text:
    KLOCK v. PACK.
    1. Bonds—Consideration—Public Policy—Garnishment.
    A bond given to a garnishee pending judgment in the principal suit, to indemnify him against harm and damage resulting from the immediate payment to the plaintiffs therein of a portion of a fund which, according to his disclosure in the case, he holds as trustee for the principal defendant, is not void on the ground of public policy.
    2. Same—Condition—When Broken.
    The obligors in such bond (the garnishment plaintiffs) failed to establish their claim against the principal defendant, and the latter obtained a judgment against the trustee for the amount paid over. The bond was thereupon assigned to the principal defendant under an agreement that the sum realized thereon should be applied upon the judgment. Held, that there was a conditional payment of the judgment, constituting “harm and damage” within the meaning of the instrument.
    Error to Wayne; Lillibridge, J.
    Submitted February 11, 1897.
    Decided May 25, 1897.

      Assumpsit by Margaret L. Klock, executrix of the estate of Monroe Klock, deceased, for the use of Burnham, Stoepel & Co., against Albert Pack, impleaded with C. W. Richardson and James McNamara, survivor of himself and John C. Shields, deceased, upon an indemnity bond. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      J. B. Tuttle, for appellant.

      Elliott G. Stevenson, for appellee.
   Montgomery, J.

This is an action upon a bond executed by Shields & McNamara as principals, and C. W. Richardson and defendant Pack as sureties. The obligee in the bond was Monroe Klock. The facts in the case are, briefly, these: Klock held in his hands a fund derived from the sale of goods belonging to the firm of W. A. Soule & Co., upon a mortgage executed to Klock as trustee. A part of the indebtedness secured by the mortgage was a claim of Burnham, Stoepel & Co., and the fund in the hands of Klock would, but for the interference of Shields & McNamara, have been payable to Burnham, Stoepel & Co. Shields & McNamara brought an action against Burnham, Stoepel & Co., claiming that Burn-ham, Stoepel & Co. were indebted to them in the sum of $400, and at the same time sued out a writ of garnishment directed to Klock, which was duly served upon him. Klock made disclosure, showing that he had funds in his hands and under his control belonging to Burn-ham, Stoepel & Co., to the amount of $1,900. The bond in question was given. It recites that this money is in the hands of Klock, and payable to Burnham, Stoepel & Co., of Detroit, and that “whereas, said principals above named have and bring a claim against Burn-ham, Stoepel & Co. for legal services, and have instituted a suit for the recovery of the same against said last-named firm, and have served a writ of garnishment upon said Monroe Klock, which suit is now pending; and whereas, said principals are desirous that the said Klock shall pay to them of the money so garnished the sum of $400, agreeing to save him harmless by reason of his so doing.” This was followed by a condition to “save and keep and bear harmless the said Monroe Klock in the premises of and from all harm and damage by reason of paying to them the said sum of $400.” Shields & McNamara failed to prosecute their suit to effect. Burnham, Stoepel & Co. thereupon filed a bill in the Wayne circuit court in chancery to compel Klock to account to them for the amount due them, including the amount so paid to Shields & McNamara, with interest thereon to the date of the decree. Klock having deceased, and plaintiff having been appointed as his executrix, she executed an assignment to Burnham, Stoepel & Co. of all right, title, and interest of the estate of Monroe Klock in, to, or under the bond aforesaid, and authorized them to bring suit and enforce collection for the amount due thereon, either in their own name or in the name and behalf of the estate, any sum realized upon the bond to apply upon the amount due from said estate to Burnham, Stoepel & Co. On the trial, these facts appearing, the learned circuit judge directed a verdict for the plaintiff. Defendant brings error.

Two grounds of error are alleged:

First. That the transaction is void on grounds of public policy.

Second. That it does not appear that either Klock or his executrix has been damaged, for the reason that the judgment has not been paid.

1. The ground of defense chiefly relied upon in the court below is that the transaction is void on grounds of public policy. It is undoubtedly true, as contended by defendant’s counsel, that a bond conditioned to save harmless the obligee from the consequences of an unlawful act is void. The case chiefly relied upon by defendant’s counsel, and which is said by him to be on all fours with the present case, is Buffendeau v. Brooks, 28 Cal. 641. In that case an injunction had been issued restraining the sheriff from selling certain property. Of this the sheriff had notice. A bond was given to indemnify him from any loss by reason of his proceeding to violate this injunction. It was said that the sale involved a willful and apparently deliberate disobedience to public authority, and it was held that an action could not be maintained upon the bond. That is clearly not this case. The payment to Shields & McNamara violated no statute. 3 How. Stat. § 8058, provides that the garnishee shall pay no money to the principal defendant after service of the writ. This enactment is for the protection of the plaintiff. It does not, in terms, preclude payment to the plaintiff, and it cannot be said that Klock violated the mandate of the court in paying the money as he did.

It is urged with much force that the payment of the money to Shields & McNamara was in violation of the duty of Klock as trustee. The situation was peculiar. Upon the service of the notice it became impossible for Klock to make payment to the principal defendant with safety. Must the garnishee hold the fund during the litigation, or may he in good faith turn it over to the one claiming that he will ultimately entitle himself to it, and take indemnity? As Shields & McNamara, the principals in the bond, put the case to Klock, they had a claim against Burnham, Stoepel & Co., and had instituted proceedings to recover it. Klock had been charged as garnishee. If Shields & McNamara made their claim good, as they asserted it, the money would never become due to Burnham, Stoepel & Co., and the payment by Klock to Shields & McNamara would violate no trust, but would simply anticipate the payment which he. would ultimately be required to make by order of the court. We do not think that under these circumstances any principle of public policy was violated, assuming the facts to be as by the terms of the bond they were represented to Klock by the principals therein, of which terms of the bond the sureties, of course, must be held to have had notice.

2. It is contended that the condition of the bond has not been broken, for the reason that it does not appear that the judgment has been paid. It appears, however, that judgment had been obtained, and that this bond was assigned to pay the judgment when realized on. This was a conditional payment. The executrix parted with the bond for that purpose, and the case is, we think, within the principle of White v. French, 15 Gray, 339, and Howe v. Freidheim, 27 Minn. 294.

It is suggested that this assignment to Burnham, Stoepel & Co. was not alleged in the declaration. The only objection which appears in the record to the testimony is that defendant’s counsel objected to the introduction of the same item by item, and paragraph by paragraph, as the same was being read to the court, upon the ground that it was incompetent to introduce any proof which would in any way add to, take from, or in any way modify or change, the language or legal effect of the bond declared upon; and also upon the ground-that said testimony was incompetent, irrelevant, and immaterial under the pleadings in the case. It does not appear that the distinct point now urged was made. If it had been called to the attention of the court, an amendment might have been, and indeed should have been, allowed, and we think the judgment should not be reversed on any such alleged infirmity.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J. Moore, J.

license: Public Domain

text:
    SULLIVAN v. SULLIVAN.
    Divorce—Decree a Vinculo—When Authorized.
    Under 2 How. Stat. § 6229, providing for a divorce from bed and board for extreme cruelty and certain other causes, and section 6230, authorizing a decree of absolute divorce for any of the causes mentioned when, “in the opinion of the court,” the circumstances of the case render it proper, the circuit court may, in its discretion, grant a divorce a vinculo, although the complainant asks for a decree of separation only. Moore, J., dissenting.
    Appeal from Wayne; Donovan, J.
    Submitted April 6, 1897.
    Decided May 25, 1897.
    Bill by Rose Sullivan against Michael Sullivan and Mollie Ferry for a divorce, and to declare a transfer of real estate to defendant Ferry fraudulent as to complainant. From the decree rendered, complainant appeals.
    Modified.
    Complainant and defendant Michael Sullivan were married July 11, 1892. She was about 50 years old, and he 60. He was a widower, and had one child, the defendant Mollie Ferry. After about two and one-half years of unhappy married life, she filed her bill in this cause, praying for a divorce. Her bill prayed that “the marriage be dissolved and a divorce from the bonds matrimony be decreed.” The bill also charged that, by collusion, a mortgage for $5,000, upon land formerly owned by Mr. Sullivan, had been foreclosed, the title perfected in the mortgagee, and then transferred to the defendant Mollie. The case was heard on pleadings and proofs taken in open court, and a decreee entered for an absolute divorce, and the payment of $700 as alimony and a fixed amount for costs. It was also decreed that there was no fraud in the proceedings by which his daughter obtained the title to the land. Complainant appeals.

      James H. Pound, for complainant.

      Lemuel H. Foster, for defendants.
   Grant, J.

(after stating the facts). 1. Upon the hearing in the court below, the complainant, through her solicitor, asked for a decree of separation, and not for one a vinculo. The contention on her behalf is that she was entitled to just such a decree as she saw fit to ask. The court considered it better to grant an absolute divorce. 2 How. Stat. § 6229, provides for a decree of “divorce from bed and board, forever or for a limited time,” on the ground of extreme cruelty, and for certain other causes. Section 6230 is as follows: “A divorce from the bond of matrimony may be decreed for either of the causes mentioned in the preceding section, whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do.” We think that the character of the decree rests in the sound discretion of the court, and we find no occasion to interfere with it, especially since it is in accord with the prayer of the bill.

2. It is urged that the transaction by which the defendant Mollie, the daughter of the defendant Michael, obtained the title to the real estate described in the bill of complaint, was fraudulent. The property was mortgaged by Mr. Sullivan for the sum of $5,000. The mortgage was foreclosed, the land bid in by the mortgagee, and was then deeded by the mortgagee to defendant Mollie, who gave back another mortgage upon it to the same party for $5,000. The circuit judge saw and heard the witnesses upon whose testimony depends the determination of the question of fraud. I should not myself feel disposed to interfere with the conclusion reached by the circuit judge, but my brethren are of the opinion that the transaction was tainted with fraud, and that complainant should have a lien upon this land to secure the amount of alimony which she shall receive. Complainant was not entitled to a large amount. She contributed nothing to the accumulation of this property. She was not without fault, and it is doubtful whether she was .entitled to a decree; but the defendant has not appealed, and therefore the decree must stand. The defendant appears to be willing to pay the amount of alimony decreed by the court. It is perhaps better to give a gross sum as alimony, rather than to give a monthly allowance. We think $1,000 would be a fair sum, under the facts of the case. The decree will be modified to that extent, and affirmed. She will be decreed to have a lien upon the real estate for its payment. Complainant will recover costs.

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

Moore, J.

(dissenting). I concur with Mr. Justice Grant in his disposition of the question of alimony, if absolute divorce is to be granted, but I cannot concur with him in holding that the complainant may be compelled to take a decree of divorce when she only asks for a decree of separation. Notice should be taken of the fact that a very large and respectable portion of our citizens recognize but one cause for divorce, that is, adultery; others of them have religious scruples against any divorces whatever; but circumstances may arise where persons having these views are compelled to go into court and ask for a decree of separation in order to be protected in their persons. To say that when they do so they shall be compelled to take a divorce absolute, when they do not want it, is, in my judgment, a wrong construction of the statutes authorizing divorces. If the complainant has made such a case as to entitle her to relief, she ought to have the relief she desires. If she has not made such a case, her bill ought to be dismissed. I am aware the provisions of section 6230, 2 How. Stat., authorize a divorce from the bond of matrimony upon the same proof that would authorize a limited divorce, but I have never supposed that could be done when the aggrieved party did not desire it to be done. To give the statute such a construction is to say to the aggrieved party, “You are entitled under the law to the relief you ask, but the court will deny the relief you want, and compel you to take relief which the court thinks is better for you and for society than what you ask.” The case of Burlage v. Burlage, 65 Mich. 624, is cited as an authority allowing the court to do what was done in granting this decree. An examination of that case will not disclose that the complainant asked for a limited divorce, and objected to a divorce a vinculo. The defendant in that case appealed, and, while the statement of the case is not very full, I think it warrants the inference that complainant wanted a permanent decree of divorce in the court below, and was not opposed to obtaining it in this court. I think the decree should not only be modified as suggested by Mr. Justice Grant, but also so as to provide only for a decree of separation.


author: Moore, J.

text:
    STILLE v. HESS.
    Equity Pleading—Bill to Set Aside Mortgage—Sueeioienoy.
    A bill by the minor children of a decedent alleged, that their father was possessed of certain real estate at the time of his decease, which was free from incumbrance; that an instrument purporting to be his will, by the terms of which all of his property was left to his wife, was admitted to probate, and a distribution made in accordance therewith; that complainants were not represented by a guardian ad litem, or otherwise; that the instrument was not decedent’s will, but was obtained by fraud; that the widow had executed a real-estate mortgage to defendant, and that the latter had foreclosed the same, and had himself purchased at the sale. The prayer was that the mortgage and sale be set aside so far as the complainants’ interests were affected thereby. The bill contained no averment of the value of decedent’s estate, of complainants’ interest in the mortgaged premises, or of damage to them resulting from the sale. The widow and older children were not joined as parties to the litigation. Held, that a demurrer was properly sustained.
    Appeal from Delta; Stone, J.
    Submitted April 6, 1897.
    Decided May 25, 1897.
    Bill by Hannah Stille and others, infants, by Sarah Tolan, their next friend, against Joseph Hess, to set aside a real-estate mortgage. From a decree dismissing the bill on demurrer, complainants appeal.
    Affirmed.

      James H. Clancy, for complainants.

      George Gallup, for defendant.
   Moore, J.

The complainants filed a bill in chancery which avers that they are minors; that July 7, 1885, their father, Michael Tolan, died, leaving surviving him the complainants, a widow, and five children who at the time of the filing of the bill had attained their majority. The bill avers that Michael Tolan was the owner of the north 35 feet of lots 7 and 8, block 35, of the city of Escanaba, which was clear of all incumbi’ances, except $150, which has since been paid; that said Tolan owed no debts at his decease; that July 10, 1885, an instrument purporting to be the last will of Michael Tolan was offered for probate. A copy of the will is set out in the bill, from which it appears that all the property was willed to his wife. The bill avers that the will was probated, and a distribution of the property made according to its terms; that July 6, 1886, the estate “was wound up, and the executors duly discharged; ” that complainants were all very young, and did not know the meaning or effect of the instrument, and were not represented by a guardian ad I'item, or any one else. The bill avers that the instrument purporting to be the will of Michael Tolan was not his will, but was obtained by fraud and deceit. The bill avers that June 3, 1890, Mary Tolan, widow of Michael Tolan, “executed to J oseph Hess, of the city of Escanaba, Michigan, a certain real-estate mortgage, which said mortgage is recorded in Liber G of Mortgages, on page 329, in the office of the register of deeds for said Delta county, that, by virtue of the conditions of said mortgage, said Hess, on the 16th day of February, 1895, began proceedings to foreclose by advertising; that on the 13th day of May, 1895, because of said foreclosure proceedings, the said lands were sold to the highest bidder for the sum of $1,250, or thereabouts ; that said sale purports to be a sale of the entire premises; that the said Hess is the highest bidder aforesaid. ” The prayer is as follows:

“Forasmuch, therefore, as your orators are without remedy in the premises except in a court of equity, and to the end that the said Joseph Hess, who is made a party defendant to this bill, may be required to make full and direct answer to the same, but not under oath (answer under oath being hereby waived), and that the said mortgage may be set aside and declared to be null and void in so far as the interests of your orators are concerned, and that the sale aforesaid may be set aside in so far as your orators are concerned, and that all proceedings had or to be had by virtue of said mortgage be declared null and void in so far as the interests of your orators are concerned, and that the said J oseph Hess be restrained by an injunction, to be'issued out of and under the seal of this court, from in any way disposing of 01-incumbering the real estate hereinbefore described, or from proceeding in any way with the foreclosure proceedings hereinbefore referred to, in so far as your orators are concerned, during the pendency of this suit, and that your orators shall have such other and further relief in the premises as equity may require and to this court shall seem meet.”

The bill was demurred to, and the demurrer sustained. Complainants appeal.

It will not be necessary to consider all the questions discussed by the solicitors in their briefs. Neither the widow of Michael Tolan, nor any of the five children who have attained their majority, is made a party to the litigation. There is no averment in the bill of the value of' the estate left by Michael Tolan. There is no averment in the bill which contains a description of the land which was mortgaged to Mr. Hess, nor is it averred that it was land in which the complainants have any interest, or that they are in any way harmed by the mortgage foreclosure. There are other grave defects in the bill, which it is not necessary to point out here. The circuit judge very properly sustained the demurrer.

The decree is affirmed, with the costs of this court.

The other Justices concurred.


author: Hooker, J.

text:
    DREWYOUR v. MERRELL.
    Replevin—Damages—Res Judicata.
    A defendant in replevin who takes judgment for the return of the property, but refuses to assess his damages for the seizure and detention, cannot afterwards maintain a separate action therefor.
    Error to Monroe; Kinne, J.
    Submitted April 6, 1897.
    Decided May 25, 1897.
    Case by William Drewyour against John H. Merrell and another for the unlawful detention of plaintiff’s horse. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Randall & Corbin, for appellants.

      John O. Zabel, for appellee.
   Hooker, J.

The only question that need be discussed in this case is whether a defendant in a replevin case, who appeared and took judgment for the return of the property upon discontinuance by the plaintiff therein, but refused to prove or claim Ms damages for the seizure and detention of the property by virtue of the writ, may after-wards recover such damages in an action brought for the purpose. There is probably no doubt that a judgment for damages would have been a bar had the defendant assessed Ms damages, as be might have done. 2 How. Stat. §§ 8346-8349, provide for a judgment for damages in favor of the defendant where he is entitled to them, and indicate an intent upon the part of the legislature to have them assessed in the replevin case, rather than by separate action. We are not cited to any case which supports the appellee in his contention, while there are several to the contrary. See Hohenthal v. Watson, 28 Mo. 360; White v. Van Houten, 51 Mo. 577; Thisler v. Miller, 53 Kan. 520. In Cobbey on Replevin (section 1170) the author says:

“Where a trial in replevin is had, all matters growing out of the controversy should be finally determined in that suit. If judgment is against plaintiff, and defendant neglect to have his damages assessed in the replevin action, he cannot afterwards bring his separate suit for the amount of damages suffered.”

And, again, in section 1178, he says:

“It [the judgment in replevin] is conclusive and final on the subject of damages, or other secondary matters necessarily involved in the litigation of the main question.”

In Delevan v. Bates, 1 Mich. 97, this court say:

“In that action [replevin] he was also entitled tore-cover his damages for the detention, and whether he claimed such damages, or had them assessed, or not, is entirely immaterial so far as this case is concerned, a waiver of damages being equivalent to a satisfaction.

Here, Bates was the plaintiff, and the court seem to intimate that, while he might bring replevin or trespass, he should assess his damages in the action brought, and not split up his cause of action by recovering possession in one and damages for the detention in another.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    CROWL v. GOODENBERGER.
    1. Sale—Condition Precedent to Delivery—Measurement of Goods.
    One who has made a part delivery of lumber sold by him under a contract requiring the entire amount to be delivered within a limited time is not relieved from the obligation to furnish the remainder as agreed by the failure of the buyer to measure the part delivered.
    3. Same—Apportionable Contract.
    A contract for the sale and delivery of a specified amount of lumber, “one-third two-inch and two-thirds one-inch,” within a given time, is not apportionable, and the purchaser is not bound to accept a part only of the amount contracted for; especially if the part tendered is not in the prescribed proportions.
    3. Same—Part Performance—-Notice to Remove Goods—When Required.
    Where the purchaser does nothing to indicate an acceptance of a part performance of the contract, he may recover back the full contract price from the seller, although he fails to notify the latter, before commencement of suit, to remove the lumber delivered.
    4. Debtor and Creditor—Mode of Payment—Election.
    Where a debtor has the election to pay either money or property, if he fails to make tender on the day fixed for payment he thereby loses his election, and the obligee has the right to demand money.
    Error to Hillsdale; Lane, J.
    Submitted February 2, 1897.
    Decided May 25, 1897.

      Assumpsit by Jacob L. Crowl against David A. Goodenberger for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Guy M. Chester and Fred M. Twiss, for appellant.

      Lockerby & Kinney, for appellee.
   Long, C. J.

On October 13, 1893, the plaintiff sold to the defendant a portable sawmill, or at least entered into a contract by the terms of which defendant was to have the mill for $400 worth of beech lumber. The plaintiff took back from the defendant the following agreement, the performance of which was understood to be full payment for the mill:

“ I, D. A. Goodenberger, hereby agree to furnish Jacob L. Crowl $400 worth of beech lumber, at $12 per thousand, delivered; said lumber to be cut from merchantable logs; said lumber to be delivered within six months; lumber to be log run, one-third two-inch and two-thirds one-inch.”

Pursuant to this agreement, defendant, during the years of 1893 and 1894, and previous to April 13, 1894, delivered to the plaintiff, at his mill yard, 19,500 feet of lumber, which was piled in plaintiff’s yard as directed by him. A part of the lumber delivered was two-inch, and the balance one-inch. This lumber was retained by the plaintiff up to the time of commencement of suit, and not until some 11 months after did plaintiff notify defendant to remove it. It seems that no measurement was ever made of the lumber, and the defendant claims he did not deliver the balance for the reason that the plaintiff did not measure that already delivered, nor signify his acceptance of it. This action was brought to recover the price of the mill, and, on the trial, plaintiff had judgment for the full value of the mill, the lumber delivered not being accepted. The case was tried before the court without a jury. The court found that defendant delivered to the plaintiff 19,500 feet, and no more, but that the lumber so delivered was not in the proportion, as to thickness, that the contract called for, as nearly all of it was two-inch, and only a small part one-inch. The court further found that no application was ever made to the plaintiff by the defendant for the measurement of the lumber, and that the plaintiff did nothing indicating an acceptance of the same, unless his failure to notify defendant that he would not accept the same, before bringing suit, could be so construed; that, as matter of fact, the lumber could not be used to the best advantage by the plaintiff unless it were furnished in the proportion contracted for, as plaintiff was engaged in house furnishings, cabinet, and other kinds of work; that the suit was commenced for the purchase price of the mill about a month after the time within which the lumber should have been delivered; that the suit was brought May 15, 1894, and in May, 1895, plaintiff gave notice to the defendant to remove the lumber from his premises; that during that time nothing was said between the parties, regarding the lumber delivered, until the time this notice was given. The court found, as matter of law, that the contract for the furnishing of this lumber was not an apportionable one, and that the plaintiff was not obliged to accept the lumber delivered, and did not, as matter of law, accept it; that he could not, after the expiration of the terms of the contract, be required to accept the lumber, and was therefore justified in bringing the action for the purchase price of the mill.

1. It is contended on the part of the defendant that it was the duty of the plaintiff to measure the lumber, load by load, when delivered, and that his failure to do so relieved the defendant from performing on his part until the plaintiff had performed his part of the agreement as a condition precedent. There is nothing in the contract which provides for any measurement on the part of the plaintiff. He was to have $400 worth of lumber at $lá per 1,000, delivered; the whole amount of the delivery to be made within six months, and to be cut from merchantable logs, one-third two-inch and two-thirds one-inch. The failure to measure the lumber was no excuse for the failure of defendant to furnish the balance of the lumber.

3. It is further contended that the 19,500 feet of lumber was received by the plaintiff under the contract, and has since been retained by him, and therefore the plaintiff cannot maintain an action for the value of the lumber, or for the price paid therefor, until he has returned the lumber delivered, or notified the defendant to remove it; that the contract is apportionable, and at least the value of the lumber delivered should be set off against the plaintiff’s demand. The court, however, specifically found as a fact that the lumber put upon the plaintiff’s premises by the defendant could not be used by the plaintiff to the best advantage, and that he never accepted it.

There was no error in holding that the plaintiff was entitled to recover the purchase price of the mill, as we are of the opinion that the evidence sustained the finding of fact. We think the rule is settled that, where the debtor has the election to pay either in money or property, if he fails to make tender on the day fixed for payment he thereby loses his election, and the obligee has the right to demand money. 25 Am. & Eng. Enc. Law, 909, and note; Wyman v. Winslow, 11 Me. 398 (26 Am. Dec. 542); Robbins v. Luce, 4 Mass. 474. We are also satisfied that the defendant was bound to tender the whole amount of the lumber, as plaintiff was not bound to accept a part only. Vance v. Bloomer, 20 Wend. 196; Roberts v. Beatty, 2 Pen. & W. 69 (21 Am. Dec. 418).

Some other questions are raised which we do not deem important to discuss, as we think the court reached the right conclusion.

The judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    THOMPSON v. STODDARD.
    Trial—False Imprisonment—Election of Counts—What Constitutes.
    A declaration contained an ordinary count for false imprisonment, and also a count in which plaintiff’s arrest under a complaint and warrant was alluded to, hut without averment that the papers or proceedings were defective. Upon the trial, plaintiff, after showing defendant’s connection with the arrest, and the damages, put in evidence the complaint and warrant and the proceedings before the justice. Held, that the offering of the supplementary evidence, although unnecessary under the first count, did not constitute an election to proceed under the second, but only imposed the additional burden upon the plaintiff of showing that the proceedings were without jurisdiction.
    Error to Shiawassee; Wisner, J., presiding.
    Submitted April 6, 1897.
    Decided May 25, 1897.
    Case by Samuel Thompson against Hiram D. Stoddard for false imprisonment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      A. L. Chandler and A. E. Richards, for appellant.

      John T. McCurdy, for appellee.
   Montgomery, J.

This is an action for false imprisonment. The plaintiff, on the trial, showed that the defendant caused a complaint to be made before a justice of the peace, upon which a warrant issued, and upon which plaintiff was arrested and imprisoned; that the complaint showed no offense, and that the defendant was active in causing the plaintiff’s arrest. The declaration contained two counts. At the conclusion of the testimony, the court ruled that by reason of the fact that the plaintiff had put in proof of the complaint and warrant, and had given evidence of the proceedings before the justice, he should be held to have elected to proceed under the second count of the declaration, in which the fact of plaintiff’s arrest under a complaint and warrant was alluded to. The court said of this count that he was unable to determine whether it was for malicious prosecution or false imprisonment or both, and that, as this count of the declaration did not point out that the complaint and warrant were defective, or that there was lack of jurisdiction in the justice, the plaintiff had failed to make a case under this count.

We think the court was in error in holding that the plaintiff should be held to have elected to proceed under the second count. His counsel declined to make such election. The first count was an ordinary count in trespass for false imprisonment, and undoubtedly the plaintiff might have rested on showing the fact of defendant’s connection with his arrest and detention, and the damages. It would then have become incumbent upon the defendant to justify. Stensrud v. Delamater, 56 Mich. 144. The fact that plaintiff saw fit to put in evidence the papers for the purpose of showing defendant’s connection with his arrest, so long as the papers fail to show jurisdiction to issue the warrant, did not render the arrest any the less a false imprisonment. It is true that his offer of the papers imposed an additional burden upon the plaintiff, namely, to show that, notwithstanding the parties went through the form of a proceeding before a justice, that proceeding was without jurisdiction. This burden he assumed, and we can see no reason why, having shown this, he was not entitled to recover under the first count in the declaration. The cases relied upon by defendant’s counsel are Haskins v. Ralston, 69 Mich. 63 (13 Am. St. Rep. 376); Barker v. Anderson, 81 Mich. 508; and Love v. Wood, 55 Mich. 451. None of these cases are like the present. In Barker v. Anderson, the court said, in distinguishing the case from Stens rud v. Delamater, that in that case the affidavit which led to the false imprisonment was shown, and held to be invalid, while in the case under consideration—Barker v. Anderson—the complaint was not presented to the court below, but only the fact that one was made; and therefore held, following Love v. Wood, that the presumption would arise, upon this showing, that the affidavit stated a cause of action. In Haskins v. Ralston it was. held that the affidavit upon which the warrant before the justice issued was sufficient. In the present case no such contention is made.

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

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


author: Grant, J.

text:
    CASE v. TELLING.
    Drains—Dismissal or Proceedings—Liability or Petitioners for Costs.
    3 How. Stat. § 1740b5, provides that applicants for the establishment of a public drain shall he jointly and severally liable for all costs and expenses in case the commissioner shall determine that the drain is unnecessary or impracticable, or in case the proceedings “shall be dismissed for other cause.” Held, that liability for costs follows the proceedings throughout, and attaches in all cases of dismissal, except where the failure to sustain is due to the negligence or fault of the commissioner.
    Error to Genesee; Wisner, J.
    Submitted April 6, 1897.
    Decided May 25, 1897.

      Assumpsit by Charles J. Case, drain commissioner of Genesee county, against William Telling and others, to recover the costs and expenses incurred in certain drain proceedings instituted on defendants’ application, and dismissed on certiorari in the circuit court. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.
    The agreed facts in this case are as follows:
    “This is an action brought by the drain commissioner of Genesee county to recover the costs and expenses incurred in establishing a certain drain, to be called the ‘Graves Drain,’ in the township of Argentine and county of Genesee. The history of the proceedings had for the purpose of locating and establishing said drain, and by reason of which said costs and expenses were incurred, is as follows: The usual application therefor, signed by all the defendants, was filed with the drain commissioner, who is plaintiff herein, and the necessary statutory steps were taken by him to locate said drain, after which it became necessary to apply to the probate court for the appointment of special commissioners to condemn a portion of the land over which the drain was to run. Upon application therefor by said drain commissioner, special commissioners were appointed by said probate court to condemn said land, but said special commissioners, owing to the absence.of some necessary papers at the date of their meeting, never made a report. A second application was made to the probate court for the same purpose, and the same persons were appointed a second time as special commissioners, but this time only two of them were of the opinion that the drain was necessary for the public health, and that it was necessary to take private property for the use of said drain, and they made their report accordingly, whereupon a third application was made by said drain commissioner, and added to which was a request in writing, signed by two of the defendants, William Telling and Walter M. Wadleigh, to the probate court, for the appointment of special commissioners. The matter was submitted to the third set of special commissioners, and their report was unanimously in favor of the drain. The drain commissioner then filed his final order establishing the drain, whereupon the proceedings were removed to the circuit court for the county of Genesee for review by certiorari.. Upon the hearing of said certiorari by said court, said drain proceedings were quashed and set aside. It further appears that some of these defendants, namely, Walter M. Wadleigh and William Telling, had frequently urged the commissioner to proceed with the proceedings, and that they had also advanced to him on account of said drain some money (about $60), which said commissioner, in his bill of particulars in this case, had given them credit for, part of which the commissioner testified was advanced by them to pay the expenses incurred by the litigation attending the proceedings as contested.”
    The court directed a verdict for the defendants.

      Black & Brown, for appellant.

      Everett L. Bray, for appellees.
   Grant, J.

(after stating the facts). The drainage statute contains three provisions in regard to liability for costs. 3 How. Stat. § 1740b5, provides that “such applicants shall be jointly and severally liable for all costs and expenses in case the commissioner upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.” Section 1740c6 is as follows: “In case the special commissioners or jury shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants. ” Section 1740e4 provides that the proceedings may be reviewed by certiorari, and provides that, “if the proceedings be sustained, the party bringing the certiorari shall be liable for the costs thereof, and, if they be not sustained, the parties petitioning for the drain shall be liable for the costs.”

The learned circuit judge, in his instructions, said:

“Now, it seems to me that that language, using the word ‘dismissed,’ refers to some other similar action, similar to that which is expressly stated in the statute itself; dismissed because it was impracticable, or that it was not beneficial to the public health, or that it was unnecessary to take the land described for some other similar reason; and that the word ‘dismiss,’ in my construction of the statute, means some action taken in those drain proceedings themselves. It does not seem to me that the holding by this court in the certiorari case that those proceedings s.hould be quashed and held void because of some illegality, because of some delay on the part of the commissioner, or because of some action or want of action upon his part, should come within that term ‘ dismissed.’ ”

It does not appear for what reason the proceedings were quashed or dismissed by the circuit court upon certiorari. It may have been through some neglect or fault of the commissioner, in which case the defendants would not be liable for the costs. Hall v. Palmer, 54 Mich. 270. We said in Rosenstiel v. Miller, 96 Mich. 99: “They [the petitioners] are actors in the proceedings, and the statute contemplates that they are the parties in the suit.” We are of the opinion that the expression in the clause of the section first above quoted, viz., “in case the proceedings shall be dismissed for other cause,” follows the proceedings throughout, and carries costs against the petitioners at any stage when the proceedings are dismissed or quashed for any cause not due to the negligence or fault of the commissioner. The evident intention of the legislature was to make the petitioners in these proceedings liable for the costs if they failed to sustain them. This liability cannot attach to them when the failure is due to some action of the commissioner not authorized by law.

It follows that the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    REID, MURDOCH & CO. v. FERRIS.
    1. Actions—Fraudulent Purchase—Rights of Seller,
    Where fraudulent purchases are made on different occasions, each constitutes a distinct and separate act of fraud, for which the seller is entitled to maintain a separate action.
    2. Same—Replevin and Trover—Res Judicata.
    A recovery in replevin of that part of goods fraudulently purchased which is in the buyer’s possession at the time of the issuance of the writ does not bar an action of trover for the remainder of the goods.
    3. Same,
    A plaintiff in replevin cannot recover for property known by him to be out of defendant’s possession, or out of existence, when the writ was sued out.
    Error to Kent; Adsit, J.
    Submitted April 7, 1897.
    Decided May 25, 1897.
    Trover by Reid, Murdoch & Company against Jay Ferris. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Bundy & Travis, for appellant.

      Drury & Strong, for appellee.
   Long, C. J.

Plaintiff was • a wholesale grocery house in Chicago, and defendant a retail grocer in Grand Rapids. This was an action of trover, brought to recover the value of about $1,200 worth of goods sold by plaintiff to defendant between October 30, 1894, and January 9, 1895. The goods were sold at different times during that period, and on different terms of credit, some of the invoices being on 60 days’ time, and others on 30 days’ time; the amount of the largest sale being $238.70, and the smallest one $4. The plaintiff claimed, and introduced evidence tending to show, that the purchases were fraudulent. In its declaration, the plaintiff set np that, on discovering the fraud, it replevied from the defendant a part of the goods shipped in the last two invoices; that the replevin case was commenced in justice’s court, and appealed to the circuit, and there tried on the merits, and resulted in a judgment in favor of plaintiff for the goods replevied and nominal damages of six cents; that the goods replevied came out of the two invoices of December 28, 1894, for $209.75, and January 9, 1895, for $78.75; that the value of the goods replevied was $81.50; that the defendant, at the time the replevin suit was instituted, was not in possession of the other goods included in said two invoices, he having sold or otherwise disposed of the same. And plaintiff averred that this judgment in such replevin suit constituted a binding prior adjudication between plaintiff and defendant that said two purchases were fraudulent. The defendant, in his amended plea, also set up the bringing of said suit of replevin, and the recovery therein of a part of the goods contained in said two sales, one of December 28, 1894, and the other of January 9, 1895, and averred that, because of the recovering of said judgment in replevin, the plaintiff was not entitled to maintain this action of trover. On the trial of this cause, the plaintiff showed the proceedings in said replevin suit, and gave evidence tending to show that the goods replevied were all the goods that then remained in the possession of defendant at the time the replevin suit was instituted. At the conclusion of plaintiff’s evidence, defendant’s counsel moved the court to instruct the jury to render a verdict in favor of defendant, for the reason that the plaintiff could not split its cause of action, and that the judgment in replevin was a bar to the present action, which motion was granted by the court. To this ruling the plaintiff excepted, and the question thereby raised is the sole and only question involved on this record.

The court below was in error. As well stated by counsel for plaintiff: “The effect of defendant’s .position here is, not that a single cause of action cannot be split up, but that separate causes of action in tort must be combined.” The sales were separate and distinct, and on different terms of credit. Plaintiff could have elected to rescind some of them, or treat them as void, and ratify others, and sue in tort for some, and in contract for the others. Lee v. Burnham, 82 Wis. 209; Stickel v. Steel, 41 Mich. 350. In the latter case it appeared that S. bought a bill of goods in August, with credit for four months from September 15th following, and on the same day, from the same person, another bill of goods, at a credit of four months from October 1st following. It was held that the two bills of goods did not constitute one demand when one became the subject of suit before the other became due, or when the remedy for one was barred before the time expired for the other. In' the present case the torts consisted of the fraudulent purchases, and were committed when the purchases were made and the goods obtained, and not when their fraudulent character was discovered. Each purchase was a distinct and several act of fraud, for which the plaintiff was entitled to maintain a separate action. This doctrine is fully enunciated in Lee v. Kendall, 56 Hun, 610, and Shook v. Lyon, (Com. Pl.) 11 N. Y. Supp. 720.

It appears, however, that the plaintiff replevied a part of the goods shipped in the last two invoices. It is therefore contended by defendant that, that suit having gone to trial on the merits, the plaintiff could not maintain trover for the balance of those particular invoices. But it appears that the goods for which trover was brought were not in the possession of the defendant at the time the writ .of replevin was issued and served, he having sold or disposed of them. The rule is well settled that in replevin no recovery can be had for goods not in possession of the defendant at the time the writ issues, except where the goods have been fraudulently disposed of or concealed to avoid the writ. In Sexton v. McDowd, 38 Mich. 152, the court, speaking of the nature and office of the writ of replevin, said:

“The form and nature of the remedy suppose a case where the defendant unlawfully detains the property from the plaintiff, and not a case where the defendant cannot surrender, nor the plaintiff accept, possession; and it requires that, before the writ shall be executed, an affidavit shall be attached, showing, among other things, that the plaintiff is entitled to the possession of the property, and that the defendant, not a stranger, unlawfully detains it.”

In Hinchman v. Doak, 48 Mich. 168, the court said:

“When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the case dismissed out of court, and to recover his costs.”

The following cases are in line with this proposition: Aber v. Bratton, 60 Mich. 357; Burt v. Burt, 41 Mich. 82; Morrison v. Lumbard, 48 Mich. 548; Bacon v. Davis, 30 Mich. 157; Gildas v. Crosby, 61 Mich. 413. The same rule is stated in other States. Williams v. Morgan, 50 Wis. 548; Coffin v. Gephart, 18 Iowa, 256.

It must follow that, under the circumstances of this case, the plaintiff is not estopped from bringing suit in trover for such property as was not taken under the writ of replevin. In Farwell v. Myers, 59 Mich. 183, Mr. Justice Morse recognized that very doctrine, though holding that assumpsit would not lie for the balance of the goods not taken under the writ. In Farwell v. Myers, 64 Mich. 234, the same case was in this court, only in different form. In the second case, 'claim was based upon the conversion of the property, and it was held that the action would lie. We do not understand that the court intended to hold in McBrian v. Morrison, 55 Mich. 351, that a recovery could be had in replevin for property known by plaintiff to be out of defendant’s possession, or out of existence, when the writ was sued out. The opinion was by Mr. Justice Campbell, who also wrote the last case of Farwell v. Myers, 64 Mich. 234, where the action of trover was permitted to be maintained for the balance of the property not taken under the writ.

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

The other Justices concurred.


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    BOGART v. PHILLIPS.
    Mortgages—Assumption by Grantee—Mistake—Ratification.
    A purchaser of real property subject to a mortgage does not ratify a clause assuming the payment of the mortgage, inserted in his deed by fraud or mistake, by offering, for the purpose of procuring an extension of time, to pay an installment due on the mortgage, and the interest, after he has recorded an instrument repudiating the assumption clause.
    Appeal from St. Clair; Vance, J.
    Submitted April 7, 1897.
    Decided May 25, 1897.
    Bill by Belmont D. Bogart, administrator of the estate of Adam W. Bogart, deceased, against Abram Phillips, Bostwick R. Noble, and John Holden, to foreclose a mortgage. Foreclosure was awarded, but a personal decree against the defendant Noble was refused. Complainant appeals.
    Affirmed.

      Frank Whipple, for complainant.

      H. W. Stevens, for defendant Noble.
   Montgomery, J.

This is a bill filed to foreclose a mortgage made by Phillips to Adam W. Bogart, complainant’s intestate, on the 13th of October, 1887. About February 13, 1889, Bogart had brought suit against Phillips to recover about $300 interest then due, and, by appointment, Phillips was to meet Bogart at Port Huron and settle up this back interest. Phillips went to Noble, and borrowed $300 from him to pay Bogart, giving Noble his note and a deed of the land covered by the mortgage to Bogart. It was agreed between Phillips and Noble that Phillips should come to Port Huron and make the settlement with Bogart, and when that was done, and Phillips had deeded the land to Noble as security, Noble would telephone the First National Bank at Poi't Huron to pay the money over. Phillips came to Port Huron, made the settlement with Bogart, and Bogart advised him to go to one Hovey to have the deed to Noble drawn. They did so, Bogart being present. Either by mistake or at the instance of Bogart, Hovey inserted in the deed a clause by which Noble assumed and agreed to pay the Bogart mortgage. Phillips signed the deed, put it on record, telephoned Noble, and Noble directed the bank to pay over the $300; and it did so, and the money, or nearly all of it, was paid over to Bogart to satisfy past-due interest. Thex’e was no agreement between Phillips and Noble that Noble should assume the Bogart mortgage, and neither had any such understanding, and Phillips did not understand that Noble was assuming the mortgage when he signed the deed. After it was recorded, the deed was forwarded to Noble, who put it in his safe, not knowing of this clause in the deed until about March 2, 1889, when his attention was called to it. He then examined the deed and found it. He at once sent for Phillips, and they signed a paper by which it was agreed to alter the deed by striking out the words, “which said mortgage the said Noble hereby assumes and agrees to pay. ” This paper was sworn to, and in it Phillips says that this clause was inserted in the deed without his direction, knowledge, or consent, and that this clause was not read to him when he signed the deed. This paper was signed and sworn to by Phillips and Noble, March 3, 1889, and was recorded in the register of deeds’ office March 4, 1889, on the face of the page whereon was recorded the deed from Phillips to Noble, and a reference to the agreement was made by an insertion on the face of the record of the deed. Phillips remained in possession of the land until the last of September, 1892, when he abandoned it, saying to Noble he might take it and get what he could out of it. Phillips had not paid Noble any part of the note for $300, and, when he thus turned it over to Noble, Noble gave up his note, and from that on claimed title to the land. Subsequently Noble wrote letters to Goodale, Bogart, and Coe, asking for an extension of time on the principal, and agreeing to pay interest if it was extended. After Phillips turned tke land over to Noble, in September, 1892, Noble rented it, and made what he could out of it, and applied the proceeds on Phillips’ indebtedness to him. Subsequently Noble wrote to Bogart, repudiating his liability under the clause in the deed.

This bill seeks to hold the defendant Noble liable for any deficiency that may arise after a sale, and whether he can be so held or not is the only question in the case. Holden disclaims, and the bill was taken as confessed by Phillips. The circuit judge held, while recognizing the general rule that the person who purchases land covered by a mortgage, and, by an agreement incorporated in the deed, assumes and agrees to pay such mortgage, is individually liable in foreclosure proceedings, yet that that rule grows out of the contract relations between the purchaser and the mortgagor, and that where, by mistake or fraud, such an agreement is incorporated in the deed without the knowledge of the grantee, and is promptly disaffirmed by him, he cannot be held to the undertaking by the mortgagee. It appears to be conceded by complainant’s counsel that the circuit judge was not in error in this view of the law, and it is said that, if Mr. Noble had been consistent in disclaiming liability upon the mortgage under his deed from Phillips, there would be force in his contention that he is not liable, but that, after he caused to be made and recorded a paper disclaiming liability for this payment, he agreed to pay the $200 due October 13, 1889, and one year’s interest on the whole mortgage. But we discover nothing in the correspondence which shows any binding promise to pay. On October 17, 1890, Mr. Noble wrote that he would pay interest on the Phillips mortgage if time would be extended on the principal, and added: “What I am trying to do is to sell the place and let us all out, and I think I will do it before long.” On the 22d of October he wrote Mr. Moore, in whose hands the mortgage evidently was for collection: “I am only interested in- this matter in helping another man out. I expect to sell the place before long, and I will pay the interest if he will let the principal run along until the place can be sold, or something done. I think this the best plan for all parties interested.” On the 31st he wrote: “I cannot pay but the interest on the A. Phillips mortgage this fall. I do not own the place myself, and am doing what I can to help another man, and trying to sell the place, with a fair prospect of success.” It is true he had, previous to this, written to Mr. Coe, in whose hands the note was for collection, that he would pay the $200 and the interest on the mortgage. A statement was sent him, showing the amount, and he failed to make the payment. This was a new undertaking, upon no new consideration, and, we think, was not intended as a ratification of the deed in the form in which it was written.

We think the circuit judge reached the correct conclusion, in refusing a personal decree against Mr. Noble, and the decree will be affirmed.

The other Justices concurred.


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    ZIMMERMAN v. DETROIT SULPHITE FIBRE CO.
    1. Master and Servant — Safe Place — Evidence—Question for Jury.
    In. an action by a mill employé for injuries sustained while oiling an overhead shaft, the plaintiff’s witnesses testified that the platform on which the oiler stood was about seven feet above the floor, and consisted of a single plank 10 or 13 inches wide, supported on brackets placed at different heights and angles, so that it was inclined, and “wobbled” when in use. Defendant’s witnesses testified that there were two boards, and that they were placed horizontally. Held, that there was evidence upon which the jury might find that the employer was negligent in the construction of the platform.
    3. Same — Instructions.
    The court should have eliminated from the consideration of the jury all questions of negligence based upon the alleged dangerous proximity of the platform to revolving belts, and upon the alleged insufficient light, no .tangible evidence having been presented by plaintiff to sustain either of these theories.
    3. Trial — Jury—Special Questions — Conduct of Counsel.
    The defendant in an action for personal injuries, wherein the issue was alleged negligence in the construction of a platform, submitted a special question for the jury as to whether the plaintiff was hurt because he was knocked off the platform by a belt. This the court modified by adding the words, “and without other cause.” The jury found a general verdict for the plaintiff, but answered the special question in the affirmative. Thereupon plaintiff’s attorney discussed, in the presence of the jury, the probability of their having misunderstood the question, and asked the court to ascertain in regard thereto. The court declined to interrogate them, and discharged them from the case; but immediately thereafter permitted counsel to poll them as to the special question. Upon the poll a juror stated that he believed the question was not put to them with the words added by the court, and that the answer returned was therefore not his verdict. The jury were again sent out, and upon their return answered the question in the negative. Held, that it was error to permit the discussion in the presence of the jury, and then to recall them after they had been discharged, and send them back to reconsider their verdict.
    Error to Wayne; Hosmer, J.
    Submitted April 7, 1897.
    Decided May 25, 1897.
    Case by Johann Zimmerman against the Detroit Sulphite Fibre Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff had been for six and a half years employed as a laborer in the defendant’s mill, and had done various kinds of work, including the oiling of machinery. In the mill was a pump situated in a well about four or five feet square, and four feet below the floor. This pump was operated by a belt running in an upright position over a wheel attached to a horizontal shaft. The shaft was about 12 feet above the floor. It was necessary to oil the shaft directly above the pump once or more each day. About seven feet above the floor was a platform, on which the oiler stood while oiling the shaft. The distance from the platform to the place of oiling is five feet. Early one Monday morning, plaintiff was directed by the foreman of the mill to oil this shaft. The platform was reached by a stepladder, though sometimes it was reached by climbing up a post. Two brackets were placed to hold the platform. Below one of the brackets was an iron steam pipe, upon which it is claimed one end of the platform rested. Plaintiff had reached the platform, and, while in the act of oiling, fell into the well, and was injured. The negligence alleged is that the defendant did not provide a proper platform; that it was not securely fastened, so that it would not be shaken by the belt playing near it; that it was not wide enough; that it was on an angle; that it was not kept free from oil and water; that the room was not sufficiently light; that the platform was placed so near the belt that it would strike one standing on it; that plaintiff was unskilled and ignorant of the work to be done; and that he was directed to go upon this unsafe platform without instruction how to do the work or any apprisal of the danger. The manner of the accident is described as follows:
    “While standing upon said platform, without any fault on his part, plaintiff was suddenly struck by the play of the moving belt, and, as the said platform was wet and greasy and slippery, he slipped, lost his footing, and was hurled to the bottom of the well beneath the platform.”
    No one saw the plaintiff while going upon the platform or when he fell. Plaintiff testified that he had never oiled this shaft before, and was ignorant of the condition of the platform; that the platform consisted of one plank 10 or 12 inches wide, and 12 or 13 feet long; that one end was lower than the other; that he thought one end was 4 or 5 feet high, and the other 7 or 8 feet high; that he thought there was a little oil on it; that it was a little slippery. His testimony as to the manner of the accident is as follows:
    “I tried to reach the belt, and put oil on it (on the shaft), but the belt reached somewhere, — my body or clothes, — and throwed me down. The belt was between the planks where I fell down.”
    On cross-examination he said:
    “I had not oiled the pump. I got catched some way or other, and fell down. The plank was slippery. I don’t know whether it was oil or grease. I don’t know how big the slippery place was. It was very slippery, but I have not seen how much it was from oil, etc. My feet slipped down, you know, suddenly. I fell into the hole. My leg first got the accident, on account of the slippery part, and the belt got the next. I slipped first. It was dark, and I was not able to see the spot where I slipped. I have not seen, because it was dark, whether it was oil or grease on the plank, and I don’t know which it was. * * * I wanted to oil, but I slipped on the belt when the belt catched me, and I fell down.”
    He further testified:
    “Mr. Ginsley, the foreman, told me to oil everything that was necessary, and he showed me how to do it before he put me at it. He showed me this pump. I have done this myself. He told me to do the oiling, everything that was necessary, and so I did it.”
    One other witness for the plaintiff, Nelson Richards, testified that there was one plank; that one end might have been 10 or 12 inches higher than the other.
    ‘ ‘ One end tipped. It was not on a square level. The steam pipe kind of ran down this way, and the board was square at this end, and the board laid on that. And the plank was not fastened in these places; it was loose, and we used to shove it around when we went to get up by the pulleys to put on the belts. It wobbled in its place, and was always wet and oily.”
    On cross-examination this witness testified:
    “I have been on this platform to help put on belts,'and I never had any trouble standing on it. The mill did not run Sundays, and the planks would not be wet Monday morning before the mill started, unless from steam.There was no steam in that part of the mill Sundays, but there is when we start up. * * * There is a large skylight there on one side from the pump, and I never had any trouble in seeing when there, and I had no trouble when I got up on this plank to see to put on the belts.”
    The testimony on the part of defendant was to the effect that this platform consisted of two planks placed horizontally upon the brackets; that the place was sufficiently light; and that the platform had been in daily use for two years without accident.
    Plaintiff recovered verdict and judgment.

      JDe Forest Paine, for appellant.

      Louis J. Siemon (Alfred Lucking, of counsel), for appellee.
   Grant, J.

(after stating the facts). It is insisted on behalf of defendant that no negligence was shown, and that the court should have so instructed the jury. It is also urged that the danger, if any there was, was apparent to the plaintiff, and that, therefore, he assumed the risk. A third contention is that, if the plaintiff stood so near the belt as to be struck by it, this was his own negligence, since there was room for him to stand without touching it.

The case is not free from difficulty. The evident theory of the declaration is that he was struck by the belt while standing upon the platform, and that this caused him to slip; and it was urged on behalf of defendant that the case made by the proofs is not the one set out in the declaration. The court, by his instructions, eliminated from the consideration of the jury the slippery condition of the platform in consequence of grease and steam, holding that these were not elements of negligence. The sole ground of negligence submitted to them was the construction of the platform. Upon this point we are unable to say that there was no testimony tending to show negligence. It is true that several witnesses, who had long been familiar with this platform, and had used it constantly, testified that it consisted of two planks placed horizontally, and that the place was well lighted. Under this testimony, there was no negligence on the part of the defendant. On the contrary, there were two witnesses who testified that it consisted of a single plank, placed at an incline, and one support at a different angle from the other. If this was so, it could not be called a safe place. We must therefore hold that there was such a conflict of evidence as will not justify us in reversing the judgment on the ground that there was no evidence of negligence.

The plaintiff’s own testimony, upon which alone he can recover, leaves the cause of the accident doubtful. It is difficult to determine whether the belt struck him first, or whether he slipped, and fell against the belt. It is equally difficult to determine upon which theory the jury based their verdict. If'it was upon the theory that the belt struck him first, the verdict cannot be sustained, because there was no evidence to show that the platform was too near the belt, or that there was negligence in so constructing it. It was necessary to oil the shaft. The oiler must in some way be able to reach the part to be oiled. No suggestion is made that any better or safer instrumentality than the platform could have been employed. There is no tangible evidence that it was so dark that the plaintiff could not see the belt, or that the shaft could not-have been oiled with safety while standing upon the platform. It had been thus safely done for two years. This element of negligence should therefore have been eliminated from the consideration of the jury. It is quite probable that the jury made this the basis of their verdict, because it is alleged in the declaration as negligence, and also it is there alleged that the play of the moving belt struck him, and caused him to slip upon the slippery and greasy platform. If the platform was properly constructed, and plaintiff slipped in consequence of the oil or water upon it, there could have been no recovery. He had reached the platform in safety, and stood engaged in the act of oiling when he fell. Unless he fell by reason of the incline in the plank, or the fact that the supports were uneven, in consequence of which the plank tipped, he was not entitled to recover. These were the sole conditions.that made the place dangerous.

At the conclusion of the evidence, counsel for defendant requested that the following special questions should be submitted to the jury:

“If the platform was not on a level, by diligence could the plaintiff see it ?
“If it was not securely fastened, would lie know it when he got on it ?
“Was the plaintiff hurt because he slipped off the platform?
“Was he hurt because he was knocked off the platform by the belt?”

At the conclusion of the charge, these questions were fully explained to the jury'by the court. Then, after further discussion by the counsel, the court, in his own handwriting, added to the third and fourth questions the words, “and without other cause.” The jury returned into court with a general verdict for the plaintiff, and the first three questions answered “No,” and the last “Yes.” The following colloquy then took place:

“Mr. Lucking: If the court please, my query is with regard to the fourth question. You instructed the jury in one part of the charge that the plaintiff could not recover unless the platform was at fault.
‘Mr. Paine: I object to any discussion in the presence of the jury.
“Mr. Lucking: I ask the court to ask the jury with regard to the fourth question.
“The Court: I decline to ask the jury anything with reference to that. You may poll the jury or not, just as you see fit.
“Mr. Lucking: It is all in the discretion of the court to determine whether they have thoroughly understood the fourth question.
“Mr. Paine: I object to the discussion and to the remarks of counsel.
“Mr. Lucking: We do not want any claptrap or any catch by anybody.
“The Court: I never had such a contingency arise before me exactly.
“Mr. Paine: I wish to make a remark, and have it taken down, that the jury are present during the counsel’s remarks to the court.
“Mr. Lucking: I ask your honor to poll the jury on the fourth question.
“The Court: The court will do nothing of the kind. You may ask that the jury be polled as to any part of the verdict you see fit.
“Mr. Lucking: As to the fourth question, I want your honor to satisfy yourself that there has been no misunderstanding on the part of the jury. Now, the court does not sit here to aid counsel in trapping one side or the other. The court wants to know that the jury thoroughly Understand their verdict.
‘Mr. Paine: I wish it to appear that the counsel stands with the special questions answered in his hand, making these remarks to the judge.
“Mr. Lucking: I ask your honor to know positively that the jury have understood this in the same sense that the court does.
‘ ‘ The Court: You may poll the jury if you desire to poll, them. I will say nothing to the jury other than what I have said, — other than the charge.
“Mr. Paine: I object to the court’s ruling, after the remarks of the counsel in the presence of the jury, that he may poll the jury.
“Mr. Lucking: I ask the court to ask the jurors in connection with that question 4, — to explain question 4, and ask them if that is what they meant by it.
“The Court: That I decline to do. Gentlemen of the jury, you may be discharged from further consideration of the case.
“Mr. Lucking: I have asked that they be polled with reference to question 4, and also the other questions.
“The Court: The poll may be put, the jury being still here. You may poll the jury in that respect.”

Upon the poll of the jury, eight answered “Yes” after the question was put to them as amended by the court and as actually submitted. The ninth juror said: “I don’t think that was read as you have read it there. It is in another handwriting. I did not observe the other words.” Question: “Then it is not your verdict?” Anstoer: “No, sir.” The jury were then sent back to the jury room, and after a while returned, answering the fourth question “No.”

It seems impossible to believe that the jurors did not understand the question. The last words of the judge were upon this subject, and were clear and explicit. They had no difficulty in understanding the third question, with the words added. The fourth'question was in exact accord with the allegations and theory of the declaration. In view of the character of the testimony and the claim in the declaration, we are inclined to hold that it was error to permit the discussion in the presence of the jury, .and then to recall them after being discharged, and send them back to reconsider it. Brassel v. Railway Co., 101 Mich. 11.

For this error the judgment must be reversed, and a new trial ordered.

Other errors are assigned, but, as they are not likely to arise on a new trial, we need not discuss them.

The other Justices concurred.


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    ABEN v. TOWNSHIP OF ECORSE.
    Townships — Defective Bridge — Notice — Evidence — Question for Jury.
    Plaintiff, while riding upon a traction engine, sustained injuries by reason of the collapse of a bridge, due to the decay of the stringers, which had been in use for 15 years. In an^action against the township, persons who lived near the bridge testified that it had been in bad condition for some time; that it would shake when teams passed over it; and that they were afraid to drive across it with heavy loads. One witness testified that he had gone upon the bridge with the overseer of highways, and that it shook when they jumped upon it. This witness was contradicted by the overseer. The commissioner of highways testified that he went under the bridge two months before the accident, and made a careful examination, without finding any evidence of decay. Held, that there was evidence to go to the jury on the question of notice.
    Error to Wayne; Carpenter, J.
    Submitted April 7, 1897.
    Decided May 25, 1897.

      Case by William Aben against the township of Ecorse for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      William Look and Harry F. CMpman, for appellant.

      Samuel W. Burroughs and Ari E. Woodruff, for appellee.
   Moore, J.

Plaintiff brought this suit to recover for injuries received by him while riding upon a traction engine which fell through a defective bridge. The defect consisted in the decay of the ends of the stringers. It was the contention of the township that plaintiff failed to show any notice of the defect on the part of the township. The trial judge accepted the view urged by the defendant, basing his opinion upon O’Neil v. Township of Deerfield, 86 Mich. 610, and directed a verdict in its favor. In the light of the accident, there is no question raised about the bridge being defective. The only question involved is, was there evidence proper to go to the jury bearing upon the question of notice to the township ?

The accident occurred August 6, 1894. Louis Aben testified that, a short time before the day of the accident, the highway commissioner told him he had tested the bridge, and that it was sound. Charles Voss testified that the bridge was just in front of his house; that the bridge was in bad condition; that it would shake when a wagon went across-it; that, in June before the accident, he informed the overseer of highways that the bridge was in bad condition; that they went on the bridge together, and jumped upon it, and it shook. He afterwards qualified his testimony as to when this occurred by saying he could not tell whether it was in March, April, May, June, or July. Annie Theeck testified that she lived near the bridge; that it was an old bridge ever since she knew; that she saw the engine coming, and she and her sister went out to see the bridge shake when the engine passed over it; that she had seen it shake before when teams passed over it. Mathias Raupp swore that he was highway commissioner in 1879, and built the bridge that year; that he saw the stringers after the accident, and identified them as the stringers he put into the bridge. Mrs. Theeck testified that she lived near the bridge, and had for 27 or 28 years; that the stringers were rotten; that the bridge would always shake when a wagon passed over it; that it had been in that condition for nearly two years; that, in June before the accident, she saw the highway commissioner there examining the bridge; that she had driven over the bridge nearly every day before the accident with a loaded wagon, and did not think it would break down. Henry Ritter swore that he lived about a mile from the bridge; that he drove over the bridge with loads in safety, but that he put on small loads, because he was afraid it would break down; that, before the engine went over, he thought the bridge would break down if they went over it with a heavy load. The overseer of highways denied the testimony of Mr. Voss. The commissioner of highways testified that he was under the bridge in June, previous to the accident, to examine the bridge, to see whether it was safe; that he made a careful examination of it, and came to the conclusion that it was safe for reasonable travel, in the ordinary use of such bridges; that he could not, from anything he could discern with the eye, looking at it and examining it, See any evidence of decay. A great deal of testimony was given tending to show that the accident occurred because the engine was driven on one side of the bridge.

We think there was sufficient testimony in the case bearing upon the question of notice so that the case should have been submitted to the jury. See Township of Medina v. Perkins, 48 Mich. 67; Stebbins v. Township of Keene, 55 Mich. 552, 60 Mich. 214; Moore v. Township of Kenockee, 75 Mich. 332; Malloy v. Township of Walker, 77 Mich. 448, 464; Blank v. Township of Livonia, 95 Mich. 229; La Duke v. Township of Exeter, 97 Mich. 450 (37 Am. St. Rep. 357).

Judgment is reversed, and new trial ordered.

Long, C. J., Montgomery and Hooker, JJ., concurred with Moore, J. Grant, J., concurred in the result.


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    PATTERSON v. COLLIER.
    Limitation of Actions — Bills and Notes —Part Payment-Agency.
    The stockholders of a corporation, who join in executing a promissory note for its accommodation, do not, even though it is understood that the corporation shall pay the note, thereby constitute it their agent to make payments upon the indebtedness, so that .such payments will arrest the running of the statute of limitations in their favor.
    Error to Oakland; Moore, J.
    Submitted April 7,1897.
    Decided May 25, 1897.

      Assumpsit by John W. Patterson and another against Charles F. Collier, George E. Pomeroy, and others, upon a promissory note. From a judgment for all the defendants except George E. Pomeroy, on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Aug. C. Baldwin and Edward J. Bissell, for appellants.

      John H. Patterson, Charles F. Collier, in pro. per., and Clarence Tinker, for appellees.
   Hooker, J.

The defendants were stockholders in a corporation known as the Holly Vinegar & Preserving Company; defendant Pomeroy being president, and defendant Wilson being secretary, of the concern. In June, 1884, this corporation needed some money, and a conference was had by these defendants with one Seeley, who refused to loan it upon the credit of the company, but consented to furnish it upon the paper of the stockholders; and on June 21st these defendants made their joint note, payable to Daniel Seeley or bearer, for $1,000, payable in one year, with interest at 8 per cent., and obtained $1,000, which was paid over to the vinegar works. Two or three payments were made upon this note by the Holly Vinegar & Preserving Company; one of them being made by or through defendant Pomeroy, against whom the plaintiffs were allowed to recover. It is perhaps inferable that these payments were made with the knowledge of the defendants, and that it was the arrangement, made when the money was borrowed, that the company should pay the note. The defense interposed is the statute of limitations, and the only question is whether the case is taken out of the statute by these payments.

Counsel for the plaintiffs contend that the Holly Vinegar & Preserving Company was made the agent of the defendants to pay this note, and, therefore, that the payments were made on their behalf and by their consent. On the other hand, the defendants insist that the payments were not made for them, or upon their behalf, or by the use of their funds. It is manifest that all parties knew that this was accommodation paper, and that payments made by the vinegar company were made on its own behalf, upon an obligation that it was morally bound to pay, and that the defendants wished and expected it to pay. There is nothing in this that ought to be construed into authority to pledge the defendants’ credit. If the case is taken out of the statute by such payment, it is by reason of a technical application of the doctrine of agency. Had the vinegar company signed the note with the defendants, such payment would not have had such effect, under our statute and the decisions of this court. 2 How. Stat. § 8730. The actual relation of the parties was substantially the same as though the vinegar company had joined in the note. There is nothing in the case that shows that the defendants intended to give the company authority to extend this note beyond the statutory period, and we think the case is within the rule of the case of Home Life Ins. Co. v. Elwell, 111 Mich. 689, and cases there cited.

The judgment of the circuit court is affirmed.

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


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    RENTCHLER v. LAWTON.
    Contracts — Construction—Homestead Rights.
    A written contract provided that S., in consideration of the sum of §225, would convey certain lots to L.; that L. should erect a dwelling house upon one of the lots, for which S. would furnish the lumber and do the mason work; and that L. should purchase the lots, and pay for them, and for the labor and material, in the manner thereinafter provided. By a further provision, S. was to deliver to L., when the house should be completed, a statement of labor and materials furnished by him, the full amount whereof should, when agreed upon, with the §225 for the lots, be filled into “the annexed land contract,” which should then be executed by the parties. No time for the payment or conveyance was otherwise provided. Held, that L. acquired no homestead rights by virtue of his possession under such contract, it amounting merely to an agreement between the parties that, in case certain conditions should be performed, a contract of sale would be made on terms to be agreed upon.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 9, 1897.
    Decided May 25, 1897.

      Bill by Mathias Rentchler against Milton S. Lawton and others to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.
    Affirmed.

      Lawrence & Butterfield, for complainant.

      Frank E. Jones, for defendants.
   Long, C. J.

This is a bill to enforce a mechanic’s lien. It appears that on the 19th day of January, 1894, the defendant Conrad Schafer was the owner of two lots in the village of Saline. On that day he entered into a contract in writing with the defendant Lawton. In the first paragraph of this contract it was agreed that Schafer, in consideration of the sum of $225, would sell and convey to Lawton the two lots mentioned. No time was set for the payment or the conveyance. It was further provided in the agreement that Lawton at once, upon the execution thereof, would “enter upon the work of erecting a dwelling house” upon the lots, or one of them, make excavation therefor, and draw, deliver, and furnish the stone to be used in the cellar wall and foundation, also the sand, gravel, and lime, at such times as they would be needed; that he would furnish and deliver all hardware, trimmings for doors and windows, and do all the carpenter work, tin work, and roofing, all the painting, and keep the house insured for the benefit of Schafer. Schafer was to do the mason work, and furnish the lumber. It was further agreed that Lawton would purchase the two lots, and pay for the said lands, and all other sums due for labor and material, “in the way and manner hereinafter provided for and agreed upon.” It was then agreed that, when the house should be completed, Schafer should deliver to Lawton a statement of all labor and material furnished by him, and that the full amount thereof, when agreed upon, with the $225 for the lots, should “be filled into the annexed land contract, which shall at that time, and after the said amount shall be filled in, be executed and acknowledged in duplicate by the parties hereto.” This agreement was signed by Schafer and Lawton, and a land contract for the sale of said lots, with the amount of the money consideration left blank, was drawn up and attached, but never executed. There is nothing in the record to show that the complainant ever saw this contract, or knew of its provisions. He was told by Lawton that he had bought the lots, and complainant made an agreement with Lawton to do the carpenter work in connection with the house for $150. He began the work on the 5th day of April, 1894, and finished it October 3d following, also performing $20 worth of extra work, which has been fully paid for, as has also about $5 on the contract price, leaving $145 now due. Defendant Lawton, with his wife, moved into the house in July, 1894, and remained there until some time in the following February, at which time he moved away, and left Saline, and has surrendered all his rights under the contract with Schafer. The defendant Schafer then moved into the house, and resided there at the time of the hearing, having sold the other lot for $100. The market value of the house and lot as they now stand is $1,000. Complainant brought suit to recover his pay for the carpenter work done on the house. The court entered decree in favor of complainant for the amount claimed, — $145. Defendants appeal.

The defendants’ contention is that the property is the homestead of defendant Lawton and wife, or was at the time the lien attached, and that, the contract not being in writing, and signed by the wife, the lien cannot be enforced. This contention cannot be sustained. The Law-tons never had any such interest in the property that a homestead interest could be based upon it. The contract made with Schafer was an agreement simply that, when certain conditions were performed, a contract would be máde upon terms to be agreed upon. No inrther discussion is necessary.

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

The other Justices concurred.


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    BYRNES v. PALMER.
    1. Fixtures — Mortgagor and Mortgagee — Evidence.
    Defendant erected a building on mortgaged premises owned by him, and, after default, deeded the property to plaintiff, the mortgagee, in satisfaction of the mortgage, taking back a lease for one year, with an option to purchase. Within the year he removed the building to other land owned solely by him, and, in replevin by plaintiff, claimed that the building was erected for partnership purposes by a firm of which he was a member, and was to be removable at their option. Plaintiff testified that defendant assured her, when the deed was given, that the building would become her property, and that he had first tried to borrow more money because of the additional security. There was also testimony that defendant had made contradictory statements with respect to his reasons for removing the building. Held, that the evidence raised a question for the jury as to whether the building was personal property, as claimed by defendant, or was in fact a fixture.
    2. Replevin — Damages—Costs.
    Under 2 How. Stat. § 8341, providing that in actions of replevin the jury shall, if they find for the plaintiff, assess the damages for the unlawful taking and detention, the expense of replacing a building wrongfully removed is properly included in the verdict, and is not a part of the taxable costs.
    3. Evidence — Harmless Error.
    The exclusion of evidence as to the rental value of property, upon an issue as to its value, is not reversible error, where the witnesses whose answers are excluded are permitted to testify to the actual value.
    Error to Muskegon; Russell, J.
    Submitted April 9, ,1897.
    Decided May 25, 1897.
    Replevin by Matilda E. Byrnes against George G. Palmer. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Arthur Jones, for appellant.

      Chamberlain & Cross, for appellee.
   Montgomery, J.

Plaintiff sued in an action of replevin to recover a building which had been constructed upon the west two-thirds of lot 2, block 122, Durkee’s addition to Muskegon, and which had been moved off the land by the defendant. On July 22, 181?1, defendant was the owner of the land, and on that day executed a mortgage to plaintiff to secure the payment of $600 and interest in three years from date. There were two dwelling houses on the lot at this time, and subsequently the building in question was erected. The defendant having defaulted in payment, on the 29th of May, 1895, an arrangement was made by which the defendant deeded the land to plaintiff in satisfaction of the mortgage, and she gave him back a lease for one year, with an option to purchase within that time. Plaintiff testified that, before taking the deed, defendant had endeavored to borrow more money of her, stating that the improvement on the property, including the barn or building in question, made the property good security. She also testified that defendant told her, at the time the deed was given, that the barn was hers. She further testified that, after defendant had removed the building, she demanded an explanation of why he removed her barn from the lot, and he replied that he did not deed the lot to her, but deeded the lot belonging to his next-door neighbor. This testimony was corroborated by plaintiff’s husband and others. This testimony is disputed by defendant. He testified that the building was erected by himself and his brother as a carpenter shop, and that it belonged to the firm, and was constructed for a carpenter shop, to be used there, or removed, if their business demanded it. He also testified that he bought the lot upon which he moved the building. The plaintiff recovered a verdict, and defendant brings error.

The chief contention of defendant’s counsel is that a verdict should have been directed for defendant on the ground that it conclusively appeared that the building was not attached to the soil, and that it, was erected with the intention that it should remain personal property. The trial judge did charge the jury that if the building was erected by, and was the property of, Palmer Bros., the plaintiff could not recover. We' are of the opinion that the court was right in refusing to withdraw the question from the jury. The statements of defendant were wholly inconsistent with the claim now put forth, and the facts that the building was first erected on land owned solely by defendant, and, when removed, was removed to land wholly owned by him, were of some significance. We think it was proper to permit the jury to determine the truth or falsity of defendant’s claim.

Plaintiff was permitted to recover, as a part of her damages, the expense of replacing the building on her lot. This is complained of. We think the trial judge was clearly right. 2 How. Stat. § 8341, provides that on recovery by plaintiff the same jury shall assess the damages which he has sustained by the unlawful taking and detention, or by the unlawful detention, of the property. Surely the plaintiff suffered damages by the taking of her building from her property to another part of the town. It is suggested that this charge was properly a part of the taxable costs, but we know of no authority for the officer to do more than deliver the building to plaintiff. If the building had been removed from plaintiff’s premises in another county, it would not be contended that the officer might, under his writ, deliver it on the property from which it was taken.

Error is assigned on the refusal of the court to permit evidence of the rental value of the property. It is not contended that this was admissible, except for its bearing on the value of the property; and, as the same witnesses by whom the rental value was sought to be established testified to the value of the property, it is not apparent that defendant was injured by the ruling, even if the testimony was technically admissible, particularly as the testimony of value itself had but a remote bearing on the question at issue.

Some criticism is made upon the charge of the court, but we think the charge, as a whole, presented the questions involved fairly.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J,

text:
    BRUNDAGE v. SHELLY.
    Trial — Instructions.
    Failure to give a specific request is not error if the subject-matter is fully and carefully covered in the general charge.
    Error to Wayne; Aldrich, J., presiding.
    Submitted April 9, 1897.
    Decided May 25, 1897.
    Replevin by Samuel L. Brundage and others against Sumner P. Shelly and others. Prom a judgment for plaintiffs, defendants bring error.
    Affirmed.

      T. E. Tarsney, for appellants.

      Bowen, Douglas & Whiting, for appellees.
   Moore, J,

This is an action of replevin for a quantity of sawlogs which the plaintiffs claimed defendants wrongfully took from them. The logs were not delivered to the plaintiffs on the writ of replevin. Upon the trial the plaintiffs recovered judgment for the value of the logs. Defendants appeal.

The questions involved are almost wholly questions of fact. It was the claim of plaintiffs that they sold the logs in question to one Morrow for $9.25 a thousand feet, $7.50 of which was to be paid when the logs were scaled on the banks of the Cunard river, in Canada, and the balance when the logs were delivered at Shelly & Robertson’s mill, at Wyandotte, the title of the property to remain in the plaintiffs until paid for. It was their claim that they brought the logs in controversy .over to near Shelly & Robertson’s mill before any payment was made upon the logs, because it served their convenience to do so at the time, and tied the logs up above the boom of Shelly & Robertson, and notified the foreman of Shelly & Robertson that he must not interfere with the logs until the plaintiffs were paid; that one night after that the logs were taken and put in Shelly & Robertson’s boom. It was the defendants’ claim that these logs were bought by them from Morrow, who was to buy logs on the banks of the Cunard river, which were to be measured by Shelly & Robertson on the bank, who were to pay him $7.50'a thousand feet, their mark to be put upon the logs, and the title to be in Shelly & Robertson as soon as the logs were scaled. It is their claim that, prior to the time these logs were delivered, Mr. Shelly had a talk with Samuel L. Brundage, in which he was told the terms of the contract between Shelly & Robertson and Morrow, and that Brundage was told the plaintiffs must notify Shelly & Robertson if Morrow did' not pay, and he said all right, they would go on and get out the logs, and give Shelly notice if Morrow did not pay; that no notice was received from plaintiffs. Defendants claimed that the scale for the logs was received October 31st; that defendants waited until November 5th, when $1,200 was sent to Morrow to pay for the logs in question; and that the title passed to the defendants. Testimony was given tending to support the several theories of the parties litigant.

It is the claim of counsel for appellants that the title to the logs passed to defendants under the holding in Whit- comb v. Whitney, 24 Mich. 486. We think this cannot be said to be true as a matter of law. If the contention of the plaintiffs was true, the title to the logs was not to pass until the plaintiffs were paid for them, and it was for the jury to say which version was true.

Error is assigned because of the failure of the trial judge to give certain requests to charge. While the trial judge did not give all of the requests of counsel, he covered the subject fully and carefully in his general charge. The case was properly submitted to the jury, who accepted the plaintiffs’ version of the transaction.

The assignments of error have all had consideration, but they do not call for further discussion.

Judgment is affirmed.

The other Justices concurred.