author: Brooke, J.

text:
    CANFIELD v. TOWNSHIP OF GUN PLAINS.
    1. Highways and Streets — Defects—Municipal Corporations— Negligence.
    No evidence of notice or knowledge that a highway had become slightly undermined near the edge of a fill of about 70 or 80 feet long and three feet deep appearing in the record, it was error to submit that question to the jury in an action for injuries to plaintiff’s separator which was damaged by falling down the embankment, at a point where the traveled portion was safe and of sufficient width for traffic.

    2. Same.
    Upon testimony in plaintiff’s behalf that the separator, which was attached to his engine by a chain allowing a play of about 10 inches, commenced to deviate from the road just before passing on the fill in the highway, and that he proceeded upwards of two rods thereafter without paying any attention to the separator which slipped down the side at a point where the highway was about nine feet wide, the court should have instructed the jury that plaintiff was guilty of contributory negligence; the fill being wide enough to allow the machines to pass if reasonable precautions were adopted.
    3. Same — Guards.
    From the absence of a railing or guards at the side of a three foot fill, of the width of nine to eleven feet, negligence should not be inferred.
    Error to Allegan; Cross, J.
    Submitted April 9, 1913.
    (Docket No. 13.)
    Decided May 28, 1913.
    Case by Boaz Canfield against the township of Gun Plains for injuries to plaintiffs threshing outfit occurring on the highway. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Edward J. Anderson, for appellant.

      Charles h. Dibble, for appellee.

      Laurence W. Smith, for Michigan Threshing. Men’s Association, amicus curios.

       The Question of the liability of townships for defects in highways is discussed in a note in 13 L. R. A. (N. S.) 1219.

   Brooke, J.

Plaintiff recovered a judgment against defendant for $100 for damages to a threshing machine and for loss of profits while said machine was being repaired. Plaintiff’s outfit consisted of an engine weighing six tons, and a separator weighing three tons. From outside to outside the wheels of the engine were 6 feet 8 inches, with a tread of 17 inches. The outside measurement of the front wheels of the separator was 6 feet, and of the rear wheels somewhat more, with a tread of 6 or 8 inches. In moving from place to place plaintiff hitched the separator behind the engine. The tongue of the separator was the length of an ordinary wagon tongue, and was fastened with a chain, which allowed a play of about 8 or 10 inches. At the point where the accident occurred, there was a slight fill in the highway about 70 or 80 feet long, and from 9 to 11 feet wide. The fill ran east and west, and the ditch upon the north side was approximately 3 feet deep.

There was a small hill at the west end of the fill. At the foot of this hill, and as the plaintiff with his outfit entered upon the fill, the rear wheels of the separator commenced to veer from the beaten wagon track towards the north. The distance between the northerly track of the road to the edge of the fill is variously given in the record, but was probably approximately three feet. This space was covered with sod.

Plaintiff himself was steering the engine. The farther he proceeded in an easterly direction upon the fill the more the rear wheels of the separator tended toward the north, until, after running thus some two rods or more, the northerly rear wheel reached the edge of the fill, the sod broke down, and the separator tipped over on its side. In falling some attachments were broken.

Plaintiff paid out for the parts necessary to repair the machine $29.85, and testified that after the repairs were made the separator was worth $100 less than it was before the accident. The machine was idle one week while the repairs were being made, and plaintiff was permitted to testify, over objection, that he lost in profits that week the sum of $100.

Plaintiff’s first witness, John Honeysett, described the situation at the fill as follows:

“Q. You could see just how the fill was when you went over it in broad daylight?
“A. I could see that all right. There were a few bushes there, down further where he tipped over; none right on the bank. It’s all clear. There are some alders and blackberry brush on the other side. I don’t know why you could not see the ground if you looked. He had 20 feet he could turn to the right, if it was not for the brush. I presume likely some of them were low brush, and some of them were probably higher than my head. He could not tip over on that side. These bushes were about as high as my head; some about as large as your finger, and some might be bigger. It was no trouble to run an engine over them, if they wanted to. I know of a number of threshing machines going along that road for years before. They had no trouble to my knowledge. I did not notice any washing along there at where the hind wheel went down. I was not over that road much that spring and summer as I have been the years before.”

Plaintiff himself testified:

“Jack [Honeysett] went clear to the corner to a point where I could see the fill where the machine went over. Jack went down to show me the bad places. The embankment down on one side and plenty of room on the other. He said: ‘That is all right; that looks all right.’ I looked at it and saw it right there for a distance. * * * When I struck the fill, I could see the whole length of it.”

Plaintiff further testified that the space between the north wheel track and the edge of the fill was covered with sod, and that it was undermined a little. Further:

“I did not say I could put the shovel in under the bank. I could put the shovel in the bank and cave it off; that was after the accident. In walking along there you could not see any defect in the highway. It did not show any defect. * * *
“Q. I want your judgment; do you claim there was any cave under the fill where the hind wheel went down?
“A. There must have been.
“Q. Did you see any?
“A. I saw after it had been caved off.
“Q. You don’t know whether there was any there or not, do you?
“A. There wasn’t any when the separator wheel crushed it down.
“Q. How do you know there was before?
“A. What is the use of saying I know, when I don’t know?”

Plaintiff further testified that neither he nor Meacham, who was in the cab with him running the engine, looked back to see if the separator was all right.

“Q. You were not paying any attention to the separator, nor the men behind? Tell the jury whether you were or not.
“A. We couldn’t see it.
“Q. Were you paying any attention to that?
“A. If we had been, it would not have happened.”

On behalf of defendant, Charles Fullegar testified in part as follows:

“I live in Gun Plains township. Have for 44 years. About three-fourths of a mile across from Rumble’s. Have been on the Rumble place hundreds of times. Did threshing there for 12 years with a traction engine. Have been over that road in front of Rumble’s as many as 20 times with a traction engine and separator. I had a short tongue, and didn’t have any chain in the tongue. Never had any trouble getting over it. I was there the day they got the engine out. Never had been any washouts in that road. I noticed the wheel track in the sod. I should say between two and three rods.”

At the conclusion of the testimony defendant requested the court to direct a verdict in its favor upon the following grounds:

“Under the undisputed evidence in this case the plaintiff was guilty of contributory negligence at the time the separator tipped over; and hence he cannot recover. Under the undisputed evidence in this case you will return a verdict of no cause of action.”

We are of opinion that the motion should have been granted." There is no evidence in the record that the fill, at the point where the accident occurred, was not. apparently in reasonable repair and in a condition reasonably safe and convenient for public travel. In other words, assuming that the north bank of the fill at the point in question had become slightly undermined, thus tending to facilitate the happening of the accident, there is no evidence that the defendant had either knowledge or notice of the alleged defect. Indeed, plaintiff himself testified that:

"In walking along there you could not see any defect in the highway. It did not show any defect.”

Aside from this the record clearly establishes the fact that several other threshermen had passed over this fill in safety many times with their outfits. Plaintiff himself had propelled his engine, weighing twice as much as his separator, past the alleged defective spot in safety. The accident occurred, not because the fill was not sufficient to sustain the weight of the separator, but because plaintiff failed to take the necessary precautions to keep the separator traveling properly behind the engine.

Whether ordinary care requires the construction of a railing by the sides of a steep embankment is frequently a question for the jury (Malloy v. Township of Walker, 77 Mich. 448 [43 N. W. 1012, 6 L. R. A. 695]); but we are of opinion that the case at bar is not one in which the jury should be permitted to infer negligence from the absence of such barriers. Nor can such an inference be drawn from the fact that the fill was only from nine to eleven feet wide. In practically every municipality in the State such fills exist. To predicate liability upon a failure to guardj by railing, a fill of only three or four feet on a level highway would, we think, impose upon municipalities a duty greater than the statute imposes.

Plaintiff’s evidence as to prospective profits was improperly admitted. Truman v. Threshing Machine Co., 169 Mich. 153 (135 N. W. 89), and cases there cited.

The judgment is reversed and a new trial ordered.

Stebre, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BYERS v. WILLIAMS.
    Brokers — Commissioners—Contracts.
    In assumpsit by a broker for commissions on the sale of real property that he knew was in the hands of other agents at the time he showed the same to a prospective buyer, who closed the deal through the other firm on terms lower than plaintiff was authorized to propose, the burden of showing that his services were the efficient procuring cause, rests upon plaintiff, and evidence that he merely brought the real estate to the purchaser’s attention is insufficient.

    Error to Calhoun; North, J.
    Submitted April 8, 1913.
    (Docket No. 5.)
    Decided May 28, 1913.
    Assumpsit by Andrew J. Byers against William J. Williams for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Duane C. Salisbury, for appellant.

      James M. Powers, for appellee.

      On the question when a real estate broker is considered as the procuring cause of a sale or exchange, see note in 44 L. R. A. 321. And as to the broker’s right to commission when sale is made by owner in ignorance of broker’s instrumentality in procuring purchaser, see note in 8 L. R. A. (N. S.) 153.
      As to the right to commissions where two or more real estate brokers acting for the same person are instrumental in effecting a sale of property to a certain purchaser, see notes in 23 L. R. A. (N. S.) 164 and 27 L. R. A. (N. S.) 195.

   Stone, J.

This is an action of assumpsit to recover commissions claimed to be due the plaintiff. The plaintiff’s bill of particulars was for services of plaintiff in procuring a purchaser, and acting as agent for defendant in the sale of his farm. In 1910 defendant was the owner of a farm of 100 acres located near the city of Battle Creek. He had listed the farm for sale both with the plaintiff and the firm of Marshall & Taft.

Plaintiff testified that defendant first spoke to him about procuring a purchaser about one year prior to October 22, 1910. Plaintiff listed it in his book as follows: “Williams 100 A. $7,500.” And defendant told plaintiff he would sell the farm for $7,500. Nothing was said about terms, and plaintiff did not ask defendant about terms, and plaintiff knew that he was not to have the exclusive sale, and he had heard that the farm was also listed for sale with the firm of Marshall & Taft; and plaintiff testified that he recognized the right of defendant to list the farm with any other real estate dealer he saw fit. The farm was sold to Thomas A. Carr and wife by contract on November 14, 1910, through the real estate agency of Marshall & Taft, for the sum of $7,000, and defendant paid that firm the sum of $140 as commissions on the sale. Prior to buying the farm Mr. Carr lived in Kalamazoo county. He had a son-in-law by the name of Marion Krum, who lived with his father on a farm near Battle Creek, and Mr. Carr requested this son-in-law to look for a farm, and he would buy it, if satisfactory, and the son-in-law could work it.

Plaintiff testified that a hired man of Mr. Krum’s told him that Mr. Carr and Mr. Krum wanted to buy a farm, and he (plaintiff) requested the hired man to tell Mr. Krum to come and see him before he purchased; that he had a lot of good farms, and would like to show him some. Plaintiff also testified that on October 22, 1910, in accordance with a previous arrangement made over the telephone with Mr. Krum, Mr. Carr, Mrs. Carr, and Marion Krum'came to plaintiff’s place of business; that he hitched up a team and took them to inspect several farms in the vicinity of Battle Creek; that in all they inspected four on the trip, including the farm of the defendant. After inspecting the farms, the party returned to Battle Creek, and Mr. and Mrs. Carr and Marion Krum left plaintiff and went to supper. After supper Mr. Krum came back again and got his horse to go home, and said: “We will talk it over and let you know in a few days.” Plaintiff testified that he had never met Mr. Carr before October 22d, and that was the only time plaintiff showed him a farm; that on said date Mr. Carr asked plaintiff the price of the farm, and plaintiff told him $7,500, and that Mr. Carr did not make plaintiff any offer for the farm; that plaintiff had no further conversation with Mr. Carr until after the sale. Plaintiff on cross-examination testified:

“Mr. Carr did not tell me he would come and see me; his son-in-law, young Mr. Krum, did. I knew Marshall & Taft were also trying to sell the farm, but not to this party. It didn’t make any difference who they sold it to. I knew they had the farm for sale, and the going commission was 2 per cent. * * *
“Q. Now, so far as your relations to Mr. Carr are concerned, the man who finally purchased this property, you did nothing else than take him out one day and show him this farm in connection with three or four other farms, is that right?
“A. Yes.”

It further appeared that plaintiff never asked Mr. Carr to make an offer for the farm, and never told defendant that he had a purchaser for the farm at a price less than $7,500.

Mr. Carr was called as a witness for the plaintiff, and after testifying, among other things, that he bought the farm without looking at it again after plaintiff had showed it to him, on cross-examination the following appears:

“Q. Did you know that your son-in-law, Mr. Krum, told Mr. Byers that he would see him later?
“A. Not that I remember, no, sir; and I never saw Mr. Byers after that time, and he never came to see me; neither did he ever write me a letter regarding it, or ever phone to me; probably it might have been four to six weeks, I could not tell. In the meantime I had looked at other farms in the county. I went back home to Kalamazoo county, and came back. I went to Marshall & Taft’s through my son-in-law’s father. He took me to Marshall & Taft’s office. That was about four weeks after I had been to the farm with Mr. Byers, and gone to my home in Kalamazoo county, and returned. Before that time I had not known Mr. Williams; I had never met him up until that time.
“Q. Now what occurred between you and the real «state firm of Marshall & Taft in relation to this farm?
“A. Mr. Marshall phoned out to Mr. Krum, and we went to Marshall & Taft’s. They had not called our attention to any other farm except the Williams farm, and I, my son-in-law, and his father acting for me had considerable conversation about the Williams farm, and finally I made a proposition to Marshall & Taft, and that proposition was reduced to writing.
“Q. Was Mr. Williams present when that was made?
“A. No, sir.”

The following was the proposition:

“Marshall & Taft,
“Real Estate, Insurance, Loans and Rentals.
“J. L. Marshall. H. W. Taft, 8 E. Main St.,
“Battle Creek, Mich., Nov. 14,1910.
“We, the undersigned, will purchase the 100-acre farm known as the Williams farm, located in Penfield township, section 30, Calhoun Co., and. State of Mich., for the sum of $7,000, and pay for the same in the following manner: On or before March 15, 1911, the full amount in cash. Free and clear title to be given and abstract to date. Mr. Williams hereby assigns his interest, which is one-half of the grain now sown on the premises. Purchaser to pay one-half of machine bill and one-half the fuel bill for threshing.
“I herewith hand you check for $300 to apply on purchase price of property.
“T. A. Carr.”

This proposition and check were taken by Mr. Marshall to the defendant, who, after some parley, wrote at the bottom of the proposition the following words: “I accept above offer and terms. W. J. Williams.” Defendant then came with Mr. Marshall to the latter’s office, and a further agreement was written, and signed by Mr. Carr and the defendant, fixing the time of possession March 1, 1911, and a forfeiture clause of $1,000 should either party fail to fulfill the agreement.

It was undisputed that the firm of Marshall & Taft had advertised this farm for sale for four or five months in the papers at Battle Creek.

Suit was soon begun by plaintiff to recover the commissions claimed. The foregoing fairly represents the claim of the plaintiff upon the trial. He recovered a verdict and judgment in the sum of $144.86 and costs. The defendant has brought the case here on writ of error, and by proper assignments of error claims that upon the plaintiff’s own showing he failed to show that he was the procuring cause of the sale of defendant’s farm, that there was no question of fact to be submitted to the jury, and that the trial court erred in not directing a verdict for the defendant.

Defendant relies upon the following decisions of this court: Wood v. Smith, 162 Mich. 334 (127 N. W. 277) ; Thuner v. Kanter, 102 Mich. 59 (60 N. W. 299) ; Douville v. Comstock, 110 Mich. 693 (69 N. W. 79); Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099) ; Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944).

In our opinion the defendant is correct in his contention. We think that it clearly appeared that plaintiff was not the procuring cause of this sale, on his own showing. He understood that he did not have the exclusive agency for the sale of defendant’s farm. He knew that the farm had been listed with Marshall & Taft, the firm which consummated and brought about the sale, upon terms which the plaintiff had never offered, or been authorized to offer, to the purchaser.

In Whitcomb v. Bacon, 170 Mass. 479 (49 N. E. 742, 64 Am. St. Rep. 317), it was held that where a’ broker does not have the exclusive sale of real estate, he does not entitle himself to a commission merely by showing that his efforts and services were one cause amongst others which contributed to bring about the sale, and that but for them the sale would not have been made, but he must go further and show that his efforts and services were the effective, or the predominating efficient, means of bringing about the sale. Merely bringing the property to the attention of the person who finally buys it is not sufficient in such a case. Dowling v. Morrill, 165 Mass. 491 (43 N. E. 295).

One broker, who is unsuccessful in effecting a sale, does not become entitled to a commission upon the success of another. Ward v. Fletcher, 124 Mass. 224; Crowninshield v. Foster, 169 Mass. 237 (47 N. E. 879).

For a collection of cases upon this subject, see note to Hoadley v. Savings Bank of Danbury, 44 L. R. A. 333-344 (71 Conn. 599).

We are of opinion that the court erred in not charging the jury as requested by defendant, and in not directing a verdict for defendant.

The judgment of the circuit court is reversed; and, as from plaintiff’s own showing he is not entitled to recover, no new trial is granted.

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


text:
    SMITH v. SHERIDAN.
    1. Partnership — Parties—Liability for Debt of Partner.
    For money borrowed by an individual partner before tbe firm was in existence, the partnership is not liable even if the money was applied to partnership purposes.
    2. Same.
    Where one of the members borrowed money, most of which he used to find a suitable location, applying a small part of it to partnership purposes after the formation of the firm, and gave his individual acknowledgment, but later executed to plaintiff, without the knowledge or consent of the other partner, a duebill signed with the firm name, his act was unauthorized and the firm was not liable in an action on the instrument.
    3. Frauds, Statute of — Partnership—Contracts.
    The oral promise of one member of the firm in behalf of the copartnership that the firm should become liable for an individual debt of the other member of the partnership is void under the statute of frauds. 3 Comp. Laws, § 9515 (4 How. Stat. [2d Ed.] § 11399).
    4. Same — Novation.
    In the absence of evidence having a tendency to show that the original debtor was released from liability, the agreement was one to answer for the debt of another.
    5. Same — Contracts—Debt or Default of Another.
    Where plaintiff claimed that one member of the partnership promised that a loan made by her to the other partner should be repaid by the firm, and that she compromised a claim for wages against the firm in consideration of the promise, executing a release in full, the testimony being disputed by defendant, the statute of frauds barred a recovery on the alleged partnership contract.
    6. Same.
    Under 3 Comp. Laws, § 9512 (4 How. Stat. [2d Ed.] § 11396), the consideration for any contract required by the statute of frauds to be in writing need not be set forth in the contract, yet the agreement itself must be in writing, in order to permit recovery.

      Error to Emmet; Shepherd, J.
    Submitted April 9, 1913.
    (Docket No. 17.)
    Decided May 28, 1913.
    Assumpsit by Sarah J. Smith against Thomas J. Sheridan and Nicholas B. Crevling, copartners as the Harbor Springs Woodenware Company, for money had and received. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      W. S. Mesick, for appellant.

      Halstead & Halstead and Hatch, McAllister & Raymond, for appellees.
   Stone, J.

This is an action of assumpsit, brought against the defendants as copartners composing the firm of the Harbor Springs Woodenware Company. The declaration consisted of a special count, and the common counts in assumpsit; the special count alleging that the defendants, on the 3d day of March, 1908, borrowed from the plaintiff $1,050, in consideration of which defendants did, at the date aforesaid, make and execute in the name of the said firm a certain agreement in writing, as follows:

“Harbor Springs, Michigan, March 3, 1908.
“Due Mrs. S. J. Smith, one thousand and fifty ($1,050) dollars, with interest, for value received.
“Harbor Springs Woodenware Company.”

The present suit was begun April 17, 1911. The defendant Sheridan was not served with process, and did not appear.

. Defendant Crevling pleaded the general issue, and gave notice thereunder as follows:

“(1) Payment in full of all demands of the plaintiff against either this defendant, or against said copartnership; (2) that this defendant never signed, executed, or delivered the instrument set forth in the declaration, or authorized any one to do so, and that this was known to the plaintiff when she received it, if it was ever so executed, signed, and delivered at all; (3) that if said instrument was ever signed, executed, and delivered, the plaintiff gave no consideration therefor, and that no consideration therefor existed; (4) that if said instrument was ever signed, executed, and delivered, it was for purposes outside the matters connected with the copartnership heretofore existing between said defendants, and without the knowledge, consent, permission, authority, or direction of this defendant.”

Defendant Crevling also at the same time made and filed an affidavit denying the execution and delivery of the written instrument declared upon; denied that he expressly or impliedly authorized, directed, or empowered, or consented to the execution, signature, or delivery of said instrument by any other person, nor was the said instrument executed, signed, or delivered by deponent, or by any person by him expressly or impliedly authorized to sign, execute, or deliver the same; that if said instrument was signed, executed, and delivered by the said Harbor Springs Wooden-ware Company, the same was executed by the co-partner of deponent, without the authority, express or implied, of deponent, and against the express agreement upon which said copartnership was created, and against the direction of deponent, and without deponent’s knowledge or consent, and for purposes outside of matters connected with said copartnership; and if said instrument was executed by any member of said copartnership in the name of said copartnership, the same was executed by the person or persons who signed, executed, and delivered the same without any authority so to do in behalf of said copartnership; and deponent averred that he never, directly or indirectly, expressly or impliedly, assented to, directed, or authorized the signature, execution, or delivery of said instrument, and deponent therefore denied the signing, execution, or delivery of said instrument. The affidavit further averred that the transaction in which and for which the said instrument was given was not in the line of the business of said copartnership, nor did deponent know that said instrument was to be given until a long time after the execution thereof, to wit, on the 5th day of August, 1911, when the declaration in this case was served; and deponent averred that the same was executed secretly, clandestinely, and unlawfully by his copartner, if the same was executed at all, without the knowledge, authority, or consent of deponent, and in express violation of the terms of said copartnership.

Under the common counts the plaintiff sought to recover a further sum for services rendered to the co-partnership. This last claim was abandoned by the plaintiff at the trial. It is undisputed that in April, 1907, Sheridan borrowed $1,000 from the plaintiff. This loan is the foundation upon which she builds her claim against the copartnership. The plaintiff testified that defendant Sheridan made certain representations to her at that time as to the use he intended to make of the money, and as to a prospective partnership with defendant Crevling, and as to the ultimate source from which payment would be made to her. It was not claimed that defendant Crevling was present when any such arrangement was made between plaintiff and defendant Sheridan, and in fact the plaintiff did not know defendant Crevling at that time. Defendant Crevling had not authorized Sheridan to borrow any money for the prospective partnership; and in fact the partnership was not formed until the 24th of October, 1907, at which time the defendant Crevling knew nothing about any such loan having been made to defendant Sheridan. The plaintiff testified that about a month after this loan she received from defendant Sheridan a paper, which was not produced, but which she testified was signed by Sheridan in his individual name. This paper had been lost.

The deposition of the defendant Sheridan was taken

and read upon the trial of the case. He therein testified that he used all but $150 of this $1,000 in looking up a location for business prior to the formation of the partnership, and that the remaining $150 went into the equipment of the mill which was erected after the formation of the copartnership. The articles of copartnership were in writing, and were introduced in evidence.

It developed on the trial, on the cross-examination of plaintiff, that about the time the copartnership was formed, she got another paper from Sheridan, which she could not produce at the trial, and concerning which her testimony is so vague and indefinite as to be worthless, by reason of her imperfect recollection of its contents and her confusion of this paper with the one first given her by Sheridan. From this testimony it is absolutely impossible to determine the character or legal effect of this second paper. But it cannot be claimed that it was of any greater validity, as an obligation of the firm, than the duebill sued upon, which it is claimed was given to replace it '. Defendant Crevling was not shown to be connected with its issue, or even to have had knowledge of it.

On December 9,1907, the partnership was dissolved by written agreement. In January, 1908, the partnership was re-formed and the original articles, with one immaterial omission, re-executed in writing.

On May 6, 1908, defendant Sheridan left Harbor Springs, and has never returned, since which time defendant Crevling has been in sole charge of the business. About June 20, 1908, plaintiff left the employ of the company. In August, 1908, a suit was begun in justice’s court in the name of the plaintiff against the defendant partnership upon a claim for wages, the same wages that were claimed in this suit. This suit was not commenced by plaintiff herself, but by one Mae Kimball, a friend of hers, who had also sued for wages claimed to be due her. The plaintiff dismissed this suit in justice’s court about August 20th, and at that time gave defendant Crevling a receipt in full as follows *

“Harbor Springs, August 20, 1908.
“Received payment in full for all services rendered the Harbor Springs Woodenware Company up to date.
“S. J. Smith.”

She testified upon the trial that she dismissed this suit, and gave this receipt upon defendant Crevling’s promise that the copartnership would pay her the $1,000 that she had lent to Sheridan. Crevling denied that he made any such promise. He testified, however, that at another time he had told her that he would give Sheridan $1,000 for his interest in the partnership if Sheridan would authorize him to pay the money to the plaintiff, and that the plaintiff said she would try and get Sheridan to agree to this.

It is the claim of defendant that plaintiff’s subsequent conduct comports perfectly with such an arrangement, and is wholly irreconcilable and inconsistent with her claim that Crevling agreed that the co-partnership would assume Sheridan’s obligation. In a letter written September 2,1908, she said to defendant Crevling:

“I wrote to T. J. Sheridan as I agreed to, after meeting you at Harbor Springs. I told him under what circumstances you would pay me $1,000. He said he was pleased to learn that you would pay me $1,000 on his interest in the property, and he would credit you with that amount whether it is settled mutually or at the end of a suit. He says he will not sign off all his interest for that; that would be asking too much. * * * Now here is the offer of settlement he makes or asks: That you pay me $1,000 with interest, and him $1,500 now to help him make a new start, and he will assign the bill of sale and all other interest in the property to you. * * * Now I am sorry, but after all I could do with him, this is what he says. Please let me hear from you as to this.”

September 14,1908, she wrote Crevling another letter, referring to a suit between Mae Kimball and the Woodenware Company:

“She (Miss Kimball) says if she can get a settlement with you she will use all her efforts to get T. J. Sheridan to settle with you for the $1,000. * * * Now I got into this money difficulty with Sheridan the same as yourself, and I will try to help you out the best I can.”

September 18, 1908, she wrote defendant Crevling another letter urging a reply to hers regarding settlément with Mae Kimball, and said:

“As I told you before, I think if she were out of the way, we could more easily settle with T. J. Sheridan.”

September 22, 1908, defendant Crevling apparently answered these letters, for on September 26th plaintiff acknowledged receipt of his letter of the 22d, and regretted that he had not reached an amicable settlement with Miss Kimball, and observed:

“I believe I might have made a settlement with him (T. J.) but for her, but I did all I could with her, but she has been a hindrance to me.”

About October 19, 1908, plaintiff received a letter from Sheridan, in which he acknowledged receipt of hers of the 15th instant, and said:

“I note what you say about Crevling’s offer of settlement, that he will pay only $1,000. This being the case we will have to let the court settle it. * * * If Crevling is willing to pay you $1,000, why does he not do it? I stated in the letter in which I made you the proposition of settlement that I would credit him with the $1,000 and interest on same, if he paid such, on any judgment I might later obtain, and this I am still ready to do, as I am very anxious to see you paid.”

October 21, 1908, the plaintiff sent this letter to Crevling saying: “Hope you may come to some settlement with him.” March 22, 1909, she wrote Crevling as follows:

“I thought of writing to John Star, if I put up T. J. Sheridan’s interest in the H. S. Woodenware Co. for sale at auction, if he would buy it; but on consideration I thought I would see if you would like him in the company with you. * * *
“Now, Mr. Crevling, if there is any other person you think might buy, that you would care more about, please let me know, as I would want to know what amount he would give for it, as I would like to get enough to cover my debt against him (T. J. Sheridan), if possible. You see, then, T. J. Sheridan could not help himself. His interest in the H. S. Wooenware Co. would be taken from him. I thought, of course, for me to ask you to buy it would be the same to you. You know you had previously , told me if I could get T. J. Sheridan to give up his contract with you, you would give me $1,000. So by this way he will lose his claim or contract with you. Now, Mr. Crevling, this is not my say, but ‘legal authority.’ * * * I was surprised when you said you had not gone back on your promise of the $1,000 to me if I could get T. J. Sheridan to give up his contract. * * *
“Now, Mr. Crevling, what I propose doing will be helping you out as well as myself and I think it is worth consideration. Had I heard of this plan before I should certainly have mentioned it. I do hate to have to trouble you, but it may put a stop to the other making trouble and expense after awhile. Oh, how enraged he would be at me if he knew what I was trying to do.”

In August, 1909, the plaintiff commenced another suit in the circuit court against the defendant copartnership, in which she filed a bill of particulars November 27, 1909, and an amended bill July 5, 1910, both of which contained the claim for wages the same as in this suit, and an item of $1,000, loaned January 14, 1908, and neither of which mentioned any duebill or item of any kind under date of March 3, 1908. The last-named suit was discontinued by sipulation of counsel April 10, 1911, a week before the present suit was begun. Some time after the discontinuance last mentioned, plaintiff, who was then in Petoskey, received by mail from Sheridan, who was then in Duluth, the duebill sued on in this case, which was dated back to March 3, 1908. Defendant Crevling had no knowledge of the giving of this paper, and it was never presented to him for payment. At no time between the giving of the receipt in full for services rendered, and the commencement of the first suit in the circuit court, or at any other time, did the plaintiff, or any one for her, call upon the defendant Crevling to perform the agreement which she claims he made with her, when she gave the receipt, viz., to pay her the $1,000.

Upon the trial of this case the plaintiff testified at great length in a rambling sort of way. Among other things, she testified as follows:

“That $1,000 (loaned to Sheridan in April, 1907) is the only thousand dollars that I ever advanced to the Harbor Springs Woodenware Company in any way, and this paper (the duebill) cannot represent any other indebtedness. * * * He borrowed it of me in 1907, about April. * * * I gave this money to him, and he gave me — well, it wasn’t just a note. I asked him for something and he gave me some kind of an acknowledgment. That was in the spring of 1907, and the partnership was organized in October, 1907. * * * I gave the money to Mr. Sheridan with the understanding that I would get it from the company when it formed. * * * I didn’t know him (Crevling) at that time, but he (Sheridan) mentioned the fact of Mr. Crevling going in with him. I didn’t know Mr. Crevling at that time — I hadn’t seen him personally. * * * I got an acknowledgment at that time that he got the $1,000 from me; it was signed by him, Sheridan, in his individual name. I didn’t get it on the day I loaned the money, but about a month afterward. * * * It was drawn out something like a note; it was a promise to pay $1,000. It didn’t say how long after date — a promise to pay $1,000 with profits or interest — something like that, from the mill. Perhaps it said something about valuable mining papers. * * * I think, from recollection, it was put in, in some security. I think so because I would require something of the kind at the time.”

Sheridan testified, by deposition, among other things, as follows:

“Q. You borrowed this money from Mrs. Smith in 1906?
“A. No, sir; 1907. April, I think. * * *
“Q. Did you give her any evidence of the indebtedness at that time?
“A. Yes, I did give her a sort of receipt for the money, showing that I got it from her. * * *
“Q. State as to when the acknowledgment of the debt given Mrs. Smith, which you say she said was destroyed or obliterated — state when that was given to her.
“A. Some time in April — the date I couldn’t give.
“Q. Was that at the time the money was borrowed?
“A. Yes, sir; well, I am not sure; it must have been some time afterwards. * * * I rather think it was some time afterwards that she came to my home and spoke of it and wanted some acknowledgment.”

At the close of the testimony the trial court charged the jury as follows:

“Gentlemen of the jury: The court, after hearing the arguments of counsel, is of the opinion that the claim for $1,000 could not be made before you by the plaintiff in this case, because the only promise on the part of the copartnership to pay the $1,000 was upon the condition that she would withdraw her claim for wages against the partnership — that she. relinquish that — but she never did relinquish it. Without ever asking the copartnership, or without ever asking Mr. Crevling for that thousand dollars, she commenced a suit in this court, not the suit here pending, but one very similar to it, in which she claimed this four or five months’ wages which she was there suing for; therefore there was no consideration moving to Crevling to found a promise on for the payment of this $1,000. It does not appear that the firm, as a firm, ever had the benefit of the $1,000 in any way, shape or manner. This was money that was advanced to Mr. Sheridan months before the copartnership was formed; and, while she undoubtedly has a claim against Mr. Sheridan, she has none against the co-partnership for $1,000. There was a claim which might have been presented to you, for her wages, but that the counsel has abandoned and withdrawn from your consideration. There therefore remains nothing for you to do but to return a verdict of no cause of action.” '

A judgment was thereupon entered for the defendants, with costs. The plaintiff has appealed, and has assigned error: (1) That the court erred in withdrawing from the consideration of the jury the plaintiff’s claim for $1,050, and in directing a verdict for the defendants against plaintiff thereon, and in rendering judgment thereon, for the reasons that there was no consideration for the promise to pay the said sum, and that the defendant copartnership had never received the benefit of the same; (2) the court erred in refusing the request of counsel for plaintiff for leave to amend the plaintiff’s bill of particulars; (3) the court erred in admitting in evidence the letters of the plaintiff. The remaining assignments of error relate to rulings in admitting and excluding testimony upon the trial.

1. The first assignment of error fairly raises the controlling question in the case, and that is: Who was primarily liable to the plaintiff for the loan of her $1,000 ? and if it was Sheridan, then, has his personal obligation been transformed into an obligation of the Harbor Springs Woodenware Company, and, if so, how? That this transaction was in its origin purely a personal one between plaintiff and defendant Sheridan clearly appears by this record and the testimony of plaintiff which we have quoted. Has the plaintiff shown any conduct or agreement on the part of the defendant Crevling that renders him or the copartnership liable for this original indebtedness? It is well settled that a partnership is not liable for money borrowed, or goods bought, or contracts made by a part-' ner in his individual capacity, and not in the character of an agent for the firm, simply because such money, goods, or contracts are applied to the use of, and inure to the benefit of, the firm. This is especially true where a loan was made before the copartnership was formed. 30 Cyc. pp. 483-484, 502-506, and cases there cited. Childs v. Pellett, 102 Mich. 558 (61 N. W. 54); Towle v. Dunham, 84 Mich. 268-279 (47 N. W. 683) ; Whitla v. Butler’s Estate, 99 Mich. 51 (57 N. W. 1082); Hatch v. Reid, 112 Mich. 430 (70 N. W. 889).

By section 9515, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11399); any promise to answer for the debt of another is void unless it is in writing.

While it is well settled that partners are jointly and severally liable for the debts of the partnership, and that an oral promise by one partner to pay the debt of the firm of which he is a member is, in effect, a promise to pay his own debt, and is not within the statute of frauds, yet if neither the partnership nor promisor is originally liable on the debt, the promise to answer for it is within the statute. 20 Cyc. p. 171, citing the following cases: Taylor v. Hillyer, 3 Blackf. (Ind.) 433 (26 Am. Dec. 430), and note; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257; Greenleaf v. Burbank, 13 N. H. 454; Davis v. Evans, 39 Vt. 182.

There is no testimony in this record tending to show that Sheridan was ever discharged from his obligation. The letters of plaintiff and her endeavors to get John Star to buy Sheridan’s interest in the mill, and her entire conduct, absolutely negative the idea that she ever discharged him. Durgin v. Smith, 115 Mich. 239 (73 N. W. 361); Harrington-Wiard Co. v. Manufacturing Co., 166 Mich. 276 (131 N. W. 559).

Counsel for plaintiff claims that the case is brought within the reasoning of Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593), and the numerous cases in this court which have followed that case. We think those cases are clearly distinguished from the instant case.

Nothing here appears by which it can be claimed in any way that defendant Crevling if he made the promise, which is claimed by the plaintiff he did make at the time the receipt in full for services rendered was given, had for its object a benefit he did not before enjoy, accruing immediately to himself, or that it was really paying his own debt and not that of Sheridan.

It cannot be said in any just sense that the debt of Sheridan to the plaintiff was the debt of the company, assumed by the partners, as is urged by plaintiff’s counsel in his brief. It will be noted that it is not claimed that defendant Crevling gave any promise in writing at the time of the giving of the receipt by plaintiff, above referred to. So the case is well within the statute of frauds, notwithstanding that transaction.

And while it is true that under section 9512, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11396), the consideration of any contract or agreement required by the statute to be in writing need not be set forth in the contract, yet the agreement itself must be in writing. The position of the trial judge finds support in Hubbardston Lumber Co. v. Bates, 31 Mich. 158; McQueen v. Gamble, 33 Mich. 344; Pearce v. Alward, 163 Mich. 313 (128 N. W. 210). Yet we prefer to place our decision upon the ground that there has been no promise in writing shown on the part of defendant Crevling, to take the case out of the statute of frauds.

2. Appellant has failed to have returned to this court the bill of particulars in this case, and we are unable to determine whether the court erred in denying the request for leave to amend the bill of particulars or not, as we are unable to determine from the record what is claimed by the assignment of error, not having the original bill of particulars before us.

3. We have examined with great care the entire record as to the remaining assignments of error. Most of them relate to the rulings of the court in the introduction or rejection of testimony. We find no prejudicial error in the rulings of the court upon these subjects, and nothing that would change the result of the suit. The letters of plaintiff were clearly admissible.

We are of opinion that the court reached the correct conclusion in the case, and we find no reversible error in the record. The judgment of the circuit court is therefore affirmed.

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


text:
    LE FLEUR v. MICHIGAN ALKALI CO.
    1. Master’ and Servant — Negligence—Pleading—Declaration— Variance.
    It is not necessary for a plaintiff to prove all the acts of negligence alleged in his declaration: if any unlawful neglect of the defendant is established as charged plaintiff is entitled to recover although the declaration alleges other acts that are not proved.
    2. Appeal and Error — Exception—Evidence.
    To review a ruling of the trial court excluding an answer, an exception is essential.
    3. Master and Servant — Pleading—Promise to Repair.
    Where defendant raised no question as to the sufficiency of the declaration during the trial, and at no time objected to testimony as inadmissible thereunder, it was not error to receive evidence that plaintiff, an employee of defendant, complained to his foreman of certain defects in a saw that he was operating, which the foreman promised to remedy promptly: the evidence being offered to show plaintiff was free from contributory negligence was competent, although the averments of the declaration were not as full as they should have been.

    4. Same.
    And plaintiff was not required to sbow that be bad continued in tbe employment under tbe supposition that tbe repairs bad been made: be was entitled to recover for any injury caused by reason of tbe defective condition about wbicb be made complaint, if be was hurt within a reasonable time afterwards.
    5. Same — Weight of Evidence.
    Tbe trial court did not err in refusing to charge tbe jury that tbe great weight of tbe evidence was that defendant’s saw was sharp and properly set, as claimed by two witnesses for defendant, who were disputed by plaintiff and another: and tbe conflicting evidence relative to tbe alleged promise was also a proper question for tbe jury.
    Error to Wayne; Codd, J.
    Submitted April 10, 1913.
    (Docket No. 36.)
    Decided May 28, 1913.
    Case by Frank Le Fleur against the Michigan Alkali Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Charles Bowles (M. F. McDonald, of counsel), for appellee.

       As to continuing work on master’s promise to remove a specific cause of danger, see note in 40 L. it. A. 782. And upon tbe effect of a promise to repair at some definite future time or after a certain event to suspend tbe doctrine of assumed risk during the interval, see note in 22 L. R. A. (N. S.) 472. And for tbe effect of a master’s failure to repair defects within a definite time promised, where the servant continues to work, see note in 4 L. R. A. (N. S.) 913.
      Tbe question of tbe effect of a promise to repair where danger is great and imminent is treated in a note in 29 L. R. A. (N. S.) 597.

   Stone, J.

Action on the case to recover damages for a personal injury to plaintiff’s left hand on June 9, 1909, consisting of the loss of the first finger between the first and second joints, the cutting and stiffening of the second finger, the severing of the third finger close to the hand, and of the fourth finger between the two joints, thereby practically destroying the use of the entire hand. At the time of the injury complained of, the defendant operated a cooperage shop at Ford City, and while working in this shop, and While using a heading sizer saw, the plaintiff received the injury. The plaintiff had been in the employ of the defendant for over a year. He first operated what was called a crozier; that is a machine for putting grooves into the barrels to take the heading. After continuing at that work for about two months, he was placed at work on a heading machine, where he continued to work until he received the injury complained of. In operating the heading machine, the duties of the plaintiff were to place the headings in the barrels after they came to him with the staves fastened together. A boy was stationed near his side, whose duty it was to fasten the heading together temporarily, by means of a short board from which there extended a number of small, short spears. The plaintiff would then take the heading as it was fastened together in this manner, and attempt to place the same in a barrel. At a distance of about 10 feet from the heading machine, where plaintiff worked, there was located a small circular shaped saw, called a heading sizing machine, or saw. This saw was about 10 inches in diameter, and projected about 21/2 inches above the table of the frame on which it rested. The frame stood about 3 feet high, was 3 feet in length, and 2 feet in width. The saw made about 3,000 revolutions a minute when in use. It was used in matching up; that is, correcting the size of the mismatched or imperfect headings. Whenever the plaintiff received any heading which did not fit, it was his duty to take one of the pieces over to this heading sizer and cut a small strip from the straight edge of the heading, so that it would be reduced to the proper size. In cutting off this strip he would lay the heading flat on the table in front of the saw, place both of his hands upon it, and fin that way push it through the saw. This was a part of the plaintiff’s duty as a header, at the time of his injury, and during the entire time that he was engaged at that work.

The declaration consists of two counts. It is the claim of plaintiff’s counsel that the second count was abandoned upon the trial. The record, however, does not distinctly support that claim, but the trial seems to have proceeded under the first count.

The first count charges several acts on the part of the defendant that are alleged to have been negligence on its part. Among other allegations are the following:

“That it also became and was the duty of said defendant to keep the said saw on the said heading sizer well filed, and properly set, and in good repair otherwise, and free from any defect of whatsoever nature, in order that any person operating the same, and more especially the plaintiff herein, should not be injured in any way, because of said defect while operating the said machine, and while performing his duty around about the said machine.”

Again:

“Also it became the duty of the said defendant, when requested by this plaintiff to repair the said heading machine in any respect, to comply with such request within a reasonable length of time, and not to leave the same in a defective condition after receiving knowledge of such defect. * * *
“Yet the said defendant did not, on said date, keep the saw on said' heading sizer well filed and sharp and in good repair and free from any defect of whatsoever nature, in order that persons operating the same, and more especially the plaintiff herein, should not be injured in any way because of said defect, while operating the said machine, and while performing his duty around and about the same. * * *
“And the said defendant did not repair the said heading machine within a reasonable time after being requested by this plaintiff so to do, but did leave the same in a defective condition, after receiving knowledge of such defect. * * *
“By reason whereof, and on the date aforesaid, while this plaintiff was in the employ of said defendant, and while performing his duty in the defendant’s said cooper shop, and more particularly while operating said heading sizer, and while in the exercise of due care and caution to avoid injury, and while free from any contributory negligence of whatsoever nature, the aforesaid saw on said heading sizer, because' of the negligent, wilful, wanton, and careless conduct of said defendant in the nonperformance of its aforesaid duties, did then and there suddenly and unexpectedly throw upwards and away from said machine the heading which this plaintiff was then cutting on said saw, as a result of which this plaintiff’s left hand was thrown against the said saw, whereby plaintiff received a great and permanent injury to his said hand,” describing the injury.

It was the plaintiff’s claim, and on the trial he gave evidence in support thereof: That for a period of about two weeks before the injury the saw on the heading sizing machine had been dull and out of set. That this made it hard to push the work through it. That it caused the saw to tear its way through, and when the first part of the heading reached the further side of the saw, the latter would catch the heading and throw it upwards from under the operator’s hands. That about a week before the injury the plaintiff complained to the defendant’s foreman about the condition, and the latter said: “All right, Frank; go back to work. I will fix it.” That the plaintiff returned to work, but the saw was not repaired, and continued to get worse. That two days before the accident the plaintiff went to the millwright and asked him to repair the saw, but he refused, saying the plaintiff would have to speak to the foreman. That thereupon plaintiff and the millwright went together to the foreman, and the plaintiff at that time positively stated to him that he would not use the saw any more unless it was fixed. That the foreman then said: “All right, Frank; you go back to work, and I will fix it as quick as possible.” That relying upon this assurance of repair, the plaintiff returned to his work, and while using the saw on the second day after the promise of repair was given, and before the saw was fixed, the injury happened, because of the defective condition complained of. The testimony of the plaintiff, upon the subject of notice to the foreman of the defect in the saw, and the promise to repair, was fully corroborated by that of the millwright, who testified in the case. The record shows that there was a sharp conflict between the evidence produced by the plaintiff and that produced by the defendant, relative to the condition of the saw at the time of the injury, and the conversation which the plaintiff claimed to have had with defendant’s foreman two days before the injury, when it was claimed the promise to repair was given. All of the testimony on the subject was received without objection.

The trial resulted in a verdict and judgment for the plaintiff for $2,500. The defendant has brought the case here upon writ of error.

Counsel for defendant say in their brief:

“At the trial all claims of negligence were abandoned, excepting with respect to whether the saw was sharp and properly set; and with respect to that the claim was not that the defendant failed to keep it sharp and properly set, but rather that it failed to put it in condition after having promised plaintiff to do so.”

1. The first assignment of error argued by defendant’s counsel is the ninth; that the court erred in instructing the jury in the language contained in the last part of the sixth subdivision of the court’s charge, and in modifying the defendant’s request to charge as therein contained. The part of the charge here complained of is as follows:

“I am asked by the plaintiff to charge you that in this case several acts of negligence are charged in the plaintiff’s declaration, but it is not necessary for the plaintiff to prove all of the acts of negligence charged, for if any unlawful act of defendant is charged which resulted in the injury to the plaintiff, complained of, he is entitled to recover, although the declaration may have charged other acts of defendant as negligence, which have not been proved. There is no question about that, gentlemen of the jury. If it was the negligence to sharpen and set the saw after a proper notice had been given, and a reasonable time had elapsed— if that is the cause of the injury, and you are satisfied by a preponderance of the proof that that is the cause of the injury — then you, unquestionably, gentlemen of the jury, should find a verdict for the plaintiff in this case, provided you find that his own conduct did not contribute to the injury.”

Counsel for defendant urge that such practice should be condemnéd, and that the purpose of a declaration is to apprise the defendant of the case he must meet; that to permit the declaration to charge facts known to the plaintiff to be false, to allege facts without any expectation of sustaining the same, can be done only for the purpose of misleading and deceiving a defendant in the preparation of his defense, and is improper and should be condemned. We have' repeatedly held that it is not necessary for a plaintiff to prove all of the acts of negligence charged; that, if any unlawful neglect of defendant is charged which resulted in the injury to the plaintiff complained of, he is entitled to recover, although the declaration may have charged other acts of defendant as negligent which were not proven. See Lepara v. Railroad Co., 166 Mich. 373, at page 380 (130 N. W. 668, 40 L. R. A. [N. S.] 1105), where the cases are cited. We are not able to find that counsel at any time during the trial raised any objection to the sufficiency of the declaration, or claimed that any of the testimony offered by the plaintiff was inadmissible under the declaration.

2. The next assignment of error discussed by counsel is the first; that the court erred in excluding the following question in the examination of the witness Frank Le Fleur:

“Then Mr. Bowles deliberately said something in his declaration that was not true when he set up the fact that you had been told to go over to the saw without any instruction how to use it, is that it?”

The record shows that when this question was objected to by plaintiff’s counsel, the court sustained the objection, and no exception was taken by defendant’s counsel to the ruling. We must therefore hold that the matter is not before us.

3. Defendant’s counsel in their brief say:

“At the trial plaintiff relied entirely upon the defect claimed to have been in the saw, in that it was dull and out of set, and his hand was drawn against the saw by reason of the board being thrown up from the table. * * *
“Plaintiff knew the condition of the saw, but seeks to remove his case from the rule of assumption of risk by a claim that the foreman had been advised of the condition of the saw, and had given certain promises respecting its repair. There is nothing in the declaration to apprise defendant of this claim or theory of plaintiff. * * *
“The question, therefore, is whether or not plaintiff has placed himself within the exception to the rule respecting assumption of risk on the part of a workman. We submit that he has not.”

An examination of the record statisfies us that the case was tried upon the theory that the plaintiff was free from contributory negligence, because at the time he was operating the saw in question in its defective condition, which was known to him, under a promise from his employer to. repair, which promise he relied on. While the declaration was not as full as it might well have been, no question was raised as to its sufficiency at the trial.

Counsel for defendant cite Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145). In that case there was no positive promise to repair the machine, but the plaintiff was told “that it would be fixed as soon as it could be reached in the course of repairs.” We think that the case is distinguished from the instant case. We have already set out the language of the foreman as testified to by the plaintiff. The millwright testified that the foreman said “he would look after it right away; he told him to go back to work; that he would fix it right away.”

We do not understand that in order for a plaintiff' to recover in such a case he must continue to work under the supposition on his part that the repairs have been made.

The rule is stated in Beach on Contributory Negligence (2d Ed.), § 372, as follows:

“If, when the master is notified of the defect in the machinery or of the incompetence of the servant, he promises to remedy it within a reasonable time, the servant will not, as a matter of law, be presumed to have consented to it, or to have waived his rights by remaining for such reasonable time in the service; but mere complaint to the master, unless a promise to repair is made, will not justify the servant in continuing to expose himself to the danger.”

This doctrine is supported by many cases in this State. Lyttle v. Railway Co., 84 Mich. 289 (47 N. W. 571); Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102) ; Krohn v. Joseph N. Smith & Co., 151 Mich. 247 (114 N. W. 1017); Brouseau v. Supply Co., 158 Mich. 312 (122 N. W. 620, 27 L. R. A. [N. S.] 1052) ; Prisel v. Coney, 168 Mich. 602 (134 N. W. 989). See note to Illinois Steel Co. v. Mann, 40 L. R. A. 781 (170 Ill. 200).

Defendant’s counsel also cite Hough v. Railway Co., 100 U. S. 213. We call attention to the following language of the court in that case:

“If the engineer, after discovering or recognizing the defective condition of the cowcatcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, he would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as such defect was found to have been the efficient cause of the death. He would be held, in that case, to have himself risked the dangers which might result from the use of the engine in such defective condition. But ‘there can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept’ ” (citing cases).

4. Defendant claims that the court erred in refusing to give defendant’s tenth request to charge, which was to the effect that the great weight of the evidence was that the saw was in proper condition, sharp, and properly set, and that the verdict must therefore be for the defendant. The plaintiff and defendant’s millwright both testified that the saw was dull and out of set at the time it was claimed the complaint was made by the plaintiff, and the promise to repair was made by defendant’s foreman. On the other hand, the foreman and another witness for defendant testified that the saw was not out of repair at the time of the accident, and the foreman denied ever having had any conversation with the plaintiff relating to the saw. This conflict of testimony raised a question of fact for the jury, and we do not think that the court erred in refusing to give said request. There was no motion for a new trial.

We find no reversible error in the record, and the judgment below is affirmed.

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


author: Ostrander, J.

text:
    MILLER v. BEARDSLEE.
    1. Deeds — Description—Evidence.
    A deed of real property described as the “west half of the northeast quarter, also the east half of the northwest quarter, except 18 acres off the southwest corner; also the northwest corner of the west half of the southeast quarter lying north of property of Michigan Central Railroad Company,” was defective for omitting the section, town and range, although it mentioned the name of the township in which the land was situated; evidence that the railroad company owned a right of way in several sections in the township named left the last portion of the description ambiguous.
    2. Same — Equity—Reformation of Instruments.
    Equity will not correct the deed of a deceased grantor who received no consideration for the conveyance.
    3. Same — Delivery—Escrow.
    Testimony that decedent instructed her attorney in fact that if a settlement of certain business transactions on the part of the husband of one of her heirs should be made with her, she wished nothing to come of a voluntary deed placed in escrow with him, that the directions were given an hour after the execution of the instrument, held, to show a single transaction and to render the. delivery incomplete or insufficient to pass title after the death of the grantor.

      Appeal from Oakland; Smith, J.
    Submitted April 9, 1913.
    (Docket No. 18.)
    Decided May 28, 1913.
    Bill by Savilla Miller against John L. Beardslee and others to cancel a deed of Alice Smith, deceased. From a decree for defendants, complainant appeals.
    Reversed.

      Maxwell W. Benjamin, for complainant.

      Perry & Lynch, for defendants.
   Ostrander, J.

In this cause the bill was filed by a sister and one of four heirs at law of Alice Smith, deceased, to cancel a deed of real estate, executed by Alice to two of her heirs and recorded after her death. The court, after a hearing upon the merits, dismissed the bill. Complainant, appellant, contends that for two reasons this decree was erroneous: First, because when the deed was delivered it contained no sufficient description of the premises intended to be conveyed; second, the deed was not so delivered by the grantor as to pass or evidence the passing of title. The material facts are not in dispute, although precisely what Was said and done at the time the deed was executed and delivered is not perhaps entirely clear. The grantees paid nothing for the land or the deed. The deed was executed and dated January 12, 1911. It contains the usual covenants of warranty. The grantor died June 24, 1911.

When the deed was presented for record, the premises were described therein as:

“All of certain pieces or parcels of land situate and being in the township of Oakland, county of Oakland and State of Michigan, and described as follows, to wit: The west half (%) of the northeast quarter (!4) ; also the east half (%) of the northwest quarter (%)> except eighteen (18) acres off southwest corner. Also the northwest corner of the west half (i/2) of the southeast quarter (%) lying north of property of Michigan Central R. R. Co.”

The county treasurer was unable to certify that the taxes had been paid, and the deed was withdrawn. It was returned and was recorded June 27, 1911, at which time it contained, in addition to the foregoing, the words:

“All of section twenty (20), town four (4) north, range eleven (11) east, Michigan.”

It is apparent that when the deed was executed and delivered by the grantor it contained no complete description of land. The words, “lying north of property of Michigan Central R. R. Co.,” are the only words employed which can by any possibility aid the description. And these words, in the light of certain testimony which was admitted, are found to afford no real aid because the railroad company had at least a right of way in seven sections in Oakland township. Other testimony, admitted without objection, and not disputed, tended to prove that Alice Smith owned land, otherwise corresponding with the description in the deed, in section 20 in said township and owned no other land in the township. Defendants say that this testimony, having come in without objection, may be properly used to determine what land was intended to be conveyed and to sustain the deed. We think this is not so. The case for complainant, so far as it is now presented, is this: Complainant is heir at law of Alice Smith. Alice Smith died owner of certain land unless she had conveyed it in her lifetime. She had not conveyed it because her voluntary effort in that direction was imperfect. The instrument she executed requires correction to make it effective.

The grantor being dead, a court of equity will not correct it. Redding v. Rozell, 59 Mich. 476 (26 N. W. 677) ; Shears v. Westover, 110 Mich. 505 (68 N. W. 266). See, also, Tuthill v. Katz, 174 Mich. 217 (140 N. W.. 519). The conveyance therefore remains ineffective, and insufficient evidence of a transfer of the land by the owner thereof in her lifetime. As the instrument and the record of the amended instrument are relied upon by defendants John Beardslee and Elizabeth Axford (the bill was taken as confessed by the defendant Mattie Sykes, an heir, and by Matthew Knight, who was in possession of the property) as evidence of their title to the land, the instrument should be canceled and the record declared to be of no effect.

While decision may be rested here, we think it proper to say that the testimony fails to convince us that the deed was delivered with the intention, on the part of the grantor, to presently divest herself of the title. It appears to be clear that Mrs. Smith instructed the custodian of the deed, whom by a separate instrument she had made her general attorney in fact, that if the husband of complainant made a satisfactory settlement with her, or with her attorney for her, she wished nothing to come of it. Counsel for defendants make the point that by a fair reading of the testimony this instruction was given after the deed was delivered to the custodian with instructions to keep it and record it after her death; that, consequently, title had passed and could not be recalled by a later and further instruction. We are impressed that it was at all times understood by Mrs. Smith and by the person to whom the deed was delivered that the only reason given by Mrs. Smith for disinheriting her sister, the complainant, was the one that she believed that the husband of complainant had dealt unfairly with her in certain business matters — a reason that would not exist if he, before her death, corrected his conduct and the effects of it. The fact that the particular instruction, as recollected by the witness, was given some time, an hour perhaps, after the deed was completed and delivered, is not, we think, a good reason for regarding her instruction otherwise than as single —as expressing her intention and purpose that title should not pass by such delivery of the deed as was made.

The decree of the court below is reversed. A decree will be entered in this court granting complainant the relief prayed for in the bill, with costs to appellant against defendants Beardslee and Axford, and the record will be remanded for such further proceedings in the court below as may be necessary.

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


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    MACKINAC TRANSPORTATION CO. v. TOWNSHIP OF MACKINAW.
    Taxation — Specific Tax — Vessels and Boats — Navigation.
    The specific tax on steam vessels created by Act No. 70, Pub. Acts 1911, whereby owners of such vessels employed on the Great Lakes were exempted from general taxation, affects only taxes of 1912 and subsequent years; so that one having paid the township tax for 1911 under protest to release property seized and claiming to have complied with the provisions of said statute, by paying to the State treasurer the statutory tonnage tax, cannot recover the enforced payment in an action against the township.
    Error to Cheboygan; Shepherd, J.
    Submitted April 10, 1913.
    (Docket No. 37.)
    Decided May 28, 1913.
    Assumpsit by the Mackinac Transportation Company against the township of Mackinaw for taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      James H. Campbell, for appellant.

      Victor D. Sprague and Homer H. Quay, for appellee.
   Ostrander, J.

Act No. 70, Public Acts of 1911, is entitled “An act regulating the taxation of steam vessels, steam boats and other steam water craft of registered tonnage within the State of Michigan,” was approved April 13, 1911, and became effective 90 days from May 2, 1911. The act provides that if the owner of any such craft, engaged in carrying passengers or passengers and freight, licensed and hailing from a port in this State, and employed in the navigation of international waters or the waters of the Great Lakes, shall pay annually into the State treasury a sum equal to 20 cents per net ton on the registered tonnage thereof and a sum equal to 10 cents per net ton if carrying freight only, the payment shall be received in lieu of all taxes, and the boat shall be exempt from all further taxation. Section 2 of the act reads:

“The owner of any steam vessel, steam barge or steam boat hailing from any port of this State and employed in the navigation of international waters or waters of the Great Lakes, to comply with the terms of this act, shall annually, on or before the first day of December, file with the auditor general a verified statement in writing containing the name, port of hail, tonnage and name of owner of such steam vessel, steam barge or steam boat, and shall thereupon pay into the State treasury a sum equal to ten cents for freighter or twenty cents for passenger boat per net ton on the registered tonnage of said vessel, and the said treasurer shall thereupon issue his receipt therefor.”

Plaintiff is a domestic corporation, having its principal office in Mackinaw City, in the township of Mackinaw, in Cheboygan county, and in the year 1911 was owner of steam vessels, hailing from the port of Mackinaw City, engaged in carrying freight and passengers between said city and St. Ignace upon the waters of the Great Lakes. Its vessels were registered and enrolled and duly licensed under Federal laws to carry freight and passengers.

Plaintiff’s vessels were in the home port on the second Monday in April, 1911, and the supervisor of the township placed them on the assessment roll as the property of the plaintiff at a valuation of $275,000. Such proceedings were thereafter taken that on June 18, 1911, the board of review certified to the completion and approval of the said assessment roll, and'on November 20, 1911, the supervisor signed the completed tax roll, delivering it, with his warrant, to the township treasurer December 1, 1911. Before the tax roll was so signed, and on November 18, 1911, plaintiff paid into the State treasury the sum of 20 cents per net ton on the registered tonnage of its said vessels, having on the same day filed with the auditor general the verified statement provided for in section 2 of the act. The State treasurer issued his receipt. Thereafter, in April, 1912, the township treasurer seized property of the plaintiff in proceedings to collect the taxes spread upon the tax roll of the township, and the plaintiff paid the same under protest. This is a suit to recover the taxes so paid under protest. In the trial court a verdict for defendant was directed..

Upon the hearing, and in the main briefs of counsel, the only question presented in this court was whether the statute affected the taxes for the year 1911. Thereafter the court requested briefs “upon the force and effect of Act No. 70, Public Acts of 1911,” and, especially upon the point whether it was an act imposing a tax within the meaning of the Constitution of the State, art. 10, §§ 3, 4, 5, 6. The briefs asked for have been filed and have been exchanged by counsel. In the supplemental brief filed on behalf of defendant, it is contended, among other things, that the act in question lays a duty on tonnage within the meaning of subdivision 3. of section 10 of article 1 of the Federal Constitution, and is therefore invalid, no permission of Congress so to do appearing, and that the law is invalid because it does not distinctly state the tax and the objects to which it is to be applied in conformity with section 6 of article 10 of the State Constitution. Counsel are agreed that the act imposes a tax within the meaning of sections 3, 4, 5 and 6 of article 10.

The trial court interpreted the law as expressing legislative intention to exempt, at the election of the owner, such property from general taxation for the year 1912, and not earlier. As we think the court properly interpreted the law, a conclusion which requires the affirmance of the judgment, we express no opinion concerning the validity of the legislation. The interpretation of the act contended for by the plaintiff will result each year in great confusion. The general assessment of property for taxation is made in the spring of each year, and thereafter, until the month of December, various steps are taken in the proceeding to levy taxes. If plaintiff’s contention should prevail, it would occur that after the proceeding to levy was completed, and on the day when, under the general law, personal taxes became a lien upon the property taxed, the owner could pay, in lieu thereof, the specific tax. As a result, a township might find itself seriously embarrassed, the revenue it had provided for diminished, without diminution of its proportionate burden of State and county levies, imposed upon the basis of its equalized valuation. If, on the other hand, the election and payment required to be made by the owner on or before December 1st in each year affects the taxes of the succeeding, and not of the current, year, local officers will act accordingly. The property will be, according to the act, exempt from “all further taxation, either State, county, or municipal,” and be omitted, not considered, in the succeeding year in the proceeding to levy and collect taxes under the general law. The language of the act reasonably supports the interpretation placed thereon by the trial court, and, this being so, we shall assume that the legislature did not intend, as an effect of the act, an annual, expensive, and troublesome predicament in each township affected by it.

The judgment .is affirmed.

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


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    McCORMICK v. KISTLER.
    1. Exemptions — Actions—Title—Replevin.
    Replevin lies in favor of a bona fide purchaser of exempt fixtures and stock of merchandise against an officer in possession under a subsequent execution levy, in an action against the vendor, although the sale whereby plaintiff got title did not conform to the requirements of the bulk-sales act (Act No. 223, Pub. Acts 1905 [2 How. Stat. (2d Ed.) §2612 et seq.]).
    2. Same — Fraudulent Conveyances — Bulk-Sales Act — Sales.
    Said act placing restrictions on sales of merchandise in bulk does not invalidate a sale of property and fixtures worth less than the amount of the seller’s exemptions, although the requirements of the act were not observed, upon the motion of objecting creditors of the vendor. (Distinguishing cases involving sales of stock worth more than $250.) J. L. Hudson Co. v. No-Name Hat Co., 174 Mich. 109 (140 N. W. 507).

      Error to Saginaw; Kendrick, J.
    Submitted April 11, 1913.
    (Docket No. 55.)
    Decided May 28, 1913.
    Replevin by Edwin W. McCormick against Henry Kistler for property seized on execution. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Henry E. Naegely, for appellant.

      Thomas G. Baillie, for appellee.
   Ostrander, J.

The action is replevin. The court directed a verdict for the defendant, and in doing so stated that the facts, which are reviewed, are practically undisputed.

Plaintiff assigns errors upon three statements made by the court in the explanatory charge to the jury, as follows:

“The parties to the bill of sale in this case took no steps to comply with the statute in so far as this defendant’s interest is concerned (nor as against the persons who caused the levy, Hammond, Standish & Co.); to this defendant it is absolutely as though the attempted transfer had not been made. The bill of sale in no way impedes the right of the creditor to proceed, just the same as if the attempted sale had not been made.
“It appears to the court that the plaintiff has no standing in court to maintain his action; that the said transfer, in so far as this defendant was concerned, in this case, was without force, and that the plaintiff had no right to the possession of the goods at that time, or at the time of the taking out of a writ and proceeding with this action.
“The firm of Hammond, Standish & Co. had the full right to proceed and exercise lawful measures to collect their debt, and the transfer in the manner as has been described here, by the plaintiff, and as appears by the bill of sale as described by the transferrer, of the goods, to the plaintiff, is clearly void as to these parties, who have been called upon to defend this case.”

It appearing that counsel for both parties asked for a peremptory instruction, we treat these assignments of error as equivalent to one that the court, upon the undisputed testimony, should have directed a verdict for plaintiff, and was in error in making the contrary ruling.

It appears that one Frank Nielski kept a meat market, and became indebted to Hammond, Standish & Co. A judgment against him in their favor was rendered May 1, 1912, and, by virtue of an execution issued to collect the amount of the judgment, the defendant, a constable, levied on May 7,1912, upon certain personal property then in the possession of Nielski. On May 3, 1912, Nielski executed a bill of sale of the said property (his fixtures and stock) to plaintiff, another creditor, the instrument being recorded, who took the property from defendant upon a writ of replevin. In the sale by Nielski to plaintiff there was no compliance with Act No. 223, Public Acts of 1905 (2 How. Stat. [2d Ed.] § 2612), known as the “Sales in Bulk Law.” It is the contention of the execution creditor that the sale was therefore void. The value of the property in dispute, as inventoriéd and appraised in this action, is $163.50, the articles being a Toledo scales, an electric meat chopper, a cash register, butcher’s marble-top counter, and two meat blocks, as well as meats, lard, supplies, and utensils, valued at $52. The value of the stock on May 3, 1912, is not made to appear.

Appellant presents and argues two propositions, which are: First, that the property in dispute was exempt from levy and sale on execution when it was sold to him, for which reason the sale was not in contravention of the provisions of the sales in bulk law; second, if that law applies, and the sale to him was void, still the property sold is not liable to levy and sale upon execution, but the creditor, relying upon that statute, must look to the purchaser of the property, and not to the property itself, for satisfaction of his debt.

The good faith of plaintiff is not assailed. Why may not he rely upon the fact that creditors of his vendor were not interested in the sale for the reason that they could not have reached the property in the hands of the vendor? Claiming that they answer this question, defendant refers us to Williams v. Brown, 137 Mich. 569 (100 N. W. 786), and McCausey v. Hoek, 159 Mich. 570 ( 124 N. W. 570, 18 Am. & Eng. Ann. Cas. 945). In the first-mentioned case the action was trover by the vendee of personal property against a sheriff for conversion of the property. The sheriff had seized the property on execution running against the vendors. No specific articles of the property were in any event exempt from execution, but only goods of a specified value, to be selected out of the larger quantity. The vendors, judgment debtors, were in possession of the property when it was seized. They did not select, or offer to select, any goods as exempt. The statute (3 Comp. Laws, § 10326) provides that, after the inventory and appraisal of goods seized on execution, the defendant in execution, or his authorized agent, may select from such inventory an, amount of such property not exceeding, according to such appraisal, the amount or value exempted by law from execution, but if neither the defendant nor his agent shall appear and make such selection, the officer shall make the same for him. It was held:

“The officer could not well know the conditions of the sale between his sons and the plaintiff, or the arrangement, if there was any, in regard to the exemptions. The plaintiff did know, and it was his duty, if he desired to claim exemptions by virtue of his purchase, to notify the officer and demand the right of selection. Where no duty of selection is imposed upon the officer, the debtor waives his right to the exemption if he fails to demand it. * * * Whether a fraudulent vendee is entitled to claim the exemption of his fraudulent vendor, where the property levied upon is in excess of the exemption, quaere; but if he is, inasmuch as the statute imposes no duty upon the officer to make selection in such case, the vendee must notify the officer, or be held to waive his selection.”

In McCausey v. Hoek, the rule of Williams v. Brown is followed; the court saying, in part:

“Then the plaintiff claimed the property as her own. She did not claim it as exempt property sold to her. Upon this record the officer owed her no duty as to setting off exemptions, as she claimed none. * * * The assignee succeeded to McCausey’s rights to exemption, but it was necessary for her to assert them.”

We do not find in these opinions, nor in the one delivered in Seitz v. Starks, 136 Mich. 90 (98 N. W. 852), any denial of the right of a vendee to acquire title to property exempt from levy and sale in the hands of the vendor. The sales were not claimed to be fraudulent and void because in contravention of the sales in bulk law. In the case at bar neither Nielski nor the plaintiff advised the officer that the property seized was claimed to be exempt from execution. But unless the provisions of the sales in bulk law apply to a sale of property, all of which is exempt from execution, plaintiff’s title, so far as defendant is concerned, is invulnerable.

The terms of Act No. 223, Public Acts of 1905 (2 How Stat. [2d Ed.] § 2612 et seq.), embrace any sale of the whole, or a part, of a stock of merchandise and the fixtures pertaining to the business: The meaning of the term “fixtures” in the act has been somewhat restricted. Bowen v. Quigley, 165 Mich. 337 (130. N. W. 690, 34 L. R. A. [N. S.] 218) ; People’s Sav. Bank v. Van Allsburg, 165 Mich. 524 (131 N. W. 101). But, independent of the character of some of the property as fixtures, the uniform rule of this court has been that creditors are not concerned with the disposition which a debtor makes of exempt property. Fischer v. McIntyre, 66 Mich. 681 (33 N. W. 762); Stewart v. Welton, 32 Mich. 56; Wilson v. Bartholomew, 45 Mich. 41 (7 N. W. 227) ; Anderson v. Odell, 51 Mich. 492 (16 N. W. 870); Buckley v. Wheeler, 52 Mich. 1 (17 N. W. 216); Emerson v. Bacon, 58 Mich. 526 (25 N. W. 503); Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380). See, also, Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111, 86 Am. St. Rep. 562). In Anderson v. Odell, Mr. Justice Campbell, speaking for the court, said:

“So long as the statutory amount of exemption is not exceeded, there can be no appreciable reason why the property cannot be converted or exchanged. There is difficulty in understanding how a creditor can first become entitled to reach his .debtor’s property the moment it ceases to be his property.”

In Anderson v. Odell and in Cullen v. Harris, it is stated that the rule in the case of a sale of a homestead, and in the case of a sale of exempt personal property, is the same. It cannot be supposed that the legislature intended by Act No. 223, Public Acts of 1905, which contains neither a special nor a general repealing clause, to reverse, as to persons engaged in merchandising, the long-continued policy of the State with respect to exemptions. It is true that in J. L. Hudson Co. v. Hat Co., 174 Mich. 109 (140 N. W. 507), it was held, following the rule of Seitz v. Starks, that the purchaser of a stock of goods sold in contravention of this statute could not claim the benefit of the vendor’s exemption when to secure the exemption a selection must be made from the mass of property sold, and when no such selection had been made or agreed upon at the time of the sale. The action, a proceeding in equity, was begun by the vendee to have determined the extent of its liability to creditors of the vendor, it being admitted that it was coextensive with the value of the goods purchased, less the seller’s exemption. It was held that the debtor, or his agent, should have made, or claimed, the exemption, and that his assignee could not exercise the right.

In the case at bar, it is to be inferred, and the contrary is not made to appear, that every article of property which entered into the sale which is attacked as void was exempt. In such a case, in my opinon, the provisions of the sales in bulk law do not invalidate the sale at the instance of creditors of the vendor.

It is not necessary to consider other questions. It follows from what has been said that the court was in error in directing a verdict' for defendant, and ought to have directed one for the plaintiff.

The judgment is reversed, and a new trial granted.

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