author: Hooker, J. McGrath, C. J.

text:
    Charles B. Blakeslee v. The Consolidated Street Railway Company.

      Street railways- Collision with vehicle — Contributory, negligence.

    1. It is negligent to go upon a street-railway track without taking-some precautions to ascertain whether or not it is safe to do so; and a person cannot avoid the legal effect of such negligence by placing himself in a position where he cannot easily see an approaching car; citing McGee v. Railway Co., 102 Mich. 107; Fritz v. Railway Co., 105 Id. 50.
    2. In an action against a street railway company for injuries received by one of its cars striking the load of barrels in front of- which, the plaintiff sat at the time of the collision, the evidence showed that the plaintiff occupied a position from which he could not see what was behind without moving to the edge of the load; that, without doing so, he turned his horses upon the track, to pass a vehicle, and was struck, as already stated. The testimony as to the distance between the wagon and the approaching ear varied. And it is held that whether or not this negligence contributed to the injury complained of was a question for the jury; that, if there was an intentional or wanton running into the load of barrels by the motorman, after discovering plaintiff’s perilous position, there would be room for the application of the doctrine that the negligence of the plaintiff was not contributory, but if that element was lacking, and the accident involved only a want of ordinary judgment, prudence, oleare, there is no room for it.
    3. The following general propositions are summarized from the opinion of Mr. Justice Hookeb:
    a — That in a crowded thoroughfare, where there are four tracks upon which street cars are passing at intervals of four minutes, caution is necessary upon the part of all who use the street; that whether an accident is caused by the neglect of one or two parties must usually be a question of fact where the witnesses do not agree as to material circumstances.
    6 — That the use of electric cars involves, as it was intended it should, rapid transit; that more or less time is required to stop them; that they have the right of way, within reasonable bounds; that other travelers, by ordinary methods, owe the duty of making way for them without unnecessary or unreasonable delay; that, of necessity, ordinary vehicles must be permitted to drive upon and across the tracks when the cars are at a reasonably safe distance, and the railway company is in duty bound to keep a sharp lookout, and use prompt measures to prevent accidents when danger threatens, but persons should not pass upon a track without using some precaution to ascertain whether danger is imminent.
    Error to Kent. (Adsit, J.)
    Argued January 10, 1895.
    Decided May 28, 1895.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Kingsley é Kleinhans, for. appellant.

      Earle & Hyde, for plaintiff.
   Hooker, J.

The plaintiff, while driving a team attached to a load of barrels on a narrow street, turned his team upon the track of the defendant’s trolley road, to pass a carriage standing by the roadside. As the front wheel of the wagon was brought upon or near to the westerly fail of the track, the load was struck upon the side, near the front, by defendant’s car, whereupon the plaintiff’s team ran away, and he was Injured. He recovered a verdict in an action for negligence, and the defendant has appealed. The principal questions raised arise over the claims of defendant’s counsel that (1), plaintiff’s contributory negligence conclusively appeared; (2), if not, the court erred in his instructions to the jury upon that subject.

The evidence showed that the plaintiff sat in front of his load of barrels, which was 28 feet long, and 12 to 14 feet wide at the top, and that he occupied a position from which he could not see what was behind without moving to the edge of the load; that, without doing so, he turned his horses upon the track, to pass a vehicle, and was struck, as already stated. The testimony varied as to the distance between the wagon and the approaching car, one witness putting it about 100 feet; others, as low as 10 or 15 feet. It is contended that the evidence demonstrates the proposition that the car must have been so close when the plaintiff turned upon the track that it could not be stopped, and therefore that it should be held, as matter of law, upon established facts, that the plaintiff was negligent in turning upon the track in front of a rapidly approaching car. and that the defendant was not negligent.

We are unable to say that the evidence is conclusive in this regard. In a crowded thoroughfare, where there are four tracks upon which cars are passing at intervals of four minutes, caution is necessary upon the part of all who use the street; and whether an accident is caused by the neglect of one or two parties must usually be a question of fact where, as in this case, the witnesses do not agree as to material circumstances. The use of electric cars involves, as it was intended it should, rapid transit. More or less time is required to stop them. They have the right of way, within reasonable bounds; and other travelers, by ordinary methods,'owe the duty of making way for them without unnecessary or unreasonable delay. Of necessity, ordinary vehicles must be permitted to drive upon and cross the tracks when the cars are at a reasonably safe distance, and the railway company is in duty bound to keep a sharp lookout, and use prompt measures to prevent accidents when danger threatens. But persons should not pass upon a track without using some precaution to ascertain whether danger is imminent. The case of McGee v. Railway Co., 102 Mich. 107, is a case in point. In. that case a pedestrian looked in one direction, but not in the other, before stepping upon the track, when by doing so he would have seen the lights of the approaching car. In the more recent case of Fritz v. Railway Co., ante, 50, it was held that one riding in a covered carriage, and thereby prevented from looking behind, could not recover against the street car company, when he turned suddenly upon the track, in front of a car, and was injured. From these cases it appears that it is negligent to go upon a track without taking some precautions to ascertain whether it is safe, and that a person cannot avoid this by placing himself in a position where he cannot easily see an approaching car. The plaintiff did this thing; and if the car was so close that it can be said to have been an imprudent thing to do, if ordinarily prudent persons, knowing the whereabouts of the car, would not have thus turned upon the track, his act was negligent, and should preclude a recovery, if it contributed to the injury. The charge of the court seems to qualify this duty to look for an approaching car by making it depend upon his convenience. After stating that he was not a trespasser upon the track; that the street-car company had only an easement, and had no exclusive right to-travel upon its tracks; and that it was bound to take-the same care in preventing collisions as the driver of a wagon, — he added:

“But the plaintiff would not have the right to drive into apparent danger, such as would be in the face of an approaching car, if he Imew, or could have reasonably ascertained, that fact, under the circumstances in which he was placed.”
And again he said: “If, under all the circumstances of the case, considering the wagon and raclc that the plaintiff was using, the mawner in which it was loaded, the place upon the raclc ichere plaintiff was sitting, the team he was driving, the» obstruction in plaintiff’s way (if you find that there was such an obstruction, and that he could not pass around it, without getting upon or near the track, within the space that would be occupied by a car thereon), taking these and all the other circumstances of the case, as they appear from the evidence, into consideration, if plaintiff was acting in' the exercise of ordinary care, as a prudent and careful person, and was injured through the negligence of the defendant in not stopping its car or retarding its speed, if by so doing in a prompt, prudent, and careful manner, the injury to the plaintiff, if any, would be prevented, the defendant is liable in this action.”

And again he said:

“The fact that plaintiff’s wagon appeared to be on or within the line of the track, when struck, is not of itself conclusive evidence of negligence, for he had a right to be there, unless the car of defendant was at the time threateningly near to the part of the track where plaintiff was, and he had, by the exercise of ordinary prudence, the means of knowing of the immediate approach of such a car.”
“While it is lawful, and not negligence, to drive a wagon along upon the rail, or between the rails, of an electric street-railway track, when such part of the track is not in use by cars, and none are near the immediate vicinity, yet I charge you that it is negligence in the driver of a wagon, after he has been traveling and going to the side of such street-car track, to turn his vehicle from the roadway by the side of the track, over and upon the street-car track, in front of a motor car, which is approaching from behind, and proceeding at a lawful rate of speed, in full view, and could have been seen by the driver if he had looked out for it, and was so near by that the moving car will necessarily collide with the wagon, unless the niotorman, by extremely prompt and vigorous action, at once takes quick measures to bring his car to a standstill within the shortest time possible.”

He concluded his discussion of the question as follows:

“It is negligence to drive a wagon load of barrels in front of an electric car, which is only a few feet away, while the car is approaching from behind at its usual and lawful rate of speed, when there is not time for the wagon to clear the track and get out of the line of danger before the front end of the car would reach the wagon and come in contact with the load, unless the car is suddenly stopped; that is, if the driver knew or could reasonably have ascertained that fact, under the circumstances. If the plaintiff knew that a car was approaching near by, and only a few feet away, and at an ordinary rate of speed, just before he drove towards the track, it would be his duty to stop his team, and allow the car to pass; and under such circumstances, if he drove on the track in front of the car, this would be negligence on his part, and would prevent his recovery in this action.”

In our opinion, this naturally tended to give the jury to understand that turning suddenly upon the track, in front of an approaching car, so close that a collision would necessarily ensue unless the motorman, “by extremely prompt and vigorous action,” should prevent, would not be contributory negligence, unless the plaintiff knew that the car was only a few feet away, or unless he could reasonably have ascertained the fact from his seat in front of the barrels. In other words, the charge seems to imply that a man may place himself in any position that his convenience or the exigencies of his calling may require, and drive upon the track, without taking correspondingly greater precautions than would be necessary if in an open wagon; relying upon the proposition that he has the same right there that the car has, and that the motorman is required to avoid the collision. The evidence shows that the plaintiff made no effort whatever to ascertain whether a car was coming or not. In the case of a covered milk wagon, this was. held to be negligent, and the rule should be the same in this case.

Whether or not this negligence contributed tO' the injury is another question, which we cannot determine, it being for the jury. It was contended that it was a case of recklessness upon the part of the motorman. If there was an intentional or wanton running into the load of barrels, by the motorman, after discovering plaintiff’s perilous position, there would be room for the application of the doctrine that the negligence of the plaintiff was not contributory; but if that element was lacking, and the accident involved only a want of ordinary judgment, prudence, or care, there is no room for it.' Doubtless, the use of streets for cars is an inconvenience to other travelers. We should hardly recognize the common experiences of ordinary life, did we not understand that mutual annoyance and friction to and between those who operate cars and other vehicles is to be expected, and that wanton and intentional injuries are possible, as are unnecessary detentions of cars by willful teamsters. But they are not to be presumed, and, unless there is some tangible evidence that a collision is intentional or wanton, a jury should not be permitted to so find. We do not intend to imply that there was or was not such evidence in this case. It is alluded to because it is made a prominent subject of discussion in the briefs of counsel, from which we infer that it is considered an important question in the case.

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

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

McGrath, C. J.

(dissenting). Plaintiff was driving* south on the west side of Canal street, in the city of Grand Eapids, when his wagon was struck by one of defendant’s electric cars, which was also going south. Canal street is but 68 feet wide from curb to curb, and defendant has four tracks in that part of the street. The outside rail of the west track is 17.45 feet from the curb, and the cars projected 20 inches beyond the track, leaving but about 15 feet between the car and the curb. Plaintiff turned into Canal' street from West Bridge street with a load of 100 empty cracker barrels, which was from 12 to 14 feet in width at the top. He was seated on a board in the center of the front end of the load, his head being 17 inches below the top of the barrels. The car came into Canal street from East Bridge street. Plaintiff had driven some distance on the west side of the street, his load clearing the track. At the point of the collision, several horses and vehicles were standing* at the west curb of the street, and plaintiff had turned in upon the track to clear said vehicles, when’ the car struck the side of his load a short distance from the front. His horses took fright, and jumped to the west, running away. Plaintiff was thrown from his seat down upon the running horses, and injured. Plaintiff’s horses were walking. The off horse was afraid of the cars. Plaintiff testified that he did not know of the presence or proximity of the car until the collision, and that his horses gave no sign indicating the approach or presence of the car. The testimony as to whether a bell or gong was sounded by the motorman, as to the speed of the car, as to the care exercised by the motorman, as to whether plaintiff had just turned towards the track, or was in the act of leaving the track, and as to what the distance was between the car and the wagon when plaintiff first turned upon the track, was conflicting. The declaration alleges—

“That after the said plaintiff had so driven the said team towards the said track, and the said team and wagon was partially upon said track, and within the line of a car moving thereon, the said defendant, by its servants and agents, drove and propfelled a car along the' said track, as aforesaid, southward from Bridge street to the point aforesaid, in violation of its duty aforesaid, at a high rate of speed, in a careless and reckless manner, and without having the said car under control, and without giving said plaintiff time to move out of the way, and without warning to said plaintiff, drove and propelled the said car against the said wagon with great force; that, had‘the said defendant used due care and caution, and kept the said car under control, it might have seen the said team and wagon in the way, and might have lessened the speed of said car,- and given said plaintiff time to move out of the way, and avoided the collision aforesaid.”

Plaintiff insisted that, after he had turned upon the track, the car, at a rapid rate of speed, and without warning, came up behind him, and struck his load. Defendant contended that just before the collision the car was moving at a "moderate rate of speed, parallel with the wagon, when plaintiff suddenly turned towards the track, notwithstanding the gong was being sounded at the time. Some of the testimony was to the effect' that the car was running at a high rate of speed, and that plaintiff was upon the track when the car was 100 feet away. The court instructed the jury that—

“The plaintiff had the same right to travel upon that portion of the street occupied by the railway track as the railway company, save that it was his duty, when he should meet a car, to get off the track, and give the car precedence, or if on the track, and requested to get off, or he ' saw that it was necessary- for Tiim to get off to let the car pass, he should do so. He was not a trespasser upon the track, in any sense. The right of the railway in the street is only an easement to use the same in common with the public. It has not an exclusive right to travel upon its tracks, and it is bound to use the same care in preventing a collision as the driver of a wagon or other vehicle. But the plaintiff would not have the right to drive into apparent danger, such as would be in the face of an approaching car, if he knew or could have reasonably ascertained that fact, under the circumstances in which he was placed.”
“The fact that plaintiff’s wagon appeared to be on or within the line of the track, when struck, is not, of itself, conclusive evidence of negligence, for he had a right to be there, unless the car of defendant was at the time threateningly near to the part of the track where plaintiff was, and he had, by the exercise of ordinary prudence, the means of knowing of the immediate approach of such a car. What would be threateningly near is for you to decide, as men of experience, taking all the facts, including the distance and the time in which a car can be stopped, into consideration. What is ordinary care and prudence is determined by the nature of the business in which the person in question is employed, and the risks attending it.”
“If you find it is a fact that at the time the plaintiff turned the front end of the wagon over and upon the rail of the street-car track, if he did so at all, there was then a motor car in plain view, approaching the wagon from behind at a lawful rate of speed, and about 15 feet from the rear end of the wagon, and liable to come in contact with it, and also that the plaintiff could, have seen this approaching car if he had looked out for it, then, under such circumstances, it would be negligence on the part of the driver to so turn his vehicle over and upon the rail of the street-car track, or within the line of danger, without looking; he cannot recover for the injuries he has sustained by the subsequent collision. It is negligence to drive a wagon load of barrels in front of an electric car, which is only a few feet away, while the car is approaching from behind at its usual and lawful rate of speed, when there is not time for the-wagon to clear the track and get out of the line of danger before the front end of the car would reach the wagon and come in contact with the load, unless the car is suddenly stopped; that is, if the driver knew or could reasonably have ascertained that fact, under the circumstances. If the plaintiff knew that a car was approaching near , by, and only a few feet away, and at an ordinary rate of speed, just before he drove towards the track, it would be his duty to stop his team, and allow the car to pass; and under such circumstances, if he drove on the track in front of the car, this would be negligence on his part, and would prevent his recovering in this action.”
“If you find that the car and wagon were running side by side, in the same direction, for some distance, with a space of two or three feet between them, then I charge you, as a matter of law, there can be no collision, if each adheres to its then line of travel, and also that in case of a collision, under such circumstances, the presumption of negligence is altogether against the driver of the wagon, and not against the motorman; the driver being able to deviate and depart from his adopted line of travel, while the motorman. cannot do so with his car; that is, if the plaintiff knew the position that the car and wagon were, — side by side.”
“It is not negligence for a motorman to run his car at a lawful and ordinary rate of speed, side by side with a load of empty barrels going in the same direction, where there is room enough for the car to pass the load of barrels; and in such case, if the upper part of the car grazes along and rubs against the ends of the barrels, because the load of barrels had approached nearer to the car than the load was when they had been going side by side, then the street-railway company is not presumed to be the one at fault for causing such a contact.”

Plaintiff was driving along the street with a bulky load which filled the space between the car line and the .curb. His person was concealed from view. Vehicles lined the curb in his path. It was not claimed that these vehicles could not'be seen by the motorman. If thfe plaintiff was upon the track, and the motorman observed the situation in time to have slackened the speed of his car and brought it under full control, and did not do so, he was guilty of recklessness; and if he did not see the •plaintiff he is chargeable with recklessness, for it was his duty to keep a lookout. The permission to run at a high rate of speed implies a high degree of care on the part of the street-car company. The use of the street by ' street-railway companies is a use in common with other persons. The right of way accorded to them must be exercised in a manner consistent with other proper uses of the street. Persons properly using streets, and liable, because of close proximity to the tracks, to come in contact with cars, or liable, because of the presence of other vehicles, to turn upon the tracks, should be warned by proper signals of the approach of cars, and the car should be kept under control, especially when the driver of the vehicle is concealed from view, and not in a situation to observe the approach of the car. A motorman who is giving the usual cautionary signals might be justified in assuming that the caution would be observed, but in the absence of such signals, and especially in a case like the present, where the driver is not' in a situation to observe ■the approach of the car, he is not justified in assuming that the driver will stop, or will not turn upon the track in his course, to avoid contact with other vehicles. ' The right of the driver of a vehicle to di’ive over- or upon the .tracks is not restricted, except in case of the' approach or presence, of a car. The right of the railway company in the street must be exercised with proper regard to other uses. While granted the right to maintain a given rate of speed, the exercise of that right is subject to the contingencies and conditions which arise from a concurrent use of the street. To hold it to be the duty of persons using streets in common with street-railway companies, under all circumstances, to stop and look and listen to ascertain whether cars are not approaching from the rear, would impose a serious burden upon such persons, and seriously interfere with other uses of the street. Many vehicles are so constructed that a view of what is approaching from the rear is entirely cut off. ' The duty of persons so conditioned, under circumstances where their presence cannot be readily seen, presents another question. The collision in the present case occurred in broad daylight. There was no reason why the -situation could not or should not have been observed. ' One upon a street-railway track, under the circumstances here presented, is not a trespasser, nor is he chargeable with negligence from the mere fact that it is a street-railway track, and that a car may approach from the rear. While he has no right, with knowledge of the presence of a car, to obstruct its passage, yet there may be cases where, haying gained the track in the ordinary and necessary course of travel, without knowledge of the approach or presence of a car,- his right is the superior one, until he has had a reasonable opportunity to give the way to the approaching car. All persons participating in the use of streets must, of necessity, submit to such interruptions as are inseparable from the joint use. A driver going upon a street-car track with full knowledge of the proximity of an approaching car may be guilty of such negligence as would preclude a recovery in case of a collision; and he may be chargeable with negligence if, in a posHioo to ascertain, with reasonable diligence, whether or not a car is approaching from the rear, he fails to take the precaution. But, of necessity, he is, in many cases, not in a situation, by a simple turn of the head, to observe the approach of a car from the rear. He has, under such circumstances, in the absence of the warning which it is the duty of the motorman to give, a right to assume that some regard will be paid to his presence and environment. The rule that commercial railways impose an additional servitude upon highways is but a recognition of the fact that the incidents of such use are inconsistent with the concurrent use of such streets; but, if the rules that prevail respecting the crossing of commercial ways are to be applied to travel upon streets, there is no room for any distinction between the two classes of railways.

The court, upon the question of damages, instructed the jury that,—

“It is a question in determining which you have the right to take into account the sufferings and pain caused by the injury and wounds, the deformity caused thereby, and the humiliation which would naturally follow by reason of such injury, the permanent (in so far as you find them to be permanent), annoyances resulting from the mutilation and crippling of the plaintiff. And you are also to take into account the extent it has injured the plaintiff and prevented him from following the ordinary pursuits of life, — óf men in his position in life; the extent, in other words, to which the plaintiff is restricted in his choice of occupation, and limited in his ability to work, by the injuries.”

The instruction is within the rule laid down in Geveke v. Railroad Co., 57 Mich. 596; Power v. Harlow, 57 Id. 107; and Sherwood v. Railway Co., 82 Id. 374.

As already intimated, the testimony was in conflict upon the material issues; and I do not think that there is such a preponderance in favor of the defendant’s theory as would justify this Court in directing a new trial on the ground that the verdict is contrary to the weight of evidence.

The judgment should be affirmed.

Long, J., did not sit.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Stephen T. Probett v. Eliza Jane Jenkinson.

      Deed — Construction—Description.-
    Where after conveying a parcel of land described In the deed as having an equal frontage front and rear, and known as the westerly part of a designated lot, the grantor conveys to a third party the remainder of the lot, describing it as bounded on one side by the land owned by the first grantee, “intending hereby to convey * * * the easterly half of said lot,” the question as to the title of the first grantee, who after-wards secured a quitclaim to the west half, hinges, not upon the intention of the parties respecting the land intended to be conveyed by said deed, — it appearing that the grantor and first grantee supposed that the lot, a.portion of which was conveyed, was of the same width from front to rear, and that the deed included all of the west half of the lot, and that, when the second deed was made, the grantor supposed that all of said west half of said lot had been conveyed to the first grantee, and that the second deed included the remainder of the lot, — but rather upon the construction to be given to the description of land in said second deed; the case being ruled by Plummer v. Could, 92 Mich. 1.
    Appeal from St. Clair. (Canfield, J., presiding.)
    Submitted on briefs February 14, 1895.
    Decided May 28, 1895.
    Bill to quiet title. Defendant appeals.
    Decree affirmed.
    The facts are stated in tbe opinion.

      E. W. Stevens, for complainant.

      Frank Whipple and S.-W. Vanee, for defendant.
   McGrath, C. J.

This is a bill to quiet title to a goresbaped parcel of land, which was included in what was known as the “Steam-Mill Reserve,” on Black river, in the city of Port Huron. The reserve fronted on the river, and the land adjoining on the north, east, and west was platted prior to 1887. In 1866 Skinner & Ames, the then owners of the reserve, subscribed and recorded the plat. In that plat the parcel lying south of River street 'and west of Seventh street bridge was distinguished as “Lot C.” In 1876 Skinner & Ames subdivided lot C according to the following plat:

This plat was not acknowledged or recorded. In the same year they mortgaged lots 1, 2, 3, and 4 to one Fish, and later in that year gave a mortgage to Martha C. T. Williams, of Detroit, upon the remainder of said lots. The description in the Williams mortgage is as follows:

“Lots 5, 6, 7, 8, 9, 10, 11, and 32 in the Skinner & Ames plat of a part of the Black River Steam-Mill Reserve, being all that part of said reserve south of River street and west of Seventh street bridge, except lots 1, 2, 3, and 4, shaded green in the map hereto annexed.”

As stated in the mortgage, there was attached to it a map, which was a copy of the original plat in' the possession of Skinner & Ames, in so far as the lots south of River street and west of Seventh street bridge were concerned, except that it did not have the letter C upon it, nor did it have all of* the dimensions and monuments that were upon the original plat. Lot 10 is shown on this map as being 50 feet on River street, and very much wider upon Black river, but the figures indicating its width on the river are not given as they are' on the original plat, where they are stated at 90 feet. This map was a tracing made on the same scale as the original plat, and when the mortgage came to be recorded the map was detached from the mortgage, and attached to the record in the register’s office, where it has since remained.

In February, 1878, complainant purchased from Skinner & Ames lots 11 and 12. Subsequently Mrs. Williams’ mortgage was foreclosed in chancery, and on the 28th of January, 1880, all of the lots described in the mortgage were bid off to Mrs. Martha C. T. Williams. On the 27th day of July, 1880, Mrs. Williams conveyed the two lots to the complainant, describing them as follows:

“Lots 11 and 12 according to the Skinner & Ames plat of a subdivision of part of the Black River Steam-Mill Reserve, in said city of Port Huron, south of River street and west of Seventh street bridge, being lots now occupied by said Probett, and on ■which he has located lime-kilns, and were conveyed to him by Thomas S. Skinner and wife and Wallace Ames and wife.”

The next year, in May, 1881, the complainant, desiring more land, through Mr. B. C. Farrand, an attorney at Port .Huron, applied to Mr. Elisha Taylor, representing Mrs. Martha C. T. Williams, to know what Mrs. Williams would take for lot 10, or for the west half of that lot, and received a reply that she would take $1,000 for the whole lot, or $600 for the west half of it. The complainant accepted the proposition for one-half of the lot at $600; and on the 10th day of May, 1881, Mr. Elisha Taylor drew up the deed, and it was executed by Mrs. Williams, and, sent, through Mr. Farrand, to the complainant. When this deed was drawn, ,Mr. Taylor supposed the lot was 50 feet wide both on the river and on River street, whereas, as a matter of fact, it was 50 feet wide on River street, and had a frontage on Black river of 90 feet. The description in this deed is as follows:

“A parcel of land 25 feet wide in front on the south side of River street, and of the same width extending southerly .to the channel bank of Black river, and known as the westerly part of lot No. 10 of the Skinner & Ames plat, south of River street and west of Seventh street.”

The complainant purchased the west half of lot 10 in May, and in June, following, John Jenkinson, the husband of the defendant, through Mr. Elisha Taylor, contracted with Mrs. Williams for the purchase of lots 5, 0, 7, 8, 9, and the easterly half of lot 10, according to said Skinner & Ames plat of said Steam-Mill Reserve. The date of this contract is fixed by John Jenkinson as in June, 1881. There was nothing upon the ground to designate where the division line between the east half of lot 10 and the west half of such lot should be located when complainant purchased, or when Mr. John Jenkinson contracted for the east half, nor was there at the time when the defendant afterwards obtained her deed from Mrs. Williams; but the premises were what might be termed open, or a common, so far as anything indicating the division line between complainant’s and defendant’s premises. On the 23d day of July, 1884, at the request of John Jenkinson, the husband" of the defendant, Mrs. Martha C. T. Williams, through Mr. Elisha Taylor, executed and delivered to the defendant a deed of the lands embraced in the contract, describing them in such deed as follows:

“All that part of the Black River Steam-,Mill Reserve situated and lying between River street and Black river, and bounded on the westerly side by land owned by Stephen T. Probett, and bounded on the easterly side by River street, and lots numbered 1,. 2, 3, and 4 of Skinner & Ames plat, and mortgaged by Skinner & Ames to Arthur Fish, and south by the channel bank of Black river, — intending hereby to convey lots numbered 5, 6, 7, 8, 9, and the easterly half of lot 10, according to the Skinner & Arnes plat of that part of said reserve, without guaranteeing the correctness of said plat, though it is supposed to be correct; subject to all taxes and assessments in the year 1881 and subsequently, which the now party of the second part assumes, and is to pay and cancel, if not already paid.”

The deed was recorded on July 31, 1884. On the 24th day of July, 1884, John Jenkinson and his wife, the defendant, Eliza Jane Jenkinson, made a mortgage to the Michigan Mutual Life Insurance Company upon the east half of lot 10, and other lands, describing said land in said mortgage as follows:

“Lots 5, 6, 7, 8, 9, and the east half of lot 10, of that part of Black River Steam-Mill Reserve lying between River street and Black river, bounded on the west by land owned and occupied by Stephen T. Probett, on the east by land mortgaged by Skinner & Ames to Arthur-Fish, August 26, 1876; said lots being numbered according to Skinner & Ames plat of a part of said Black River Steam-Mill Reserve.”

The application to the insurance company was made by Mr. Jenkinson and' his wife, through Mr. Farrand, for the purpose of taking up the contract and obtaining the deed. This deed and mortgage were executed three years after the execution of the deed by Mrs. Williams to the complainant of the west half of the lot, and likewise three years after the contract made by her to the husband of the defendant, of the east half of said lot. At the time that the complainant purchased the west half of lot 10, he had not seen the plat, or a copy of the plat, referred to as the “Skinner & Ames Plat,” and did not till 1885, when he went to Mr. Skinner, and was shown the plat; and, at the time that Mr. Taylor drew the deed to the complainant for the west half of lot 10, Taylor had no knowledge in regard to the width of the lot on the river.

In 1885 John Jenkinson asserted to complainant that the latter only had 125 feet, and complainant then examined his deed, and also saw Mr. Skinner, and obtained from him the original plat, and took the same to Detroit, and showed it, together with his deed, to .Mr. Taylor; and Mr. Taylor, in order to correct the mistake which had been made, on the 14th day of December, 1885, drew up and had executed a quitclaim deed from Mrs. Martha C. T. Williams to the complainant of the west half of lot 10, which deed was recorded December 16, 1885.

It is clear from this record that, when complainant purchased the portion of lot 10, both he and Taylor supposed that said lot was of the same width from front to rear; that both supposed that the conveyance made included all of the west half of lot 10; and that, when the conveyance was made to Jenkinson, Taylor then supposed that the west half of lot 10 had hitherto been conveyed to Probett, and that the conveyance then being made included all of the remainder of said lot 10. The question, however, hinges, not upon the intention of the parties respecting the land intended to be conveyed by the deed to complainant, but rather upon the construction to be given to the description in the deed from Martha C. T. Williams to defendant. The case is, we think, ruled by Plummer v. Gould, 92 Mich. 1. The intention of the grantor is clearly expressed in the conveyance-to defendant. Defendant contends that she went upon the land, and that a line corresponding to the line as given in the conveyance to complainant was pointed out to her by Probett as the east line of his land, but this is denied. She had examined a plat which, although it did not give distances on the south line, clearly indicated that the lots were wider on the river, and she accepted the deed, which clearly expressed the grantor’s intention.

The decree is affirmed, with costs to complainant.

The other Justices concurred.


author: Long, J.

text:
    Louise Weisse v. The City of Detroit.

      Municipal corporations — Defective cross-walks.

    A rise in a cross-walk, caused by one end of a plank, lying lengthwise in the walk, being raised two inches above the adjoining plank, is not a defect in the walk, so that it is not reasonably safe, within the meaning of 3 How. Stat. § 1446e, which makes it “the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel,” all cross-walks that are within their jurisdiction, and that are under their care and control, and which are open to public travel.
    Error to Wayne. (Hosmer, J.)
    Argued February 12, 1895.
    Decided May 28, 1895.
    Negligence case. Defendant brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinion.

      John J. Speed, for appellant.

      Dickinson, Thurher & Stevenson (Henry M. Cheever and Charles B. Warren, of counsel), for plaintiff.
   Long, J.

This action was brought to recover damages for injuries received by reason of a defective crosswalk in the city of Detroit. Plaintiff recovered verdict and judgment for $500 in the court below. Defendant brings error.

The declaration alleged that the plaintiff, while passing along the street, in the evening of April 22, 1892, fell by reason of a defect in the cross-walk, which was caused by the end of a plank, which was lengthwise in the crosswalk, being loose, and being raised up above the walk some two inches or more. The plaintiff testified that the plank was up about one and one-half inches. Another witness testified that the plank was up three-quarters of, an inch above the plank which joined it; that it bowed somewhat in the middle, and the end would spring up and down as it was stepped on. Testimony was also given tending to show that it had been in that condition about two weeks before the accident, and that others had fallen there, by reason of the defect, before the plaintiff was injured.

It is contended by counsel for the city that, notwithstanding the plaintiff was injured, and the walk was defective, the defect was not such as to make the walk unreasonably unsafe or unfit for ordinary travel, and the court below was asked to so charge, which was refused. The accident happened at the intersection of Porter and Twenty-Third streets, some two mile's from the business part of the city, and, counsel contends, where there was no great amount of travel; that, therefore, the court should have said as a matter of law that no such defect existed as authorized a recovery.

The statute provides:

“It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they will be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, cross-walks, and culverts that are within their jurisdiction and Tinder their care and control, and which are open to public travel,” etc. Section 3, Act No. 264, Laws of 1887, being section 1446e, 3 How. Stat.

This is an amendment of Act No. 244, Laws of 1879 {How. Stat. § 1445), which provided:

“It is hereby made the duty of townships, villages, cities, or corporations to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-walks, and culverts that are within their jurisdiction and under their care and control, and which áre open to public travel,” etc.

The act of 1879, it will be observed, made it the duty of the township, village, or city to keep its streets, crosswalks, etc., in good repair, “so that they shall be safe and convenient for public travel;” while the amendatory act of 1887 provides a duty to keep them “reasonably safe.” Can we say, as matter of law, that this walk was reasonably safe and convenient for public travel? It would be a great burden upon townships, villages, and cities if it be held that every slight rise in a walk makes It not reasonably safe and convenient for public travel. In the present case the rise was from 1^- to 2 inches. The plaintiff was injured by “stumbling against it,” as she says. There are, and must of necessity be, at many places in walks, and especially in cross-walks, rises greater than this by which the plaintiff was injured. In many street crossings, and especially where asphalt or brick pavements are used, the cross-walks are on a level with the street, with a step down of several inches below the level of the sidewalk. Can it be said that every one of these cross-walks is not reasonably safe and convenient for public travel? We think not. The Legislature, by the amendment,-evidently intended that the walks should be kept reasonably safe, and not absolutely safe. In cities having many miles of walks it would be an utter impossibility to make these walks absolutely safe, and the Legislature did not intend to impose that duty upon municipalities by this act, whatever construction the act of 1879 may have had. It. would require an army of men in the city of Detroit to do this. Inspectors are not expected to carry around with them a smoothing plane or an adz to- plane or hew down every small protuberance against- which people might stumble and fall. The fact that this plank was not nailed down does not seem to have caused the injury. It was the same as if it had been nailed, but was 1-J or 2 inches above the other, so that the question is squarely presented whether such a rise is a defect in the walk so that it is not reasonably safe. While not desiring to relieve municipalities from the duties and responsibilities fairly cast upon them by this act, we should be careful not to cast a burden upon them which it was not the intent of the Legislature to create.

In Schroth v. City of Prescott, 63 Wis. 652, it was held-that an inclination of 3|- inches in a distance of 2½ feet m a plank sidewalk is not such a defect as would render the city liable for personal injuries alleged to have been caused thereby. It was there said:

■ “Its resources are doubtless inadequate to bring all of its walks to a dead level, and the law does not impose upon it any such duty.”

In the case of Corporation of City of London v. Goldsmith, 16 Can. Sup. Ct. 231, reported in 31 Amer. & Eng. Corp. Cas. 56, action was brought against the city for damages caused by the plaintiff’s striking her foot against a street curb raised above the level of the crossing, and falling down, by which she was seriously injured. The crossing was from four to six inches below the sidewalk. Ritchie, C. J., speaking for the court said:

“To hold that such a liability was intended to be imposed by the legislature on municipal bodies would be most unreasonable, and would practically burden municipalities to an extent that could never have been contemplated by the legislature.”

Mr. Justice G-wynne said in the case:

“The fact that the sidewalk was four to six inches above the level of the roadway was no evidence, proper to be submitted to the jury, of neglect by the corporation of any legal duty, so as to make them , responsible therefor, and the plaintiff should have been nonsuited.”

A like question arose in Miller v. City of St. Paul, 38 Minn. 134, and it was held that the city was not liable.

In the present case, had the plank been raised but an inch or half an inch, the plaintiff might have stumbled against and over the projection. We think there was no question for the jury. It is unlike the cases referred to by counsel for plaintiff in which it was held that it was a question for the jury whether the street was in a reasonably safe condition and fit for travel. These cases— Malloy v. Township of Walker, 77 Mich. 448, and Sharp v. Township of Evergreen, 67 Id. 443 — present very different facts from the present.

The question of rises in walks, and the necessity for them, was discussed in Bigelow v. City of Kalamazoo, 97 Mich. 121. There the plaintiff was injured by slipping upon the beveled edge of a plank. The plank of the street crossing had been chamfered off to permit the street cars to go over. It was there said:

“These crossings are not absolutely safe, but they may be reasonably so. Neither streets, sidewalks, nor crosswalks can be constructed upon a dead level. * * * Cities are not required to keep streets in a condition absolutely safe for travel. A cross-walk must be reasonably safe; reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street, and all the varying conditions.”

The city prevailed in that cause, and the judgment was affirmed.

If the plaintiff could recover in this case, every municipality would be compelled to exercise the most vigilant care over its streets to see that no rise of two inches occurred along the line of travel on side and cross walks. The statute will not bear this construction. The Legislature of 1887 evidently regarded the statute of 1879 as imposing too great a burden upon municipalities, and therefore enacted that the street must be reasonably safe, and not absolutely safe. We think this street was reasonably safe, within the meaning of the act of 1887, and the court below should have given defendant’s request to charge.

The judgment of the court below must be reversed, with costs of both courts. No new trial will be awarded.

McG-rath, C. J., Grant and Hooker, JJ., concurred with Long, J. »

Montgomery, J. I think there was a question for the jury.


author: Montgomery, J.

text:
    Charles G. Mueller v. The Lake Shore & Michigan Southern Railway Company.

      Negligence-Gnjury to brakeman — Variance.
    The declaration in a personal injury case averred that the plaintiff, a freight brakeman, attempted to make a Coupling of a car that had been kicked upon an unballasted siding;'that he was ignorant of the condition of the siding, and could not see it, it being a dark and cloudy night; that plaintiff took two or three steps along on the ties, and while in the act of coupling said kicked-off car to another car, he being at the time between the two cars, he stepped with the train between the rails, and, instead of stepping upon the eartli or a tie, as he expected, stepped between a couple of ties, and was tipped over, his feet falling unexpectedly over a foot, causing- him to lose his balance, his control over his equilibrium and his body and limbs, and his right arm was caught between the two deadwoods of said car, and crushed. The testimony of the plaintiff showed that the cause of the injury was his act in placing his arm between the deadwoods, where it could be and was caught when the moving car came back against the stationary car; that the movement by which his arm was so placed was not involuntary; that he was not thrown, and did not stumble into this position; that he stood with his arm against the stationary car, in a position at that time discovered by him, and waited for the moving car to come against it, and the instant it did so his arm was caught. And it is held that plaintiff’s own testimony fails to show either that he was in the exercise of due care, or that the unballasted condition of the track caused the injury in the manner complained of.
    Error to Wayne. (Frazer, J.)
    Argued April 3, 1895.
    Decided May 28, 1895.
    Negligence case. Defendant brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinion.

      Wells, Angelí, Boynton & McMillan, for appellant.

      James E. Pound, for plaintiff.
   Montgomery, J.

Plaintiff was employed as a brakeman on defendant’s freight train, and, while engaged in making a coupling on a side track at a station called “Warner,” received injuries. He sued to recover damages, and recovered on the trial. Defendant brings error.

The negligence imputed to defendant is a failure to ballast its track, and the manner in which plaintiff claimed in his declaration to have received his injury is described in the pleading as follows:

“Plaintiff, complying with his duty in that regard, attempted to make a coupling of said car kicked upon the said unballasted siding or side track of defendant, of which fact of lack of ballast plaintiff avers he knew nothing, and could not see, it being a dark, cloudy night. That he (plaintiff) took two or three steps along on the ties, and, while plaintiff was in the act of coupling said kicked-off car to another car, he (plaintiff) being himself between the two cars, he stepped with the train, being between the rails, and instead of stepping- upon the earth or a tie, as expected, -plaintiff avers lie stepped between a couple of ties, and was tipped over, bis feet falling unexpectedly a great distance, to wit, over a foot, causing plaintiff to lose Ms balance, Ms control over his equilibrium and his body and limbs; and plaintiff avers his right arm was caught between the two deadwoods of said car, and crushed.”

Defendant’s counsel contend that the proof offered by plaintiff fails to show that the alleged want of ballast was the cause of plaintiff’s injury. The only witness who testified upon the subject was the plaintiff himself, and -upon this question his testimony was as follows:

“The conductor was doing the switching, and I was coupling up with the other brakeman, and he was throwing the switch. He kicked a couple of cars down this siding, and they stopped all right, came up against the other cars, and I coupled some on the main line. Then he went and kicked up another on this siding, and I went up to make the coupling, and there was a pile of gravel alongside of the track, and it was raining, and washed some of the gravel right where I stood. I got to the car, and put in the pin, but the other car did not strike it so hard as to couple the pin. The engine went back again. When I got back on this track again to drop this pin, I had to g.et in there. The pin was pretty high up. I could not. reach it very well. I had to get close to it. The cars were slacked apart after they got through shoving. I was looking for this pin in the dark, and my arm got in between the deadwoods, and I dropped in between the tiés, and the engine came in a second time while my arm was between the deadwoods.”
“At the time I was hurt, my back was towards the engine. I had my hand on the standing car. When 1 stepped across the west rail, I first set the pin. I set the pin in the socket. I mean slanting, so that, when the car comes against it, it will drop the pin. That was on the south end of the standing car. I used the right hand to set that pin. Then, as the moving car came up, I lifted the link in that car to get it into the other car. I took that with the right hand. The cars did not couple the first time. The pin didn’t come down. It did not strike hard enough. Then the moving car bounded back a little, not over an inch; so that the link did not come out of the drawbar. It was in the draw all the time. I then got my right arm over the deadwoods to reach the pin to drop it. I drew it from underneath, and put it on top, to shove the pin down. As I was doing that, I was standing still. As I put my arm down to make the pin go down in the hole, the deadwood caught my elbow. I got my arm in between there, when the engine came back onto the cars again.
“Q. Did the car cóme back again after you had raised your arm up to get the pin to go down?
“A. I did not reach the pin.
“Q. Was it while your arm was coming up that the deadwood caught you?
“A. It was while I was feeling around for the pin. I could not reach it.
“Q. While you were doing that, the car came back again?
“A. Yes, sir.
“Q. The engine and the car?
“A. Yes, sir.
“Q. And then it caught your arm?
“A. Yes, sir.
“I had a lantern that night. It was in good shape, clean. I did not use a stick in making the coupling.
“Q. Did you walk along over the ties, holding the link up, or let the moving car come towards you?
“A. I stood there, and let the moving car come towards me. I did not walk along over the ties holding the link out.
“Q. When you stepped in, did you look at the track to see whether the ties were as you described them, or ballasted?
“A. No, sir; I did not have time. The car was too close onto me.
“Q. So you jumped right in without looking at your footing at all, and picked up that pin, and then turned around, and got the link with your right hand, without even looking at your footing at all?
“A. No, sir; I did not have time'to look, because 1 wanted to make the coupling.
“Q. Without looking at all where you were stepping, you stepped in, because the car that was coming was so close to you that you thought you had not time to examine?
“A. Yes, sir.
“Q. How far did you step along on the track after you got in?
“A. I did not step at all just then.
“Q. At any time?
“A. I made one or two steps afterwards.”

We think this testimony not only fails to show that the injury occurred in the manner described in the declaration, but that it does show that the cause of the injury was the act of plaintiff in placing his arm between the deadwoods, where it could be and was caught when the moving car came back against the stationary car. The movement by which his arm was so placed was not involuntary. He was not thrown and did not stumble into this position. He stood with his right arm against the stationary car, in a position certainly at that time discovered by him, and waited for the moving car to come against it, and the instant it did so his arm was caught. The want of ballast cannot be said to have made it necessary for him to place his arm in this position. He knew the relative position of the pin, draw-bar, and deadwood; and after discovering this position, and after discovering the difficulty in placing the pin, it is apparent that he assumed the risk of the injury which followed. If it be urged that the want of ballast made it more difficult to reach the pin and drawbar, it should be borne in mind that the difficulty was apparent to the plaintiff; and, with knowledge of the difficulty, it was clearly negligent for him to put his arm between the deadwoods. The plaintiff’s own testimony fails to show either that he was in the exercise of due care, or that the unballasted condition of the track caused the injury in the manner complained of.

The judgment will be reversed, and, as no case was made out by the plaintiff’s own testimony, no new trial will be ordered.

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

McGrath, O. J. I concur in a reversal, on the ground that tbe injury was not received in tbe maimer alleged in the declaration.

Long, J., did not sit.


text:
    Thomas Bromley v. Chauncey M. Lathrop et al.

      Mortgage — Payment—Principal and agent — Estoppel.
    1. Notwithstanding the fact that a mortgagor has no actual knowledge of the transfer of the mortgage, payment of the mortgage will not be good, made to a person not in possession of the securities, unless there is an agency in fact to receive the payment; or such facts as estop the assignee from denying the authority of Such person to receive the payment.
    2. The fact that the interest on the mortgage has been collected from, time to time by such person is not sufficient of itself to justify an inference of authority to receive payment of the mortgage without the surrender of the securities.
    8. Two or three years after the execution of a mortgage, the mortgagee formed a copartnership, and the firm continued to carry on the business of loaning money on mortgages. After doing business for a couple of years, the firm, with others, organized a mortgage company, which succeeded to the rights of the firm, and conducted the same character of business in the office formerly occupied by said firm. Seventeen days after the execution of the mortgage, it was assigned by the mortgagee, and, with the note and interest coupons, delivered to the assignee, who thereafter held said securities, and, as the interest coupons matured, presented them at the office occupied by the mortgagee when the mortgage was given, and where it was made payable, which occupancy had been transferred to the firm and by it to the corporation, and received from the mortgagee, the firm, and the mortgage loan company, respectively, the money thereon. About the time the mortgage matured, the mortgagor agreed with the mortgage company for an extension of time, and, for the purpose of securing the interest, executed interest coupon® payable to said company or bearer, and also coupons representing a bonus, payable to said company. The mortgage company then secured the consent of the assignee to said extension of time, and turned over to him the interest coupons, which were paid at' the office of the company. Upon the maturity of the mortgage, the mortgagor made a new loan of another party, and paid the old mortgage to the mortgage company, which failed to pay the money to the assignee, and, while it was in his hands, made .an assignment. And it is held that, while the case is a hard one, it does not appear that the assignee has been guilty of any act which ought to estop him from relying upon his ownership and possession of the securities, and insisting upon payment.
    Appeal from Osceola. (McMahon, J.)
    Submitted on briefs April 16, 1895.
    Decided May 28, 1895.
    Bill to foreclose a mortgage. Complainant appeals.'
    Decree reversed, and one of foreclosure entered.
    The facts are stated in the opinion.

      Fedewa á.Walbridge and William J. Gray, for complainant.

      Sweet, Perhins & Judhins, for defendants.
   Montgomery, J.

This bill is filed to foreclose a mortgage executed by defendant Lathrop and wife to Samuel S. Walker, and bearing date December 10, • 1884. The mortgage was accompanied by a note for $300, being for the principal sum, and 10 interest coupons, of $12 each, representing the semi-annual interest to mature on said note, all of which were payable at the office of said Walker, in St. Johns. Some, two or three years after the execution of, this mortgage, Walker formed a partnership with one White, the firm being known as Walker & White, and continued to carry on a business similar to the one which had been previously conducted by. Walker, namely, loaning money on mortgages. In September, 1889, Walker & White joined with two others in organizing the Michigan Mortgage Company, Limited, which company succeeded to the rights of Walker & White, and conducted the same character of business in the office formerly occupied by Walker, and subsequently by Walker & White. The mortgage was assigned by Walker to complainant on the 27th of December, 1884, and the note and interest coupons were delivered to complainant at that time. He has ever since held possession of the mortgage and note, and, as the interest coupons matured, he presented them at the office at which they were payable, and received the money thereon from Walker, Walker & White, or the Michigan Mortgage Company. Walker, Walker & White, or the Michigan Mortgage Company wrote the defendant Lathrop, as these coupons matured, apprising him when they were payable, and stating that prompt payment would be required. The complainant, however, knew nothing of these communications. About the time the mortgage matured, the defendant agreed with the Michigan Mortgage Company for an extension of time on the mortgage for three years, and, for the purpose of securing the interest, executed interest coupons payable to the Michigan Mortgage Company or bearer, and also executed coupons representing a bonus of $18, payable to the Michigan Mortgage Company or order. The Michigan Mortgage Company then called upon the complainant, and asked him if he was willing to extend the mortgage for three years, and, upon his replying that he was, turned, over to him the interest coupons. He did not know the terms upon which the Michigan Mortgage Company had assumed to grant the extension to the defendant. The interest coupons were paid in the same manner as before, complainant, at their maturity, presenting them at the office of the Michigan Mortgage Company and receiving his money. When the mortgage matured, notice of this fact was sent by the Michigan Mortgage Company to defendant Lathrop, and the amount was raised by giving a new mortgage upon the property to defendant Judkins, and the money was remitted to the Michigan Mortgage Company. It never reached the complainant, but, while in the hands of the Michigan Mortgage Company, an assignment was made, and it is conceded on all hands that the company is wholly insolvent, and the money will be lost either to the complainant or the defendants, and the sole question in the case is upon whom the loss should fall.

Defendant Lathrop had no actual knowledge of the transfer of the mortgage to complainant, but it is conceded by defendants’ counsel that, notwithstanding this fact, payment would not be good, made to a person not„ in possession of the securities, unless there was an agency in fact to receive the payment, or such facts as estop the complainant from denying the authority of the Michigan Mortgage Company to receive the payment. As to the question of agency in fact, we think it is very clear upon the record that the Michigan Mortgage Company did not have actual authority to receive money. There was no express direction to receive it, and no previous dealings of the parties gave rise to an implication of such authority. The payments of the interest coupons, which had been made through the Michigan Mortgage Company, had been made by the Michigan Mortgage Company, and the coupons surrendered. See Joy v. Vance, 104 Mich. 97, and case cited.

Was there such a holding out of the Michigan Mortgage Company, either as the owner of the mortgage or as agent to receive payment, as estops the complainant from denying that the payment was made to one authorized to receive it? It is quite apparent from a letter written by defendant under date of September 12, 1893, that he did not suppose the Michigan Mortgage Company was the actual owner of the note. In that letter he wrote, excusing delay* and saying:

“Tell the party holding the mortgage to be as lenient as possible.”

The facts which are said to constitute an estoppel consist of the complainant receiving payment of interest through the Michigan Mortgage Company for some eight years, and recognizing the extension of time on the mortgage, made by the Michigan Mortgage Company, and accepting the interest coupons, made payable to the Michigan Mortgage Company, representing the interest to mature on the mortgage. As before stated, the fact that the interest was collected from time to time by the Michigan Mortgage Company was not sufficient to justify an inference of authority to receive payment without the surrender of the securities. We think the complainant had the same right to assume that the defendant was treating the Michigan Mortgage Company as his agent as defendant had to assume that the company represented complainant. The coupons were payable at the office of Walker, subsequently the mortgage company’s office, and it was the duty of complainant to seek the money there, as it was the duty of the defendant to provide for the money to make the payment at that place, through some one who had authority to act. We are satisfied from complainant’s evidence that he knew nothing of the proposition to extend the time until the Michigan Mortgage Company came to him, proposing either to pay the mortgage or extend it, and giving him the option to do so, and in this transaction the coupons being payable to the Michigan Mortgage Company or bearer was no notice to complainant that the company had assumed authority to represent him in the transaction, nor was that inference any more justifiable than that the mortgagor had placed these securities with'the Michigan Mortgage Company, to be used in his behalf if the agreement for extension should be perfected. We think the elements of an estoppel are wanting. The case, is a hard one, in which one of two honest parties must suffer through the rascality of a third, but we are unable to see in what respect the complainant has been guilty of any act which ought to estop him from relying upon Ms ownership and possession of the securities, and from insisting upon payment.

The decree will be reversed, and a decree of foreclosure entered in favor of complainant, with costs against the defendant Lathrop.

The other Justices concurred.


author: McGrath,. C. J.

text:
    The Gypsum Plaster & Stucco Company and Herbert R. Gill v. Allen C. Adsit, Circuit Judge of Kent County.

      Mandamus — Appointment of receiver.

    1. To warrant interference by mandamus witb tbe decision of á circuit judge confirming tbe appointment of a receiver upon a motion to vacate tbe same, it is necessary for tbe moving party to show some overwhelming objection in point of propriety or some fatal objection upon principle to tbe person named.
    2. A large judgment creditor, who was also a stockholder, was appointed receiver of a corporation, witb knowledge on the part of tbe circuit judge of these facts. The president of the corporation and another large judgment creditor filed a petition for tbe appointment. Upon a motion to vacate tbe appointment, made after tbe receiver bad been acting under it for three months, tbe court reconsidered all matters pertaining thereto, and confirmed tbe appointment as made, and in bis return to an order to show cause why the order of appointment and confirmation should not be vacated the circuit judge referred approvingly to tbe conduct of tbe receiver. And it is held that the court below seems to have given tbe matter full consideration; that there has been no abuse of discretion in respect to the appointment, and a mandamus is denied.

      Mandamus.

    Argued April 16, 1895.
    Denied May 28, 1895.
    Relators applied for mandamus to compel respondent to vacate an order appointing a receiver for the relator company. The facts are stated in the opinion.

      Fletcher & Wanty, for relators.

      Taggart, Kñappen & Demson, for respondent.
   McGrath,. C. J.

The facts and circumstances of this case justified the appointment of a receiver. It appears that the person appointed as receiver was, at the time, a large judgment creditor, and also a large stockholder. These facts were known to the court at the time of the appointment.' The president of the company and another person who held a large judgment against the company filed a petition for the appointment. The property is largely incümbered, and the object of the receiver seems to be to protect from sacrifice upon foreclosure proceedings already instituted. The. court upon the motion to vacate the appointment has reconsidered all matters pertaining to such appointment, and confirmed the appointment made. To warrant us in interfering with the decision of the circuit judge, it is necessary to show some overwhelming objection in point of propriety or some fatal objection upon principle to the person named. High, Rec. § 65. The books contain a number of decisions where, by reason of the experience with the receiver subsequent to his appointment, the courts have confirmed the appointment, and have at the same time intimated that upon principle the original appointment was questionable. The receiver had been acting for three months when the motion to vacate was made, and in the return his course of conduct is referred to approvingly. The court below seems to have given the matter full consideration, and we are satisfied that there has been no-abuse of discretion in respect to the appointment.

The writ must therefore be denied.

The other Justices concurred.


author:
Montgomery, J.
      Hooker, J.

text:
    Edwin F. Pratt v. Frank D. M. Davis, Circuit Judge of Montcalm County.

      Pleading — Amendment—Statute of limitations.

    1. An amendment of a declaration which introduces a new cause of action cannot be permitted after the statute of limitations has run against the cause of action so sought to be set up; citing Gorman v. Circuit Judge, 27 Mich. 138; Nugent v. Circuit Judge, 93 Id. 462.
    2. Where the amendment does not introduce a new cause of action, the running of the statute of limitations is arrested at the date of the institution of the suit; citing 1 Ene. PI. & Pr. 621.
    8. The declaration in a personal injury case averred that the injury was received by reason of the failure of the defendants to provide plaintiff a safe place in which to work, and set out at considerable length the facts relied upon to make a case. And it is held that an amendment alleging that, in the performance of all the matters aforesaid, plaintiff was in the exercise of due care, and did not in any way contribute to any of the injuries thereinbefore and thereinafter stated, and that he was, on the day and year aforesaid, while in the exercise of due care, caution, and prudence, injured, etc., does not introduce a new cause of action.

      Mandamus.

    Argued April 16, 1895.
    Denied May 28, 1895.
    Relator applied for mandamus to compel respondent to vacate an order denying an amendment of plaintiff’» declaration. The facts are stated in the opinion.

      Atlcinson & Wolcott, for relator.

      Lewis & Whittlesey and 8. F. Keivnedy, for respondent.
   Montgomery, J.

The relator commenced suit by summons against Allan McComber and John J. Bale, on the 7th of June, 1893, and subsequently filed a declaration alleging that an injury resulted to plaintiff while in the employ of the defendants, by reason of the failure of the defendants to provide plaintiff a safe place to work. The declaration set out the facts relied upon at considerable length, but was thought by plaintiff’s attorneys to be faulty, and an application was made to amend by inserting an averment, as follows:

“And the plaintiff alleges that, in thie performance of all the matters aforesaid, he was in the exercise of due care, and did not in any way contribute to any of the injuries hereinbefore and hereinafter stated.”

And, in another place:

“Arid the plaintiff was, on the day and year aforesaid, while in the exercise of due care, caution, and prudence, injured,” etc.

The circuit judge denied the application, and, after moving to vacate the order, relator applied to this Court for a mandamus to require the respondent to vacate the later order, and enter an order permitting an amendment.

It is evident from the circuit judge’s return that the chief reason for denying the motion was that the plaintiff’s cause of action, if commenced at the time of the proposed amendment, would have been barred by the statute of limitations, and that the proposed amendment stated a new cause of action, and that, therefore, it was beyond the power of the respondent to permit the amendment. It has been held in a number of cases; that an amendment introducing a new cause of action cannot be permitted after the statute of limitations has run against the cause of action so sought to be set up. Gorman v. Circuit Judge, 27 Mich. 138; Nugent v. Circuit Judge, 93 Id. 462, and cases cited. But in the present case the amendment does not, in our judgment, introduce a new cause of action. The declaration, as amended, relates to precisely the same state of facts, and no new theory is evolved by the proposed amendments, which simply amplify the averments contained in the original declaration by statements in no way inconsistent with those originally set out. It is a question of acknowledged difficulty to ascertain in just what cases an amendment may be said to set out a new cause ,of action, but we think the result of the- authorities is well summarized in 1 Enc. PI. & Prac. 564, as follows:

“As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid, to meet the possible scope and varying phases of the testimony.”

See, also, Wood v. Circuit Judge, 84 Mich. 521; Abbott v. Circuit Judge, 55 Id. 410; Randall v. Circuit Judge, 96 Id. 284. And, where the amendment does not introduce a new cause of action, the running of the statute of limitations is arrested at the date of the institution of the suit. See 1 Enc. PI. & Prac. 621.

But, inasmuch as the circuit judge returns that his determination was reached upon consideration of. other questions, we are not authorized to interfere with his discretion.

The writ will be denied.

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

Hooker, J.

I agree with my Brother Montgomery that

the amendments asked by the relator were such as might have been granted, and that there was no room for the application' of the statute of limitations. I am also of the opinion that the relator is not entitled to the writ of mandamus. The question of amendment is one wholly within the discretion of the trial court. How. Stat. § 7631 et seq.; Detroit, Hillsdale & Indiana R. R. Co. v. Forbes, 30 Mich. 165; Polhemus v. Bank, 27 Id. 44; King v. Circuit Judge, 41 Id. 727. This being conceded, the detei*minatio'n of the circuit judge is not subject to review, except in cases of abuse of discretion, or where it results in depriving a party of a right of action, in either of which cases it has been held to be reviewable upon error. See Pangborn v. Insurance Co., 67 Mich. 683; Browne v. Moore, 32 Id. 254. Until recently, these questions have been raised after judgment upon, error. Thus, in Ripley v. Davis, 15 Mich. 82, the Court held that the refusal of the circuit judge to permit the plea to be amended by the addition of a notice of the statute of limitations was a matter within the discretion of the court below “over which we have no power.” In Browne v. Moore, supra, the Court said:

“In giving leave to change the notice, or, rather, to substitute the notice finally permitted for that which was originally attached to the plea, the court exercised a discretion, and such exercise coiild only be re-examined on writ of error in case it should appear that the power was abused. Ripley v. Davis, 15 Mich. 75; Final v. Backus, 18 Id. 218; Tupper v. Kilduff, 26 Id. 394; Polhemus v. Bank, 27 Id. 44.”

But it is urged that there is room to believe that the circuit judge-based his ruling upon a mistaken opinion of the law, and that therefore he should be set right, when, if he had simply made the ruling without comment, it would have been, in the language of Mr. Justice Martin, above quoted, a ruling or order “over which we have no power.” This is introducing the doctrine that the power to review a discretionary ruling depends upon whether it can be said that the judge gave a bad reason Tor the ruling or not. If the ruling was unjust, it is pretty certain that it is based on a bad reason, whether the judge has chosen to state it or not. As an abstract proposition, the wrong should be righted in one case as much as the other. Yet all admit that it cannot be in the one case where the reason is not given, and in my opinion it should not be in either, the reason being the rule of law that it is a matter resting, in a discretion confided, to the trial court over which we have no control. Authorities are numerous to the effect that the discretion is not reviewable. Merrill, Mand. § 82, says;

“When a subordinate body is vested with power to determine a question of fact, the duty is judicial, and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what that «decision ought to be.”

See, also, sections 110, 212.

The authorities are to the effect that the court will not inquire into such matters, except in the instances heretofore mentioned, which will be adverted to later. Id. § 37, and cases cited in note 5. The case of Polhemus v. Bank, supra, is instructive in this connection. The question arose upon writ of error. In that case, as in this, The court denied a motion to amend a notice by adding an. affidavit denying the execution of a note sued upon for- the reason that he erroneously supposed that he lacked the power. Mr. Justice Graves reviewed the question at length, and so fully covers the question that it need not be repeated here. His reasoning, and the numerous authorities cited, seem conclusive of the question.

If it be said that interlocutory orders such as this may go to the entire cause of action, the answer is that under the case of Pangborn v. Insurance Co., 67 Mich. 683, the Court may review such question upon writ of error, and hence, under a familiar rule, mandamus cannot be resorted to, for the reason that another adequate remedy exists. Merrill, Mand. § 201, and cases cited; Welch v. Hull, 73 Mich. 47. The same may be said of questions involving abuse of discretion. They may be corrected upon writ of error, and there can seldom be occasion to interrupt the proceedings in trial courts to review interlocutory matters. It is productive of delay in the trial courts, and involves the review of a multitude of questions, a large proportion of which would be likely to be satisfactorily disposed of by the outcome of the trials. The practice is contrary to the settled precedents in England and many of the American states, and it may be doubted if the extension of proceedings by mandamus, so earnestly advocated by some as a speedy and cheap method of accomplishing justice, is desirable after all. The experience of the distinguished jurists and advocates to whom we are indebted for the common law is to the contrary, as evinced by the rules of the common law upon the subject.

We are cited to the case of Wood v. Circuit Judge, 84 Mich. 523, as a case upon all fours with this. It must be admitted that in that case a writ of mandamus issued to compel the circuit judge to permit an amendment which he had denied. It was a case, however, where this Court determined that the circuit judge had denied the amendment because not within his power, and it seems, to be at variance with the case of Polhemus v. Bank to the extent that it reviews a question of discretion where it expressly appears that the circuit court declined to exercise his discretion because of a supposed want of power; but it does no more than to sustain the right of review in such cases where the right of action would otherwise be lost, and, as already shown, is the only case that has recognized the remedy by mandamus. The better remedy would seem to have been error, as, under the rule in Pangborn v. Insurance Co., that would have afforded a complete and adequate remedy; but there is nothing to indicate that the question was raised, or that any objection was made to the disposition of the question upon mandamus, if it should be held to be reviewable.

But, whatever we may think of the question of the remedy by mandamus, in my opinion it does not exist where the record fails to show that the judge has not exercised, or that he has abused, his discretion. Where it clearly appears that a denial of amendment is based solely on the want of power, if the matter is reviewable at all it should be upqn the ground that the court had not exercised its discretion, but had expressly refused to do so because it had no power. Even this is at variance with most of the cases. In the present case the court denied the motion. He expressed the opinion that he .had not the power because it would be the introduction of a new cause of action. But he also put it upon the ground of plaintiff’s laches, which he might properly do if, in his judgment, he thought it just. Minnock v. Insurance Co., 90 Mich. 236. It is, therefore, impossible to review the question without examining into the propriety of discretionary action, which, with the single exception of the case of Pangborn v. Insurance Co., the decisions of this State declare cannot be done, either by mandamus or upon writ of error, except in cases of plain abuse. Benedict v. Thompson, 2 Doug. 299; Baker v. Pierson, 5 Mich. 456; Duncan v. Campau, 15 Id. 415; Demaray v. Little, 17 Id. 386; Boinay v. Coats, 17 Id. 411; McGee v. McDonald Estate, 66 Id. 628; In re Lantis, 9 Id. 324; Farrell v. Taylor, 12 Id. 113; Mitchell v. Shuert, 16 Id. 444; Hewitt v. Circuit Judge, 44 Id. 153; Pettibone v. Maclem, 45 Id. 381; Smith v. Hubbard, 46 Id. 306; Sager v. Shutts, 53 Id. 116; Mills v. McLeod, 94 Id. 627; Bussey v. Bussey, 71 Id. 504; Nelson v. Mining Co., 65 Id. 288; Graham v. Myers, 67 Id. 277; Wiest v. Luyendyk, 73 Id. 661; Minnock v. Insurance Co., 90 Id. 236; Winklemeir v. Daiber, 92 Id. 621.

I think the writ should be denied.


author: Hooker, J.

text:
    Marcus D. Elliott v. Joseph Martin.

      Inn-Tceeper’s lien — Board of horse.

    1. An hotel keeper has no inn-keeper’s lien for the board of a horse' received and kept under an express agreement with one not a guest to board the animal.
    2. Nor will a lien attach under How. Stat. § 8399, which provides that whenever any person shall deliver to any person any horse, etc., to be kept or cared for, such person shall have a lien thereon'for the keeping and care of said animal, and may retain possession- of the same until such charges are paid, where one not the 'owner delivers a horse to an hotel keeper under an express agreement for its board, 'unless the authority, of such person from the owner of the horse to make such agreement is shown.
    Error to Shiawassee. (Wisner, J.)
    Submitted on briefs April 19, 1895.
    Decided May 28, 1895.
    Replevin. Plaintiff brings, error.'
    Reversed.
    The facts are stated in the opinion.

      John T. McCurdy, for appellant.

      Albert L. Chandler,' for defendant.
   Hooker, J.

The plaintiff, being the owner of a stallion, put him into the possession of one Wilkinson, a horse trainer, at the same time-taking back a promise to pay $5 per month until $100 should be paid to the plaintiff, .which plaintiff testified was to pay for a half interest in -the horse, which he agreed to sell him. The •writing stated that $100 was part payment for the horse, the title and right of possession to remain in the plaintiff until the sum should be fully paid. Wilkinson took the horse to the bam of the defendant, who was a hotel keeper, and arranged for its board at $1.75 per week, 'Wilkinson to care for the horse. ' He was kept there two weeks, during which time Wilkinson was hoarding at a Mr. Clark’s. He was not a guest of the defendant at any time, or, at all events, if it can he claimed that he was, the fact was disputed, and therefore a question for the jury. At the .end of the two weeks he arranged with a Mr. Tucker to board the horse, and then went away. Tucker kept the horse until his feed gave out, and then took him to the defendant, and arranged to have him kept there for Wilkinson; the understanding being that the price should be 75 cents a day, and that one or both should write Wilkinson. Wilkinson, did not return, •and after some fourteen weeks the- plaintiff found .the horse at the defendant’s barn, and, upon refusal to surrender him, replevied him. The defendant pleaded the general issue, and upon the trial claimed a lien for the keeping of the horse.. The court directed a verdict for the defendant for the value of the keeping after the time that Mr. Tucker brought the horse there, but .said no recovery should be permitted for the two weeks that he was there upon the first occasion. Error is assigned upon the charge, and the only question before us is whether defendant had. a valid lien upon the horse for the keeping. . ..

Tucker was at no time, a guest at. the hotel. The defendant is not shown to have known the'true condition of the title to the horse, or that he did not suppose him to belong to Wilkinson. But the horse was not brought there by a guest, and, indeed, was taken under an express agreement to board. This gave him no right to an inn-keeper’s lien. This question has been discussed in the recent case of Taylor v. Downey, 104 Mich. 532, and need not be further considered here. See Grinnell v. Cook, 3 Hill, 485, and cases cited.

It is claimed that a lien existed under How. Stat. § 8399, which reads as follows:

“Whenever any person shall deliver to any mechanic, artisan, or tradesman any materials or articles for the purpose of constructing, in whole or in part, or completing any furniture, jewelry, implement, utensil, clothing, or other article of value, or shall deliver to any person any horse, mule, neat, cattle, sheep, or swine to be kept or cared for, such mechanic, artisan, tradesman, or Other person shall have a lien thereon for the just value of the labor and skill applied thereto by him, and for any materials which he may have furnished in the construction or completion thereof, and for the keeping and care of such animals, and may retain possession of the same until such charges are paid.”

Under this statute a lien would have attached if the horse had been taken to the defendant’s barn for keeping by the plaintiff’s direction. We think the evidence may have been sufficient to warrant the conclusion that plaintiff, being the owner of the legal title to the horse; authorized Wilkinson, the owner of an equitable half interest, to take the horse, for their mutual benefit, to keep and train, and that he thereby made him his agent, in the conduct of their mutual business, to the extent, at least, of getting the horse kept. But this was a question which should have been submitted to the jury, as the fact was not conclusively shown.

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

The other Justices concurred.


text:
    Robert T. Gibbons, Receiver, etc., v. Charles L. Hecox et al.

      Banker's lien — Note left for collection.

    1. The general rule derived from the adjudicated cases is that a bank has a lien on all moneys, notes, and funds of a customer in its possession, for any indebtedness of the customer to the bank which is due and unpaid.
    2. Among the assets which came to the possession of the receiver of a national bank upon hi® appointment, was a note for $2,000 owned by the bank, and not then due. The bank also held a note for $1,000, which the maker of the $2,000 note had left for collection. After the maturity of the $2,000' note, said maker, who was then financially irresponsible, assigned the $1,000 note to a third party, who brought suit upon the same. The receiver, in answer to a subpoena, produced the $1,000 note on the trial, and by permission of the court said maker indorsed it so as to make it payable to the order of the assignee. Judgment passed for the assignee, and the receiver filed a bill to establish a lien in favor of the bank upon the $1,000 note. And it is held that the bill, which was demurred to, and which charged the foregoing facts, sets out sufficient grounds for equitable relief.
    'Appeal from Montcalm. (Davis, J.)
    Argued April 19, 1895.
    Decided May 28, 1895.
    Bill to establish a banker’s lien. Complainant appeals.
    Decree reversed, and record remanded.
    The facts are stated in the opinion.

      John Lewis and Fletcher. & Wanty, for complainant.

      N. O. Griswold, for defendants.
   Long, J.

The complainant sets out in his bill:

“1. That he is receiver of the said City National Bank of Greenville, which is a corporation organized under an act of Congress known as the National Bank Act’ and acts amendatory thereof.
.“2. That said bank, being insolvent, suspended payment on or about the 22d day of June,. 1893; that your orator was appointed as receiver thereof by the Comptroller of the Currency on or about the 27th day of June, 1893; that he qualified as such receiver, and took possession of the bank books, records, and assets of said bank, on or about the 1st day of July, 1893, and ever since has been, and still is, acting as such rece’ver.
“3. That among the assets of said bank which came into the possession of your orator, as such receiver, was a nóte óf $2,000 made by the defendant Charles L. Hecox, under the name of C. Leander Hecox, of which note the following is a copy:
“$2,000. New Yoke, May 5,1893.
“Three mouths after date, I promise to pay to the order of Stanwood Mfg. Oo. two thousand dollars, at Mutual Bank; value received.
“O. Leander Hecox.”
“That said note belonged to said bank, and has, ever since your orator was appointed receiver of said bank, been in his possession and under his control as such receiver; that said note was indorsed in blank by the payee, the Stanwood Manufacturing Company, before its delivery to the said City National Bank of Greenville; that no payment whatever has ever been made upon the game, and that the defendant Hecox, the maker of said note, was at the time your orator was appointed such receiver, and ever since has been, and still is, financially irresponsible.
“4. That on or about the 23rd day of November, 1892, the defendant Charles L. Hecox left with the said bank for collection a note which then belonged to him, of which the following is a' copy:
“$1,000. Greenville, Michigan, September 27, 1892.' ’
“One year after date, I promise to pay to the order of Charles L. Hecox, one thousand dollars, at the City National Bank of Green-ville, Michigan; value received. Interest at 7 per cent. Due September 30, 1893.
[Signed] “R. F. Sprague.”
“And the note so left for collection was in the custody of said bank at the time it suspended payment, and at the time yqur orator was appointed its receiver as aforesaid; that the same remained in the custody of your orator, as. such receiver, until long after the maturity of the note mentioned above in paragraph 3, and is still in his possession.
“5. That on or about the 16th day of April, 1894, and while said note so signed by Rufus F. Sprague was still-in the possession of your orator, as such receiver, the defendant Charles L. Hecox made an assignment thereof-to the defendant Theodore I. Phelps; that on or about the 25th day of April, 1894, said Theodore I. Phelps began an action upon said nóte against the maker, Rufus F. Sprague, in the circuit court -for the coiinty of Montcalm, which -action came on to be tried in said court on the 27th day of July, 1894; that your orator was required, by a subpoena duces tecum issued out of said court, to appear at the trial of said cause, and produce said note; that he did appear in answer to said subpoena, and, in' obedience to the orders of the court, produced the said' note to be used in evidence, whereupon, on the trial, with • the permission of the judge presiding in said court, the defendant. Charles L. Hecox indorsed the said note in the following form: ‘Pay to T. I. Phelps dr order. Charles L. Hecox.’ That this was the first indorsement which had ever been made upon said note, which, until that' time, had remained to the order of Charles L. Hecox.
“6. That on the 27th day. of July, 1894, a judgment-was rendered in the said action in favor of the said Theodore I. Phelps against the said Rufus F. Sprague on said nóte for the sum of $1,128.30 ánd costs; that your orator, as the receiver of said bank, had a lien upon the said note' signed by Rufus F. Sprague, which was at the time it was left with the City National Bank of Greenville for collection,' and at tbe time tbe .$2,000 note wbicb was held by said bank against Charles L: Hecox matured, the property of the said Chárles Li Hecox, and that, as such receiver, he has a lien upon said judgment, or the money which may be collected upon, the same by the said Theodore I. Phelps', or any. other person; but the defend- ■ ants deny that your orator has any lien or claim upon . said note, or upon said judgment, or upon the moneys which may be collected on tbe same.
“7. To the end, therefore,, that the defendants may, if 1 they can, show why your -orator should not have the'-' relief hereby prayed, and may answer this bill without •' oath (their answers on oath being hereby waived), that your orator may be declared, as such receiver, to have a lien upon the said note signed by Rufus F. Sprague, and upon the judgment obtained thereon by the said Theodore I. Phelps, that the defendants may be decreed to account to your orator for said note and judgment, and anything which may have been or which may be collected thereon by either or any of the said defendants, and tliat your orator may have such other and further relief as the nature of the case may require,” etc.

The bill was demurred to as not stating a case for equitable relief, and dismissed in the court below.

It appears by the bill that the note of $1,000 was in the possession of the bank, and not assigned by Hecox to defendant Phelps, until after the $2,000 note became due, and that then Hecox was financially irresponsible. The only question raised is whether, under the circumstances, the bank had a lien on the $1,000 note belonging at that time to Hecox, by reason of his indebtedness to the bank on the $2,000 note. The claims run between the same parties, and are capable of being liquidated by calculation.

It is a general rule that the lien of the bank does ndt attach until some indebtedness is actually in existence, and matured. Thus, a bank holding a note of a depositor has no right of set-off, and no valid lien, before the note matures, so that it has been held that if, in the interval before the maturity, the depositor makes an assignment of his funds without the knowledge of the bank, but otherwise legal, the amount of his balance will pass to the assignee. Giles v. Perkins, 9 East, 12; 1 Morse, Banks, § 329. In Illinois and Missouri it is held that a bank has no lien on the funds of a depositor, tb apply them on a debt not yet due, and cannot retain them against a check holder. Bank v. Ritzinger, 20 Ill. App. 29; Bank v. Proctor, 98 Ill. 558; Zelle v. Institution, 4 Mo. App. 401. This rule, however, is at strict law, for in equity it Seems that where there is danger of insolvency the bank would be allowed to retain enough of the deposit to meet the note when due, though, it is said, in law the debt in futuro could not be set off against a debt in praesenti. The general rule derived from the ■cases is that the bank has a lien on all moneys, notes, and funds of a customer in its possession, for any indebtedness of the customer to the bank which is due and unpaid. The reason given for allowing the lien is that any credit which a bank gives by discounting notes or allowing an overdraft to be made is given on the faith that money or securities sufficient to pay the debt will come into the possession of the bank in the due course of future transactions. In Re Farnsworth, 5 Biss. 223, Judge Blodgett, of the United States circuit court of Illinois, held that a bank holding a customer’s demand note has a lien upon the proceeds, of drafts delivered to it for collection after the giving of the note, though collected after the filing of petition in bankruptcy, and can apply such proceeds upon the note. In Muench v. Bank, 11 Mo. App. 144, the court say:

“The general lien of bankers is part of the law merchant. That bankers have a lien on all money and funds of a depositor in their possession for the balance of the general account is undisputed. A banker’s lien does not arise on securities deposited with him for a special purpose; otherwise we have no doubt that when a discount has been made by the bank, and the note has matured, so as to create an indebtedness from the depositor to the bank, all funds of the depositor which the bank has at the date of the maturity of the discounted note, or which it afterward acquires in the course of business with him, may be applied to the discharge of his indebtedness to the bank; and this is true not only of the general deposit of the customer, but the rule applies to any commercial paper belonging to the depositor in his own right, and placed by him with the bank for collection.”

The bill sets out sufficient grounds for equitable relief, and the demurrer should have been overruled.

The decree of the court below will be reversed, and the cause remanded. Defendants will have 20 days after notice of the remittitur being filed in tbe circuit court to answer the bill, if they so desire, and in default a decree will be entered there in accordance with tbe prayer of tbe bill. Complainant will recover costs of this Court.

Tbe other Justices concurred.