text:
    HOME LIFE INSURANCE CO. v. ELWELL.
    1. Limitation of Actions—Conflict of Laws.
    The law of limitation of actions is a part of the lex fori.

    2. Same—Foreign Plaintiff—Ignorance of Defendant’s Whereabouts.
    The fact that the obligor in a bond executed in another State removes to Michigan without the knowledge of- the obligee does not operate to suspend the running of the statute in the former’s favor until such time as the latter ascertains his whereabouts.
    -3. Same—Part Payment—Arrest of Statute.
    A payment made by a grantee of mortgaged premises, who took them subject to the mortgage, will not, in the absence of any showing that he was acting as agent of the mortgagor, or otherwise than for his own benefit, be deemed a payment by the mortgagor in such sense as to arrest the running of the statute in the latter’s favor.
    Error to Gratiot; Daboll, J.
    Submitted January 8, 1897.
    Decided March 10, 1897.
    Debt by the Home Life Insurance Company against Catherine M. Elwell and John A. Elwell upon a bond. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Neivell Leonard, for appellant.

      C. W. Giddings, for appellees.
   Hooker, J.

The defendants, on December 29, 1871, while residents of the State of New Jersey, executed a bond for $6,000, payable January 1, 1873, interest payable semi-annually, accompanied by a mortgage upon New Jersey land owned by defendant Catherine M. El well, the defendant John A. El well having signed the bond as surety. The defendants paid interest on the bond regularly up to January 1, 1877, the last payment made by them being on January 3, 1877. On January 10, 1877, they joined in a conveyance of the mortgaged premises to Christine H. Arkell, for $14,500, subject to said mortgage, the property being then worth $20,000. In July, 1877, the defendants l’emoved to Michigan, where they have since resided, giving plaintiff no notice of their removal, and paying no further attention to the matter of their indebtedness. Christine Arkell paid the interest upon the bond until December, 1891, when she sold the property to James W. Arkell, and he paid interest to July 1, 1892, since which time no interest has been paid. In 1893, foreclosure was commenced in the chancery court of New Jersey, and the premises were bid in by the plaintiff for the sum of $4,300, leaving a deficiency, including costs, of $2,401.15. The defendants were not made parties to the foreclosure proceedings, and were ignorant of them until after the sale had become absolute.

This action was begun in the circuit coui't for the county of Gratiot, to recover the deficiency, upon the bond. The defense is the statute of limitations, and the court held that the plaintiff’s action was barred by the statute of Michigan, and that the statute of New Jersey had no application. It was further held that the plaintiff .should, have brought its action within 10 years after the defendants became domiciled in Michigan, to prevent the claim from being barred by the Michigan statute, and that the payments of interest by the Arkells were not such payments by defendants as to arrest the running of the statute.

Counsel for the plaintiff contends:

1. That the court erred in finding that the statute of Michigan barred the claim, inasmuch as the plaintiff had no knowledge that the defendants resided in Michigan.

3. That the payments made by the Arkells were payments upon the debt, and for the benefit of the defendants, and had the effect of arresting the running of the statute, the same as though made by the defendants.

It is a uniform rule that the law of the forum applies, and therefore it is the statute of limitation in force in Michigan, and not that of New Jersey, which must govern. See 1 Wood, Lim. § 8; Howard v. Coon, 93 Mich. 442.

When the defendants came to Michigan, the statute had begun to run, the bond being due. No provision of our statute relieves a foreign plaintiff from the force of the statute because he is ignorant that the defendants have removed to Michigan; it is only when the defendants are absent from Michigan that the statute is arrested. These defendants were residents of the State continuously for over 10 years after the statute commenced to run, and we are not advised of any authority which suspended the statute by reason of plaintiff’s want of information concerning their whereabouts.

There is nothing to show that the payments made by the Arkells were other than payments for their own benefit, to relieve the premises from the incumbrance. In Littlefield v. Dingwall, 71 Mich. 223, it was said that payment by a joint debtor does not arrest the running of the statute against his co-defendant. Rogers v. Anderson, 40 Mich. 290; Ottawa Probate Judge v. Stevenson, 55 Mich. 320; Holcomb v. Sloan, 39 Mich. 173; Howard v. Coon, 93 Mich. 442. This is contrary to the doctrine laid down in the case of Pears v. Laing, L. R. 12 Eq. 56, and possibly Barrett v. Prentiss, 57 Vt. 300, though that case is perhaps distinguishable. See, also, Emory v. Keighan, 88 Ill. 488, where it is sáid that grantees of a mortgagor may be affected by payments made by the mortgagor upon the debt secured by the mortgage after the statute has run. It is, however, the law here, whatever the rule may be elsewhere, and we think it accords with the weight of authority. The theory upon which part payment takes a case out of the provisions of the statute is that it may be supposed to imply a new promise to pay the debt; and the cases hold that this result will not follow where the payment is accompanied by circumstances which preclude such inference. See A’Court v. Cross, 3 Bing. 329; Tippetts v. Heane, 4 Tyrw. 772; Linsell v. Bonsor, 2 Bing. N. C. 241; Bateman v. Pinder, 3 Q. B. 574; Collyer v. Willock, 4 Bing. 313; Wakeman v. Sherman, 9 N. Y. 85; Chambers v. Garland, 3 G. Greene, 322. This is the rule in Michigan. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508. And, where the payment is made by another, it has been held that such other must be one authorized to make a new promise on behalf of the debtor for the residue. Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Harper v. Fairley, 53 N. Y. 442; Littlefield v. Littlefield, 91 N. Y. 203 (43 Am. Rep. 663). And see 1 Wood, Lim. § 101 et seq. There is nothing in this record to show that any such authority was given to the Arkells. Presumably, the payments were made upon their own behalf, to save their estate; and we cannot say that an expectation on the part of the defendants that they would pay (if we may infer that) was tantamount to authorizing or directing them to bind defendants by a new promise.

We are therefore of the opinion that the circuit court was not in error in his conclusion.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    OSTRANDER v. CITY OF LANSING.
    1. Municipal Corporations—Construction of Sewers—Liabil,T ity for Negligence.
    A city, in the construction of a public sewer, from which, . under its charter, it may derive an income, is engaged in the prosecution of a private municipal enterprise, and is liable for its negligence in the manner of doing the work.
    2. Master and Servant —Assumption of Risk—Question for Jury.
    Whether a workman employed in constructing a sewer should, in the exercise of due care, have known of the fact that the earth had been loosened three years before by reason of an excavation for a water main a few feet distant, thereby increasing the danger of a cave-in, and should therefore be held to have assumed the risk as incident to his employment, is a question for the jury.
    3. Trial—Polling of Jury—Compromise Verdict.
    If a juror, upon the jury’s being polled, makes a response which implies that the verdict does not embody the result' of his own investigation and best judgment, the verdict should not be received. So held where a juror, in answer to the question, “Is this your verdict,” responded, “Compromise verdict.”
    Error to Ingham; Person, J.
    Submitted January 8, 1897.
    Decided March 10, 1897.
    Case by George S. Ostrander against the city of Lansing-for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Clark C. Wood, City Attorney (Black & [Dodge, of counsel), for appellant.

      Cahill & Ostrander, for appellee.
   Montgomery, J.

The plaintiff recovered a judgment of $2,500 for injuries received while in the employ of defendant in constructing a sewer in the year 1892. The injury occurred from the caving in of the earth on one side of the excavation, and there seems to be no dispute that this might have been avoided by properly shoring up the sides, which it was customary to do. But on this occasion there was not sufficient lumber there for the purpose, and but a single board was placed on either side of the excavation, about one foot below the surface, with a prop between. When the plaintiff had reached a depth of from five to six feet, as shown by his testimony, the earth slid in from near the bottom of the ditch, where he was at work, and buried him to his thighs. It was averred in the declaration that in 1889 the defendant had caused to be built and constructed, at a point some two or three feet south of the sewer, a ditch, in which were laid water mains, so called, which pipes were laid at a depth of five feet below the surface, by reason of which the earth around and about such water mains, having been once thrown out, and replaced afterwards, was, at the time of the injury to the plaintiff, in 1892, liable and likely to cave and fall into the said sewer ditch, rendering it dangerous and unsafe to dig near to and below said water pipe any ditch or opening in the earth. And the declaration avers that the duty of the city was, by employing sufficient lumber, boards, and pieces of timber, to have stayed and supported the walls, so that the earth could not cave and fall into the ditch. The effect of the charge of the circuit judge was that the plaintiff assumed the ordinary risk of working in a trench of the kind which this one appeared to him to be; that, if he knew of the existence of a water main in proximity to the trench, or if, in the exercise of ordinary care and prudence, he ought to have known of it, he could not recover. But the court left it for the jury to determine whether plaintiff did know or should have known of the proximity of this water main, and whether the defendant exercised ordinary prudence in guarding against the results of the proximity of the water main.

Three principal points are discussed in the brief of counsel for the defendant. It is contended:

First, that the construction of the sewer was the exercise of a governmental function, and that the city is, therefore, not liable.

Second, that the plaintiff assumed the risk of the employment in any event.

Third, that the verdict given in the case is not a lawful ■ verdict.

We think the claim that the city was in the exercise of a governmental function, instead of a private municipal enterprise, is ruled by the case of City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78). The charter of the city of Lansing contains the following provision: “The council may charge and collect annually, from persons whose premises are connected by private drains with the public sewers, such reasonable sum, not exceeding two dollars per year, as they may deem just, in proportion to the amount of drainage through such private drain.” It was said of a similar power in City of Detroit v. Corey:

“ It is to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes^ or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city. They belong to the city. The corporation and its corporators, the citizens, are alone interested in them. The outside public, or people of the State at large, have no interest in them, as they have in the streets of the city, which are public highways.”

It may be added that, as to the sewers constructed under the charter by the city of Lansing, they may be also a source of revenue. See, also, Barron v. City of Detroit, 94 Mich. 601 (34 Am. St. Rep. 366); Baker v. City of Grand Rapids, ante, 447.

The question as to whether the plaintiff should be held, as matter of law, to have assumed the risk as incident tó his employment, is, under the circumstances of this case, not altogether free from difficulty. The plaintiff, having shown himself a person of at least average intelligence, must be held to have known that there was greater or less danger of the soil caving in, depending upon the nature of 'the soil; and this risk he assumed. But was he bound to know that peculiar conditions existed which rendered the soil at this place peculiarly liable to cave in? If he knew, or reasonably ought to have known, of the danger, he should be held to have assumed the risk. On the other hand, where there is any doubt whether the employé was acquainted, or ought to have been acquainted, with the risk, the determination of the question is necessarily for the jury. Rummell v. Dilworth, 111 Pa. St. 343. It cannot be said, in this case, that the proximity of the water mains did not add to the risk, nor does it appear that the plaintiff knew of this proximity; and we think, under the circumstances, that it was properly left to the jury to determine the two questions submitted to them, namely, whether the plaintiff knew, or ought to have known, of the existence of the water main; and, second, whether the city was negligent in failing to guard against the injury. A case somewhat analogous is that of Breen v. Field, 157 Mass. 277, in which case it appeared that the plaintiff was employed in digging a trench, the sides of which caved in upon him, by reason of failure to provide suitable means of support, and there was testimony tending to show that there had been a washout, a short time before, at the place where the caving in occurred, and that this caused the caving in, and that plaintiff was ignorant that a washout had occurred there. The court say:

“ It cannot be said that he [plaintiff] assumed the risk, when he was ignorant of facts on which, perhaps, a proper appreciation of the risk depended. Whether he was or was not ignorant of them, or whether he could have failed, in the exercise of due care, to observe the condition of the sides of the trench, were questions for the jury.”

See, also, Parkhurst v. Johnson, 50 Mich. 70 (45 Am. Rep. 28); Norfolk & Western R. Co. v. Ward, 90 Va. 687 (44 Am. St. Rep. 945).

3. The record shows that, after the jury had been out all night, the following occurred:

Foreman: I am instructed to inform the court that we have arrived at a compromise verdict, if the court will receive it. We could not arrive at a verdict in any other way. If the court will receive it, we will give it, and, if not, we will have to retire. * * *

The Court: Mr. Foreman, please state a little more fully what you mean by a compromise verdict.

Foreman: The balance stood the same since we went out as it did a short time since. They agreed to do certain things, provided it could be given as a compromise verdict, and the court would accept it. I don’t think there is any likelihood of our ever coming to any other verdict.

The Court: I think I will take the verdict.

Clerk: For whom do you find?

Foreman: We find for the plaintiff.

‘ ‘ Clerk: How much ?

‘ ‘ Foreman: One hundred dollars for medical services, and $2,400 damages.

“The Court: That makes $2,500.”

The jury was then polled, and each juror, as his name Avas called, responded to the question, “ Is this your verdict?” “Yes, sir,” except Theodore Weston, who responded, “Compromise verdict.” Just what was intended by this juror it is somewhat difficult to understand. It is said by plaintiff’s counsel that it is a matter of common knowledge that verdicts are often the result of compromise. In a sense, this is true, and perhaps it is not to be condemned, if, after the members of the jury have canvassed their views, they are able to conscientiously yield their first impressions, and reach a result, the responsibility of which each is finally ready to assume. But it never ought to be permitted that any member of the panel should shift his responsibility by placing it upon the ground that it is a compromise, and, in effect, implying that the result does not embody the results of his own investigation and best judgment. We think this verdict should'not have been received. This case is very similar to that of Rothbauer v. State, 22 Wis. 468, in which a juror stated, in answer to the question as to whether he concurred in the verdict, that he had agreed to it for the sake of an agreement, and not because he thought it was correct.

Judgment reversed, and- a new trial ordered.

Long, C. J., Grant and Moore, JJ., concurred. Hooker, J., concurred in the result.


author: Moore, J.

text:
    HILBERT v. BARRY.
    Bills and Notes—Consideration.
    Defendant, a member of a partnership association, limited, gave his note for the proportion of the associate indebtedness which his stock bore to the entire capital stock of the association. Plaintiff, to whom the,note was made, agreed to and did advance to the association the amount of the note. There were included in the estimate of indebtedness several obligations of the association the payment of which defendant had previously guaranteed. He was thereupon allowed to transfer his stock, free from liability. Held, that the note was supported by a sufficient consideration, although defendant had, at the time it was executed, fully paid for his stock in the association.
    Error to Barry; Smith, J.
    Submitted January 13, 1897.
    Decided March 10, 1897.

      Assumpsit by Frank F. Hilbert against Albert Barry upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Walter S. Powers, for appellant.

      C. S. Palmerton and Colgrove & Potter, for appellee.
   Moore, J.

Plaintiff brought suit on the following note:

“$570.00. Woodland, Mich., Nov. 7th, 1893.

“On or before Nov. 7th, 1894, after date, I promise to pay to the order of P. F. Hilbert, at Exchange Bank, Woodland, Mich., five hundred seventy dollars, with interest at seven per cent, until paid, value received; interest payable annually. The indorsers, signers, sureties, and guarantors severally waive presentment for payment, protest, and notice of protest, and notice of nonpayment of this note, and diligence in bringing suit against any party to this note, and agree that time of payment may be extended without notice or .other consent, and without affecting their liability.

“Due Nov. 7, 1894.

[Signed] “Albert Barry.”

On the back of the note was the following guaranty of payment:

“Woodland, Mich., Nov. 19,1894.

“For value received, I hereby guarantee payment of the within note, and waive demand and notice of protest on same when due.

[Signed] “Woodland Roller Mill Co., Limtd.,

“F. F. H., Secty.”

Also the following indorsement of ■ payment:

“July 5, 1894. Reed, seventy dollars.

“W. R.' M. Co.,

“F. F. Hilbert.”

By direction of the court, the jury returned a verdict in favor of the plaintiff. Defendant appeals.

It is defendant’s claim that he, with plaintiff and 10 others, formed a copartnership association, under chapter 79, 1 How. Stat., to engage in the milling business; that the association contracted debts which, under the law, it could not make; that it was represented to him that his share of the debts was the amount of this note, and that by the giving of it he would be released from liability on said indebtedness; that a receipt was given him, purporting to release him; that afterwards the association expired by limitation, and a new company was organized; that the property was turned over to it, instead of paying with it the debts of the old company; that by the terms of 1 How. Stat. § 2366, he, as a member of the association, would not be liable to pay any of the debts of the association, as he had paid up the full amount of his subscription ; that no consideration passed for the giving of the note in controversy; that Mr. Hilbert knew all the facts, and the court should have directed a verdict in favor of the defendant.

The defendant was not sworn as a witness, nor did he produce any witnesses. An inspection of the record shows that, prior to giving the note in controversy, the association had contracted debts, and had given its notes, for several thousand dollars, and that the defendant, with others, had guaranteed the payment of these notes. They were discounted, and the funds used by the association. Prior to the giving of the note in question, Mr. Barry desired to sell his stock, free from any liability; and, at his request, the amount of the debts of the association was ascertained, which amount included notes the payment of which he had guaranteed; and the share that should be borne by his stock was agreed upon, and the note was at that time given for that amount, and a receipt was given him, purporting to discharge him from any liability for the debts upon the payment of the note then given. A resolution was adopted at his request, allowing him to transfer his stock, and he did transfer it. The plaintiff' testified that the note was made' payable to his order because he -was to furnish the money tc the association to pay the amount that Mr. Barry was to pay of the debts of the company, and that Mr. Barry understood this; that plaintiff after-wards did advance the money, just as he had agreed with the association and Mr. Barry that he would do; and that Mr. Barry agreed to pay the note. This testimony was corroborated in many particulars by Mr. Hough, and is not contradicted by the defendant or any one else. We think the circuit judge very properly directed a verdict in favor of the plaintiff.

Judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    SULLIVAN v. FOLEY.
    Wills—Undue Influence—Appeal.
    Where the conduct of the principal beneficiary in a will, and of those who were active in her interest in procuring its execution, tends to show, in view of the condition of testatrix at the time, that undue influence was exercised, a verdict setting aside the will, rendered after a correct exposition of the law applicable to the subject, will not be disturbed on ’ appeal.
    Error to Kent; Grove, J.
    Submitted January 8, 1897.
    Decided March 10, 1897.
    Hannah M. Sullivan presented for probate the will of ’ Mary Foley, deceased. The probate was opposed by Thomas Foley and Bridget Toole. The will was disallowed in the probate court, and an appeal was taken to the circuit. From a judgment for contestants, proponent brings error.
    Affirmed.

      McCormick & LaGrou (Birney Hoyt, of counsel), for appellant.

      Taggart, Knappen & Denison, for appellees.
   Long, C. J.

This is a contest over the will of Mary Foley, deceased. It was executed June 6, 1895, and, after some charitable bequests, amounting to about $1,400, $100 to her sister Bridget Toole, and to her brother Thomas Foley the sum of $10, she gives to Hannah M. Sullivan specifically her house and lot, as well as $500 and her household furniture. After the payment of these specific legacies, Hannah M. Sullivan is given all the rest and residue of the personal property. James Cox was made sole executor. The will was disallowed in the probate court, and the case appealed to the circuit. The probate court found that the will was procured to be made by undue influence. On the trial in the circuit the two questions, undue influence and mental incapacity to make the will, were submitted to the jury, who found in favor of contestants, and set the will aside. It is contended here by counsel for proponent that there was no sufficient evidence upon either branch of the case which warranted the court in submitting the case to the jury. We are not able to agree with counsel in this contention. It would not be profitable to the counsel or the parties to set out the evidence here, and it is of no interest to the profession.

Another contention is that the witnesses, many of them called by the contestants, were permitted to give an opinion of the mental condition of the testatrix without having first stated sufficient grounds upon which such an opinion was based to warrant the court in permitting an opinion to be expressed by the witness. We have carefully examined the testimony given by these witnesses, and are of the opinion that, where such opinions were permitted, the witnesses in each instance gave the reason for the opinion, and stated such facts and circumstances coming under their observation that the court was warranted in admitting the testimony within the rule laid down in Prentis v. Bates, 93 Mich. 234, and cases there cited.

On the subject of undue influence the court instructed the jury substantially:

1. That the testatrix was at liberty to select at her own discretion the objects of her bounty, and that she was in a better condition than any one else to know what disposition ought to be made of her property.

2. That the jury were not to determine whether the will itself was a proper and suitable one, and that the view of the jury upon that subject must not be allowed to influence in the least their verdict; that, if testatrix was mentally competent to make the will, she had an undoubted legal right to make it.

3. That undue influence, in order to defeat a will, must amount to force or coercion, and that any influence short of this would not be undue influence.

4. That, in order to establish undue influence, the circumstances must be such as to be inconsistent with any other hypothesis; that undue influence cannot be presumed.

5. That a will cannot be set aside for undue influence unless such influence amounted to constraint too great for the testatrix to resist, and depriving her of free agency.

6. That neither advice nor argument nor persuasion will vitiate a will freely made, even though the will might not have been made but for such advice or persuasion.

7. That persuasions and appeals to the affection, ties of kindred, sentiments of gratitude, or pity for future destitution do not constitute undue influence.

8. That no presumption of undue influence arises from the fact that the testatrix gave her property elsewhere than to her brother and sister.

9. That the fact that the person alleged to have used undue influence had ample opportunity therefor was no evidence that such opportunity was exercised.

10. That the fact that Hannah Sullivan lived with the testatrix for many years raised no presumption of undue influence.

11. That the burden of proof was upon contestants to establish undue influence by a fair preponderance of the evidence.

Certainly the proponent has no just cause of complaint of this part of the charge. The law was properly stated which must govern that question, if there was evidence in the case which supported the contestants’ claim. There were many facts and circumstances surrounding the execution of this will which would extend the discussion of this question to unreasonable length if inserted here. It is sufficient to say that the conduct of the proponent and of those who were active in her interest in having the will executed, and the condition of the testatrix at that time, as well as the execution of two former wills, different from the one in question, were proper to be shown, as bearing upon the question of undue influence, and were, we think, sufficient for the jury to find that such influence was used in procuring the will to be executed.

Some questions are raised as to the rulings of the court in the admission and rejection of certain testimony upon the trial. We find no error in this part of the case, nor do we find any error in the refusal of the court to give certain requests tendered by the proponent.

Upon the,whole record it appears to us that a full and fair trial has been had, and the judgment will be affirmed.

Montgomery, Hooker, and Moore, JJ., concurred with Long, C. J. Grant, J., concurred in the result.


text:
    MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO. v. MARBLE.
    1. Railroad Companies—Right oe Way—Parol License.
    A parol license to a railroad company to enter upon land, and construct its road, is revocable at the will of the owner.
    2. Same—Title by Dedication.
    A statutory dedication of land by the filing of a plat cannot vest title in a railroad company to land designated on the plat by its name, since such companies have no power to take land by dedication.
    Appeal from Delta; Stone, J.
    Submitted January 9, 1897.
    Decided March 10, 1897.
    Bill by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Webster L. Marble and others to enjoin the prosecution of a suit in ejectment. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      E. C. Chapin, for complainant.

      Ball & Ball, for defendants.
   Long, C. J.

This bill was filed to restrain the defendants from prosecuting a certain ejectment suit against the complainant to recover the possession of certain lands used for railway purposes, situated in the city of Gladstone, this State, and also to adjudge and decree that the making, approval, and filing of the plat of the Marble addition to Gladstone (being a subdivision of lot 2, section 21, township 40 N., of range 22 W., Delta county, Mich.) was a dedication to the public and to complainant of the premises described for railway purposes, and that the plaintiffs in the ejectment suit are not entitled to possession thereof; and that the court decree and adjudge that the complainant, as the successor of the Minneapolis, Sault Ste. Marie & Atlantic Railway Company, acquired, and still has, equitable rights in and to the right of way over said premises, and that the defendants are estopped from ejecting complainant therefrom; and that the court adjudge and decree what damages, if any, shall be paid by the complainant to the defendants as compensation for the use of said right of way. There is also a general prayer for relief. An affidavit is attached to the bill, made by the chief engineer of complainant, which will be hereafter referred to. This bill was demurred to by the defendants, and the demurrer sustained in the court below.

It appears from the bill that the complainant is a corporation organized and existing under the laws of this State; that, in the year 1888, articles of consolidation of four railway corporations, namely, the Minneapolis, Sault Ste. Marie & Atlantic Railway Company, the Minneapolis & St. Croix Railway Company, the Minneapolis & Pacific Railway Company, and the Aberdeen, Bismarck & Northwestern Railway Company, were approved by the board of railway consolidations, and duly filed in the office of the secretary of state of this State, whereby the said four railway companies were consolidated, and became a single railroad corporation, being the complainant in this case. It also appears that in 1887, and before this consolidation, the Minneapolis, Sault Ste. Marie & Atlantic Railway Company was engaged in the construction of its railway through Delta county, and during that year entered upon and let its contracts over the lands described in the bill, such contracts being upon the lines shown on its profile, connecting with its docks; that it thereafter used said railway and tracks continuously for general railway business until on or about the 13th of June, 1888, when the same passed into the possession and under the control of the complainant, by virtue of such consolidation; that at the time of the entry upon said lands by the Minneapolis, Sault Ste. Marie & Atlantic Railway Company, and when constructing said railway, a corporation known as the N. Ludington Company, organized and existing under the laws of Wisconsin, and doing business in Wisconsin and Michigan, claimed to be the owner of said premises; that one Isaac Stephenson, of Marinette, Wis., was president of that company, and, it is alleged, had general management and supervision of its affairs in this State, and made agreements to sell and convey land and interests in the land of said company; that, as president, he granted license to use for right of way certain real property of said company in this State; that he agreed with said Minneapolis, Sault Ste. Marie & Atlantic Railway that the N. Ludington Company would convey to said railway company, for right of way and station grounds, a strip 200 feet wide over and upon the N. E. £ of the S. W. i of section 12, town 39 N., of range 23 W., in Delta county, and made and dictated all the terms upon which said conveyance should be made, and that the said agreement was subsequently carried out by the N. Ludington Company, and said right of way was duly conveyed by deed.

It is further alleged that about the date of the entry of said Minneapolis, Sault Ste. Marie & Atlantic Railway on said lot 2, and the commencement of the construction of said railway, the attorney and right-of-way agent of said railway company, one E. C. Chapin, had an interview with said Isaac Stephenson, and attempted to purchase the right of way now occupied and used by the complainant on said lot 2, and through other lands in Michigan of which said N. Ludington Company then claimed to be the owner, and that he asked the said Isaac Stephenson to name a price for which said right of way in Michigan could be purchased, and that said Stephenson declined to name a price, but said, in substance, to Chapin, “ You go on and build your railway, and we will arrange the price some other time;” that, relying upon said consent for the occupation and use of said lot 2, the said Minneapolis, Sault Ste. Marie & Atlantic Railway Company proceeded with the construction of its railway upon and across said lot, and expended in said construction, for grading, ties, iron, and labor, about $7,000; that, during the years 1887,1888, and 1889, said Chapin had several further interviews with said Stephenson, but was never able to secure any definite proposition from him as to the amount for which the N. Ludington Company would convey to the railway company the right of way; that in March, 1889, said Chapin again attempted, in a meeting with said Stephenson, to purchase said right of way, but was unsuccessful; that during the said years the Minneapolis, Sault Ste. Marie & Atlantic Railway Company was at all times ready and willing to pay, and would have paid, the said N. Ludington Company a reasonable compensation for said right of way, but could never secure a price for which the same could be purchased; that May 20, 1889, the N. Ludington Company conveyed all its interests in said lot 2 to the Isaac Stephenson Company, a corporation, and on May 21, 1889, the Isaac Stephenson Company conveyed its interests, by warranty deed, to Webster L. Marble, Peter Mathews, Carlton E. Rathfon, and Samuel B. Rathfon; that on the 15th day of June, 1889, Webster L. Marble, Rosa M. Marble (his wife), Carlton E. Rathfon, Samuel B. Rathfon and Allie B. Rathfon (his wife), Peter Mathews and Sarah Mathews (his wife), made and executed a plat of said lot 2, which was approved by the auditor general of the State of Michigan, and filed in the office of the register of deeds of Delta county on July 15, 1889; and that from and including the year 1891, and to the present time, the land on said section 2 has been assessed by lots and blocks; and that the land occupied by the complainant has not been assessed, and no taxes paid thereon. The bill then sets out the commencement of the ejectment suit, and that the same is still pending.

It is further alleged, as a reason why condemnation proceedings have not been commenced, that it was expected that all right of way matters would be amicably settled and adjusted, and that, relying upon the negotiations with Stephenson, the railway company has expended large amounts of money in constructing its railway, and in maintaining and repairing the same; that the westerly track, shown on the plat annexed to the bill, is a part of the main line' of complainant, which now extends from Sault Ste. Marie, Mich., to Portal, on the north line of the State of North Dakota, a distance of over 1,000 miles, and connects at each point with the Canadian Pacific Railway Company, and forms a part of a trunk line from the Atlantic to the Pacific Ocean. It is further claimed by the bill that the complainant has an extensive freight and passenger traffic, is engaged in carrying United States mail, and express for the Western Express Company, and employs a large number of men, and is a public highway; and that the 'removal of its tracks from said lot 2 would result in great and irreparable injury and loss to the traveling public, to all persons living along the line of its railway, and to the complainant; and that, by the acquiescence of the defendants in its operation and maintenance since the year 1887, the complainant has acquired equitable rights in said right of way, and that defendants should be estopped from ejecting complainant therefrom.

It is further claimed by the bill that the making and filing of the plat of said entire lot 2, with the right of way of complainant platted thereon, and designated on said plat as “M., St. P. & S. Ste. M. Ry.,” meaning the complainant, and without reserving from the operation of said plat and dedication any part of said lot 2, is, in law and in fact, a dedication to the public and to the complainant of said right of way for the use and occupation of complainant for railway purposes; and that complainant is now and has been entitled ever since the making, approval, and filing of said plat to' the use and occupation of said right of way, and cannot be lawfully ejected therefrom. The bill further sets out that, since the filing of said plat, said Webster L. Marble and.Rosa M. Marble, his wife, on January 23, 1895, conveyed by quitclaim deed to Clayton Voorhis, one of the defendants, an undivided one-eighth interest in and to all lots and blocks of the Marble addition to Gladstone; and it is further alleged that other lots in said plat have been sold on contract; and it is therefore charged that said plat has been repeatedly recognized and ratified by the plaintiffs in the ejectment suit, and that they are-now bound thereby; that, at the time the said railway company entered upon said lot 2, the entire lot was wild and uncultivated, and a part of the land covered by the railway, low, marshy, and at times covered with water; that, prior to the building of the railway, said lot and the adjacent lands were of little value, and, if there has been any advance in such value, it is in part, if not wholly, due to the location, construction, and subsequent operation of said railway.

It is shown by the affidavit attached to the bill that the easterly track of the complainant on said lot 2 extends to the elevator, coal dock, and sheds of complainant, and is the only track over which the wheat and other produce is conveyed from said main line to said elevator, and the coal shipped westward and elsewhere from said coal dock and sheds; and that over 1,000,000 barrels of flour and over 3,000,000 bushels of grain were carried over its track to the said elevator in the year 1895, and over 200,000 tons of coal were unloaded on said dock, and shipped westward and elsewhere, in 1895, in addition to a large amount of merchandise, salt, and lumber which passed over its said tracks the same year; and that said lot 2 has not been damaged by the building of said tracks, but is now, and has been, benefited by said railway. It is further stated in the affidavit, on information and belief, that Mr. Stephenson was authorized by the N. Ludington Company to make sales, and to rent and lease lands, and to grant licenses to railway companies to cross and occupy the lands of said company for railway purposes.

It is contended by counsel for defendants that there is no allegation in the bill that Mr. Stephenson had any authority to sell the lands of the N. Ludington Company, or to grant rights of way. We think there is sufficient allegation of that fact, and that question will not be further discussed.

It is next contended that a permanent interest in and by way of an easement cannot be acquired by parol license. That question was settled in this State in Wood v. Railroad Co., 90 Mich. 334, and cases bearing on the question are there collected. It was held in that case that a parol license to a railroad company to enter upon land, and construct its road, is revocable at the will of the owner. It was held in Maxwell v. Bridge Co., 41 Mich. 453, that such a license is revocable, and was revoked ipso facto when the licensor conveyed the premises. We think these rules are too well settled in this and other courts to need further discussion.

But counsel for complainant contends that, however this may be, when lot 2 was platted by the owners, and the plat approved by the auditor general, and duly filed and recorded, and the plat showing these lands set apart for railway purposes, it operated as a dedication to the public and to the complainant for railway purposes. Counsel for defendants contend that there is nothing in the designation on the plat of this strip of land to indicate that it was intended for a public railroad; that there is no name of the company mentioned, and the designation on the plat merely indicates that the parties making it contemplated the construction of a railroad, or supposed that a railroad would be constructed on the strip of land so designatedj and they gave it the name that appears on the plat; that it is the mere mention of an existing fact, if such was the fact at the time. Again, it is contended that a dedication for public purposes can be made under the statute only for public grounds, streets, and alleys, and that, therefore, the plat did not convey any rights to the complainant. Defendants also make "the broader contention that there can be no dedication to a private corporation. Section 3323, 3 How. Stat., provides that a railroad corporation shall possess certain general powers that are enumerated in that section. The only way in which it is empowered to take land is by voluntary grant and donation, or by condemnation. The statute does not provide that a railroad company may take lands by dedication.

The questions here presented arose in the case of Watson v. Railway Co., 46 Minn. 321. It appeared in that case that a plat of the lands contained a strip across the plat, marked “Reserved for right of way, line of S. M. R. R.” It was claimed upon the part of the railroad company that this showed an intent to dedicate the lands so marked for railroad purposes. It was held, however, that the effect of this was not to dedicate the land to the railroad company by the statutory dedication, and that the railroad company could not take title by common-law dedication. It was said by the court:

“It is argued that a railway company is a public or quasi public corporation; that its purposes and duties are public; that its use of land held and used by it for the purpose of its railroad is a public use, and that lands dedicated for that purpose are dedicated to the public for public use. From the arguments used, it might be inferred that the title of such a company to the lands held by it is merely nominal,—held by an agent for its principal, no rights or interests of its own being involved. Fortunately for such corporations, and for the public also, this is not the view the courts take of the relation between the corporation and the property held by it. The lands acquired by the corporation for the purposes of its enterprise are, so far as the right of property is concerned, private property. If purchased, the corporation pays for them; if taken in the exercise of the right of eminent domain, it pays the compensation. It is true they are charged with a public duty, which the corporation, in consideration of the rights and powers conferred on it by the State, assumes to perform, and which the State can compel it to perform. * * * The corporation, for its own profit and advantage, accepts the franchises offered by the State, and assumes to perform the functions and duties required by the State, not with property furnished it by the State, but with its own property. The ownership of the property is private, though the use required to be made of it is public.”

The same rules were laid down in Louisville, etc., R. Co. v. Stephens, 96 Ky. 401; Todd v. Railroad Co., 19 Ohio St. 514; Lake Erie, etc., R. Co. v. Whitham, 155 Ill. 514 (46 Am. St. Rep. 355).

In People v. Salem, 20 Mich. 478 (4 Am. Rep. 400), this court, in speaking of railroads, said:

“They are not, when in private hands, the people’s highways; but they are private property, whose owners make it their business to transport persons and merchandise in their own carriages, over their own land, for such pecuniary compensation as may be stipulated.”

We think that the contention of counsel for defendants is correct that the making and filing of the plat did not operate as a dedication of these lands to the public or to the complainant for railroad purposes. It may be a matter of hardship to the railroad company, after all these years of occupancy, and after expending large sums of money in improvements, to be compelled to take condemnation proceedings; but we are unable to agree with its counsel that it acquired title by this parol arrangement, or that it can hold land by dedication.

We think the court below was correct in dismissing the bill. The decree will be affirmed, with costs.

The other Justices concurred.


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    ROSEMA v. PORTER.
    1. Judgment—Res Judicata—Bill of Particulars.
    A judgment in assumpsit for the care of a horse is not res judicata of a further claim for care covering a period between the commencement of the original suit and the date of trial) where the bill of particulars in such suit limited the claim to the period ending with the date of commencement of suit, even though the case was submitted under instructions permitting a recovery to the later date.
    2. Conditional Tender—Effect of Acceptance.
    A tender made upon the condition that it be accepted in full satisfaction of the amount due puts the party to whom it is made to his election, and his acceptance of the tender is in effect an assent to the condition.
    Error to Kent; Grove, J.
    Submitted January 12, 1897.
    Decided March 10, 1897.
    Replevin by Nanco Rosema against Thomas H. Porter. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John S. McDonald, for appellant.

      Emanuel J. Doyle, for appellee.
   Montgomery, J.

On the 6th of August, 1894, plaintiff sold to the defendant a gray stallion colt, warranting him eligible to registration as standard bred. Shortly after the sale, defendant discovered that the horse was not eligible to registration, and thereupon rescinded the contract of sale, and commenced a suit in assumpsit to recover the purchase price and interest, and for the care and keep of the animal. The bill of particulars limited the claim for the care and keep of the animal to a period ending August 20, 1895, the date of commencement of suit. The plaintiff in that action (defendant here) recovered a verdict of $200, which included, as appears to be conceded, $36.86 for the care and keep of the horse. The verdict was rendered on the 23d day of January, 1896. On the 27th of January, Mr. McDonald, representing the plaintiff in this' case, went to defendant, and inquired of defendant if he claimed any title to the horse, to which the defendant answered that he did not, but that his claim was for the keep of the horse, and that it amounted to $175. McDonald tendered $36.86 to defendant, and said: “I want to tender you this money, being the entire amount that you are entitled to for the keep of this horse.”' Defendant took the money, and put it in his pocket, and said: “I will give you a receipt, and apply this on the keep.” McDonald replied: “No, I will not accept any receipt, and I will not apply that money in this way. That is for the entire keep of the horse.” Defendant, notwithstanding, kept the money, and refused to deliver the horse, whereupon plaintiff brought this suit in replevin. On the trial, the facts above stated were shown, and, in addition, the charge of the circuit judge in the assumpsit case was introduced, by which it appears that the circuit judge submitted the case to the jury upon a theory which would have permitted a recovery for the keep of the horse down to the date of trial. Plaintiff offered this in evidence, and insisted that the verdict of the jury on the former trial was an adjudication as to the amount of defendant’s lien up to that date.

Two questions are raised: First, as to whether the verdict in the former action was res judicata as to the amount of the lien; and, second, whether the lien was discharged by the tender and receipt of the money, under the circumstances shown.

We think it cannot be said that the former judgment is res judicata as to the extent of defendant’s lien upon the horse. The bill of particulars fixed the issue, under the general pleadings. This being the case, the record cannot be contradicted by showing that other matter has been adjudicated. Mondel v. Steel, 8 Mees. & W. 858; Camp bell v. Butts, 3 N. Y. 173; Burdick v. Post, 12 Barb. 168; Hatch v. Benton, 6 Barb. 28; Meredith v. Mining Ass’n, 56 Cal. 178; Green v. Clark, 5 Denio, 497; Jones v. Perkins, 54 Me. 393; Chapman v. Smith, 16 How. 114; 2 Van Fleet, Former Adj. § 428; 2 Smith, Lead. Cas. 784.

The circuit, judge instructed the jury that the defendant was entitled to recover for the care and keep of the horse from August 20, 1895, to the date when the horse was taken from his possession. We are constrained to hold that this was error. When the money was tendered to the defendant, accompanied by the condition that it be received in discharge of the lien upon the horse, it was the duty of the defendant to elect. He could not receive Rnd retain the money, and escape from the condition imposed. See Fisher v. Holden, 84 Mich. 494; Potter v. Douglass, 44 Conn. 546; Adams v. Helm, 55 Mo. 468; Lee v. Dodd, 20 Mo. App. 271; Perkins v. Headley, 49 Mo. App. 556.

Judgment reversed, and new tidal ordered.

The other Justices concurred.


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    STRAWBRIDGE v. STERN.

    Trover—Joinder op Parties.
    Two or more persons cannot properly be joined as defendants in an action of trover, where distinct acts of conversion are relied upon, in which they were not jointly concerned.
    Error to Kalamazoo; Buck, J.
    Submitted January 13, 1897.
    Decided March 10, 1897.
    Trover by Justice Strawbridge and Isaac Clothier, co-partners, against Henry Stern and Jacob Levy, impleaded with Charles Livingston and Nathan Block, copartners. From a judgment for defendants Stern and Levy on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Osborn, Mills & Master, for appellants.

      Howard & Roos (Boudeman & Adams, of counsel), for appellees.

       Rehearing denied June 18, 1897.

   Montgomery, J.

Plaintiffs filed a declaration against the defendants, containing two counts, the fitst charging a conspiracy to defraud against the four parties jointly, the second being an ordinary count in trover, the property mentioned in each count being the same, and consisting of dry goods sold by the plaintiffs to the defendants Livingston & Block. On the trial of the case the plaintiffs’ attorney announced that no recovery would be sought under the first count in the declaration. The record also shows that there was no evidence in the case that Stern or Levy conspired with the other defendants to cheat and defraud the plaintiffs. The questions to be determined, therefore, arose under the count in trover.

The plaintiffs offered testimony which tended to show that the defendants Livingston & Block bought the goods in question of the plaintiffs, fraudulently, and not intending to pay for them. It further appeared in the cáse that defendant Levy was a creditor of Livingston & Block, and that, shortly after the purchase by Livingston & Block from plaintiffs, he bought a portion of the goods in question from them, and that the consideration paid was the cancellation of the indebtedness, and the delivery of the notes of Livingston & Block evidencing such indebtedness, and his own promissory note for $166.35, which was subsequently transferred, before due, to one Meyer Desenberg, to apply on an indebtedness of Livingston & Block to him. The record also shows that it was shown on the part of defendant Levy, by testimony not contradicted by any testimony on the part of plaintiffs, that when he loaned the money to Livingston & Block he was promised that he should be repaid when the notes came due; that when the notes came due he demanded payment, but Livingston & Block, not having the money with which to pay, offered to turn out goods in payment of said indebtedness, which he agreed to and did accept; that he (Levy), being in the same business, could use the goods in his business; that, when he accepted the goods in payment of his notes, he had no knowledge of any fraud, or claimed fraud, on the part of Livingston & Block, or of any of the facts which plaintiffs claimed tended to show fraud on their part; and he had no knowledge that the goods so sold to him by Livingston & Block had not been paid for by them.

The evidence as to defendant Stern was that, some days after the sale to Levy, a chattel mortgage of the stock in question was made by Livingston & Block to Stern as trustee, to secure three creditors, namely, Aaron Livingston, Daniel Goldstein, and R. Livingston. It appeared that, prior to the giving of the mortgage, Livingston & Block had shipped to Aaron Livingston, in the name of a fictitious consignor, goods to the amount of nearly two-thirds the amount of his claim. They had shipped to R. Livingston, also in the name of a fictitious consignor, goods covering more than one-half the value of his claim, and in a similar manner had shipped to Daniel Goldstein goods covering two-thirds in value of his claim. But the mortgage was executed purporting to secure the full amount of the original claims of each of these creditors. It does not appear that Stern had any knowledge that these goods had been shipped to these creditors. He took possession under his mortgage; and plaintiffs’ testimony further shows that plaintiffs discovered some of the goods which had been fraudulently obtained from them by defendants Livingston & Block in Stern’s possession, and demanded possession of the same, which was refused; and that the plaintiffs also discovered some of the goods obtained from them by Livingston & Block in the possession of Levy, and demanded them of him, which demand was refused.

It will be seen that two distinct conversions must have taken place, according to plaintiffs’ theory. The conversion of the goods transferred to Levy, was one in which the defendant Henry Stern was in no way concerned, and it is equally true that Levy was in no way concerned in the conversion of the goods transferred to Stern by Livingston & Block. At the conclusion of the plaintiffs’ case, the defendants’ counsel asked the court to hold that there could be no joint judgment against the defendants Stern and Levy, and that the plaintiffs be required to elect as to which defendants they would proceed against. This request was refused, but at the conclusion of the testimony the circuit judge directed a verdict in favor of the defendant Levy, on the ground that the undisputed evidence in the case showed him to be a good-faith purchaser, without notice of any infirmity in the title of Livingston & Block; and also held, as matter of law, that, under the proofs in the case, Stern could not be joined with the other defendants; and, the plaintiffs having been required to elect to proceed against the defendants Livingston & Block or Henry Stern separately, and having refused so to do, the court directed a verdict in favor of defendant Stern. The case then went to the jury, and the plaintiffs recovered against the defendants Livingston & Block.

The case is brought here, and error is assigned upon the rulings by which plaintiffs were prevented from recovering against Stern and Levy. The plaintiffs invoke the familiar rule that, if defendants might be held jointly liable, the law will not apportion their responsibility, and that all who are concerned in a single trespass or wrong may be held jointly liable. Numerous cases are cited to sustain this proposition, of which cases Lincoln v. Claflin, 7 Wall. 132, is an illustration. But the cases permitting joinder of defendants are limited by the rule that such a joint action cannot be maintained against different defendants, where separate and distinct trespasses are relied upon, in which the parties are not jointly concerned. See 1 Chit. Pl. 86. In Dahms v. Sears, 13 Or. 47, 65, it is said: “In an action of that character, the plaintiff must elect at the trial as to which of the defendants he will proceed against. If he fail to do that, and submit the case to the jury, he will be entitled to no verdict.” It is quite probable that, had the plaintiffs elected to proceed against the defendants Livingston & Block and Stern, they would have been entitled to have considered as much of their demand as arose out of the alleged conversion of the goods which came into the hands of Stern. But the plaintiffs did not, and refused to, take this course. They insisted upon proceeding to the jury upon a claim for the entire of the goods purchased by Livingston & Block. Not only this, but they continued their case as against Levy, and are here insisting that error was committed in his favor and to the plaintiffs’ prejudice. Upon the issue which the plaintiffs thus presented to the jury, a verdict in favor of the defendants Stern and Levy might properly have been directed, upon the ground that they were improperly joined, as their several acts, complained of by plaintiffs, were wholly disconnected. We think the plaintiffs are not in position to complain of the rulings on the trial. See, further, Hines v. Jarrett, 26 S. C. 480; Dyer v. Hutchins, 87 Tenn. 198; Cogswell v. Murphy, 46 Iowa, 44; Cooper v. Blair, 14 Or. 255; Larkins v. Eckwurzel, 42 Ala. 322 (94 Am. Dec. 651).

The judgment will be affirmed.

The other Justices concurred.


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    WHORAM v. TOWNSHIP OF ARGENTINE.
    1. Pleading—Defective Highways—Place of Injury—Sufficiency of Declaration.
    A declaration in an action for injuries sustained by reason of a defective highway:, which alleges that the defendant township had control of that portion of the highway which was situated between two specified sections in G. township and two specified sections in defendant township, and that the defect in question consisted of a hole of stated dimensions on the north side of and in the traveled portion of said highway, between the sections indicated, is not open to the objection, after a plea of the general issue, that it does not sufficiently describe the place of the injury.
    3. Highways—Notice of Defect—Contributory Negligence.
    Whether one was guilty of contributory negligence in riding along the traveled portion of a highway without taking precautions to avoid a defect therein which he knew to have existed some months before, but which he supposed had been remedied, is a question for the jury.
    3. Trial—Erroneous Instruction—Subsequent Correction.
    An error in a charge, which was subsequently corrected so that the jury could not have been misled thereby, is not ground for reversal.

      Error to Genesee; Wisner, J.
    Submitted January 12, 1897.
    Decided March 10, 1897.
    Case by Charles D. Whoram against the township of Argentine for injuries sustained by reason of a defective highway. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    That portion of the declaration relating to the place of the accident reads as follows:
    “That heretofore, to wit, on the 29th day of January, A. D. 1893, the said township of Argentine, defendant herein, and for more than one year previous thereto, had charge and control of the highways in said township, and had charge and control of a certain portion of the highways situated between the township of Gaines and the township of Argentine, Genesee county, Michigan, being the highway between sections thirty-two and thirty-three (32 and 33) of and in Gaines township, and sections four (4) and five (5) of and in the township of Argentine, aforesaid, being what is known as a ‘town-line road,’ and that the portion of the road above described was, and had been for many years, and is now, in and under the control, supervision, and management entirely of the township of Argentine, and that the same had been set off by the proper officers of the said townships of Gaines and Argentine to the township of Argentine, and they had assumed control of the same, and the care and repair of the same, and that said highway was a public highway for the travel of passengers and people with conveyances over the same, and was a regularly laid out highway, and had been for the period of over 10 years; and that upon said 29th day of January, 1893, the said plaintiff was riding along said highway between said sections, as above described, on horseback, and while using and exercising due care and caution, without any neglect or fault upon his part, his said horse stepped into a hole on the north side and in the traveled portion of said highway, and between said sections above described, and, in consequence of said stepping into said hole, said horse, without any fault or neglect on the part of said plaintiff, fell and threw the said plaintiff and fractured his left leg; that said hole in said highway was about eighteen (18) inches deep and one (1) foot across, as near as plaintiff can estimate the same, and was covered over at the time of the accident with a thin coating of ice, and thus preventing plaintiff from seeing and avoiding said hole.”

      Everett L. Bray, for appellant.

      Tinker & Frackelton, for appellee.
   Moore, J.

The plaintiff sued the defendant and recovered a judgment for personal injuries received on a defective highway. Defendant appeals.

The first group of errors assigned relates to the declaration, which defendant claims did not sufficiently describe the place of injury. The defendant pleaded the general issue. While the declaration might well have been more specific, we think it stated a cause of action, and alleged a substantial grievance, and, under the plea interposed by the defendant, is sufficient. Jackson v. Collins, 39 Mich. 557; Briggs v. Milburn, 40 Mich. 512; Burke v. Wilber, 42 Mich. 327; Rowland v. Kalamazoo Superintendents of Poor, 49 Mich. 553; Sutton v. Van Akin, 51 Mich. 463; Campbell v. City of Kalamazoo, 80 Mich. 655; Fuller v. Mayor, etc., of Jackson, 82 Mich. 481; Storrs v. City of Grand Rapids, 110 Mich. 483; Moody v. Township of Shelby, 110 Mich. 396.

The testimony disclosed that, in the fall before the accident, the plaintiff knew of the defect in the highway, but that he supposed it had been remedied. He also testified:

"After I got into the road, I started the mare into a trot, and was trotting when I got to this hole. I was thinking about my errand—about my business—when the accident happened. I didn’t think about this hole. My mind was intent upon my business at the time. I was on the side of the road. I kept along in a straight line. I did not. take any precaution to keep away from the hole. The road was slippery and icy,—the traveled part of the road,—so I kept to the right-hand side. * * * I had continued from the time I started along the outside,—on the right-hand side of the traveled part of the track,— and was in that position when the accident happened.”

It is claimed that this testimony, taken in connection with his knowledge of the road, shows that the plaintiff was negligent, and the court should have so directed the jury. We think the case in this particular is governed by Bouga v. Township of Weave, 109 Mich. 520, and that the court did not err in submitting the question to the jury.

The other assignments of error necessary to be discussed relate to the charge of the court. In his charge he made use of this language: “It is the duty of the township to keep its public highways in reasonable repair, and fit for public travel; and that duty extends not only to the traveled portion of the highway, but to that portion within the main ditches of the same.” This is assigned as error. The last sentence was evidently a slip of the tongue of the learned judge, for he immediately added, “That is, all that portion of the highway worked, and which the public would naturally use by reason of its apparent fitness for use;” and a little later he stated the law to be, “It is not expected that public travel will occupy all parts of a country highway, and there is no requirement of law compelling public authorities to put such road in condition as if it were. ” He also charged the jury that under the law, to entitle the plaintiff to recover, he must show by a preponderance of evidence at least four things:

‘ ‘ First. That the highway at the place where the injury was received was not in reasonable repair, and in a condition reasonably safe and fit for travel, and that the defect was the very one complained of in his declaration.
‘ ‘ Second. That the township, by or through its supervis- or or commissioner of highways or overseer of highways, had knowledge or notice, either actual or constructive, of the defect complained of, and that the township, by its officers, had reasonable time and opportunity, after such knowledge or notice, to remedy the defect, and that the township did not use reasonable diligence therein after such knowledge or notice.
Third. That the injury was received by reason of the defect complained of, and that by reason thereof plaintiff has sustained damages.
“ Fourth. That the plaintiff was free from negligence himself, and that he was guilty of no negligence whatever which in any way contributed to the injury received.”

The jury were not misled by the charge.

We do not think any of the assignments of error can be sustained.

Judgment affirmed.

The other Justices concurred.


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    BAHEL v. MANNING
    1. Firearms—Negligent Use—Liability.
    One who snaps a gun, knowing it to be pointed at another person, is guilty of negligence per se, and is liable to such person in damages, both at the common law and under the statute (2 How. Stat. §§ 9110-9113) designed to prevent the careless use of firearms, for injuries occasioned by the discharge of the weapon; and it is no defense that he used the ordinary means to satisfy himself that the gun was unloaded, and believed it to be so when he snapped it off.

    2. Same—Contributory Negligence—Question for Jury.
    Whether the plaintiff in such action was guilty of contributory negligence is a question for the jury, where defendant testifies that plaintiff sat in range of the gun, and requested defendant to snap it off, both believing it to be unloaded, and the plaintiff, while admitting having suggested that defendant “try” the gun, further testifies that until defendant took it up to discharge it he was not in its range, and that after it was pointed at him he had no time to protest or get out of the way.
    Error to Saginaw; Wilber, J.
    Submitted January 12, 1897.
    Decided March 10, 1897.

      Case by Charles W. Bahel against Peter J. Manning for personal injuries due to the negligent discharge of a firearm. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. E. Emerick (J. H. Davitt, of counsel), for appellant.

      Humphrey & Grant, for appellee.

       Negligence in respect to the use of guns is the subject of a note to Chaddock v. Plummer, (Mich.) 14 L. R. A. 675.

   Long, C. J.

This is an action on the case for damages for injuries caused by the defendant’s carelessly and negligently discharging a gun, the bullet from which passed through plaintiff’s right thigh and hip, permanently disabling him.

It appears that the defendant, at the time of the accident, was a resident of Saginaw, this State, and had gone to Otsego Lake on a hunting trip. He had formerly lived at that village for some years, and he and the plaintiff were well acquainted. On the evening of November 13, 1894, the plaintiff, learning that the defendant was at the hotel in the village,- called to visit him. As the plaintiff entered the public room of the hotel, he found the defendant seated in front of a wash-stand on the east side of the room, fixing his gun. He had taken the stock off and the works out, and was fixing the spring, the barrel of the gun lying across his lap. The plaintiff became seated near the defendant, when some conversation was had between them in reference to the gun. During the day the defendant had loaded the gun,—that is, had put a number of loaded cartridges into the magazine,—but had had trouble with discharging some of them. The gun had twice failed to explode the cartridges during the day, and he took it back to the hotel with the cartridges in the magazine. He testifies that, before he commenced working on the gun to take it apart, he worked the lever which extracts the cartridges from the gun until it failed to throw out any more cartridges, and then took the gun apart, and it was in that condition when the plaintiff came in. The parties differ as to the position of the gun >and the position occupied by each after the plaintiff came into the room. The plaintiff testified that, after he had spoken to the defendant, he “asked him about the gun, and what was the matter with it, and defendant said the spring was not stiff enough; that it wouldn’t set the cartridges off,—meaning the fire. I said, ‘Perhaps, if you put a piece of leather under the spring, it will make it so it will stand during the hunting season.’ He finally took it apart and put the piece of leather under the spring, and put the spring, with the rest of the works, back into the gun, turned it up like that (indicating), and drew the gun up like that (indicating), and discharged it. * * * The gun was pointed so that when it went off it hit me in the leg.” He further testified that the gun was on the defendant’s knees, and that he put the works in, and “then it was ready to see if the spring was any stiffer. He just turned it and drew it onto me.” On cross-examination he testified that the gun was not pointed at him until the spring was fixed and defendant brought it up to try it. He was asked:

‘ ‘ Rid you say anything about trying it ?
“A. Yes, sir. After he put the leather under the spring, then I told him to try it,—see if he could get it any better.
"Q. There was only one way for him to try it?
“A. He could try it by raising the hammer and not letting it snap down.
“Q. Didn’t he do that,—raise it with his thumb?
“A. No; he raised the hammer and snapped it, and. drew it onto me. I didn’t tell him to draw it onto me. I leaned back in my chair. I saw him do this. In order to get away, I had to get forward. It happened so quick I didn’t have time to take a second thought. * * *
“Q. When you said to him to try it, of course the only thorough way to try that would be to cock the gun, and let it pull the trigger, and let it strike down ?
“A. But he needn’t point it .at anybody. * * *
“Q. Did you think the gun was loaded?
“A. No, sir, I didn’t; but I ain’t in the habit of pointing a gun at anybody, or having it pointed'at me, whether it was loaded or not.”

The witness further testified that during all the time he was in the room, and up to the time when the gun was snapped off, he was not in range with the muzzle.

The defendant’s statement of the affair is that he had been in the woods, and had shot at a deer or two that day, and that the gun had failed to go off; that that evening he was trying to tighten the mainspring; that, when the plaintiff came in, defendant showed him the cartridge which the gun had refused to break, and had only dented the top of it a little; that, after fixing the spring, he was working the hammer, when the plaintiff said, ‘ ‘ Snap it off; it won’t hurt it; ” that he did snap it off, when it went off, and the plaintiff was injured. He testified further that the gun was in the same position from the time he started to work at it until it was discharged; that he believed it was entirely unloaded, and that there was nothing that occurred there that night to indicate that there was anything wrong with the mechanism of the gun; that the lever operated as it usually did when emptying the gun and magazine of the cartridges; that he had no recollection of any change in the plaintiff’s position or of his own after the plaintiff sat down there; that the gun pointed in his direction all the time from the time he sat down until it was discharged; that he did not pick it up, raise the hammer and bring it around towards the plaintiff, and then pull it off. The defendant further testified that he supposed he had all the cartridges out of the gun and out of the magazine; that his attention was called to this before the plaintiff came in by a Mr. Callahan, who asked, “Is there anything in that gun ? ” and defendant told him there was not, and that he said to him, ‘ ‘ Do you suppose I would go to work to fix a gun with any loads or cartridges in it ? ” that he pumped the lever to show him there was not, probably five or six times; that this was the usual way of throwing out the cartridges. It was shown, however, by the testimony of other witnesses, that, if the cartridge was carried from the magazine to the barrel by working the lever after the works had been put back into the gun, the cartridge would come into plain view of the one working the lever.

The defendant presented several requests to charge to the court, relating to the question of defendant’s negligence. These the court refused, but charged the jury upon that question as follows:

“It seems from some cause,-—-the witnesses are not able to explain just how,—one cartridge was not removed, and the result was this accident. The pointing of the gun, under such circumstances, at another, is made an unlawful act by the statutes of this State. The fact that the defendant had used the precautions which he has enumerated, for the purpose of determining whether the gun was or was not loaded, will not relieve him from liability, from the consequences of his negligent act in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which were the immediate acts which caused, a discharge of the gun and resulted in injury to the plaintiff. A man is not excused from his act in injuring another by pointing and discharging a gun at him from the fact that he supposed he had taken all necessary precautions prior to the doing of this for the purpose of ascertaining and determining that the gun was not loaded. The act of pointing a gun at another, cocking it, and pulling the trigger, is of itself a negligent act; and the person so doing if the gun chances to be loaded and is discharged, and injures another, is not excused from the consequences of this negligent act on account of the care which he took prior to its commission to determine whether the gun was loaded. I therefore charge you, gentlemen of the jury, that, under the undisputed evidence in this case, the act of the defendant in pointing the gun at the plaintiff, raising the hammer, and pulling the trigger, which caused the,gun to be discharged and to injure the plaintiff, was a negligent act on the part of the defendant, and rendered him liable to the plaintiff in this action, and your verdict must be in his favor, unless you find that the plaintiff himself Was guilty of contributory negligence. The plaintiff, in order to recover, must establish, by a preponderance of evidence, two facts: First, that the injury was caused by the negligence of the defendant; second, that He himself was not guilty of contributory negligence. And the burden of proof is upon the plaintiff to establish both of these propositions. I have already instructed you that, as a matter of law, the plaintiff has established the first proposition,—that the defendant, in so pointing the gun and discharging it, was guilty of negligence.”

The sections of the statute referred to by the court in its charge to the jury are 9110-9113, inclusive, of 2 How. Stat. The act was passed in 1869, and is entitled “An act to prevent the careless use of firearms.” In People v. Chappell, 27 Mich. 486, this statute was under consideration, and it was held that a prosecution would not lie, and a conviction would not be sustained, under it, where the use of firearms was not careless, but was intentional or malicious. Mr. Justice Campbell, in speaking of the act, said:

“The statute was designed to punish a class of acts done carelessly, but without any design of doing mischief, and the various sections 'must, under our Constitution, be construed so as to conform to the title. The absence of malice is as necessary an ingredient in the statutory definition as the use of firearms. And the offense is purely statutory.”

Section 9113 provides:

“Any party maimed or wounded by the discharge of any firearm as aforesaid * * * may have an action on the case against the party offending, for damages, which shall be found by a jury,” etc.

The general rule, and without reference to this statute, is that a very high degree of care is required from all persons using firearms in the immediate vicinity of others, no matter how lawful or even necessary such use may be. 7 Am. & Eng. Enc. Law, 523. This same principle is stated in 2 Shear. & R. Neg. (4th Ed.) § 686. In Morgan v. Cox, 22 Mo. 373 (66 Am. Dec. 623), it was held that, where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, it is no defense that the act occurred through inadvertence, or without the wrong-doer’s intending it; it must appear that the injury done was inevitable, and utterly without fault on the part of the alleged wrong-doer. Defendant’s counsel contended that if the jury found that the defendant had used the ordinary and usual means of unloading the gun, and satisfied himself by such means that the gun was unloaded, then he could not be charged with negligence. We think the court very properly refused that instruction. As was said in Castle v. Duryee, 2 Keyes, 173:

“It is not the law that if one, supposing a musket to be unloaded, or to be charged only with powder, snaps it at another, and he is wounded, he is irresponsible in a civil action; and it is of no consequence, so far as maintaining the action is concerned, that he acted upon the most plausible or the most reasonable grounds, and fully believed that the gun was not charged with anything which could injure another.”

In Judd v. Ballard, 66 Vt. 668, it appeared that the plaintiff was injured by the discharge of a revolver in the hands of the defendant while the two were facing each other, lying in the bottom of an express wagon. The defendant had discharged one of the barrels for amusement, and was fixing the hammer, preparatory to returning the revolver to his pocket, when the discharge which injured the plaintiff occurred. It was said by the court that, “upon the facts presented, the defendant is clearly answerable for the damages.” It ^was further said: “The shooting of the plaintiff was an accident, but in no sense an unavoidable accident. It would not have occurred but for the defendant’s carelessness. The test of liability is not whether the injury was accidentally inflicted, but whether the defendant was free from blame,”—citing Vincent v. Stinehour, 7 Vt. 62 (29 Am. Dec. 145); Morris v. Platt, 32 Conn. 75; Bullock v. Babcock, 3 Wend. 391. It was further stated in that case:

“The injury was the direct result of a force put in motion by the defendant. The fact that the force was put in motion through negligence does not preclude the plaintiff from maintaining trespass. Neither an intention to injure the plaintiff, nor an intention to do the act which caused the injury, is essential. It is .sufficient if the defendant does a positive act from which the plaintiff suffers an immediate injury,”—citing 1 Smith, Lead. Cas. 560; Leame v. Bray, 3 East, 593; Welch v. Durand, 36 Conn. 182 (4 Am. Rep. 55); Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 683.

The court, continuing, further said:

“It was proper to direct a verdict. There was no room for conflicting views as to the essential feature of the defendant’s conduct. The question was not whether it was proper to place the hammer between two cartridges, nor whether the defendant was handling the hammer in a proper manner. However proper it may have been to place the hammer in that position, and whatever the care with which the defendant was moving the hammer, it was negligence to be adjusting it with the revolver so held that an accidental discharge would injure the plaintiff. There was no evidence tending to show that the position of the revolver at the time of discharge was due to any controlling outside force, and no circumstances are shown from which the presence of such a force could be inferred. Any danger that might arise from the jolting of the wagon the defendant was bound to consider. The undisputed facts admit of no inference which could relieve the defendant from liability. ”

In Tally v. Ayres, 3 Sneed, 677, it was said:

“To constitute an available defense in such cases, it must appear that the injury was unavoidable, or the result of some superior agency, without the imputation of any degree of fault to the defendant. The lawfulness of the act from which the injury resulted is no excuse for the negligence, unskillfulness, or reckless incaution of the party. Every one in the exercise of a lawful right is bound to use such reasonable vigilance and precaution as that no injury may be done to others. Nor is it material, in a civil action for the recovery of damages, whether the injury was willful or not.”

See, also, Reg. v. Salmon, 6 Q. B. Div. 79, 29 Moak, Eng. R. 503.

It is apparent from the defendant’s own testimony that he was responsible for the cartridges having been left in the gun. He had been hunting that day, and had loaded it with cartridges. The fact that he believed that he had removed them all from the gun would not relieve him from responsibility in snapping it, when he knew it was pointed directly towards the plaintiff. Had he examined the gun, he would; of necessity, have seen the cartridge there, as it was shown that it would have been in plain view when placing the works back in the gun; also, that, when pulling the lever, the cartridge being raised into the barrel, had he then looked he could have seen the cartridge in the barrel. He testified that the gun was pointing at the plaintiff all the time he was fixing it, and that it was in the same direction when he snapped it off. The statute is aimed at just such cases as the present. It was also a plain violation of the statute to snap the gun while it pointed directly towards the plaintiff, and this violation of statutory duty is negligence per se; but, aside from this, we think that under the well-settled rules, and under the authorities above cited, the defendant was guilty of negligence, and was liable in a common-law action.

The only other contention in the case which we deem it necessary to discuss is the claim made by the defendant that the plaintiff was guilty of contributory negligence. That question, however, we think, was fully and fairly submitted to the jury. The court charged them upon that proposition as follows:

“The claim of the plaintiff is that, when he came into the hotel there that evening for the purpose of having a friendly visit with the defendant, he found him engaged in repairing the lock of his gun. He says he took a seat a short distance from him, but out of the range of the gun, as the defendant was then handling it; * * * that, after the defendant had repaired the lock and put it together again, that he took this gun up, after some remarks had been made in regard to snapping it or trying it, and shifted its position so that it then was pointing towards him, and snapped the gun. His claim is that this changing of the gun as he took it up in order to cock it was done so soon that he had no opportunity to protest or get out of the way. If you find that this occurred as claimed by the plaintiff, then he was not guilty of contributory negligence. On the other hand, it is claimed by the defendant that, during all the time the plaintiff remained there, he was sitting either, in actual range of this gun, or so near that a slight movement of it would have brought him in range. His claim is, too, that after the lock had been repaired, and while the defendant was operating the hammer to test the strength of the mainspring, that the plaintiff requested him to try or snap the lock while it was pointed (he made this request, rather, at a time when the gun was pointed) right towards the plaintiff in the case; that this request was made twice; that then the defendant did snap the gun; that it proved .to be loaded; there was an explosion, and the bullet penetrated the thigh of the plaintiff. If you find that the defendant’s version of this is true, I charge you that if you find that during the 20 minutes or so that the plaintiff sat by the defendant before the accident, and while the defendant was repairing the gun, the plaintiff sat in range of the gun, or so nearly within the range of it that a slight movement of it might bring him within range, and if, while sitting there, he knew the defendant was about to snap the gun to try the lock, and had time either to protest or get out of the way, and did neither, or if you find that the plaintiff invited the defendant to try it or snap it, meaning thereby to allow the hammer to strike so as to discharge the cartridge, if one happened to be in the gun, then the plaintiff was guilty of contributory negligence, and he is not entitled to recover. As I have said to you, the burden of proving that he was not guilty of contributory negligence is upon the plaintiff.”

There is a claim made in the case that the court improperly allowed certain expert testimony to be given, bearing upon the question of defendant’s negligence in handling the gun; but inasmuch as we hold the court was correct in charging the jury, as matter of law, that the defendant was guilty of negligence,- this question is of no importance, and will not be discussed.

The judgment must be affirmed.

The other Justices concurred.


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    CARREL v. KALAMAZOO COLD-STORAGE CO
    1. Contracts—Rescission—Recoupment—Evidence.
    One who has revoked the authority of another to buy and ship apples for him, and has rescinded the contract under which'he has been operating, for the alleged reason that the fruit shipped was of an inferior quality and was not packed according to contract, may show in support of a claim of recoupment, in an action by the agent for the contract price of the. apples shipped, that apples which the agent had intended to furnish him, and which were, upon notice of rescission, sold in another market, were improperly packed and of an inferior grade.
    3. Trial—Requests to Charge.
    The refusal to give a request to charge, where there is evidence in the case to support it, is erroneous, unless it is fairly covered by the general charge.
    Error to Kalamazoo; Buck, J.
    Submitted January 13, 1897.
    Decided March 10, 1897.

      Assumpsit by Isaac W. Carrel and others, copartners, against the Kalamazoo Cold-Storage Company, Limited, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Howard & Roos, for appellant.

      Frank E. Knappen and A. J. Mills, for appellees.
   Long, C. J.

This action was brought upon the following contract:

“This agreement, made this 23d day of August, 1894, between the Carrel Brothers, of the township of Dorr, State of Michigan, parties of the first part, and the Kalamazoo Cold-Storage Company, Limited, of Kalamazoo, Michigan, party of the second part, witnesseth: That the Carrel Brothers, parties of the first part, hereby agree to buy and pack apples for the said party of the second part, and load them on cars, and ship them to said party of the second part at Kalamazoo. Said apples are all to be well-assorted, first-class apples, packed in first-class condition, in good barrels holding not less than three bushels each. That said apples shall be not less than at the least eight-tenths the following varieties: Northern Spy, R. I. Greening, Baldwins, Wagener, Jonathan, Hubbardston’s Nonesuch, Canada Red, Spitzenburg, Seek No Further, Tompkins County King, Snow; and the balance to be R. Russet, T. Sweet, Ben Davis, and Gilliflower; and of no other kind or kinds without the written consent of the party of the second part. And the parties of the first part are to be bound at all times, as to the price to be paid for such apples, by the instructions of the party of the second part to them. And the parties of the first part are to properly mark every barrel of said apples true to name, and, if any of said apples are not so marked and properly assorted and packed, are to be held responsible for the same, for the full cost of the same at their storage building. And the said party of the second part agrees to pay the said Carrel Brothers, parties of the first part, the sum of 25 cents per barrel for buying and doing the above-described work.- And the said party of the second part agrees to pay for said apples as fast as they shall arrive at their storage building in Kalamazoo in car lots, by expressing the money to parties of the first part on the day of the arrival of the car, or not less than 24 hours thereafter; the said party of the second part to pay for the barrels, the cost of the same not to exceed 25 cents per barrel.
[Signed] “ Carrel Brothers.
“ Kalamazoo Cold-Storage Co., Ltd.”

It appears that the plaintiffs were authorized to pay $1.25 for No. 1’s, and 75 cents per barrel for No. 2’s, 25 cents apiece for barrels, and were allowed a commission of 25 cents per barrel for buying and packing. The plaintiffs having commenced buying and sending apples under the contract, on October 15, 1894, they received a letter from the defendant, stating:

“We have examined your packing, and find that there are many apples way below the size, that you ought not to pack. We wrote September 30th, which we refer you to. What you have marked ‘Red Pippin’ is really the leather apples, but is not really of much account. We do not want many off varieties.”

Defendant wrote plaintiffs again, on October 28th, as follows:

“When you were here, and saw the condition of the apples you were sending us, you promised that you would see personally that the balance of them were packed according to contract. This you have failed to do, and every car is about like the former, packed very carelessly, and a great many poor apples put in, so that it will necessitate the repacking of the -entire lot. . Under this state of affairs we can only do this: We send you by express today $300, and declare the contract off. When we have repacked the apples, if there is anything coming to you, we will pay it, but until that time we can send you no more money nor accept any moi’e apples.”

The contention of defendant is that the apples were not assorted and packed according to the contract; that the -barrels contained small and inferior, rotten and wormy fruit, below the grade of No. l’s, and that in disposing of them it suffered great loss, which it should be allowed to recoup against the plaintiffs’ claim. The testimony 'on the part of the defendant tends to show that, by reason of the inferior packing and quality of the apples, they all had to be reassorted and repacked before they could be marketed; also that the first delivery under the contract was made October 9th, when a car load was shipped directly from Dorr by the plaintiffs, and consigned to J. Leverone & Co., and by them refused on account of the inferior quality; that the defendant was obliged to store this car load at Cincinnati, and to reassort and repack the same there, before sale could, be made of what merchantable fruit the car contained; that, out of 168 barrels contained in the car, defendant, after reassorting and repacking, got 22 barrels of No. l’s, and 77 barrels of No. 2’s, losing completely 69 barrels; and that, even then, those that were marketable at all had to be. sold at greatly reduced prices, because of not being up to grade. The whole quantity of apples claimed to have been shipped by plaintiffs to defendant was 2,719'barrels of No. l’s, at $1.75 per barrel, and 51 barrels of No. 2’s, at $1.25 per barrel, and some crab apples, amounting to $6.75,—the whole aggregating $4,828.75; and plaintiffs admitted having been paid thereon $3,035, claiming a balance due of $1,793.75. Defendant’s claim is that in reassorting and repacking it sustained an absolute loss of 495 barrels, and that it suffered a loss in difference between cash paid and cash received for the fruit of $334. Plaintiffs contended that the defendant inspected and accepted the car of apples shipped to Cincinnati; but the evidence of the plaintiffs shows that but one barrel was examined out of the whole lot that was put into the car.

On the trial, one of the plaintiffs, Mr. Isaac Carrel, was called as a witness, and testified substantially that after the contract was signed, and in pursuance of it, they started to buy apples for the defendant, and bought for no other parties. Thomas Carrel was then called as a witness, and testified substantially that he saw many of the apples packed, and that no small or decayed apples were put in; that they had from 12 to 16 men packing, divided into four gangs, and that he drove around the township, and looked after the packing. The witness then testified, on cross-examination:

“We had apples of the same kind as those shipped to the cold-storage company on hand at the time we quit shipping to the cold-storage company. We shipped these other apples, that we had originally intended for the cold-storage company, to other parties. I cannot say whether my brother consigned them to himself or not. I think he did, to Chicago.”

Defendant’s counsel then sought to show, as a part of the cross examination of this witness, the character and quality of the apples shipped to Chicago, claiming that they were a part of the apples purchased for defendant, were of an inferior grade, and had to be sold by the plaintiffs themselves in the Chicago market as seconds. The court refused to permit this testimony to be given, stating that there was nothing in the direct examination of the witness bearing any relation to any other apples than those shipped to defendant, and that it was not permissible as cross-examination. The court then stated, “ When you get to your side of the case, then that would come up fairly for consideration.” The witness Isaac Carrel had testified, previous to that, that after we quit shipping to defendant, we shipped four car loads to Chicago, to R. S. Carrel, and Burnett Brothers handled them for us.” When the defendant, in its direct case, offered proof of the bad condition of these apples, the trial court excluded the same, on the ground that it raised a collateral issue. Exception was taken to the ruling of the court in _ reference to this testimony offered, not only upon the cross-examination of Mr. Carrel, but in defendant’s direct case. The plaintiffs had judgment for $1,921.50.

The only questions raised relate to the refusal of the court to admit this testimony, and to the refusal of defendant’s third request to charge. We think the court was in error in not admitting this testimony. It appears that the four car loads of apples shipped to Chicago were a part of the apples which had been purchased by the plaintiffs for the defendant; that they were packed by the same packers, were all purchased in the same neighborhood, and the same price was paid as for those which had been already shipped. The testimony was offered for the purpose of showing the bad quality of the apples which were being purchased by the plaintiffs for the defendant under the contract, and that those apples were not up to the quality and grade specified in the contract.

We think, also, that the court should have given the defendant’s third request to charge. It stated fully the defendant’s claim that the apples were not up to the contract, and had reference to the apples which had been shipped to Cincinnati, and stated that plaintiffs came to Kalamazoo at defendant’s request, were shown a barrel of the fruit taken from the car, and, upon an examination of it, admitted that the fruit was not properly assorted and packed, and were then told by defendant that it could not handle fruit in that condition, and that plaintiffs then requested defendant to do the best it could with such fruit, and that they would make good all losses and expenses which the defendant should sustain in regard to such apples, and agreed to pack the balance of the fruit in accordance with the terms of the contract. There was some evidence given in the case by the defendant which tended to support this request to charge, and we think the general charge of the court did not sufficiently cover the question raised.

For these reasons the judgment must be reversed, and a new trial ordered.

The other Justices concurred.