text:
    LAUER v. PALMS.

    1. Appeal — Instructions to Jury — How Construed.
    Statements made by the trial court on overruling a motion for a new trial, in relation to the theory of his charge to the jury, cannot control the charge as given.
    2. Negligence — Burned Building — Dangerous Walls^Duty op Owner.
    The owner of a building which has been damaged by fire, but the walls of which remain standing, is bound, within a reasonable time, to take such measures as will prevent the walls from falling under ordinary circumstances, or under such extraordinary occurrences as experience has shown to be likely to arise in the locality, in default of which he is liable to one injured by reason of such neglect while lawfully in the adjacent highway; and the fact that he has instructed competent architects and builders to take the proper precautionary measures, and the accident results from their negli- ■ gence, will not relieve him from such liability.

      3. Same — Leased Premises.
    Nor can he escape liability because of the fact that the premises were occupied by a tenant, and that, when he undertook to make the necessary repairs, such tenant, or those claiming under him, who were engaged in salving the contents of the building, interfered with his work, and threatened to enjoin him from continuing it; since a landlord has an absolute right to enter and repair the leased premises under such circumstances.
    4. Personal Injuries — Damages—Instructions.
    An instruction, in an action for personal injuries of a permanent character, that, if the jury should come to the question of damages, they should take into consideration plaintiff’s occupation, his earning capacity at the time of the accident, and the wages he had been earning for some time prior thereto, and from them should determine his probable future earnings, and should “then compute the present value, based upon his expectation of life and his age; discount each annual payment, determining the amount at its present value,” — is not ground for a reversal, where no request was made for a more specific instruction.
    Error to Wayne; Rohnert, J.
    Submitted December 10, 1901.
    Decided March 18, 1902.
    Case by Nicholas Lauer against Francis F. Palms, Michael W. O’Brien, and Clotilde Palms Book, trustees of the estate of Francis Palms, deceased, for injuries caused by the fall of the wall of a building. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Edwin F. Conely and Orla B. Taylor, for appellants.

      Bowen, Douglas & Whiting, for appellee.

       Rehearing denied April 22, 1902.

       As to individual liability for falling walls or buildings, see note to Ryder v. Kinsey, (Minn.) 34 L. R. A. 557.

   Moore, J.

The plaintiff obtained a judgment against the defendants, who have brought the case here by writ of error. A large number of the assignments of error grow out of the charge of the judge, and his refusal to give certain requests of defendants; so that it becomes important to know what the court charged the jury. His charge was as follows:

“This action is brought by Nicholas Lauer against the ’ defendants for damages resulting from an injury which • happened to the plaintiff on the 12th day of December, 11899, on Woodbridge street west, by reason of the collapse of the east wall of the so-called Palms or Krolik building. It appears from the testimony that there had been a fire some time previous to the day on which the wall fell. The wall fell December 12, 1899. The fire had taken place on the 24th day of November of the same year. The defendants in this case, as trustees of the Palms estate, were the owners of this building. It also appears that the plaintiff was, on the 12th day of December, and for about a year prior thereto, in the employ of Bloom-garden & Ellenstein, commission merchants, in a building directly adjoining the Krolik building on the east. As I said, the fire happened on the 24th day of November, and left the building in a condition which you will determine from the testimony which has been given here. Defendants were not responsible for the fire; they were not responsible for the condition in which the building was on the morning after the fire; so that, if this accident had happened on the morning after the fire, I should probably have directed a verdict for the defendants; but, as it happened some time after the fire, other questions arise, which are to be submitted to you for determination as questions of fact.
“Although the defendants were not responsible for the condition in which the fire left the building, they, however, did owe a certain duty to the public and to the adjoining owners, and that duty was to correct any dangerous condition in which the building might have been, and, if they neglected or delayed unnecessarily the performance of that duty, they are chargeable with negligence; so that the first question for you to determine is, What was the condition of the east wall of that building on the morning after the fire, and for all the mornings after that up to the 11th day of December, — the day prior to the time that the east wall fell? In this connection, if you find that the east wall was in a safe condition up to the night of December 11th, then defendants would not be chargeable with negligence by reason of any delay in taking down the wall or fixing the building. In determining this question, you will consider all the evidence of the people 'who have testified, both from personal examination or as to facts in relation to the condition of the wall, and upon hypothetical questions based upon facts in the case. If, however, you find that the east wall after the fire, and up to the 11th day of December, was in an unsafe condition, and liable to fall or be blown down (and by being ‘blown down’ I mean blown down by reason of its not being in a reasonably safe or strong condition to resist the strain upon the supporting timbers, or that it was blown down by reason of its not being of a proper and safe construction, sufficient to resist the elements at all seasons and in all ordinary weather, and under such extraordinary occurrences as are likely to arise in that locality, based upon past experience in that locality), you will find for the plaintiff. I charge you that if the defendants were guilty of negligence in allowing such a wall to stand in a condition which you find was unsafe, either to adjoining buildings or the public on the street, you should find for the plaintiff, if by the exercise of reasonable diligence you believe the defendants could have put the wall in a safe condition at the time it became unsafe, or between that time and the time it fell. I am speaking now of the time between the fire and the 11th of December. An unsafe condition would be such a condition that it would not be able to resist the elements under the ordinary circumstances which might exist in that locality, or under such extraordinary circumstances as might happen in that locality, judging from past experience. That is, if this blow which arose and resulted in the throwing down of the wall caused it to fall because of the weak condition of that wall, which had existed prior to December 11th, these remarks apply. If it was an extraordinary blow, such - as experience in that locality would not have forecast as possible, then the liability would not attach. If you believe that the east wall was in a dangerous and unsafe condition, and was liable to fall under such a blow, then such a wall would be a public and private nuisance as to, those owning adjoining property; and, if you believe that by reason of such unsafe condition the walls fell and caused this injury, the owner is liable for all the consequences arising therefrom. I am speaking now of a condition existing between the time of the fire and December 11th. I shall come hereafter to conditions which may have existed after December 11th, caused by the falling of the west wall. If you find that, after the fire, the wall was in a safe condition, you will not charge the defendants with anything which might have been done before December 11th to put it in a safer condition.
“ It became the duty of defendants, after the fire, to see to it that the premises or walls of this building were in a safe condition, — in such a condition that people would not he hurt therefrom, and to withstand the elements in all ordinary weather, and under such extraordinary occurrences as are likely to happen in that locality, based on past experience. And I charge you, further, that they were not relieved from this duty by the employment of architects or builders, if the architects and builders have been negligent in the performance of their duty. In considering the condition of the wall during that period, and in considering the degree of care that it was necessary for the defendants to exercise in and about the repairing of the building in question after the fire, you have the right to consider that the defendants and their agents were not architects and contractors; also the fact that, immediately after the fire, they consulted competent architects and builders. You are to judge of the competency of these men, and you will consider the fact that they were guided entirely by their judgment as to what was necessary to be done, and acted entirely in accordance with the suggestions of such builders. That is, not being architects or builders themselves, it was the duty of the defendants, under the circumstances, to consult competent architects and builders, and to take such action as was necessary.
“In considering the matter whether the walls were in a dangerous condition after the fire, you have the right to consider that the building was examined by competent architects and masons and builders, who examined it not only with reference to its present safety, but also • with reference to its capacity to bear a new roof. In considering the question as to whether the wall was in a dangerous condition, and the diligence of the defendants with reference thereto, you have the right to consider that the plaintiff and other people in buildings adjacent to such building continued their daily occupation as if they considered the said wall in a safe condition, and that not until the west wall fell, and there existed a strong wind, such as occurred on the 32th of December, did anybody apprehend the danger from the falling of said wall.
“If you find that they were ignorant of these conditions, and did not apprehend any danger, you will not consider evidence as to what was done afterwards upon the wall, as bearing upon the question as to what should have been done to secure its safety. Defendants were only bound to do wbat appeared at the time necessary to be done, and they were to be guided by competent architects and builders; and if, so guided by competent architects and builders, who were not negligent in the performance of the duty which they owed to the defendants, they did not consider it necessary to shore up said walls, or otherwise proceed to shore or brace up the walls, other than by the existence of the joists which were still there before the falling of the wall, they were not negligent. If, however, the conditions as they existed after the fall were new conditions which arose, and did not indicate prior conditions, they are not to be considered by you in any way as bearing upon this case, or bearing upon the condition of the wall, which would direct the defendants in the performance of any duty.
“The mere fact that the wall fell is no evidence in itself of its defective condition. The mere fact that the wall fell does not fix a liability upon the defendants by reason thereof. It is the duty of the plaintiff to show you that the wall fell by reason of some negligence — some nonfeasance or misfeasance — of the defendants; that they either had some duty to perform which they did not perform, or did something which they ought not to have done, or that they did that which they ought to have done badly. Either one of these things must appear to you before you can attach any responsibility to the defendants. The burden of proof is upon the plaintiff to satisfy you in all these respects. By ‘burden of proof’ I mean, not where your mind has formed a conclusion, because there the burden has .been satisfied; but, if there is a doubt in your mind, the benefit of that doubt is to be given against the person on whom the burden of proof rests. Of course, if your mind is satisfied on a point, there is no doubt, and then no question as to the burden of proof arises. If there is a doubt in your mind as to any fact, that doubt must be cast against the person upon whom the burden of proof rests, and in favor of the person upon whom the burden of proof does not rest.
“If you believe that on the morning after the fire, and continuing up to the 11th day of December, the wall was in an unsafe condition, and that by ordinary care this easterly wall could have been so strengthened as to have prevented this accident, and if you further believe that the wall was not braced in any way, then that constitutes negligence, and the plaintiff is entitled to recover. I say that upon the theory that you may find that the wall during the period was in an unsafe condition; if you should so find, there is a duty upon the defendants to brace the wall and put it in a safe condition, and they would be chargeable with a result of that neglect, unless there were reasons shown to you why it could not be done, or the accident befell from reasons beyond their control.
“Under the terms of the lease with the Kroliks, if the wall was in an unsafe condition, the defendants had a right to enter upon the land, and they should have insisted upon the right until they were restrained by the court, to put the building in condition. If there was a dangerous condition existing there, they had a right to enter at once, and if the wall, during that period, up to the 11th day of December, was not in a safe condition, it was their duty to go in and put it in a safe condition.
“ If you determine that the wall was in a safe condition up to the 11th day of December, and that it was only put in an unsafe condition by reason of the falling of the west wall on the morning of the 12th of December, — that is, if you believe there was sufficient bracing to hold this wall, and if you believe that this bracing became insufficient or had been carried away by any other means growing out of the falling of the west wall, and that the falling of the east wall resulted from the fall of the west wall, putting it in an unsafe condition, provided it was safe except for that happening, — then the defendants are only chargeable with a duty arising from that time; that is, from the time when the wall became dangerous; and, under that condition of affairs, it is for you to determine what reasonable care and diligence the defendants might have exercised to have put that wall in a safe condition between the time of its becoming unsafe and the time it fell. If you find that the time was too limited to give them an opportunity to put the east wall in a safe condition after the fall of the west wall, then the defendants cannot be chargeable with negligence. If, however, you find that there was an opportunity for their receiving information of the condition of affairs, and after receiving such information they had the' means to prevent the falling of the wall before it did fall, which was some time between 9 and 10 o’clock in the morning, — if you think the wall could have been braced by the exercise of reasonable diligence on the part of the defendants before that time, — then they are chargeable with negligence in not having exercised that diligence. If, however, the time was so short that they could not receive information or do the work, then they are not chargeable with negligence in this matter.
“I will leave with you the question whether the plaintiff was guilty of contributory negligence. If he had such knowledge of these conditions that a prudent man would have exercised care to avoid the danger, why, then, he is guilty of contributory negligence, and cannot recover.
“If you find for the defendants, it is of no cause for action. If you find for the plaintiff, you reach the measure of damages, and you will first determine his earning capacity at.the time of the accident. You will also consider his occupation; the wages he had been earning for some time prior thereto. Having determined that, you will determine what he was liable to earn in the future; then compute the present value, based upon his expectation of life and his age. I think his age is 37 years. You will discount each annual payment, and you will determine the amount at its present value; and you will also give him such an amount as will compensate him for any pain and suffering which he has had in the past, resulting from the injury, and which may come to him in the future.
“I will say this, further, to you: That the defective condition of the wall, is some evidence, and may be considered by you in connection with your consideration of all the facts concerning its condition. It is evidence in the case for you to consider. But the mere fact of the defective condition of the wall does not establish negligence. You may simply consider it in connection with other testimony. You will consider the testimony of all the witnesses, and believe them as you see fit, and as you think they are worthy of belief. Consider their testimony, and consider the testimony of the experts. Consider the opportunity which the experts had, and their character and ability, and their standing in the community in their line of work. Consider it in connection with the statements which they have made as to the condition of affairs, so far as they have examined the walls. The conclusion which you form in your minds may be influenced more or less by the testimony of the experts, as far as they have testified, and have had an opportunity for knowing the conditions as they existed at the time of the fall. You are to determine the character of their testimony, and what weight is to be given to it, based upon their experience and ability and reputation, and based, further, upon the opportunity which they had to examine the wall, and the examination which they did make of the work, and the detailed statements by them of the examinations upon which they formed their opinion. That is all, gentlemen. You may follow an officer.”

The defendants owned a building occupied by the wholesale dry goods firm of A. Krolik & Co., facing on Jefferson avenue, and running through to Woodbridge street. This building had a frontage of about 43¶ feet on Jefferson avenue, and was about 200 feet deep, extending through to Woodbridge street. It was constructed of brick; was five stories and a basement high in front, and six stories in the rear, on Woodbridge street. Adjoining the Palms building on the east, facing on Jefferson avenue, and running back to an alley running east and west from Gris-wold street, .between Woodbridge and Jefferson, and ending at the easterly wall of the Palms building, was a building occupied by C. H. Eitter & Co. The Eitter building was considerably lower than the Palms building. South of the alley, and adjoining the southeasterly or easterly wall of the 'Palms building, was a comparatively, low four-story building .owned by the Hyde estate. It was much lower than the Palms building, was 80 to 90 feet deep, was built of brick, and was occupied by the firm of Bloomgarden & Ellenstein, and on the upper floors, in part, by A. Krolik & Co. Adjoining the Palms building on the west was the Strong-Lee building, occupied by the Strong, Lee & Co. dry goods firm, extending from Jefferson avenue through to Woodbridge street. The westerly wall of the Palms building projected above the roof of this building 20 feet or more.

On the night of November 24, 1899, a fire broke out in the Palms building. It started in the upper stories of the building. It was a hot fire. The floor of the sixth story was nearly destroyed, as was the roof. The testimony of a number of witnesses was introduced, tending to show the effect of the fire and water on the brick walls', and that the result of the fire and the force of the strong streams of cold water upon the hot walls was to leave the side walls in a' dangerous condition. It was the claim of the plaintiff that the fire left the walls in a dangerous condition, and the defendants, instead of promptly repairing them, allowed them to remain so until the night of the 11th of December, when a section of the west wall fell, followed by the falling in the forenoon of the 12th of a section of the east wall upon the roof of the Bloomgarden building, carrying down the roof and the floors of that building, and forcing the front walls of the building into the street, covering the plaintiff, who was near the curb, in the street, with débris, and inflicting upon him injuries from which he will never recover. It is claimed this occurred when the wind was no higher than might be anticipated at that time of year. It was the claim of defendants that the fire did not leave the walls in a dangerous condition; that they at once employed two competent builders and a competent architect to examine them, who pronounced the walls safe; that they instructed the builders to rebuild so soon as it could be done; that they 'commenced their work, when they were prevented from' completing it by a wreckage and salvage company to whom ICrolik & Co. had sold the goods; that the falling of the walls was caused by a very high wind; and that defendants were not negligent, and should not be held liable.

After the verdict a motion was made for a new trial. In overruling the motion the court said :

“ While my charge, in so many words, did not state that the owner of land abutting a street was an insurer to the wayfarer upon the street as to the safety of the structures upon his land, yet that is the spirit in which the charge was given. The Supreme Court has substantially declared the owner, under such circumstances, to be an insurer. * * * Therefore I refuse to grant the motion.”

Counsel, in their brief, say:

“ It was and is our contention that the defendants were not insurers, and were only chargeable with the damage suffered by the plaintiff in case the evidence showed that they did not exercise the diligence that ordinarily prudent men would have exercised under like circumstances. We also contended that the evidence, as a whole, established that they had exercised the diligence that ordinarily prudent men would have exercised under like conditions, because they had acted under the circumstances as they appeared to them after having made reasonable and proper effort to ascertain what the circumstances actually were. * * * The rule is one of diligence, not insurance. No man can be justly charged with having neglected that of which he was ignorant, or which he did not discover after making reasonable and proper efforts to ascertain the facts.”

Of course, the case is to be determined, not by what was said by the trial judge in overruling the motion for a new trial, but by what was done and said during the progress of the trial.

Yery exhaustive briefs have, been presented by counsel, in which a very large number of authorities are cited. An examination of them shows a want of harmony in the decisions. The important questions, however, are not new in this court. The case of Wilkinson v. Detroit Steel & Spring Works, 78 Mich. 405 (41 N. W. 490), was, in principle, much like this one. In that case a portion of a building fell. It was claimed, as here, that a competent architect and competent builders had been employed, and that defendant was guilty of no negligence, and was not liable. In speaking for the court, Justice Champlin said:

“Complaint is made by counsel for defendant to the charges given by the court aside from those contained in the defendant’s requests. He maintains that this is a case where the doctrine relative to independent contractors should be applied, and if defendant exercised reasonable care in selecting the architect who furnished the plans, and in employing competent builders, it is not liable for the injury occasioned by the falling structure. * * *
“But assuming, for the purposes of this case, that Candler Bros, were independent contractors, and engaged to build and finish it according to certain specified plans-furnished to them by defendant, and did so, still I do not think the defendant was relieved from liability under the-facts of this case.

“The general rule, in its broad sense, is well stated in 2 Thomp. Neg. p. 899, as follows:

“ ‘ One who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful, or attended with danger to others, according to the contractor’s own methods, and without his being subject to control except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work.’

“And see section 25, pp. 902, 903, same author.

“There are well-recognized exceptions to 'the general rule, as:

“ 1. Where the contractor is not left to pursue his own methods of accomplishing the result, but is furnished by the proprietor with plans, which he agrees to execute, and the injury results from a defect in the plans.
“2. When the work completed is on the proprietor’s own land, and, as completed, is a nuisance, the party who employed another to do it is responsible for all the consequences, for then the maxim, ‘ Qui facit per alium facit per se,’ applies, as well as the maxim, ‘So use your own as not to injure another’s property.’

“These exceptions appear to be supported by all the modern authorities upon the subject. Thus, Andrews, J., in King v. Railroad Co., 66 N. Y. 185 (23 Am. Rep 37), says:

“ ‘Whoever directs the doing of an act which, when done, will necessarily be the creation of a nuisance, will be personally responsible for a special injury resulting therefrom to third persons, whether the act is performed by a servant or contractor.’

“And Peckham, J., in Benson v. Suarez, 28 How. Prac. 511, 19 Abb. Prac. 61, says:

“ ‘An owner has no right to erect a nuisance on his own land to the injury of his neighbors. He cannot erect so weak and unsafe a building that it shall fall in ordinary times from its mere insecurity and insufficient strength, and thus injure the building or property of his adjoining neighbor, without being responsible for that injury.’
“It is unnecessary to multiply citations, for the reason that the principle is founded in reason and justice. If this building fell from its inherent weakness of construction, though built according to the plan, was it a nuisance ? It was located between, and contiguous to, two public highways. It fell, after being erected four or five months, in a calm day, without any apparent cause, internal or external, except through its own weakness and inability to stand longer. I quote from Wood, Nuis. [1st Ed.] § 113:
“ ‘ While a man has a right to follow his own tastes and inclinations as to the style and character of the building that he will erect upon his own land, yet he has no right to erect and maintain there a building that is dangerous by reason of the materials used in or the manner of its construction, or that is in a ruinous condition, and liable to fall and do injury to an adjoining owner or the public. Such a building on a public street is a public nuisance, and is a private nuisance to those owning property adjoining it; and if the building falls and inflicts injury upon the adjoining owners or their property, or to any one who is lawfully in its vicinity, the owner is liable for all the consequences that ensue therefrom.’
“ * * * The law imposed upon the defendant, when it exercised its lawful right of constructing a rolling mill upon its premises adjoining a public highway, the duty towards the general public, having the right of passing along or lawfully being in that highway, to so erect it as to render it reasonably safe, and sufficiently strong, not only to resist the strain upon the supporting timbers of the roof, but strong enough to support the roof at all seasons, in all ordinary weather, and also under such extraordinary occurrences as were likely to arise in that locality, based upon past experience. And this duty cannot be avoided by employing an independent contractor to furnish the material .and perform the work. Here, if the testimony is believed, was a trap, constructed according to defendant’s plans, dangerous to human life, and liable at any time to fall upon and injure persons or property in the highway. It was a dangerous nuisance, and was being maintained by the defendant. It cannot escape liability by saying: ‘ It was built according to plans which I procured, by a person whom I employed. I acted in good faith and with reasonable care in selecting my architect and builder, and therefore I have discharged my whole duty in the matter.’ The reason why this is not a sufficient answer is plain. The injury does not arise from the act of the contractor during the performance of a work over which defendant had no control. It has employed a man to do a lawful thing in an unlawful manner. It employed him to construct a building which, when done, necessarily resulted in the creation of a nuisance. It hot only directed the act to be done, but it maintained the nuisance until it fell and did 'the injury complained of. The charge of the court proceeded upon the wrong basis as to excusing liability in a case like this. He should have instructed them that if the building was so constructed by defendant, or through its directions,, as to be insecure and unsafe, and of such inherent weakness as to fall without external or internal forces acting upon it, other than the ordinary forces to ' which it would be subject in the locality, and* the business carried on in such building, it would be a nuisance, and the defendant would be liable for any injury caused thereby to any person lawfully in the public highway. The obligation to construct a building that would be safe and secure was primary with the defendant, and could neither be delegated nor excused by employing one person to prepare plans, and another person to do the work, and resigning all control and responsibility into his hands. The exercise of reasonable care in the creation or maintenance of a nuisance can never be an absolute defense to an action for an injury occasioned thereby.”

Steppe v. Alter, 48 La. Ann. 363 (19 South. 147, 55 Am. St. Rep. 281); Sessengut v. Posey, 67 Lid. 408 (33 Am. Rep. 98); 1 Wood, Nuis. §§ 109, 118. See, also, Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33); Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500).

In the case at bar no contract had been given, though the architect and builders had been told to do what was necessary to be done. As before stated, it was the claim of the defendants the walls were not dangerous, but the fall was caused by an unusual wind, and testimony was given tending to support this view. We have already stated the claim of the plaintiff. The opinion of Justice Champlin, from which we have quoted, not only indicates the duty of the owners of the building, but it also decides that duty cannot be delegated to another so as to excuse the owner for a failure to perform it. See, also, Whart. Neg. § 184; Sessengut v. Posey, 67 Ind. 408 (33 Am. Rep. 98); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572).

In Deford v. State, 30 Md. 179, it is said:

“But, although it may be that Deford is not liable for the acts of these parties by reason of any such relation as master and servant, it does not follow that he may not be responsible for the consequences resulting from the defective work allowed to be done by them. The wall was in course of erection on his premises, by his sanction, under his contract, and- for his use and benefit. It was immediately fronting on a public street in a large city, and, if the testimony offered on the part of the plaintiff be true, it was constructed in a most defective and dangerous manner, — so much so that it excited the alarm and apprehension of hundreds of people as they passed, and caused them to avoid the pavement in its immediate front. If this be so, it certainly constituted a nuisance, for which Deford would be liable. And the fact that the wall was erected by others, under contract, and to whom he did not bear the relation of master, will not excuse him; for, as was said by Lord Campbell in Ellis v. Gas Consumers’ Co., 2 El. & Bl. 767, it is a proposition absolutely untenable that in no case can a man be responsible for the act of a person with whom he has made a contract. If the contractor does the thing which he is employed to do, the employer is responsible for that thing, as if he did it himself. And in all cases where a party is in possession of fixed property, he must take care that it is so used and managed that other persons shall not be injured; and whether it be managed by his own servants, or by contractors or their servants, makes no difference in respect to his liability. ‘ If a man has anything to be done on his own premises, he ■ must take care to injure no man in the mode of conducting the work. Whether he injures a passenger in the street, or a servant employed about his work, seems to make no difference.’ Rapson v. Cubitt, 9 Mees. & W. 715.”

See the cases cited in this opinion; Evans v. Murphy, 87 Md. 498 (40 Atl. 109); Worthington v. Parker, 11 Daly, 545; Sulzbacher v. Dickie, 51 How. Prac. 500.

The last-named case is instructive upon another branch of the case. It is claimed that, as the builders were preT vented from continuing their work by the wreckage and salvage company to whom Krolik & Co. had sold the goods, defendants are excused for not prosecuting their work during that time. The testimony on the part of the defendants tends to show that the builders were interfered with by Krolik, and that the wreckage and salvage company threatened them with an injunction if they continued their . work. This is denied by Mr. Krolik. In Sulzbacher v. Dickie, supra, it is said:

“The defendant, Dickie, as the owner of the building, had a right to put on a new roof, to prevent his building going to ruin; a landlord having the right, during the tenancy, to enter and make such permanent repairs as are essential to prevent waste, and indispensable to the due protection and preservation of his reversionary interest. 1 Tayl. Landl. & Ten. § 174; Proud v. Hollis, 1 Barn. & C. 8.”

Not only has the landlord a right to do what is necessary to protect his interest in real estate seriously injured by fire, but if, as a result of the fire, the walls are so weakened as to become a source of danger to persons passing upon the street, it is the duty of the owner to enter upon the building and make such repairs as shall be necessary. It is not believed any court would enjoin the owner from performing this duty. We approve what was said upon that subject by the trial judge in his charge to the jury. Bensen v. Suarez, 28 How. Prac. 511, 19 Abb. Prac. 61.

Complaint is made about the charge of the court in relation to the question of damages. The mortality tables were introduced in evidence. The age of the plaintiff was shown, and his earning capacity. His injuries are of a permanent character. No written request was preferred by counsel upon the question of damages. It was not suggested to the judge that his charge left out any essential thing upon that subject. While it might have been well to instruct the jury more in detail, we cannot say the court erred in his charge.

A number of errors are assigned upon tbe admission of evidence. We have examined them, but do not think it necessary to discuss them. The case was carefully tried. The rule of law as stated by the judge substantially followed the opinion of Justice Champlin in Wilkinson v. Detroit Steel & Spring Works, supra.

Judgment is affirmed.

Hooker, C. J., G-rant and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CARSON, PIRIE, SCOTT & CO. v. FINCHER.
    1. Checks — Presentation—Liability op Drawer.
    The forwarding of a check by mail to the bank on which it is drawn is not such a presentation of the check as will charge the drawer thereon.
    2. Same — Harmless Omission.
    But if the drawer had no funds in the bank with which to pay the check, or if the bank was without funds to pay it, and the drawer is given timely notice of nonpayment, his liability continues, notwithstanding such defective presentment.
    3. Same — Fraud—Evidence.
    Knowledge by the drawer of a check of facts tending to show that the bank on which it is drawn is not particularly strong, but not leading to the conclusion that the check in question will not be paid if properly presented, is not sufficient to charge him with fraud in sending the check to a créditor, so as to prevent his reliance on the defense of want of notice of dishonor.
    Error to Oceana; Russell, J.
    Submitted January 8, 1902.
    Decided March 18, 1902.
    Assumpsit by. Carson, Pirie, Scott & Company against Francis W. Fincher and Charles Jensen, copartners as F. W. Fincher Company, to recover the amount of a protested check. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Smith, Nims, Hoyt & Erwin, for appellants.

      Hartwiclc & Sheets and W. S. Hanson, for appellee;
   Moore, J.

The plaintiff is a wholesale dealer residing and doing business at Chicago, 111. The defendants are retail dealerá residing and doing business in the village of Pentwater, in this State. On the 8th of May, 1900, defendants were indebted to plaintiff for goods purchased to the amount of $192.39, which account was subject to a discount if paid within 30 days, leaving the account, if paid in the month of May, $184.29. The defendants, on the 8th day of May, 1900, mailed to plaintiff their check, drawn on Nielsen & Co., bankers at Pentwater, for $184.29. Plaintiff, on the 10th of May, 1900, received said check, and deposited it with the First National Bank of Chicago for collection, which bank forwarded the check by mail to Nielsen & Co., who received the same on May 11th, but made no remittance therefor. The defendants, after learning of the receipt of said check by plaintiff, heard nothing further concerning it until on or about the' 22d day of the same month, on which day they were notified by plaintiff that the check had not been paid. Nielsen & Co. continued to do business to and including Saturday, the 19th day of May, but did not open their doors on Monday, the 21st, and on or about the last-named day said bank was put into the possession of a receiver. The receiver returned the check to plaintiff. There was a mail twice daily each way between Pentwater and Chicago; also an express daily each way, with usual route and local agents. It is the claim of defendants that when said check was drawn, and at all times, defendants had sufficient funds on deposit at said bank to meet said check. In July the bank of Nielsen & Co. was declared bankrupt. The petition filed in the United States district court to have said firm adjudicated bankrupt states two grounds of bankruptcy, — one as occurring on the 23 d of April, 1900; the other, on the 18th of May following. The defendants claim there was no evidence that the defendants had no money in the hands of Nielsen & Co. at the time the check was drawn, or that they had reason to believe the check might not be paid on presentation.

The trial judge instructed the jury, among other things, as follows:

“1. If you find that defendants had no effects in the hands of Nielsen & Co. at the time the check in question was drawn, and had no reason to expect any, and had reason to believe that the check would not be paid when presented, notice of dishonor could do them no good, and want of notice would not be a defense.
“2. If you find that, at the time the check was drawn, the drawee bank was in an insolvent condition, that checks drawn by defendant on said bank while he had funds there had not been paid when presented, and defendant had knowledge of this fact, which he did not communicate to the plaintiff, and plaintiff had no knowledge of such insolvent condition, the drawing of a check under these conditions is a fraud on the payee, and defendant was not entitled to notice.
“3. If you find that the defendants drew a check for the purpose of using that as a means of withdrawing their funds from the bank in anticipation of its failure, and sent it to the plaintiff, who was ignorant of its condition, they were not bona fide makers, and cannot plead want of notice.
‘ ‘ 4. Inasmuch as checks are payable in current funds, and inasmuch as the bank cannot act as agent of both parties, it is a duty to have them presented by some party., who can receive the funds. In this case, as the evidence shows, the presentation was made by mail; and they unquestionably asked the parties to remit, and that would be, of course, by draft. Those things are established.”

The judge told the jury the check had not been properly presented, and then said:

“The plaintiff says that, while that may be a rule, they are exonerated from taking that course, because of the fact that Nielsen & Co. were insolvent, and because of the fact that defendants here knew that they were insolvent, and knew, or had a right to know, that if the check was presented there it would not be paid, and consequently they have not suffered. Well, if they have not, gentlemen, and they knew these things, and that check was' sent for the purpose and did commit a fraud on the parties to whom they sent it, by drawing a check upon a bank, — a check that was absolutely worthless, — and sending it to them, why, they are not entitled to notice; they have not lost anything because it was not presented there by some man in proper person; and, if you find that to be the fact from the evidence in the case, of course, your verdict will be for the plaintiff.
'“5. There is another reason why the plaintiff claims that the defendants are not entitled to notice, and that is that the defendants did not have any funds there to pay the check at the time it was drawn, at the time it was presented, taking into consideration the other drafts they had made. Now, if that is true, of course, the defendants were not entitled to notice.
“6. Now, those are really the two questions of fact upon which you gentlemen must pass. Was the situation such, and were they known to the defendants in this case at the time that the check was drawn, that they committed a fraud by imposing upon plaintiff, to whom they sent this check? If they did, the plaintiff is .entitled to recover.
“7. If they did not have any funds there with which to pay the check, the plaintiff is entitled to recover. ”

To which. instructions error is assigned. Under the charge, a verdict was rendered in favor of plaintiff and against the defendants for the sum of $199.80.

It is claimed there was no evidence to support the instructions. The testimony of Mr. Fincher tends to show that, while the bank books showed a balance of $775.22 in favor of defendants, when the check in question was drawn the firm had accepted a draft and drawn checks that were-outstanding, amounting to $773.06. As against this testimony, there was testimony tending to show the defendants had funds in the bank sufficient to pay this and all other outstanding checks, and that the bank had funds when the check was received at the bank, and that, if the check had been presented over the counter, it would have been paid. This raised a question for the jury.

It is pretty well settled in this country that when a check is sent to some other place than where the bank is located upon which it is drawn, and it is put into a bank for collection, it is the duty of the bank to forward it in proper time to a subagent selected with due care. The' bank should use every reasonable precaution to secure the collection, if possible; and if it has been careless in the •choice of an agent, and selected one it knew, or ought to have known, was an improper one, it will be answerable for any injury which results therefrom. The bank upon which a check is drawn is not a suitable agent for its collection, and the judge was right in so instructing the jury. 1 Morse, Banks (3d Ed.), § 236. But even though an improper agent has been selected, if the drawer of the check had no funds with which to pay the check hád it been presented in proper time, or if the bank had no funds with which to pay it, no harm has come to the maker of the check, and, if given timely notice, he would continue to he liable; but if, on the other hand, as claimed by the defendants, the maker of the check had funds to his credit in the bank, and the bank had funds, and the check would have been paid if presented over the counter in ■proper time, then the maker of the check would have been discharged.

We do not think, under the evidence in the case, it was proper to say to the jury that they might say, under the facts, proven, that defendants committed a fraud by sending plaintiff this check. It is true, the defendants had learned facts from which they might infer that the bank was not as strong as many banks; but it does not appear that they had any reason to suppose that, if the check was presented properly and in a reasonable time, it would not be paid. They had a right to assume that the plaintiff was familiar with the law, and, if it accepted the check, it would select a proper agent to present it, and that it would be presented in proper time, and, if it was not paid, defendants would be notified. If the plaintiff had done what it was its duty to do, no harm would have come to it. If the check was paid, that would have ended the •transaction. If it was not paid, defendants would have been notified, when it would have been their duty to make the check good, and no harm would have come to the plaintiff. This being so, we cannot see how the inference of fraud could be drawn from what was done.

For these reasons, judgment is reversed, and a new trial ordered.

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


text:
    SNYDER v. NEAL.
    1. Contracts — Personal Services — Quantum Meruit.
    Where plaintiff rendered services for defendants under an agreement that she should be compensated therefor at their death, which agreement defendants subsequently repudiated, plaintiff could maintain an action at once for the value of the services.
    2. Same — Joint Liability — Evidence.
    Evidence that plaintiff’s labor was performed upon a farm, part of which was owned by one and part by the other of the defendants, and was done for the benefit of both defendants, in the expectation that both were to pay therefor, was a sufficient showing of a joint liability.
    Error to Kent; Perkins, J.
    Submitted January 8, 1902.
    Decided March 18, 1902.

      Assumpsit by Viola Eosegrant Snyder against James E. Neal and Heroin Neal for work and labor performed. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Taggart & Taggart, for appellants.

      E. J. Adams, for appellee.
   Moore, J.

This case was commenced in justice’s court, and afterwards appealed to the circuit court, where it was tried by the circuit judge without a jury. The circuit judge made the following findings:

“1. That in March, 1890, the plaintiff entered defendants’ family as a member thereof, and these relations continued until the engagement hereinafter set forth.
‘ ‘ 3. The plaintiff performed services for the defendants from June 1, 1897, to March 14, 1899, of the value of $334.35.
“3. The said services were performed by the plaintiff and accepted by the defendants under the mutual understanding and express agreement that, at the death of the defendants, plaintiff should receive $300 in money, and part of the household goods, out of the estate of the defendants, as compensation for her services.
‘ ‘ 4. After the services were performed, defendants sold their farm, and, before the commencement of this suit, upon a request for some written evidence of the agreement by the plaintiff, defendants refused to give such memorandum, and informed plaintiff that while they had intended to provide for the payment to her of $300, and part of the household goods, at the time of their death, they had then come to the conclusion that they would not make any such provision, and that they would never pay her a cent for her work.
“5. Plaintiff is therefore entitled to recover of defendants the sum of $334.35 for her damages; that being the value of the services rendered by her for the defendants from^ June 1, 1897, to March 14, 1899, and for which the said defendants promised to pay her what her said services were reasonably worth.”

The judge was requested to strike out these findings, and make one to the effect that plaintiff came to live with the defendants as a member of the family, and that this relation did not change until she finally left them, and that there was no agreement or understanding, express or implied, that plaintiff was working for hire, or that she was to be paid by defendants for what she did for them while making her home with them, and to find, as conclusions of law, that defendants are under no legal obligation to compensate plaintiff for her services; that there is no joint obligation on the part of defendants to pay plaintiff for the alleged claims, or any part of the same. - This the judge declined to do, and exceptions were duly taken by defendants.

The plaintiff was 18 years old when she became an inmate of defendants’ family, which consisted of Mr. and Mrs. Neal, who were living upon a farm of 20 acres. They were uncle and aunt of the plaintiff. The title to the 15 acres of land upon which the house was situated was in Mrs. Neal. The title to the other 5 acres, upou which was the barn, was in Mr. Neal. It is the claim of plaintiff that prior to June, 1897, she worked several months each year for defendants, and from June 1, 1897, until March, 1899, she worked continuously for them; that during this time Mrs. Neal was in such condition that she gave her upwards of 300 baths; and that the services were rendered with the understanding upon her part that she would be paid for them, and with the understanding upon the part of defendants that they would pay for the services. It is the claim of defendants that plaintiff came to them in 1890, because her father and mother had separated, for the purpose of having a home; that she was treated as a member of the family; that she came and went when she desired, working out when she wanted to, but always calling their house her home; that, while she picked some berries for Mr. Neal, she was paid for doing so; that a watch was given to her, some shoes, and some small sums of money; that what she received was quite equal to what she gave, and that what she did was done as a member of the family, and not in the expectation she was to be paid for it; that while defendants had expected to leave her, upon their death, some household furniture and $150 or $200 in money, and would have done so had not she commenced this proceeding, their intention in that regard was because she was their niece, and not because they were under any obligations to pay her.

The testimony was very conflicting. It would not do any good to recite it here in detail. It will suffice to say that, if the judge believed the testimony offered on the part of the plaintiff, it justified the judgment, under the following decisions: O’Connor v. Beckwith, 41 Mich. 657 (3 N. W. 166); Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Robinson v. McAfee’s Estate, 59 Mich. 375 (26 N. W. 643); Westra v. Westra’s Estate, 101 Mich. 526 (60 N. W. 55); In re Williams’ Estate, 106 Mich. 490 (64 N. W. 490); Sammon v. Wood, 107 Mich. 506 (65 N. W. 529); Rhea v. Meyers’ Estate, 111 Mich. 140 (69 N. W. 239).

' In relation to the question of joint liability, counsel cite no authority, but content themselves with saying in the brief:

“ The action is joint, and the liability must therefore be shown to be joint. If there is any evidence showing a liability, which we claim there is not, yet it does not in any sense show a joint liability, and therefore the action cannot be maintained.”

The plea was the general issue. The evidence shows the bulk of the property was owned by Mrs. Neal, and that the work was done on a farm, part of which was owned by one and part by the other, and was done for the benefit of both the defendants. According to the claim of plaintiff, it was done in the expectation that they were both to pay for the services. The question of whether a married woman may incur such a liability is not raised, and we express no opinion upon that question.

We have considered the assignments of error in relation to the admission of testimony, and think they are not well taken.

The judgment is affirmed.

. Hooker, 0. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Ciiristiancy J.

text:
    John T. Symes, Administrator of the Estate of Erasmus G. Tucker, v. Alpheus Oliver.

      Damages in Trover: In an action of trover for tho conversion of pine logs, ■which tho defendant had unlawfully cut on tho plaintiff’s land, and taken off and sold; it not being shown that tho logs wore sold for more than their real value ; — Held, That tho plaintiff was entitled to recover, as damages, the amount for which the logs were sold by the defendant, with interest thereon from the date of the conversion.

      Heard October 11 and 12,

      Decided October 18.
    Case made after judgment, from Saginaw Circuit. In tho Court below judgment was rendered for the defendant upon the merits. The facts, so far as" necessary to an understanding of the legal questions, .are stated in the opinion of the Court.

      Wm. II. Sweet and John Moore, for plaintiff.

      Sutherland <& Miller, for defendant.
   Ciiristiancy J.

This is a case made after judgment for our decision ujjon the facts and the law. The action was trover for th'e conversion of pine logs cut on the lands of the deceased, (plaintiff’s intestate,) and sold by defendant. •

The defence set up was that the logs were cut under a license from plaintiff’s intestate, and as his partner, and that the proceeds went into the account of the partner■ship which existed between the intestate and defendant in reference to other lands, and a saw-mill, of which they were tenants in common, and in reference to lumbering business. We have been unable to discover any evidence tending to show a license from tlic intestate; and there is a decisive preponderance of evidence, that the proceeds were not carried into the partnership account. The evidence clearly sustains the declaration, and shows that defendant, of his own wrong, and without li- - cense, cut the logs on the individual lands of the intestate to the amount of three hundred and forty-four thousand feet, which .he sold for the sum of one thousand three hundred and sixty dollars.

These logs being the property of the intestate at the time of the conversion, and the amount which defendant received for thorn not being shown to be more than their real ’value, (if, indeed, this were competent,) the plaintiff is entitled to recover this amount, with interest from the time of the conversion, — say from May 1st, 1855. The judgment of the Court below must be reversed, and a judgment rendered in this Court in favor of the plaintiff for the above amount, with his costs in both Courts.

The other Justices concurred.


author: Campbell J.:

text:
    John G. Erwin v. Eliphalet M. Clark.

      Storage in Grain Elevator. — 'Bailment. — When Trover will lie. — Defendant, being the proprietor of a grain, elevator, received from, plaintiff a quantity of wheat in. store. Tlie receipt which he gave provided that the wheat should be delivered on return, of the receipt properly indorsed by the party to whose order it was, by its terms, deliverable, and on payment of charges; and that loss or damage by fire was at the owner’s risk. Upon demand and refusal to deliver the quantity of wheat specified in the receipt, plaintiff brought an action of Trover to recover its value. Proof was made of an usage, well known to both parties, according to which grain so received is mixed with other like grain in kind and quality, and that delivery of the same identical grain is not made or expected, but only an equal amount of the same kind and quality; — Held, That giving full effect to such usage, and treating it as incorporated into the receipt, the transaction did not amount to a sale, but constituted a bailment, and that trover was the proper remedy.

      Usage. — Whether, under such a receipt, and without any subsequent or other .agreement, evidence of usage is admissible to relieve the bailee from its legal effect : Quere.

      Special Verdict. —The Jury, in rendering a special verdict, should confine themselves to the facts, and leave the Court to render such judgment upon the facts so found as the law will warrant.

      Heard April 19 and 26.

      Decided October 27.
    Error to Wayne Circuit.
    This was an action of trover brought by Erwin — the plaintiff below — to recover for the conversion of five himclrecl bushels of wheat. Plea, the general issue. The cause was tried by a jury, who returned the following special verdict:
    “The cause coming on for trial, thereupon comes a jury, to wit: Jacob F. Carman and others, who are duly elected, tried and sworn, sit together, and hear the evidence, arguments of counsel, charge of the Court, retire under the charge of an officer duly sworn to attend them, to consult of their verdict, and coming again into Court, and being inquired thereof upon their oaths, say that in or about the month of October, 1861, the plaintiff was a dealer in wheat, residing. in said city of Detroit, and the defendant, who was also a resident of the city of Detroit, was the proprietor of a wheat elevator, situated therein, where wheat, and other grains, were received, stored, and delivered for various dealers, %nd' that during said month of October, tbe defendant received of the plaintiff the five hundred bushels of wheat demanded in this case, together with a large quantity of other wheat in store, and gave to the plaintiff therefor various receijits in form like the following, which is a copy of one of said receipts:

      “ ‘ E. M. Clark. “‘D. & 31 R. R. Elevator.

      “‘No. 802. “‘Detroit, Oct. 12th, 1861.
    “ ‘ Received in store from D. c% M. R. R.’d, from car No. 72, throe hundred and fifty-three bushels. 40 lbs. No. 1 white wheat subject to the order of J. Crampton, agt., endorsed herein, and deliverable upon return of this receipt, and on payment of charges (7 08.) Chgs. for 20 days, paid Oct. 14, ’61.
    ' “ ‘ Loss or damage by fire, acts of Providence, and heating at owner’s risk.
    “‘ 853 bush. 40 lbs. “‘War. D. Strong, Agt.’
    “ On the back of above receipt are the following endorsements :
    “ ‘ Deliver to J. Standish or order.
    “ ‘ Per J. Crampton,
    “ ‘ D. Todd.
    “ ‘ J. D. Standish.’
    “And the jurors aforesaid, upon their oaths aforesaid, do further say, ‘ that according to a uniform and well settled usage among wheat dealers and persons engaged in and connected with that trade, “which usage was well known both to said plaintiff and said defendant,, wheat so received for the purpose as aforesaid, and for which receipts like those in this case are given, is mixed with other wheat of the same kind and quality, which kind and quality are determined at the time of its reception by an Inspector appointed by the Board of Trade of the city of Detroit for that purpose, and that the person so receiving it for storage and delivery, is not expected or obliged to re-deliver the same identical wheat, but that he is at liberty to deliver that identical wheat to other persons, and is only expected or obliged to deliver to the person storing it, wheat of the same kind and quality; ’ and > the jurors aforesaid, upon their oaths aforesaid, do further say, that the plaintiff, on or about the 19th clay of October, A. D. 1861, did demand of the defendant all of the wheat which he had as aforesaid stored with the defendant at his elevator, and that the defendant then delivered to the plaintiff an amount of wheat of the same kind and quality which tlie plaintiff had theretofore stored with him, equal in amount to that so stored with him, with the exception -of five hundred bushels, which, by a mistake in tallying, was not delivered, and which the defendant, insisting that there was no mistake, has since neglected and refused to deliver, although the same was demanded by the plaintiff1 before the commencement of this suit.
    “ And the jurors aforesaid, upon their oaths aforesaid, do further say, that the value of said wheat not delivered as. aforesaid, at the time of filing the declaration in this case, was five hundred and twenty-five dollars, and if the plaintiff is entitled to recover at all, he is entitled to recover the said sum of six hundred and two and fifty-eight one hundredths dollars.
    “ But whether or not, upon the matters aforesaid, by the jurors aforesaid, by the form aforesaid, found, the said defendant is guilty as to the matters in the said plaintiff’s declaration laid to his charge, the jurors aforesaid are altogether ignorant; and if, upon all the matters aforesaid, it shall seem to the said Court that the said usage shall not be received to interpret, give instruction to, or control said receipt, that then said defendant is .guilty of converting to his own use the wheat in said plaintiff’s declaration mentioned, then the jurors aforesaid, ■upon their oaths aforesaid, say that the said defendant is •guilty thereof, in manner and form, as the said plaintiff hath in his said declaration complained against him, and in' that case théy assess the damages of said plaintiff by reason of the matters aforesaid, besides his costs and charges by him about this, in that behalf, to six hundred and two and fifty-eight one hundredths dollars; but if, upon the whole matters aforesaid, it shall seem to the said Court that the said usage shall be so received as aforesaid, that then said defendant is not guilty of converting said wheat to his own use'; then the jurors aforesaid, upon their oaths aforesaid, say that the said defendant is not guilty thereof in manner and form, as he hath in his plea in this cause alleged.”
    The Court below rendered judgment upon the verdict in favor of the defendant Clark.

      D. C. Nolbroolc, for plaintiff in error:
    The only question raised in the case is, whether it was* compebent, as evidence for the defendant, to show a usage to explain the' receipts or contracts given for this wheat.
    “No extrinsic evidence of usage can be received to vary, add to, or contradict the plain or implied sense of the contract, when once properly ascertained.”— Vol. 4 C. & H. Notes, p. 512, 3d Ed.; 2 Greenleaf Ev., Sec. 251; 2 Parsons’ Cont., 59; 2 Sumner R., 567.
    The following cases, with the extrinsic proofs, were declared to be sales: Ewing v. French, 1 Blackf. R., 354; Wadworth v. Allcott and al., 2 Selden, 64; Chase v. Washburn, 1 Ohio St. R., 244; Smith v. Clark, 21 Wend. R., 83; Norton v. Woodruff, 2 Coms. R., 153; Hurd v. West, 7 Cowen R., 753; Seymour v. Brown, 19 John. R., 47. There is not any case where usage was allowed, if the receipt stated what disposition was to be made of the property.
    The following were declared to be bailments, not sales: Chase v. Washburn, 1 Ohio St., 244; Wadsworth v. Allcott and al., 2 Selden R., 64; Mallory v. Willis, 4 Comst. 76; Slaughter v. Green and al., 1 Randolph, 3; Pribble v. Kent, 10 Indiana R., 325; Goodyear v. Ogden and al., 4 Hill R., 104; Dawson v. Kittle, 4 Hill R., 107.

      In the following cases, very similar to the present, proof of usage was rejected: Beals v. Terry, 2 Sanclf. S. G. R., 127.
    Custom as to delivery of like quantity of other brands not allowed.— Wolfe v. Myers & Co., 3 Sandf. R., 7; Allen v. Dykers, 3 Hill R., 593.
    Proof that other certificates of same stock might by usage be returned, not allowed.— Wadsworth v. Allcott and al., 2 Seld. R., 64. This case is almost exactly like the present; the receipt is in substance the same, but the intended disposition of wheat was different, as before stated, when the receipt or contract shows what was to be done with the property; another disposition by parol was not allowed to c.ontradict the writing.
    If' the defendant is engaged in a business, conducted as the usage requires, let him so contract, and not con-' tract one way, then do business another, and ask the-Court to change his contract to suit, his business.

      G. I. Walker, for defendant in error:
    1. Usage is admissible to explain ambiguous exjmessions in a contract, and to show the sense in which they were used by the parties. — 2 Edwards’ Phillips, 789; Bowman v. Horrey, 2 M. R., 85; Robertson v. Tackson, 2 M. G. & S., 412; the Schooner Reeside, 2 Sumner, 569.
    2. Usage is also admissible to annex stipulations to written contracts, in relation to which the contract itself is silent. — 2 Parsons on Contracts, 50; 2 Edwards’ Phillips, 789, 791 and 2, and note; Wigglesworth v. Dallison, Douglas, 201; Hutton v. Warren, 1 M. & W, 466; Metzner v. Bolton, 9 Ex., 520; Stultz v. Dickey, 5 Binn., 287.
    And, 3. To vary and control the meaning of particular words, and to give to them a sense and meaning entirely different from what they commonly bear. — 2 Parsons on Con., 51, 56; 2 Edwards’ Phillips, 726, 790; Smith

      v. Wilson, 3 B. & Ad., 728; Soutier v. Kellerman, 18 Mo., 511; Clayton v. Grigson, 5 Ad. & E., 300; Lewis v. Marshall, 7 M. & G., 729; Coit v. Com. Ins. Co., 7 Johns., 385; Cochran v. Retburgh, 3 Esp., 121; Thompson v. Sloan, 23 Wend., 77.
    But such is not the object of introducing evidence of usage.- — -See also Renner v. Bank of Columbia, 9 Wheat., 581; Clark v. Baker, 11 Met., 189; U. S. v. Arredondo, 6 Pet., 714; Brown v. Byrne, 26 E. L. and Eq., 247.
    The very object of such evidence is to vary the legal effect of the words, as interpreted according to their ordinary sense, but it does not vary the real contract which, the parties have made, but simply shows what that contract is.
    Indeed, where there is no ambiguity, the only purpose of such evidence is to vary the apparent meaning of the contract, and that, too, where, as ordinarily interpreted, the terms are express and clear.— Cases ante; 2 Edwards’ Phillips, 728, 731, 788; 2 Parsons on Con., 48 n.; Brown v. Byrne, 3 E. & B., 704; Uhde v. Walters, 3 Camp., 16; Robertson v. Money, R. & M. 75; Grant v. Straddox, 15 M. & W., 757; Nowlan v. Ablett, 2 C. M. & R., 54; Metzner v. Bolton, 9 Ex., 518; Parker v. Ibbotson, 4 C. B. N. S., 340; Avery v. Stewart, 2 Con., 69; Sampson v. Gazzam, 6 Port., 133; McClure v. Cox, 32 Ala., 621; Gordon v. Little, 8 S. & R., 533; Eyre v. Marine Ins. Co., 5 W. & S., 116; Merchants' M. I. Co. v. Wilson, 2 Md., 240; Dixon v. Dunham, 14 Ill., 324.
    Undoubtedly, where it is sought by usage to give an entirely different meaning to a contract from that which it would otherwise bear, the proof of the usage should be full and clear, and brought home to both parties, either by proof or satisfactory presumption.—Robertson v. Jackson, 2 M. G. & S., 424; Lewis v. Marshall, 2 M. & G., 743.
    The application of these principles to the present case leave no doubt as to tlio proper interpretation of this contract.
    Here was a uniform and established usage, known not only to wheat dealers generally, but to those parties in particular.
    The parties contracted with this usage, and the wheat which was “ deliverable” was any “No. 1 white wheat,” and not the specific wheat received.
    To exclude the usage would be, therefore, to give the contract an interpretation directly at variance with the intention of the parties.
   Campbell J.:

This was an action of trover brought to recover certain wheat stored by plaintiff with defendant, and not delivered, either specifically or in kind, when called for. Evidence was received, and acted upon by the jury, of an usage whereby wheat so stored on similar receipts was mixed with other wheat of like kind and quality, and that a delivery of the same wheat is never expected, but only of similar wheat of the same quality. This usage is found to have been known by the parties. Upon this finding,- judgment was rendered against the plaintiff on the ground that his remedy was in assumpsit, and not in trover, the transaction not creating a bailment, but amounting to a sale.

My own individual opinion has been that, under such a receipt as was given here, without any subsequent agreement to modify it, no usage coulcí be shown to relieve the defendant from restoring the identical wheat. The case does not find anything more, in fact, than, an ordinary storage, and does not find that any mingling took place with other wheat. It rests, therefore, on the naked fact of usage, which is claimed to be admissible to turn a bailment into a different arrangement from what it directly purports to be. This receipt promises on its face to restore the identical wheat in so many words. It charges storage upon it for a specific. period. It leaves plaintiff liable for losses by heating, fire, or inevitable accident — not to the warehouse, but to the wheat. These provisions are senseless, unless the plaintiff retained his property in the grain, and they are not applicable to anything but the grain delivered to the bailee. It is not found that the usage covers these risks. It has appeared to me that a usage which absolutely contradicts the contract in all its essential features is not admissible under pretext of explanation. In the absence of a finding that plaintiff had in some way consented to a modification of the contract by his acts, or by his direct assent, I, myself, should have been disposed to hold the contract must govern. But as the case is designed to present for consideration the effect of a contract made in accordance with such a usage, and we are all agreed concerning it, we have deemed it best, waiving the question of admissibility, and not deciding it, to place our decision upon the same • grounds as if the usage' were not only admissible, but incorporated directly into the contract in terms. It refers to the custom of elevating wheat or other grain into common bins, and drawing out from the common mass an equivalent amount when demanded. It may not be safe to hold, without a full investigation of points which do not always suggest themselves in advance upon new trade usages, that the property rights of a depositor of wheat in an -elevator, 'can always be enforced in the same way against all persons. But, as against the bailee at least, it seems to us the proprietary right still remains, being-converted, however, into , a tenancy in common, instead of an ownership in severalty. The jury do not find that the depositor under such a usage considered himself as making a sale, and as looldng to the personal liability of the warehouseman. Such 'an usage would be, to say the least, a very singular one, and a very clumsy way of selling. It is evident that the depositor expects to receive back his wheat directly or indirectly, and regards ■the elevation as a method of handling grain in which he retains an interest. Allowing it to be mingled with the grain of others may subject' Mm to some risks and disadvantages, but, as between himself and Ms bailee, he has only allowed it to be mixed in such a way that Ms aliquot part is as easily restored as if no commingling had taken place. We held in Fiquet v. Allison, 12 Mich., 328, that a refusal to deliver the proper number of bushels by a tenant in common, who had taken charge of it, upon reasonable request, might amount to a breach of duty, which could be treated as a conversion. TMs case is stronger, because the tenancy in common was only created for the purpose of agency. The mixture, by consent, of grain of the same kind and value has never been regarded, even by the most rigorous rules of the Common Law, as affecting the right of property of either owner in his aliquot portion as against the other. — 2 Bl. Com., 405; Story on Bailments, §40,

" We think, therefore,' that, upon the facts found in this case, there was a right of recovery in trover, and that the action was properly brought.

After finding the facts specially, the jury go on to. apply the law according to their own judgments, and determine that if the usage is allowed to prevail, the plaintiff cannot' recover. TMs is entirely beyond their province. Having found enough to determine the plaintiff’s right to recovery, their verdict entitles him to such judgment as the facts so found will justify, without regard to their legal opinions on the subject.

Judgment below must be reversed, and a new judgment must be entered on the verdict for the plaintiff' for six hundred and two and fifty-eight one hundredths. •dollars, with interest from January 18, 1864, and costs ■of both courts.

'Christiancy J.:

If it was necessary to the decision of this case to ■determine whether the custom proved was admissible, so far to modify the contract as to make it an undertaking to deliver an equal quantity of the same kind of wheat, instead of the same identical wheat; or if the question, whether this was a contract of bailment or sale, dejiended entirely upon this point, I should be disposed to hold the proof of custom admissible to determine the sense in which the parties used the term “ deliverable,” and to show that the delivery of the like quantity and quality, instead of the identical wheat, was intended.

But there are several other provisions of the contract, •as noticed by my brother Campbell, ■ which are wholly inconsistent with the idea of a sale, and which fix upon it the character of a bailment. In fact, such, I think, is the character of the whole contract. And' while a custom may be showm to explain the sense in which the parties have used particular terms, it is not competent to change the entire contract. No proof of usage or custom, however strong, could be permitted to convert a promissory note into a policy of insurance, or the latter into a deed of, conveyance. And it is at all times competent for parties, notwithstanding the existence and knowledge of a custom, to enter into a contract which shall not bo affected by it. This, I conceive, the parties have done here, by the other terms of the contract, so far as the question of sale or bailment is involved, vdiether the receipt should be construed as an undertaking to deliver the same, or an equal quantity of the same kind of wheat. I do not assent to the doctrine, which has been held in several cases, that this consider•ation alone must always, of necessity, determine ■whether the contract be one of sale or bailment. It is little short of absurdity, it seems to me, to hold a contract to be one of sale when it is evident that neither of the parties intended it as such, and there is no illegality in the contract. As no offer was made in the present case to satisfy the receipts by the delivery of wheat of the same quantity and quality, I concur with my brother Campbell, and in his reasoning, with the single exception above alluded to, and am entirely satisfied that the contract in the present case is one of bailment and not of sale, whether the custom was or was not admissible: upon the point indicated.

Martin Ch. J. concurred in the result.


author: Martin Ch. J.:

text:
    Ariel E. Peck v. Garrett Snyder.

      Special Verdict. — A jury may find a special verdict, but the Court cannot; direct or compel them to do so, nor to give reasons for a gonoral finding.

      Case made after verdict of jury and judgment. — On a case made after verdict of a jury and judgment thereon, this Court cannot review the facts, but only the rulings' and decision of the Circuit Court.

      When question to toitness becomes immaterial. — When, on a trial by jury, a witness is asked a question which is objected to, and the objection is overruled by the Court, and exception taken, and the witness answers, “I can’t say,” the answer renders the question immaterial, and error will not lie for such, ruling.

      Heard April 23.

      Decided October 27-
    Case made after judgment from' Cass Circuit.
    This was an action of assumpsit brought to recover damages for not. building a house an>d barn according to contract, and was tried by jury. On the trial, a witness for the plaintiff was asked, “What is the difference between the value of the house as it now is, and as it would iiave been had it boon built according to contract?” The question was objected to as incompetent. The Court overruled the objection, and the defendant excepted. The witness answered, “ I can’t say.”
    After the charge to the jury had been given by the Court, the defendant’s counsel asked the Court to direct the jury to find specially, and return such finding with their verdict upon these two questions:
    “ 1st. ' Whether or not, when said plaintiff paid to said defendant, on the 11th day of October, A. D. 1861, the final balance due upon the contract, and took possession of the premises, he, said plaintiff, had not full knowledge that said house and barn were not constructed according to the contract between them, and had the means of knowing the breaches of contract for which damages are claimed.”
    “'2d. Whether or not said defendant was guilty of any fraud by concealing the facts respecting said buildings from said defendant.”
    The Court refused so to direct the jury: to which ruling of the Court the counsel for the' defendant excepted.

      O. I. Wallcer and James Sullivan, for plaintiff:
    This case was made after trial by jury and verdict, and only the questions raised at the trial can be raised here. — 2 Com. Laws, §8421; Rule 80; Sweetzer v. Mead, 5 Mich., 109; Van Kleek v. Eggleston, 7 Mich., 511; Trudo v. Anderson, 10 Idem, 365.
    The jury cannot be required to give a special verdict, although they may give one. — 2 Com. Laws, §4399; 1 Burrill's Practice, 242; Tidd's Practice, 897.
    Harper’s answer to the question put to him did the defendant no injury, and judgment will not be reversed 'for an answer that does no injury to the party complaining.— Redpath v. Nottingham, 3 Blackf., 267.

      D. Blackman, for defendant.
   Martin Ch. J.:

I see no error in the rulings of the Circuit Judge in this case; and as the case was tried by jury, it is to tlie rulings and decision of tlie Court alone that we shall direct our attention. The finding of fects belonged neither to the Circuit Judge nor to this Court.

I can see but one exception taken below, to wbicli our attention can be directed, and that is, to the refusal of the Judge to direct the jury to find specially, upon certain questions, in case they found a general verdict. This is a novel request. A jury may find a general or a special verdict, according to the exigencies of the case; but ' a Judge cannot direct or compel them to do either, and more particularly, not to give reasons for a general finding. Harper’s answer renders the question put to him immaterial, and there .was no error, therefore, in the ruling of the Court allowing the question.

The judgment is affirmed.

The other Justices concurred.