text:
    DETROIT CITIZENS’ STREET RAILWAY CO. v. CITY OF DETROIT.
    1. Street Railways — Exclusive Franchise — City Ordinance.
    A city ordinance granting to a street-railway company the exclusive right to construct and operate its railways upon certain streets, and to construct whatever new lines the common council may from time to time determine upon, is in effect an attempted grant of an exclusive privilege, notwithstanding the municipality reserves the right, in case such company should not desire to extend its lines to streets designated by the council, to grant to other comiianies the privilege of operating upon such streets.
    2. Streets — Powers Over — Construction of Constitution.
    The constitutional provisions that the State shall not be interested in any work of internal improvement, nor vacate nor alter any road laid out by commissioners of highways, or any street in any city or village, or in any recorded town plat, do not operate to take from the legislature, and confer upon local authorities, the supreme power over the public streets.
    3. Municipal Corporations — Power to Grant Easements in Streets.
    A municipality has no power, except as derived from the legislature, to grant to a street-railway company an easement in its streets.

      4. Same^Exolusive Privileges.
    The power to grant exclusive rights will not be implied from general language in a statute, but must be clearly and explicitly expressed.
    5. Same — Statutory Construction — Presumption.
    A statute conferring powers upon a municipality will be presumed to have been framed with reference to the rule that nothing is to be taken by intendment in construing a legislative grant of power.
    6. Same.
    Such rule is not rendered inapplicable by the fact that the power delegated is one which could be exercised only through the local authorities, and not by the legislature directly.
    7. Street Railways — Exclusive Franchises — Statutes.
    Power to grant the exclusive privilege of occupying the streets* for street-railway purposes is not conferred upon municipal corporations by section 34 of the train railway act (Act No. 148,'Laws 1855, as amended), providing that all companies formed for the purposes specified in the act shall have the exclusive right to use and operate any street railway constructed, owned, or held by them, provided that no such company shall be authorized to construct a railway through the streets of any town or city without the consent of the municipal authorities, “and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe.”
    Appeal from Wayne; Frazer, J.
    Submitted June 3, 1896.
    Decided July 28, 1896.
    Bill by the Detroit Citizens’ Street-Railway Company to restrain the city of Detroit and the Detroit Railway from carrying out the provisions of an ordinance for the construction and operation of a street-railway line. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Brennan, Donnelly & Van De Mark (Ashley Poncl, Fred A. Baker, Frank Sullivan Smith, and James C. Carter, of counsel), for complainant.

      John J. Speed, for defendant city of Detroit.

      Charles Flowers (Benton Hanchett and H. H. Hatch, of counsel), for defendant Detroit Railway.
   Montgomery, J.

The bill in this case was filed to restrain the defendant the Detroit Railway from constructing and operating a street railway in certain streets in the city of Detroit, the complainant claiming to have a prior right to construct and operate a street railway in such streets under and by virtue of an ordinance of the city. The complainant is the successor to the Detroit City Railway. By an ordinance approved November 24, 1862, the Detroit City Railway was—

“Exclusively authorized to construct and operate railways, as herein provided, on and through [certain named streets], and through such other streets and avenues in said city as may from time to time be fixed and determined by vote of the common council of the said city of Detroit, and assented to in writing by said corporation; * * * and, provided the corporation does not assent in writing within thirty days after the passage of said resolution of the council ordering the formation of new routes, then the common council may give the privilege to any other company to build such route, and such other company shall have the right to cross any track or rails already laid, at their own cost and expense.”

By an ordinance passed in November, 1879, the rights conferred and the obligations imposed by the ordinance of 1862 were continued until November 14, 1909.

Complainant’s predecessor, the Detroit City Railway, was organized under the train railway act (Act No. 148, Laws 1855, as amended), and at the date of the adoption of the first ordinance, in 1862, section 34 of that act provided that—

“All companies or corporations formed for such purposes shall have the exclusive right to use and operate any street railways constructed, owned, or held by them; Provided, that no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said ■authorities may from time to time prescribe.”

In 1867 this section was amended by adding another proviso, which reads as follows:

“Provided, further, that after such consent shall have been given, and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises so granted shall be destroyed or unreasonably inpaired, or such company or corporation be deprived of the right of constructing, maintaining, and operating such railway in the street in such consent or grant named, pursuant to the terms thereof.” Act No. 188, Laws 1867.

The question first in importance is whether the common council of the city .had the inherent power, or derived the power under this statute, to grant the privilege, not only to build such lines as were specifically designated in the •ordinance of 1862, but to couple with this grant the .grant of the first right to build any other lines which the •city authorities might, in the future, elect to have constructed, on the same terms as were provided with reference to the lines specifically provided for in the ordinance of 1862. . It is apparent from the reading of the statute that 'there was no express and direct authority conferred in terms upon the common council to grant an exclusive privilege to occupy the streets of the city for street-railway purposes. An attempt has been made to distinguish the right of election sought to be conferred by the ordinance from a grant of an exclusive privilege, on the ground that the municipality reserves to itself the right to grant the privilege to other companies to construct .street railways in case the first company shall elect not to build in designated'streets. But, while the ordinance does not, in terms, purport to be a -direct grant of an exclusive use in all the streets of the city, it is a grant •of an exclusive privilege, which the company is given the option to avail itself of or not, at its pleasure. The legislative control over the streets is suspended during a period of 30 years, except in cases where the company shall, upon investigation, determine that a line does not give sufficient promise of profit to justify it in making the requisite expenditure, when, on its refusal to build, the city regains so much of its legislative authority as enables it to provide for the construction of a particular line; but as to other streets and other lines its power is still suspended. Nor would it be possible, under the construction contended for by complainant, for the city to make other or better terms with another company prepared to build independent or competing lines. We consider that this is none the less a grant of an exclusive privilege because of the option reserved to the company to build or not, and that the rules of construction which obtain in construing such grants, and in determining whether the power to make such grant exists, should be applied.

The general rule, established by the weight of authority, is that municipal corporations have no power to grant exclusive rights to street-railway, gas, or water companies, except upon authority from the legislature, given explicitly, and clearly expressed; and that, in construing charters and statutes conferring upon a municipality the right to provide for these conveniences, the authority to grant exclusive privileges will not be implied from the use of general language. Booth, St. Ry. Law, § 108; Grand Rapids, etc., Co. v. Grand Rapids, etc., Co., 33 Fed. 659; Jackson, etc., Co. v. Interstate, etc., Co., 24 Fed. 306; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; Parkhurst v. Capital City R. Co., 23 Or. 471; Long v. City of Duluth, 49 Minn. 280 (32 Am. St. Rep. 547); 2 Cook, Stock, Stockh. & Corp. Law, § 913. It is conceded that the weight of authority establishes this rule, but it is contended that this is, after all, but a rule of construction, and that the paramount rule of construction is that the intent of the legislature, when gathered from the whole terms of the enactment, should control. We recognize the force of this latter rule, except in a case where it crosses lines with another well-understood rule of construction. But courts are not at liberty to resort to this rule, and to discard another rule of construction; for, in ascertaining the intent, it must be assumed that the statute was adopted in view of the recognized rule that nothing is to be taken by intendment in construing a legislative grant of power.

The principal contention of complainant’s counsel is that the policy of our Constitution, which favors local self-government, should have controlling effect in determining the legislative intent in this case, and that because of this policy the cases cited from other States to sustain the projiosition that a municipality does not possess the power to grant an exclusive privilege, except the same be conferred in express terms, should not have controlling effect. To some extent counsel for complainant differ in the scope of their contention as to the effect of certain provisions of our Constitution. The contention, as it is made in the brief of one of complainant’s counsel, is that, under our Constitution, the sovereign power over all public streets and highways (except State roads laid out under swamp-land grants) is taken from the State legislature, and distributed among the townships, cities, and villages of the State, to be separately exercised by them; and that, therefore, the local authorities, in making street-railway grants, and in agreeing upon the terms and conditions thereof, exercise an original power vested in them by the Constitution of the State, and that they do not in any sense act as the agents of the State legislature by virtue of a mere delegation of authority. The provisions of the State Constitution which are cited as establishing this policy are article 14, § 9; article 11, § 1; article 4,§23. Article 11, § 1, provides for the election of highway commissioners and overseers in townships and road districts, and can have no bearing upon the question, except as it may tend to show the general policy of the people in dealing with the subject of highways. Article 14, § 9,. reads: “ The State shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.” And article 4, § 23, provides: “The legislature shall not * * * vacate or alter any road laid out by commissioners of highways, or any street in any city or village, or in any recorded town plat.” It is contended that these provisions take away the power from the legislature, and transfer it to the local governments. In support of this contention we are cited to the cases of Hubbard v. Tp. Board of Springwells, 25 Mich. 153; Davies v. Board of Supervisors, 89 Mich. 295; People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); People, ex rel. Park Commissioners, v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202); People, ex rel. Attorney General, v. Common Council of Detroit, 29 Mich. 108.

In Hubbard v. Tp. Board of Springwells the question arose as to the validity of. an act of the legislature authorizing an appointment by the governor of commissioners to improve Fort street, in the township of Spring-wells, and to collect tolls. The township was required to' issue bonds and submit to taxation for the purpose of paying for the improvement. It was held that this was a work of internal improvement, and as such could not be undertaken by State agencies, and it was further held that, as commissioners and overseers of highways were constitutional officers, their functions could not be wholly abolished, nor could they be elected or appointed by other authority than the township. In this latter holding the court followed People v. Hurlbut. But in Hubbard v. Tp. Board of Springwells the court by no means holds that the control of the streets by the local authorities is supreme; on the contrary, it was said that the power of the highway commissioners was subject to legislative modification.

In Davies v. Board of Supervisors the court held, following Hubbard v. Tp. Board of Springwells, that it wag incompetent to withdraw from the local authorities provided for by the Constitution the functions of their offices, and confer them upon a board appointed by a power removed from, and not responsible to, local authority.

The scope of the earlier decisions is clearly stated by Mr. Justice Cooley in People, ex rel. Park Commissioners, v. Common Council of Detroit, 28 Mich., at page 240 (15 Am. Rep. 210). After stating that the opinion in People v. Hurlbut had been misapprehended, Justice Cooley said:

.“We intended, in that case, to concede most fully that the State must determine for each of its municipal corporations the powers it should exercise and the capacities it should possess, and that it must also decide what restrictions should be placed upon these, as well to prevent clashing of action and interest in the State as to protect individual corporators against injustice and oppression at the hands of the local majority. And what we said in that case we here repeat, — that, while it is a fundamental principle in this State, recognized and perpetuated by express provisions of the Constitution, that the people of every hamlet, town, and city of the State are entitled to the benefits of local self-government, the Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the State, from considerations of general policy, as well as those which pertain to the local benefit and local desires. And in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for local purposes, or it may confine the authority within narrow bounds; and what it thus confers it may enlarge, restrict, or take away at pleasure.”

This is a clear exposition of plain provisions of the Constitution. Article 4, § 38, reads: “The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local legislative and administrative character as they may deem proper.” The limitations upon this broad power to confer or withhold authority are that the legislature may not withhold authority from the local authorities, and confer it upon an outside agency; and under the provisions of article 4, § 23, it may not vacate or alter any road laid out by the commissioner or local authorities. Since the adoption of the Constitution many acts have been passed relating to the control of streets, and imposing duties upon local authorities; and in special charters, as well as in the general act for the incorporation of cities, it has been deemed essential to confer and define the extent of the control over streets reposed in municipal authorities. This court, in the case of Taylor v. Railway Co., 80 Mich. 77, Mr. Justice Grant speaking for the court, said, “Municipal corporations derive their sole source of power from legislative enactments.” See, also, Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; Grand Rapids, etc., Co. v. Grand Rapids, etc., Co., 33 Fed. 659; Detroit Citizens’ St. R. Co. v. City of Detroit, 12 C. C. A. 365, 64 Fed. 628; City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). The power of a municipality to grant an easement in the street to a street-railway company is not inherent, but is derived from the legislature.

It is, however, strenuously urged upon us that, in view of the general policy in favor of local self-government, which is evidenced by the provisions of the Constitution quoted and the decisions of this court, the grant to the municipality by the legislature should receive a construction more liberal than if it were a delegation of power which the legislature could itself exercise; it being urged in the same connection that the legislature could not grant an easement or right to use a particular street for street-railway purposes. Without affirming or denying the latter proposition, we do not think the precedent contention would be solved by a determination of that question. It is clear that whatever power the local authorities have to grant an easement in the street for street-railway purposes is derived from the legislature, whether the streets of a city be directly controlled by the legislature in such sense that a direct grant may be made, or whether the trust be one which may be executed through certain local authorities only. The reasons for construing a grant of authority with strictness are equally forcible. Whether such a franchise be the subject of a grant by the State direct or by the local authorities, the power over the streets is a trust, and the authority to grant an exclusive right ought not to be implied any the more because the legislature has not reserved to itself, or does not originally possess, the power to grant an easement in a particular street. The question whether such power is reserved to the legislature seems not to have been allowed to control the rule that the power to grant an exclusive franchise or right will not be inferred. In Parkhurst v. Capital City R. Co., 23 Or. 471, the court states the question as follows:

‘ ‘ The precise question, then, is, had the city of Salem, under the grant of an exclusive power ‘ to permit, allow, and regulate the laying down of tracks for street cars’ upon such terms and conditions as it may prescribe, the power to grant for a term of years the exclusive right to occupy its streets with street railroads ? ”

The court said:

“It is true, this power, so far as granted, is by the charter made exclusive; that is, the city alone has the right and power to permit, allow, and regulate the use of its streets for the purpose indicated. To this extent it is endowed with complete legislative sovereignty. That sovereignty has no limit so long as the city keeps within the powers granted.”

Yet, notwithstanding this, it was held that, as the power to grant an exclusive privilege was not expressly conferred, it was not to be implied. Indeed, the argument in favor of the necessity that the power to grant exclusive privileges be lodged somewhere would apply with substantially the same force in case of a delegation of power which the legislature may exercise directly as in a case -where the power is conferred upon the local authorities as the only means of granting an easement. Certainly the difference is only in degree, as during the recess of the legislature the power would, in the former case as in the latter, be in the local authorities.

One very solid ground upon which the cases which hold that authority of a municipality to grant an exclusive privilege is not to be inferred in the absence of an express-grant rest is that a franchise of that nature is in restraint of free competition. It does not detract from the force of these authorities that in some of the cases there has been stated a further reason that the legislature will not be presumed to have delegated its own authority except to the extent that such delegation of power is clearly expressed. In State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262, it was said:

“We have referred to these authorities as our justification for saying that when a franchise so far in restraint of trade, and so pregnant with public mischief and private hardship, is drawn in question, and is claimed to be derived through a municipal ordinance or contract, the power of the municipal authorities to pass the ordinance of enter into the contract must be free from doubt. It. must be found on the statute book in express terms, or arise from the terms of the statute by implication so. direct and necessary as to render it equally clear. ”

In Saginaw Gaslight Co. v. City of Saginaw, Judge Brown said:

“Nothing is better settled than that statutes creating monopolies, granting franchises and charters of incorporation, must be construed liberally in favor of the public, and strictly as against the grantee.”

We think the act in question cannot be construed as conferring the power upon the common council to grant such a privilege as that which was attempted to be conferred by the ordinance of 1862. Certainly there is no express grant of the right to confer exclusive privileges, nor do we think that there is any clear implication .of any such power arising out of the terms of the act. There is a limitation upon the right of the company to construct a railway, which is that, before doing so, the company shall procure the consent of the municipal authorities under such regulations and upon such terms and conditions as said authorities may from time to time prescribe. Fairly construed, this language relates to the terms and conditions to be prescribed for the contemplated occupancy of streets the use of which is presently contemplated by the parties to the contract, and the “terms and conditions ” relate to such occupancy of such streets. A broader construction is contended for, and it is said that the power to make terms and conditions carries with it an implication of power to make all terms and conditions relating to the subject-matter necessary to effectuate the object of the legislation; and that it is to be assumed, and, indeed, that the evidence in the case fairly indicates, that the grant of this exclusive privilege was essential in order to induce the railway company to undertake the construction of a railway. Of a' similar contention it was said, in the case of Long v. City of Duluth, 49 Minn. 280 (32 Am. St. Rep. 547):

“It may be said that the power to contract would be useless unless the privilege conferred may be made exclusive, for otherwise private corporations or persons would not engage in an undertaking involving the necessity for very large expenditures of capital in works which might be rendered unprofitable, if not valueless, by the subsequent action óf the municipal or State government. The argument is not without force. _ The cases cited above, and others, show that it has often been advanced in support of claims of exclusive privileges; but it has rarely, if ever, prevailed. It suggests considerations of policy which may influence the legislature to grant or to authorize the granting of exclusive privileges; but the principles in accordance with which legislative grants of this kind are to be construed seem to be so clearly established that generally not much weight can be given to such an argument in determining the effect of particular legislative action. ”

See, also, Grand Rapids, etc., Co. v. Grand Rapids, etc., Co., 33 Fed. 671.

Assuming good faith on the part of the municipalities and private corporations contracting with them to be the rule, it would be difficult to imagine a case in which the attempted exercise of the right to grant an exclusive privilege could not be fortified by a well-grounded claim of necessity. We think an implication of power cannot be built up upon this claim.

Having reached the conclusion that the court below was right in holding that legislative authority to grant the privilege in question did not exist, it becomes unnecessary to discuss the numerous interesting collateral questions which have been raised and argued by counsel.

The decree of the court below will be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MOODY v. TOWNSHIP OF SHELBY.
    Pleading — Sufficiency of Declaration — General Issue — Waiver of Defects.
    An objection that tlie averments of a declaration to the effect that the defendant township carelessly and negligently allowed a highway to become and remain out of repair, and in a dangerous and unsafe condition, in that the roadbed was improperly constructed, and that it knew, or by the exercise of reasonable care ought to have known, of the unsafe and dangerous condition of such highway, and that it thereafter had sufficient time to repair the same, and render it reasonably safe, — do not sufficiently allege notice to thet ownship, a reasonable time thereafter for repair, and a failure to repair, is not open to the defendant after a plea of the general issue.

      Error to Oceana; Russell, J.
    Submitted June 10, 1896.
    Decided July 28, 1896.
    Case by Mary E. Moody against the township of Shelby for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. E. Soider and Bundy & Travis, for appellant.

      A. S. Hinds and Arthur Jones, for appellee.
   Moore, J.

Plaintiff sued defendant for an injury received on a highway in said township, and recovered a judgment. Defendant appeals. The errors assigned which it is necessary to consider relate to the declaration and to the charge of the court. The declaration, so far as it is necessary to quote it here, reads as follows:

“Andthe plaintiff alleges that it was the duty of the defendant to maintain said highway in repair and in a reasonably safe condition for use, so that the public could safely pass along said highway with horses and vehicles at all times in safety; but that the defendant, disregarding its duty in that regard, carelessly and negligently allowed said highway, at a place a short distance west of a certain school-house known as the ‘Ames School,’ to become and remain out of repair, and in a dangerous and unsafe condition, in that the roadbed over and upon which the public were required tó pass with horses and vehicles was graded up from the level of the surrounding land a distance of more than four feet, and the upper surface of said roadbed was only about eight feet wide, and was constructed in part of loose earth, which easily gave way on each side, and by reason of the surface of said roadbed being so narrow, and constructed of soft and loose material, at that place, was unsafe and dangerous; and that the defendant knew, or by dhe exercise of reasonable care ought to have known, of the unsafe and dangerous condition of said highway; and that thereafter the defendant had sufficient time to repair the same, and to render it reasonably safe for the public to pass and repass with horses and vehicles. * * * And that the said fall was not caused by any carelessness or negligence on her part, or on the part of said Sturtevant, but was caused solely by the negligence of the defendant in allowing the roadbed or the traveled part of said highway to be and remain too narrow for the reasonably safe passage of teams, and allowing it to be graded up above the surface of the surrounding land without causing it to be made Avide enough for the safety of travelers with teams and vehicles, which caused the said highway at that place to be unsafe and dangerous, as aforesaid. ”

Defendant pleaded the general issue. It is claimed that there is no sufficient allegation of notice to the township of the defect in the highway, and of reasonable time to repair after notice, and failure to repair. The case comes within the decision in Storrs v. City of Grand Rapids, post, and cases therein cited.

It is alleged as error that the court refused'to take the •case from the jury because of the contributory negligence of plaintiff. "We think the testimony upon that feature of- the case presented a question for the jury, and that it was fairly and properly presented to them by the trial judge. Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842).

The other assignments of error relate to the charge of the court. A detailed discussion of them would not be of interest to any one except the parties to this litigation. While there are one or two sentences in the charge, if isolated and standing alone, that might be regarded as misleading, when they are taken in connection with the record as made, and the balance of the charge, they could not have misled the jury, and they do not constitute reversible error. Lyon v. Watson, 109 Mich. 390.

Judgment is affirmed.

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


text:
    ZIMMERMANN v. DWELLING-HOUSE INSURANCE CO.
    1. Insurance — Policy on Agent’s Property — Validity.
    A policy •written by an agent for an insurance company upon his own property is not binding until it is approved by the company.
    ■2. Same — Waiver.
    Authority from a general agent of an insurance company to a local agent to write a policy upon his own goods “in the usual way” does not obviate the necessity for an acceptance of the risk by the insurer, where none of the terms of the contract are agreed upon, although there be a custom among agents in the locality to insure their own property by merely making a memorandum of the risk, reporting it to the company, issuing a policy accordingly, and spreading it upon an insurance register.
    Error to Saginaw; McKnight, J.
    Submitted June 5, 1896.
    Decided July 28, 1896.

      Assumpsit by Frederick C. Zimmermann against the Dwelling-House Insurance Company upon a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William G. Gage, for appellant.

      Hanchett & Hanchett,- for appellee.
   Moore, J.

The plaintiff was a local agent of the defendant at Saginaw, and had been for several years prior to the date of the policy sued upon in this case; and, at the time the policy was issued, there was another local agent representing the defendant in the city. On May 15, 1893, plaintiff wrote a policy in the defendant company, insuring himself in the sum of $1,500 on his household goods, $2-50 on his barn, $100 on his horse, and $150 on Inis vehicles, robes, feed, etc. Without notifying the company of this risk, he retained the policy, and the daily report, which is usually sent to the company, until May 20, 1893, claiming that his barn was not completed and ready for occupancy before that date. On that date he sent the policy and daily report, by mail, to the home office of the defendant, at Boston, Mass. These papers were received by the company on May 23, 1893. Before sending the policy, the plaintiff had indorsed upon it the words, “Kindly approve and return.” The property covered by this policy was totally destroyed by a large fire on May 20, 1893, about 6:30 o’clock in the evening. The fire started at about 4:30 p. m. ' The plaintiff notified the company of the loss May 24th, when the general agent, W. J. Nichols, arrived in the city to look after the losses sustained by the company in this large fire. No premium was ever paid or tendered by the plaintiff. The policy was never accepted by the company, and was never delivered or returned to the plaintiff. The company declined to pay the loss. The plaintiff sued the defendant, and the judge directed a verdict in favor of defendant.

It is claimed by the appellant that he was authorized to write this policy by W. J. Nichols, the general agent of the defendant, during a conversation between them in the city of Saginaw, in February, 1893. The conversation is described by the plaintiff as follows:

“I told him that I wanted to write a policy upon my' own goods, and he said: ‘Write it in the usual way.’ That is the answer he gave me. I think the conversation occurred at the Bancroft House.' It was on the east side of the river, anyway. The subject of the conversation was about business generally, and about insurance business in general. There wasn’t anything said about placing a policy upon my property immediately.”

The property which plaintiff proposed to write was not pointed out to Nichols, but the plaintiff told Nichols it would be his household goods and barn then building. On cross-examination, plaintiff testified: •

“At the time I had my conversation with Nichols, in February, 1893, I told him that the property I wanted to insure was my household goods and a barn I was then building. I didn’t tell him how much insurance I would take out. That is all there was to that conversation.”

The policy he wrote was written May 15th.

It is claimed that this conversation between plaintiff and the general agent of the company, in which the general agent of the company used the expression, “ Write it in the usual way,” supplemented by the writing of the policy and evidence that it is the. custom of insurance agents in Saginaw valley to insure their own property in the companies for which they are agents, in the same manner that they insure property of other persons, — i. e., “that the custom and usual way, in the city of Saginaw and valley, of writing policies upon an agent’s own property, at that time, was to make a memorandum of the ■risk; then he would make a daily report of the risk, and then a policy conforming to that, and spread it upon his insurance register,” — made a contract upon which the company would be liable, whether the policy was accepted at the home office or not. We cannot sustain that contention. When this conversation was held, the barn was not built. It was not finished until about. the 15th of May. No statement was made as to the value of the property to be insured, or for how much it was to be insured, or what rate of premium was to be paid. No date had been fixed for the commencement or termination of the risk. Giving the most liberal construction possible to the language used, and what was done, it did not constitute a mutual and valid contract, binding upon both parties. Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482.

In its logical order, the next question for consideration is: Did the writing out of the daily report and the policy, and its entry on the policy register, constitute a contract before the policy was approved by the company ? It is elementary law that an agent must not be personally interested adversely to his principal. Green v. Knock, 92 Mich. 26; Pittsburgh, etc., Iron Co. v. Kirkpatrick, Id. 252. An agent for receiving applications ceases to be an agent so long as he acts in a matter in which his personal interest is concerned. If he applies for insurance on his own property, as to that property he is no agent of the company. He cannot, by the familiar rule of law, as agent, represent antagonistic interests. 1 May, Ins. § 125, and cases cited. It follows reasonably, we think, that, if the agent cannot act for the company so as to bind it where he himself is an applicant for insurance, the company would not be bound until his act in writing the policy was approved by it. The record shows that, while the policy was written May 15th, for some reason it was not posted for mailing until May 20th, (and was not received until May 23d, three days after the loss occurred. The policy never was approved by the company, and no contract creating liability was made.

The judgment is affirmed.

The other Justices concurred.


text:
    PERKINS v. OLIVER.
    Judgment — Defenses—Res Judicata.
    A judgment in an action in tort to recover damages is not res judicata as to items of account introduced in evidence Qn the trial of such action in support of a defense based on the breach of a contract by plaintiff, where the question of plaintiff’s indebtedness to defendant was not involved in the litigation.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted June 11, 1896.
    Decided July 28, 1896.

      Assumpsit by Willis J. Perkins against Joseph W. Oliver for work done and material furnished. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Thomas F. McGarry and George F. Nichols, for appellant.

      Wolcott & Ward, for appellee.
   Moore, J.

Plaintiff sued the defendant, and declared •on all the common counts in assumpsit, and filed a bill of particulars embracing a great many items. Defendant pleaded the general issue, and gave notice, by way of defense, that the same cause of action had been litigated, and was res judicata, and also gave notice of recoupment and of set-off. The case was tried before the judge. The record and testimony, including the pleadings and the charge of the court, in the case of Oliver v. Perkins and Perkins, were offered in evidence. The trial judge made a finding that the matters involved in this suit were litigated by the same parties in the case of Oliver v. Perkins and Perkins, 92 Mich. 304, and found a verdict in favor of defendant. The plaintiff appeals, and insists that the questions involved in this case are yet open for litigation, and that he has a right to the judgment of the ■court in relation to the differences between him and the defendant. He admits that many of the items named in his bill of particulars were the subject of evidence in the prior suit, but insists that the only purpose for which testimony was given in relation to them was to determine whether or not the plaintiff was guilty of a breach of a contract which was involved in that litigation; that these items of account were not involved, either by the pleadings, or as items that could be taken into account by the jury in arriving at the amount of damages, in the prior case.

It is not necessary to review in detail what was involved in the case of Oliver v. Perkins, 92 Mich. 304, as an inspection of that case as reported can readily he made. It is sufficient to say that the case in 92 Mich, was an action sounding in tort to recover damages for the wrongful acts of the defendants. The plea was the general issue simply.

There is, then, nothing in the pleadings to indicate that the items involved in this case might have been litigated in the tort case. It becomes important, then, to determine what the record in the tort case shows was the purpose of giving testimony in relation to these items, and for what purpose it was considered. An examination of the record and all the testimony discloses that it was the claim of the defendants in the tort case that they were justified in summarily ending the contract they had with the plaintiff by a breach of it on his part. It was the claim of the plaintiff that he had not broken the contract, and, if he had, that the breach had been waived by defendants ; and all the testimony introduced in relation to these items bore upon the question as to whether the acts of the defendants were justified by the acts of the plaintiff. As has been before stated, in that case there was no notice of set-off or recoupment; and on the trial there was no claim by any one that the testimony in relation to these items was given as a basis for set-off or recoupment. It was not submitted to the jury for that purpose by the-charge of the court, and there is nothing to indicate that it was considered by the jury for that purpose; nor could it have been used for that purpose under the pleadings. The testimony developed that the plaintiff had assigned certain drafts and accounts to defendants; that remittances had been made to him upon them since said assignment, which were at the time of the litigation retained by him, he assigning as a reason that when they were received by him the defendants had his books, which were not produced until the trial, and that he did not know that it was money belonging to defendants. There was no attempt to determine in this litigation whether plaintiff owed defendants or not, and that question was not involved in the litigation.

In McKinney v. Curtiss, 60 Mich. 620, it was held:

“No judgment in any legal proceeding can be held a bar unless the claim of the party which has been presented for adjudication has been passed upon, or the party has had the right in such proceeding to have the merits of such claim adjudicated.”

In 2 Black, Judgm. § 504, it is said:

“ The doctrine of res judicata is plain and intelligible, and amounts simply to this: That a cause of action once finally determined without appeal between the parties on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal.”

In Jacobson v. Miller, 41 Mich. 93, the rule was stated to be:

“There are two matters in respect to which an adjudication, once made, may be conclusive: First, the subject-matter involved in the litigation; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject-matter in litigation.”

In the prior suit the jury were instructed that if the plaintiff was in default, and had violated the contract, he could not recover, unless they found that such violation had been waived by defendants; and the testimony was admitted as bearing upon that issue in the case, and for no other purpose was it admitted, or could it have been used. We do not think the cause of action sued upon here is shown by the record to have been litigated in any other proceeding.

Judgment is reversed, and new trial ordered.

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


author: Long, C. J.

text:
    RICHFIELD v. MICHIGAN CENTRAL RAILROAD CO.
    Contributory Negligence — Choice oe Hazards — Railroad Crossings.
    The rule which excuses one for acts which, under ordinary circumstances, would constitute contributory negligence, where they were committed in a sudden emergency in an effort to escape from imminent peril, does not apply where the perilous position was due to the negligence of the person committing such acts. So held where plaintiff’s intestate was killed in an attempt to cross a railroad track in front of a train, the approach of which, by the exercise of due care, she would have discovered before her situation became perilous.
    Error to Calhoun; Smith, J.
    Submitted June 9, 1896.
    Decided July 28, 1896.
    Case by Charles Richfield, administrator of the estate of Emma J. Richfield, deceased, against the Michigan Central Railroad Company, to recover damages for the death of his intestate, alleged to have been caused by defendant’s negligence. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Hulbert & Mechem, for appellant.

      John G. Patterson (P. T. Golgrove, of counsel), for appellee.
   Long, C. J.

This action is brought by the administrator to recover damages for the alleged negligent killing of Emma J. Richfield. The plaintiff’s intestate, on March 3, 1894, was riding in a carriage with a Mrs. McCuen. The horse and carriage were owned by Mrs. McCuen, and she was driving. The carriage was a single one, without & top. They had been driving for some time about the streets of Battle Creek, and finally turned into West^Main street, and drove along that street, crossing the bridge over Battle Creek river, and turned into Tompkins street. Defendant’s railroad track crosses Tompkins street about 71 feet distant from West Main street. As the women were about half way from West Main street to the railroad crossing, as claimed by the plaintiff, the train on defendant’s road came from the west at a high rate of speed, the witnesses putting it from 40 to 60 miles an hour. The horse had been driven on a trot across this bridge, and up to within 30 or 40 feet of the railway crossing, when the women discovered the train approaching the crossing. No attempt was made to stop the horse, but, instead, they increased its speed, and attempted to cross the track before the approach of the train. The horse crossed uninjured, but the engine struck the carriage between the wheels, throwing the women out, and killing plaintiff’s intestate, and injuring Mrs. McCuen so that she died on the next day.

On the trial in the court below, the question of defendant’s negligence was fully and fairly submitted to the jury, and no question is raised in this court upon that branch of the case; but it is insisted by counsel for defendant that, under the facts shown, it was the duty of the court to take the case from the jury, upon the ground of the contributory negligence of Mrs. McCuen, the driver of the horse, and of Mrs. Richfield. While the record is quite voluminous, many witnesses having been examined in the case, the facts are few which need be discussed. It is shown by plaintiff’s own witnesses that the two women drove along these highways, and approached within a few feet of this railroad crossing, without giving any attention to the railroad track or the approach of a train; and, when the train was from 200 to 500 feet distant, it was seen by them, and they at once urged their horse forward, with the purpose of crossing in front of the train. Counsel for plaintiff contend that this was not such negligence upon the part of these women as should preclude a recovery, for the reason that their view was obstructed until they had nearly approached the entrance upon Tompkins street, by buildings and other obstructions, which rendered it practically impossible for them to see or hear the train until it was within about 500 feet of this crossing: and, again, that, at the point where they first discovered the train, there were obstructions upon the side of Tompkins street, which made it impossible for the horse and carriage to safely turn around, and that, had the engineer been on the lookout, he could have discovered them when nearly 500 feet away, slowed down his engine, and made it possible for them to cross safely in advance of the train.

The accident happened about 3 o’clock in the afternoon, and the engineer testified that he did not see the women until within about 165 feet of them. The train was the Boston special, one of defendant’s rapid trains. Both women were residents of Battle Creek, and were familiar with the streets, accustomed to riding about them, and presumably knew that Tompkins street led across defendant’s track. There was every indication there that it was a railroad crossing, and their horse, according to the testimony of plaintiff’s witnesses, was manageable. The testimony shows that, while they were crossing the bridge, they were laughing and talking, giving no attention to their surroundings. They passed several parties before reaching the bridge, who were called as witnesses, and testified that thej^ heard the train before the women reached the bridge, and saw the train as they were on or just crossing it. There are gates on West Main street, some 500 feet distant from where Tompkins street leads into it; and some of the witnesses testified that, before these women turned off of West Main street into Tompkins street, these gates were let down; and all witnesses, both of plaintiff and defendant, testified that they heard the noise of the train before it came into West Main street, or saw it before it reached Tompkins street, or heard the engine bell or whistle, or heard the bell on the gates, or saw the gates were down before tbe train had crossed West Main street; but, apparently, the women saw or heard nothing until within 30 or 40 feet of the crossing. As they reached that point, a man standing upon the bridge, seeing the approaching train, shouted to them to “look out there,” or “hold on there,” and then, for the first time, they appeared to realize their danger. This witness says that the train was then about 213 feet from the Tompkins street crossing. There is no claim by the plaintiff that the horse was beyond control.

The court charged the jury upon this question as follows:

“If you find as facts that the plaintiff’s intestate and her driver could not safely stop their horse or safely turn around at the time the train came in sight and they were apprised of the danger, and that they were not negligent in being where they were, and that they exercised ordinary care and reasonable diligence under the circumstances in attempting to cross the track and thereby escape injury, it would not be such negligence on their part as to prevent recovery in this suit. * * * If you find that the ladies approached this crossing with ordinary and reasonable care and caution at the time in question, and that they exercised ordinary care and prudence in attempting to avoid the accident, they were not guilty of contributory negligence in the premises. The plaintiff’s intestate is not chargeable with contributory negligence if she was injured in an effort to escape from imminent peril primarily caused by defendant’s neglect. Often acts in sudden emergencies and unexpected peril do not amount to contributory negligence which would be contributory negligence under other circumstances. The law makes allowance for fright and mistakes made in emergencies created by the defendant without the fault of the intestate, and you will determine the question from all the facts and circumstances of the case as disclosed by the evidence. * * * If you find that these ladies had an uninterrupted view of the track and train approaching, and the distance of the train from the crossing, as well as their own distance from the track in crossing, were such as, under all the circumstances of the case, would justify a reasonable person in the belief that, by the use of ordinary care and prudence, the crossing could be made, and the defendant did not approach the crossing with its train under control, but in a reckless manner, and did not use care in slackening the speed of the train when the danger was seen, and the ladies were without fault or negligence on their part, then defendant would be guilty, and the plaintiff should have verdict. * * * ”

We think the facts in the case did not warrant this charge. But counsel for plaintiff contend that the women were suddenly frightened, being put in a place of deadly peril, which was caused by the defendants negligence; that their only hope of safety was to cross the track; that the law makes allowance for persons in such a crisis, and will not hold them guilty of such negligence as to defeat the action if they do not select the very wisest course; and that a mistake of judgment under such circumstances would not constitute contributory negligence. We think this proposition would have been well stated if these women had been put in a place of peril by the defendant’s negligence, as in the case of Chicago, etc., R. Co. v. Miller, 46 Mich. 532. There the plaintiff, when within a few rods of the track, stopped his team, and listened, and, as he approached the track, exercised due care. The highway was narrow, on account of the grade. Not hearing a train approaching, he drove forward, though his view was obstructed down the track by the high embankment along the. roadside. When within about two rods of the track, he saw an approaching train, and whipped up his horses, and attempted to make the crossing. Hewas struck, and severely injured. That case was affirmed in this court, for the reason that the plaintiff had exercised due care and caution in approaching the track, and that it was not his fault that he was placed in a position of danger, but the fault of the defendant company in failing to ring its bell or sound the whistle. It was shown that the first warning the plaintiff had of the approach of the train was when he was within about two rods of the crossing, upon a narrow highway, and the railroad track extending diagonally across the highway; and it was further shown that he was driving a pair of spirited colts, which he claimed would not stand at the approach of a train, and, by whirling around, he would have been precipitated on the track in front of the engine. The rule was settled in that case that where, by the negligence of the defendant, the plaintiff was put in a place of danger, and if, in an attempt to extricate himself from it, he did not take the best hazard, he would not be charged with contributory negligence. This, as we understand it, is as far as the rule extends. In the present case, however, there is not a particle of showing that the women exercised the least care in approaching this crossing. They were familiar with the streets and the crossing, and yet drove along, laughing and talking, and apparently giving no heed to the approach of a train." If they had been exercising any care, they would have heard or seen what others saw and heard. They were not drawn into a position of peril by the negligence of the defendant, but, by their own negligence, had placed themselves in such a position, and, being there, took their chance of crossing in front of the train. We think the court should have directed a verdict in favor of the defendant.

The judgment below will be reversed, and no new trial ordered.

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


text:
    PEOPLE v. SCHILLING.
    1. Bastardy — Evidence.
    In.a prosecution for bastardy, evidence of acts of intercourse other than that charged in the complaint is admissible as bearing upon the probability of the particular act having occurred as charged
    2. Same — Instructions.
    But an instruction to the jury in such case, so framed as to justify the inference that the respondent may be convicted upon proof of some other act of intercourse than that charged, is erroneous.

      Certiorari to Kalamazoo; Buck, J.
    Submitted June 19, 1896.
    Decided July 28, 1896.
    Willis E. Schilling was convicted of bastardy. Reversed.

      A. M. Stearns and Howard & Boos, for petitioner.

      Frank F. Knappen, for the people.
   Moore, J.

This case was brought here by writ of certiorari. The respondent was convicted of the offense of bastardy, the complaint being made by Libbie I. Co-burn, who charges that the respondent ‘ ‘ did beget her with child, in the township of Pavilion, in the county of Kalamazoo, on or about the 1st day of November, 1893, at the house of Daniel Schilling, father of the said Willis E. Schilling, whereupon,” etc. Upon the trial of the cause, against the objection of the respondent, complainant was allowed to testify not only to the act of intercourse stated in the complaint, but to four or five other acts of intercourse at other places and times than the one charged in the complaint. The complainant was the only witness on the part of the people. The respondent was sworn in his own behalf, and denied any act of intercourse at any time with Miss Coburn.

The trial court was requested to charge that the respondent could only be convicted of being the father of the child in question from intercourse with the complainant at the time, charged in the complaint. This he declined to do, and charged the jury:

“I further instruct you in requests handed me in behalf of the respondent: The court instructs the jury that they have no right to consider any question of possibility as to whether Willis Schilling may be the father of the child in question from intercourse with complainant at any time other than that charged in this case. They will determine the question solely on the evidence of whether he is the father from intercourse with complainant at the time, particular times, charged.”

The court also charged them:

“You are to believe as jurors just what you would believe as men. You are not to believe as jurors what you do not believe as men. And if, as the result and effect of all the testimony upon your minds, you believe that the respondent is the father of the child, your verdict should be for the people. If, on the other hand, you do not .believe from the evidence that the respondent is the father of the child, you should find for the respondent.”

Exceptions were taken to the admission of the testimony and to the charge of the court. A great many exceptions were also taken on the examination of the witnesses, which, in view of the disposition we shall make of the case, we do not think it necessary to discuss. It will be necessary only to refer to those in relation to the admission of the testimony of the several acts of intercourse and to the charge of the court.

In the recent case of People v. Keefer, 103 Mich. 83, it was held that, in a prosecution for bastardy, evidence of previous acts of intercourse between the parties is competent. It is our understanding that this proof is permissible as bearing upon the question of the probability of the intercourse having occurred as stated in the complaint, and that it may be considered for that purpose, and that it is not allowed for the purpose of showing a substantive act at some other time or place from that stated in the complaint, for which act the respondent could be convicted. The admission of this testimony was not error.

We think, however, the charge of the court, inasmuch as it would allow the conviction of the respondent for some other act of intercourse than the one charged in the complaint, was error. Hull v. People, 41 Mich. 167.

The judgment is reversed, and a new trial ordered. See Cross v. People, 10 Mich. 24; People v. White, 53 Mich. 537.

The other Justices, concurred.


text:
    MASTENBROOK v. ALGER.
    1. Equity Jurisdiction — Allegation of Damages.
    A court of equity has jurisdiction, at the suit of a lower proprietor, to enjoin an upper proprietor from diverting the waters of a stream, where it appears from the bill that the injuries complained of materially lessen complainant’s enjoyment of his property, and that he is remediless at law, although it is not alleged that he is damaged to the amount of §100.
    3. Watercourses — Maintenance of Dam — Injunction.
    An upper proprietor on a stream, who has acquired a prescriptive right to maintain a dam for the diversion of water for domestic purposes, should not be enjoined from maintaining such dam because he has used it to divert water for irrigation purposes, in violation of the rights of a lower proprietor, but,should merely be restricted in the use of the stream to the limits of his prescriptive right.
    Appeal from Kent; Adsit, J.
    Submitted June 10, 1896.
    Decided July 28, 1896.

      Bill by Jacob'Mastenbrook against Frank C. Alger to ■enjoin the diversion of a watercourse. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      John M. Mathewson, for complainant.

      Charles L. Wilson and Myron H. Walker, for defendant.
   Moore, J.

Complainant filed a bill, as the lower proprietor of land, alleging that the defendant, who was an upper proprietor, had constructed a dam across a water way which runs through complainant’s land, the effect of which was to divert the water from its natural channel onto defendant’s land, where it is wholly absorbed, and that none of the water is allowed to come to the land of the complainant. The bill contains no allegation of damages, but it does aver that complainant has no other running water on his farm for his stock; that the stream •of water runs near his house and barns, and is of great benefit to him for his natural purposes; that he has the •equitable right to have the water flow across and upon his land; that he has suffered damages, and has been deprived of the equitable right to the use of the water by defendant; and that he is remediless at law. The defendant admits that he constructed a dam on his land, but denies that the dam prevents the flow of any water to the lower proprietor, but claims that one-half of it is allowed to flow to the lower proprietor. He claims that his dam is in substantially the same place as was a dam erected in 1852 or 1853, and which had been maintained long enough to give him a prescriptive right to maintain it; that onerhalf of the stream was diverted by the erection of the dam in 1852 or 1853; and that he now has the right to divert one-half of the waters of said stream, and use them for irrigation or any other purpose.

There was a large amount of testimony taken in the case, and Judge Adsit made a decree in which he found that the complainant was entitled to have the stream of water flow across his land for domestic purposes and stock, except as said stream may be lessened by the use by defendant of water for domestic purposes and stock. He further found that the volume of water furnished by said stream is barely sufficient to supply the stock of complainant, defendant, and other riparian proprietors along the stream with water for their natural wants and for domestic use, and that there is not a sufficient volume of water so that the defendant can use any part thereof in the irrigation of his land. He found that the defendant had obstructed the flow of water in said stream, and used it for the purpose of irrigation, and that the appropriation of water by the defendant was contrary to the rights of complainant. He made a decree perpetually enjoining the defendant from appropriating any of the water to the purposes of irrigation, and from using the water for any other than ordinary purposes, in supplying the natural wants of the defendant, including the use of the water for domestic purposes in connection with his home and the use of his farm. He also made in the decree a direction that the defendant forthwith remove any and all dams and obstructions made or maintained by him upon his land, interfering with, obstructing, or limiting the flow of said stream upon said lands of complainant. From that decree the defendant appeals.

It is claimed by defendant that, inasmuch as there is no allegation in complainant’s bill that he is damaged to the amount of $100, the bill did not confer jurisdicticn on the court, and should have been dismissed. We do not think this contention can be sustained. Rowland v. Doty, Har. Ch. 3; White v. Forbes, Walk. Ch. 112.

Something more than 500 pages of testimony was taken in the case. It would not be profitable to make an analysis of it here. A careful examination of the testimony shows that the decree of the learned judge was warranted by the facts shown, except in one particular. The record discloses that in 1853 or 1853 a dam was put across this stream, on the premises of defendant, for the purpose of diverting a portion of the stream to the house and barns occupied by the then proprietor, for the purpose of supplying the natural wants of the proprietor, including the use of the water for domestic purposes and for stock, in connection with his home and farm. This dam was maintained, either at, that place or at another, sufficiently long so that a prescriptive right is acquired to maintain it for the purpose of furnishing a supply of water for domestic purposes. The use of the water by defendant for purposes of irrigation is entirely unwarranted. It is not until very recently that an attempt has been made to use the water for that purpose. In view of the fact that this dam was maintained so long for the purpose of conveying water to the house and barns of defendant, which is a great convenience to him, and the effect of removing the dam would do away with that valuable right, and compel the defendant to carry water a long distance, we think the decree ought to be modified in that particular. The defendant should be allowed to have the use of so much of the water in said stream as shall be necessary for ordinary purposes, in supplying his natural wants, including the use of the water for domestic purposes and for stock, in connection with his home and farm, and for no other purpose; and he ought to be allowed to maintain such a dam or obstruction in said stream as would enable him to convey the water to his house and barns in sufficient quantities for said purposes, and for no other purpose. The decree is modified to this extent, and affirmed in all other particulars'; complainant to have costs in lower court, neither party to have costs here.

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


author: Montgomery, J.

text:
    WILLIAMS v. ROGERS.
    1. Landlord and Tenant — Letting on Shares — Partnership.
    An agreement whereby the owner of a farm rents it for a term of years, and furnishes to the tenant the stock on the farm, and one-half the seed grain, and pays one-half the expenses of carrying on the farm, exclusive of charges for labor, which is furnished and paid for by the tenant, the owner receiving from the tenant one-half the products, does not constitute the parties copartners.
    2. Same — Growing Crops.
    The tenant in possession under- such agreement is not entitled to any part of grain previously sown, although harvested during his tenancy.
    3. Same — Special Services — Instructions.
    Whether such tenant is entitled to remuneration from the owner for delivering milk from the farm to regular customers is properly left to the jury, under instructions that, if it was understood by the parties to the agreement that the tenant’s obligation to do the work included this service, he could not recover therefor, but that if it was not so understood, and the work was performed by the tenant under a special arrangement, at the request of the owner, he should be allowed what such services were reasonably worth.
    4. Tenants in Common — Conversion—Demand.
    An assertion of ownership in entirety by a tenant in common in possession of personal property, as against his cotenant, coupled with a refusal to allow the latter to hold at all, amounts to a conversion, and the excluded tenant may maintain an action therefor without making a formal demand.
    5. Same — Assumpsit.
    The right of a tenant in common to maintain assumpsit against his cotenant for a conversion of the common property is based ux>on a violation of the contractual obligation, and it is not essential to the existence of the right that the goods converted should be susceptible of division by-weight or measure.

      Error to Hillsdale; Lane, J.
    Submitted June 11, 1896.
    Decided July 28, 1896.

      Assumpsit by John B. Williams against Eli B. Rogers upon claims growing out of an agreement for working defendant’s farm on shares. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. A. Lyon, for appellant.

      S. D. Bishopp an I S. F. Dwight, for appellee.
   Montgomery, J.

Plaintiff recovered a judgment on a claim of balance due arising out of transactions between the parties while plaintiff was an occupant of defendant’s farm. Testimony on the part of the plaintiff tended to show that he entered into possession of the defendant’s farm on the 27th of January, 1891, and continued to occupy it until March, 1892; that when he went into possession he expécted to make a lease at once, upon terms which had been substantially agreed upon, but not reduced to writing, but that, after moving upon the farm, the defendant suggested that the lease be made to commence March 1st, which was done. In the meantime the plaintiff did the chores, fed the stock, milked the •cows, and took charge of defendant’s milk wagoii, and delivered milk to customers in the city of Hillsdale. These services he seeks to recover for. On or about the 1st of March a written agreement for the future occupancy of the premises was entered into, the material portions of which are as follows:

“The party of the first part [defendant] rents his farm to second party [plaintiff] * * * for the term of five years, with the privilege of terminating this contract at the close df any year by either party giving 90 days’ notice in writing prior to the 1st day of March in any of ■the said years. First party is to furnish with said farm ■one-half of all seed and grain, and pay one-half of the expenses necessary to carry on said farm, except the team and man labor, and furnish cows and stock now on the farm, reserving the right to sell and dispose of the same, as both parties may deem best, at any time during the continuance of this lease. Second party is to do all the team labor and man labor and to furnish the team, and to do all the work in season, and in a good, workmanlike manner. Second party is to furnish one-half of all seed and grain sown on said farm, and pay one-half of the taxes assessed on said property and premises during the continuance of this lease, and to furnish all farm implements necessary to carry on said farm in a good, workmanlike manner. All stock, teams, and other animals raised and kept on said farm to be kept on the undivided grain and produce. All stock, fowls, and other animals raised on said farm, and all grain and produce, and in fact everything raised and grown on said farm, to belong to first and second parties, share and share alike; that is, first party to have one-half and second party to have one-half. All stock, grain, and other property to be divided between first and second parties when both are present or represented. Both first and second parties are to have milk for family use out of the undivided milk.”

After the execution of this contract, plaintiff continued to deliver milk to the customers to whom milk had previously been delivered for defendant, and turned the money over to defendant, and he also charges in his account for the services in peddling this milk. The lease was terminated at the end of the first year, and plaintiff seeks to recover for his proportion of grain and other property left upon the farm; his right to the same having, as it is claimed, been denied by the defendant.

The defendant contends in this court:

First. That, under the lease in question, the parties became copartners, and that suit at law does not lie to recover until there has been an accounting.
Second. That the circuit judge erred in permitting the plaintiff to recover for the wheat sown upon the land in 1890 and reaped in 1891.
Third. That, under the evidence in the case, the plaintiff was not entitled to recover for services rendered prior to the 1st of March, as it is claimed his own testimony shows that such services were rendered without any expectation of charging for them.
Fourth. That there was error in permitting plaintiff to recover for services in delivering defendant’s share of the milk after March 1st.
Fifth. That there was no evidence of a sufficient demand to show a conversion of the property by the defendant.
Sixth. That there was error in permitting a recovery on account of two calves that were left on the farm, and taken possession of by defendant.

Other questions are presented, which we deem it unnecessary to discuss, as they are not likely to arise on another trial.

We think the instrument in question does not constitute the parties to this suit copartners. This was a mere letting on shares, and the parties were, as to the products of the farm, constituted cotenants. It is very clear that no intention to form a copartnership existed.

We think the court erred in submitting to the jury the question of whether the parties intended that the wheat sown upon the land in 1890 was within the terms of the contract. The contract provides that everything raised and grown on said farm is to belong to first and second parties, share and share alike. This is to be construed with reference to the provision that the second party is to furnish one-half of all seed and grain and to pay one-half of the expenses, etc. We are all of the opinion that it was not contemplated that the plaintiff should have a share in grain vihich he did not himself sow. If there were more doubt about this question, we think the evidence pretty clearly shows that the parties themselves have so construed the contract. Plaintiff made a claim for a share in the unharvested wheat which was sown in 1891, but not reaped at the time he left, in March, 1892. The claim was assented to and an adjustment made, and the value of his interest credited upon a chattel mortgage held by the defendant against him. It is very clear that the parties did not intend that wheat harvested during the term, although previously sown, and wheat sown during the term, but harvested thereafter, should both be subject to a division.

We have examined the record with care, and are not. prepared to say that there is not some evidence which tends to show that the services rendered prior to March. 1st were rendered under such circumstances as would entitle plaintiff to recover therefor. It is unnecessary to set out the testimony at length in the opinion.

The defendant contends that under the lease in question, in view of the fact that the lease was of a farm which had been used as a dairy farm, the plaintiff was not entitled to compensation for delivering milk from the farm to the city customers. The court charged the jury as follows:

“If you find that it was understood between these parties that this milk should not be divided upon the farm from day to day, as it was milked, but should be divided in this way, by selling it, and the proceeds of it divided, then that should control. If it was so understood that it should be divided in this way between the parties, and that no compensation should be allowed Mr. Williams for it, because it was understood between them that his obligation to do the work included this arrangement, then he should not be allowed for it; but if it was not so understood, and this was an arrangement made afterwards, whereby Mr. Williams, at the request of Mr. Rogers, agreed to deliver this milk for him, then he should be allowed what it would be reasonably worth to do that.”

We think this charge fairly presented the question to the jury, and that there was no error in it.

We think that there was sufficient proof to warrant the submission to the jury of the question of whether the defendant excluded the plaintiff from his rights in the property as cotenant, and denied his right to the same. If the jury found this fact, no technical demand was necessary. Loomis v. O’Neal, 73 Mich. 582.

As to the contention that the plaintiff is not entitled to recover for the property not susceptible to be divided by weight or measure, the rule is established in this State that an assertion of ownership in entirety by a tenant in common in possession of personal property, as against his ■ cotenant, coupled with a refusal to allow the latter to hold at all, amounts in legal effect to a conversion. See Bray v. Bray, 30 Mich. 479; Grove v. Wise, 39 Mich. 161. It is contended that the cases which have permitted a recovery in assumpsit for a conversion by a cotenant— Fiquet v. Allison, 12 Mich. 330 (86 Am. Dec. 54), and Loomis v. O’Neal, 73 Mich. 588 — are cases in which the property was divisible by weight or measure. But an examination of these cases discloses that the fact of the divisibility of the articles was deemed -important as bearing upon the question of whether there was a conversion. But the right to maintain assumpsit in any case óf a conversion by a cotenant rests upon the fact that the parties maintain contractual relations, and that it is a violation of duty arising out of contract for the cotenant to convert property, which fact distinguishes the conversion from the case of a conversion by a trespasser, in which, before assumpsit can be brought by waiving the ■tort, it must be shown that the property has been converted into money or money’s worth.

We think there are no other questions-requiring discussion.

The judgment will be reversed, and anew trial ordered.

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


text:
    VAN NORMAN v. GRAND RAPIDS PIANO CASE CO.
    Contract for Manufacturing — Accounting—Expenses.
    Under a contract providing that the patentee of a process for the manufacture of furniture should assign to a manufacturing company his title to the patents in consideration of the comx>any’s agreement to manufacture and market the furniture thereunder, and providing, further, that an annual inventory should be taken of all the property and liabilities of the business, and that “of the profits and losses over and above all expenses which may have accrued during the year” the patentee should be credited or charged with 25 per cent., a pro rata share of the general expenses of the comxiany for rent, superintendence, office expenses, use of machinery, insurance, etc., cannot be charged to the furniture business, the same not having been caused by or incurred on account thereof.
    Appeal from Kent; Grove, J.
    Submitted June 12, 1896.
    Decided July 28, 1896.
    Bill by Abram R. Van Norman against tlie Grand Rapids Piano Case Company for an accounting. From a decree for complainant, defendant appeals.
    Affirmed.
    Taggart, Knappen <& Denison, for complainant.

      Butterfield & Keeney, for defendant.
   Long, C. J.

This is a bill for an accounting upon a contract between complainant, Van Norman, and defendant company, dated April, 1894. Complainant is the inventor of a process for the manufacture of toy and household furniture, and held patents upon the same. A contract was entered into between complainant and defendant for the purpose of manufacturing these articles, which in substance reads as follows: Complainant agrees to assign to defendant full title and ownership of certain and all United States patents secured, or hereafter secured, covering the process of constructing toy and household furniture, and all patents he may obtain in the future upon any article manufactured from wood. Defendant agrees to manufacture and market said furniture under said patents according to the market demand; and if defendant fails to manufacture for 12 consecutive 'months, said patents shall revert and be transferred again to complainant. ‘ ‘ Proper books of account, containing all the transactions of said furniture business, shall be kept, and on the 1st day of January in each year an inventory of all the property and liabilities of said business shall be taken; and of the profits and losses over and above all expenses which may have accrued during the year, said Van Norman shall be credited or charged with 25 per cent, on the books of record of said business.” If complainant shall have a credit balance on said books, it shall be paid to him as soon as all other debts of the business shall have been paid.

Defendant company had for its principal business the manufacture of piano cases, and the toy furniture business was carried on in connection with the company’s other business, and in the same building. January 1, 1895, a statement of the furniture business for the preceding year was made, which shows the total sales, including inventory of stock on hand, to be $2,860.56. The total expense deducted shows the net profit of the business to be $7.26. Among the items of expense is one reading as follows: “ Pro rata expense for rent, superintendence, office expenses, rise of machinery, insurance, etc., $500.” It is to this item that complainant makes principal objection, and attacks it in detail, though several minor items are objected to also. Defendant claims that the toy furniture business was about 4% per cent, of the firm’s total business; that the total expense of the company was about $13,000; that the toy furniture business should have been charged with a pro rata of this amount, or 4-j- per cent., but through an oversight it was charged but $500, or not quite 4 per cent. Upon the hearing in the court below a decree was entered in favor of complainant, finding that the item of $500 was an improper one, and that the total profit' of the business was $507.26, of which complainant was entitled to 25 per cent. Tim case comes to this court upon appeal by defendant.

It is quite apparent from the record that the items making up the $500 charge, which is for “pro rata expense for rent, superintendence, office expenses, use of machinery, insurance, etc.,” were not caused by or incurred on account of the toy furniture business. We think it was not within the contemplation of the parties when the contract was entered into that the complainant was to be charged with those items. The defendant was to have three-quarters of the profits. The complainant put in his patents, and was to receive only one-quarter of the profits. There were charged in the general account all the labor and all the material which went into the business. After these charges were made, there was a. profit shown of $507.26, excluding the $500 charge, and of which amount complainant was entitled to 25 per cent. We do not deem it necessary to go into the details of these charges, as we are satisfied the court below was not in error in holding that they were no proper part of the account under the contract.

We find no error. The decree of the court below must be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J..

text:
    HARPER v. CITY OF DETROIT.
    1. Railroad Crossings — Separation oe Grades.
    Although an agreement between a city and a railroad company for the construction of a viaduct to carry a street across the track is for the purpose of obtaining a right of way over the track where there is no existing right of way, it is none the less subject to the provisions of Act No. 92, Pub. Acts 1893, and is not enforceable until the damages to abutting owners are fixed by judicial proceedings, or by compromise, under section 3 of the act.
    2. Same — Damages.
    The award of damages in an action by an abutting owner for injury to his land from a change of grade in the street for the purpose of carrying it across a railroad, made without a prior ascertainment of damages as contemplated by Act No. 92, Pub. Acts 1893, should be in gross, and not merely for the damage which has already accrued, since the statute contemplates an award in gross in proceedings instituted thereunder.
    Error to Wayne; Hosmer, J.
    Submitted June 12, 1896.
    Decided July 28, 1896.
    Case by Ered B. Harper against the city of Detroit for injuries to property caused by the erection of a viaduct. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      T. T. Leete, Jr. (Jasper O. Gates, of counsel), for appellant.

      John J. Speed, for appellee.
   Montgomery, J..

Plaintiff is the owner of the legal title to lot 78, on the south side of the Boulevard in the city of Detroit. On the west side of plaintiff’s lot is a side track of the Detroit, Grand Haven & Milwaukee Railroad Company. Plaintiff bought the lot in 1894 for the consideration of $1,400. At the time of his purchase the Boulevard had not been extended across the railroad company’s grounds, but a proceeding was pending for the opening of the Boulevard, and a grade crossing over the tracks. A favorable verdict had once been rendered, but was afterwards reversed by this court, at the June term, 1892 (93 Mich. 58), and a new trial ordered. Before the case was again brought to trial, Act No. 92, Pub. Acts 1893, was enacted and became a law. On the 10th of July, 1894, an agreement between the railroad company and the city was entered into, and ratified by the common council, which agreement recited that the commissioners desired to secure a right of way, and that proceedings were pending in the recorder’s court for that purpose, and proceeded to agree upon the terms, the railroad company first granting the right of way; the railroad company also agreeing to construct a viaduct, and the parties agreeing that the expense of maintenance and repair of so much of the viaduct as covered the right of way of the railroad company should be borne by the company, and the city agreeing that, within 30 days after the verdict of condemnation had been rendered in the recorder’s court, it would pay the railroad company $1,500 for the right of way, and $13,869.59 for constructing the viaduct. The viaduct or bridge was constructed across the right of way, and the approach to it, in front of plaintiff’s lot, was built with stone foundation columns, iron beams and girders, with roadway, walk, railing, and fence. The viaduct was about 20 feet high in front of plaintiff’s lot, and occupied 50 feet in width of the Boulevard. To the east of plaintiff’s lot 210 feet, it approached within 38 feet of the lot lines. The sidewalk line, as established by the commissioners of parks and boulevards, was 24 feet from the lot line. The sidewalk proper was 6 feet, making the outside line of the walk 30 feet from the lot line. There was testimony tending to show that the construction of this viaduct and approach was a serious damage to the plaintiff’s abutting property. Indeed, the circuit judge stated, in directing a verdict for the defendant, that the fact that the viaduct was an injury to the property was established, but evidently proceeded upon the view contended for by the city counselor here, — that the damages which were originally paid for the highway or boulevard in front of plaintiff’s lot included all damages which might result from changes of grade which the municipal authorities should determine were necessary or proper for the making or improving of the way; relying on the case of City of Pontiac v. Carter, 32 Mich. 164. Plaintiff’s counsel, on the other hand, contend that the case should be ruled by Schneider v. City of Detroit, 72 Mich. 240.

Whether the case may be distinguished from Schneider v. City of Detroit we deem it unnecessary to determine. By the first section of the act of 1893, above referred to, it is provided that—

“ Where any railroad crosses, or shall hereafter cross, any public street or highway, the separation of the grades at such crossing, by carrying such street or highway either over or under such railroad or railroads at the point of intersection, may be effected as follows.”

Here follow the provisions for agreement Detween the parties. Section 2 contains the provision that “no such agreement shall be enforceable until the damages referred to in section 3 of this act are fixed by judicial proceedings, or by compromise, under said section 3.” Section 3 provides that, when the common council of any city shall have entered into any such agreement, it shall be authorized to settle or compromise with any person having an interest in any lands abutting on that portion of the street or highway within the city of which the grade is to be changed according to the said agreement, and which may be damaged by the proposed change of grade. It further provides that, when an agreement cannot be effected, judicial proceedings may be taken to determine the necessity, and to award damages.

We think the proceedings for the separation of the grades should have been taken under this act, which was intended for the protection of owners of property abutting upon a highway, an injury to which would result from a separation of the grades. It is said hy defendant’s ■counsel that this act has no application, as the bridge in ■question was built in order to obtain a right of way, and where there had been no existing right of way. If this contention is sound, it would follow that if an agreement granting a right of way had been made on one day, and the agreement for separation of grades on the next, there would be liability on the part of the city, whereas, if both agreements are embodied in one instrument, no liability arises. We do not think the statute requires ■such a narrow construction. The railroad crosses the highway provided for in this agreement, and a separation ■of grades is also provided for in the agreement, and we think it is within the terms of the act.

A question was raised as to whether the award of ■damages should be in gross, or should only be for the ■damage which has already accrued to the use of the property. The statute of 1893 contemplates that, where such crossing is made, the damages shall be awarded once for all in that proceeding, and we think, whatever the rule might be otherwise, that where an action is brought to recover damages for failure to comply with this statute, by analogy, the rule provided by statute should control.

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

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


text:
    DAWSON v. PETERSON.
    1. Pleading — Amendments.
    It is within the discretion of the trial court to permit an amendment of the pleadings, in an action for professional services brought by D. and Gr. as copartners, so as to show that the services were in fact performed by the firm of D., W. & G., and that the claim therefor has been assigned to the plaintiffs.
    3. Evidence — Proof of Foreign Laws.
    A sufficient foundation for the introduction of a volume in proof of the laws of a foreign country is laid by the testimony of a barrister and solicitor of such country that it is a volume of the statutes commonly admitted and used as evidence in the courts of his country.

    3. Confliot of Laws — Professional Services — Compensation.
    A contract for professional services between a citizen of this State and a foreign attorney will, in the absence of a special agreement as to compensation, be governed by the rate fixed by statute in the country in which the contract is made and is to be performed.
    Error to Wayne; Carpenter, J.
    Submitted June 12, 1896.
    Decided July 28, 1896.

      Assumpsit by Herbert J. Dawson and another against Henry M. Peterson for professional services. Prom a judgment for plaintiffs, defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      T. T. Leete, Jr., for appellees.

       The subject of proof of foreign laws is considered in an extensive note to State v. Behrman, (N. C.) 25 L. R. A. 449.

   Long, C. J.

Plaintiffs are the successors of the firm of Dawson, Weir & Greenheizen, barristers at Petrolia, Ontario. The defendant resides in Detroit, this State, and owned a small tract of land at Petrolia, which was being used for oil wells. On November 16, 1892, defendant went to Petrolia to look after his property, and found a man by name of McKenzie tearing down and removing the line fence between himself and defendant, under the claim that the fence was not on the division line, and insisting that the true line was some 12£ feet further over upon what defendant claimed as his land. Defendant called upon the firm of Dawson, Weir & Greenheizen, and insisted that he would stop the removal of the fence, and, as plaintiffs claim, was then informed that it could be done only by injunction, which was an expensive remedy; that defendant insisted, and the papers were prepared for what is termed an “ad interim injunction,” continuing for eight days. Defendant was then advised of the steps necessary to be taken and the proceedings to be commenced. The ad interim injunction was obtained, and within the eight days the plaintiffs prepared the affidavits for a continuance of the injunction, and also affidavits in answer to those filed by Mr. McKenzie. The cause was partly argued at Toronto, then moved to London, and from there to Toronto again, and finally there closed up and decided in favor of the plaintiff in the case. Counsel was engaged, and the engagement ratified by letter from the defendant. The barristers were advised also by letter from defendant to push the case, and win it at all hazards. After judgment at Toronto, an appeal was taken to the divisionary court, and there reversed. This action is brought in the Wayne circuit court to recover for moneys expended by the barristers for the defendant, and for fees and charges in the conduct of the case.

It appeared upon the trial that the services were rendered, or partly rendered, by the firm of Dawson, Weir & Greenheizen, but this fact was not set out in the pleadings, or any assignment of the claim stated. The court permitted an amendment of the pleadings, under objection, and proof was then offered and received of an assignment of the claim to plaintiffs. This amendment was within the discretion of the court, which was properly exercised under the statute of amendments.

It is claimed that the charge for the services rendered was in accordance with the rates established by the statute of Ontario. To prove this, Mr. Weir, a barrister and solicitor of Ontario, was called, and he was shown a printed volume, which plaintiffs’ attorney claimed was the Revised Statutes of Ontario for 1887, and appeared to be printed at Toronto at the Toronto Law Printer’s. He was asked to state if that was a volume of the statutes commonly admitted and used as evidence in the courts of Ontario, and answered that it was. He also testified that sections 31 and 34, chapter 147, of that volume, had reference to solicitors’ fees. The book was then offered and received in evidence, under objection of defendant’s counsel that it was incompetent and irrelevant, and that no foundation had been laid for its introduction. The general rule is that foreign laws may be proved by a printed volume thereof, which a witness having means of information can swear is recognized as authentic, and received, by the courts in the country in which such laws are alleged to exist. 23 Am. & Eng. Enc. Law, p. 294; Owen v. Boyle, 15 Me. 147 (32 Am. Dec. 143); Woodbridge v. Austin, 2 Tyler, 364 (4 Am. Dec. 740); Jones v. Maffet, 5 Serg. & R. 523. In the last case a printed copy of the Irish Statutes was offered in evidence, with the testimony of a barrister of Ireland that he had received them of the king’s printer in Ireland, and that they were good evidence there. ' The statute was received in evidence by the Pennsylvania court' to show the law of Ireland. See, also, O’Keefe v. U. S., 5 Ct. Cl. 674; Talbot v. Seeman, 1 Cranch, 1; Ennis v. Smith, 14 How. 400. In Lacon v. Higgins, 3 Starkie, 178, a printed copy of the French Code, produced by the French consul resident in London, who obtained it at a bookseller’s shop in Paris, was admitted as evidence of the laws of France by proof that it was admitted and used as evidence in France. In the present case the statute was sufficiently proved, and was properly received in evidence. Sections 31 and 34 fixed the tariff of charges for solicitors’ fees.

On the trial the defendant contended that he had a special agreement with the plaintiffs to conduct the suit for from $200 to $300, and that he never authorized them to expend any greater sum. The court submitted that issue fairly to the jury, and instructed them that, if they found such special agreement did not exist, the plaintiffs’ bill would be regulated by the tariff fixed by the statute. The court was not in error in the charge. The contract of employment was made in Ontario, and is governed by the law- of the place. The statute fixed the rates of charges, and each was bound by it.

Some other questions are raised. We have examined them, but, being so clearly of the opinion upon the whole case that no error was committed, we refrain from speaking upon the other points.

The judgment must be affirmed.

The other J ustices concurred.