paid the cost of the intersections upon said street; had issued the bonds for the improvement, making the cost of the same a general charge upon the city; and that the contractor had been paid in full for the work. It was conceded upon the trial by counsel for the city that the original petition was in fact defective, the defect consisting in the fact that certain estates were petitioners, and the petitions were signed by the executor, instead of by the heirs at law — a defect that doubtless could easily have been remedied if Mr. Stewart had stated in his remonstrance the knowledge he had upon that subject. No action was taken by Mrs. Stewart, except as stated, until this bill was filed.

Accompanying the brief of complainant’s counsel is a copy of the opinion filed by the trial judge. In that opinion he decided not only this case, but also the case of Farr v. City of Detroit, which was a proceeding similar to this. That, case was appealed to this court, and is reported in 136 Mich. 200 (99 N. W. 19). While the cases differ in some respects, there is not such a difference as to affect the result. We think this case comes within the principles announced in Farr v. City of Detroit, supra.

The decree is reversed, and the bill dismissed, with costs of both courts.

Carpenter,-Montgomery, and Hooker, JJ.., concurred. Grant, J., did not sit.


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    SONDHEIM v. FECHENBACH.
    1. Wills —Construction —Remainders —Persons Entitled to Share.
    Where a will devises the homestead to the widow for life, remainder to “my children hereinafter named,” and all testator’s children are subsequently named in the will, the estate goes to them all share and share alike.
    2. Same — Codioils.
    A codicil is treated as a part of the will.
    3. Same — Construction—Extrinsic Evidence.
    Not only the four corners of the instrument, but the amount of testator’s estate and his surroundings, are to be considered in determining the meaning of ambiguous provisions in a will.
    4. Same — Codicil—Substitutional Bequest.
    Evidence examined and held that a bequest contained in a codicil was intended as a substitute for a similar one of less amount to the same heir in the body of the will, the instrument being ambiguous.
    Appeal from Wayne; Donovan, J.
    Submitted April 5, 1904.
    (Docket No. 11.)
    Decided July 27, 1904.
    Bill by Rudolph Sondheim against Emma Fechenbach and others to construe the will of Solomon Sondheim, deceased. From a decree for complainant, defendants appeal.
    Modified.

      Joseph B. Nolan, for complainant.

      James H. McDonald (Adolph Sloman, of counsel), for defendants.
   Moore, C. J.

This bill is filed for the purpose of obtaining a construction of the will of Solomon Sondheim, deceased. The material portions of the will, which was first made in 1897, read as follows:

“I give to my wife, Eva Sondheim, during her natural life and while she remains my widow, the use and enjoyment of my household furniture, ornaments, and appurtenances, and also of the residence which I at the time of my death may be occupying as a home for my family, to be kept and used by her as a house for herself. In case my wife shall not survive me or at her death or remarriage, if she shall survive me, I give and devise said homestead, furniture, ornaments, and appurtenances to my children hereinafter named, and their issue, share and share alike, except the piano which I give to my daughter Emma, to be taken by her when she shall marry, or at my wife’s death. * * * All the rest and residue of my estate of every name and nature and wheresoever situate, I give, devise, and bequeath to my trustees hereinafter named and his successors, but only in trust for the following purposes : * * * Out of the income of the said property to pay to my wife during her natural life, while she remains iny widow, for the purpose of maintaining the house for herself, the sum of $10.00 each and every week commencing at the day of my death. * * * After the death or marriage of my wife, to set aside the sum of two thousand dollars, and to give the income therefrom, monthly, to my daughter Tilly or her guardian during her lifetime, whether she marry or not, and at her death the said principal sum to her issue, if she have any. After the death of my wife, to give to Theresa $4,000, Emma $2,000, Otto $1,000, and divide the balance between Philip, Rudolph, and Louis, paying to each son or his issue and my daughter Theresa or her issue, their shares immediately, and to my daughter Emma her share when she shall marry; but if any sums are obtained by my children from insurance on my life, the sum so obtained shall be deducted from the sum hereby given to him or her. To hold said fund of $2,000 until the death of my said daughter Tilly and also the portion of my daughter Emma until she shall marry.”

This will was resigned and republished on the 5th of February, 1901. It is the claim of the defendants it was done in the forenoon, and that in the afternoon a codicil was added, the material parts of which read:

“I, Solomon Sondheim, do make, publish, and declare this to be a codicil to my last will and testament dated this day. * * * Second, I have agreed that upon her wedding day I will give to my daughter Emma Sondheim, the .-sum of three thousand ($3,000) dollars, and in case I shall .not live so long I direct that she be paid that sum upon her wedding day out of my estate.”

It is the claim of appellee that the resigning of the original will and the making of the codicil were contemporaneous. It is contended by the complainant, and the circuit judge decreed, first, that the homestead on the death of the mother passed to the three sons, Rudolph, Philip, and Louis; that the $3,000 which the testator recites in the second paragraph of- the codicil was in lieu of the legacy of $2,000 provided for in the body of the will; and that as the testator had paid that sum to her on her marriage by way of advancement, she no longer had any interest in it he property of the estate. The case is brought here by appeal.

The bill avers the testator at his death left $8,958.35 of personal property, after deducting expenses of administration. The answer admits this averment to be true. The testator left surviving him a widow, who died nearly a year after his death, three daughters, and four sons— Theresa, Emma, Matilda, Philip, Otto, Rudolph, and Louis. Emma was married on the 12th of March previous to her father’s death, at which time she was paid $3,-000. Counsel say the following points are involved: First. Did the homestead, under the terms of the will, pass to the three sons or to all of the children, share and share alike? Second. Was the $3,000 given by the codicil substitutional or additional to the legacy of $2,000 given by the will ? Third. Was the court in error in admitting oral testimony as to the testator’s intention, or was such intention to be determined from the instruments themselves ?

We think the court erred in holding that the real estate should not be shared by all the children. The provision of the will is that at the death of the wife the “homestead shall go to my children hereinafter named.” Later provisions of the will name all of the children.

The other questions are more troublesome. Codicils are treated as parts of the will. Schouler on Wills (3d Ed.), § 7. The same author says:

. “ The cardinal rule of testamentary construction, as already intimáted, is that the plain intent of the testator as evinced by the language of his will must prevail, if that intent may be carried into effect without violating some •deeper principle of public policy. And whatever respect the construction put upon corresponding words in other wills may deserve from the court by way of precedent, this plain and lawful intent of the particular will should mot be defeated. Courts have spoken of such intention as the ‘ law,5 the ‘pole star,5 or the ‘ sovereign guide,5 when referring to this governing principle of testamentary •causes; and the doctrine, in one formula or another, is •constantly affirmed in the reports. But it is the intention •of the testator, as expressed in his own will, which governs; -and this intention must be discerned through the words of the will itself, as applied to the subject-matter and the •surrounding circumstances. In other words, the plain and unambiguous words of the will must prevail, and cannot be controlled or qualified by any conjectural or -doubtful constructions growing out of the situation, circumstances, or condition of the testator, his property, or the natural objects of his bounty. And since the interpretation and exposition of certain phrases found in similar wills are entitled to weight, it may sometimes happen that the intention as expounded by the courts differs from the testator’s own private intention and understanding. .For the true inquiry in interpreting the will is not what the testator meant to express, but what the words used in the will express. Yet every will, should be interpreted, as far as possible, from the .standpoint apparently •occupied by the testator; and attendant circumstances, such as the condition of his family, and the amount and character of his property, may and ought to be taken into •consideration as part of the res gestae where the language is not plain nor the meaning obvious.” Schouler on Wills (3d Ed.), §466.

See, also, Eyer v. Beck, 70 Mich. 179 (38 N. W. 20); Wales v. Templeton, 83 Mich. 177 (47 N. W. 238). In Barnes v. Marshall, 102 Mich. 248 (60 N. W. 468), Justice Long, speaking for the court, said:

‘ ‘ The general rule for the interpretation of wills is that it is the duty of courts to give full and complete effect to the testator’s intention, and carry out such intention if it he lawful. Rock River Paper Mill Co. v. Fisk, 47 Mich. 212 (10 N. W. 344); Cummings v. Corey, 58 Mich. 494 (25 N. W. 481); Eyer v. Beck, 70 Mich. 179 (38 N. W. 20). Courts are bound to carry out the real design of’ the testator as derived from a comparison of all the parts-of the will; and the meaning of all words and phrases-must, if possible, be harmonized. Bailey v. Bailey, 25 Mich. 185.”

In Hamlin v. Express Co., 107 Ill. 443, the rule is stated that “the latter part of the will is to be considered no less than the former part; and, to the extent there is-repugnance, the language of the former part is to be read as modified by that of the latter part.” In section 467 of Schouler on Wills it is said:

“ ‘The struggle in all such cases,’ observes Judge Story,, ‘is to accomplish the real objects of the testator, so far as-they can be accomplished consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will.’ Nightingale v. Sheldon, 5 Mason, 336. In fine, where the meaning of the language of the will is plain, the court of construction does not go outside to discover what the testator intended ; but where the provisions are doubtful, or may admit of more than one interpretation, the court will put itself in the situation of the testator, in reference to the property and the relative claims of the testator’s family, the relations subsisting between him and them, and the circumstances which surrounded him, in order to be enlightened.”'

When the provisions made for Emma in the will are read, and the provision made for her in the codicil is then read, a doubt at once arises as to just what was intended by Mr. Sondheim. In the will he gave her a. piano, which was to be taken by her when she shall marry. He also gave to her, after the death of his wife, $3,000, to be paid to her when she shall marry. These provisions were in the will when it was made in 1897, and remained in it when it was resigned. If, when the codicil was signed, he had said the $3,000 was to be in lieu of the-$3,000 named in the body of the will, or if it had been stated it was to be in addition thereto, it would have dispelled the ambiguity. Unfortunately this was not done, and to arrive at his meaning we must consult not only the four corners of the instrument, but the amount of Mr. 'Sondheim’s estate and his surroundings. If we regard ■the $3,000 as all that was to be paid to Emma, then there is personal property enough to take care of all of Mr. Sondheim’s gifts and pay the expenses of administration, and leave a small sum to be divided, as provided in the will, between Philip, Rudolph, and Louis. If Emma is to have $5,000, as claimed, there would not only be no personal property to divide between the boys, but there would not be enough to pay, by a very considerable amount, the provisions made in the will for Theresa, Emma, and Otto. Mr. Sondheim undoubtedly knew what property he had, and it is not probable he meant to make bequests which could not be paid. Taking all the surroundings of the case, we think the provision of the codicil was to take the place of the sum provided for Emma in the body of the will.

The decree will be affirmed as to the personal property .and reversed as to the real estate.

The other Justices concurred.


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    BUTCHER v. BUTCHER.
    1. Adverse Possession — Dower—Alimony—Limitations.
    Evidence examined and held th&t defendant’s occupancy of land under a conveyance from his father was adverse to the dower and alimony claims of his mother during the whole period of limitations, notwithstanding her residence there with him. during a part of the period.
    2. Limitation of Actions — Pleading—Estoppel.
    The defect of failure to plead exclusive possession in a plea of limitations cannot be taken advantage of by complainant-who alleges in his bill that he has been excluded by defendant during the whole period.
    3. Dower — Bar by Adverse Possession.
    Dower may be barred by adverse possession.
    Appeal from Hillsdale,' Chester, J.
    Submitted April 15, 1904.
    (Docket No. 42.)
    Decided July 27, 1904.
    Bill by Margaret J. Butcher against John Butcher for partition and for an accounting. Defendant filed an answer in the nature of a cross-bill to quiet title. From a decree-for defendant, complainant appeals.
    Affirmed.

      F. A. Lyon, for complainant.

      W. J. Sampson and Charles M. Weaver, for defendant.
   Montgomery, J.

In 1874 complainant’s husband,, William Butcher, was the owner of 75 acres of land in the county of Hillsdale, subject to mortgages of nearly $1,500. He also owned some personal property, amounting in value to a few hundred dollars, and also owed unsecured debts amounting to nearly the value of the personal property. The family of the Butchers consisted of William Butcher, his wife (complainant), and seven children, of whom. John (the defendant) was nest to the oldest, being at that time 20 years of age. The youngest was a daughter but little more than one year of age. The husband and wife did not get on well together, and a separation was agreed upon. At the same time it was agreed with John that, if he would stay on the farm, take the personal property, make a home for and care for the younger children until such time as they were able to care for themselves, pay off the personal debts owing by William, and pay the mortgage on the place, he should have the place. With this end in view, a power of attorney was executed to Thomas J. Lowrey, authorizing him to deed or mortgage the land or sell the personal property at will. The complainant understood and assented to the arrangement with John. William left for California, and has never returned.

In 1884 complainant obtained a decree of divorce from her husband, and was awarded one-third of all his land in Hillsdale county as alimony, and, as the divorce was on grounds of drunkenness, was also entitled to dower in his estate. Complainant had continued a member of John’s family for the most part until 1883 or 1884,' when she left for good. Defendant continued in possession of the land, claiming the rights in it accorded by his father’s contract with him. In 1901 the present bill was filed for partition.

The defendant filed an answer in the nature of a cross-bill to quiet title. Defendant prevailed in the court below, and complainant appeals.

In addition to setting out the equities above alluded to, the defendant also set up the statute of limitations, which we consider a complete answer to complainant’s claim, and shall, therefore, omit discussion of the other interesting questions raised.

Complainant asserts that the defendant has not well pleaded the statute of limitations, for the reason that the answer fails to aver that the defendant’s possession was exclusive; that is, that complainant was excluded from the rights which she now claims. This contention is sufficiently answered by the fact that the complainant’s bill itself very distinctly avers that she has been excluded all this time from the premises.

In 1889 Lowrey, acting under the power of attorney mentioned above, conveyed the land to defendant. Complainant contends that up to this time defendant’s possession was not hostile to her, but that he was occupying in the right of his father. He was occupying, however, as the equitable owner of the whole, and 'this with complainant’s knowledge. There was no recognition of any co-tenancy. Complainant’s bill, in effect, asserts this, and •the fact is so. On the contrary, complainant knew the character of defendant’s occupancy from the first, and that it was in no sense in subordination to her claim, but was adverse to it.

That complainant’s dower may be bound, see Beebe v. Lyle, 73 Mich. 114 (10 N. W. 911).

The decree will be affirmed, with costs.

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


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    McDONALD v. CITY ELECTRIC RAILWAY CO.
    1. Carriers — Street Railways — Injuries to Passengers — Premature Start — Instructions.
    Where, in an action for injuries to a passenger, the issue is whether plaintiff was injured while leaving a moving car or by the starting of the car while in the act of alighting, defendant is entitled to a requested instruction that, while it was defendant’s duty to stop the car to afford plaintiff an opportunity to alight, yet its failure to do so would not give plaintiff the right to jump from the moving car.

      2. Same — Misleading Instructions.
    Instructions examined and held misleading as authorizing recovery if plaintiff attempted to alight from a moving street oar on failure of the earrier to stop it as requested.

      3. Trial — Instructions—Cure of Error.
    Where a proper request has beeu refused and language employ ed in its stead which is calculated to induct the j ury into the very error which the charge requested was designed to guard against, a conflicting instruction will not cure the error unless it clearly appears that the jury could not have been misled.
    Error to St. Clair; Tappan, J.
    Submitted April 15, 1904.
    (Docket No. 29.)
    Decided July 27, 1904.
    Case by Daniel McDonald against the City Electric Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Phillips & Jenks, for appellant.

      Avery & Walsh (S. A. Graham, of counsel), for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment of $5,000 for injuries received while alighting from one of defendant’s cars. v

The declaration contains two counts, and in each it is .alleged that the defendant’s servants brought the car to a stop, and that, white plaintiff was in the act of alighting, the car was suddenly started, throwing plaintiff down and •causing the injuries complained of.

The evidence on the trial was in sharp conflict. The ■testimony on the part of plaintiff tended to support the ■declaration, while that on the part of the defendant tended .strongly to show that the plaintiff attempted to alight while the car was in motion, and before it was brought to .a stop.

In one portion of the charge the circuit judge clearly •defined the issue and charged the jury as follows:

“Now, gentlemen, upon these claims of the parties I •charge you that you are to determine from the evidence and facts submitted to you whether the defendant company so stopped its car when it did stop it as to permit the plaintiff to alight and get safely clear from the car before again starting up; whether, in alighting from the car at the point where he did alight, the plaintiff exercised that due care and caution in alighting that men of ordinary prudence would use under like circumstances; and whether, while the defendant was endeavoring to stop its car, and before it actually did stop, the plaintiff jumped from the moving car, as claimed by the defendant, and thereby became himself responsible for the injury.”

Had this been the whole of the charge upon the subject,, and had no request been preferred by defendant upon the subject, "there would be no difficulty in saying that the subject was fairly covered. Defendant, however, did prefer a request which asked the court to say to the jury, in substance, that,-while it was the duty of defendant to stop its car to afford the plaintiff an opportunity to alight, yet the failure to do so would not give the plaintiff the-right to jump from the moving car. Clearly the defendant was entitled to this instruction, in view of the issue presented by the declaration. It was not given, but, apparently in lieu thereof, the court gave the following:

“ While it is the duty of the defendant to stop its car at the point where plaintiff requested to be let off, if he-did so, notwithstanding the fact defendant carried him past that point, this would not excuse the plaintiff, or give-him a right to jump off from a rapidly moving car, if you find he did so jump. If, under these circumstances, you find that as a fact the plaintiff jumped from the car moving at a rate of speed that should restrain men of ordinary care and prudence from alighting from a car under such circumstances, then your verdict should be for the defendant ; ”

—And added, on his own motion, the following:

“I further charge you that the plaintiff cannot be: charged with contributory negligence because he was riding in the vestibule instead of taking a seat inside of the car; further, that it was the duty of the employés in charge of the car upon which plaintiff was riding to bring; the car to a full stop, and allow the plaintiff sufficient time to alight before again starting; that, when the car was brought to a full stop, it was incumbent upon plaintiff to step off the car, and away from it, in a careful and prudent manner; that if the employes of the company, or either of them, failed to bring the car to a stop, and allow the plaintiff sufficient time to alight and to get away from it while he was trying to do so in a careful and prudent manner, but, instead, started the car up suddenly while he was in the act of alighting, and thus injured the plaintiff, then the defendant is liable, and your verdict should be for the plaintiff.”

We cannot escape the conclusion that the instruction was well calculated to mislead the jury, and constituted error for which the case should be reversed, unless the error is cured by what took place at the conclusion of the charge.

At the conclusion of the charge the court requested of counsel as to whether there was anything further, and counsel for plaintiff then stated: “Here is one request. I think your honor has covered it, but I would like to have it given.” The request was then submitted to defendant’s counsel, who objected to its being given, and requested that the- defendant’s request presented upon this theory should be given. The court then charged the jury according to the request of the plaintiff, as follows:

“ If plaintiff alighted from the car when in motion, he would be guilty of contributory negligence which would prevent his recovery. I think it is fully covered in the charge given, in connection with the qualification that he is not to step off the car.”

This instruction so given was disassociated from defendant’s theory, and in conflict with the charge as previously given, although accompanied by a statement that it was thought to be fully covered. When conflicting instructions are given, it ought to be made clearly to appear that the jury could not have been misled. This is especially true where a proper request has been refused, and language employed in its stead which is calculated to induct the jury into the very error which the charge requested was designed to guard against. See Sterling v. Callahan, 94 Mich. 536 (54 N. W. 495).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.