text:
    N. & M. FRIEDMAN CO. v. ATLAS ASSURANCE CO.

    1. Fire Insurance — Fall of Insured Building — Cause—Evidence — Setting Aside Verdiot.
    In an action on a fire policy which provided that the insurance should terminate if the building should fall, except as the result of fire, evidence examined, and held not only to warrant a finding by the jury that the fall of the building was caused by fire, but to preclude the setting aside of such finding as against the weight of the evidence.
    2. Same — Appeal—Harmless Error.
    In an action on a fire policy providing that the insurer should not be liable for any loss caused by explosion unless fire should ensue, and then only for the damage by fire,.and that the liability of the company should cease if the building should fall, except as the result of fire, the jury found the company liable for its stipulated proportion of the total loss. Held, that as this finding necessarily involved a determination that the fall of the building was caused by fire, and not by an explosion, error, if any, in submitting to the jury the question of whether the building fell as the result of an explosion, as well as in admitting testimony as to the proportion of the loss caused by fire, on the assumption that there had been an explosion, was harmless.
    3. Same — Burden of Proof,
    A provision in a fire policy that if the building containing the insured property should fall, except as the result of fire, the insurance should immediately cease, was a condition subsequent, so that in an action oh such policy to recover for the destruction of the property by fire, in which it appeared that the building fell, the burden was on the insurer to prove, as a defense, that it fell from some other cause than fire.
    4. Evidence — Expert Testimony.
    A hypothetical question detailing the method adopted to remodel and improve the interior of a building, and asking if witness thought such construction safe, was not objectionable as not a proper subject for expert testimony.
    5. Same — Appeal—Objections.
    Where a hypothetical question was objected to below merely on the ground that it did not state facts sufficient to enable the witness to give an intelligent opinion, and that it was not a proper subject for expert testimony, an objection that it omitted certain facts which should have been stated, and assumed some facts not proved, could-not be raised on appeal.
    6. Same — Cause op Fall op Building.
    Upon an issue as to whether the fall of an insured building was caused by fire, in which there was evidence that fire was seen to issue from the building prior to its fall, and that the construction of the building was safe, expert testimony by contractors and builders that a fire which burned off the ceiling or floor joists would occasion the fall of the building in the manner in which it fell was not objectionable as assuming facts not in evidence.
    7. Same.
    The matter was a proper subject for expert testimony.
    Error to Kent; Perkins, J.
    Submitted January 16, 1903.
    (Docket No. 54.)
    Decided May 13, 1903.

      Assumpsit by the N. & M. Friedman Company against the Atlas Assurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      'Crane, Norris & Drew (Russell C. Ostrander, of ■counsel), for appellant.

      Knappen, Kleinhans & Knappen, G. A. Wolf, and ■J. H. Totem, for appellee.

       Rehearing denied June 23, 1903.

   Carpenter, J.

In the court below, plaintiff recovered & verdict and judgment against the defendant for loss under an insurance policy. This policy was a Michigan standard policy. It bore date August 31, 1900, and, for the term of one year from September 10, 1900, insured plaintiff, to an amount not exceeding $2,000, on its stock of merchandise, situated at Nos. 70 and 72 Monroe street, Grand Rapids, Mich. The policy contained these clauses:

“Other concurrent insurance permitted.”
“This company shall not be liable under this policy for a greater proportion of any loss on the described property * * * than the amount hereby insured shall bear to the whole insurance.”
“This company shall not be liable for loss caused directly or indirectly by invasion, * * * or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind.”
“If a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.”

At 10 minutes to 2 on the morning of July 18, 1901, about half of the building which contained plaintiff’s stock of goods fell to the ground. The larger portion of the stock was carried with it. At 3 o’clock it was discovered that the ruins were on fire, and the fire thus discovered consumed practically all the stock insured. Plaintiff had other insurance upon the property destroyed, which, together with that of the defendant, amounted to $100,000, so that defendant, under the terms of its policy, was liable for one-fiftieth of the loss covered by the policy.

Upon the trial in the court below, plaintiff insisted that the fall of the building was caused* by fire. Defendant denied this. This issue was submitted to the jury. Plaintiff also insisted that'the evidence warranted the jury in finding that the building fell in consequence of an explosion not directly caused by fire, and that, if they did so find, defendant would be responsible for its proportion of so much of the destruction of goods as was caused by the-subsequent fire, which, according to plaintiff’s testimony, would be about 95 per cent, of the total loss. Defendant denied that the evidence warranted any such finding. This issue was submitted to the jury. The court charged the jury that, it being conceded that the stock was destroyed by fire, the burden rested upon the defendant to prove that the building fell from some other cause than fire. The jury rendered a verdict for $1,982.55, which was one-fiftieth of the plaintiff’s total loss.

Defendant asks a reversal of the judgment on these grounds:

(1) That there was no evidence from which the jury could find that the fall of the building was caused by fire.
(2) That their finding that it' was so caused was so against the weight of the evidence that it should be set aside.
(3) That the evidence did not warrant submitting to the jury the question of whether the fall of the building was caused by an explosion.
(4) That the court erred in charging that the burden of proof rested upon the defendant to show that fire did not cause the building to fall.
(5) That the court erred in admitting in evidence certain expert testimony.

We will proceed to discuss each of these questions.

1: Did the evidence warrant the jury in finding that the fall of the building was caused by fire ?
2. Was their finding that it was so caused against the weight of the evidence ?

These questions are so related that they will be considered together.

It may be taken as established by the testimony that immediately after the building fell, and for more than an hour thereafter, there was no appearance of fire in or about the ruins. There was no flame or smoke arising from the debris. No charred timbers or embers were visible. It appears, too, that plaintiff had been remodeling and improving the interior of its store, and had cut into and removed some of the partition walls in such a way as to afford evidence that it had thereby weakened the building. If we looked at these circumstances alone, the inference that fire did not cause the building to fall would be very strong. On the other hand, plaintiff produced before the jury no less than six witnesses who testified that, before the building fell, they saw a flame of fire — - some of them spoke of it as a red sheet of flame — shoot up from the top of the building. Defendant -insists that this testimony should be disregarded, for several reasons:

(а) That it is inconsistent with the testimony of other observers. It is true that this testimony is not in accord with that of several witnesses for the defendant. It may be said, however, that, of the witnesses who gave opposing testimony, only three were in a position to have observed this flame, had it been visible as plaintiff’s witnesses testify.
(б) That this testimony is inconsistent with the fact that the ruins showed no appearance of fire for more than an hour. There is- testimony tending to prove that the contents of the building were covered, after it fell, by mortar and brick. It is the theory of the plaintiff that the fire which occasioned the fall of the building was thus retarded and concealed for more than an hour after the building fell. This court cannot say that that theory was unsound, especially as there were placed before the jury instances where fire was concealed for some hours under conditions somewhat similar.
(c) That the fire which these witnesses described did not. come from the top of the building before it fell, but 'was the flash occasioned by the building itself, during its fall, striking the electric-light wires. We cannot accept this hypothesis without discrediting the testimony of the witnesses. They say it did come from the top of the building, and that it did precede the fall, and several of them testify that they saw these electric-light flashes after theyr saw the blaze shoot, from the top of the building.
(d) That the witnesses who gave this testimony should not be believed, for various reasons: That several of them could not have seen this blaze from their location. This does not so clearly appear that we are authorized to accept this argument. One of them, who was traveling on the street, attempts to locate his position, and says he was “about” at a certain .point. Granting it to be true that, if he had been exactly at that point, he could not haATe seen, we have no right, in examining his testimony, to believe, when he said “about,” that he meant to be exact, — particularly when, as a result, it leads to our discrediting his entire testimony.
(e) It is said that some of these witnesses should be discredited because some of their testimony is contradictory or inconsistent with former statements. If this were true of all of plaintiff’s witnesses, it would present a strong argument in favor of setting aside the verdict because against the weight of the testimony. But it is not true of all of them.

It is our judgment, therefore, .that not only was there evidence upon this issue to submit to the jury, but that their verdict thereon should not be set aside because it Avas against the Aveight of the evidence.

3. Did the evidence warrant the court in submitting to the jury plaintiff’s claim that the building fell in consequence of an explosion ? In our judgment, we need not discuss this question. The verdict- of the jury was for one-fiftieth of the entire amount, and not for one-fiftieth .of a smaller amount, as it Avould have been had they found that the building fell because of an explosion. In other words, the amount of the verdict proves that the jury found that the building fell in consequence of fire.

4. Did the court err in charging the jury that, plaintiff’s stock having been destroyed by fire, the burden of proving that the fall of the building was not occasioned by fire was thereby transferred to defendant ? This precise question was adjudicated in Western Assurance Co. v. J. H. Mohlman Co., 28 C. C. A. 157, 83 Fed. 811, 40 L. R. A. 561. The policy in that case was exactly like the policy before us, except in amount, name of insured, and description of property. It appears from the statement of facts that the insurance covered a stock of groceries and merchandise “while contained in brick building Nos. 38-40 North Moore street and 156 Franklin street. On April 30, 1895, the property insured was destroyed by fire. At or about the time of the fire the building fell, and the issue of fact in the .case was whether the fall preceded the fire, or was itself the result of the fire. Upon this issue the-testimony was conflicting, and the verdict of the jury was adverse to the insurance company.” The opinion in the case, written by Circuit Judge Lacombe, and concurred in by his associates, Circuit Judge Shipman and Mr. Justice Peckham, of the Supreme Court of the United States, is so applicable to this case, and so instructive in its reasoning and discussion of authorities, that we quote at length therefrom:

“The trial judge charged the jury that the burden of proof rested upon the defendant (the insurance company) to show, by a preponderance of evidence, that ‘the fall preceded the fire; ’ that ‘ this building did not fall as the result of fire.’ Exceptions to the charge, and to refusals to charge the converse of this proposition, sufficiently present the question of the correctness of this ruling. It will not be necessary to repeat the text either of the charge or of the requests. The trial judge construed the clause referring to a fall of the building as a proviso or condition subsequent, defeating any claim of the insured. If it be such, no one here disputes the proposition that the burden of proving the happening of the subsequent condition would rest upon the insurer. The defendant, however, contends that the clause is an exception to the general liability assumed by the insurance company, and that, therefore, it was for the insured to show that the loss did not come within the terms of the exception.
“The general rule is well expressed by Earl, J., in Slocovich v. Insurance Company, 108 N. Y. 56 (14 N. E. 802):
“ ‘Where there is an. insurance against a loss by fire, and it is proved or admitted that the property insured has been destroyed by fire, the loss is brought literally and exactly within the terms of the policy. If, in such a case, the insurance company claims to be exempt from paying the sum insured, because there has been a breach of some condition contained in the policy, or the violation of some obligation or duty imposed upon the insured by the law or contract, the burden rests upon it to establish the facts which it thus relies upon as a defense to the claim under the policy.’
‘ ‘ The diligence of counsel has presented a long array of authorities bearing upon this assignment of error. The question has been expressly decided in accordance with defendant’s contention in Pelican Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225 (13 S. W. 980), and Phœnix Ins. Co. v. Boren, 83 Tex. 97 (18 S. W. 484), and in accordance with plaintiff’s contention in Transatlantic Fire-Ins. Co. v. Bamberger, (Ky.) 11 S. W. 595, in Blasingame v. Insurance Co., 75 Cal. 633 (17 Pac. 925), and in Insurance Co. v. Crunk, 91 Tenn. 376 (23 S. W. 140).
“In the Texas case the policy contained the following provisions:
“ ‘(1) This company shall not be liable for any loss or damage by fire caused by means of hurricane.
“ ‘(2) If the building shall fall, except as the result of fire, all insurance of this company on it or its contents shall immediately cease and determine.’
“The fire occurred during or immediately following a severe hurricane, which at least partially blew the house down, and there was evidence tending strongly to show that the fire had its origin in the breaking of a lamp by falling timbers. The court held:
“ ‘The provisions of the policy above noticed are exceptions to the general liability assumed by appellant, and the petition should have averred that the fire did not occur from one of the excepted causes. This was necessary to show a cause of action, for the company did not insure against loss resulting from a fire caused by a hurricane, nor were its policies binding at all for a loss caused by fire occurring after the fall of the house, unless the fall was caused by fire.’
“ In the Kentucky case the policy contained this clause:
“ ‘This company shall not be liable under this policy for loss and damage if the building herein described, or any part thereof, fall, except as the result of fire.’
“The jury were instructed that defendant was not liable for any loss or damage, if the building fell, unless the fall was the result of fire, and that:
“ ‘ The burden is upon the defendant to show by the evidence that the building, or such part thereof as fell, * * * did not fall as the result of fire; and unless the jury believe from the evidence that the said building, or such part thereof as fell, did not fall as the result of fire, they should find for the plaintiffs.’
“These instructions were approved by the appellate court.
“In the California case the policy provided that the company should not be liable for ‘ loss caused by the falling of any building insured or containing property insured by this policy, or by fire ensuing therefrom.’ The complainant alleged that all of the property was totally destroyed by fire, but it was not alleged that the loss was not caused by any of the excepted causes. The complaint was demurred to on the ground that it contained no such allegation, and the demurrer was overruled. On appeal the supreme court sustained the judgment overruling the demurrer, saying:
“ ‘One seeking to recover on an insurance policy must aver the loss, and show that it occurred by reason of a peril insured against; but he need not aver the performance of conditions subsequent, nor negative prohibited acts, nor deny that the loss occurred from the excepted risks. ’
“In the Tennessee case the policy provided that:
“‘If the building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.’
“The defendant demurred on the ground that there was no averment in the declaration that the building insured, or any part thereof, did not fall except as the result of fire. The demurrer was overruled, and the supreme court, affirming such decision, says:
" ‘It is not necessary that it should have averred the performance or nonperformance of conditions subsequent, nor to have negatived prohibited acts or excepted risks.’
“The burden of proof has been held to rest upon the defendant under other similar clauses of fire policies; i. e., clauses restricting in some way the liability of the insurer. So, where it was provided that the policy should be void in the event of the insured effecting additional insurance (Clark v. Insurance Co., 9 Gray, 148; Russell v. Insurance Co., 84 Iowa, 93 [50 N. W. 546]); also where it is provided that the policy should be void if the property was allowed to remain vacant beyond a limited time (Bittinger v. Insurance Co., 24 Fed. 549); where there was a provision that the policy was executed by the agent and delivered to the insured upon the condition that it should not become effective until it was approved by the home office (Young v. Insurance Co., 59 Conn. 41 [22 Atl. 32]); and where it was provided that the company should not be liable to make good any loss or damage by fire which might happen or take place by means of any invasion, insurrection, etc. (Portsmouth Ins. Co. v. Reynolds, 32 Grrat. 613).
‘ ‘ A clause to the effect that the insurer should not be answerable for loss by fire which should happen by any explosion is referred to in two cases cited by defendant (Hayward v. Insurance Co., 7 Bosw. 385, 2 Abb. Dec. 349, and St. John v. Insurance Co., 1 Duer, 371, 11 N. Y. 516) as ‘an exception to the general language of the previous clause, by which they promise to make good such loss or damage as shall be occasioned by fire.’ But the point here raised was not before the court. It was conceded in both cases that the fire was the result of an explosion, and the word ‘ exception ’ is used in the opinions evidently not in its technical sense, as contrasted with ‘ conditions,’ but as a convenient way of expressing the fact that the insurer under such a policy would not be liable for all losses by fire. This seems clearly indicated by the sentence from 11 N. Y. 518:
“ ‘ Hence a loss occasioned by invasion, insurrection, riot, and the like, has usually been found excepted in such policies; and, although in this, and perhaps in policies generally, the exception in this respect is in terms of losses by fire, the clause would be equally definite and intelligible if those words were omitted in the clause stating the exception.’
“The academic distinction between an exception and a proviso is thus stated in Bouvier, Law Diet.:
“ ‘An exception exempts absolutely from the operation of an engagement or an enactment; a proviso defeats their operation conditionally. An exception takes out of an engagement or enactment something which would otherwise be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse.’
“ It may not be always easy to apply this distinction in practice (witness the conflicting decisions supra), but no especial help to the solution of the problem is to be derived from cases holding, as do some of those cited on the brief, that, when the insurance is against ‘perils of the sea,’ the burden is upon the insured to show that such perils caused the loss; or that where insurers engage to be responsible for partial loss only if it amounts to five per cent., or the ship be stranded, the insured must show loss to the specified percentage, or that the ship was stranded; nor that, under bills of lading providing that the carrier should not be liable for loss by fire while in transit, plaintiff, if he seeks to recover for a fire resulting from the carrier’s negligence, must show that negligence affirmatively; nor that, .under a policy insuring against injuries effected through external, violent, and accidental means, the burden is upon the plaintiff to show from all the evidence that the death was caused by external, violent, and accidental means. Baker v. Insurance Co., 12 Gray, 603; Paddock v. Insurance Co., 104 Mass. 521; Union Ins. Co. v. Shaw, 2 Dill. 14 (Fed. Cas. No. 14,366); The Neptune, 6 Blatchf. 193 (Fed. Cas. No. 10,118); Whitworth v. Railway Co., 87 N. Y. 413; Kaiser v. Latimer, 9 App. Div. 37 (41 N. Y. Supp. 94); Claflin v. Meyer, 75 N. Y. 260 (31 Am. Rep. 467); Lamb v. Transportation Co., 46 N. Y. 271 (7 Am. Rep. 327); Travellers’ Ins. Co. v. McConkey, 127 U. S. 661 (8 Sup. Ct. 1360).
“A pertinent case cited on the brief of plaintiff in error is Sohier v. Insurance Co., 11 Allen, 336. The policy in that case insured Sohier, in the language of the opinion,—
“ 'Against loss or damage by fire to the amount of $2,500 on his bride and slated building known as the “National Theater,” situate on Portland street, Boston, Mass. This policy not to cover any loss or damage' by fire which may originate in the theater proper.’
‘ ‘ Some provisos against liability for loss by fire which happens by invasion, riot, and the like, are in a later part of the policy. The clause in italics is written in the policy, the rest of the parts quoted being printed. The opinion proceeds (the italics infra being our own):
“1 The first question raised by the bill of exceptions is whether the burden of proof was on the plaintiff to show a loss by fire which did not originate in the theater proper. This depends upon the construction given to the clause, ‘ ‘ This policy not to coyer any loss or damage by fire which may originate in the theater proper.” If that clause can be regarded as a proviso, — that is, a stipulation added to the principal contract, to avoid the defendants’ promise by way of defeasance or excuse, — then it is for the defendants to plead it in defense and support it by evidence; but if, on the other hand, it is an exception, so that the promise is only to perform what remains after the part excepted is taken away, then the plaintiff must negative the exception to establish a cause of action. It is not always easy to determine to which, class — whether of provisos or exceptions — a particular stipulation belongs; and this one is certainly very near the line. But, after a careful consideration, the court are of opinion that this was an exception to the subject of the contract; that it put the burden of proof on the plaintiff. * * * The qualification of the contract to which the parties agreed is not inserted with any technical formality or precision. But it is found between the statement of what is insured and the promise to pay in case of loss, in close connection with, and qualification of, the description of the subject-matter of the insurance. The provisos are set forth together in a different part of the instrument. It thus seems to be a direct limitation of the risk against which insurance is effected. The difference would only be a formal one, if, instead of the phraseology actually used, the language of the policy had been, “do insure against loss or damage by fire not originating in the theater proper.” It would illustrate the operation of the phrase in question, and show its effect as an exception, if we suppose it applied to the building insured. If the clause in the policy had been, ‘ ‘ This policy not to cover any loss or damage by fire to the part of the building used as a theater proper,” * * * this would manifestly have been an exception from the subject-matter of the insurance. And it is in like manner an exception to the risks taken by defendants, when, in the same part of the policy in which they insure the risk of fire, and in the same connection, they state, in substance, that it is only fire which does not originate in the theater proper against which they insure.’
“A similar question has been before the courts in actions upon policies of life insurance, where the contract sued upon contained a clause that it was to be void if insured died of a disease induced or aggravated by intemperance, or was to be null and void if he should die in, or in consequence of, a duel, or in violation of the laws of any nation, state, or province, or where the clause read, ‘The self-destruction of the person [insured], whether voluntary or involuntary, and whether he be sane or insane at the time, is not a risk assumed by the company in the contract.’ In each of these cases it was held that the clause contained a condition, and that it was for defendant to show its breach by a fair preponderance of proof. Van Valkenburgh v. Insurance Co., 70 N. Y. 605; Murray v. Insurance Co., 85 N. Y. 236; Goldschmidt v. Insurance Co., 110 N. Y. 628 (17 N. E. 871). And a similar rule of construction has been applied in cases of accident insurance, where the contract provided that the insurance should not extend to cover accidental injuries or death caused by fighting or voluntary exposure to unnecessary danger, nor while the insured was under the influence of intoxicating drinks. See Jones v. Accident Ass'n, 92 Iowa, 652 (61 N. W. 485), where the court says:
“ ‘Not one of these conditions was to happen prior to the time the contract between the assured and the company should become binding. * * * The situation, then, is this: That there was a valid contract of insurance when the policy issued, but it might thereafter, upon the happening of some of these conditions, cease to be enforceable. * * * They were each and all matters of defense available to the defendant, but, not constituting a part of the plaintiff’s case, the burden did not rest upon him either to plead or prove the absence of them in the first instance.’
“And in Coburn v. Insurance Co., 145 Mass. 226 (13 N. E. 604), where there was a similar ruling, the court uses this language:
“ ‘Stipulations added to a principal contract, which are intended to avoid the defendant’s promise by way of defeasance or excuse, must be pleaded in defense, and must be sustained by evidence. They are in the nature of provisos. Exceptions, which leave the defendant liable to perform that which remains after the part excepted is taken away, are to be negatived.’
“ Some remarks of the court in Freeman v. Insurance Co., 144 Mass. 572 (12 N. E. 372), are most pertinent to the case at bar. The policy insured against bodily injuries ‘effected through external, violent, and accidental means, within the intent and meaning of this-contract, and the conditions hereunto annexed.’ After the principal clause followed five provisos and eight conditions. The second proviso was, ‘ Provided, always, that this policy is issued and accepted subject to all the provisions herein contained or referred to.’ The third proviso was,' ‘ That this insurance shall not extend to any bodily in jury * * * when * * * injury may have happened in consequence of * * * voluntary exposure to unnecessary danger.’ The first condition was, ‘ The party insured is required to use all due diligence for personal safety,’etc. The last condition provided, ‘ The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this policy, are conditions precedent to the making of this contract.' The question presented on appeal was whether the burden of proof was on the plaintiff to show that the insured used ‘-all due diligence for personal safety and protection.’ The court says:
“ ‘The rule of pleading in declaring upon a contract which contains an exception, or a proviso, or a condition, is stated in Com. v. Hart, 11 Cush. 130, 134, as follows:
“ “‘If such instrument contain in it, first, a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something that would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but, if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together wiili the exception.”
“ ‘It is a general rule of the law of evidence that it is necessary for a party to prove the substantive facts which he is required affirmatively to aver in his pleading.
“ ‘It is true that the policy in the case at bar only insures against bodily injuries effected by the means described “within the intent and meaning of this contract, and the conditions hereunto annexed but this does not change the nature of the conditions. They still take effect as conditions, and the insertion of these words in the principal clause of the contract does not vary the legal effect of the contract. The condition we are considering is essentially an executory stipulation, in the form of a condition, that Murray shall use all due diligence for his personal safety and protection, and it is the breach of this condition by Murray which the defendant sets up as a defense. We are not aware that it has ever been held that the introduction of the words we have quoted, or of other similar words, into the principal clause of a policy of insurance, incorporates into this clause the conditions of the policy, within the meaning of the rule of pleading we have stated; and in some of the decisions where it has been held that the defendant must plead, or that the burden of proof was on him to show, that a representation was false, or that a stipulation contained in a condition had not been complied with, the policy contained these or similar words in the principal clause. * * * In an action upon a policy which contains many provisos and conditions, there is a practical wisdom, which courts have recognized, in compelling the insurance company to allege and prove the want of compliance with any particular proviso or condition on which it relies.’
“Examined in the light of these authorities, the clause providing what shall happen in the event of a fall is not difficult of construction. It is not in that part of the policy which insures the risk, nor ‘ in close connection with, and qualification of, the description of the subject-matter of the insurance,’ but is placed with the other provisos, in a different part of the instrument. The mere location of the clause is, of course, not controlling, but it has been considered as of some weight in several of the cases cited supra. Nor is it to be construed as if it were removed from its position among the provisos, and incorporated with the clause descriptive of the subject-matter, by the mere use of the words, ‘except as hereinafter provided.’ To give these words such an effect would be to incorporate with the descriptive clause all the provisos as to loss caused directly or indirectly by riot or invasion, or by neglect of the insured, or by explosion or lightning, or where there has been other insurance (not notified to company ), or where manufacturing is carried on after 10 p. m., or the building stands vacant, etc. The overwhelming weight of authority, as will be seen from the citations supra, is opposed to any such construction.
“The most important element, however, in determining whether a particular clause expresses a condition or an exception, is the nature of the clause itself. What does this particular clause mean, ‘ If a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease ? ’ Manifestly, it does not merely provide that the insurer will not be liable for the particular variety of loss by fire which results from a fall. It stipulates for very much more, viz., that the contract, which it is expressly provided shall normally continue for a year, shall, in the event of a fall, absolutely cease and determine, so that, if a fall shall take place which in no way injures the property insured, and it be thereafter destroyed by fire happening otherwise than by fall or from prohibited causes, the insurer is nevertheless not liable, because an event has happened which, by agreement of the parties, puts an end to the contract altogether. It is difficult to see how such a clause can be construed otherwise than as a condition subsequent.
“To the further argument that the words in the descriptive clause, ‘while contained in brick building,’ etc., made it necessary for the plaintiff to show that no fall had destroyed the integrity of the building, a sufficient answer is found in the brief of the defendant in error. A clause drawn expressly to cover the case of a building falling before a fire has been inserted in the contract, and it is to be assumed that the whole intention of the parties on that subject is expressed in such clause.”

We cannot agree with defendant’s counsel that the foregoing decision is inapplicable to the case at bar. It is true, in that case the fire happened at or about the time the building fell, and in this case the fire was not visible until one hour and ten minutes after its fall. Nevertheless, the fact that the property insured was destroyed by fire brought the loss within the terms of the policy, and, under the principle of that decision, placed upon the defendant the burden of proving a breach of a condition in the policy, relieving it from liability. Nor can we agree with them that the decision is contrary to the weight of authority. Defendant’s counsel have brought to our attention no case which, in our judgment, has a material bearing on the question under discussion, which is not considered and discussed in the Mohlman Case. While they have been able to point out inaccuracies in the analysis of some of the cases in that opinion, they have shown no such inaccuracy as sensibly impairs its authority. We believe that its reasoning and its analysis of authorities, which we heartily approve, answers every objection raised by defendant’s counsel to the question now under, consideration.

5. The expert evidence complained of was of three classes:

(a) On the assumption that the loss was occasioned by an explosion, Morris Friedman, a witness for the plaintiff, was permitted to give an estimate of the proportion of the loss caused by fire and the proportion caused by the fall of the building. This testimony would have been serviceable to the jury in the event of their finding that explosion, and not fire, caused the building to fall, and in that event only. Since the jury found, as w'e have before indicated, that fire did cause the fall of the building, this testimony could not have been used or considered by the jury, and therefore its admission, if erroneous, which we do not undertake to determine, was not harmful.
(5) An experienced contractor and builder, introduced as a witness by the plaintiff, was permitted, in answer to a hypothetical question detailing the method adopted to remodel and improve the interior of the said building, to state that he thought the construction was perfectly safe. Defendant’s counsel objected and excepted because the question “does not state any facts sufficient to enable the witness to give an intelligent opinion; that it is not a subject for expert testimony; and on the ground that it is the very question which the jury is to pass upon in this case.” It is now claimed that there were omitted from this question certain facts which should have been stated, and that it assumed some facts not proved. We think the court properly overruled the objections made, and it is useless to cite authorities in support of the proposition that no other objection can be made on the hearing in this court.
(c) Plaintiff was permitted to put before the jury the opinion of contractors and builders that a fire which burned .off the ceiling joists or floor joists would occasion the fall of the building in the manner in which it fell, against the defendant’s objection that “it is not a proper subject for expert testimony, and the witness is not qualified to -give his opinion. It is immaterial and incompetent. It is the very question for the jury to determine. The question assumes facts which are not in evidence, — not shown by evidence.” We do not think that the objection that the question assumed facts not in evidence is valid. If the jury believed plaintiff’s testimony that, almost immediately before the building fell, a flame or blaze shot up from this part of the building, and that the method for remodeling the store was safe, they would be warranted in inferring that this fire had burned some part of the building which occasioned its fall. Whether that part were the joists referred to in these questions would depend upon many probabilities, the most important of which would be the tendency of their destruction to occasion said fall. This tendency was a proper subject for the testimony of experts familiar with the construction of the building, as these witnesses were. In our judgment, therefore, this testimony was proper and helpful to the jury, and there was no error in its admission.

As we find no reversible error in the record, the judgment of the court below will be affirmed.

The other Justices'concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    GOODWIN v. HAMPTON TRANSPORTATION CO.
    'Corporate Stock — Indorsement—Bankruptcy Sale — Bona Fide Purchaser.
    A purchaser of corporate stock at bankruptcy sale, who took with notice that such stock had been given by the bankrupt to his daughter, and that the latter’s subsequent indorsement and return of the certificate thereof to her father was to enable it to be pledged for corporate debts, could not hold the stock as against the daughter.
    Appeal from Bay; Connine, J., presiding.
    Submitted February 18, 1903.
    (Docket No. 89.)
    Decided May 12, 1903.
    Bill by Grace E. Goodwin against the Hampton Transportation Company and Benjamin Boutell for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      McDonell & Duffy, for complainant.

      T. A. E. & J. C. Weadock, for defendants.
   Montgomery, J.

This is an appeal from a decree of the circuit court for the county of Bay in chancery, in which an accounting was had, and a determination that ■complainant was entitled to the sum of $7,576.11 as her interest in the earnings and proceeds of the sale of the steamer C. A. Eddy. No exceptions were filed to the findings on the accounting, and the only question which need be discussed is whether the complainant was the owner of the interest in the vessel claimed by her.

. In 1895 the steamer C. A. Eddy was owned by the-Hampton Transportation Company, the stock of which was owned principally by F. W. Wheeler. The defendant Benjamin Boutell purchased the steamer, and directly afterwards Spencer O. Fisher purchased a one-half interest from Boutell. The parties then devised the scheme of continuing the corporate existence of the Hampton Transportation Company, and the previous owners of the stock transferred to Fisher, Boutell, and their associates all the stock of the corporation, and this stock was placed as follows: With Spencer O. Fisher,-399 shares; Benjamin Boutell, 300 shares; Grace E. Fisher (the present complainant), 100 shares; William H. Boutell, 100 shares; Fred E. Boutell, 100 shares; and Alvah E. Lockwood, 1 share. A meeting of the stockholders was then held, and the above-named persons were elected directors. At the same meeting, on motion of the defendant Boutell, the ownership in the shares of stock was declared to be as above stated.

At the time of the purchase but $5,000 cash was advanced, the remainder of the purchase price being obligations of the company assumed by the purchasers; the $5,000 being advanced in equal proportions by Boutell and Fisher, they receiving credit upon the books of the company. Stock certificates were issued to the respective holders of stock as above stated, the complainant receiving-her certificate for 100 shares, and retaining it in her possession until August, 1898. At this time the corporation was indebted to James S. Galloway in the sum of $21,500, and desired a further advance of $7,500. Mr. Galloway insisted, as a condition to advancing this further-sum, that all the stock of the company be placed in his hands as collateral to secure the entire loan. The complainant testifies that this demand was made known to her by her father, Spencer O. Fisher, and that, for the purpose of complying with this requirement, she indorsed her certificate in blank, and handed it to her father. The defendant Boutell also procured the stock held by his two sons, indorsed in like manner, and they met for the purpose of turning the stock over to Mr. Galloway. Mr. Spencer O. Fisher also for some reason placed his own indorsement upon complainant’s stock, and the stock thus assembled was placed in the hands of Mr. Galloway as security, and was retaiiied by him until October, 1900. .

In the meantime Mr. Fisher was forced into bankruptcy, and in his petition there was listed stock in the Hampton Transportation Company $25,000. Hon. T. F. Shepard testifies that this was probably a mistake of Mr. Fisher, but the circumstances are not very clearly explained. At a subsequent sale of the assets of the bankrupt the defendant Boutell became the purchaser of this stock as the stock of the bankrupt, at the same time entering into an agreement with Mr. Fisher which in part provided for a repayment of the price bid out of the earnings of the vessel. This is a fact which might be of considerable significance if we were convinced that Mr. Boutell would otherwise be a good-faith purchaser. The defendant Boutell contends that he is such good-faith purchaser, relying upon the rule asserted in McLean v. Medicine Co., 96 Mich. 479 (56 N. W. 68), that the purchaser of stock for value will be protected as against the latent equities of one who indorses in blank, and thus invests the custodian with evidence of title.

We think the case is not one in which the defendant Boutell occupies a position which entitles him to invoke this rule. There can be no doubt that the placing of this stock in the complainant’s name in the first instance was a completed gift; nor is there any doubt that all the parties, including-Mr. Boutell, knew this fact. By his own motion the ownership was formally declared to be in complainant. We do not overlook the suggestion that the stock was placed in complainant’s hands for the purpose of making up a board of directors. But it is significant that, when this was the only purpose, Mr. Fisher deemed it sufficient to part with one share, as in the case of Lockwood. Boutell, having notice of complainant’s ownership, also had notice that the purpose of this transfer was to assemble the stock for the purpose of placing the same with Mr. Galloway as collateral. In other words, he knew that complainant did with her stock precisely as he did with his own to effectuate the same purpose. These circumstances repel any inference which he might otherwise have drawn that the indorsement in blank was for the purpose of transferring title. The finding of the circuit judge was fully justified.

The decree will be affirmed, with costs of both courts to complainant.

The other Justices concurred.


text:
    GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN v. FRANK.
    Benefit Societies — Certifícate — Interest of Beneficiary — Right to Contest Surrender.
    The beneficiary named in a mutual benefit certificate has such an interest therein that he may, after the death of the insured, contest the validity of the latter’s action in surrendering the certificate, and procuring a new one, payable to a different beneficiary, on the ground that he was mentally incompetent to bring about that result; and, if such claim be established, the original certificate will be held to have remained in force.
    Appeal from Wayne; Donovan, J.
    Submitted April 10, 1903.
    (Docket No. 30.)
    Decided May 12, 1903.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen against Lewis M. Frank and Anna Estella Frank to determine the right to the proceeds of a benefit certificate. Defendant Anna Estella Frank filed an answer in the nature of a cross-bill, to which defendant Lewis M. Frank demurred; and from an order overruling the demurrer he appeals.
    Affirmed.

      Haug & Yerkes, for defendant Anna Estella Frank.

      Thomas S. Parker (Allan H. Frazer, of counsel), for appellant.
   Montgomery, J.

Charles P. Frank, a resident of Detroit, died on the 5th day of February, 1902, leaving at the time of his death, as his heirs at law, his wife, Anna Estella Frank, and his father, Lewis M. Frank. On April 8, 1887, Charles P. Frank took out a beneficiary certificate for $2,000 in the Ancient Order of United Workmen; making his wife, A. Estella Frank (Anna Estalla Frank), the beneficiary thereunder. The present bill is a bill of interpleader, setting out that on July 20, 1898, Charles P. Frank surrendered the beneficiary certificate, and took out a new one, payable to his mother, Elizabeth V. Simon ton; that Mrs. Simon ton died in January, 1900, and Charles P. Frank died in February, 1902. The bill further sets out that the heirs at law of Charles P. Frank are the defendants, Lewis M. Frank and Anna Estella Frank. In her answer in the nature of a cross-bill, Anna Estella Frank avers that the attempted surrender of the certificate by Charles P. Frank, and the designation of the new beneficiary, made in July, 1898, were .made at a time when Charles P. Frank was insane and mentally incompetent, and asked to have this fact so decreed, and that the attempted change of beneficiary be decreed to be null and void, and that the insurance money due be decreed to be paid to her. To this answer Lewis M. Frank demurred on the ground that the pleadings do not set up a right in defendant Anna Estalla Frank to which the court can apply a remedy, and that she had no vested interest in the beneficiary certificate, and was not a party to the contract, and is not entitled to raise the question of the insanity of Charles P. Frank.

The answer sets up all the facts necessary to an understanding of the case, and shows the defendant Anna Estella Frank entitled to the relief which she prays, unless it be held that she had no such interest in the subject-matter as entitled her to raise' the question of Charles P. Frank’s mental incompetency. It is true that, as the beneficiary named in this certificate, she had no vested interest in the certificate of Charles P. Frank prior to his death; but she had a contingent interest, which vested at his death, and, unless there is some imperative rule of law which precludes her from raising the question of his mental capacity,.it should be held that she has the right to intervene in this manner. It is the contention of the counsel for Lewis M, Frank that only Charles P. Frank himself, or his heirs at law, could raise the question of his mental incapacity. It is said that the transfer was not void, but voidable, and that the option of voiding it rests only with one having an interest; that during his lifetime Charles P. Frank had such interest; and that at his death his heirs at law are the only ones who had such interest. If this be the correct view, it must rest upon the ground that the heirs at law or representatives were entitled to raise the question because the right is devolved upon them under the statute of distribution or descent, and that one occupying the position of beneficiary, named by the voluntary act of Charles P. Frank, does not stand upon the same vantage ground.

We think this distinction cannot be supported in reason or authority. It has been frequently held that the heirs at law may intervene in such cases after the death of the grantor to set aside a grant made by one mentally incompetent. Peters v. Peters, 101 Mich. 291 (59 N. W. 609); Curtis v. Brownell, 42 Mich. 165 (3 N. W. 936); Rogers v. Blackwell, 49 Mich. 192 (13 N. W. 512). In none of these cases had the party attacking the transaction any vested interest at the time of the alleged transfer. We think the better rule is that where such an attempt to change the beneficiary is made, and fails because of the want of mental capacity on the part of the insured, the original designation remains in force. Elsey v. Odd Fellows Mut. Relief Ass’n, 142 Mass. 224 (7 N. E. 844); Smith v. Railroad Relief Ass’n, 168 Mass. 213 (46 N. E. 626). A case quite in point is the recent one of Ownby v. Supreme Lodge Knights of Honor, 101 Tenn. 16 (46 S. W. 758).

The decree of the court below overruling the demurrer will be affirmed, with costs of this court, and the case remanded for further proceedings.

The other Justices concurred.


author: Grant’, J.

text:
    BURRELL v. CITY OF GREENVILLE.
    1. Municipal Corporations — Defective Sidewalks — Injury to Pedestrian — Contributory Negligence.
    Where a pedestrian steps near a hole in a sidewalk, and, solely on account of its wet condition, her foot slips into the hole and she is injured, there is no contributory negligence.

      2. Same — Proximate Cause.
    In such case the pedestrian’s slipping cannot be said to be the proximate cause of her injury, so as to relieve the municipality from liability.
    Error to Montcalm; Davis, J.
    Submitted April 10, 1903.
    (Docket No. 32.)
    Decided May 12, 1903.
    Case by Elizabeth A. Burrell against the city of Green-ville for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff stepped into a hole upon the sidewalk of defendant city, and was injured. The negligence of the defendant is conceded. The sidewalk was old, rotten, and had several holes in it. Plaintiff had not lived in the city for eight months prior to the accident. She walked over the sidewalk to visit a neighbor. She had never gone over the sidewalk in question prior to that day. On the return from her visit, a drizzling rain having fallen and wet the planks, she stepped near one of the holes, into which her foot slipped. Plaintiff noticed the defects in the walk when she first went over it. The accident happened in daylight. She testified upon cross-examination that, if she had looked towards the hole, she thought she would have seen it, and that she did not think about the hole on her return. Defendant requested the court to direct a verdict for two reasons: (1) Because the undisputed evidence shows that the hole in the sidewalk complained of was not the proximate cause of the injury; (2) that the undisputed evidence shows that the plaintiff was guilty of contributory negligence. She recovered a verdict and judgment.

      Edward J. Bowman (M. A. Nichols, of counsel), for appellant.

      Charles L. Barden (N. O. Griswold and C. B. Bar-den, of counsel), for appellee.
   Grant’, J.

(after stating the facts). 1. Counsel for defendant concede that, if the walk had not been slippery, plaintiff would have passed the hole without accident. This concession disposes of the contributory negligence of the plaintiff. The walk was constructed for her use. It was not negligence for her to walk upon it. The plank where she stepped was strong enough to support her. It was not negligence, therefore, for her to step there.

2. The slipping of plaintiff cannot be held to have been the proximate cause of the accident. Old and worn sidewalks become slippery when wet. Some sidewalks must necessarily incline more or less. Under such circumstances pedestrians, especially those who are old and feeble, are apt to slip. The statutory provision that sidewalks must be kept in a reasonably safe condition for travel, and which gives damages for a violation of the provision, does not cover alone cases where the traveler has stepped directly into the hole or defect, but where, in the exercise of ordinary diligence, he has stepped near it, and, without fault on his part, has slipped into it. The case is directly within the principle of the following authorities: Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642).

Counsel for the defendant insist that the case is within Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014). The roadbed in that case was good; the only negligence charged was its narrowness, and the neglect to place railings or barriers. The horse took fright at a log at the side of the road, and the driver struck him with the whip. These acts were held to be the proximate cause of the injury. In consequence of the fright of the horse, for which the defendant was in no sense liable, and the striking of the horse with the whip, the horse ran outside of the usually traveled portion of the highway. That case has no application to that where a traveler slips into a hole in the highway or sidewalk, while stepping where the law gives him the right to step.

Judgment affirmed.

The other Justices concurred.


text:
    UPTON v. DENNIS.
    1. Principal and Agent — Authority—Ratification.
    Ratification of the compromise of a claim by a collection agent cannot be based, on a letter written by the creditor without full knowledge of the facts.
    2. Same — Estates of Decedents — Discharge of Administrator.
    Any authority conferred upon a collection agent by an administrator to compromise a claim belonging to the estate is terminated by the discharge of the administrator.
    3. Judgments — Compromise—Consideration.
    The discharge of a judgment on payment of less than the amount due thereon is void, for want of consideration, as to the amount remitted.
    4. Same — Estates of Decedents — Laches—Estoppel.
    In 1887, D. transferred his property to his wife to defeat the collection of a debt owing to complainant’s intestate. Judgment was obtained in 1895, which was compromised soon thereafter, one C. assuming to act on behalf of the estate. Some two years afterwards complainant was appointed administrator (the estate being unrepresented in the meantime), and filed a bill to set aside the compromise as unauthorized. Held, that his right to maintain the suit could not be defeated on the ground of laches or estoppel, even though C., who negotiated the compromise, was the only creditor of the estate.
    Appeal from Clinton; Stone, J.
    Submitted February 20, 1903.
    (Docket No. 108.)
    Decided May 12, 1903.
    Bill by Josiah Upton, administrator of the estate of Amos W. Randolph, deceased, against William W. Dennis, Hiram M. High, and William H. Castle, to set aside the compromise of a judgment. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Edwin H. Lyon and H. J. Patterson, for complainant.

      Henry E. Walbridge, for defendant Dennis.

      Norton & Pooling, for defendant High.

      William H. Castle, in pro. per.

   Montgomery, J.

In 1887 the firm of Westervelt & Dennis, composed of defendant Dennis and John W. Westervelt, became indebted to Amos W. Randolph in a sum in excess of $1,500. Westervelt died in November, 1887, and during the same month the defendant Dennis made over to his wife all the property which he possessed, amounting to something like $16,000, and from thence he represented that he had no property; that nothing could be collected of him. In 1891 Randolph commenced suit upon the claim against Dennis, as survivor of the firm of Westervelt & Dennis, which suit was pending at the time of Randolph’s death, which occurred in 1891. In November, 1891, Mary A. Randolph was appointed administratrix of his estate in California, the place of his.decease, and in August, 1892, indorsed the claim held by the estate to the defendant Castle for collection. Afterwards, in December,'1892, Mrs. Randolph was discharged as administratrix. Castle afterwards commenced suit on the notes and account in his own name, and finally recovered judgment on November 14, 1895, for $2,314.27 damages, and costs taxed at $217.98. On February 15, 1896, Dennis, and High, acting in his behalf, and Castle, assuming to act with authority, undertook to compromise the judgment, Dennis paying to Castle $1,750, and Castle making an assignment to High, reciting the receipt of but $1,200. Thereafter, on an application by Castle, the complainant was appointed the 'administrator of Randolph by the probate court of Clinton county, and this bill is filed for the purpose of having this alleged settlement declared ineffectual, and requiring the defendant Dennis to pay to complainant the balance of said judgment and costs. The defendant Castle, by an arrangement with Randolph in his lifetime, which was confirmed by the administratrix, was entitled to receive one-half of the amount received on this judgment for his compensation.

The circuit court dismissed the bill on the ground that Castle had full authority to make the settlement. We think that in this he was in error, for two reasons: First. The letter which he relied upon as conferring the authority was written by Mrs. Randolph after the attempted settlement was made, and was clearly not written with a knowledge of the facts as they existed. But, more than this, at the time she wrote this she had no power to bind the estate. She had been discharged as administratrix, and whatever power had been vested in Castle before that time by her must be deemed to have terminated upon her discharge as administratrix. Furthermore, there was no consideration for the discharge of the judgment for the excess.

It is contended by defendants’ counsel that the complainant is not entitled to relief because guilty of laches in not attacking this transfer earlier, the transfer having been made in 1887. But in determining this question it is not to be overlooked that the defendant Dennis threw every obstacle possible in the way of the collection of this claim, and it was not until 1895 that the judgment was obtained, and since that time, and intervening that day and the appointment of the complainant as administrator, there was no one authorized to represent the heirs at law of Amos W. Randolph, deceased. This fact also answers the contention that there is an estoppel. It is also suggested that Castle, being the only alleged creditor of the estate, should be held estopped. But, even though there may not be other creditors, there are heirs interested in this estate and in the due administration thereof. The defendant Dennis had full knowledge that Castle was acting in a representative capacity. His own conduct was fraudulent throughout. He is in no position to appeal to this court for protection on the ground of estoppel, though he has failed to discharge this judgment, being abundantly able to pay it, for a sum much less than its face, and failed because of want of authority in Castle to make the compromise. He does not occupy a favorable position from which to appeal to a court of equity to enable him to reap the fruits of his attempted fraud.

We think the decree of the court below should be reversed, and one entered here in favor of the complainant against Dennis for the excess of the judgment over and above the $1,7.50 received, and defendant Castle to be required to account for the amount received, with interest, and that ah accounting be had between him and the administrator. Complainant will recover.costs of both courts.

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


author: Grant, J.

text:
    HANEY SCHOOL FURNITURE CO. v. SCHOOL DISTRICT NO. 1 OF CRYSTAL LAKE TOWNSHIP.
    School Districts — Contracts—Ratification—Evidence—Sufficiency — Interest—Right to Recover.
    Defendant school district, through its moderator and director, entered into a written contract with plaintiff for a large quantity of school furniture. The goods were delivered, accepted, and used without objection, and payments made thereon. At the annual meeting following the execution of the contract, it was brought before the voters, and no objection made thereto. A warrant was issued and negotiated for the balance due under the contract, payable at a future day, with interest, and the principal sum was subsequently paid by the assessor out of the general fund of the district, and such payment approved by the district. Held, that, although there was no formal authorization of the contract, an adoption and ratification were established, so as to entitle plaintiff to recover the unpaid interest on the warrant.

      Error to Benzie; Chittenden, J.
    Submitted April 10, 1903.
    (Docket No. 36.)
    Decided May 12, 1903.

      Assumpsit by the Haney School Furniture Company against school district No. 1 of Crystal Lake township to recover interest on a warrant issued by defendant. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Plaintiff and defendant, through its moderator and director, entered into a written contract for 400 school desks and other articles, dated August 27, 1894. The plaintiff delivered the goods. They were accepted, and have remained in its possession and use to the present time without objection or complaint. The defendant paid the freight on a portion of the property, such freight being allowed as part payment upon the contract. The price agreed upon was $2,165.13. The first meeting held after this contract was executed was the annual school meeting on July 9, 1895, when the following motion was made:
    “Moved by Mr. Warner, supported by Mr. Wood, that we raise $1,150 to make payment on school seats and furniture to Haney School Furniture Co. Motion lost.”
    Several payments were made by the district, and on .September 11, 1895, the balance due was $1,099.25, for which a warrant was issued, payable February 1, 1896, with interest at 6 per cent. ' The warrant was subsequently assigned to the Old National Bank of Grand Rapids, Mich., was sent to the Benzie County Bank, at Frankfort, for collection, and the principal was paid by the assessor out of the general funds of the district. This suit was instituted to recover the interest, $174.01. The court directed verdict and judgment for the plaintiff.

      N. A. Parher and D. G. F. Warner, for appellant.

      Farm C. Gilbert, for appellee.
   Grant, J.

(after stating the facts). The defense is that the school district had taken no affirmative action authorizing the contract in question, and this is conceded. "We think that a formal authorization, under the undisputed facts, was not essential. The contract was made by the officers of the district. The furniture was delivered, accepted, and used. We think that it is conclusively established that the contract was adopted and ratified by the district. At the annual meeting following, this contract was brought before the voters of the district, and no objection was made to it. At the same meeting a committee of five was appointed to investigate the expenditure of moneys appropriated and expended, and report at some future time. It does not appear that any report was made. Payments were made, anti finally a settlement was made, for which the warrant in' suit was given. The entire principal was paid, and the payments reported to the district, approved, and adopted. If the principal was due, the interest was also due. The defendant cannot recognize the contract to be valid as to "the principal, and invalid as to the interest. We think the court was correct in directing a verdict. Jones v. School District, 110 Mich. 363 (68 N. W. 222).

Judgment affirmed.

The other Justices concurred.


author: Carpenter, J. Hooker, C. J. Per Curiam.

text:
    TOWNSEND v. KREIGH.
    1. Yendor and Purchaser — Purchase-Money Mortgage — Estoppel.
    A grantee of land who has given back a purchase-money mortgage, and entered into possession.under his deed, is estopped from disputing his grantor’s title for the purpose of defeating the payment of the mortgage.
    2. Ejectment — Codefendants—Title—Common Source — Judgment.
    3 Comp. Laws, § 10973, provides that if any of the defendants . in an action of ejectment, at the commencement of the suit, occupied or claimed distinct parcels in severalty or jointly, and other defendants possessed or claimed other parcels in severalty or jointly, all of which titles were derived from the same source, the jury shall state particularly in their verdict, if in favor of plaintiff, the description of the parcel claimed by each defendant, but, if the titles are from different, sources, plaintiff shall elect against which he will proceed. T. conveyed certain land to M., taking back a mortgage. M. deeded one-half of the land to W., and W. sold one-half of his interest to K., who entered into possession without receiving a deed. Plaintiff purchased the land at foreclosure sale, and brought ejectment against M. and K. In the meantime K. had purchased certain alleged outstanding titles to the entire premises, and quitclaimed to M. the parcel occupied by him. Held, that the titles of defendants were derived from the same source, and a recovery might be had against both.
    3. Same — Verdict.
    But in such case the verdict should particularly describe the-parcel claimed by each.
    4. Same — Appeal—Correction.
    Where the verdict was defective iriHhis respect, but the proof® were clear, and there was no dispute as to the descriptions, plaintiff was permitted to avoid a reversal by consenting to a, correction.
    Error to Mason; McAlvay, J.
    Submitted January 15, 1903
    (docket No. 49);
    opinion filed, for reversal, May 12, 1903.
    Rehearing granted June 23, 1903;
    reargued October 23, 1903
    (docket No. 68);
    former decision reversed November 9, 1903.
    Second application for rehearing denied February 16, 1904.
    Ejectment by Gertrude Townsend against Joseph Kreigh, Eliza Kreigh, Jacob Mahler, and Ellen Mahler. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed conditionally.

      JWitch & Meek, for appellants.

      M. B. Danaher and Morse & Locke, for appellee.
   Carpenter, J.

This is an ejectment suit to recover •possession of the northeast quarter of the southwest quarter of section 27, township 18 north, of range 16 west. Plaintiff obtained her title February 15, 1899, by purchasing at a statutory foreclosure of a purchase-money mortgage executed November 25, 1882, given by defendant Jacob Mahler to Larmon- B. Townsend, plaintiff’s husband. On said 25th of November, 1882, said Larmon B. Townsend and Gertrude, his wife (plaintiff in this suit), conveyed the lands in suit by warranty deed'to said •defendant, Jacob Mahler. Jacob Mahler at once took possession of the land, and conveyed the east half of the .same to William Kreigh, the son of defendant Joseph Kreigh, who soon thereafter conveyed to his father oneLalf of his interest. The son, William, after living on •the property for about seven years, moved away, and .subsequently died. Defendant Mahler, with his wife, continued in occupancy of the west half, and defendant Kreigh and his wife of the east half, until the commencement of this suit.

To defeat this suit defendants undertook to prove that •said Larmon B. Townsend did not own the land in question at the time he deeded the same to defendant Mahler; that, soon after defendants took possession, some Indians •came to them, and claimed"to own the land; that in 1888 they tried to borrow money upon this land, to pay off the mortgage under which plaintiff now claims title, but could not borrow the money, because the title was defective; that on the 17th of January, 1899, defendant Joseph Kreigh purchased said outstanding title, and thereafter ■conveyed the west half of the property in controversy to ■defendant Jacob Mahler. It is to be noted that no claim is made, nor does the evidence prove, that the proceedings to foreclose the mortgage in question were not commenced within the time specified in 3 Comp. Laws, § 9725. The ■trial court made a ruling which, in effect, excluded defendants’ testimony, and then directed a verdict in plaintiff’s favor.

The ruling excluding this testimony was clearly correct. Defendants, while in possession of this land under the-deed from Larmon B. Townsend, were estopped from disputing his title for the purpose of escaping the payment of the agreed purchase price. Robertson v. Pickrell, 109 U. S., at page 615 (3 Sup. Ct. 407); Peters v. Bowman, 98 U. S. 56; McConihe v. Fales, 107 N. Y. 404 (14 N. E. 285). It follows that they are estopped from disputing their grantor’s title for the purpose of defeating a purchase-money mortgage. This application of the principle of estoppel is most equitable. The title purchased by defendants was barred by the statute of limitations before their purchase was made. Defendants’ possession, under the deed from plaintiff’s husband, destroyed the title which they now assert. They acquired, therefore, no additional rights to possession by their purchase of said title. Their entire right to possession, then, comes from their deed from plaintiff’s husband, unless, while holding under said deed, they have acquired a right adversely thereto. It would be useless to refute the proposition that a grantee, who has given back a purchase-money mortgage, holds adversely to his grantor and to said mortgage, merely because the title of his grantor is defective.

Inasmuch as the testimony in the case proved that the holding of defendants was hot joint, but several, the court erred in directing a verdict, under the declaration, which charged a joint holding. See Murphy v. Campau, 33 Mich. 71. While this precise objection was not made in the court below, it can, nevertheless, under the authority of Haldeman v. Berry, 74 Mich., at page 436 (42 N. W. 57), be raised by assignment of error to the charge.

For the error pointed out, the judgment must be-reversed.

The other Justices concurred.

ON REHEARING.

Hooker, C. J.

The only question before us upon this hearing is whether the judgment rendered in ejectment against two defendants holding different portions of the property in dispute, in severalty, can be sustained, under the statute (3 Comp. Laws, § 10973) which provides that:

“When the action is against several defendants, if it appear on the trial that any of them, at the commencement of the suit, occupied or claimed distinct parcels in severalty or jointly, and that other defendants possessed or claimed other parcels in severalty or jointly, all of which titles, possessions, or claims were derived from the same source, the jury in such case shall state particularly in their verdict the description of the parcel claimed by each of said defendants, when the said verdict shall be for the plaintiff; and in case the said several titles, claims, or possessions were derived from a different source, the plaintiff shall elect at the trial, and before the testimony shall be deemed closed, against which he will proceed, and a verdict shall be rendered for the defendants not proceeded against.”

Larmon B. Townsend asserted ownership of the premises in fee, and on November 25, 1882, he and his wife, Gertrude Townsend, gave a warranty deed thereof to Jacob Mahler; taking a purchase-money mortgage from Mahler. On May 25, 1883, Mahler and wife deeded the east half of the premises to William Kreigh, subject to said mortgage. Gertrude Townsend, as the sole heir of Larmon B. Townsend, foreclosed the mortgage, and holds a sheriff’s deed, dated February 15, 1899, to the entire premises, and brought ejectment against Joseph Kreigh and Jacob Mahler and their wives. We understand defendants’ contention to be that the statute cited is not applicable to this cause, for the reason that the several defendants, Mahler and Kreigh, did not derive their titles from the same source.

Joseph Kreigh came into possession of his portion of the premises in 1883, under his son, William Kreigh, who was living upon the premises; Joseph having purchased half of the son’s interest, though no deed passed. The son lived there about seven years thereafter, and then moved away, and has since died. Joseph and wife have lived there ever since, claiming the land as theirs. When an attempt was made to collect this mortgage, the defendants questioned the validity of the Townsend title, and asserted that the legal title was outstanding in some Indians, and Kreigh acquired deeds from some alleged Indian owners of interests in the property. A finding of the probate court was made February 20, 1899, adjudging that of the real estate of one Kaw-bay-o-maw, deceased, the following were the lawful heirs, viz.: Ka-kako-me, one-fourth; Shaw-wan-ne-be-quay, one-fourth; Mon-yan, one-eighth; Paw-com-co-mo-quay, one-eighth; George King, one-fourth. Kaw-bay-o-maw purchased the land from the United States government. • Mon-yan, Ka-kako-me, and Shaw-wan-ne-be-quay deeded their interests to Godfroy in 1872. Paw-com-co-mo-quay deeded to Houseman in 1886. Other persons claiming to own one-fourth interest as heirs of Kaw-bay-o-maw deeded to Houseman in March, 1887. All of the titles of Godfroy and Houseman were acquired by Townsend, who deeded to Mahler by warranty deed. In January, 1899, Kreigh and Mahler set about getting some deeds of alleged Indian titles, and several deeds were taken in Joseph Kreigh’s name, and subsequently Joseph Kreigh quitclaimed to Mahler all of his interest in the share held by him. Thus it appears that each defendant shared in all Indian and other titles held by the other, except that Joseph Kreigh had no paper title representing the Townsend interest. But, if Kreigh is to be believed, he had a right to a deed, and he was claiming under and asserting that tifie at all'times, and never asserted another until January, 1899, when he acquired the Indian titles referred to. In short, all of the titles held by Kreigh are identical in their origin with all held by Mahler, and therefore their titles came from the same source.

The judgment of the circuit court is affirmed.

The other Justices concurred.

ON SUBSEQUENT APPLICATION EOR REHEARING.

Per Curiam.

In this cause it is brought to our attention that the verdict was defective for the reason that the jury failed to state particularly in the verdict the description of the parcel claimed by each of said defendants. '•This'is true, but the proofs are clear, and the parties do not disagree upon such descriptions. The order heretofore made will be modified as follows:

The judgment is affirmed upon condition that plaintiff consent to a correction of the verdict and judgment in this regard; otherwise the case will be reversed, and a new trial ordered.


author: Per Curiam.

text:
    CITY OF DETROIT v. BLADES.
    Municipal Corporations — Salaries—Authority oe Board oe Estimates.
    Under the charter of the city of Detroit, where the board of estimates has stricken an item for the salary of a certain clerk from the .estimate for the expenses of a department, the controller cannot he compelled by the council to draw a warrant for the salary of such clerk, though provided" to be paid from a fund derive"! otherwise than from taxation.

      Certiorari to Wayne; Hosmer, J.
    Submitted May 13, 1908.
    (Calendar No. 19,973½.)
    Decided May 15, 1903.

      Mandamus by the city of Detroit to compel Francis A. Blades, controller of said city, to draw a warrant on the "treasurer. The writ was denied, and relator applies for the writ of certiorari.

    Denied.

      Timothy E. Tarsney, for relator.
   Per Curiam.

The city of Detroit applied to the circuit court for the county of Wayne for a writ of mandamus to compel the controller of the city to draw his warrant for the sum of $321.67 in favor of J. H. O’Donoghue for services as sidewalk assessment clerk in the office of the board of assessors; the controller having declined to-draw such warrant, and alleging as reason therefor that the board of estimates of the city had struck out the item for sidewalk assessment clerk from the estimate of expenses for the«office of the board of assessors of the city,, and he knew of no money which could be legally expended for the services of such clerk. The circuit court denied the writ of mandamus, and application is made here for a writ of certiorari to review that decision.

The writ must be denied. The case is ruled by Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and in the denial of motion to modify the decree in that case so as to permit of salaries being paid from other sources than taxation; and in the case of City of Detroit v. Blades, heard March 18, 1902, where this question was involved, and the denial of mandamus below was affirmed, the following memorandum appearing: “Affirmed. See Robinson v. City of Detroit, 107 Mich. 168 (65 N. W. 10), and motion subsequently made in same case.”