text:
    Thomas G. Skelton v. The Fenton Electric Light & Power Company.

      Negligence — Pleading—Evidence —Error ivithout prejudice — Independent contractor.

    1. The declaration, in a suit by the owner of a marble shop for injury to certain monuments standing in his yard, alleged that the injury was caused by the gathering upon the smokestack, which the defendant had caused to be erected on its-premises for use in connection with an electric lighting apparatus, and the iron guys which supported said smokestack, of large quantities of iron rust,' or, carbonate of iron, which became naturally mixed with water and ice, smoke, soot, creosote, impure water, acids, and other ingredients or substances naturally collecting on said smokestack and guys, which mixture was naturally by the wind blown upon the monuments. And it is held that the declaration apprised the defendant that the injury was suffered by the blowing of rust, soot, and other formations upon, or products of, defendant’s chimney, in a moistened condition, upon the monuments, and that plaintiff was not required to ascertain at his peril just what the constituent elements of the mixture were.

      3. In a suit by the owner of a marble shop to recover damages for injury to monuments, which he had left out of doors, by the blowing thereon of soot and other substances from the defendant’s premises, the admission of evidence of a custom among marble dealers to leave their work thus exposed is non-prejudicial error, as the plaintiff had the legal right to leave his monuments out of doors if he chose.
    3. Where, in such a case, a witness for the plaintiff has testified on cross-examination that stains upon marble penetrate deeper by time, the rejection of the further question as to when he would do work upon marble that was stained,' — at once, or after waiting a year, — is not prejudicial to the defendant, as the former testimony amounted to saying that the stains should have early treatment.
    4. It was competent for a witness who was a builder to state what is meant among mechanics when the term “smokestack” is used.
    5. The fact that the smokestack was erected upon the order of the defendant by an independent contractor, and that it had not been accepted at the time of the alleged injury to the monuments, will not relieve the defendant from liability, it appearing that proper material was used by the contractor, and it not being shown that the injury resulted from the negligence or fault of the contractor, but it appearing rather that it was the natural result of erecting a smokestack „pf iron at that place.
    15. A witness called by the defendant to show that carbonate of iron would not stain marble was asked on cross-examination if he had not seen soot and creosote coming out of the electric light works chimney in large quantities, and if he had not so told a certain person, both of which questions were answered in the negative; whereupon the person referred to was called on rebuttal, and. against the defendant’s objection, permitted to testify that from a conversation had with the witness he got the impression that the witness meant that he had seen some substance come from said chimney. No foundation for an impeachment of the witness had been laid. And it is held that the testimony was hearsay, and well calculated to corroborate the plaintiff’s claim that something came from said chimney to his injury, and that its admission was reversible error.
    Error to Genesee. (Newton, J.) Submitted on briefs March 9, 1894. Decided April 10, 1894.

      Case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Timber v. Fracbelion, for appellant.

      Wisner, Lee & Atiben, for plaintiff.
   Hooker, J.

The plaintiff’s action is based upon- an alleged injury to certain marble monuments which, at the time of such injury, stood in the yard adjoining his marble shop in the village of Fenton. At the time, the defendant ovyned adjoining premises, upon which it had erected buildings for an electric lighting apparatus, which had been put up for it under a contract by the Western Electric Company, but which had not been accepted by defendant. An iron (smokestack extended for upwards of 75 feet above the roof, at a distance of 14 feet from the line of plaintiff’s premises, which was supported by iron guys, one of which crossed plaintiff’s premises several feet above the ground.

Plaintiff’s declaration alleged that his monuments were injured by the gathering upon the smokestack and guys of large quantities of *'•' iron rust, or carbonate of iron, whióh became naturally mixed with water and ice, smoke, soot, creosote, impure water, acids, and other ingredients or substances naturally collecting on said smokestack and guys, and the said mixture was naturally by the wind blown upon said monuments,” etc. The declaration also averred that the smokestack and guys were a private nuisance, and asked a judgment that they were such, and that they be .abatéd under chapter 373 of Howell’s Statutes.

Defendant’s counsel objected to the introduction of any proof under the declaration, because of the use of the words, “or other ingredients or substances,” which are said to render the declaration uncertain. A reference to the declaration shows that the conjunctive appears therein, and not the disjunctive, as in the objection. We think the declaration apprised defendant that the injury was suffered by the blowing of rust, soot, and other formations upon, or products of, its chimney, in a moistened condition, upon these monuments, and that plaintiff was not required to ascertain at his peril just what the constituent elements of the mixture were.

The plaintiff offered testimony to show that it was the custom of marble dealers to leave their work out of doors. This testimony was inadmissible. While it was proper to show the necessity, the custom could not limit the rights of the defendant. But, as the plaintiff had a legal right to leave his monuments out of doors if he chose, the defendant suffered no injury by the introduction of such evidence.

The testimony complained of by the eighth assignment was also harmless.

On cross-examination, plaintiff’s witness Barney was asked when he would do work upon marble that was stained, — at once, or after waiting a year? An objection was sustained. The witness had already stated that stains penetrate deeper by time, which was substantially saying that they should have early treatment. We think the defendant was not injured by this ruling.

We think also that the witness McCarthy, who was a builder, was competent to state what is meant among mechanics when the term “smokestack” is used.

A question was raised over thd danger of the smokestack being blown down. This testimony was perhaps proper upon the question of the nuisance, but, if it were not, it had no significance, as it had not blown down.

The defendant sought to show that it had not accepted the works from the Western Electric Company at the time the injury occurred. The Western Electric Company contracted to erect a stack. But this stack was ordered by the defendant to be erected. So far as we discover, the material furnished was proper, and in accordance with the contract. There is nothing to show that the injury-resulted from the negligence or fault of the builders of the stack, but it would seem that it was the natural result of erecting a smokestack of iron at that place. The defend,ant cannot say that it was the fault of the Western Electric Company, for it was what it was hired to do. If there was any fault about it, it was in causing the erection of the stack, for which the defendant is responsible. Had it been shown that the Western Electric Company, through negligence in its methods of erection or operation of the electric plant, without fault of the defendant, caused the injury, this evidence might have been material. But the claim' of the plaintiff is that rust from the chimney and guys fell or was blown upon his monuments, and for this the defendant is as much responsible as the agent who erected these appliances by its command.

One Plumb, a druggist, was called by defendant to show that carbonate of iron would not stain marble. On cross-examination he was asked if he had not seen soot and creosote coming out of the electric light works chimney in large quantities, and if he had not so told one J. W. Kennedy, to both of which he answered, “No.” Mr. Kennedy was called upon rebuttal, and, against defendant’s objection, was permitted to testify that from a conversation with Plumb he got the impression that he meant' that he had seen some substance come from that chimney. This testimony was hearsay. No foundation for an impeachment of Plumb was laid, and the testimony should not have been admitted. It was well adapted to corroborate the plaintiff’s claim that something came from that chimney to his injury. Counsel try to break the force of this by saying that it was offered upon the subject of abatement of the nuisance, and, as that was decided in defendant’s favor, the testimony did not injure it. Hearsay was no more admissible for one purpose than another, and, in this instance, was plainly injurious.

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

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John J. Speed v. The Common Council of the City of Detroit and Charles W. Moore, Controller.
    [See 97 Mich. 198; 98 Id. 360, 372.]

      Mandamus — Salary of municipal officer — Payment—City funds— Constitutional law —Bight of local self-government.

    1. Mandamus is the proper remedy to compel the payment by a municipal corporation of an official salary, the amount of which is fixed; citing McBride v. City of Grand Bapids, 47 Mich. 236.
    2. The fact that the general fund, out of which salaries are usually payable, has been overdrawn, will not prevent the issuance of the writ, where it appears that the amount of uncollected taxes is largely in excess of said overdraft, and that the city council has authorized a loan in anticipation of the collection of said taxes, and that the salary in question has not been anticipated in the annual budget, and is therefore contingent, and, under the charter, payable out of the contingent fund, which is amply sufficient for that purpose.
    3. The Legislature has not delegated to the city of Detroit power to fix the salary of the city counselor, whose appointment is provided for by Act No. 419, Local Acts of 1893; and the provision of said act fixing such salary is not unconstitutional; citing City of Wyandotte v. Drennan, 46 Mich. 478.
    4. Act No. 419, Local Acts of 1893, which provides for a law department for the city of Detroit, and for the appointment by the mayor of a city counselor, is supplemental to the charter of said city, and does not disturb existing officers, hut, on the contrary, constructs said department with material then on hand; and the provision respecting salary relates as well to the city counselor acting before the act took effect as to the city counselor subsequently appointed.

      Qertiorari to Wayne. (Hosmer, - J.) Argued April 3, 1894. Decided April 10, 1894.
    Relator applied to the circuit court for mandamus to compel the payment of his salary as city counselor of Detroit. Respondents bring certiorari to review-order granting the writ.
    Affirmed.
    The facts are stated in the opinion.

      Hoyt Post and John D. Oonely, for relator.

      Atkinson & Haigh (P. T. Van Zile, of counsel), for respondents.
   Per Curiam.

This is certiorari to review an order of the circuit court directing the payment of relator’s salary, under Act No. 419, Local Acts of 1893. Pour questions are raised:

1. Is mandamus the proper remedy? This point is ruled by McBride v. City of Grand Rapids, 47 Mich. 236.

2. The answer sets up that the general fund, out of which salaries are usually payable, is overdrawn, in the sum of $6,000. It appears, however, that the amount of uncollected taxes is $21,000, and that the common council has already authorized a loan. There is no doubt of the power of the council to borrow money in anticipation of the collection of the taxes levied. It further appears that the act creating the department went into effect June 1, 1893, after the annual budget had been determined upon, and that the salary fixed by the act was not anticipated in .that budget. The expense, therefore, must be regarded as contingent, and, under the charter, payable out of the contingent fund, which is shown to be amply sufficient.

3. It is contended that the Legislature has no authority to fix the salaries of city officers. The Constitution (section 38, art. 4) provides that the Legislature may confer upon cities such powers of a local, legislative, and administrative character as they may deem proper. The Legislature has not, in this instance, delegated to the municipality the power to fix the salary in question. The point is, we think, ruled by City of Wyandotte v. Drennan, 46 Mich. 478.

4. When 'the act took effect, relator was the then city counselor, under a former appointment. He was reappointed July 15, 1893, and for the months of June and July was paid at the rate fixed by the act. Respondents contend that, for this period, relator was entitled only to the salary as fixed ' under the former appointment. The act is supplemental, and does not disturb existing officers, but, on the contrary, constructs the department with material then on hand; and the provision respecting salary relates as well to the city counselor acting before the act took effect as to the city counselor subsequently appointed.

The order is therefore affirmed, with costs to relator.


author: Long, J.

text:
    Charles E. Burns et al. v. Charles W. Caskey et al.

      Contract — Reformation—Bona fide purchaser— Consideration.

    1. To justify the .reformation of a written contract' upon the ground of'mistake in drafting the same, the alleged mistake must be one of substance and of fact, and not of law, and must be proved by clear and entirely satisfactory evidence, "and not by a mere preponderance, ^and must be mutual and common to both parties to the contract.
    2. Mortgagees who take an assignment of a contract as collateral security for the mortgage debt, upon which they are to apply whatever amount they are able to collect on the contract, are not purchasers in good faith for value, and have no standing in a court of equity as bona fide purchasers, with a right to be protected as such, in a suit brought against their assignor to reform the contract on the ground of mistake in drafting the same; citing Me&raio v. Solomon, 83 Mich. 449.
    3. Where, in such a case, the reformation of the contract reduces the amount due the assignor thereon, and it appears that the mortgagees, as a part of the consideration for the assignment, surrendered to the assignor certain notes and mortgages which they held as collateral and additional security for the mortgage debt, they will have the right to demand of the complainants an amount sufficient to meet the balance of their claim, if any, remaining after exhausting their securities aside from the contract, and applying the proceeds on said debt, not exceeding, however, the amount of complainants’ indebtedness on the contract before its reformation.
    Appeal from Delta. (Stone, J.) Argued December 12 and 13, 1893. Decided April 17, 1894.
    Bill to reform a contract and for an injunction. Defendants appeal.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Glark & Pearl, for complainants.

      O. J. Paillhorp and B. T. Halstead (Taggart, Knappen <& Denison, of counsel), for defendants.
   Long, J.

The bill was filed in this case to reform a certain written contract executed between complainants and defendant Caskey, as well as to enjoin defendants Curtis and Wylie, the assignees of ‘the contract, from prosecuting & suit at law thereon. The contract is as follows:

“This agreement, made this 6th day of May, 1889, by and between Charles W. Caskey, of Petoskey, Michigan, of the first part, and Charles E. Burns, John K. Stack, John J. Bigney, and George Preston, of the city of Escanaba, Michigan, as follows:
“ The first party agrees to sell and convey to the second parties, to each an undivided one-fifth (1-5) interest in the steam propeller Cyclone, now owned by the said first party, in consideration of payment to him by them of the sum of $10,000, subject, however, to a mortgage covering said Cyclone, amounting to $4,500, and four-fifth (4-5) of which said mortgage shall be paid by the said second parties.
“It is also agreed that the second parties shall sell and convey to the first party an undivided one-fifth (1-5) interest in the steam propeller Nellie, now owned by the second partiés, in consideration of the payment by him to them of the sum of $2,800.
“It being the intention of this agreement that each of the above parties shall hold an undivided one-fifth interest in both of the above-named boats, and whatever sum in excess of said one-fifth interest shall have been paid in by the first party shall be repaid to him in freight or other business carried by said boats.
“It is also agreed that the proceeds of the mail route now owned by the first party between Harbor Springs and St. James shall become a portion of the earnings of the said boats.
“It is further agreed that on or before May 20, 1889, this agreement shall be carried out by the execution and delivery to each of the parties aforesaid the proper papers conveying to each the interests above specified.
“It is also agreed that depositing said papers with F. D. Mead, of Escanaba, Michigan, within the time above named, shall be deemed a compliance with the terms of this agreement.
“ Witness the hands of the parties hereto the day and. year first above written. .
“In presence of
“ Chas. W. Caskey.
“Charles E. Burns.
“John K. Stack.
“Jno. J. Rigney.
“George Preston."

The complainants’ contention is that the contract so-signed did not set out the true agreement between the parties.

Defendant Caskey lived at Petoskey, and owned a propeller called the “ Cyclone.” He had been running it in a freight business between Petoskey and Escanaba. Complainants resided at Escanaba, and in the spring of 1889 purchased a steamer called the “Nellie,” to run on the same route. By previous agreement, Mr. Caskey went to Escanaba, and the parties there arranged the matter of putting the two boats into a joint venture. There was a mortgage on the Cyclone of $4,500, and complainants* contention is that after more or less talk between the parties it was agreed that the complainants should buy from Caskey four-fifths of the Cyclone for $8,000, — $10,000 being the total valuation of the boat, which four-fifths interest would amount to $8,000, — less four-fifths of the mortgage, which the complainants agreed to pay for Caskey, deducting this four-fifths of the mortgage from the $8,000. The four-fifths interest in the mortgage amounted to $3,600, which, deducted from the $8,000, left $4,400. It was further agreed, according to the complainants* contention, that Caskey was to buy from the complainants a one-fifth interest in the Nellie for $2,800. That was also to be deducted from the $8,000, the purchase price of the four-fifths interest in the Cyclone. This would leave $1,-600 due Caskey over and above paying for the four-fifths of the mortgage, and also paying for a one-fifth interest in the Nellie. Complainants* contention is that the defendant Caskey pretended -to be in a hurry to leave Escanaba on an early train, and great haste was made to get the contract reduced to writing; and John J. Eigney, one of the complainants, and defendant Caskey, went to the office of F. D. Mead, an attorney at Escanaba, to have the contract drawn, and there stated to him in a hurried manner the contract, and the paper was drafted. The paper was sent over to the store of John K. Stack, one of the complainants, and, after • hastily running it over, was signed; and it was not noticed that serious mistakes had been made in its drafting, and the mistakes were not discovered until the defendant Caskey wrote a letter to complainant Stack, claiming that complainants owed him $9,000. Then the complainants immediately looked up the contract, and found that, instead of its setting forth that they were to buy four-fifths of the propeller Cyclone at the rate of $10,-000 as the total valuation of the boat, and that they were to pay four-fifths of the mortgage, and deduct it from the purchase price as agreed, the contract set forth, in substance, that they were each to purchase an undivided one-fifth interest, amounting to four-fifths interest, for $10,000, “ subject, however, to a mortgage covering said Cyclone, amounting to $4,500, and four-fifths of which said mortgage shall be paid by the said second parties;” and that the contract also set forth that complainants were to convey a one-fifth interest in the Nellie, “in consideration of the payment by him to them of the sum of $2,800.” They immediately went to Eoyce & Waite, attorneys, about the matter, and also to Mr. Mead, asserting that the contract was not drawn as the agreement was made. December 30, 1889, Caskey assigned this contract to defendants Wylie and Curtis, who took the assignment, not as a purchase, but as a sort of additional security for a very small amount, if anything.

Defendant Caskey contends that- the contract made and signed sets out the true agreement. His claim is that he not only put the Cyclone into the joint enterprise, but that he had a valuable contract from the government to carry mail between certaiñ points, for which he was being paid $48 per week, and that the Cyclone had a good freight business, worth $5,000 for the season, both of which were put in, while the Nellie had no business whatever.

Three of the complainants were sworn, and testified in their own behalf to the arrangement as above seb forth. Mr. Mead, who drafted the contract, testified as a witness for complainants, and gave evidence which tended to show that the mistake was made in drawing the contract, and corroborates to some extent complainants’ testimony as to what the actual agreement was. The case was heard in open court, and a decree entered in favor of complainants, correcting the mistake, and enjoining defendants Curtis and Wylie from prosecuting any suit upon the contract.

The court found the contract agreed upon to be as follows:

“The first party agrees to sell and convey to the second parties, each, an undivided one-fifth interest in the steam propeller Cyclone, now owned by the said first party, in consideration of payment to him by them of the sum of $8,000, subject, however, to a mortgage now covering said Cyclone, amounting to $4,500; it being agreed that four-fifths of said mortgage shall be paid by said second parties for said first party, namely, $3,600, the remaining $900 of said mortgage to be paid by first party, and the said $3,-600 so to be paid by the said second parties upon said mortgage is to be deducted from the $8,000 to be paid' said first party by said second parties as the purchase price of the four-fifths interest of said propeller Cyclone.
“It is also agreed that the second parties shall sell and convey to the first party an undivided one-fifth interest in the steam propeller Nellie, now owned by the second parties, in consideration of the payment by the first party to them of the sum of $2,800, to be also deducted from the said $8,000 so to be paid by said second parties to said first party, as aforesaid; leaving a balance due said first party in the transaction between the first and second parties in the purchase and sale of the said boats as aforesaid of $1,600.
“It being the intention of this agreement that each of the above parties shall hold an undivided one-fifth interest in both of the above-named boats, and whatever sum in excess of said one-fifth interest shall have been paid in by the first party shall be repaid to him in freight or other business done by said boats.
“It is also agreed that the proceeds of the mail route now owned by the first party between Harbor Springs and St. James shall become a portion of the earnings of ,the said boats.
“It is further agreed that on or before May 20, 1889, this agreement shall be carried out by the execution and delivery to each of the parties aforesaid of the proper papers conveying to each the interest as above specified.
“It is also agreed that depositing said papers with F. D. Mead, of Escanaba, Michigan, within the time above named, shall be deemed a compliance with the terms of this agreement.”

It would be unprofitable to set out the testimony at length. ¥e are satisfied that the court below was not in error in reforming the contract. It is conceded that to justify the reformation of a written contract upon the ground of mistake the alleged mistake must be one of substance and of fact, and not of law; that such mistake must be proved by clear and entirely satisfactory evidence, and that a mere preponderance of evidence is not sufficient; and that the mistake must be mutual and common to both parties to the instrument. Parol testimony may, however, be given to show that the written instrument does not express the real intent of the parties. As was said by the court below, the defendant’s testimony is not corroborated in any material matter by the witnesses, or by any circumstance. His position really is that the value of the Cyclone was fixed at $17,000; that is, he was to get $10,000 for a four-fifths interest, which makes the value $12,500 over and above the mortgage of $4,500. This would be placing her value at $3,000 more than the Nellie. This is contrary to all the evidence except the defendant’s. The claim, on the other hand, is, and we think it is conclusively shown, that the Nellie_ was to be valued at $14,000, and the Cyclone at $10,000. The mistake in drafting the contract is so palpable that it is impossible to escape the conviction that Caskey understood it to be as the complainants now assert it. It is needless to cite authorities to support the proposition that a court of equity will correct such a mistake and reform the instrument when the evidence' clearly shows what the' real instrument was; but it may be said that the evidence of mistake on which the court should act in giving relief ought to be so clear as to establish the fact beyond cavil. Vary v. Shea, 36 Mich. 388. We think, with the court below, that it is so established in this case.

But one other question remains. “It is claimed that Curtis and Wylie are good-faith purchasers of the contract, and-that their rights as such must be protected. The court' below found that they were not purchasers in good faith, as they received the assignment of the contract as collateral security for a debt against Caskey, which debt was already secured by a real-estate mortgage, and they were to apply upon such indebtedness whatever amount they were able to collect under this contract. If their debt was wholly an. antecedent one, and it was to secure such antecedent debt that the assignment was made to them, they did not take as purchasers in good faith for value, and could not stand in a court of equity as Iona fide purchasers, with a right to be protected as such. McGraw v. Solomon, 83 Mich. 449.

But it is claimed by counsel for defendants that a new consideration was also parted with by Curtis and Wylie in taking the assignment of the contract from Caskey. The court below found that some small notes were turned over to Caskey by them at that time, but that it did not clearly appear in what amount. Mr. Wylie was called as a witness, and testified as follows on .direct examination:

“ Q. Was there anything further in the way of consideration moving from yourselves to Mr. Caskey? and, if so, .state what it was.
“A. I would not attempt to state accurately just what securities we held at the time, but we had a number of mortgages, accompanied by notes, that were left as collateral.
“ Q. Mortgages made by Mr. Caskey?
“A. No, sir; given to him by parties he had dealings with. Some of those he wanted returned to him.
Q. And some of them were returned, I understand, when this paper was taken?
“A. Yes, sir; some were returned at the time, and some later.”
Mr. Wylie’s attention was again called to that subject on cross-examination, and He testified:
“ Q. You also had some notes and mortgages he held from other parties as collateral to this mortgage you had on the homestead?
A. We had those provisional.
“ Q. You had them as collateral from him?
“A. Yes, sir.
“ Q. When you made this arrangement to take the assignment of this contract, and to collect it and apply it on his indebtedness, he wanted you to surrender those small notes and mortgages, and take this assignment in its place?
“A. Yes, sir; some of them. I have forgotten just what ones.
“ Q. Do you remember the amount of these little notes and mortgages, — the mortgages you surrendered?
“ A. No, sir; I could not remember them. I remember the names of some of them.
Q. About how much, would you think?
“A. I wouldn’t like to undertake to estimate those. Less than $1,000, perhaps.
Q. Those you surrendered to Mr. Caskey on taking the assignment?
“A. Yes, sir; some of them.
“ Q. The total amount would be less than $1,000?
“A. Yes, sir; I think so.”

This was substantially all the testimony on the subject of a new consideration. We are unable, however, to agree with the court below in saying that no new consideration was shown. It does appear, as we think, that some notes and mortgages of value were surrendered by Wylie and Curtis to Caskey as a consideration, in part at least, for the assignment of the contract against complainants. Equitably they have the right to be protected. It is apparent that they took the assignment as security for the payment of the amount of their claim against Caskey. They, however, held other securities for the same debt. They must first exhaust those securities, and apply the proceeds upon their debt, before calling upon the complainants to pay. The injunction will be retained, restraining the action at law until they have exhausted such securities, at which time, if their claim thus secured against Caskey is not extinguished, they will have the right to demand of the complainants an amount sufficient to meet the balance of their claim, not exceeding the amount, however, in which complainants would be indebted to Caskey under the contract before its reformation.

With this modification, the decree of the court below will be affirmed. Complainants will recover their costs of this Court against Caskey. Defendants Wylie and Curtis will recover their costs against complainants in both courts.


author: Long, J. „Hooker, J.

text:
    Mary E. Mullen v. The City of Owosso.

      Imputed negligence — Voluntarily riding in the private conveyance of another.

    Where a woman who has arrived at the age of discretion voluntarily enters the private carriage of another, to ride, and, by his carelessness in driving over an obstruction in a public street, is injured, his negligence is imputable to her, and bars a recovery by her against the municipality for the injuries received, under the rule laid down in Railroad Oo. v. Miller, 25 Mich. 274.

      Error to Shiawassee. (Newton, J.) Argued June 8, 1893, and reargued January 6, 1894. Decided April 17, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      George L. Keeler (John T. McCurdy, of counsel), for appellant.

      Odell Chapman, for defendant.

       For cases bearing upon the question of the imputation of the negligence of the driver of a private carnage to an adult person voluntarily riding with him, see Nisbet v. Garner, 1 L. R. A. 152, and note; Dean v. Railroad Co., 6 Id. 143, and note; Becke v. Railroad Co., 9 Id. 157, and note; Railroad Co. v. Lapsley, 16 Id. 800.

   Long, J.

The plaintiff, a woman about 34 years of age, was riding with Mr. Pond in a private carriage drawn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured.

The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that •a mortar box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was incumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury:

“If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, and heedlessly drove over the obstruction; then he would be guilty of gross negligence, and plaintiff' could not recover.”

Again the court said:

“If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily trusted her person and safety, in that conveyance, to him, by voluntarily entering into the private conveyance of Mr. Pond, she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent in driving fast, * * * the plaintiff in this case could not recover.”

The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of .Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Lake Shore & Mich. Southern R. R. Co. v. Miller, 25 Mich. 274, which was decided by this Court in 1872, and has not since been departed from. Counsel •claim that some doubt has been cast upon this doctrine by .some of the later decisions, and cite Battishill v. Humphreys, 64 Mich. 503. In that case a child three years of age was run over by an engine upon a railroad operated by defendants as receivers. The ' question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child. Mr. Justice Morsk held that such negligence was not imputable to the child. The other Justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the Court that such negligence was not imputable to •the child. Other cases of like character have been presented to this Court, involving that question; and the rule is now established that, when the child brings the action for negligent injuries, the negligence of the parents cannot be imputed to it.

But the present case presents quite a different question. Here a person of the age of discretion voluntarily enters a private conveyance of another, to ride, and by the carelessness of that person is injured. The rule laid down in the Miller case, cited above, precludes a recovery. It has been too long settled to be now disturbed. In Schindler v. Railway Co., 87 Mich. 410, the rule was recognized. It was there said of the Miller case: “This is the general rule, and has been since followed in this State.” The rule was also recognized by this Court in Cowan v. Railway Co., 84 Mich. 583.

Judgment is affirmed.

Grant and Montgomery, JJ., concurred with Long, J.

„Hooker, J.

{dissenting). The plaintiff was riding in a1 carriage, with, and upon the invitation of, a Mr. Pond, in the city of Owosso. In attempting to pass another vehicle, the carriage was overturned, by reason of its being-driven upon a pile of sand or rubbish in the street, and plaintiff was injured. The defense is made that' the driver, Mr. Pond, was negligent, and that such negligence should be imputed to the plaintiff.

The cases are not harmonious upon this question, but the great weight of authority is against the defendant's contention; the case of Thorogood v. Bryan (decided in 1849), 8 C. B. 115, which is considered the leading case sustaining the defendant's proposition, having been overruled in England, and repudiated in this country, generally, though followed in some states. That was a case of the collision of two omnibuses. The action against the owner of one by a passenger of the other was defeated upon the ground of contributory negligence, upon the theory that the passenger was so identified with the driver of his vehicle as to be chargeable with his negligence. This decision seems to rest upon an inference that the driver is the agent of the passenger, or at least that he is under the direction and control of the passenger. The case was disregarded in Rigby v. Hewitt, 5 Exch. 240, and distinctly overruled in The Bernina, 12 Prob. Div. 58; Mills v. Armstrong, 13 App. Cas. 1, 7. In the last case, Lord Herschell commented as follows upon the case of Thorogood v. Bryan:

In short, as far as I can see, the identification appears to be effective only to the extent of enabling another person, whose servants have been guilty of negligence, to defend himself by the allegation of contributory negligence on the part of the person injured. But the very question that had to be determined was whether the contributory negligence of the driver of the vehicle was a defense, as against the passenger, when suing another wrong-doer. To say that it is a defense, because the passenger is identified with the driver, appears to me to beg the question, when it' is not suggested that this identification results from any recognized principles of law, or has any other effect than to furnish that defense, the validity of which was the very point in issue."

In Little v. Hackett, 116 U. S. 366, Mr. Justice Field uses the following language:

“ The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal co-operation or encouragement, is a gratuitous assumption. There is- no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world."

The doctrine of Thorogood v. Bryan has met with similar treatment in most of the state courts of last resort, and, as to public conveyances, may be said not to state the law correctly. The reasons upon which these cases rest are equally conclusive' in cases where the injured party was riding in a hired carriage with a driver from a livery stable,- — in cases where the passenger does not, as a matter of fact, exercise such control over the driver as to make him his servant. See Little v. Hackett, supra; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. Rep. 316; Larkin v. Railway Co., 85 Iowa, 492; Railroad Co. v. Steinbrenner, 47 N. J. Law, 161; Randolph v. O’Riordon, 155 Mass. 331. In cases like the present the question becomes one of fact; the test of the passenger’s responsibility for the negligence of the driver depending upon the passenger’s control, or right of control, of the driver, so as to constitute the relation of master and servant between them. Railway Co. v. Kutac, 72 Tex. 643; Cahill v. Railway Co., 92 Ky. 345; Nesbit v. Town of Garner, 75 Iowa, 314; Dean v. Railroad Co., 129 Penn. St. 514; McCaffrey v. Canal Co., 16 N. Y. Supp. 495; Masterson v. Railroad Co., 84 N. Y. 247; Noyes v. Boscawen, 64 N. H. 361; Follman v. City of Mankato, 35 Minn. 522; Railroad Co. v. Hogeland, 66 Md. 149; State v. Railroad Co., 80 Me. 430; Town of Knightstown v. Musgrove, 116 Ind. 121; Railroad Co. v Spilker, 134 Id. 380. It should not be inferred that a passenger can shelter himself behind the fact that another is driving the vehicle in which he rides, and relieve himself from his own personal negligence. What degree of care should be required in the selection of a driver, or in observing and calling attention to dangers unnoticed by the driver, must depend upon the circumstances of each case.

It remains to inquire whether this question can be considered an open one in this State. The question before us is doubtless supposed by many to have been settled in the case of Lake Shore & Mich. Southern R. R. Co. v. Miller, 25 Mich. 274, and it cannot be denied that the syllabus of that case would . confirm the opinion. The facts in that case were these: The plaintiff, a woman, was riding with Eldridge, being in his employ. The wagon was struck upon a railway crossing, near which was a wood pile belonging to the defendant, which obscured the view of the railroad. The only allusion to the question here discussed arose as follows: The Court said:

“So that the only negligence which can be claimed in the mode of running the train must rest upon the ground that the company, having obscured the view and deadened the sound of the approaching train by the mode of piling their wood, were bound, for that reason, to run at much less than their usual rate of speed in approaching that crossing, or to keep a flagman there, or use some other extra means to warn people traveling the highway of the approach of trains from the west. The materiality of this question must depend upon another, — whether the plaintiff’s own negligence, or that of Eldridge, who was driving the team, contributed to the injury, within the meaning of the generally settled rule upon this subject; for, as she was riding with Eldridge, the owner and driver of the team, any negligence of Eldridge equally affects her rights in this suit, as toas properly held by the court.”

It will be noticed that the subject is passed without discussion, and the Court proceed with a lengthy review of the doctrine of contributory and comparative negligence. On page 287 the Court state the established facts, among which are the following:

“Eldridge was slightly deaf or hard of hearing, but the plaintiff herself was not." * * * “ They keep on, still upon the walk [the train in sight], not stopping to listen, and looking neither to the right nor the left, neither up nor down the track; they are almost upon it; he [the witness] still thinks they will stop, but "they move steadily on," etc.

Again:

“No logic can find in it, or extract from it [the evidence], the faintest manifestation or idea of that reasonable care or common prudence which the circumstances demanded in approaching the crossing.”

The Court find from the testimony of the plaintiff herself that neither Eldridge nor herself used any caution whatever.

One of to things must' be admitted, under the factg stated, viz.:

1. That plaintiff was relieved from all responsibility by the fact that she was riding with Eldridge, and was under no obligation to look for the train; or—
2. That the failure to do so was contributory negligence upon her part, which should have precluded a recovery b|y her, in which case the question of imputed negligenoe was unimportant.

The opinion apparently takes the latter view, so far as plaintiff’s own negligence is concerned, where it says:

“I think the evidence tended affirmatively to prove actual and gross negligence on their part, which contributed directly to produce the injury complained of.”

From the finding, I think it may be said that the question before us was not necessarily involved in the Miller case, and that it was not considered .the controlling point. If it is to be treated as conclusive, against the overwhelming weight of authority in the United States and England, we shall apparently accept an incidental remark in an opinion as decisive upon an important principle, which deserved a full discussion before being settled. An examination will show that this decision has never since been applied, beyond a recognition of the doctrine in cases where it was not involved in the decision. It was mentioned and recognized in Cuddy v. Horn, 46 Mich. 596, but the Court disposed of the case upon the ground that the passenger upon a yacht had no control of the management. In Schindler v. Railway Co., 87 Mich. 411, the Court again recognized the rule; saying that it was settled in Railroad Co. v. Miller, but that it did not apply, because the defendant was guilty of wantonness. The plaintiff was a child riding with a neighbor. Mr. Justice Champeen, in a concurring opinion, protested against the doctrine. 87 Mich. 416.

In Battishill v. Humphreys, 64 Mich. 508, Mr. Justice Morse uses the following language:

“I am not content to let the question pass as a settled one in this State. At least, I am not willing to assent to the proposition that the negligence of any other person can become the contributory negligence of a plaintiff, without his fault.”

In the case of Shippy v. Village of Au Sable, 85 Mich. 292, Mr. Justice Morse expressed satisfaction with the views in 'the Battishill case, and added:

“I am also satisfied that the greater weight of authority in this country is now opposed to the contention of the defendant.”

In neither of these cases was the doctrine of Railroad Co. v. Miller applied.

It seems, therefore, that the authority of the case of Railroad Co. v. Miller has been repeatedly questioned. The time has arrived when the question must be settled. I think it should be in conformity to the weight of authority, and the better rule.

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

McG-rath, C. J., concurred with Hooker, J.


author: Long, J.'

text:
    Frederick Chambe and Margaret Schneck, Executors, etc., v. Edgar O. Durfee, Judge of Probate of Wayne County.

      Constitutional law — Inheritance tax — Application of funds — Specific taxes.

    1. The provisions of section 1, art. 14, of the Constitution, that “all specific State taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary school, university, and other educational funds, and the interest and principal of the State debt, in the order herein recited, until the extinguishment of the State debt other than the amounts due to educational funds, when such specific taxes shall be added to, and constitute a part of, the primary school interest fund,” are mandatory, and the Legislature has no power to place the moneys arising from such taxes into any other fund; citing Walcott v. People, 17 Mich. 68; Youngblood v. Sexton, 32 Id. 406.
    2. Act No. 205, Laws of 1893, commonly known as the “ Inheritance Tax Law,” section 20 of which provides that all taxes levied and collected under said act shall be paid into the State treasury for the use of the State, and be applicable to the expenses of the State government, and to such other purposes as the Legislature shall by law direct, is in conflict with section 11, art. 14, of the Constitution, which requires the Legislature to provide a uniform rule of taxation, except on property paying specific taxes, if the tax provided for in said act is to be regarded as a tax upon property; and, if it is a specific tax, said section 20 contravenes section 1, art. 14, of the Constitution, hereinbefore cited, in that it seeks to apply said tax to a different object than that specified in said section of the Constitution.
    3. As, under the express terms of the Constitution, the moneys arising from the collection of taxes under said act cannot be applied to the object therein stated, the entire act must be held unconstitutional, it being impossible for the Court to say that any part of the act would have met the approval of the ■ Legislature had the moneys arising from said tax been appropriated as provided by the Constitution.
    Belators applied for a writ of prohibition against respondent, restraining any proceedings under Act No. 205, Laws of 1893, in the matter of the estate of their testatrix. Argued January 16 and 17, 1894. Granted April 17, 1894. The facts are stated in the opinion.

      Wells, Angelí, Boynton & McMillan, for relators.

      A. A. Ellis, Attorney General, for respondent'.
   Long, J.'

Relators are executors of the will of Mary Suess, deceased. The county treasurer applied to the probate judge to appoint an appraiser of said estate to determine its valuation for taxation, under Act No. 205, Laws of 1893. Relators answered the petition, denying the jurisdiction of that court in the premises, on the ground that the act was unconstitutional. This objection in the answer was overruled. This proceeding is for a writ of prohibition against the probate judge, restraining any proceedings under said act.

The act is entitled—

“ An act to provide for the taxation of certain1 transfers of property by gift, grant, inheritance, devise, or bequest.”

It is quite unnecessary to set out the provisions of the act here, except in so far as they bear upon the question which we shall discuss. Section 20 of the act provides:

“All taxes levied and collected under this act shall be paid into the treasury of the State for the use of the State, and shall be applicable to the expenses of the State government, and to such other purposes as the Legislature shall by law direct.”

Section 14, art. 14, of the Constitution of this .State, provides that—

“Every law which imposes, continues, or revives a tax shall distinctly state the tax, and the object to which it is to be applied.”

Section 1, art. 14, provides that—

“ All specific State taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary school, university, and other educational funds, and the interest .and principal of the State debt, in the order herein recited, until the extinguishment of the State debt other than the amounts due to educational funds, when such ¡specific taxes shall be added to, and constitute a part of, •the primary school interest fund.”

It is contended by the relators that the tax provided by the act is one upon property, and not upon the transfers, •and the act is therefore void, because it contravenes section 11, art. 14, of the Constitution, which provides that—

“ The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes.”

The Attorney General contends that it is a tax upon transfers, and not upon property, and therefore the act ■cannot be construed as coming within section 11, art. 14, •of the Constitution, providing for a uniform rule of taxation, and concedes that, if it be regarded as a tax upon property, it would contravene that provision.

Section 1 of the act provides:

“After the passage of this act, a tax shall be and is hereby imposed upon the transfer of any property, real or jpersonal, of the value of $500 or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations, on real or personal property, in the following cases.”

The section then specifies what transfers shall be made ¡subject to the tax, which is at the rate of 5 per cent, of the clear market value. Section 2 provides that transfers to a certain class of persons, being those nearest of kin, ■shall not be subject to the tax, unless the transfers are of personal property of the value of $5,000 or more, and then .at the rate of 1 per cent, of the clear value.

It is conceded that, if this be a tax upon property, it violates the clause of the Constitution above quoted, requiring uniformity. If, however, it .be regarded as a specific tax, can the act be upheld? If a specific tax, the moneys arising from it could not be applied in a different way than that provided by the Constitution, — that is, paying the interest on the primary school, university, and other educational funds, and the interest and principal of the State debt, and, when that is extinguished, the residue to be added to, and constitute a part of, the primary school interest fund. The Legislature has attempted by section 20 of the act to apply the money arising from the tax to the expenses of the State government, and to such other purposes as the Legislature may direct. These provisions of the Constitution as to the application of the funds arising from specific taxes are mandatory, and the Legislature has no power to place the moneys arising from such taxes into any other fund than those designated. Walcott v. People, 17 Mich. 68; Youngblood v. Sexton, 32 Id. 406. The moneys, therefore, arising from this tax, if it be regarded as a specific tax, must go into a different fund by this constitutional provision than that designated by the Legislature under section 20 of the act. The only question, then, is whether, treating this part of the act as void, the remainder of it can be held valid.

It is a well-settled rule in this State that a statute unconstitutional in part may be valid as to the remaining provisions. Ames v. Booming Co., 6 Mich. 266. If, however, the constitutional provisions of the act are not capable of accomplishing the object of the statute, the whole statute must fail. Feek v. Township Board, 82 Mich. 393; Smith v. City of Saginaw, 81 Id. 123, 131. Our Constitution, as is seen, provides that every law which imposes a tax must state the object to which it is to be applied. In this law the object was stated, and it is found that, within the express terms of the Constitution, the moneys arising from it cannot .be so applied. This must defeat the whole act, for it is impossible for this Court to say that any part of the act would have met the approval of the Legislature had the moneys arising from the tax been appropriated in the act as provided by the Constitution. It is safe to say that if the Legislature had' supposed these moneys arising from the tax could not be appropriated to the general State fund, and made applicable to the general expenses of the State government, the act would not have met with the legislators'’ approval. For these reasons, we think the whole act must be held void.

The writ of prohibition must therefore issue as prayed.

The other Justices concurred.


text:
    Mark Hance, Administrator, etc., v. Edgar O. Durfee, Judge of Probate of Wayne County.

      Constitutional law — Inheritance tax.

    This case is ruled by Chambe v. Judge of Probate, ante, 112.
    Relator applied for a writ of prohibition to restrain proceedings under Act No. 205, Laws of 1893. Argued January 16 and 17, 1894. Granted April 17, 1894. The facts are stated in Chctmle v. Judge of Probate, ante, 112.

      Wells, Angelí, Boynton & McMillan, for relator.

      A. A. Ellis, Attorney General, for respondent.
   Long, J.

This case is disposed of by what has been said in Chambe v. Judge of Probate, ante, 112.

The wtit of prohibition must issue.

The other Justices concurred.


author: McGrath, C. J. Per Curiam.

text:
    Albert H. Petrie v. John Torrent.
    [See 88 Mich. 43; 90 Id. 265; 95 Id. 439; 98 Id. 130.]

      Trust — Accounting.
    An examination of the opinion in connection with the opinion reported in 88 Mich. 43, is essential to a correct understanding of the questions decided.
    Appeal from Muskegon. (Dickerman, J.) Argued January 22, 1894. Decided April 17, 1894.
    Bill for an accounting. Both parties appeal.
    Decree modified and affirmed.
    The facts are stated in the opinion, and in 88 Mich. 43.

      Bunker & Carpenter (Kingsley & Eleinhans, of counsel), for complainant.

      Smith, Efims, Hoyt & Envin (Uhl é Crane, of counsel), for defendant.
   McGrath, C. J.

Both parties appeal from an accounting under a decree affirmed in 88 Mich. 43. The facts respecting the original agreement and the decree thereon are so fully set forth in that opinion that it is unnecessary to reiterate.

It is clear that the expenses incurred by either party prior to the purchase were not to enter into any computation afterwards made; that defendant was to furnish the capital, buy and sell the property; that complainant was to receive for his expenses incurred prior to the purchase, and for his services, one-third of the profits; that defendant, in consideration of the use of his capital, and his services in connection with the disposition of the joroperty, was to receive two-thirds of the profits; and that defendant’s advances, and the expenses incident to the retention of the property until sale, and the expenses connected with such sale, should be first realized and paid out of the proceeds of the property. This disposes of defendant’s claims for expenses incurred in examining the land prior to the purchase, for services in connection with the sale of the property, for interest on advances and balances his objection to the disallowance of the claim for the bonus alleged to have been paid by him for the purpose of raising the money used in the purchase, and his objection to the charge against him for the rebate upon the purchase price, which was allowed him by reason of the cash payment of a part of such purchase price. Complainant held an option on the property, aud brought to defendant’s attention a transaction involving a large expenditure, but promising a margin of several hundred thousand dollars. Before the purchase, complainant had negotiated a sale of one of the tracts, and within a few days after defendant had made the first payment the transaction is credited with 1370,000, received from the sale so negotiated. Foresight and inventive genius are valuable, although the individuals entitled to credit for the same are ofttimes deprived of .the legitimate results. For his foresight and the option held by him, complainant was to receive one-third of the profits. He contracted for the use of defendant’s capital, and his executive ability, to be employed in the disposition of the property, and in consideration thereof defendant was to receive two-thirds of the profits. It was a matter of no moment to complainant what bonus defendant would in turn have to pay in order to command that capital. It was not credit, but capital, that complainant contracted for; and the only bonus that he agreed should be paid therefor was two-thirds of the profits. The total sum paid out by defendant from October 23, 1886, to December 31, 1891, in excess of the purchase price, is less than $45,000, and at the close of the year 1888 he had in his hands a surplus, and at the close of the year 1891 that surplus reached nearly $260,000.

Complainant was also entitled to his share of any advantage secured by defendant by reason of the use of cash in the transaction. The purchase was made October 23, 1886. Defendant paid $500,000 in cash, and gave two notes for $134,589 each, — one for one year, without' interest; the other for two years, with interest after the first year at 6 per cent. In addition to the $370,000 aforesaid, within 90-days after the purchase defendant received from the sales, of said property notes and cash” aggregating $288,400, paid! his notes, and received a rebate of $5,364.05. We think that the transaction was entitled to be credited with the-sum so rebated.

Defendant's sixth exception relates to a charge of $3,000.. The S. O. Hall Lumber Company owned a mill and other-property, which was subject to an indebtedness of $15,000. Defendant exchanged the Long Lake mill, which was a. part of the property embraced in the deal, for the lumber company's mill, and received a note for $3,000, which-, was afterwards collected. He then sold the Hall mill and. property connected therewith, the purchaser paying him $5,000 in cash and assuming the indebtedness to which the-property was subject. Out of the transaction defendant, realized $8,000, but charged himself with the $5,000 only-The charge of $3,000 was proper.

Defendant’s eighth exception relates to interest received by him upon notes given upon purchase of parts of the property. Defendant does not hesitate to charge up notes which were not paid, and, if any of the notes upon which he claims to be entitled to the interest had not been paid, he would certainly have been entitled to charge them up against the transaction if already credited.

A controversy arises in the case respecting the property known as Stimson Row.” It appears that of the prop" erty purchased the Traverse mill and lands were valued at $225,000. Complainant was anxious to lumber this tract on his own account, and it was agreed that, if he should procure a capitalist to, go in with him, he could take the property at that figure. Complainant found such a party, —one Fay, — but defendant declined to carry out the arrangement, but afterwards himself entered into a copartnership with Fay to operate said tract, said party purchasing a half interest. Defendant, after some months, sold his half interest in said partnership to one Stimson, .and received therefor $112,000, as follows: Cash, $910.85; block ten (10) Wood’s addition to city of Muskegon, $1,-■000; Muskegon Boom Company’s stock, $1,255.15; certain pine lands, $24,500; assumed by Stimson of Torrent’s indebtedness to Hannah, Lay & Co., $75,334; Stimson row property, $9,000. All of the said property except the boom company stock and the Stimson row has been disposed of. No disclosure is made as to dividends upon the boom company stock. Defendant was not entitled to make choice as to what portion of the property he should retain, and we think that the Stimson row property should be charged up to him as of June 21, 1887, the date of the transaction.

Complaint is made because of the refusal of the court to allow a credit of the sum of $55,000 before decree, but we think it is clear that under the stipulation and receipt this amount was not to be credited until decree made.

Respecting complainant’s claim for an allowance to complainant 'of solicitors’ fees, the business was continued after December 31, 1891, and there are large sums yet to be accounted for by defendant. Whether the suits now pending were instituted at the’ instance of defendant, and to hinder and harass complainant, will more fully appear when those suits are finally disposed of. We think that the question of the allowance should be reserved for the future.

The court below made the following computation:

Total receipts in money to December 31, 1889, Schedule BB....................-___________ $750,375 41
Add note, S. C. Hall Lumber Company, October 29, 1886.....................................- 3,000 00
Add rebate, Hannah, Lay & Co. notes, January 81, 1887.-.............................-...... 5,864 05
Total receipts to December 31, 1889____________ $758,739 46
Disbursements to December 81, 1889, Schedule BB................1______________________ 685,573 71
Balance December 31, 1889____________________ $123,165 75
One-third of this______________________________ $41,055 25
Interest on this to November 1, 1892, at 6 per cent., — 2 years 10 months................... $6,979 38
Receipts 1890, Schedule BB___________________ $73,116 57
Disbursements same time____________________ 7,650 23
Balance for 1890______________________________ $65,466 34
One-third of this............................— $21,822 11
Interest on this to November 1, 1892, at 6 per cent.,' — 1 year 10 months 1.................. $2,400 42
Receipts 1891, Schedule BB___________________. $60,348 67
Add discounts on notes----------------------- 858 14
Add amount from Stimson row_______________ 1,340 32
Total receipts, 1891____________________________ $62,547 13
Disbursements same year.................... 2,334 31
Balance for 1891______________________________ $60,212 82
One-third of this............................— $20,070 94
Interest on this to November 1, 1893, at 6 per cent., — 10 mos........-..................... $1,003 54
Interest on first balance....................... $6,979 38
Interest on second balance.................... 2,400 42
Interest on third balance______________________ 1,003 54
Total interest on balances_____________________ $10,383-34
One-third of balance December 31, 1891_______ 82,948 30
Amount due complainant November 1, 1892... $93,331 64

The defendant complains because the court computed interest on the balance December 31, 1889, before the receipts equaled the' amount of the original purchase. This would appear to be so upon the face of this computation, but it is not so in fact. When defendant sold a half interest in the Traverse property to Fay he received Fay’s notes, aggregating $83,400; and when he sold out the remaining half interest to Stimson the latter agreed to pay, of the balance due Hannah, Lay & Co., the sum of $75,334, and this sum, together with the Fay notes, was actually used to liquidate the balance due from defendant to Hannah,' Lay & Co. If credited to defendant, they should also be charged to him, and would simply swell both sides of the account in the sum of $158,734, making no difference in the result. All the other payments to Hannah, Lay & Co. are included in the amount credited.

The account, restated, will be as follows:

Total receipts to'December 81, 1888...........$622,794 52
Add HaE Lumber Co. note................... 3,000 00
Add rebate H., L. & Co----------- — ........ 5,364 05
Add Stimson row property.................... 9,000 00
$640,158 57
Disbursements for same period................. 631,979 18
Balance December 81, 1888____________________ $8,179 39
One-third of balance.......................... 2,726 46
•Total receipts for year 1889------------------- $127,580 89
Disbursements for same period---------------- 3,594 53
Balance December 31, 1889____________________ $123,986 36
One-third of balance.......................... 41,328 79
Total receipts for year 1890................... $73,116 57
Disbursements for same period................ , 7,650 23
Balance December 31, 1890.................... $65,466 34
One-third of balance..........-..........-____ 21,822 11
Total receipts for year 1891................... $60,348 67
Add discount on notes.--....................- 858 14
Total_____________j-.......................... $61,206 81
Disbursements for year........................ 2,334 31
Balance December 31, 1891.................... $58,872 50
One-third of balance.......................... . 19,624 16
RECAPITULATION.
Balance due complainant December 81, 1888.. $2,726 46
Interest, 3 years and 10 mos., to November 1, 1892......................................... 627 08
Complainant’s share earnings year 1889_______ 41,328 79
Interest, 2 years 10 mos...................______ 7,025 88
Complainant’s share earnings year 1890_______ 21,822 11
Interest, 1 year 10 mos....................... 2,400 42
Complainant’s share earnings year 1891_______ 19,624 16
.Interest, 10 mos.---..........................- 981 21
Due complainant November 1, 1892........... $96,536 11

Interest will be computed upon this amount until the date of the decree here. From the amount so found defendant is entitled to a credit of the $55,000 hereinbefore referred to. Complainant is entitled to costs.

The other Justices concurred.

On June 2, 1894, an application by defendant for a rehearing was submitted, and on June 30 the following opinion was filed:

Per Curiam.

This is an application for a rehearing. The only question presented is as to the item of interest on the sum of $55,000, mentioned at the close of the opinion. Upon reconsideration we have concluded to allow defendant interest at 6 per cent, upon that item from and after the date of the decree below; the same to be credited in the next accounting as of the date of the decree here.


author: McGrath, C. J.

text:
    The Riverside Iron Works v. George S. Hosmer, Circuit Judge of Wayne County.

      Corporations — Sequestration of effects — Equity practice — Parties.
    1. A creditor of a corporation, whose debt has not been merged in a judgment, has no right to intervene, and answer and file a cross-bill resisting the petition of a judgment creditor of the corporation, filed under How. Stat. § 8153, for the sequestration of the stock, property, things in action, and effects of the corporation, and the appointment of a receiver of the same.
    2. A judgment creditor who petitions for the sequestration of the stock and property of a corporation, and the appointment of a receiver of the same, under How. Stat. § 8153, which authorizes such a proceeding after the. return of an execution unsatisfied, gains no advantage over other creditors, and any interests which they have in the property or equities sought to be reached are not disturbed by such sequestration; citing Judson v. Rossie Galena Co., 9 Paige, 598; Morgan v. Railroad Co., 10 Id. 290.

      Mandamus. Argued January 30, 1894. Granted April 17, 1894.
    Relator applied for mandamus to compel respondent to vacate an order allowing the Rundle-Spence Manufacturing Company and other creditors of the Detroit Plumbers’ Supply Company to intervene, and answer and file a cross-bill resisting the petition of the relator, filed under How. Stat. § 8153, upon the return of execution unsatisfied, for the sequestration of the stock and property of the corporation, and the appointment of a receiver of the same. The additional facts are stated in the opinion.

      James H. Brewster, for relator.

      Boxeen, Douglas <& Whiting, for respondent.
   McGrath, C. J.

Section 8153 of the statutes gives to a creditor having a judgment, execution upon which has been returned unsatisfied, the right to have a sequestration of the effects of the corporation. It does not even give his judgment precedence. The court, upon sequestration, appoints a receiver, who distributes the avails between the creditors. IJnder the federal bankruptcy law, other creditors had a right to intervene, not' for the purpose of resisting the prayer of the original petitioning creditor, but to prevent a collusive adjustment between the petitioning creditor and the alleged bankrupt, and a discontinuance of the proceedings.

The petition of the Rundle-Spence Company sets forth simply that it is a creditor — not a judgment creditor — of the Detroit Plumbers’ Supply Company; nothing more. There would be some force in a claim that it would have a right to join with relator and be made a party petitioner, but it certainly has no right to be allowed, upon such a showing at least, to answer and file a cross-bill resisting relator in pursuing the remedy which the statute gives to \ it as an execution creditor. To what relief is the Bundle-« Spence Company, upon this showing, entitled as against relator? And, as against the Plumbers’ Supply Company, the intervener is entitled, in this proceeding, to only such relief as relator has asked for, and it is not entitled to that in the absence of relator as a party prosecuting. Any rights which the Rundle-Spence Company has are preserved in this proceeding. Relator gains no advantage over other creditors, and any interests which the intervener has in the property or equities sought to be reached are not disturbed by the sequestration. Judson v. Rossie Galena Co., 9 Paige, 598; Morgan v. Railroad Co., 10 Id. 290. A different question would be presented if fraud or collusion were charged.

The writ should issue as prayed.

The other Justices concurred.


author: Hooker, J.

text:
    The People v. Fred A. Rohrer.

      Criminal law — Liquor traffic — Information—Election of counts.

    A respondent informed against in one count for keeping his saloon open on Sunday, and in a second count for keeping the windows of his saloon curtained during the same day, is entitled to an election of counts.
    Error to St. Joseph. (Loveridge, J.) Argued February 2, 1894. Decided April 17, 1894.
    Respondent was convicted of keeping his saloon open on Sunday.
    Judgment reversed.
    The facts are stated in the opinion.

      Rowell, Carr & Barnard, for respondent.

      A. A. Bilis, Attorney General, and D. L. ATcey, Prosecuting Attorney, for the people.
   Hooker, J.

The respondent appeals from a conviction of keeping bis saloon open on Sunday. Joined with this charge, in another count, was a charge of keeping his windows curtained during the same day. Evidence was admitted tending to prove both charges; and the jury acquitted him of the latter, and convicted him of the former, charge.

The doctrine is well settled in this State that a. person should not be subjected to trial for two separate and distinct offenses at one time. This rule is applied to eases of felony in most, if not all, of the states, and' has been applied to misdemeanors in Michigan. People v. Jenness, 5 Mich. 305; Tiedke v. Saginaw, 43 Id. 64; People v. Aikin, 66 Id. 460; People v. Jackman, 96 Id. 269, 274.

There is considerable confusion upon the subject of election of counts, though not in Michigan, where it is well settled that an election must be made, in cases of felony. See cases cited above. And the same has been held in case of a prosecution under a city ordinance. See Tiedke v. Saginaw, 43 Mich. 64. The counts in the information in the present case charged distinct and separate offenses, and counsel for the respondent were entitled to an election.

It is unnecessary to discuss the other questions in the case.

Judgment is reversed, and a new trial granted.

The other Justices concurred.


author: Montgomery, J.

text:
    Rufus H. Emerson and Zenas C. Eldred, Receivers, etc., v. The Detroit Steel & Spring Company, and Same v. John J. Spearman et al.
    [Two cases.]

      Attachment — Sufficiency of affidavit — Amendment—Amount due— Fraud — Dissolution—Equity jurisdiction — Assignment for benefit of creditors.

    1. The assignee of an insolvent debtor has no right to intervene in an attachment suit, and move for the dissolution of the writ as affecting the assigned property.

    2. The assignee of an insolvent debtor may file a bill to set aside an unauthorized attachment of the assigned property, and the equity court has jurisdiction to grant the relief prayed for.

    3. The use of the disjunctive “ or,” in an averment in an affidavit-in attachment that the defendant fraudulently contracted the debt or incurred the obligation respecting which the suit is brought,” will not invalidate the affidavit.
    4. An averment in an affidavit in attachment that there is a debt due to the plaintiff from the defendant “ upon express contract and implied contract ” is equivalent to averring that the debt is due upon express and upon implied contract, and is sufficient; citing Buehler v. De Lemos, 84 Mich. 554.
    5. An affidavit in attachment in favor of a copartnership doing business under the firm name of the Spearman Iron Company did not state the names of the partners, but did show that the Spearman Iron Company was located at a certain place, that the affiant was its agent, and that it was the concern with which the defendant had the dealings which were the basis of the suit. And it is held that, under the holding in Barber v. Smith, 41 Mich. 138, the real plaintiff was sufficiently denoted by the affidavit, and that an amendment showing the names of the plaintiffs was permissible.
    6. It was not intended by what was said in Freer v. White, 91 Mich. 74, where it was held that an affidavit in attachment is not amendable in a matter of substance, to overrule Barber v. Smith, 41 Mich. 138, where it was held that attachment proceedings in favor of copartners whose surnames only are given in the affidavit and writ, but who are described as being partners, and declared to be doing business under a firm name made up of said surnames, and whose place of- business is specified, and who are mentioned as being clients of the affiant, and as having a claim against the defendant for a specified amount, are not void, but may be amended, and the Christian names of the partners inserted, by leave of the court.
    7. Where, in proceedings for the dissolution of attachments based upon the claim that the indebtedness sued for was fraudulently contracted, it appears that the reports of a commercial agency, upon the strength of which the credit was extended, were based upon the sworn reports of the defendant corporation to the Secretary of State, and that said reports were false, and could have been made for no other, purpose than that of' establishing a false credit, said claim is sufficiently established.
    8. Vendors who were induced to sell goods upon credit by the-fraudulent representations of the vendee cannot, upon discovering the fraud, declare the debt due, and sue in assumpsit for its recovery; citing Galloway v. Holmes, 1 Doug. 330.
    9. Where, in proceedings in equity by the assignee of an insolvent debtor to dissolve attachments of the assigned property, it appears that only a portion of the indebtedness was due when the attachment suits were commenced, and there is nothing to indicate any fraudulent intent on the part of the plaintiffs in averring the amount of their claims, or any collusion, between them and the debtor, their liens will be sustained for the amount so due, it appearing that there was sufficient cause for the issuance of the writs.
    Appeals from Wayne. (Iiosmer, J.) Argued February 18, 1894. Decided April 17, 1894.
    Bills to set aside attachments. Defendants appeal.
    Decrees modified.
    The facts are stated in the opinion.

      Thomas A. Wilson (Fdwin F. Conely, of counsel), for complainants.

      Moore & Moore (William H. Wells, of counsel), for defendants.

       See Savings Bank v. Barnes, 100 Mich. 1, subd. of note, “Who May Apply for Dissolution.”

       See Turner v. Hatch, 100 Mich. 65.

   Montgomery, J.

The complainants were, after the making of a common-law assignment by the George T. Smith Middlings Purifier' Company, appointed by the circuit court in chancery to act as receivers for the assigned estate, and in that capacity filed two several bills against the two defendants named, askiug to have attachments which had been sued out by the defendants herein against the property of the purifier company set aside, upon the grounds- — -First, that the proceedings were so irregular as to render the attachments invalid; and, second, that there existed no sufficient ground for suing out an attachment at the time the affidavits were sworn to.

The defendants contended that the court of chancery has no jurisdiction to set aside an attachment at the suit of an assignee for the benefit of creditors. The precise question was before the Court in Byles v. Rowe, 64 Mich. 522. Justices Champlin and Sherwood held that the assignee had such a right, Mr. Justice Ohanplin placing his decision on the ground that the assignee is a representative of creditors, and in that position is entitled to question the priority of such lien, while Mr. Justice Sherwood reached the same result by a somewhat different process of reasoning. Chief Justice Campbell dissented wholly, and Mr. Justice Morse expressed no opinion upon the question here involved. We are satisfied that the conclusions of Mr. Justice Champlin are consonant with reason and- authority, and should be followed. A common-law assignee under our statutes is a representative of creditors. He is, in effect, a lienholder in trust for creditors. It is settled that a subsequent attaching creditor may have relief in equity against an unauthorized attachment by another. Hale v. Chandler, 3 Mich. 531; Hinchman v. Town, 10 Id. 508; Edson v. Cumings, 52 Id. 52. And we are convinced that an assignee for general creditors should have the same remedy. Any other rule would result in this: That property seized by an unauthorized attachment may be reached by a subsequent attaching creditor, but it cannot be distributed pro rata among all creditors. It is suggested that the assignee has the right to intervene in the suit at law, but the contrary was held in Gott v. Hoschna, 57 Mich. 413. See, also, Rowe v. Kellogg, 54 Mich. 206.

Numerous objections are made to the regularity of the attachment proceedings.

The affidavits, after stating that defendant is justly indebted to the plaintiff upon contract, etc., each state that the defendant fraudulently contracted the 'debt or incurred the obligation respecting which the suit is brought, using the. language of the statute. It is contended that the use of the disjunctive “or" renders the affidavit invalid. We hold the affidavit sufficient in this respect. The incurring of an obligation under the statute can be nothing other than- contracting an indebtedness, in a case where the suit is brought, as it must be under the statute, upon contract, and where the affidavit shows that it is brought upon contract. If the defendant incurred an obligation, it was an obligation to pay money. Each phrase expresses the same thing in a different way. The distinction between .the cases where the use of the disjunctive renders the affidavit invalid and those in which it does not is well stated in Drake on Attachments, at section 102: “Where the disjunctive ‘or’ is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same results, the construction just mentioned [that is, rendering the affidavit void for uncertainty] would be inapplicable.” See, also, cases cited in note, and Wap. Attachm. p. 98.

It is suggested that an expression in one of the affidavits, stating that the debt is due to plaintiffs from defendant “upon express contract and implied contract,” is as indefinite as the use of the word “or” would be. We do not see how this can be maintained. The statement shows affirmatively the indebtedness, and that the same is due upon express and upon implied contract. The question is ruled by Buehler v. De Lemos, 84 Mich. 554.

In the case of the Spearman Iron Company the affidavit did not state the names of the copartners, and it is claimed that this was fatal. It did appear, however, from the affidavit that the Spearman Iron Company was located at Sharpsville, Penn.; that Benjamin B. Yan Court was its agent; and that it was the concern with which the defendant had the dealings which were the basis of the suit. We think, under the holding in Barber v. Smith, 41 Mich. 138, that the real plaintiff was sufficiently denoted by the affidavit, and that an amendment showing the names of the'plaintiffs would have been permissible. The defendant appeared and pleaded, and the plaintiffs proceeded to judgment. If there was any mere irregularity in -the making of the amendment, we do not think the complainants are in position to take advantage of it.

The case of Freer v. White, 91 Mich. 74, is relied upon as establishing the doctrine, that an affidavit in attachment is not amendable. It is true that the Court held in that case that the affidavit was not amendable, but the amendment in that case was in matter of substance. The affidavit did not of itself furnish the means of rendering its statements certain. It was said of the averment that-it was jurisdictional, and that it was necessary to the validity of the affidavit that such averment be made in such form that perjury could be predicated upon it if false. If that test be applied here, the fraudulent contracting of indebtedness is sufficiently shown to admit of a prosecution.for perjury, if the statemedts of the affidavit are untrue. It was not intended in what was said in Freer v. White to overrule Barber v. Smith, and we think the present case falls within the latter.

The next question was whether there were grounds for attachment. We think there was sufficient to show that the indebtedness 'was fraudulently contracted. It sufficiently appears that Dun’s reports were based upon the sworn reports of the company to the Secretary of State; that both the plaintiffs in attachment extended credit upon the strength of these reports; and we are satisfied that these statements of the company were false, and could have been made with no other purpose ' than that of establishing a false credit. The statement in January, 1888, showed a total of liabilities of but $15,341, and net assets of $1,007,-301. The statement for 1889 showed assets of $1,154¿590, and liabilities, $66,811. The bill alleges that the company had become insolvent on the 14th day of January, 1890, and made a common-law assignment for the benefit of creditors. It is suggested that, whether the reports were true or not, it does not prove an intent not to pay for the goods. But it is sufficient, to constitute a fraudulent contracting of indebtedness, to make false statements relating to one’s financial ability, which are material, and which lead the other contracting party into an engagement which he would not have undertaken but for such false statements.

It appears that but a portion of the indebtedness was due in each case at the time the affidavits were made. It is contended by the defendants here, who are plaintiffs in attachment, that they had the right, upon discovering the fraud, to declare the debt due. But this course was not open to them. See Galloway v. Holmes, 1 Doug. 330. It is suggested that, as a fraud was perpetrated upon the creditor, he would have the right to waive the tort and sue in assumpsit. But we are aware of no case which authorizes a party to first turn a contract into a tort, and then shift it back into the form of a new contract other than the original one.

It is contended by the complainants that the defendants, 'by including a demand not due, debarred themselves from priority as to all of their demand. There is nothing to indicate any fraudulent intent on the part of the plaintiffs in attachment in averring the amount of their claims. There was certainly no collusion between them and the debtor. We think, under the circumstances, the question is ruled by Hinchman v. Town, 10 Mich. 508. See, also, Dawson v. Brown, 12 Gill & J. 53; Boarman v. Patterson, 1 Gill, 372; and Gross v. Goldsmith, 4 Mackey, 126. It would render proceedings in attachment very precarious if it should be held that, in averring the amount due, the entire attachment should fail if, upon a subsequent trial of. the question of fact, it should be determined, either as a- matter of law or a matter of fact, that the plaintiff in attachment was mistaken.

The decree of the court below will in each case be modified. The plaintiffs in attachment will be declared entitled to a lien under their attachment proceedings to the extent of the amount due at the time of the issuing of the attachments, together with interest and costs of the attachment sujis. As to the amount not due, the complainants .will be entitled to have the lien under the attachments vacated, and will be entitled to recover costs of the court below. Defendants will recover costs in this Court.

The other Justices concurred.


text:
    James A. Boots v. Julius Seinberg.

      Mechanic's lien— Contract — Approval of work — Waiver.
    1. Where a building contract provides that all of the work shall be performed to the satisfaction of the owner, or his superintendent, if he shall appoint one, and a portion of the work is not done according to the specifications, but the change is discussed, and the course taken acquiesced in by the owner, it may be said to have been approved by him; but to go further, and say that the fact of such construction without interference is conclusive of the question of approval, would be, in effect, to say that whatever the contractor could succeed in doing must be taken as approved, — a proposition that puts such a premium upon bad faith as to be untenable.
    2. While, in such a case, the contractor may rely upon what was actually approved under the contract, he is supposed to understand the specifications and how the work should be performed as well as the superintendent, and as well as, if not better than, the owner, and he cannot be permitted to invoke the doctrine of estoppel where some of its elements are lacking.

      3. A bill will not lie to enforce a mechanic’s lien for the balance claimed to be due on a building contract, which provides that the work shall be done to the satisfaction of the owner or his superintendent as it progresses, and that it shall not be fully paid for until completed to the satisfaction of the owner, where' it appears that the claim of the owner that the work has not been completed to his satisfaction has a substantial basis, and is not captiously made.
    4. Where a building contract provides that the price for extras shall be settled by arbitrators unless agreed upon, the parties will be held to have provided their own forum to determine the value of such extras, and, until such value has been fixed by arbitration or agreement, the .same is not due, and a bill will not lie to enforce a lien therefor.
    Appeal from'Grand Traverse. (Ramsdell, J.) Submitted on briefs February 15, 1894. Decided April 17, 1894.
    Bill to enforce a mechanic’s lien. Defendant appeals.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      Pratt & Davis, for complainant.

      Oovell & Gilbert {Fitch R. Williams, of counsel), for defendant.
   Hooker, J.

Complainant, having performed labor upon defendant’s building,' filed the bill in this cause to enforce a mechanic’s lien for a balance which he claims to be due upon the contract, including some extras not embraced in the specifications, which were made a part of the contract. This contract was made September 14, 1891. According to the complainant’s testimony, the work was commenced September 17, 1891, and completed on December 29, following. The statutory notice was filed on February 11, 1892, and was in strict conformity to the requirements of the statute. Laws of 1891, p. 231. The defense is interposed that nothing is, or at the time of such notice was,, due, it being claimed that, by the terms of the contract, the amount would not become payable until the building was completed to the satisfaction of the defendant, which has not been done. It is further asserted that, by the terms of the contract, the price for extras was to be settled by arbitrators, unless agreed upon; that it never has been determined in either way, and hence the same is not due, nor is it the proper subject of a lien. It is also alleged that, owing to careless or unskillful work, the building is not as valuable as it would otherwise have been, by reason of which the defendant has suffered damage, exceeding the amount of complainant's claim. Defendant also claims that he has furnished goods to the workmen of complainant, and has furnished materials for him in and about the erection of the building, which should be applied in payment. The further claim is made that the complainant has filed an excessive lien, and that It is therefore void.

The brief of defendant's counsel states the matters in •dispute relating to the non-performance of the contract •as follows, viz.:

1. Failure to properly put in concrete footings, in that some were not as deep as required, and that the concrete was put in the water, instead of being put in dry.
2. Failure to finish and clean the front elevation.
3. Failure to line, clean, and “rub smooth" the flues in the building.
4. Failure to point up under the window sills and the stonework of the foundation.

The contract provides that — •

“ The contractor shall and will well and efficiently perform and finish, under the direction and to the satisfaction of Julius Steinberg, or his superintendent, if he shall .appoint one (acting as agent of said owner), all the work hereinafter mentioned to be performed," etc.

It further provides that—

“The owner, Julius Steinberg, shall have power to act .as superintendent of said work, or to appoint some one to act in such capacity.”

The payments are provided for as the work progresses, reserving 10 per cent, from each amount mentioned, and it is further provided that—

“Within 10 days from the completion of said work to the satisfaction of Julius Steinberg, the entire balance due the contractor shall be paid.”

This contract clearly required that the work should be done to the satisfaction of the owner or his superintendent, as it progressed, and that it should not be fully paid for until completed to the satisfaction of the owner., Some of the matters complained of were, according to our view of the evidence, approved by the owner and the superintendent, as the building went. up. We think that was true of the concrete footings, which were not constructed according to the specifications, but which were discussed, and the course taken acquiesced in. There might be some force in the contention that the same is true of the cqnstruction of the flues, as to lining and rubbing, were there evidence that it was knowingly permitted, or if the facts were such as to make it plain that the owner or superintendent must have acquiesced. To go further, and say that the fact of such construction without interference is conclusive of the question of approval, would be, in effect, to say that whatever the contractor could succeed in doing must be taken as approved, — a proposition that would put such a premium upon bad faith as to be untenable. While the contractor may rely upon what was actually approved under the contract, he is supposed to understand the specifications and how the work should be performed as well as the superintendent, and as well as, if not better than, the owner; and he cannot be permitted to invoke the doctrine of estoppel where some of its elements are lacking, making it “a sword, and not a shield.” But, whatever may be said about tbe construction of tbe flues, it cannot be' claimed that any one approved of their stoppage. The complainant claims he succeeded in cleaning them out, — i. e., knocking the obstructions out, — and this is a controverted fact. We are satisfied from the evidence, including that of the architect, that such flues were not effectually cleaned out, and that they were not constructed as the specifications required, and that defendant never was satisfied with them.

The stonework was injured by the cleaning, acid being used, which, m connection with the iron in the stone, gave them a yellow appearance, the effect of iron rust. It is claimed by the complainant that this was because too much acid was used, and that for this the defendant was responsible, having directed the workmen to use more than was prudent. Complainant also claims that the stone rvere not injured by using the brush and pail used upon the brickAvork, upon which this acid might properly and safely be used. The evidence is conflicting upon these subjects, but we think the complainant did not perform his whole duty in the premises. He undertook to erect an ornamental front, one for which the defendant went to the expense of importing stone, that it might be such. The complainant assumed to know how to treat it, and it was his place to see that care was used. We do not find evidence which justifies the conclusion that the owner took the matter out of his hands, and thereby relieved him from responsibility.

It is admitted that the sills were not pointed, but were overlooked. There is no dispute but that the defendant asked that it be done. Complainant said that he Avould attend to it, and asked defendant to send around some lime,, but, when complainant Avent to do the work, no lime was there, and soon after it froze up, and it is claimed that defendant's failure to send the lime when required was sufficient excuse. ■ If the case turned upon this question, we, might not feel constrained to deny complainant relief because the sills were not pointed.

Upon the whole case, we think that the defendant had some cause for being dissatisfied, and that the claim that the work was not completed to his satisfaction had a substantial basis, and was not captiously made. That being so, there was nothing due upon the contract, and could not be until the building was completed to defendant’s satisfaction, unless, as complainant claims, the defendant has accepted the work, thereby acknowledging satisfaction.

In the case of Hanley v. Walker, 79 Mich. 607, 618, Mr. Justice Chahplin, speaking for the whole Court, says:

“The principles laid down in Allen v. McKibbin [5 Mich. 454] do not apply to cases where the parties have by their agreement made some act or fact a condition precedent to payment, unless the other party has waived the condition. The waiver may be express, or it may be implied from facts and circumstances, as where the party relying upon the condition has accepted or appropriated the property or fruits of the labor of the other party. There is no evidence in the record before us that can be construed into a waiver of the conditions precedent contained in the contract on the part of the defendant.
“ When a person contracts with another to build, or to do some portion of the work in constructing buildings, upon real estate belonging to the owner of such real estate, his taking possession after the other has left the premises cannot be construed as an unequivocal acceptance, although he thereby takes possession of, and appropriates to his use and benefit, the labor or materials of the contractor. He must do so, as a matter of necessity, in many cases, or suffer the property to stand idle and unused, to the great detriment of all parties, and especially so of the owner. The most that can be said, in such cases, is that tbe act of the party, and all the circumstances, may be taken into consideration in the determination of the question whether there is an implied waiver of the condition precedent.”

The extras claimed cannot be called due, for they were to be submitted to arbitration, and no step has been taken to that end. The parties have seen fit to make their contract, and it is not for us to make one for them. They have provided their own forum to determine the value of extras, and it is not for us to deprive' either of the right to such forum.

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

The other Justices concurred.