text:
    NOBLE v. GRANDIN.
    Equity Jurisdiction —Cancellation of Deed —Land in Another State — Agreement to Arbitrate — Fraud.

       Complainant, "a resident of Michigan, sold to defendants, non. residents of this State, 13,000 acres of land in the State of Missouri. Twenty-five thousand dollars was paid upon the purchase price. An agreement was made that the purchase price should be 'determined by the amount of merchantable pine timber standing on the land, to be estimated by three appraisers. The estimate made showed timber of the value of about §12,000. Defendants brought a suit at law in this State against the complainant to recover the difference between the §25,000 and the value of the timber so estimated. Complainant filed a bill in chancery charging fraud on the part of the defendants in the sale, offered to pay back the §25,000, and prayed for an injunction to restrain the suit at law. Held, (1) that the chancery court had jurisdiction to set aside the deed and decree a reconveyance of the land; (2) that the agreement by which the amount of the purchase price should be determined was not an arbitration; (3) that complainant is not limited to his remedy at law, but may file a bill in chancery to set aside the deed on account of fraud.
    Appeal from Wayne; Waite, J.
    Submitted October 3, 1900.
    Decided December 19, 1900.
    Bill by Bostwick R. Noble against Elijah B. Grandin and Livingston L. Hunter to cancel a certain deed and to restrain an action at law. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Bacon & Yerkes (John D. Conely, of counsel), for complainant.

      Geer & Williams and J. H. Cole, for defendants.

       Head-note by Grant, J.

   Grant, J.

This bill is filed to cancel a certain deed and to restrain an action at law. Defendants pleaded to a part of the hill and answered to a part. The court below sustained the plea and dismissed the bill.

The bill states substantially that on the 2d day of December, 1895, complainant executed a warranty deed to the defendants for about 13,000 acres of land situated in the State of Missouri, and was paid by the defendants at the time of the delivery of such deed the sum of $25,000 upon the purchase price of such lands; the purchase price of said lands to be arrived at on the basis of $3.50 for each 5,384 8-13 feet of merchantable pine timber standing on said land, which amount was to be ascertained according to a contract bearing even date with said deed. The contract contains the following provisions:

‘ ‘ That whereas, the party of the first part has this day sold to the parties of the second part a tract or tracts of timber land situated in Ripley county, Missouri, consisting in the aggregate of 13,760 acres, and delivered a warranty deed therefor, at a stipulated price of three dollars and fifty cents ($3.50) per acre, subject to the following modification, viz.: This sale is made on the basis that 13,000 acres of said land has now standing on it amounting to 70,000,000 feet of merchantable pine timber (that is, that said 13,000 acres shall average 5,384 8-13 feet of merchantable pine timber per acre); and, in order to ascertain the amount of merchantable pine timber now standing on said land, it is agreed that the party of the first part select one timber estimator, and the second parties may select one estimator, and the two estimators so selected shall select a third estimator, experienced in estimating Southern timber, and that the three thus selected shall at once proceed to estimate the timber on said land, and, in case of disagreement as to the amount of estimate of any piece of said land, the agreement of two of them shall be accepted as the estimate of the amount of timber on said piece or pieces of land. When the estimate is made, should there be less than 70,000,000 of feet on the 13,000, then there should be a deduction from the purchase price ($3.50 per acre) in the same ratio that the true estimate is less than 70,000,000; and, should the estimate show more than 70,000,000 of feet on said 13,000 acres, then the said second parties are to pay the excess over 70,000,-000 feet at the rate of $3.50 for each 5,384 8-13 feet of excess. It is further agreed that for all of said land conveyed in excess of 13,000 it is to be paid for at the same ratio. ”

In pursuance of this agreement complainant appointed as his estimator one Irwin Eveleth, and the defendants appointed W. H. McGregor as their estimator, and these two appointed as a third estimator one George A. Withers. In January, 1896, McGregor and Eveleth went on the land, and, in the absence of the third estimator, Withers (who took no part in making such estimate), proceeded to make an estimate of the timber on the land. While such estimate was being made, complainant went to Missouri, and sent Eveleth, his estimator, back to Michigan; but afterwards, without the knowledge or consent of the complainant, and at the instigation of the defendants, Eveleth returned to Missouri, and with McGregor completed the estimate of the timber on the land, a copy of which, pui’porting to be signed by Eveleth and McGregor, fixing the amount of merchantable pine timber on said land at 20,892,500 feet, was delivered to complainant, who immediately repudiated the same and refused to be bound thereby.

On the 29th day of October, 1896, defendants commenced a suit against complainant in the circuit court for the county of Wayne to recover back a portion of the sum of $25,000 paid on the purchase price of the lands by defendants to complainant at the time of the delivery of the deed, basing their right to recover such amount on the estimate as made by McGregor and Eveleth. Issue was joined in that suit. On the 6th day of March, 1897, complainant commenced a suit in the circuit court for the county of Wayne, in chancery, against the defendants, to restrain them from prosecuting said action at law, and to rescind the contract and deed on the ground of fraud, in which suit the defendants appeared and filed a plea to a part of the bill, and an answer to the remainder, which said suit is now pending upon said bill of complaint, plea, and answer. After the commencement of said suit by the complainant against the defendants, the defendants, on the 1st day of October, 1897, discontinued the first suit brought by them against complainant to recover moneys paid on said purchase price.

On the 18th day of May, 1897, and after complainant had repudiated such contract, and had commenced his said suit in the circuit court for the county of Wayne to rescind, the same, the defendants claimed to have caused another estimate of the timber on said land to be made by said three estimators, and served a copy of said estimate upon the complainant. On the 1st of November, 1897, defendants commenced a second action in assumpsit in the circuit court for the county of Wayne against complainant, to recover back a portion of the $25,000 paid on the purchase price of the land at the time of delivering the deed, basing this suit upon the contract and the second estimate, claimed to have been.made in 1897. On the 2d day of May, 1898, complainant filed the bill in this cause to restrain the defendants from prosecuting their second suit at law, and to rescind the deed and contract providing for the estimate of the pine timber on said property, on the ground that such contract, and the provision in the deed relating to the purchase price, were obtained from complainant by fraudulent representations. Defendants appeared in said cause, and pleaded to so much of the bill as prays for a rescission of the contract and setting aside the deed, and answered the bill so far as it prayed for an injunction. On the 20th day of February, 1900, the case was brought for a hearing before Judge Waite, of the Wayne circuit, on the bill and plea, and on an application for a preliminary injunction by complainant. The application of complainant for a preliminary injunction was denied, and the plea of the defendants to the bill was allowed, and so much of the bill as was covered by the plea was dismissed, from which decree complainant appeals.

The plea of the defendants alleges that:

“These defendants are nonresidents of the State of Michigan, and that complainant is a resident of the county of St. Clair, in said State of Michigan, and that the lands described in said bill of complaint are situate in the State of Missouri, and that neither of these defendants nor said complainant, at the time of the filing of said bill of complaint, was a resident of said county of Wayne, where said bill was filed, and that said suit in no manner affects or relates to real estate in the county where the same was exhibited as aforesaid.”

It is claimed by defendants that neither the complainant nor either of the defendants being a resident in the county of Wayne, and none of the property being situated there, therefore a bill would not lie to compel a reconveyance of the lands to complainant.

We think it is settled that, where the court has jurisdiction of the parties, it may decree a conveyance of real estate by those parties, although the property be situated in another State or country. Especially is this true where the title has been acquired by any species of mala fides practiced on the plaintiff. In Muller v. Dows, 94 U. S. 444, the court, after speaking of the English chancery decisions, said:

“It is here undoubtedly a recognized doctrine that a court of equity sitting in a State, and having jurisdiction of the person, may decree a conveyance by him of land in another State, and may enforce the decree by process against the defendant. True, it cannot send its process into that other State, nor can it deliver possession of land in another jurisdiction; but it can command and enforce a transfer of the title.”

In Gardner v. Ogden, 22 N. Y. 327 (78 Am. Dec. 192), in which a bill in equity was filed to set aside a deed fraudulently obtained from the plaintiff, and to compel the defendant to reconvey to plaintiff certain lands situate in the State of Illinois, it was objected that the court had no jurisdiction in the case. It was said:

• “The supreme court of this State, as a court of equity, could not, therefore, take jurisdiction of an action for the recovery of lands situate in another State, where the proceeding was in rem; but, where it has jurisdiction of the proper parties, it may by its judgment or decree compel-them to do equity in relation to lands located without its jurisdiction. The court in such a case acts in personam. We regard this as so well settled by authority that it cannot longer be seriously questioned. A review of the authorities in England and this country will, we think, place this matter beyond all doubt. * * * These cases must be held to establish the' jurisdiction of the supreme court in the present case on an impregnable basis, and that the court, having jurisdiction of the party in whom the legal title to the land in controversy is vested, may, by its process of attachment and injunction, compel him to do justice by the execution of such conveyances and assurances as will affect the title to them in the State of Illinois.”

See Dale v. Roosevelt, 5 Johns. Ch. 174; Arglasse v. Muschamp, 1 Vern. 75; Farley v. Shippen, 2 Va. 254; Cloud v. Greasley, 125 Ill. 313 (17 N. E. 826).

The present case is not like Richard v. Boyd, 124 Mich. 396 (83 N. W. 106). There the proceeding was in rem and local, and the court could not grant the relief asked without ordering a sale of the land for the satisfaction of the lien. It was held, however, in Roberts v. Roberts, 124 Mich. 414 (83 N. W. 132), that a suit to compel the production of a deed could be maintained in another county than where the lands lay, notwithstanding the statute (1 Comp. Laws 1897, § 434) providing that a suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter be local. We think the case is no different in this respect because all the parties are nonresidents of this State. The question is, Did the court have jurisdiction of the parties? Some question is raised in regard to this. It appeared that the defendants came into this State, and submitted to the jurisdiction of the circuit court of Wayne county by commencing an action at law against the complainant to recover -for overpayments . under the contract given with the deed, and as a part of it. When the chancery suit was commenced by complainant against them, the subpoena was served, by order of the court, upon their attorneys in the suit at law. The defendants appeared in the case, pleaded to a part of the bill, and answered as to the rest. This gave the court jurisdiction of the parties. We think the court was in error in sustaining the plea.

It is contended by complainant that the court was in error in denying the injunction restraining the defendants from proceeding with the suit at law. On the other hand, the defendants contend that the court was not in error, in that the complainant has an adequate remedy at law. The question necessarily leads to a discussion of the facts set up in the bill, and the character of the instrument sought to be set aside. It appears from the allegations in the bill that the complainant was willing to sell to defendants the land in controversy at $3.50 per acre. The bill alleges that an agreement was entered into between the parties on November 2, 1895, to sell at that price. The complainant, in pursuance of that agreement, procured abstracts of title to the land and submitted them to the defendants; and afterwards, and on December 2, 1895, the parties met at St. Louis, Mo., for the purpose of closing up the sale. The fraud complained of relates to what took place at St. Louis, where, it is claimed, the agent made the false representations that the land contained upwards of 70,000,000 feet of pine timber, and that, relying upon such representations, complainant agreed to enter and did enter into the contract accompanying the deed above set forth. 'The further claim made by the bill is that the contract was an agreement to submit to arbitration, and the objections made to the award are that the arbitrators had made a prior award; that the submission to arbitration had been revoked by the complainant; that the arbitrators had acted fraudulently, in that they failed to estimate all the timber; that they made mistakes; that they did not correctly locate the different descriptions of land, so as to know what timber was on the land; that these are matters outside the record, and cannot be shown in an. action at law.

There might, and undoubtedly would, be some force in these claims, if the contract can be construed as a submission to arbitration; but we are satisfied it cannot be so construed. Under this agreement the parties named therein were simply to estimate the merchantable pine timber on the land, and determine the amount, and make a report to the parties to the contract as soon as it could be correctly done. This, most certainly, is not a submission to arbitration. The theory of an arbitration is that it is a substitute for a proceeding in court. Such agreements can be revoked by either party, and notice of the time and place of meeting of the arbitrators must be given the parties, so that they may have the opportunity to be heard. There is a broad distinction between a submission to arbitration and the reference of a collateral or incidental matter of appraisement, measurement, or calculation. Morse, Arb. 36, lays down the rule thus:

“ It is only matters inherently doubtful that can constitute the material for submission. Matters which are doubtful solely because no pains have been taken to remove the doubt are not proper to be submitted. There must at least be a conceivable possibility of a difference of opinion between the parties. The decision must be arrived at by some use of discretion, — by some exercise of the judicial faculty. Thus the sum of a column of figures, before they have been added, is, in a certain sense of the phrase, in doubt. The number of square feet in a given surface is likewise in doubt till the measurement and calculation has been made. But a doubt of this nature is not of the sort which can be submitted to arbitration. It is more accurately to be described as a want of knowledge than as a doubt. It is an uncertainty of that description that there is no intrinsic obstacle to a solution, — no room for intelligent men to dispute concerning’ the result obtained from the application of established processes of calculation to known and unquestioned facts. Therefore there is no occasion for calling into play the powers of a judge or arbitrator, since there is nothing to be adjudicated upon. The labor to be performed is purely ministerial in character.”

This distinction is pointed out in many cases contained in the books.

In Palmer v. Clark, 106 Mass. 389, the court said:

“A reference to a third person to fix by his judgment the price, quantity, or quality of material, to make an appraisement of property, and the like, especially when such reference is one of the stipulations of á contract founded on other and good considerations, differs in many respects from an ordinary submission to arbitration. It is not revocable. The decision may be made without notice to or hearing of the parties, unless such notice and hearing be required by express provision or reasonable implication.”

Authorities could be multiplied upon this question, holding the same doctrine; but, as said by the court in Conference of M. E. Church v. Seitz, 74 Cal. 287 (15 Pac. 839):

“It must be admitted that there are cases to the contrary. But in most of them the distinction does not seem to have received attention, and the cases in which the distinction was noticed do not seem to us to be well reasoned. * * * In a case like the present, where the reference to a third person is provided for in a contract made long before any controversy arises, which contract is made upon valuable consideration other than the mutual promise to submit to the decision of the third party, — the decision being merely one link in the chain of the claim, — we think that the proceeding is not an arbitration.”

The following cases sustain the proposition that such a submission is not an arbitration: Collins v. Collins, 26 Beav. 306; Kelly v. Crawford, 5 Wall. 785; Willingham v. Veal, 74 Ga. 755; Norton v. Gale, 95 Ill. 533 (35 Am. Rep. 173); Stose v. Heissler, 120 Ill. 433 (11 N. E. 161, 60 Am. Rep. 563); Pearson v. Sanderson, 128 Ill. 88 (21 N. E. 200); Haley v. Bellamy, 137 Mass. 357; Leonard v. Cox, 64 Mo. 32; Green & Coates Streets R. Co. v. Moore, 64 Pa. St. 91; Flint v. Pearce, 11 R. I. 576.

Under these authorities, we must hold that this agreement, which was made part of the deed, was not an agreement to submit to arbitration, but was and is a collateral part of the contract, and is not revocable by either party. The real question, therefore, which is raised by the bill, is whether the defendants were guilty of fraudulent representations in obtaining the deed and contract from the complainant, and, if so, whether complainant may go into a court of equity to set them aside.

The situation as charged in the bill is this: Complainant valued his land at $3.50 per acre, amounting to about $45,000, and had made a parol agreement to sell it to defendants at that price per acre. Seventy million feet of pine, at the price agreed upon, would amount to about the same. Complainant had not estimated the timber, and was ignorant of the amount. Defendants’ agent represented to complainant, in their presence, that he had estimated the timber, and that there was at least 70,000,000 feet; that there might be more; and that complainant could not lose, and might possibly gain, by selling upon the basis of $3.50 for every 5,384 8-13 feet of merchantable pine timber. It turned out — based upon the report of the estimators agreed upon' — -that there was pine timber of the value only of about $12,000. If this be true, White lied. If White lied, defendants must pay the penalty for the falsehoods and misrepresentations of their agent, however innocent in fact they may have been. Defendants promptly brought suit, even before the estimate which had been agreed upon had been made. Complainant promptly filed a bill of complaint to restrain the suit at law, and offered to repay the $25,000 which defendánts had advanced upon the purchase. Defendants then discontinued that suit at law, and procured an estimate to be made by all three estimators, after which they again brought suit. Complainant thereupon filed another bill (the present one) to restrain the prosecution of the suit at law.

If the only question of fact involved was the amount of pine timber upon the land, the remedy at law would be adequate. But complainant asserts that he was induced by the fraudulent representations made on the part of the defendants’ agent as to the amount of timber to enter into the contract; that he made the sale upon that basis, and would not have parted with his title to the land except on the basis that White had examined the land and had made an honest estimate. Complainant was willing to take his chance that White’s estimate might be erroneous. But did he agree to sell if White’s estimates were intentionally false and fraudulent, and made for the express purpose of getting the land at less than one-third of its real value? He asserts that the land is worth over $45,000. If left to his remedy at law, the position of the complainant is this: He must defend the present suit at law. What relief can complainant obtain in that suit for the fraudulent representations on account of which he sold his land ? If it be found that there is only $13,000 worth of timber upon the land, but that the land is actually worth $45,000, can he recover the difference? If he can defeat the present action upon the ground that there is more than $25,000 worth of pine timber, he must still bring another suit to recover the balance of the purchase price. Can he bring suit on his parol contract for $3.50 per acre, on the ground of misrepresentation as to the amount of timber? Two remedies are usually open to one who has been induced to part with the title to his land through fraud: He may sue in an action for the fraud, or file his bill in chancery to rescind the sale upon tender or offer to pay back what he has received. Courts do not usually say to one who has thus parted with his title through fraud, “You can sue your grantee and recover whatever damages you can prove, and run the risk of his solvency to obtain the amount.” The usual and appropriate remedy is in equity, to rescind the sale, cancel the deed, and place both parties in stain quo. Therefore, in my judgment, the question in this case is. Does the bill of complaint allege a fraud of which courts of equity will take cognizance ? I think it does. If the allegations of the bill be true, and the estimators correctly and honestly estimated the timber, complainant has been compelled to part with the title to property which he valued, and still values, as worth $45,-000, for $12,000 or $13,000. He avers that he executed the deed upon the representations of the defendants’ agent, made in their presence. Defendants answered, denying all the allegations of fraud. I think the averments of fraud are sufficient to give the court jurisdiction, and to entitle complainant to a hearing upon proofs.

The decree is reversed, the case remanded for further proceedings, and a temporary injunction granted until final decree. Complainant will recover costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    NICHOLS v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    1. Railroads — Couplings —Violation op Rule — Company’s Knowledge — Waiver.
    Mere proof of a custom of brakemen, in making couplings, to guide the link with the hand instead of a stick, in violation of the rules of the company, is insufficient to preclude the company from relying upon such violation as a defense to an action for injuries received by a brakeman while so engaged, but, to have such effect, it must be shown that the custom was so universal and notorious that the company may be presumed to have known of and ratified it.
    2. Same — Sapety Couplers — Interstate Commerce Commission— Reports — Evidence.
    Act Cong. March 2, 1893 (27 Stat. 531), § 2, provides that after January 1, 1898, it shall be unlawful for any carrier to haul on its line any car used in interstate commerce not equipped with automatic couplers. Section 7 provides that the time for compliance with the act may be extended by the interstate commerce commission. The Interstate Commerce Act (24 Stat. 384), § 14, as amended by Act March 2, 1889 (25 Stat. 859), § 4, provides that the commission may provide for the publication of its reports and decisions, and that its authorized publications shall be evidence in all courts without further authentication. Held, that the exclusion, for lack of authentication, of a pamphlet decision, report, and order of the commission, signed by the secretary, extending the time within which defendant must comply with the act of 1893 as to automatic couplers, was error, since the report was within the provisions of the act of 1889.
    Error to Kent; Adsit, J.
    Submitted October 11, 1900.
    Decided December 19, 1900.
    Case by Thomas J. Nichols against the Chicago & West Michigan Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Smith, Nims, Hoyt & Erwin (Frederick W. Stevens, of counsel), for appellant.

      McCormick & La Grou, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant for personal injuries received by him while acting as brakeman. The defendant brings the case here by writ of error. The plaintiff, a married man, about 28 years old, entered the employ of the defendant as freight brakeman in September, 1898. About seven weeks thereafter, after making a coupling between a car having a safety coupler and a car, which he claims belonged to the Baltimore & Ohio road, that did not have a safety coupler, but a pin and link coupler, he attempted to couple the last-described car to another car where the coupling had to be done with a pin and link. He claims that, when he attempted to make the coupling, he learned for the first time the car was without a grab-iron or handhold, and, as he reached over to put the pin down, he slipped, and his arm was caught between the dead woods.

A great many questions are raised by counsel. In the main the case was carefully tried, and we do not think it necessary to discuss all of the questions raised. In the declaration of the plaintiff, and upon the trial, it was claimed the defendant was negligent in running the cars upon its road which caused the accident, when they were not furnished with such safety couplers as are required by the provisions of section 5511, 2 Comp. Laws 1897. It was also claimed it did not comply with the provisions of an act of Congress, which will be referred to later.

When the plaintiff entered the employ of the defendant, a copy of the rules of the defendant company was furnished him. One of them reads as follows:

“All persons entering into or remaining in the service of this company are warned that the business is hazardous, and that in accepting or retaining employment they must assume the ordinary risks attending it. Each employé is. expected and required to look after and be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars and in all movements of trains. Stepping upon the front of approaching engines, jumping on or off trains when moving at high speed, going between cars in motion to couple or uncouple them, coupling by hand when it is practicable to use a stick or pin for guiding the link, and all similar imprudences, are dangerous, and in violation of duty, and are strictly prohibited. Employés are warned that if they commit them it will be at their own peril and risk. Employés of every rank and grade are warned to see for themselves, before using them, that the machinery or tools which they are expected to use are in proper condition, or see that they are put so before using.”

It is claimed the plaintiff, inasmuch as he acknowledged the receipt of a copy of the rules, and agreed to observe them and be governed by them, is bound by his agreement; and, as it was not necessary to couple the cars in the way he did it, but as there was a safer way to do it, he cannot recover.

On the part of the plaintiff it is claimed that he coupled the cars according to the universal custom of the brakemen under like circumstances, and that there was a waiver of the rules and his agreement on the part of the company. He offered testimony tending to prove his contention in relation to the custom. The court charged the jury upon that feature of the case as follows:

“Among other circumstances proved in this case is an alleged custom on defendant’s road that the company permitted cars to be coupled in the manner in which plaintiff attempted to couple the one or ones in question, not equipped with safety devices. If that was true, and it conflicted with plaintiff’s contract, it was a waiver on defendant’s part of plaintiff’s agreement not to do so, — not to enter into such dangerous employment, I mean, — if the agreement is construed to oonflict with this custom. ”

The rule applicable to such cases has been stated in this court in Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23), as follows:

“It,is well settled that a violation of the rules of the company will defeat recovery. The exception to this is where the company itself has sanctioned the custom of its employes to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be uhjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597, 602 (60 N. W. 309). Fairly construed, the above rule is notice to brakemen not to enter between the cars while in motion, to uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion, to uncouple them. The case was not submitted to’ the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the instructions. Under the instructions given, this rule was virtually thrown out of consideration, and the jury permitted to find that, if it was customary for brakemen to do this, then it was not negligence on the part of the. deceased. Custom alone is not sufficient. It was held in Glover v. Scotten, 82 Mich. 369 (46 N. W. 936), that where a safe place was provided for. switchmen to ride, and they chose to ride in a more dangerous one, and always did so, that would not relieve them from contributory negligence. When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt of a copy of these rules, and agreed to abide by them, it had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus probandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that the company was presumed to have had knowledge of it and to have ratified it. This is an important feature of the case, and was not, we think, by the instructions, properly submitted to the jury.”

We think the charge failed to state the rule correctly, as it did not inform the jury the custom should have been shown to have been so universal and notorious that the company is presumed to know it. The charge also spoke of the custom as proved, when it was for the jury to determine from the evidence whether the custom was proven or not.

It was claimed on the part' of the plaintiff that an act of Congress (27 Stat. 531, § 2) had not been observed by defendant. The section reads as follows:

“That on and after the first day of January,-1898, it shall be unlawful for any common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”

Section 7 of the same act reads as follows:

“That the interstate commerce commission may from time to time, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this act.”

It was the claim of the defendant an extension-of time had been granted to it, and also to the road whose car caused the injury, in which to comply with the provisions of the act. To prove this contention, it offered in evidence a pamphlet which purported to be a report of the interstate commerce commission, which report the circuit judge rejected. Section 14 of the interstate commerce act, as amended March 2, 1889 (25 Stat. 859), contains the following provision:

“The commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publications shall be competent evidence of the reports and decisions of the commission therein contained, in all courts of the United States and of the several States, without any further proof or authentication thereof.”

The pamphlet offered in evidence purported to be a decision of the commission made December 23, 1897, and their report and order. It is signed: “By the Commission. Edw. A. Moseley, Secretary.” We think the report offered in evidence came within the provisions of the statute, and should have been received.

We do not deem it necessary to discuss the other questions raised, for the reason that those assignments of error which we deem to be well taken grow out of the two errors which we have already discussed, and are not likely to occur again.

The judgment of the court below is reversed, and a new trial is ordered.

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


author: Long, J.

text:
    ELLIS v. MAURER.
    Principal and Agent — Mortgages—Payments—Indorsement.
    An agent authorized to receive payments upon a mortgage may bind his principal, though payments made to him are. not indorsed
    Appeal from Ogemaw; Sharpe, J.
    Submitted October 12, 1900.
    Decided December 19, 1900.
    Bill by Caroline P. Ellis, executrix of the last will and testament of Joseph J. Ellis, deceased, against William Maurer and others, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      F. L. Snodgrass, for complainant.

      William T. Yeo, for defendants.
   Long, J.

The bill in this case was filed to foreclose a certain mortgage on real estate. The mortgage was given by defendant William Maurer to Joseph J. Ellis on December 19, 1884, and was duly recorded. The other defendants were made parties defendant as subsequent incumbrancers or purchasers.

Defendants, in their-answer to the bill, set up that at the time of the giving of the mortgage, and for a considerable time thereafter, one Myron H. French, of the village of West Branch, was associated with Joseph J. Ellis as a copartner in business; that French, acting for Ellis, attended to the making of the loan for which the mortgage was given; that the note accompanying the mortgage was made payable at the banking house of Ellis & French; that about July, 1886, the firm of Ellis & French was succeeded by M. H. French & Co., who continued the business formerly carried on by Ellis & French; that from that time forward all matters relating to the collection of principal and interest upon loans made by Ellis were intrusted to M. H. French, as agent for said Ellis, among which was the mortgage given by Maurer; that about the 1st of January, 1886, Maurer went to the banking house of French & Co. and paid interest on said note and mortgage, amounting to $22.50, to Mr. French, with the understanding that the same was to be indorsed upon the mortgage held by Ellis; that about the 1st day of January, 1887, defendant Maurer again went to the banking house of French & Co. and paid the interest and some of the principal on the note and mortgage, amounting to $190; that after such payment the land was conveyed to, defendant August Melcher; that on March 15, 1888, Melcher paid to French $6, as interest on said mortgage, and on March 5, 1890, he paid the balance remaining due on said mortgage, amounting to $75.15, with the agreement that this amount satisfied and fully paid the mortgage.

The case came on for hearing before Judge Sharpe, the testimony being taken in open court. It was the claim of complainant that French was not the agent of Ellis, authorized to receive the payments of principal on such mortgage. It appears that French failed in July, 1898, and that Ellis died before the time of filing this bill, which was filed by his executrix. The court below in an opinion sets up fully the claims of the parties. We are satisfied, from a careful examination of the record, that French had authority to receive the payments on this mortgage. The court below was of that opinion, ánd entered a decree dismissing complainant’s bill. It would profit no one to set out the testimony upon which we reach this conclusion. It is the same conclusion reached by the court below, who had an opportunity to see the witnesses, and we think he was right in entering the decree dismissing the bill.

The decree must be affirmed.

The other Justices concurred.


text:
      In re MANN.
    Prisons — Rules—Paroled Convict — Forfeiture of Good Time.

    1 Comp. Laws 1897, § 2112, authorizes the board of control of the State prison to prescribe by general rule how much good time a convict shall forfeit for more than one infraction of the prison rules in any month, and to take away by special order any part or the whole of a convict’s good time for serious act of insubordination, attempt to escape, or escape. In pursuance of the statute, a rule was adopted providing for a forfeiture of all good time of convicts assaulting a keeper or guide, or implicated in an escape or attempt to escape. No rule authorizes such a forfeiture for misconduct of the convict while on parole. Held, that where a paroled convict became drunk, in violation of the rules governing his parole, and was returned to in'ison, the board was without authority to declare a forfeiture of all his good time, and to retain him in custody beyond the time when his sentence, with the good-time 'deduction, would expire.

      Habeas corpus by Charles Mann to obtain his discharge from the State prison at Jackson.
    Submitted December 4, 1900.
    Petitioner discharged December 19, 1900.

      William E. Ware, for petitioner.

      Horace M. Oren, Attorney General, for respondent warden.
   Moore, J.

Charles Mann was sentenced to the State prison November 12, 1891, for 10 years. He was paroled April 12, 1897. He violated the terms of his parole, and was returned to the prison May 9, 1899. Many questions are raised by counsel, but, as one of them is decisive, we do not deem it necessary to pass upon the others.

Under the parole law, the prisoner is entitled to good time, which will reduce his sentence; and, if he had not forfeited any good time, petitioner would have had -less than a month to serve when he was returned to prison. Since then he has served upwards of 18 months. Rule 4, p. 8, of the rules governing the parole of a convict, provides that he shall in all respects conduct himself honestly, avoid evil associations, and in general pursue the course of a law-abiding citizen. It is claimed he violated this rule by becoming drunk, and was arrested for larceny. After he was returned to prison, all his good time was declared forfeited. Rule 8, p. 9, of the rules governing the parole of convicts, provides that the convict on parole will receive the benefit of good time, and suffer the same forfeiture, under the statute, as if he were within the prison inclosure.

Section 2112, 1 Comp. Laws 1897, provides:

‘ ‘ The board may, by general rule, subject to amendment from time to time, prescribe how much of the good time earned under the foregoing provisions a convict shall forfeit for more than one infraction of the prison rules in any month; and for any serious act of insubordination, attempt to escape, or escape, the board may, by special order, take away any portion or the whole of the good time made by any convict up to the date of such offense.”

Acting under the provisions of this statute, the prison board adopted 28 rules relating to the duties and obligations of convicts. Rule 22 provides for the forfeiture of all good time of any convict who shall assault a keeper, guide, or foreman, with intent to do him serious bodily harm. Rule 23 provides that a convict shall lose a portion of his good time for a violation of any rule of the prison; and for two or more offenses in one month the violations may be regarded as though they were committed in different months. Rule 27 provides for the forfeiture of all good time of any convict who shall escape from the prison, or attempt or conspire with others to escape, or shall be found with tools or weapons to be used in making an escape, or who shall manufacture any instrument or weapon to aid in making an escape. This rule also provides that any inmate who shall be guilty of any other violation of the rules of the institution shall lose, for such offense, as much time as the board may deem proper to deduct, providing it does not exceed the good time he could have earned in the month in which the violation occurred.

We have called attention to the substance of all the rules in relation to the forfeiture of all of the good time of the convict. None of them authorizes such a forfeiture for a violation of rule 4, p. 8, of the rules relating to convicts on parole.

The statute in relation to the good time of convicts has been before this court before. In Re Canfield, 98 Mich. 644 (57 N. W. 807), the following language was used:

“In our opinion, the language of the act clearly indicates that the intention of the legislature was to assure to the convict a prescribed reduction upon compliance with the rules of the prison, which should be made known to him from time to time, and this right .to earn a reduction of the term was one of which he could not be deprived. Such was the view taken by the court in Re Walsh, 87 Mich. 466 (49 N. W. 606); and the supreme court of Massachusetts reached a similar conclusion in relation to an act of that State upon which its opinion was asked by the governor (13 Gray, 618).”

We think the forfeiture of all of the good time of the convict was not authorized by any of the rules governing the convicts.

The petitioner will be discharged.

The other Justices concurred.


text:
    ENGELBERT v. FOLEY.
    Church Proberty — Title in Bishob — Contract op Occupant— Liability.
    Where the bishop of a diocese gave the trustees of a parish, and the priest thereof, permission to erect buildings on land the title to which was,in the bishop, and, at the request of the priest, plans for buildings were prepared by an architect, the bishop, -having no dealings with the architect, was not liable for his services.
    Error to Wayne; Carpenter, J.
    Submitted November 14, 1900.
    Decided December 19, 1900.

      Assumpsit by Henry Engelbert against John S. Eoley and others for services rendered. Erom a judgment for defendant Eoley on verdict directed by the court, plaintiff brings error.
    Affirmed.

      M. B. Breitenbach {William B.. Jackson, of counsel), for appellant.

      Keena & Lightner, for appellee Eoley.
   Long, J.

The defendant Eoley, bishop of the diocese of Detroit, was the owner of land in question in this case in the spring of 1891, and is yet the owner. The plaintiff is an architect, and brings suit against defendants to recover for services in making plans and specifications for a parochial residence for the parish of St. Erancis upon the premises owned by Bishop Foley, ,and for making a second set of plans and specifications for the same purpose. The other defendants are-members of the church committee. The claim in plaintiff’s bill of particulars is for the value of such work, $803.33.

It appears from the testimony that a priest by the name of Gutowski was in charge of the parish and of this land in 1891. The first set of plans and specifications made by the plaintiff was accepted by Father Gutowski, who had permission from Bishop Foley to erect a school-house and residence on the land. Gutowski had the school-house erected, but, for lack of funds, the residence was not actually begun that year, further than having the plans made. In 1893 Gutowski was removed by Bishop Foley, and Father Byzewski was put in charge of the parish. He called on the plaintiff, and went over the first set of plans made by him, and, after discussing matters with the plaintiff, employed him to make a second set of plans, which were accepted by Byzewski. The parochial residence was begun and completed under the charge of Father Byzewski, and was erected upon the lands owned by Bishop Foley. Neither of the reverend fathers consulted with any one in reference to the erection of this building. The claim of plaintiff’s counsel is that, while Bishop Foley did not directly contract with the plaintiff for the plans and specifications for the erection of the building upon the lands owned by Bishop Foley, yet, the reverend fathers having his permission to erect such building, he is liable on the contracts made.

The. case was tried before Judge Carpenter and a jury in the Wayne circuit court, and a verdict directed in favor of defendant Bishop Foley, and against the other defendants for $393. A motion for a new trial was made in the case, in which motion the learned circuit judge filed the following opinion:

“This is a motion for leave to move for a new trial. I should not only grant this permission, but should at once grant a new trial, if I was convinced that I erred. Plaintiff relies upon Foley v. Kleibusch, 123 Mich. 416 (82 N. W. 223). What that case decides is this: That defendant Foley has such ownership of the real estate upon which the building in question was erected that he could have prevented or controlled its erection. In other words, he has in this respect the rights of an absolute owner. It was assumed on the trial that he was such an owner, and that he had such rights would necessarily follow. I did not then think, and I do not now think, that there is anything in Foley v. Kleibusch to convince me that merely because one is the owner of land upon which a building is erected, which could not be erected without his consent, he is personally liable upon contracts, the erection of which he authorizes. His personal liability on such a contract must dépend on circumstances. He can so give authority as to become personally liable. It is equally clear that he may so give authority as not to be personally liable. In my judgment, as indicated on the trial, the evidence made it my duty, as a matter of law, to say that the authority was so given in this case as not to make defendant Foley," the owner of the property, personally liable. Leave to move for a new trial is denied.”

This judgment must be affirmed. The only evidence in the record from which plaintiff claims the liability of defendant Foley is that he held the legal title to the property upon which it was contemplated that the parochial residence should be constructed; that he, being the bishop of the diocese, appointed the priests who had the spiritual charge of the parish which used this property; and that Bishop Foley gave permission to the trustees of the parish (co-defendants in this case) to erect the residence upon the property. The evidence shows clearly that defendant Foley had no relations with the plaintiff, and never gave his consent to any such employment. It also shows that the matter of erecting buildings for parish purposes rested with the priest and the committee of the parish. The plaintiff prepared plans upon a verbal agreement in each case with the priest in charge of the parish, and neither of the plans included in plaintiff’s claim was ever used. The opinion of this court in Foley v. Kleibusch, 123 Mich. 416 (82 N. W. 223), does not aid the plaintiff in this case. The holding in that case was that the bishop holds the legal title to church property. Whether he has the unrestrained disposition of the same was not decided by this court. It is admitted in this case that Bishop Foley is the owner of the property; and the only question is whether the owner of real estate is liable for contracts made by an occupant of the property, when the owner has simply given permission to the occupant to erect buildings on the land. We think there is no liability on the part of the owner under such circumstances.

The judgment must be affirmed.

The other Justices concurred.


text:
    GIFFORD v. ROBERTS.
    Costs — Security Bond — Approval—Dismissal of Action — Dis-' ORETIONARY ORDERS.
    Under 3 Comp. Laws 1897, § 9992, authorizing the court in civil cases to require the plaintiff to give security for costs when it shall appear reasonable and proper, one who is directed to file within one week a security bond to be approved by the clerk, and is thereafter granted an extension of the order for three weeks, is not in position to complain that the court abused its discretion in dismissing his suit for noncompliance with the order, where his only attempt at compliance was a tender, after the expiration of the time limited, of a bond with a nonresident surety, which the clerk declined to approve.
    Error to Calhoun; Smith, J.
    Submitted December 6, 1900.
    Decided December 19, 1900.
    Case by Walter S. Gifford against John J. Roberts for criminal conversation. From an order dismissing the causó for failure to file security for costs, and an order denying a motion to set aside the order of dismissal, plaintiff brings error.
    Affirmed.

      Hatch & North, for appellant.

      Arthur B. Williams and Andrew W. LocMon, for appellee. >
   Moore, J.

In 1899 plaintiff commenced a suit in the circuit court for the county of Calhoun against defendant by capias. The case was put at issue. On December 4, 1899, the court made an order requiring the plaintiff to file security for costs within one week, with one or more sureties, to be approved by the clerk of the court. At the expiration of that time the order was extended until the 1st day of January. On the 3d day of January the plaintiff tendered the clerk a bond, with one surety, made by residents of Kalamazoo county. The surety justified as to his pecuniary responsibility before a justice of the peace of Kalamazoo county. The clerk filed the bond, but declined to approve of it. January 30th, upon a motion and after hearing counsel, the court made an order dismissing the case for failure to file security for costs in compliance with the order of the court. February 19th a motion to set aside this order was made, which motion was overruled. Subsequently another motion was made “to set aside the order dismissing this cause, and allow the clerk of said court to accept the bond already deposited with the clerk, or allow the plaintiff to proceed to compel the clerk of said court to show cause why the bond tendered by the plaintiff should not be accepted and approved by him, or to allow the plaintiff to file another and proper bond, as the court may direct.” This motion was overruled. The court, in disposing of the motion, gave as a reason that the clerk had refused to approve the bond, and that he was satisfied he was acting in good faith. , The case is brought here by writ of error.

Counsel say the failure to file security for costs within' the exact terms of the order is not a ground for dismissing the case; citing Parks v. Goodwin, 1 Doug. 56, and McGill v. Beitner, 114 Mich. 646 (72 N. W. 613). In the first of these cases a proper bond was filed before a motion to dismiss was made. The court refused to dismiss the case, and this court said the action of the lower court was not error. The other case arose in relation to a bond required by subdivision 4, § 11282, 3 Comp. Laws 1897. A bond was filed which complied with the terms of the statute applicable to that case, and the only question involved was whether a failure to file it in the precise time should be visited with the penalty of dismissal. The order in this case was made by the circuit judge by virtue of section 9992, 3 Comp. Laws 1897, which authorizes him in civil causes to require the plaintiff to give security for costs when it shall appear reasonable and proper. This imposes a discretion upon the judge. In the exercise of that discretion, he directed a bond to be filed to be approved by the clerk of the court. No such bond has been filed. There has been a failure to comply with the order of the court. In the refusal of the circuit judge to grant these motions there does not seem to be any such abuse of discretion as will justify us in setting aside his order.

Judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE v. MARSH.
    1. Pardons — Conviction—-Exceptions Before Sentence.
    Under'Const, art. 5, § 11, which authorizes the governor to grant pardons “after conviction,” a pardon issued to one found guilty of a crime, pending a review in the Supreme Court on exceptions before sentence, is valid, since its acceptance is an admission of guilt and a waiver of the right to review.
    2. Same — Advisory Board.
    1 Comp. Laws 1897, § 141 et seg., creating an advisory board of pardons, with authority to investigate applications for pardon and to advise the governor concerning them, does not preclude the direct exercise of executive clemency without the mediation of the board.
    3. Same — Conditions—Validity.
    Under Const, art. 5, § 11, authorizing the governor to grant pardons on such conditions as he may think proper, a pardon conditioned on the payment annually, for five years, of a certain sum of money to the county in which the conviction was had, for the purpose of reimbursing it for the expense incurred in the prosecution, is valid.
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted December 11, 1900.
    Decided December 19, 1900.
    Arthur E. Marsh was convicted of being an accessory, to the crime of fraud and embezzlement in office: On respondent’s motion to dismiss appeal and remand cause.
    Granted.

      John J. Speed and F. A. Baker, for the motion.

      Horace M. Oren, Attorney General, Arthur J. Tuttle, Prosecuting Attorney, and Edward Cahill, contra.

   Moore, J.

April 5,1900, the respondent was convicted in the circuit court for the county of Ingham of the crime of being an accessory and of aiding and abetting William L. White, quartermaster general of this State, in the crime of fraud, and embezzlement in said office. Before sentence, but after conviction in the circuit court, the respondent brought his case into this court by a bill of exceptions. While the case was still pending in this court, the governor issued a pardon to the respondent, the material part of which, so far as this discussion is concerned, reads as follows:

“Now, therefore, -know ye that I, Hazen S. Pingree, governor as aforesaid, by virtue of the power and authority in me vested, do hereby pardon the said Arthur E. Marsh of and from the offense whereof he was convicted as aforesaid. On condition, however, thát said Arthur F. Marsh pay into the treasury of Ingham county, in the State of Michigan, for the purpose of reimbursing the said county of Ingham for the expense incurred in his prosecution, the sum of one thousand dollars on the first day of January, A. D. 1901; one thousand dollars on the first day of January, A. D. 1902; one thousand dollars on the first day of January, A. D. 1903; one thousand dollars on the first day of January, A. D. 1904; and one thousand dollars on the first day of January, A. D. 1905, — a total sum of five thousand dollars.
“And provided, further, that, should said county of Ingham for any reason decline to receive said sums of money to be so paid, the same shall be paid into the State treasury of the State of Michigan.
“ This pardon is to take immediate effect.”

After this pardon was issued, the respondent called the attention of the court to its issuance, and filed a certified copy of it with the court. He asks the court for an order remitting the record to the circuit court for the county of Ingham, with directions to that court to refrain from entering any judgment or sentence upon the conviction, and to discharge the respondent and his sureties upon any recognizance he may have given. The people, through the attorney general and the prosecuting attorney for Ingham county, oppose this action for the following reasons:

1. The said pardon is void for the reason that it does not indicate and set forth that the application therefor was referred to, investigated or passed upon or a recommendation made thereon by, the advisory board in the matter of pardons.
2. Said pardon is void for the reason that, under the Constitution and laws of this State, the governor of the State has no authority to grant a conditional pardon prior to the pronouncement of sentence, where the condition imposed is not a condition precedent to the taking effect of the pardon.
3. Said pardon is void because the conditions embodied therein are not enforceable.

Section 11, art. 5, of the Constitution of the State, provides that the governor—

“ May grant reprieves, commutations, and pardons after convictions, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by law relative to the manner of applying for pardons.”

The important question in this case is, Has there been a conviction of the respondent, within the meaning of the Constitution, so that executive clemency may be invoked ? It is urged that, before the governor can exercise the pardoning power, there must be a sentence of court as well as a conviction. A like question was involved in the case of Com. v. Lockwood, 109 Mass. 323 (12 Am. Kep. 699). In that case the respondent was indicted for cheating by false pretenses. He was tried and convicted. He removed his case to the supreme court by entering therein a bill of exceptions. While the case was still pending, he was pardoned by the governor. He then came into the superior court, and pleaded his pardon, and asked to be discharged. The attorney for the Commonwealth contended, as is contended here, that the governor cannot pardon until conviction is established by the judgment of the court upon a verdict of guilty. The opinion in the case is written by Justice Gray. It is a very learned and exhaustive discussion of the question involved. A reference to that opinion will answer the purpose of this discussion better than an attempt to restate the law. He cites many instances where the pardoning power has been invoked after conviction, and while the case was pending in the court of review. In the course of the discussion he uses this language:

‘ ‘ It was argued for the Commonwealth that the defendant could not be said to be convicted at the time when this pardon was granted, because a bill of exceptions was then pending in this court to the rulings under which he had been found guilty, and that, after pleading the pardon, he might still prosecute his exceptions, and, if they should be sustained, have the verdict set aside. But it is within the election of the defendant whether he will avail himself of a pardon from the executive, be the pardon absolute or conditional. If he does not plead the pardon at the first opportunity, he waives all benefit of the pardon. If he does so plead it, he waives all other grounds of defense. Staunf. P. C. 150; J. Kelyng, 25; 4 Bl. Comm. 402; U. S. v. Wilson, 7 Pet. 150. The pleading of the pardon in the superior court would therefore be ipso facto a waiver of his exceptions. A still more conclusive answer to this objection is that at the time of the adoption of the constitution, and for many years afterwards, no bill of exceptions was permitted by law. It was first given to the rulings of a justice of this court by Stat. 1804, chap. 105, § 5, and to the rulings of tbe court of common pleas by Stat. 1820, chap. 79, § 5. The providing by the legislature of a new form of presenting questions of law to the court does not make the verdict of a jury, so long as it stands, less than a ‘conviction,’ and cannot abridge the prerogative of the executive under the constitution. Ex parte Garland, 4 Wall. 333, 380.”

The case of Manlove v. State, 153 Ind. 80 (53 N. E. 385), is in point upon this feature of the case, as well as upon another, which will appear later. Manlove was convicted of seduction, and sentenced to a reformatory. He appealed the case to the supreme court. The attorney general moved to dismiss the appeal because the respondent had married the complaining witness, and had accepted the pardon of the governor. The respondent opposed this motion, and insisted he was entitled to the opinion of the court of review, because that part of the judgment of the court below which assessed a fine and costs against him remained in force. The court held that the fine and costs were part of the judgment, which was based upon a verdict of guilty. The court then adds:

‘ ‘ The assignments of error challenge the correctness of the judgment as an entirety. On a new trial appellant might interpose his pardon and his marriage. State v. Otis, 135 Ind. 267 (34 N. E. 954, 21 L. R. A. 733). It would be beyond the power of the State to force him to meet the information on its merits. The substantial element of the controversy has been eliminated. * * * The question of appellant’s liability to fine and costs cannot be reached except by overturning the judgment as a whole. He may not so attack the judgment, because, by asking and accepting executive clemency, he said, in effect, that he was rightly convicted. He may not admit guilt to escape imprisonment, and at the same time protest innocence to avoid payment of fine and costs. ”

Applying the principles of law stated in these cases to the case before us, what is the result ? When Mr. Marsh petitioned the governor for a pardon, and it was issued to him, and he brought it into this • court, he, in effect, said he was guilty of the offense charged, that the conviction of the court below ought to stand, and that he waived the bill of exceptions filed by him in this court. This situation practically disposes of the case in this court.

The counsel, however, have raised the question of the validity of the pardon, they have argued it fully upon both sides, and desire us to pass upon it. If not decided now, as the question may arise later we will express our views thereon, without attempting to enter upon an elaborate discussion. We do not deem it necessary to decide whether the legislature possesses the power to require all petitions for pardon to be presented and acted upon by the advisory board of pardons before the governor can exercise executive clemency. It is sufficient for the purposes of this case that no such requirement is made by the statute. See In re Pardoning Power of Governor and Council, 85 Me. 547 (27 Atl. 463). The Constitution provides the governor may grant pardons upon such conditions, and with such restrictions and limitations, as he may think proper, etc. It is possible to conceive of a condition that might void the pardon because it was unlawful; but it is not unlawful to make it one of the conditions of the pardon that the convicted person shall pay to the Commonwealth a sum that will in part, at least, reimburse it for the expenses incurred in bringing about his conviction. When the convicted person accepts the pardon, he accepts it subject to its conditions and limitations. Flavell's Case, 8 Watts & S. 197; Lee v. Murphy, 22 Grat. 789 (12 Am. Rep. 563); In re Wells, 18 How. 307; In re Marks, 64 Cal. 29 (28 Pac. 109, 49 Am. Rep. 684); Manlove v. State, 153 Ind. 80 (53 N. E. 385). See People v. Moore, 62 Mich. 503 (29 N. W. 80), and cases there cited.

We have no doubt the pardon is valid, and has become operative, subject to be defeated by a breach of the conditions contained therein.

The appeal is dismissed, and the cause is remanded to the circuit court for the county of Ingham.

The other Justices concurred.


author: Grant, J.

text:
    PECK v. CITY OF GRAND RAPIDS.
    Municipal Corporations — Construction op Sewer.

      1. Under the charter of the city of Grand Rapids, the city cannot construct a sewer under proceedings for grading and graveling a street.
    2. A. sewer is not a necessary part of -a street, and separate proceedings must be taken for its construction.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted October 9, 1900.
    Decided December 31, 1900.
    Bill by Thomas M. Peck and Roger W. Butterfield against the city of Grand Rapids to set aside a special assessment. From a decree dismissing the bill, complain-, ants appeal.
    Reversed.
    The common council of the city of Grand Rapids adopted the following resolution:
    “Resolved, by the common council of the city of Grand Rapids, that the grading and graveling of Butterworth avenue, a public street in the' city of Grand Rapids, from the west line of South Lane avenue, formerly Shepard street, a public street in said city, to the west city limits of said city, m said city, in said described portion of said Butterworth avenue, and also including the construction of the necessary bridges, culverts, gutters, cross-walks, manholes, catch-basins, approaches, and cesspools in said-described portion of said Butterworth avenue, is a necessary public improvement.”
    The estimate made by the hoard of public, works in pursuance of said resolution, under the requirements of the charter, was $8,635. A contract was let for $10,997.41. The total assessment upon property owners was $11,500; the difference between the two sums consisting of the expenses of assessment, printing, engineering, etc. In all the proceedings of the city authorities, the only improvement mentioned is the “grading and graveling of the street.” The city authorities included in this work the cost of a sewer 12 inches in diameter and 3,800 feet long, extending the whole length of the improvement. Complainants appealed to the board of review, but their protests were ignored, and the construction of the sewer and the assessments ratified. Complainants then filed this bill to’ set these assessments aside, claiming that they were absolutely void. Decree was entered, in the court below dismissing the bill.

      Butterfield & Keeney, for complainants.

      Lant K. Salsbury, City Attorney, for defendant.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The only question to determine is, Can the common council construct a' sewer under the guise of grading and graveling a street ? The charter of the city confers no such authority. Under the act of 1873 providing for a board of public works in and for the city of Grand Rapids, “said board is empowered to determine and establish the grade lines of all streets; * * * to locate all necessary sewers; * * * to cause to be graded, graveled, paved, planked, or covered with other materials all such streets, * * * and to construct all such main and lateral sewers, * * * as the common council shall, by resolution, declare to be necessary improvements.” By Act No. 444, tit. 3, § 10, subd. 39, Local Acts 1895, the common council is empowered “to establish, construct, maintain, repair, enlarge, and discontinue within the highways, streets,” etc., “such * * * sewers as the common council may see fit, with a view to the proper draining and sewerage of said city.” By the Local Acts of 1875 the board of public works is authorized to construct all such main and lateral sewers as the common council of the city of Grand Rapids shall, by resolution, declare to be necessary public improvements. The charter also provides for' two classes of bonds, viz.: “Street-improvement bonds,” and “sewer-construction bonds.” Charter, tit. 6, § 3, subd. 1.

Counsel for the defendant seeks to justify this action of the common council on the ground that the sewer is a necessary part of the street, and therefore comes within the resolution of the council, although the word “sewer” is not mentioned in any of the proceedings. A sewer is not a necessary part of the street, and when action is taken to. lay out, establish, grade, and pave a street, the construction -of a sewer is not included within these terms. The district benefited by a sewer may be, and usually is, different from a district benefited by the establishment of a street or highway. The inhabitants of the city are entitled to a hearing on each of such public improvements, and neither can be included in the other. Grading and graveling. may be a necessary improvement, while the construction of a sewer may not. The common council, under this charter, must first act in each case. The language of this court, speaking through Chief Justice Campbell, in Clay v. City of Grand Rapids, 60 Mich. 451 (27 N. W. 596), is applicable here:

“If a city council can do one thing and call it some-» thing else, so as to confound roads with sewers, and the repair of one with the building of the other, there is no safety to citizens against the grossest usurpations and injustice.”

That case rules this. See, also, White v. City of Saginaw, 67 Mich. 33 (34 N. W. 255), and Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76).

The cases of Nelson v. City of Saginaw, 106 Mich. 659 (64 N. W. 499), and Brown v. City of Saginaw, 107 Mich. 643 (65 N. W. 601), are not in conflict with this opinion. The assessment is void because the construction of. the sewer was included in it.

Decree reversed, and decree entered in this court for complainants in accordance with this opinion.

The other Justices concurred.


text:
    LABADIE v. DETROIT, LIMA & NORTHERN RAILWAY CO.
    Assumpsit — Contracts—Privity—Railroads.

      Assumpsit will not lie against a railroad company to recover damages for its failure to erect and maintain fences, ditches, gates, and crossings upon land occupied for its right of way, in accordance with the contract under which the land was conveyed, where the contract and-deed were made between plaintiff and third persons, no privity between plaintiff and defendant being shown.
    Error to "Wayne; Waite, J.
    Submitted October 10, 1900.
    Decided December 31, 1900.

      Assumpsit by Antoine Labadie against the Detroit, Lima & Northern Railway Company for breach of an agreement under which it acquired a portion of its right of way. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Ari E. Woodruff (Galloioay & Graham, of counsel), for appellant.

      Walter B. Richie and Watts, Smith & Baldwin, for appellee.
   Long, J.

This action was commenced in justice’s court, where judgment was rendered in favor of plaintiff for $300. Defendant appealed to the circuit court, and the case was there tried before a jury. The court directed a verdict in favor of defendant, and plaintiff brings error.

At the opening of the case in the circuit court, counsel for plaintiff made the following statement to the court and jury :

“In the month of August in the year 189?, the Detroit, Lima & Northern Railroad was extending its tracks into the city of Detroit, and they wanted to get across the property of Mr. Labadie. They sent an agent there by the name of Burke, and he entered into a contract, or sort of an option, for the right of way across Mr. Labadie’s property, and in that contract, which will be offered in evidence, they agreed to do certain things. They agreed to erect fences; they agreed to put in a culvert to drain off the water; they agreed to put in a driveway, that he could cross the tracks; and also agreed to put in a gate, so that he could get to and fro across that track on his property. That was in the month of August, 1897; and in the month of September, on the 27th day of September, a month and two days later, they came over to Mr. Labadie, and Mr. Labadie executed a deed to this railroad company, or to a party for the railroad company, and with the same conditions in the deed that they were to perform. They went on there, and they built their road, and they never erected any fence. They never erected any culvert, but they went down when they started to build their road, and put a sort of drain, put down a couple of tile a foot in diameter upon the ground, and graded on top of these tile, and raised their road probably a foot to sixteen inches above the tile. Then they went along the line of Mr. Labadie, and they dug out a drain from two and a half to three feet in depth along the property of Mr. Labadie, and drew that dirt upon this road, so it left the roadbed— the top of the rail — between two and a half and three feet from the bottom of the ditch. Then they never put in any crossing for Mr. Labadie to go to and fro across his land. When Mr. Labadie wanted to dráw a load of manure or bring in a load of hay or cornstalks, whatever it might be, he had to cross his neighbor’s land, and go in that way, in order to get to his property. They didn’t put up any fence, and Mr. Labadie was compelled to keep Ms cattle and Ms horses and his hogs in some other place four or five months, and, of course, he had to feed them. Then this drain that they put in; every time there came a rain this ditch would fill with water, and the drain that they put in was put in such shape that part of the water would cross this drain, and would go back between six and eight inches over Mr. Labadie’s property, and flood it, so it was impossible for him to use it. He brought this suit some time a year after they had entered into this agreement, and it finds its way by appeal into this court.
“Now, we will endeavor to show you, gentlemen of the jury, that their agent entered into this agreement with Mr. Labadie, and it was entered into, and they paid Mr. Labadie for his property. But they didn’t carry out the conditions of the contract, nor the conditions of the deed, and Mr. Labadie has sustained whatever damages he will testify to here by the nonperformance of this contract. We will show, gentlemen of the jury, that, in order to get across his land, Mr. Labadie had to build his own driveway across there and furnish the timber; that, after the suit had been started against them, they undertook to stick a fence along in the ditch, and, after the fence had been put up there with some sort of a barb wire, it all fell down. It is lying down there now. The fence isn’t up, and Mr. Labadie can’t use his property for pasturage purposes. If he turns his cattle in there, they go onto this track, and over onto the Michigan Central and the Lake Shore tracks; and consequently he is obliged to keep his cattle in another field. They haven’t even erected a gate. There is a place for a gate, but there isn’t any gate, and he hasn’t any access to this property in question.
“Now, that is the plaintiff’s case. If we show these facts to you, gentlemen of the jury, we shall ask a verdict at your hands, under the instructions of the court, for whatever damages you think Mr. Labadie has sustained.”

It appears that in the justice’s court the declaration was upon the common counts in assumpsit,—

“And specially [as it recites] upon an express contract bearing date August 25, 1897, assumed and accepted from thence hitherto by it, the said defendant, with him, said plaintiff, where and in the breach thereof by it, the said defendant, the said plaintiff hath been and is, to the time of the commencement of this suit, greatly damnified,” etc.

To maintain the issue on his part, the plaintiff offered in evidence a certain contract, dated August 25, 1897, between himself and one Francis H. Burke, for the conveyance of a strip of land 40 feet wide and 457 feet long; this strip being described by metes and bounds. The consideration stated in the contract is $1,000. It is further recited in the contract that:

“The party of the second part agrees to pay the party of the first part all damages done to his crops; also the privilege to remove all trees on said strip of land; also that the fences of his pasture shall be kept so his cattle cannot get out; also to put a culvert satisfactory to the party of the first part; also to maintain a ditch on the east line of said road to said culvert mentioned; and also a twenty-foot crossing, with a gate sixteen feet wide, to be satisfactory to the party of the first part.”

The contract also recites that:

“The party of the first part will within sixty days, at the written request of the second party, execute a good and sufficient warranty deed of the described premises to the party of the second part, or to any person whom the second party may designate.”

The plaintiff also offered in evidence a deed made September 27, 1897, by himself and wife to James B. Townsend, of Lima, Ohio, of the same premises described in the Burke contract. This deed recites that it is agreed that the party of the second part is “to erect and maintain good, lawful fences, ditches, and one railroad crossing and culvert, and at least one sixteen-foot gate, satisfactory to and for the use of the parties of the first part, ” etc.

The plaintiff testified that, after this deed was given, a railroad company immediately began' \to build a railroad across this strip of land, and that it had been so used ever since. He further testified that no fence had ever been maintained, no gate was put in, and no culvert or sewer built, and no crossing erected; that whoever operated the railroad took the fences away, and did not put up others, so that his cattle ran over his farm, and destroyed hia crops. Plaintiff called Mr. Burke, to whom the contract for the land was given. He testified that he was in the employ of the defendant railway company on August 25, 1897, buying up the right of way for it to build its road; that he took this contract for it; that the deed to Mr. Townsend was prepared in his office, and that he took the deed, and turned it over to the railway company; that Mr. Townsend was one of the directors of the defendant road, but he could not state whether it was delivered to Mr. Townsend, but it was recorded in the office of the register of deeds; that he got the money from Mr. Townsend, the grantee in the deed, to pay Mr. Labadie for the land. There is some testimony tending to show that Mr. Townsend was active in looking after the affairs of the defendant company; but there is no testimony showing that the defendant company ever had a deed of the premises from Townsend, or that it ever made any contract with the plaintiff in reference to this land. The only evidence connecting the defendant company with the land is that Townsend was one of the directors of it, and that it ran its trains over the land.

At the close of the testimony, plaintiff asked to amend his declaration by alleging:

“Plaintiff declared orally against the defendant upon all the common counts in assumpsit, and specially upon an express contract bearing date August 25, 1897 (and as was stipulated in a certain deed from said plaintiff and wife bearing date September 27, 1897, to James B. Townsend for said defendant), assumed and accepted from thence hitherto by it, the said defendant, with him, said plaintiff, where and in the breach thereof by it, the said defendant, the said plaintiff hath been and is, to the time of the commencement of this suit, greatly damnified, in all the sum of $300 or under.”

The dourt, without passing upon the question of allowing the amendment to be made, then charged the jury as follows:

“Gentlemen of the jury: I do not think the plaintiff can recover in this action, for the reason that the pi ead ings in the case — the form of action — do not accord or conform to the testimony as given in the case. I think the plaintiff is unable to recover, under the proof adduced here, in an action of assumpsit, or upon the declaration which he has filed; so I do not think he would be allowed to recover, even though the amendment was made which he proposes to make, and which has been suggested in this cas8. This is an action in assumpsit. There must be a privity between the parties. There must be either an express or implied assumption on the part of the defendant to pay money. All the damages here are unliquidated damages, — damages for the breach of a contract or agreement which he claims to exist,— and damages, of course, which must be assessed by the jury upon the evidence in the case. It is very doubtful whether, under this evidence, he could recover any damages on that theory of the case, for the reason that they are not sufficiently specific; but I prefer to place it upon the other ground, for what seems clear to me is that he cannot recover upon the form of action which he has brought. You will therefore bring in a verdict of no cause for action.”

"We think the court was not in error in this charge. The judgment must be affirmed.

The other Justices concurred.


text:
    SMEDLEY v. CITY OF GRAND HAVEN.
    1. Attorneys — Legal Services — Argument in Supreme Court.
    The fact that the flies in a certain suit were returned to the Supreme Court on certiorari to review the proceedings of the circuit court in another suit closely related to it, and were made the basis of argument in the latter suit, does not entitle the attorney therein to maintain a claim as for services rendered in the Supreme Court in the former suit.
    3. Municipal Corporations — Contract by Mayor — Nonconsent op Council — Emergency—Attorney’s Fees.
    Whether such an emergency existed as would justify the mayor of a city in employing legal counsel without the consent of the city council, so as to render the city liable for his services, was a question for the jury, where the services were sought to aid the mayor in his defense of mandamus proceedings instituted by certain members of the council, under the advice of the city attorney, to set aside the mayor’s action in voting on a proposition, on which the councilmen were equally divided, to reimburse counsel for services theretofore rendered in a suit wherein the mayor and city attorney, each supported by one-half the council, had assumed antagonistic positions relative to the right of the council to transfer certain funds, and in which the mayor had been sustained.
    Error to Ottawa; Padgham, J.
    Submitted October 10, 1900.
    Decided December 31, 1900.

      Assumpsit by Charles O. Smedley and Benn M. Cor-win, copartners as Smedley & Corwin, against the city of Grand Haven, for professional services. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Smedley & Corwin, in pro. per.

      Walter I. Lillie, for appellee.
   Long, J.

This is an action of assumpsit to recover for legal services claimed to have been performed by Charles O. Smedley for the city of Grand Haven, and such claim assigned to plaintiffs. The case was tried before a jury, who returned a verdict of no cause of action, by direction of the court. The bill of particulars is set out in the record. About $130 of the claim is for services rendered the city in the case of Bishop v. Baar, mayor of defendant city, in the circuit court for the county of, Ottawa. The balance of the claim is for legal services rendered by Mr. Smedley in this court, the two claims amounting to $340.42.

It appears that the council of defendant city attempted, by resolution, to transfer certain of the city moneys from one fund to another. The mayor prepared a veto message, and the clerk refused to file the same, claiming that it came too late into his hands to be effective. Mandamus proceedings were commenced in the circuit court to compel the clerk to file it. The case was ruled in the circuit court against the mayor, and was removed by the mayor to this court. Mr. Smedley was employed by the mayor to represent him in that case, both in the circuit court and in this court. The order of the circuit court was reversed in this court. Baar v. Kirby, 118 Mich. 392 (76 N. W. 754). The mayor, at the time of filing the petition for mandamus in that case in the circuit court, also filed another petition for mandamus against the city council. That case was decided in favor of the mayor, and the case ended in that court. After’the decision in this court of Baar v. Kirby, supra, Mr. Smedley presented his bills to the common council of the city for such legal services in the two cases, — one, Baar v. Kirby; and the other, Baar v. Common Council. These bills were referred to the finance committee, to which committee was added the city attorney. The committee recommended to the council that an order be drawn on the contingent fund in favor of the mayor to repay him’ for the taxed costs in the Kirby Case, $37.80, and for all other legal expenses $50, making a total of $87.80, and that nothing be allowed Mr. Smedley for legal services. When this recommendation was read to the council, one of the aldermen moved that the mayor be allowed $349.50 with which to pay his attorney’s fees in his mandamus case against the clerk. The vote was a tie in the council, and the mayor then voted in the affirmative, thus carrying the motion. Proceedings were then commenced against the mayor by four of the aldermen to compel him to determine that the motion had not been carried, claiming that he had no legal right to vote on the question. That case is entitled Bishop v. Baar. Upon the coming in of the answer to the order to show cause in that case in the circuit court, issues of fact were framed, and testimony was taken thereunder. A mandamus was issued from the circuit court in the case, setting aside the action of the mayor in voting on said bills. In the meantime the clerk of the council was instructed by the four aldermen and the city attorney not to draw a warrant for the amount of the bills so allowed at $349.50. Mr. Smedley thereupon commenced mandamus proceedings against the clerk to compel him to issue the warrant for the amount of the claims allowed. That case was determined in the circuit court against Mr. Smedley. He removed the same to this court by certiorari, and the case wast here reversed, and the mandamus issued to compel the clerk to sign the warrant for the claim as allowed by the four aldermen and the mayor voting thereon. Smedley v. Kirby, 120 Mich. 253 (79 N. W. 187). When the return was made by the circuit court to the writ of certiorari in Smedley v. Kirby, there were sent with the return all the files and proceedings in the case of Bishop v. Baar, though that case was never removed to this court. That case is referred to in Smedley v. Kirby. The clerk issued the warrant for the $349.50, and the same has been paid. It appears that during all these proceedings the city attorney was antagonistic to the mayor. He appeared as counsel in every proceeding in the circuit court and in this court in opposition to the mayor. It was under his advice as a member of the finance committee that the council refused to allow the account in favor of the mayor. At the close of the testimony in the present case the court directed the verdict in favor of the defendant.

We have set out very fully the facts in the case upon which the legal questions are raised. The testimony shows, as stated by the court below, that there was no concurrence by the common council with the action of the mayor in the employment of Mr. Smedley, except that the mayor spoke to them individually about such employment, and they said it was all right. It is also shown, as stated by the court, that the case of Bishop v. Baar was not appealed to this court; but it does appear that, when the circuit court made a return to the certiorari in Smedley v. Kirby, he returned all the proceedings had before him in Bishop v. Baar. The claim of the plain. tiffs in the present case is for services in Bishop v. Baar in the circuit court and in this court. Plaintiffs, in their bill of particulars, treat the case of Bishop v. Baar as for argument in this court. That case was not in this court, and the court below was not in error in holding that the plaintiffs could not charge for that. As was said by the court below, Mr. Smedley used it only in support of his own case of Smedley v. Kirby. He has been paid in that case, and must rest satisfied with his taxable costs of both courts in the case.

The question remains as to the claim for services in Bishop v. Baar in the circuit court. The charter of the city of Grand Haven provides, by chapter 8, § 20 (Act No. 215, Pub. Acts 1895), that:

‘ ‘ The council shall audit and allow all accounts chargeable against the city; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the city. * * * It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance; or, if such claim is founded on contract, that the same was, presented without the affidavit or certificate as aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had'a reasonable time to .nvestigate and pass upon it.”

The court refers to this charter, and says: “If a debt is to be contracted against the city in any way, it must come through the power of the common council. ” It is admitted by the learned judge that there are certain exceptions to this rule, as where an emergency or exigency might arise which would compel the mayor to act without the sanction of the council in order to protect the rights of the city; but the court was of the opinion that no such exigency was shown to exist in the present case. No point is made by the court below, or by counsel for tbe city, that the account was not certified as required by the above provisions of the charter.

The only question presented is whether'there was any exigency arising in the case which called upon the mayor to act without reference to any formal action by the council. The city attorney was employed against the mayor in all the cases, and in fact was active against him in all the matters coming before the council pertaining to the transfer of the funds, the veto message, the bringing of the mandamus proceedings, as well as in advice to the council not to pay the costs and expenses in the suits. We think it was a question for the jury to determine whether any exigency existed which warranted the mayor in employing counsel under such circumstances. The charter of the city, by section 1, chap. 7, provides that the mayor shall be the chief executive officer of the city, and “it shall be his duty to exercise supervision over the several departments of the city government, see that the laws relating to the city, and the ordinances and regulations of the council, are enforced.” The mayor found that the council, by resolution, had violated the provisions of section 22, chap. 30, of the charter; which provides that:

“All moneys and taxes raised, loaned, or appropriated for the purposes of any particular fund shall be paid in and credited to such fund, and shall be applied to the purposes for which such moneys were raised and received, and to none other; nor shall the moneys belonging to one fund be transferred to any other fund, or be applied to any purpose for which such other fund is constituted,” etc.

In the face of this provision, the council attempted by resolution to transfer $7,000 from the contingent to the several city funds. His attempt to veto this action was opposed by four of the aldermen and the city attorney, acting with them, and they sought to defeat the veto message on the ground that it was not filed in time.

It appears in the case of Barnert v. Mayor, etc., of Paterson, 48 N. J. Law, 395 (6 Atl. 15), an action was brought by the mayor of the city of Paterson to recover moneys expended by him in employing legal counsel in defending a mandamus suit brought by the city against him. The mayor was successful in the mandamus case. It was said by the court:

“If be was right in his judgment, the city should have furnished him the aid of proper counsel. But the official law officer was in court against him, and the city authorities, to whom ordinarily he should have applied, were the real actors in the proceeding against him. It would, under these circumstances, have been idle to make the application. Ordinarily his duty would have ended with an unsuccessful application to the official 'counsel, or, if the city counsel were not available, then by application to the appropriate authority to furnish other counsel; but he could expect aid from neither source in the existing situation. He was chargeable with the knowledge of his official duty, and was called upon then to decide what was the course of action which that duty demanded of him. The risk of decision was upon him. If he erred in judgment as to his legal duty in resisting the proceeding, he must, on demanding to be reimbursed his outlay, have stood as a mere volunteer, and borne the direct consequences of defeat. The judgment of the court which the parties invoked vindicated his decision, and found him acting in obedience to the commands of the charter.”

The above case was quoted with approval in Wiley v. City of Seattle, 7 Wash. 576 (35 Pac. 415, 38 Am. St. Rep. 905).

In City of Louisville v. Murphy, 86 Ky. 53 (5 S. W. 194), an action was brought by the mayor of the city to restrain the collection of a claimed illegal tax. The council did not move in the matter, and the city attorney took no'steps in it. In this emergency the mayor employed counsel, and the court sustained his claim. It was held that the mayor had the right to do this, under such circumstances, and that the city was liable for the expenses of counsel and attorney fees.

Plaintiffs asked the court to charge the jury that if they found, under the circumstances shown, that the mayor was justified in the employment of counsel to represent him in these cases, the verdict should be for plaintiffs. This was refused, and the court directed the jury to return a verdict for defendant. This charge was erroneous. The jury should have been instructed that, if they found such an emergency existed, the only question left for determination was the amount to which plaintiffs were entitled in the case of Bishop v. Baar in the circuit court.

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

The other Justices concurred.