text:
    FARMERS’ HANDY WAGON CO. v. NEWCOMB.
    1. Contracts — Offer and Acceptance — Reservation of Right to Withdraw.
    Plaintiff silo manufacturing company secured from defendant a written order for a silo to be delivered f. o. b. at Saginaw and consigned to defendant at Traverse City. On the bottom was written that the purchaser reserved until the following August to reconsider. Plaintiff claimed and offered testimony to prove that it shipped the parts of the silo in due time, except a piece of felt which it was unable to get from the manufacturer, worth 94. cents, and that it forwarded the felt by express about two weeks later. Defendant rejected the silo, claiming he had notified -defendant of rescission by letter within the time reserved. -Defendant denied receiving the letter. Held, that the reservation only gave defendant - the right to withdraw within the specified time and that no confirmation was necessary, but notice of intention to cancel the order must be shown to have reached the other party in order to effect a rescission.
    2. Same — Presumptions—Evidence.
    Proof that- the notice of rescission was placed in the mails properly addressed and with postage prepaid undoubtedly created a presumption that it was duly received, but its receipt being denied, a question of fact was raised to be determined by the jury.
    3. Same — Condition Precedent — Notice—Performance.
    Plaintiff substantially complied with its part of the agreement, and in view of an admission by defendant that he did not reject the silo because the felt did not accompany the other parts and under express provision in the order that if any parts were found lacking he would notify plaintiff and allow a reasonable time to replace the same, plaintiff was entitled to an instruction that the contract had been performed.
    4. Same — Sale—Contracts—Acceptance.
    The exercise of any act of ownership of the silo after it had arrived at its destination amounted to an acceptance, and made defendant liable for the price; hence, to order it forwarded to another station was an aet that fixed the buyer’s liability and he was rightly held bound by the contract, and that, too, even if he had served notice of rescission as he attempted to show.
    Error to Grand Traverse; Mayne, J.
    Submitted April 17, 1916.
    (Docket No. 75.)
    Decided September 26, 1916.
    Assumpsit by the Farmers’ Handy Wagon Company against David B. Newcomb for the price of a certain silo. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John J. Tweddle and Patchin & Duncan, for appellant.

      Conmine & Connine, for appellee.
    The plaintiff is a corporation engaged in the business of manufacturing silos at Saginaw, and the defendant is a farmer living near Traverse City. On the 8th day of June, 1907, the defendant gave plaintiff a written order for a silo, to be delivered f. o. b. at Saginaw and to be consigned to defendant at Traverse City. The purchase price of the silo was to be $141.21. Below the signature of the defendant to the order was written:
    “Remarks: This man reserves until Aug. 1, 1907, to reconsider the buying of this silo.”
    On the 14th day of June, 1907, the plaintiff wrote to the defendant, accepting the order, and defendant admits receiving the letter. Plaintiff shipped all of the different parts of the silo, on September 11, 1907, to defendant at Traverse City by freight as directed, except a piece of felt to be used in putting the parts together. This felt was a strip 52 feet long, about an inch and a quarter wide, from one-eighth to a quarter of an inch thick, and worth 94 cents. The felt was sent to defendant at Traverse City by express, with charges prepaid, on September 26th. It was not sent with the rest of the silo because plaintiff was unable to obtain it from the manufacturer in time to do so. The defendant declined to remove the silo from the railroad freight-house at Traverse City, and on the 1st day of December the railroad company shipped it to its warehouse for unclaimed property at Grand Rapids. The reason given by defendant for not taking possession of the-silo is that he canceled the order by a letten written to plaintiff on July TOth. He testified that he mailed the letterto^Iamtiff’s address with postage fully prepaid. Plaintiff denied receiving the letter. The freight agent of the Pere Marquette Railroad at Traverse City testified that after the silo had been shipped to Grand Rapids he received a letter dated January 4, 1908, and signed, “D. B. Newcomb,” asking that the silo be returned from Grand Rapids to D. B. Newcomb at Williamsburg, Mich. The witness further testified that inclosed with the letter was a postal card addressed to D. B. Newcomb, notifying him that the silo was at the warehouse for unclaimed property in Grand Rapids. The .freight agent further testified that he wrote to D. B. Newcomb, in answer to the letter of January 4th, advising him that he would have to surrender the original bill of landing and guarantee charges before the silo could be shipped to Williamsburg, and directing him to arrange for the return of the silo with the agent at Williamsburg. The agent at Williamsburg testified that in January, 1908, a man came to him, bringing the letter from the agent at Traverse City, surrendered the original bill of lading, and made a deposit of $5 as a guarantee that he would pay the freight when the silo came back from Grand Rapids. The agent testified that he could not positively identify the man who called upon him, but that he believed it to have been the defendant, who was then in the courtroom. The agent further testified that after the silo had been received at Williams-burg the man called, but would not receive it because he said the freight charges were too high. The defendant on the stand denied that he ever called, or caused any one to call, upon the agent at Williams-burg, denied that he had anything to do with the shipment of the silo to Williamsburg, and denied that he ever made any deposit of $5 or caused it to be made.
    The circuit judge instructed the jury, in substance, that the order, together with the acceptance, made a completed contract, and that upon the shipment of the silo to defendant and its receipt at Traverse City the defendant became indebted to the plaintiff for the agreed purchase price, unless defendant had canceled and retracted the order as he claimed; that the delivery of the silo by freight, except the small amount of felt that was sent by express, was a substantial performance of t.be-caniraet: and thaTto show a cancellation or retraction of the order it was necessary that the letter of cancellation should not only have been mailed by defendant, but that it should also havejbeen received by, or come to the knowledge of, plaintiff.'~~He further instructed the jury that if the letter "of cancellation was mailed by defendant and was received by plaintiff, the defendant was not liable, unless he caused tile .silo. to. be shipped, from Grand Rapids to Williams-burg; but that, if he did, in the exercise of a right of control over, and ownership of, the silo,, cause it to be shipped from Grand Rapids to Williamsburg, that was an acceptance_of the^silo, andJhe would be liable'for the purchase price. ™"
    The jury returned a verdict for the plaintiff, and defendant brings the case to this court by writ of error.
   Person, J.

(after stating the facts). The trial judge correctly construed the meaning of the underwriting appended to defendant’s order. To “reconsider” is defined by Webster as the right—

“to consider again; review with care, especially with a view to a reversal of previous action; as, to reconsider a determination.”

The order with the acceptance by plaintiff became a contract subject to a right, on the part of defendant, to withdraw from it within the time stated. It did not require an express confirmation by defendant.

P It was also necessary that notice of the withdrawal pr cancellation should have reached plaintiff in order (to be effective and sufficient. Anson on Contracts (2d Am. Ed.), pp. 32, 33; 1 Elliott on Contracts, §§ 37, 38; 1 Mechem on Sales, § 258. Placing such a notice in the mails, properly addressed and with postage prepaid, undoubtedly creates a presumption that it is duly received; but the receipt of the notice by plaintiff was denied by such officers and agents of the company as usually received its mail, and whether it was received, if sent, became a question for the jury.

The circuit judge was also right in holding that the shipment of the silo by freight, except the piece of felt, and the transmission of the felt by express, was a substantial compliance with the terms of the order. The defendant admitted that he did not reject the silo because the felt did not accompany the other parts; and the order expressly provided that the defendant would notify plaintiff if any part, or parts, should be found lacking or defective, and would allow plaintiff a reasonable time in which to make up such shortage or replace such defective part.

Counsel for appellant argue that, even if defendant did have the silo shipped from the warehouse at Grand Rapids to Williamsburg, that was a matter between defendant and the railroad company from which plaintiff can claim no advantage. This is not a tenable position. Even if defendant had retracted and canceled his order, and even if plaintiff had received notice of such cancellation, the shipment of the silo thereafter to defendant was an offer on the part of plaintiff to sell it to him in accordance with the terms of the order. And if defendant thereafter exercised acts of ownership over it, and had it shipped to Williamsburg for his benefit, that was an acceptance which made him liable for the purchase price. Richards v. Burroughs, 62 Mich. 117 (28 N. W. 755) · 1 Mechem on Sales, § 243; Williston on Sales, § 77.

Upon the trial defendant produced as witnesses one George Dean and his wife, who testified that they were present at defendant’s home when he wrote a letter to the plaintiff company relative to the silo. Each was asked what defendant said about the letter at the time he wrote it, or immediately thereafter, and whether or not he said it was a letter canceling his order for the silo. Answers to these questions were objected to and excluded. Both witnesses were permitted to testify that they saw defendant write the letter and saw him mail it. Mrs. Dean said that she read the address upon the letter, and that it was directed to plaintiff. But neither one read the letter itself, nor knew anything about its contents except what defendant had told them. The defendant had testified to writing and mailing the letter, and had produced what he claimed to be a copy, which had been received in evidence. We think the testimony sought to be elicited from the witness Dean and from his wife was properly excluded. It was an attempt on the part of defendant to corroborate his own testimony by his own self-serving statements, and the statements were inadmissible.

We have carefully examined all other assignments of error, and" do not find any that require a reversal of the judgment.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J. Osteandee, J.

license: Public Domain

text:
    ATTORNEY GENERAL, ex rel. UNION TRUST CO., v. FIRST NATIONAL BANK OF BAY CITY.

    1. Banks and Banking — National Banks — Trusts—Quo Warranto — Power to Act as Fiduciary.
    The courts of Michigan have jurisdiction to inquire by quo warranto whether a corporation organized under the banking laws of the United States is lawfully engaged in exercising any or all of its franchises within the borders of the State or to enjoin the enjoyment of such franchises, if they are not legally exercised.

      2. Same — Constitutional Law — Trusts—Executor.
    While the final determination as to the constitutionality of acts of Congress rests with the United States Supreme Court, the assumption by a national bank of the franchise to do business as trustee, executor, or other fiduciary agent under the authority of the Federal reserye act (38 U. S. Stat. 262, U. S. Comp. Stat. 1913, § 9794 [ft]) may be Questioned in proceedings by the attorney general on relation of a party in interest.
    3. Same — Corporations—Trusts.
    The legislature having power to create corporations with authority to manage and execute trusts, estates of decedents, etc., and having provided for domestic corporations to transact such business, foreign corporations with powers of a like character may be admitted to do such business in Michigan. In acting in the capacity of trustee, executor, or administrator, the laws of the State in which it is engaged in business control.
    4. Same — Foreign Corporations.
    National banks, which are not foreign corporations, are agencies of the Federal government domesticated in the State and may sue and be sued in the courts of the State, but their powers, management and control are not within the State authority, except that a national bank is limited to the powers and authority made lawful by the statutes of the State in which it is doing business and cannot act ini contravention of the same.
    5. Same — Public Policy.
    There is no State policy opposed to corporate triistees, executors or administrators.
    6. Same — Federal Statute.
    No State law is contravened by the act of Congress creating national banks.
    7. Same — Constitutional Law — Administering Estates.
    National banks under 38 U. S. Stat. 262, U. S. Comp. Stat. 1913, § 9794 (ft), providing that power may be granted by the reserve board by special permit to national banks applying therefor, unless in contravention of the local statutes, to act as trustee, executor, etc., cannot be authorized to perform the duties of administering trusts, etc., described, which, do not necessarily connect with its business of lending money and accepting deposits. The attempted legislation invades the sovereignty of the States in which the control of devolution of property and conducting private business within the State is placed.

      Quo warranto proceedings by Grant Fellows, Attorney General, on the relation of the Union Trust Company and others, against the First National Bank of Bay City, questioning the right of respondent to act as trustee, executor, administrator, or registrar of stocks and bonds under the Federal reserve act.
    Submitted January 20, 1916.
    (Docket No. 134.)
    Judgment for relator September 26, 1916.

      Grant Fellows, Attorney General, Henry M. Campbell and John G. Johnson (Sidney T. Miller, of counsel), for relators.

      Gillett & Clark, for respondent.

      Milton C. Elliott and Joseph P. Cotton, amici curise.

      Reversed on writ of error to Supreme Court of the United States June 11, 1917.

   Brooke, J.

The attorney general of the State, upon the relation of five trust companies, organized and doing business under the laws of the State, by permission granted, filed in this court an information in the nature of a proceeding quo warranto against the First National Bank of Bay City, by means of which relators question the right of the respondent to act as trustee, executor, administrator, and registrar of stocks and bonds under such rules and regulations as the Federal reserve board may prescribe; it being claimed that the exercise by respondent of said franchises and privileges is in contempt of the people of the State of Michigan and to their great damage and prejudice.

To the information so filed respondent interposed a plea setting out that it is a duly organized and chartered banking association incorporated under the national bank act approved June 3,1864, and the amendments thereto. Further answering, respondent says that under and by virtue of an act of Congress commonly known as the Federal reserve act, approved December 23, 1913 (38 U. S. Stat. 251), entitled—

“An act to provide for the establishment of Federal reserve banks, to furnish an elastic currency, to afford means of rediscounting commercial paper, to establish a more effective supervision of banking in the United States, and for other purposes”—

it filed its application to become a member bank, and thereafter subscribed for and paid for its proportion of stock in the Federal reserve bank, whereupon it then became and now is a member bank of said Federal reserve bank, district 7; further, that thereafter, on the 13th day of April, 1915, on application made therefor, the said Federal reserve board granted to said respondent the right to act as trustee, executor, administrator, and registrar of stocks and bonds, and that by virtue of such permit respondent is now acting as trustee for bondholders, and is named as mortgagee and trustee in a certain real estate mortgage given to secure to said bondholders the payment of the bonds mentioned in said mortgage and interest thereon; further, that respondent is advised that such grant and permit are not in contravention of any State or local law in Michigan, and that there is no public grievance to be remedied by this proceeding, but that the writ is prosecuted solely for the private benefit of the relators and other trust companies that may be hereafter organized in the State.

To this plea the attorney general demurred upon the following grounds:

“(1) Because section 11 (7c) of the Federal reserve act, in pursuance of which the Federal reserve board has attempted to confer upon the respondent the right to act as trustee, executor, administrator, and registrar of stocks and bonds, under such rules and regulations as said board may prescribe, is unconstitutional and void, in that Congress is not authorized by the Constitution of the United States to confer upon national banks the corporate powers specified in said section.
“(2) Because, even if Congress itself possessed the authority to confer upon national banks the corporate powers specified in said section 11 (k), it cannot lawfully delegate such authority to the Federal reserve board.
“(3) Because the granting of the corporate powers specified in said section 11 (k) by the Federal reserve board to the respondent is in contravention of the laws and policy of this State.”

The question presented arises under section 11 of the so-called Federal reserve act, which, among other things, provides:

“The Federal reserve board shall be authorized and empowered: * * *
“(k) To grant by special permit to national banks applying therefor, when not in contravention of State or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the said board may prescribe.” U. S. Comp. Stat. 1913, § 9794 (k) (38 U. S. Stat. 262).

The first proposition raised by counsel for respondent is that the courts of this State are without jurisdiction to oust a corporation organized under the laws of the United States, or to enjoin such corporation from enjoying any or all of its franchises within the borders of the State. Although the question is not raised by the pleadings, we think it should be determined adversely to the contention of counsel for the Federal reserve board, who, by leave of the court, were permitted to file a brief and make an argument in the case. No one would contend that final determination as to the validity of an act of Congress does not rest with the Federal Supreme Court, but it is, we think, equally clear that any State may by quo warranto inquire by what authority any corporation exercises' corporate rights within its borders. In the case of Attorney General v. Booth & Co., 143 Mich. 89 (106 N. W. 868), this court said:

“But proceedings in the nature of quo warranto are appropriate to try the right of a domestic corporation to act as such, and there would seem to be a close analogy between such a case and one where the proceeding is resorted to for the purpose of inquiry into the right of a foreign corporation to do business in another State than that of its organization, as it would be in the home State if the object was to inquire into a right to exercise franchises in excess of those granted” — citing cases.

See, also, Mason v. Perkins, 73 Mich. 303 (41 N. W. 426); People v. Manhattan Co., 9 Wend. (N. Y.) 351; 32 Cyc. p. 1426, and cases cited in note 1.

The legality of the incorporation of the respondent is not questioned by the proceeding. The inquiry is instituted for the purpose of ascertaining whether its assumption of a franchise to do business of a certain character is with or without legal warrant; that business being apparently not incidental to banking, and peculiarly under the control of State laws. Counsel for relators present the question under three heads as follows:

“(1) Congress is not authorized by the Constitution to confer upon national banks the corporate powers specified in section 11 (k).
“(2) Section 11 (k) is void because Congress cannot delegate to the Federal reserve board the authority attempted to be conferred by this section.
“(3) The granting of authority to the respondent to act as trustee, executor, administrator, and registrar of stocks and bonds is in contravention of the laws and policy of this State.”

In view of our conclusions hereinafter stated with reference to the third point raised, we find it unnecessary to give any consideration to points numbered 1 and 2. An extended discussion of these questions will be found in the recent case of People v. Brady, 271 Ill. 100 (110 N. E. 864).

Assuming, then, for the purposes of this case, that Congress might constitutionally enact the legislation in question, it will be noted that under subsection (1c) of section 11, the Federal reserve board is authorized to grant permission to national banks to act as trustees, etc., only when the exercise of such franchises by them is “not in contravention of State or local law.”

It is vigorously asserted on behalf of relators that such authorization to the national banks of this State is in contravention of State law.

On the other hand, counsel for respondent state their position upon this point as follows:

“(a.) There is nothing in the State law specifically prohibiting any person or corporation from acting as trustee, executor, registrar, etc.
“(b) In the absence of specific prohibition, the powers of a- natural person to act in these capacities are unlimited, and the powers of a corporation are limited merely by the statute under which it is organized.
“(e) If national banks were organized under State laws, it might be argued that an express prohibition was not required, but that the mere absence of a State enabling act would be sufficient to limit their powers.
“(d) Inasmuch as national banks are organized under the acts of Congress, no State enabling act is necessary to enable them to carry on a trust company business any more than to enable them to carry on a banking business. Their authority is found in section 11 (k), and if this section is constitutional, its operation can be suspended only by a prohibitory statute of the State, and not merely by the lack of an enabling State statute.
“(c) The authority given by section 11 (Tc) does not compel the appointment of national banks as fiduciaries in any case, but merely permits such appointment. The probate court or other appointing authority still has full freedom of choice. A mere enlargement of such field of choice contravenes no law of the State.
“(/) All references to State ‘policy’ are beside the point. The State legislature has had at least one regular session since the passage of the Federal reserve act, and has not seen fit to prohibit national banks from qualifying as fiduciaries under section 11 (k). Its omission to do so is more significant than the claimed existence of a State policy, which is, at best, doubtful, vague, and indefinite. The courts should require the State to express itself positively and definitely on a question of such importance.”

Whether the subjects mentioned in section 11 (k) are subjects over which the State has exclusive jurisdiction, or whether they or some of them may properly be subject to Federal legislation, it is not necessary to determine. As to estates of decedents, however, see Dickinson v. Seaver, 44 Mich. 624 (7 N. W. 182); Lafferty v. Bank, 76 Mich. 35 (43 N. W. 34); American Missionary Ass’n v. Hall, 138 Mich. 247 (101 N. W. 535).

The real point in issue in this proceeding is whether the exercise by national banks of the powers of trustees, executors, administrators, etc., is in contravention of local law.

An examination of our statutes clearly shows that the State has legislated very fully with reference to each of the subjects mentioned in section 11 (k). Chapter 285, 4 How. Stat. (2d Ed.) § 10669 et seq. (3 Comp. Laws 1915, § 11565 et seq.) is devoted to the subjects of trusts, and therein provision is made for their definition, regulation, and administration. Chapters 290 to 301, 4 How. Stat. (2d Ed.) § 10959 et seq. (3 Comp. Laws 1915, § 11795 et seq.) are devoted to laws relative to the settlement of estates of deceased persons. The administration of testate estates is by the law of this State committed to the person named as executor therein, if he is legally competent. 4 How. Stat. (2d Ed.) § 11026 (3 Comp. Laws 1915, § 13807). In the case of intestate estates “to some one or more of the persons hereinafter mentioned.” 4 How. Stat. (2d Ed.) § 11040 (3 Comp. Laws 1915, § 13820).

While the word “person” is not defined in the stattues cited, to read them is to be convinced that the term was used in a restricted sense, and was meant to apply to natural persons only and not to corporations. In reaching this conclusion we are not unmindful of the rule of construction (1 How. Stat. [2d Ed.] § 2, subsec. 12 [1 Comp. Laws 1915, § 64]) which provides: '

“The word ‘person’ may extend and be applied to bodies politic and corporate, as well as to individuals.”

Our determination as to the meaning of the word “person” as employed in these statutes is in harmony with the decision in Grunow v. Simonitsch, 21 N. D. 277 (130 N. W. 835), where, in construing a similar statute, the court said:

“It is perfectly apparent to our minds that until the enactment of section 4682, the legislature had in the most explicit manner expressed its intention to restrict such appointments to natural persons. By the enactment of section 4682 it is equally apparent that the only change which the legislature intended to make in the existing statute was to permit domestic annuity, safe deposit, and trust companies to receive such appointments.”

See, also, In re Avery’s Estate, 45 Misc. Rep. 529 (92 N. Y. Supp. 974).

In the year 1889 the law relative to the administration of estates of decedents, and the execution of trusts was changed by enactment. 3 How. Stat. (2d Ed.) chap. 104, §§ 6476-6510 (2 Comp. Laws 1915, § 8044 et seq.). Except as authorized under said act, no corporaiion in Michigan is empowered to administer trusts or to act as executor or administrator. A corporation may exercise only those powers conferred upon it by its charter under the law of its organization. In authorizing certain corporations organized under the act in question to execute trusts and administer estates, the legislature imposed very stringent conditions. It fixed a minimum capitalization, required the investment of a certain percentage of the capital in specified securities, and compelled the making of a fixed deposit with the State treasurer for the purpose of securing depositors and creditors; it fixed the number and qualifications of directors and imposed penalties for fraud and embezzlement; it regulated investments of the corporation, and provided for complete supervision by the State banking department. Many of the regulations imposed could not be complied with by a national bank.

We cannot agree with the contention of counsel for respondent that relators must point to a specific prohibitory law — a law absolutely forbidding national banks to engage in the activities specified in section 11 (7c). We believe that the legislature, in the enactment of the so-called trust, deposit, and security statute, and clothing corporations organized thereunder with the powers therein defined, by unavoidable inference excluded all other corporations within the State from the exercise of those powers. Nor do we believe; as claimed by counsel for respondent, that the exercise of such powers by national banks is, at most, contrary only to the public policy of the State. Our legislation upon the subjects involved in section 11 (7c) is so particular and so voluminous, and the legislative purpose so apparent, that we have no hesitation in reaching the conclusion that the exercise of the powers enumerated in section 11 (7c) by national banks would be “in contravention of State law.” While the decision in People v. Brady, supra, on this point is to the same effect, it is, of course, not controlling, because the court of Illinois dealt with the statutes of that State, which differ materially from our own. The same may be said of the decision in Appeal of Woodbury (N. H.), 96 Atl. 299, which arose in the State of New Hampshire.

It is, we think, clear that in the enactment of the trust legislation adverted to the State sought to surround the execution of trusts and the administration of estates by corporations with certain safeguards which would be wholly lost if national banks within the State were permitted to exercise the functions enumerated under section 11 (k).

We are, therefore, of opinion that the prayer of the relators should be granted, and that the respondent be enjoined and excluded from acting as trustee, executor, administrator, and registrar of stocks and bonds. No costs will be allowed.

Osteandee, J.

(concurring). If at any time in this State only individuals could execute trusts, manage trust fúnds, and act as executors and administrators of estates of deceased persons, it was because there had been created no corporation with the proper powers. It was within the power of the legislature to create, or provide for creating, such corporations, and, as the idea of corporate usefulness and efficiency became general, the legislature did provide for creating corporations with the necessary powers. Having provided for the creation of such domestic corporations, foreign corporations, having proper powers, may, upon such reasonable conditions as the legislature may prescribe, be admitted to do in this State what domestic corporations may do.

There is therefor no State policy opposed to corporate trustees, executors, or administrators. No corporation, and for that matter no individual, can in any event act in any of the capacities indicated except by appointment. And a corporation or an individual in such relations is governed by the laws of the State and the orders of State courts.

National banks are, and are not, foreign corporations. They are creatures of Congress, agencies of the Federal government, domesticated in the State. They may sue and be sued in the courts of the State, but the powers they shall possess, their management and control are beyond State authority, except that a bank like the respondent may not exercise certain powers —cannot lawfully possess them — in contravention of State law.

No State law is contravened — opposed, come into conflict with — because a corporation exercises the indicated powers, nor by the act of Congress creating national banks. The legislature has not declared that national banks in this State shall not have the right “to act as trustee, executor, administrator, or registrar of stocks and bonds.” U. S. Comp. Stat. 1913, § 9794 (k) (38 U. S. Stat. 262). And I do not find in Brother Brooke’s opinion reference to any State law that will be contravened if respondent continues to act in the indicated capacities. To say that because the legislature has required certain things of a domestic corporation as a condition to the exercise of the right, and cannot require the same or similar things from national banks, therefore the exercise of the right by national banks will be in contravention of State law, seems to me to be an unsound argument. The bank is here with such structure as Congress has given it, and Congress has in terms declared that, among other functions, it may perform that of a trustee, etc., if anybody wants it to. The mere element of safety of a fund is a matter to be considered by those applying to the corporation to take charge of it, or by the court making an appointment. That one may regard the domestic corporation as the safer institution is not evidence that the other, if it acts, acts in contravention of State law. Certain safeguards surrounding the execution of trusts, etc., by domestic corporations are lost when individuals are appointed to execute them. The individual does not therefore act in contravention of State law.

Mr. Justice Beooke does not point out in what way, if respondent acts within' its apparent powers, the operation of any State law governing trusts, or the settlement of estates, will be interfered with. I am not content to rest so important a decision upon a doubtful inference. We must come, I think, to the question: Has respondent the power which the court is informed it is exercising? The question is a delicate one, less so, I think, because of the decisions of the Federal court. The power of Congress to create national banks is sustained upon the theory that a bank, to the government,

“is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations.” M’Culloch v. State of Maryland, 4 Wheat. 316.
“The bank is not considered as a private corporation, whose principal object is individual trade and individual profit, but as a public corporation, created for public and national purposes. That the mere business of banking is, in its own nature, a private business, and may be carried on by individuals or companies having no political connection with the government, is admitted; but the bank is not such an individual or company. It was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation. * * * Why is it, that Congress can incorporate or create a bank? This question was answered in the case of M’Culloch v. State of Maryland. It is an instrument which is ‘necessary and proper’ for carrying on the fiscal operations of government. Can this instrument, on any rational calculation, effect its object, unless it be endowed with that faculty of lending and dealing in money, which is conferred by its. charter? If it can, if it be as competent for the purposes of the government without as with this faculty, there will be much difficulty in sustaining that essential part of the charter. If it cannot, then this faculty is necessary to the legitimate operations of government, and was constitutionally and rightfully ingrafted on the institution. * * * The operations of the bank are believed not only to yield the compensation for its services to the government, but to be essential to the' performance of those services. Those operations give its value to the currency in which all the transactions of the government are conducted. They are, therefore, inseparably connected with those transactions. They enable the bank to render those services to the nation for which it was created, and are, therefore, of the very essence of its character, as national instruments. The business of the bank constitutes its capacity to perform its functions as a machine for the money transactions of the government. Its corporate character is merely an incident, which enables it to transact that business more beneficially.” Osborn v. Bank, 9 Wheat. 738.

See, also, Farmers’, etc., Bank v. Dearing, 91 U. S. 29.

Undoubtedly all presumptions are in favor of the constitutionality of the act in question here, and Congress is the judge, within the exercise of its powers, of the functions a national bank should perform. But in the reasoning of the judges, in the opinions to which I have referred, I find, I think, a conclusive argument supporting the proposition that Congress has exceeded its constitutional powers in granting to banks the right to act as trustees, executors, and administrators. If for mere profit it can clothe this agency with the powers enumerated, it can give it the rights of a trading corporation, or a transportation company, or both. There is, as Judge Marshall points out, a natural con-, nection between the business of banking and the carrying on of Federal fiscal operations. There is none apparently between such operations and the business of settling estates or acting as a trustee of bondholders. This being so, there is in the legislation a direct invasion of the sovereignty of the State which controls not only the devolution of estates of deceased persons and the conducting of private business within the State, but as well the creation of corporations and the qualifications and duties of such as may engage in the business of acting as trustees, executors, and administrators. Such an invasion I think the court may declare and may prevent by its order operating upon the offending agency.

I concur, therefore, in the conclusion arrived at by Mr. Justice Brooke.

Stone, C. J., and Kuhn, Bird, Steere, and Person, JJ., concurred with Ostrander, J.

MOORE, J. I think the writ ought to be granted for the last reason stated by Justice Ostrander.


author: KUHN, J.

text:
    CHAPMAN v. UNITED STATES EXPRESS CO.
    1. Master and Servant — Federal Carriers Liabilty Act — Negligence — Interstate Commerce.
    Where defendant express company was doing an interstate commerce business ■ in which its express messenger was engaged at the time of his injury that occurred by his falling from a baggage car because his co-laborer had removed the truck they had been using, as plaintiff claimed, he was entitled to recover, if the jury found the facts to be as he contended, and whether or not the fellow servant removed the truck was a question for the jury. 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, § 8658.
    2. Same — Contributory Negugenoe — Proximate Cause.
    Under the Federal act defendant was not discharged from liability on the ground of decedent’s contributory negligence in failing to look before stepping down from the baggage car, although his negligence was the proximate cause of the injury: the negligence of the decedent could only be considered in reduction of defendant’s liability.
    3. Same — Risks Assumed.
    He did not assume the risk of the negligence of his fellow servant in removing the truck without notice to decedent.
    Error to Saginaw; Gage, J.
    Submitted June 21, 1916.
    (Docket No. 73.)
    Decided September 26, 1916.
    Case by Albert H. Chapman against the United States Express Company for personal injuries. Upon the death of plaintiff the suit was revived in the name of Mabel D. Chapman, administratrix of decedent’s estate. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.'
    Reversed.

      Purcell & Travers (George W. Weadock, of counsel), for appellant.

      Wilson & Johnson, for appellee.
   KUHN, J.

The plaintiff died on March 14, 1914, from injuries which he received upon October Í6,1912, while in the employ of the United States Express Company, the defendant herein. This action, instituted by him in his lifetime, was revived after his death in the name of his widow as administratrix of his estate. The defendant was, at the time of the accident, so far as this case is concerned, a common carrier by railroad engaged in interstate commerce within the intent and meaning of the Federal employers’ liability act of 1908 (chapter 149, 35 U. S. Stat. 65, U. S. Comp. Stat. 1913, §§ 8657-8665). It was conceded at the trial that the express merchandise handled at the time of the accident by the deceased was in a large part interstate commerce, that the Federal act controlled, and that a recovery by the plaintiff, if at all, must be by virtue of said act.

The following facts appeared, or might reasonably be inferred, from the evidence most favorably to the plaintiff, in which light they must be construed in view of a directed verdict for the defendant: The deceased was an express messenger on the Pere Marquette Railway, operating between Bay City and Detroit. At the time he was injured he was about to commence his run from Detroit to Bay City, and the train was due to leave Detroit about 2 o’clock a. m. the morning of the 16th of October. About midnight the deceased and his helper brought up a truck loaded with an iron safe and valuables, and these were placed in the express car; then a truck loaded with bread baskets and general merchandise was brought up, unloaded, and a third truck, loaded with the same kind of merchandise, followed. Among the articles put into the car was one basket of bread, which had been put on the truck by mistake, and which was destined to go on another run. It was taken into the car and left standing there until the other things had been put in their places, and then decedent took hold of one of its handles with the intention and purpose of dragging it back onto the truck, which had been left standing about a foot from the side of the car, and the platform of which was about 10 or 12 inches below the level of the car floor. Chapman, expecting to find the truck where he had left it a few minutes before, stepped off backwards without looking, and, the truck having been moved in the meantime, he fell to the platform, and received severe injuries which finally caused his death. At about the time he fell a man known as “New York Slim,'” alleged to be in the employ of the defendant company, was seen standing by the handle of the truck, which had been moved a few feet from the car door. It is the claim of the plaintiff that there was at this time, and had been for a long period prior thereto, a practice and custom prevailing among the porters and messengers that when a truck was before a car door as this one was, that the truck was not subject to removal without the consent of the person who was in the car. At the close of plaintiff’s case a motion for a directed verdict was made by the defendant’s counsel, which was denied. Subsequently, and at the close of all the proofs, defendant renewed the motion, and the trial judge thereupon directed a verdict for the defendant.

The sole questions argued in the briefs of counsel relate to the alleged error of the court in directing a verdict for the defendant, and the ruling out by the trial judge of certain evidence claimed to be admissible as part of the res gestee. This ruling will be first considered.

The deposition of Chapman de bene esse was taken about two months before the trial, and he testified that after he had fallen out of the car—

“I hollered, ‘Who pushed the truck?’ and the baggage-man said, ‘Your own man did.’ ”

It was objected to as being hearsay evidence, which objection was sustained by the trial court. It is claimed by counsel for the plaintiff that this evidence should have been admitted as part of the res gestee. To this, however, we cannot agree for the reason that the answer of the baggageman which was made in reply to a question cannot be said to have been spontaneous, and therefore lacked one of the essential requirements to bring it within the exception to the hearsay rule. See White v. City of Marquette, 140 Mich. 310 (103 N. W. 698); Bernard v. Paper Box Co., 170 Mich. 238 (136 N. W. 374, 42 L. R. A. [N. S.] 930); Rogers v. Railway Co., 187 Mich. 490. The case of Smith v. Railway, 155 Mich. 466 (119 N. W. 640), which it is contended is decisive of this question, did not present a parallel situation, for there the exclamation in question was clearly a spontaneous exclamation ; and it was said by the court:

“It was an instinctive exclamation, made immediately as the car started, called out by the apprehended danger of an accident to his wife, by reason of the starting of the car. 24 Am. & Eng. Enc. Law (2d Ed.), pp. 685, 686, and authorities cited.”

The circuit judge was clearly right in excluding this testimony.

The following are pertinent sections of the Federal employers’ liability act, fixing the liability upon which plaintiff bases his case:

“Sec. 2. That every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in any. of said jurisdictions, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. * * *”
“Sec. '3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of * * * the provisions of this act 'to recover damages, for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. * * *”

Defendant’s counsel urged to the trial court, and now argue in their brief, that there was no evidence of any negligence on the part of the defendant, that the alleged negligence was not the proximate cause of Chapman’s injury, and that Chapman assumed the risk of the fall. The question which, therefore, first presents itself for consideration in this connection is, Was there any proof that an employee of the defendant moved the truck?

George Brennan, who was in the employ of the defendant as a porter, and who was working with the plaintiff in the car at the time of the accident, testified that after Chapman fell he left the car to assist him and pick him up, and that he saw a man known as “New York Slim” standing near the front of the truck near the handle, the truck having been moved out from the car door, and that he appeared to be in a dazed or stupid condition. Chapman, in his deposition, stated that after he fell Brennan, who is frequently referred to in the record as “Irish,” immediately came to his assistance, and that he saw the man who had hold of the truck handle and who came with “Irish” and with “Irish” caught hold of him. Roland P. Gougeon, also an employee of the defendant, was in the express car at the time the plaintiff fell out, and stated that he assisted Brennan in picking plaintiff from the floor of the platform; that he did not know a man by the name of “New York Slim” at that time, but that he did work with him that night in the movement of the trucks and the loading of the freight. William G. Irish, who was employed by defendant as a night bill clerk, stated that he was called to the platform, where he found Chapman supported by some of the men, and that he saw Gougeon and Brennan there; that he saw “New York Slim” standing at the head of the truck, leaning against the tongue which was raised and fastened with a hook, the rear end of which was close to the door, and the head end pointed out towards the opposite track. That this man “New York Slim” was a porter, and had to do with drawing express packages to the cars, drawing them in again, and helping load, and that he was working that night. George E. Cherryman, who was the depot agent for the defendant before and after the accident, but not on October 16th, stated that he knew the man known as “New York Slim,” and that he called him “Al,” that he had employed him as a porter, and that he was incompetent, and was hired by him after he knew it because he could not get men to stay for the amount of money paid them and the amount of work that had to be done, and that therefore he had to take anybody he could get at the time. These witnesses all gave evidence of the practice and custom of handling trucks in operation at the Detroit station; that when a truck was in front of a car door as this one was it was regarded in use by those within the car. The defendant sought to show by the pay roll that the name of the man known as “New York Slim” was Ralph Bowles and that he was not in the employ of defendant on October 16th, having been discharged October 13th. Cherryman testified, however, that he was positive that Ralph Bowles was not the name of “New York Slim,” but he was unable to state what his real name was.

Considering the evidence in the light most favorably to the plaintiffs claim, we are of the opinion that the plaintiff established the elements necessary and essential to entitle him to have the case submitted to the jury, i We think that such circumstances were shown as to justify inferences which bring liability within the realm of probability, and under the rule announced in the recent case of Scott v. Railroad, Co., 182 Mich. 514 (148 N. W. 719), where the Michigan cases are cited, the question should be left to the jury. As was said in Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081):

“Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 613 [19 N. W. 549]; Barnowsky v. Helson, 89 Mich. 523 [50 N. W. 989, 15 L. R. A. 33]. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Railway Co., 58 Mich. 458 [25 N. W. 463]; Hagan v. Railroad Co., 86 Mich. 615 [49 N. W. 509]; Woods v. Railway Co., 108 Mich. 396 [66 N. W. 328].”

See, also, Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 533).

The testimony on behalf of the plaintiff tends fairly to .show that Chapman and his helper had placed the truck load of express packages in front of the express car door; that he and his helper had removed the express packages within the car, including the basket of bread not destined for any points upon his run; that within a minute or so thereafter he had in the ordinary and customary way, proceeded to drag this basket of bread across the car floor to the truck, expecting to find this truck in its position in front of the car door where he had left it; that he slipped out and fell to the platform; that the truck was moved away from the car door, and that immediately after his fall the employee of the defendant known as “New York Slim,” or “Al,” was seen standing at the head of the truck with his hand on the handle thereof, and that no other person or persons were about; that he seemed to be in a dazed condition and said nothing; that in accordance with the well-established custom and practice Chapman relied upon the truck remaining in front of the car door until he had finished with it. We think that these facts and circumstances were sufficient to justify the inference of negligence on the part of an employee of the defendant.

The learned trial judge was of the opinion that the proximate cause of the accident was the failure of Chapman to look before stepping back onto the truck, and that therefore there could be no liability on the part of the defendant. In this, however, he has apparently confused the alleged contributory negligence of the plaintiff with the negligence on the part of the defendant. Under the Federal statute the contributory negligence of the employee does not bar a recovery, but shall be considered by the jury in diminution of the damages in proportion to the amount of negligence attributable to such employee.

Neither do we think that it can be said that Chapman assumed the risk or the negligence of his fellow employees. The Federal authorities seem to hold that in order to make the negligence of the fellow servant one of the assumed risks under this act, the injured employee must actually know of the fact of the negligence of his fellow servant, or that such negligence was so customary that he would be charged with knowledge thereof. In Michigan Cent. R. Co. v. Schaffer, 220 Fed. 809 (136 C. C. A., 413), Circuit Judge Dennison refers to the question of assumption of risk as applied to fellow servants under the Federal employers’ liability act in the following language:

«* * * By Seaboard Air Line v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Am. & Eng. Ann. Cas. 1915B, 475), it is now settled that the common-law defense of assumption of risk remains in actions brought under this statute, but it is also recognized by recent decisions in this court (Yazoo v. Wright, 207 Fed. 281, 285, 125 C. C. A. 25, affirmed 235 U. S. 376, 35 Sup. Ct. 130; Tennessee Co. v. Gaddy, 207 Fed. 297, 298, 125 C. C. A. 41; Illinois Co. v. Porter, 207 Fed. 311, 314, 125 C. C. A. 55; Sterling Co. v. Hamel, 207 Fed. 300, 304, 125 C. C. A. 44) that to make the defense good, in cases depending on the negligence of fellow servants, it must appear: first, that the negligence was either in fact known to plaintiff, or was so customary that he must be charged with knowledge; and, second, that he must appreciate, or be bound to appreciate, the danger. Both these elements are left out of sight in the claim that a verdict should have been instructed against Schaffer. * * *”

In the case of Yazoo, etc., R. Co. v. Wright, 235 U. S. 376, 35 Sup. Ct. 130, Chief Justice White said:

“The impossibility of deducing assumption of the risk from the facts stated is cogently demonstrated by the arguments advanced to establish that the risk was assumed. Thus it is urged that, as in a railroad yard there was danger to arise from the protrusion of cars negligently placed by employees of the company, a danger which the engineer must have known might arise, therefore he assumed the risk of such danger. And, again, the argument is that, even although the engineer did not know of' the protruding cars, and therefore did not consciously incur the great risk to result from the collision, yet as by proper precaution he could have discovered the fact that the cars were protruding, he must be considered to have assumed the risk which resulted from his want of care. But both these arguments have no relation to the doctrine of assumption of the risk and only call for the application of the principle of contributory negligence or of fellow servant.”

In the very recent case of Chesapeake, etc., R. Co. v. De Atley, 241 U. S. 310 (36 Sup. Ct. 364), Mr. Justice Pitney, speaking for the court, says:

“It is insisted that the true test is not whether the employee did, in fact, know the speed of the train and appreciate the danger, but whether he ought to have known and comprehended; whether, in effect, he ought to have anticipated and taken precautions to discover the danger. This is ■ inconsistent with the rule repeatedly laid down and uniformly adhered to by this court. According to our decisions, the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.”

This court construed our own statute (Act No. 104, Pub. Acts 1909), involving language similar to that in force in the act here involved, in Quick v. Railway Co., 175 Mich. 676 (141 N. W. 631), wherein it was said:

“It is clear to us that the construction given by the court to section 1, which places liability upon a common carrier railroad company for injury to any of its employees for all damages which may result from the negligence of such company, its officers, agents, or employees, includes the negligence of all fellow-servants. To accept defendant’s construction of the statute upon the question of the risk assumed by plaintiff of the negligence of a fellow servant would be entirely out of 'harmony with the construction of section 1 of the act already given. To hold the company liable for the negligence of its employees (fellow servants of plaintiff), and allow at the same time the defense of assumed risk to be interposed to defeat such liability, would defeat the very object of the statute in attempting to adopt the rule of comparative negligence in this State. This statute must be construed, if possible, as a whole, and harmoniously. The conclusion is unavoidable that section 1, by its express terms, eliminates the doctrine of the assumption of the risk of the negligence of fellow servants in these cases. Such construction does not create a provision looking toward the safety of employees, but one determining the liability of common carrier railroad companies to their employees.”

We are of the opinion that the issues involved presented questions of fact for the jury to determine, and the court, therefore, erred in directing a verdict. The judgment is reversed, and a new trial granted, with costs to the appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Ostrander, J. KUHN, J.

text:
    GARLOCK v. MOTZ TIRE & RUBBER CO.
    1. Principal and Agent — Acceptance of Offer — Evidence.
    As evidence of the fact of acceptance by an agent of a proposal made by his principal, the acts done in performance may be shown, where they were known to such principal.
    2. Contracts — Mutuality—Implication—Construction.
    Though mutuality is an essential requirement of a contract, a promise to do what is proposed will be implied from acceptance. A contract that leaves one party free to terminate it at will must be construed as authorizing the other party to terminate it also at his option.

    3. Same — Termination—Performance.
    Under an agreement which leaves the agent free to terminate it at will, the principal is authorized to terminate it at will.
    4. Same — Provisions for Termination.
    Where a contract for the exclusive agency of a given make of tires required the agent to exercise diligence to keep a stock of tires on hand, and gave the principal company the right to terminate the contract if it should at any time become dissatisfied with results obtained or manner in which he handled the business, not fixing any period for the duration of the agency, the tire company could put an end to the agency at will.

      5. Same — Damages—Expenses.
    Upon termination by the tire company of the agency, plaintiff could not recover for his expenses in carrying out its conditions or other losses than fthat of getting rid of his stock, for which defendant had received payment.
    Error to Wayne; Hosmer, J.
    Submitted April 20, 1916.
    (Docket No. 47.)
    Decided September 26, 1916.
    Assumpsit by Edward A. Garlock against the Motz Tire & Rubber Company for damages for breach of a contract of agency. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Lucking, Helfman, Lucking & Hanlon, for appellant.

      Clark, Lockwood, Bryant & Klein (Carl B. Grawn, of counsel), for appellee.
    Plaintiff, as the Imperial Motor Company, operated a garage in the city of Washington, D. C., and was selling agent there for White cars and Rauch Lang electric cars.- He acquired the garage in the spring of 1910. Defendant is a manufacturer of tires, said to be especially adapted for use on automobile trucks and electrip pleasure cars. In December, 1911, there were few pleasure cars, and no trucks, equipped with Motz tires in use in Washington. Plaintiff tried a set of the tires upon a particular car, became acquainted with defendant, and accepted a selling agency of the tires, in the execution of which he developed a considerable local use and demand for them. A second agreement was made, the terms of which are embodied in a letter dated November 13, 1912, which reads:
    “Akron, Ohio, November 13, 1912.
    “Imperial Motor Company,
    “Washington, D. C.

      “Gentlemen:

    “Attention Mr. E. A. Garlock:
    “Confirming conversation with your Mr. Garlock yesterday, we have agreed to allow you to work in the State of Maryland, as well as the District of Columbia, and will protect you on any tires shipped into that territory, sold direct by us or sold by you. It is understood and agreed we are to allot you this territory as long as you remain active and produce results, with the understanding that we are at liberty to abrogate this agreement if at any time we become dissatisfied with the results being obtained, or with the manner in which the business is handled. It is understood and agreed that we will notify you in writing to this effect. You' agree to issue guaranty blank with each and every tire, or set of tires, delivered by you. At all times it is understood that you will endeavor to get the customers to sign the guaranty blank. In the event you are unable to secure his signature, you will favor us with an unsigned guaranty blank. You are also to be governed by the rated carrying capacity of the tire as to the sized tire applied. In other words, you agree to see that tires are applied amply large to take care of the load to which they may be subjected. It is also understood and agreed that you will place a salesman in Baltimore and, as business demands, will open up a salesroom. You are also supposed to have a salesman traveling in Maryland and assist dealers in the sale of Motz tires. We agree to favor you with our co-operation at all times and will refer inquiries that we may receive whenever advisable. In the event we deem it advisable to carry on the sale of tires direct, we will so do, but you will receive your commission in the transaction. It is also understood and agreed that you will carry a stock of tires and will take care of the payment on the 10th of the month, following the date of invoice. Agreeing to the above, we will allow you a 15% trade discount from the manufacturer’s list, with a 5% for cash. You are at liberty to sell the tires on our exchange basis. It is also understood' and agreed that you will maintain prices and sell according to our published list. Regarding advertising, this matter was not thoroughly decided upon but we agreed to write the Washington Herald and secure rates and in the event we find it advisable to advertise in the Washington Herald and you are able to secure a better advertising rate than ourselves, we will be very glad to allow you to place the advertising and favor us with a credit memorandum for the amount of the advertising. We also agreed to mention in all advertisements run on Motz tires that you are agent for the Motz tire, and the factory is the Motz Tire & Rubber Company, Akron, Ohio. We believe this will add prestige to the advertising and will produce better results. Now, Mr. Garlock, we believe we have covered the proposition fully and if you can think of anything that has not been covered, we would be very glad to receive a letter on the subject. We would also appreciate a few lines advising whether the above meets with your approval.
    «Very truly yours,
    “The Motz Tire & Rubber Company,
    “P. M. Pontius, Sales Manager.”
    Business was continued under this agreement until, after some negotiations concerning a new agreement, defendant undertook, in February, 1913, to terminate the relations, itself establishing a branch house or direct selling system in Washington. In his declaration plaintiff alleges performance on his part of the first contract — of December 22,1911 — and that in February, 1913, defendant refused to further sell its tires to him or to continue him as its exclusive agent in the territory; that he was ready and willing to perform the contract, and sustained injury and was damaged by defendant’s action. In the second count plaintiff alleges the making of the agreement of December 22, 1911, and the one of November 13, 1912, averring that upon receipt of the letter of November 13, 1912 — -
    “he immediately accepted defendant’s said offer to represent it in said State of Maryland in the sale of its said product and commenced performance of said agreement and actively engaged in promoting sales of and selling defendant’s said tires in said State of Maryland. * * *
    “And plaintiff avers that the said defendant, not regarding its promise and agreements made with plaintiff on, to wit, December 22, 1911, relative to plaintiff representing defendant in the said city of Washington and vicinity in the sale of its tires, as aforesaid, and said defendant, contriving to injure and deceive the said plaintiff, did afterwards and on, to wit, February 10, 1913, wrongfully and fraudulently pretend and insist that said agreement of November 13, 1912, giving plaintiff the said exclusive right to sell defendant’s said product within the State of Maryland, had superseded and abrogated said prior agreement between plaintiff and defendant entered into as aforesaid on, to wit, December 22, 1911, giving plaintiff the exclusive right to sell defendant’s said product within the city of Washington and vicinity; and said defendant did at said time, to wit, February 10, 1913, thereupon refuse to further sell any of its said tires to plaintiff at the terms of and under said agreement of December 22,1911, but did, just as the sale of defendant’s said product within said city of Washington and vicinity would become profitable to said plaintiff, to wit, on February 10, 1913, refuse to sell any more of said product to plaintiff, or to further continue plaintiff its exclusive sales agent within said territory, namely, city of Washington and vicinity, although often requested by plaintiff so to do; and the said defendant also, intending to injure and deceive said plaintiff, did not, nor would, give him the exclusive sale of said tires within said city of Washington and vicinity, but, on the contrary, after, to wit, February 10, 1913, said defendant did install within said city of Washington a branch house for the sale of its product under its direct supervision and control, and did thereafter, and has up to the present time, been able to sell, by reason of the demand for said tires created by plaintiff, as aforesaid, and has actually sold, large quantities of its said tires within said city of Washington and vicinity, in violation of its said agreement of December 22, 1911, with plaintiff.
    “And plaintiff further alleges that he was, on said February 10, 1913, and at all times thereafter, ready and willing to perform and execute all things on his part to be performed under said last-mentioned agreement and contract, but that said defendant has ever since neglected and refused to sell plaintiff its said product, or to make plaintiff its exclusive agent within said last-named territory, or to permit plaintiff to carry out and perform his part of said agreement”
    —and that he suffered injury and was damaged by defendant’s action in loss of profits, loss of the value of his services from December 22, 1911, to February 10, 1913, and large sums of money expended by him in creating a demand for the tries. The third count does not materially differ from the second. The declaration concludes with the common counts in assumpsit. Plaintiff’s bill of particulars is:
    To moneys expended and liabilities incurred by plaintiff, between, to wit, December 1, 1911, and February 15, 1913, in creating a demand for and in selling defendant’s product, to wit, Motz tires, in Washington and vicinity, to wit:
    Advertising ................................. $6,807 52
    Salesmen and solicitors ..................... 3,802. 47
    Freight' and express on Motz tires and mise. expenses .................................. 1,186 28
    Shop labor ................................. 1,319 63
    Shop supplies ............................... 21 24
    General expenses............................. 2,118 67
    Office expense ............................... 864 50
    Insurance .................................. 69 98
    Interest ........... 1,848 00
    Personal services (plaintiff) to wit.......... 5,000 00
    To loss of profits on sales of defendant’s product in Washington and vicinity from, to wit,
    February 15, 1913, to date, to wit.......... 10,000 00
    To loss of profits on future sales of defendant’s product in said territory, to wit, upwards of 25,000 00
    To interest thereon, to wit................... 5,000 00
    Plaintiff offered testimony tending to prove that he performed properly his duties as agent, and made considerable outlays of money to increase the sales of defendant’s tires in the territory; that the action of defendant left him with a considerable stock of tires on hand, which were sold at a loss, and a lease of premises, which he was unable to re-rent. He offered also testimony tending to prove that defendant canceled the agency contract, not because plaintiff failed in any particular'to perform the contract and to advance sales, but for the reason that he built up a business so remunerative that defendant wished to save commissions —or what was equivalent thereto in discounts — and for mere additional profits to itself established a branch house. Plaintiff contended that he was entitled to damages :

      First, for the loss of profits on repeat orders.

      Second, for the actual moneys expended in promoting and working up a market in his territory for defendant’s product.
    No testimony was introduced by defendant, who moved, when plaintiff rested, for a peremptory instruction,in its favor, which motion was granted. Referring to the two contracts, the court said to the jury:
    “It seems to me, gentlemen of the jury, that this contract has inherently the same vice that belongs to the other contract; that the mere fact that it may be said that he agreed to do these things, for there is an agreement implied by the acceptance of the contract, it is not such an agreement as would render it definite, or would furnish a consideration for a like employment or an employment during which he might be protected, but if I am wrong in that position, the language which is used here — ‘It is understood and agreed we are to allot you this territory as long as you remain active and produce results, with the understanding that we are at liberty to abrogate this agreement if at any time the company is dissatisfied with the results being obtained, or with the manner in which the business is handled’ — whatever may be said upon the good faith as illustrated in other contracts, which have been considered by the Supreme Court of this State, it seems to me beyond controversy that the language which is employed there means that when it became more profitable for the defendants in that case to sell direct than selling through an agency, they were at liberty, under the express clause of the contract, to abrogate the contract and open their branch. Now, under these circumstances, gentlemen of the jury, I feel constrained to remove this case from your consideration. Even if I were to leave it to the jury upon the last contract under the evidence which has been admitted in this case, the other contracts having been closed up, I think — if this supersedes it, it would be difficult for me to lay down to the jury at the present time what damages would arise upon it, and for these reasons I feel, gentlemen, that you are compelled to render a verdict in favor of the defendant.”
    Whether the instruction was right is the question presented.

      Authorities passing on the question of mutuality of contract which by its terms is binding upon only one of the parties for the time designated, see note in 20 L. R. A. (N. S.) 899.

   Ostrander, J.

(after stating the facts). It is unnecessary to cite authority to support the proposition that promises may be a good consideration for promises, and that a contract evidenced by mutual promises may be valid. And acceptance by the agent of a proposal made by the principal may be shown by performance by the agent to the knowledge of the principal of the things which the proposal exacts. A promise to do what it is proposed shall be done may be implied from acceptance of the proposal. Mueller v. Spring Co., 88 Mich. 390 (50 N. W. 319); Emerson v. Packing Co., 96 Minn. 1 (104 N. W. 573, 1 L. R. A. [N. S.] 445, 113 Am. St. Rep. 603, 6 Am. & Eng. Ann. Cas. 973); Kaufman Bros. & Co. v. Manufacturing Co., 78 Iowa, 679 (43 N. W. 612, 16 Am. St. Rep. 462). But mutuality is essential. 1 Page on Contracts, p. 452; 1 Parsons on Contracts (9th Ed.), p. 486, note.

A contract of agency which leaves the agent free to terminate relations with his principal at will ought to be construed so as to leave the principal free to discharge the agent at will, even though the agent has entered upon performance of the contract. And the general rule is that the principal may do this without resulting liability to the agent. Fuchs v. Thermometer Co., 178 Mich. 37 (144 N. W. 484).

“The principal has a right to determine or revoke the authority given to his agent at his own mere pleasure; for, since the authority is conferred by his mere will, and is to be executed for his own benefit and his own purposes, the agent cannot insist upon acting when the principal has withdrawn his confidence and no longer desires his aid.” Story on Agency (9th Ed.), §§ 462, 463.

The mere fact that a contract, even a contract of agency, does not provide for a definite period of duration is not always controlling if some period of duration is necessarily implied, and especially if an independent consideration, other than a promise, moves to the promiser, or it is terminable upon expressed conditions.

In Newhall v. Printing Co., 105 Minn. 44 (117 N. W. 228, 20 L. R. A. [N. S.] 899), one of a line of cases relied upon by plaintiff, the headnotes do not intimate a fact, stated in the opinion, which was that plaintiff paid $135 for the exclusive right to sell defendant’s publication in a specified territory upon certain terms and conditions, the right of the defendant to terminate the contract being limited to the causes, or reasons, dishonesty, incompetence, negligence, inattention, or irresponsibility of the plaintiff. The opinion, however, recognizes the general rule and cites, among other cases, Carnig v. Carr, 167 Mass. 544 (46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488), in which case there was an independent, executed consideration moving from the employee. See, also, Hobbs v. Light Co., 75 Mich. 550 (42 N. W. 985); Stearns v. Railway Co., 112 Mich. 651 (71 N. W. 148); Raymond v. White, 119 Mich. 438 (78 N. W. 469); Alderton v. Williams, 139 Mich. 296 (102 N. W. 753). See a review of authorities in Sullivan v. Railway, 135 Mich. 661 (98 N. W. 756, 64 L. R. A. 673, 106 Am. St. Rep. 403).

In Fuchs v. Thermometer Co., supra, it is stated in the opinion that plaintiffs counsel disclaimed an employment for any definite time.

In Kaufman Bros. & Co. v. Manufacturing Co., supra, it appeared that plaintiffs were wholesale dealers in cigars in the city of New York and defendant a corporation of Dubuque, Iowa, selling cigars in territory tributary to that city. Plaintiffs agreed to give to defendant the exclusive right to sell in Dubuque and country tributary thereto a certain brand of cigars, which plaintiffs had the exclusive right to manufacture. In consideration the defendant was to employ men to travel and sell the cigars and establish a trade for them in the said territory, and did so employ men, who expended time and money in building up a trade for the cigars. Plaintiffs were to ship cigars when ordered and as long as defendant desired to deal in the cigars and pushed them, or so long as trade continued. The agreement was observed for a time, and then plaintiffs refused to furnish defendant cigars for the trade, and sued for the value of a quantity already furnished. The questions determined arose upon cross-claims of defendant. The court found the contract not indefinite as to its duration, and, necessarily, that plaintiffs could not terminate it at will.

In Willcox & Gibbs Sewing Mach. Co. v. Ewing, 141 U. S. 627 (12 Sup. Ct. 94), the court considered an agreement of the parties, by the terms of which Ewing was appointed exclusive vendor of the other’s sewing machines and attachments and parts in specified territory. There were various conditions, with an agreement that if at any time the connection ceased, first party would buy back such of its goods sold to second party as first party might select. Second party agreed to purchase not less than $20,000 worth, net, of machines and parts in a year, an equal amount each month. “Violation of the spirit of this agreement shall be sufficient cause for its abrogation” was one of the clauses in the contract. In discontinuing the relation Ewing was notified that the company would take off his hands the store he occupied and purchase the fixtures therein if he desired to sell and all stock Ewing had on hand obtained from it. Ewing denied the right to cancel the agreement,'claiming that it was for life or the continuance of the company in business, provided he did his duty. The court, Justice Harlan writing the opinion, said this position was untenable, there being no condition to the effect that so long as he devoted his time, attention, and abilities to the company’s business, he should retain his' position as exclusive vendor within the territory specified, without regard to its wishes. Of the clause of the agreement above quoted, it was said that it was not equivalent to a specific provision declaring, affirmatively, that the contract should continue in force for a given number of years', or without limit as to' time, unless abrogated for cause. “It was inserted by way of caution. * * *” And it is added that of course revocation by the principal of the agent’s authority could not injuriously affect existing contracts made by the latter under the power originally conferred upon him. The court affirms the doctrine that if Ewing had the privilege, upon reasonable notice, of severing the connection, a like privilege could not be denied the company.

In McKell v. Railway Co., 175 Fed. 321 (99 C. C. A. 109, 20 Am. & Eng. Ann. Cas. 1097), the contract, considered was one to purchase the production of coal mines. The owner of coal lands made a contract with the railroad company, by the terms of which the landowner agreed to develop mines on the land to a stated capacity, and the company agreed to build a branch line to the mines and to purchase the coal produced at the ruling price of a certain other coal. There was no provision for the duration of the contract. It was held that the agreement was not terminable at the will of one party, but was permanent so long as the stipulated production' was maintained, unless terminated by consent of both parties. The opinion contains an interesting citation and review of authorities, including Franklin Telegraph Co. v. Harrison, 145 U. S. 459 (12 Sup. Ct. 900); Western Union Telegraph Co. v. Pennsylvania Co., 129 Fed. 849 (64 C. C. A. 285, 68 L. R. A. 968); Mississippi Logging Co. v. Robson, 69 Fed. 773 (16 C. C. A. 400); Great Northern R. Co. v. Railway Co., 5 De Gex & Sm. 138; Llanery Railway, etc., Co. v. Railway Co., L. R. 8 Ch. App. 942 (7 H. of L. 550). The court makes this distinction:

“The case before us is to be differentiated from those which relate to contracts for personal service and special confidence, where there is an implication that the parties intended that it should not be prolonged if either of the parties should become dissatisfied.”

Plaintiff, citing Hollweg v. Brokerage Co., 197 Fed. 689 (117 C. C. A. 83), says that:

“The services rendered by plaintiff under the first contract and the working up of a market and sale of thousands of dollars of defendant’s product forms a sufficient consideration for defendant’s promises in the second contract, where under the second contract large quantities of tires were sold by plaintiff.”

But the case cited and the one at bar are wholly dissimilar, as a reference to the opinion cited will disclose.

Stipulations in the contract before us are pointed out by plaintiff’s counsel, and the argument, in part, proceeds as if they were relied upon as independent considerations for defendant’s undertaking. The placing of a salesman in Baltimore and the opening up of a salesroom, a man to travel in Maryland, and the carrying of a stock of tires to be paid for at a specified time after invoice are all referred to. These things were, however, rather incidents of the agency than separate considerations for the agreement. Unless, therefore, there is in the contract a period fixed for its duration, definite or indefinite, with reference to which provision of the contract it may be assumed that both parties made the agreement, the defendant and the plaintiff had the right to terminate it at will. The only reference to duration is:

“It is understood and agreed we are to allot you this territory as long as you remain active and produce results, with the understanding that we are at liberty to abrogate this agreement if at any time we become dissatisfied with the results being obtained, or with the manner in which the business is handled.”

This provision must be read with the remainder of the contract and with reference to what was desired and sought to be accomplished. In Carnig v. Carr, supra, it was said:

“To ascertain what the parties intended by ‘permanent employment,’ it is necessary to consider the circumstances surrounding the making of . the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood.”

So here the language I have quoted indicates some period of duration of the proposed contract relations; its real meaning to be determined.

Assuming, as I think we must, that the contract of November 13, 1912, was the only contract between these parties, is an agency contract, provides for some period of duration, and that its terms are controlling of the rights of the parties in so far as it has been executed, the question remains: What period of duration was agreed upon? Clearly, no definite period is fixed. It is absurd to say that the contract was not terminable at the will of plaintiff and also say it was by agreement terminable only when he chose to become inactive and not produce results. The contract belongs to the class referred to in Isbell v. Carriage Co., 170 Mich. 304, 313 (136 N. W. 457, 460), in this language :

“It was an agency in the nature of employment to render services involving something more than the operative fitness or mechanical utility of a tangible thing. It involved personal efficiency, energy, initiative, business experience, and ability to formulate methods and make them successful, as well as co-operation and confidential relations with defendant of such a character as to lead to the conclusion that the parties contemplated, and provided for, the right of defendant to terminate the relationship when, according to his own fancy and judgment, the work done and methods pursued were not satisfactory.”

In that case the duration of the contract relation was fixed at a period of five years. Here it is fixed for a period only so long as defendant is satisfied. There is no definition of activity or estimate of results to be produced which shall be deemed satisfactory to defendant. Defendant does not engage itself to be satisfied with any manner of handling the business. The provision for cancellation — allotment of territory — is open to the construction placed upon it by the learned trial judge, namely, that the defendant was at liberty to instal a branch house and sell direct to customers when it became satisfied that was the better method of conducting, its business in that territory.

It remains to be considered whether in this view of the contract relations plaintiff may recover for any disbursements made in executing the contract, or on account of any contracts he may have entered into in performing it so far as it was performed. It is to be observed in this connection that in whatever plaintiff did in performing the contract there was an expected mutual profit. The more tires he sold, the greater was his income. There is no legal basis for computing any loss he may have sustained on account of having employed salesmen or rented a building. Suppose he had made a lease for ten years or more, and was unable to dispose of it. How much of the rental ought defendant to pay?

There is a single item of alleged loss which, in my opinion, may be held to have been contemplated by the contracting parties. The plaintiff was required to carry a stock of tires, how large a stock is not stated. Having bought them, plaintiff was at liberty to sell them again, during or after the period of the agency; if after, of course, in competition with defendant. If he had bought and was carrying, when the contract was abrogated, only a stock of reasonable size, with reference to the business he was doing, it represented a direct outlay of money, all of which defendant received, plaintiff’s profit depending upon a resale. If they were disposed of reasonably at less than defendant received for them, defendant should bear the loss.

Defendant will recover costs of this court as upon an affirmance of the judgment, which, however, is reversed and a new trial granted upon the single issue suggested.

Stone, C. J., and Bird, Steere, and Person, JJ., concurred with Ostrander, J. .

KUHN, J.

I am of the opinion that no costs should be awarded to either party. Otherwise I concur.

Moore and Brooke, JJ., concurred with Kuhn, J.


author: Bird, J.

text:
    LOVELAND & HINYAN CO. v. WATERS.
    1. Carriers — Delay—Directing Verdict.
    Where plaintiff shipped two carloads of potatoes subject to its order, which had been sold to another party, ‡0 whose inspection the potatoes were subject, and the consignment took 9 and 11 days, respectively, to arrive, plaintiff’s evidence tending to show that the distance was 600 miles, and the usual time five days, raised an issue for the jury in an action for the failure to transport promptly.
    2. Same — Damages.
    The proper rule of damages is the difference between the market value of the property at the time and place at which the delivery should have been made and the same value when delivery was actually made, and where the testimony showed the invoice price to be the same as the market price at the time the potatoes should have arrived, the instruction of the trial court that the damages should be the difference between the invoice price at the time and place of shipment and the market price at destination at date of arrival, was, in effect, in accordance with the rule; defendants were liable, not only for the damages caused by failure to transport promptly, but also for failure to notify plaintiff within a reasonable time of the consignee’s refusal to accept the potatoes because of the delay in transportation.
    3. Same — Receiver—Contracts—Adoption.
    And where’ the potatoes were shipped on the day before the carrier railroad went into the hands of receivers, the cars still being on the lines of the railway, the action would lie against the receivers, who would be held to have adopted the contract.
    4. Pleading and Practice — Objections — Depositions — Court Rules.
    Objections made to the form of certain depositions and their return to the court must be made, under Circuit Court Rule 41, before trial.

      Error to Kent; Perkins, J.
    Submitted April 6, 1916.
    (Docket No. 21.)
    Decided September 26, 1916.
    Assumpsit by Loveland & Hinyan Company, a corporation, against Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, , for damages for delay in transit of two carloads of potatoes. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown, for appellants.

      Hall, Gillard & Temple, for appellee.
   Bird, J.

On April 4, 1912, plaintiff delivered to the Pere Marquette Railway Company at Hart two carloads of potatoes, consigned to Clarksburg, W. Va., subject to its own order. The potatoes had been sold to S. C. Watkins & Co. for $1.48 a bushel. The bill of lading provided for notice on arrival to Watkins & Co., and also permitted inspection. One car arrived at its destination on April 13th, and the other on the 15th. Watkins & Co. were notified, but they refused to accept them. The potatoes were subsequently sold for $1.20 a bushel on the Clarksburg market. Plaintiff seeks by this suit to recover the difference between the invoice price and the price for which they were finally sold on the Clarksburg market, on the ground that the defendants failed to transport them within a reasonable time, and on the further ground that they failed to notify plaintiff within a reasonable time after Watkins & Co. refused to accept them. Judgment passed for plaintiff, and defendants assign error on the proceedings of the trial court.

1. Defendants claim they should have had a directed verdict, because of plaintiffs failure to show that the time consumed in transporting the cars was an unreasonable time. The cars were taken by defendants on their own line from Hart to Toledo. They were then delivered to the Belt Line, and presumably by it delivered to the Hocking Valley or Ohio Central Lines, which in turn handed them over to the Baltimore & Ohio Railway, on which road they reached their destination. The distance traveled was approximately 600 miles. Plaintiff offered testimony that five days was the usual time in which such shipments reached their destination in the Clarksburg territory, and it does not appear to be seriously denied by defendants’ testimony. The question as to whether the cars were moved to their destination within a reasonable time was properly left to the jury.

2. Exception is taken to the rule of damages which the court gave to the jury. The court instructed the jury that, if plaintiff were entitled to recover, it was entitled to recover the difference between the invoice price at the time and place of shipment and the market price of potatoes at Clarksburg on the 13th of April. The rule contended for by defendant was the difference between the market value at Clarksburg on April 9th (when they should have arrived) and April 13th (when they did arrive) as to the one car, and April 15th as to the other.

The rule of damages in cases of delayed transportation where the elements of falling markets and deterioration of the property are involved was recently restated by this court in Lyons v. Railway Co., 185 Mich. 417 (152 N. W. 88). It was there said:

“ ‘Where there is a delay for which the carrier is liable, the measure of damages is the difference between the market value of the property at the time and place at which the delivery should have been made and the same value when delivery was actually made, whether the difference in value was the result of a decline in the market, or of an injury suffered by the goods in consequence of the delayed delivery.’ 5 Am. & Eng. Enc. Law (2d Ed.), p. 384.”

The instruction of the trial court'that plaintiff was entitled to recover the difference between the invoice price and the market price at Clarksburg was, in effect, an instruction in accordance with the foregoing rule, because the invoice price was shown by the testimony to be the same as the market price at the time they should have arrived at Clarksburg. Defendants’ application of the rule was too narrow as plaintiff claimed, not only for the delay in transportation, but for a failure to notify it within a reasonable time after the cars were refused by Watkins & Co.

3. It appeared that the potatoes were delivered to the defendant railroad company at Hart on April 4th. On April 5th the road went into the hands of the defendant receivers, and, upon the assumption that the cars had left the possession of the railroad at Toledo before the receivers were appointed, defendants argue that this action would not lie against them. We think it is obvious from the testimony that the cars were still in the possession of the railroad when it went into the hands of the receivers, and, assuming that to be the fact, the contract was adopted by them. High on Receivers (4th Ed.), § 323.

4. Several objections are made to the admission of certain depositions which were offered and received. The objections made go to the form of the depositions and their return to the trial court. Such objections should have been made earlier or in advance of the trial. Circuit Court Rule 41. The failure to make the objections in accordance with this rule fully justified the trial court in overruling them.

An examination of the other errors assigned discloses no reversible error.

■ The judgment must be affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Osteandee, Mooee, Steeee, Beooke, and Peeson, JJ., concurred.


text:
    CAREY v. CAREY.
    Divorce — Extreme Cruelty — Evidence.
    Conflicting testimony in a divorce proceeding in which, the husband charged extreme cruelty and drunkenness, held, Insufficient to prove the averments of his cross-bill.

    Appeal from Wayne; Gilday, J., presiding.
    Submitted April 17, 1916.
    (Docket No. 48.)
    Decided September 26, 1916.
    Bill by May H. Carey against Cornelius Carey for a divorce. Defendant filed an answer in the nature of a cross-bill asking for a divorce. Complainant withdrew the original bill of complaint. From a decree dismissing the cross-bill, defendant appeals.
    Affirmed.

      Frank Brennan, for complainant.

      McHugh, Gallagher, O’Neil & McGann, for defendant.

      For authorities passing on the question of drunkenness as a ground for divorce, see note in 34 L. R. A. 449.

   Bird, J.

The parties to this suit were married in August, 1910, and separated in August, 1913. They are young people. Defendant a short time before the marriage graduated at the Detroit Medical School, and began his professional life at Halfway, in Macomb, county. Two children came to them; Richard in May, 1911, and the other child was born after they separated. Richard was drowned when about two years old. In August, 1913, complainant filed her bill for divorce, charging defendant with extreme cruelty. Defendant answered denying complainant’s charges, and filed a cross-bill. In his cross-bill he charged complainant with extreme cruelty, and alleged that the extreme cruelty was the result of her drinking intoxicating liquors. In this connection he charges that the first year of their married life she was intoxicated as often as once a week, and that the habit grew on her, and that the following two years she was intoxicated oftener than that. Before the hearing, complainant asked permission to withdraw her bill of complaint, and it was granted. .This left the contest on defendant’s cross-bill. A large number of witnesses were sworn for both parties. After hearing all of the testimony that was offered, the chancellor dismissed defendant’s cross-bill; it being his opinion that defendant’s proofs failed to establish his charges.

Defendant testified to the several acts of cruelty alleged in his cross-bill, and complainant denied most of them, and justified her acts as to others. The storm center of the testimony soon gathered around the question of her indulgence in intoxicating liquors. The defendant testified that she was intoxicated as often as once a week the first year, and oftener after that. Complainant denied that she bought or drank liquor. She produced a large number of witnesses to disprove the charge. Only a small part of this testimony, however, was of any value, because while the witnesses had known her prior to her marriage, they had known and seen very little of her since her marriage. Defendant showed sales of liquor to her by a saloon keeper who kept a place near by, and a servant girl testified that she had gotten liquor for her on two occasions, and had seen her take whisky and hot water on one occasion, but admitted that she had never seen her intoxicated. Complainant admits that she took liquor when she was ill, and we think it is clearly established that she bought some liquor and served it on occasions to callers and invited guests, but no witness on either side, save the defendant, testified having seen her in a state of intoxication. The people who would be apt to know something of her habit, if it existed, were the servants in the household and the neighbors. Several of these were sworn in defendant’s behalf, but they denied ever having seen her intoxicated. As the chancellor suggested in his opinion, it would be very difficult, indeed, for a wife to have the habit of drinking liquor to the extent described by her husband for a period of three years without some one in the household or neighborhood knowing of it. Whatever may be the real truth concerning this charge, the testimony relating thereto is not such that we can say it is established. During the three years that these people lived together, they appear to have had disagreements and quarrels, and at times each made it very uncomfortable for the other, but outside of the question already disposed of, their troubles do not appear to have been very serious — perhaps not more so than occur in a great many families. The testimony, as a whole, does not impress us that such a case of extreme cruelty is made out as ought to be followed by a decree of divorce.

The decree of the trial court is affirmed, with costs to complainant.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred.