text:
    ROSE v. SUPREME COURT, ORDER OF PATRICIANS.
    Mutual Benefit Associations — Right of Action — Evidence-Physicians.

       1. Where a beneficiary in a fraternal insurance organization is denied the remedy by appeal provided for by the association, he may maintain a suit at law.

      2. An opinion of a physician based upon the appearance of the patient at the time of treatment is not admissible.
    Error to Berrien; Coolidge, J.
    Submitted April 5, 1901.
    Decided May 7, 1901.

      Assumpsit by Thomas Rose against the Supreme Court of the Order of Patricians on a benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant is a fraternal beneficiary order, incorporated under the laws of Michigan. Plaintiff’s wife became a member of the order August 18, 1898, and passed the usual medical examination. She died' November Í8th following. Plaintiff was her beneficiary. Her certificate was for $1,000. In her application she stated that she was 45 years of age; was in good health; had never consulted a physician; never had a serious illness; no disease of heart, stomach, or bowels; no irregularity of the heart’s action; no loss of consciousness; no palpitation of the heart. This application further stated that the answers and statements are correct, and shall form the basis for the issuance of a benefit certificate, and that the certificate issued thereon and the answers and statements shall be considered together, and construed as one complete contract.

      Proofs of death were submitted. The claim was thereupon referred to the judiciary board for investigation. That board consisted of Hicks, Hammond, and Kennedy. Hicks was the chief justice, Hammond the first supreme counselor, and Kennedy the second supreme counselor. There are seven directors. The by-laws provide that three shall constitute a quorum for business. Mr. Hammond made an investigation, evidently in behalf of the judiciary board, procured affidavits in three townships, and on March 17th he reported to the board of directors, all of whom were present but one. He reported that the deceased misrepresented her age; that she had been affected with stomach, bowel, and heart trouble for several years prior to her death; that she had employed two physicians to treat her professionally before her application was made. He further reported that she had made other false and untrue statements in her application and examination, and recommended the disallowance of the claim. Thereupon the board unanimously disallowed the claim, and fixed a day for hearing further evidence. Due notice of such meeting was served upon plaintiff and his attorney, in accordance with the rules of the order. At that meeting were present, as directors, Hicks, the chief justice, Mr. Hammond, and Mr. Platt. Plaintiff and his attorney appeared and presented- the certificate and proofs of loss, and demanded the right to cross-examine the parties whose affidavits had been taken. This was refused. He was then given an opportunity to produce witnesses, but declined. No further proof was produced upon the part of the association or the claimant. The claim was again disallowed, and an appeal was taken to the supreme court of the order.
    At the meeting of the supreme court, Hicks appointed a committee of three on appeals, petitions, and grievances. Plaintiff and his attorney appeared before the committee. Affidavits were presented, and the committee reported, recommending that the claim be disallowed, which report was unanimously approved by the supreme court. Plain•tiff again protested against the sufficiency of these ex %>arte affidavits, and asked that the witnesses be produced and he be allowed to cross-examine them. This was refused. Plaintiff also refused to produce any witnesses, although an opportunity was afforded him. Thereupon plaintiff instituted this suit at law to recover the amount due upon the certificate.
    The by-laws provide that the board of directors shall pass upon all claims; that no benefit shall be paid if the applicant has given untrue or misleading answers regarding his family history, age, habits, or physical condition. When a death occurs, the clerk of the division court must report the same to the supreme court. The clerk of the supreme court is required then to send to the division court blank forms for proofs of death. The claim is then to be examined by the board of directors, and if, in their judgment, it is not valid, they are required to notify the beneficiary, and fix a time for hearing before the board. The decision of the board is conclusive, unless an appeal is taken to the supreme court; and the by-laws provide that “no suit at law or in equity shall be commenced by any beneficiary or disabled member against the supreme court.”
    Section 45 relates to the duties of chief justice, and requires him—
    “To appoint, at the commencement of each regular session of the supreme court, the following committees, to be composed of three members each, to serve during the session, to wit: On credentials; on appeals, petitions, and grievances; on constitution and laws; and on mileage and per diem.”
    Section 111 reads:
    “The committee on appeals, petitions, and grievances shall examine and report on all appeals, petitions, and grievances taken to the supreme court, with such recommendations in each case as it may deem best.”
    The case was submitted to the jury, and a verdict rendered for plaintiff.

      Hammond & Hammond and W. C. Hicks, for appellant.

      Lawrence C. Fyfe, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). In submitting the case to the jury, the circuit judge held, without stating any reasons, that the case was one for the determination of the jury, and left all the questions of fact to them. The articles and by-laws of this association in regard to death and other claims are the same in effect as those of the Knights of Maccabees and other fraternal organizations, which have been frequently before this and other courts. They are valid, and have been so often discussed that further discussion is unnecessary. The cases are referred to in Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254).

The proceedings provided by the constitution and by-laws of the defendant are very arbitrary and unusual. It is incumbent upon the officers charged with such examination to pursue the methods provided with strictness, and to give to the claimant the hearing provided for. Three, a minority of the board of directors, are authorized to make an examination and to pass upon the claim in the first instance. The examination was conducted with secrecy by the attorney for the defendant, who was also one of its directors. Without notice to the plaintiff, the board of directors prejudged his claim upon these ex parte affidavits and report of. the attorney, and disallowed it. Notice was then given to him to appear before the board, at which meeting only three of the directors were present, including the attorney for the board, who had made the ex parte examination. Common justice would certainly require that the witnesses against the claim should be produced before the boárd, and be subjected to cross-examination. Whether, however, such a course was authorized by the constitution of the defendant, we need not determine. Plaintiff properly took his appeal to the supreme court of the order, as he was required to do. This appeal is not to a committee of the supreme court, but to the supreme court itself. Section 111 cannot be construed as authorizing such committee to pass upon the claim. The claimant is entitled to produce his testimony before the entire court, and not before the committee thereof, and it is the duty of the defendant to there produce its testimony against the validity of the claim. The burden is upon it. No evidence whatever was submitted to the supreme court, and that body acted upon the recommendation of the committee that the claim be disallowed. The attorney for the defendant did not produce any testimony, or apparently seek any in favor of the plaintiff. Whether he, the board of directors, or the committee of the supreme court based the rejection of this claim upon these ex parte affidavits alone, or upon the further report of the attorney that she had made other false and untrue statements, of which he produced no evidence, does not appear. The claim is to be heard de novo upon appeal to the supreme court, and both parties are entitled to there produce witnesses. Plaintiff was deprived of the hearing to which he was entitled, and therefore he may maintain a suit at law to enforce his claim.

Counsel for the defendant cite Fillmore v. Knights of Maccabees, 109 Mich. 13 (66 N. W. 675), in support of their contention. We did not pass there upon the validity of the action of the committee. The complainant in that case had not pursued the remedy provided for by the defendant, as has the plaintiff in this case.

A physician who had been employed by the deceased was called as a witness by the defendant, had testified to his attendance upon her, and he was then asked:

“ Excluding any knowledge or information you obtained while treating the insured, and judging from her appearance at the time of the treatment, what is your opinion whether she was a woman in good health and sound body, and a woman who usually enjoyed good health ?

The refusal of the court to permit an answer to fhi¡a question is alleged as error. It was excluded under section 10181, 3 Comp. Laws 1897. Counsel rely upon Edington v. Insurance Co., 77 N. Y. 564, where the question was asked :

“Excluding any knowledge or information that you obtained while treating deceased, and judging from his appearance from that time until 1867, what is your opinion as to whether he was a man in good health?”

The difference between the two cases is apparent. In the New York case, any information or knowledge of his appearance while the physician treated him was not asked, for. The physician had seen him many times after his. employment had ceased, and his appearance upon which his opinion was based was expressly limited to that period. In the present case the witness was asked to give an opinion based upon her appearance at the time of the treatment. This was excluded by the statute.

Some questions were raised upon the charge of the court, which are not of sufficient importance to discuss. We think the charge was a correct, embodiment of the law.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J,

license: Public Domain

text:
    ADAMS v. GREIG.
    Past-Due Mortgage — Interest—Nonresidence op Mortgagee —Tender.

      1. The mortgagor of a past-due mortgage is not relieved from paying interest before he is ready and willing to pay both principal and interest, and is prevented from so doing by circumstances which would be the equivalent of a tender.

      2. The nonresidence of the mortgagee is not alone sufficient to relieve the mortgagor from the payment of interest.
    3. After demand of payment and refusal by the mortgagor to pay, he is not relieved from the payment of interest, although he be entitled to relief from payment before such demand.
    4 The facts and circumstances in this case are not the equivalent of a tender, and do not relieve the mortgagor from payment of interest.
    Appeal from Kent; Wolcott, J.
    Submitted April 17, 1901.
    Decided May 7, 1901.
    Bill by Laura E. Adams against Lydia Greig to foreclose a mortgage. From a decree for complainant for less than the amount claimed, she appeals.
    'Reversed.
    On September 27, 1884, the husband of the defendant purchased of complainant a piece of land situated in the city of Grand Rapids, and gave his notes for a part of the purchase price. He and his wife executed a mortgage upon the land conveyed and other lands to secure the purchase price. The last note, for $200, was due September 27, 1885. The notes were payable at the Grand Rapids National Bank. On October 14, 1887, Mr. Greig paid $150.23 upon the notes and mortgage, which payment paid the smaller note and interest upon the other, leaving the principal of said note due, viz., $200. Complainant’s business was mainly conducted by her son Edward. In December, 1888, Edward removed to San Francisco, Cal., and complainant followed him in 1889, and they have both since resided there. Defendant’s husband is dead. At the time the $150.23 was paid, a part of the land was released from the mortgage. The balance due at that time was not paid, as Mrs. Greig testified, because their money was loaned to a cousin. No offer or tender was made to Mrs. Adams or her son before they left Grand Rapids, — a period of about a year and three months.
    In- April, 1899, complainant sent the mortgage and note to her attorneys, Taggart & Taggart, for collection. Upon demand of payment, defendant denied- the validity of the mortgage, and declined to pay; whereupon this bill of foreclosure was filed. Defendant in her answer denied the execution of the mortgage, and filed a cross-bill, praying that the mortgage be decreed to be null and void, but that, if it should be found that any portion of her lands should be charged with the lien of the mortgage, it be decreed not to extend over the property known as the “Bakery Property,” and that complainant be decreed to release the same from the cloud of said mortgage resting thereon. In another portion of her answer she alleges that she had caused letters to be written to complainant in California, asking instructions where to pay the said unpaid note, and obtained no reply thereto. The case was heard upon pleadings and proofs taken in open court, and decree entered for $200, the principal of the note, with costs against the complainant; the court holding that, under the circumstances, defendant was relieved from the payment of interest on account of her willingness to pay the note, and the absence of complainant from the State, and the efforts made by her to pay it. Complainant appealed.

      Taggart & Taggart, for complainant.

      Andrew W. Johnston (William E. Grove, of counsel), for defendant.

       Head-notes by Grant, J.

   Grant, J,

(after stating the facts). It is only necessary to determine one of the questions raised, as that is fatal to the defense. Under the terms of the note, defendant and her husband could have relieved themselves from further liability for interest by having the amount then due at the Grand Rapids National Bank on the day the note became due, that being the place designated for payment. Complainant was then under obligation to present the note there and receive payment of defendant. She was, however, under no obligation to keep the note and mortgage there ready for payment at any time after wards when the defendant might wish to pay. When the last payment ($150.23) was made, the note was about two years past due. She then had an opportunity to pay it all. That opportunity continued for a year and three months longer, while complainant was still living in Grand Rapids. She had an opportunity to pay in 1899, but refused. Yet this decree relieves her from the payment of interest, not only when defendant had ample opportunity to pay, but even after demand and refusal, and also when, by her own testimony, she had loaned the money and was receiving interest upon it. Clearly, she was not relieved from paying interest before she was ready and willing to pay both principal and interest, and was prevented from so doing by circumstances which would be the equivalent of a tender; neither could she be relieved from paying interest after demand and refusal. Ferguson v. Popp, 42 Mich. 115 (3 N. W. 287).

Some time after 1888, but the precise time does not appear, defendant requested a Mr. Beckwith, who was the agent for the complainant’s son in collecting rents in Grand Rapids, to write to Mr. Adams for her. What he wrote does not appear. Some time in 1890 one Mr. Johnston, at the request of defendant’s husband, wrote complainant’s son, stating that he was desirous to pay the amount of the mortgage, and wanted the note and mortgage sent on, with the discharge. In 1894, at the request of defendant, Bundy & Travis, attorneys at law, wrote to Mr. Adams, stating that Mr. Greig had deeded to his wife, as the result of a decree for alimony, a certain portion of the property, and that Mr. Greig had assumed the mortgage, and requested her either to release the mortgage upon the land deeded to her, or put it in process of foreclosure, so that the part of the property which remained in Greig could be sold first, and the mortgage paid. No reply was received to these letters, and Mr. Adams testified that he did not receive them. All these parties knew the address of Mr. Adams; and the letters were not returned to them.

These facts were not the equivalent of a tender, and did not relieve Mr. Greig or the defendant from paying interest. Where tender is claimed, proof that the amount due was tendered, and clear refusal to receive the amount,, must be made. Engle v. Hall, 45 Mich. 57 (7 N. W. 239). Defendant’s counsel cite no authorities to sustain, their contention, unless it be Pillow v. Brown, 26 Ark. 240, where it was held that a state of war suspended interest between the subjects of the belligerent powers.

Defendant cites Gill v. Bradley, 21 Minn. 15, as holding that the debtor is not bound to go to another State to make tender. In that case plaintiff was the assignee of a land contract, and brought suit to enforce specific performance after having tendered the full amount due, including interest. The defense was that plaintiff was guilty of laches in waiting 11 years before proceeding to enforce-the contract. The defendant resided in North Carolina. The case does not hold that a party may relieve himself from the payment of interest from the fact that the payee is a nonresident. The other cases cited are similar in character.

Where the maker of a promissory note seeks to relieve himself from the payment of interest by circumstances, the equivalent of a tender, he must show that he has made reasonable efforts to make the tender, and to notify the-payee of his willingness and offer to pay. The residence of complainant and her agent was known. Defendant could easily have ascertained it, and could readily have caused the tender to be made.

Decree reversed, and decree entered in this court for principal and interest, with the costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    DUBOIS v. RILEY TOWNSHIP BOARD.
    Appeal prom Highway Commissioner — Township Board — Authority op Deputy Clerk.

       Where a town clerk is incapacitated to sit as a member of the township board upon an appeal to it from the highway commissioner in laying out a public highway, the deputy clerk is not authorized to sit as a member of the board.
    Error to'Clinton; Stone, J.
    Submitted April 17, 1901.
    Decided May 7, 1901.

      Certiorari by Isaac E. Dubois against the township hoard and the highway commissioner of the township of Riley to review the proceedings of such board on an appeal from an order of the commissioner establishing a highway. From an order quashing the proceedings and requiring the board to reconvene, defendants bring error.
    Modified.

      Patterson & Moinet, for appellants.

      J. J. Zimmer, for appellee.

       Head-note by Grant, J.

   Grant, J.

Upon appeal to the township board from the decision of a highway commissioner in establishing a public highway, is the deputy township clerk competent to sit as a member of the hoard in the proceedings upon appeal, under 2 Comp. Laws 1897, § 4042 ? The clerk in this case had become incapacitated from sitting as a member of the board by reason of his having sat in the same matter upon a former appeal. Locke v. Highway Com’r, 107 Mich. 631 (65 N. W. 558).

The township board consists of two justices of the peace, the supervisor, and the township clerk. 1 Comp. Laws 1897, § 2343. In case of the incompetency of either to act, section 2344 provides for filling the vacancy. The township clerk is a constitutional officer. The township board, sitting as a board of review, acts in a quasi judicial capacity. The deputy clerk is a creation of the statute, and not of the Constitution. The deputy may be of any race, sex, color, or age. Wilson v. Genesee Circuit Judge, 87 Mich. 493 (49 N. W. 869, 24 Am. St. Rep. 173). The deputy acts for his principal, and not in any independent capacity. He cannot perform duties which his principal, who is responsible for his acts, is incapacitated to perform. When the statute imposes a duty of this character upon certain officers, it means those officers, and not the deputies which thej- may by statute be authorized to appoint. The court therefore was correct in holding the action of the board void.

The court entered an order for the board to reconvene and consider the appeal. We think this was beyond the authority of the court upon certiorari. The sole question presented by the writ is, Was the action valid? The only order that could be entered was one of affirmation or reversal, quashing the proceedings. Whitbeck v. Common Council of Hudson, 50 Mich. 86 (14 N. W. 708); Ritter v. Daniels, 47 Mich. 617 (11 N. W. 409). The judgment will therefore be modified in this respect,- and judgment entered in this court holding the action of the township board void. No costs will be allowed.

The other Justices concurred.


author: Moore, J.

text:
    RUBERT v. RUBERT.
    Estates of Decedents — Wills—Ademption of Debt.
    A father executed an agreement providing that, in consideration of services theretofore rendered by his son, the latter should have certain real estate at the father’s death, or, in lieu thereof, the sum of $5,000. Subsequently the father made a will giving $5,000 to the son and specified amounts to the other children, and providing for a division of the real estate among all of the children. He then assigned certain personal property to the children upon substantially the same basis as in the will. The son knew of the will and assignment, and, after the father’s death, accepted and receipted for his share of the personalty thereunder. He afterwards presented a claim against the father’s estate for services, based upon the contract first mentioned, and a bill was filed for a construction of the several instruments, and to enjoin the prosecution of the claim. Held, on a consideration of the evidence, that the acceptance by the son of the provision so made for him operated as a satisfaction of his claim
    Appeal from Livingston; Dodds, J., presiding.
    Submitted April 18, 19.01.
    Decided May 7, 1901.
    Bill by Thorne Rubert against Seth B. Rubert, Mary Porter, and Pauline Rubert to stay a suit at law, to construe a will and an assignment, and to quiet title. From a decree for complainant, defendant Seth B. Rubert appeals.
    Affirmed.

      Russell C. Ostrander, for complainant.

      Watson & Chapman, for appellant.
   Moore, J.

Benjamin H. Rubert died in August, 1898. The defendant Pauline Rubert is his widow, and the stepmother of his children. The other parties to the suit are his children. In December, 1892, it is claimed by Seth Rubert that his father made and executed to him a paper, the material portions of which read as follows:

“This indenture, made this date between Benjamin H. Rubert, of Howell, Livingston county, Michigan, party of the first part, and my son Seth B. Rubert, of the same place, party of the second part, for the valuable consideration of services rendered to me from the time my son Seth B. Rubert was 21 years old up to date, which I consider worth to me five thousand dollars ($5,000.00), and I have this day sold the following pieces of land situated in the townships of Howell, Genoa, and Osceola,-¡Livingston county, Mich., to wit: * * * My son is not to have the possession of the same pieces or parcels of land mentioned on the other side of this sheet of paper until after my death, and my son Seth B. Rubert is to keep this strictly confidential until after my death, or this contract will be null and void. I also reserve the right to sell or rent any or all of said land to whom I see fit, but, in case I see fit to sell or rent any of the described land, or all of it, I am to pay to my son Seth.B. Rubert, at my death, $70.00 per acre for all the land sold, rented, or disposed of, for the work he did for me from the time he was 21 years old to date; and, in case this contract is not fulfilled by me or by my heirs or by executors, then my son Seth B. Rubert is to get $5,000.00 out of my personal property for his labor from the time he was 21 years old to date, which he has not had pay for. The above-described land is all I own in Howell, Osceola, and Genoa, Livingston county, Michigan.”

In August, 1898, the elder Rubert made a will, giving to his wife $1,000, some personal property, and the use for her natural life of an 80-acre farm, which is the same farm described in the paper of December, 1892. He gave to his son Seth $5,000 and two village lots. To his son Thorne he gave a promissory note he held against him and $2,000. To his daughter, Mary Porter, he gave $3,000. He further provided that, upon the death of his wife, the farm should be equally divided between his children, and that the residue of his property'should be divided between them equally. The specific legacies made by the will practically disposed of all the estate of Mr. Rubert except the farm; and if the claim of Seth Rubert, hereafter mentioned more in detail, was allowed and paid, there would not be enough of the estate to pay these legacies. To avoid any question about the widow taking under the will instead of under the statute, on the next day after the will was made Mr. Hubert assigned to his three children mortgages and other personal property, and provided for its conversion into money, and for its appropriation among the three children upon the same basis as in the will, except that he provided, if the personal property realized more than $10,000, it should, be divided between the children upon the basis of five, three, and two.

When the will was made and the assignment was made, Seth Hubert knew all about them. The assignment, and the great bulk of the personal property mentioned in the assignment, were delivered to and kept by him until his father’s death. August 29, 1898, — the same month the father died, — the children, the widow, and the special administrator got together, and divided nearly all of the personal property; the widow receipting to the special administrator for her $1,000. Mary Porter receipted for $3,148.09, Thorne for $2,148.09, and Seth for $5,148.09. August 1, 1899, Seth Hubert presented a claim against the estate of his father for- services performed by himself and wife for his father from December, 1878, to August, 1898, $10,000. This claim was rejected. He appealed to the circuit court. While that appeal was pending, this bill was filed to stay the proceeding at law, to obtain a construction of the will, the assignment made to the children, the paper of December, 1892 (the genuineness of which is questioned by some of the parties), and to secure its cancellation, and to quiet the title to the real estate, and to determine that Seth had no title to the real estate.

The interests of the complainant, the widow, and Mrs. Porter are identical. The case was heard in open court, and a decree was rendered as prayed for in the bill. The case is brought here by appeal. The questions involved are almost wholly questions of fact, which it'would not profit any one to discuss at length. We think it is established by the great weight of testimony that, when the-father made the will and the assignment of the personal property, he understood, and Seth understood, he was. making provision for the payment of any claim Seth might have against him, and that, when Seth accepted the provisions so made for him, the claim was canceled.

The decree is affirmed, with costs.

Hooker, Long, and Grant, JJ., concurred. Montgomery, C. J., did not sit.


text:
    ST. JOHNS TABLE CO. v. BROWN.
    1. Bills and Notes — Action by Indorsee — Pleading and-Proof.
    An indorsee suing on a note must plead and prove his title-thereto.
    2. Same — Receivers.
    Where plaintiff in an action on a note claims through the indorsement of a receiver, the appointment and authority of' the receiver must be shown.
    Error to Clinton; Stone, J.
    Submitted April 18, 1901.
    Decided May 7, 1901.

      Assumpsit by the St. Johns Table Company against Edward Brown on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Willard O. Lyon (Edwin H. Lyon, of counsel), for appellant.

      Lewis Severance, for appellee.
   Moore, J.

The St. Johns Table Company sued defendant, Brown, by declaration on the common counts. Notice is appended to the declaration that a certain promissory note will be given in evidence under the money counts, a copy of which is as follows:

“$338.66. St. Johns, Mich., Feb. 21st, 1894.
“Six months after date, for value received, I promise to pay to the order of St. Johns Manufacturing Company three hundred and thirty-eight and 66-100 dollars at the St. Johns National Bank, with eight per cent, interest after date.
[Signed] “Edward Brown.”

No indorsement of the note by the payee is set out or claimed in the declaration, or in the notice of what would be given in evidence. Defendant pleaded the general issue.

Upon the trial plaintiff offered the note in evidence^ together with what purported to be an indorsement, as follows: “Without recourse. St. Johns Manufacturing Company, by D. S. French, Receiver.” No testimony was either given or offered to prove or tending to prove the indorsement. Objection was made to receiving the note because it was immaterial and incompetent, and not warranted by any allegation in the declaration, and also that, while the note purports to be indorsed by a receiver, defendant had no notice of any receivership, and no notice of any kind as to the authority of the receiver to indorse paper. The court admitted the note and indorsement in evidence without amendment of the declaration, and without any proof as to the authenticity of the indorsement, or of the fact of a receiver, or his authority, if there was a receiver. Plaintiff then asked its witness Petrie if the note in question was the property of plaintiff, and the question was answered in the affirmative, against the objection of incompetency. Plaintiff thereupon rested its case.

Defendant requested the court to direct a verdict in his favor, because:

1. No title to the note was set out in the declaration, or shown to be in plaintiff.

2. No proof was given of a receiver, or his authority, if there was one, to indorse the note in question.

The court overruled the motion. Defendant then claimed that, if the court held that plaintiff had made a prima facie case, it would necessitate an amendment by defendant, and that he was not prepared to proceed with the trial. The court offered defendant leave to amend his plea upon payment of terms and continuance of the case for the term. These conditions were not accepted, and the court directed a verdict for plaintiff of $522.96. Defendant brings error to this court.

The case is governed by the following cases: Spicer v. Smith, 23 Mich. 96; Redmond v. Stansbury, 24 Mich. 445; Hinkley v. Weatherwax, 35 Mich. 510; Hamilton v. Powers, 80 Mich. 313 (45 N. W. 580); Newton v. Principaal, 82 Mich. 271 (46 N. W. 234).

Judgment is reversed, and new trial ordered.

Hooker, Long, and Grant, JJ., concurred. Montgomery, O. J., did not sit.


author: Moore, J. Grant, J.

text:
    GOULD v. GREGORY.
    Trial — Cross • Ex amination — Pre judicial Error.
    Though the cross-examination of a witness will ordinarily be left to the discretion of the trial judge, where improper cross-examination is allowed to such an extent as to be clearly prejudicial it is ground for reversal, even in a civil case.
    Error to Van Burén; Carr, J.
    Submitted April 18, 1901.
    Decided May 7, 1901.
    Case by Rhett Gould against Albert E. Gregory for the malicious prosecution of plaintiff on a charge of statutory burglary. From a judgment for plaintiff, defendant brings error.
    Reversed.

      On the cross-examination of defendant, the court permitted the following questions:
    “You were sued last summer for a millinery bill, weren’t you ?
    “You have had several hired men sue you for wages, haven’t you ?
    “Do you remember anything about a little trouble that you had regarding five sheep that you took up from the highway and put in among your sheep, and settled for it afterwards ?
    “ Do you remember having trouble with stock where you had to settle to avoid a criminal prosecution against you ? ”

      Goy W. Hendryx and M. L. Hoioell, for appellant.

      Hammond & Hammond and Thomas J. Cavanaugh, for appellee.
   Moore, J.

The plaintiff sued defendant for malicious prosecution, and obtained a judgment. The case is brought here by a writ of error. There are a good many assignments of error, nearly all of which are not well taken. All of the other errors, if any were committed,' except one, are not likely to occur again upon a new trial, and are not of sufficient general importance to require any further reference to them.

Complaint is very justly made of the latitude given the attorneys in the cross-examination of the defendant. Ordinarily, the cross-examination of a witness will be left to the discretion of the trial judge; but in this case the improper cross-examination was allowed to such an extent as to be clearly prejudicial. The case comes within the recent case of People v. Gotshall, 123 Mich. 474 (82 N. W. 274). It is said the Gotshall Case does not apply, "because it is a criminal case, while the present case is a civil one. It is true, a civil case may be decided by a preponderance of evidence in favor of one having the affirmative of the issue, while in a criminal case the accused must be shown to be guilty beyond a reasonable doubt before he can be convicted. But we do not understand this requirement changes a rule of evidence, making what would be inadmissible in the trial of a criminal case admissible in the trial of a civil case.

Judgment is reversed, and a new trial ordered.

Hooker and Long, JJ., concurred with Moore, J. Montgomery, C. J., did not sit.

Grant, J.

I concur in the reversal of this case upon the ground stated in my Brother Moore’s opinion. I am also of the opinion, after a careful reading of the record, that the court should have directed a verdict for the defendant. The defendant stated all the material facts of the case to a reputable attorney, Mr. Hendryx, who advised him that, under that statement, he was justified in instituting the prosecution. He then went to a justice of the peace with his son, who saw plaintiff at the barn about, daylight, and the two there stated all the material facts. The justice called up the prosecuting attorney by telephone, and in the presence of the defendant told the prosecuting-attorney the facts as defendant and his son had stated them. The prosecuting attorney thereupon advised the prosecution, and the complaint was made. Upon the motion of the prosecuting attorney, the plaintiff was discharged. The prosecuting attorney was a witness, and stated his reason for discontinuing the prosecution as. follows:

“I investigated the case at length, and concluded that, inasmuch as the horse had been found, and .the basket found, so that there was no loss to Gregory financially, and that the case resolved itself to a technical case of statutory burglary, and I thought it had better be dismissed, and I did so; I at that time told Gould that, in my judgment, there was a prima facie case against him, but that I felt that the prosecution probably would be as well dismissed; that he should be careful, and that this should be a lesson to him. I saw nothing, and heard nothing from Gregory, indicating any maliciousness or over-anxiety to prosecute.”

I think this is a case where the advice of counsel forms a complete defense to an action for a malicious prosecution.


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    DYE v. THOMPSON.
    Vendor and Purchaser — Ejectment—Parol Evidence to Vary Deed — Admissibility — Warranty Deed — Aeter- Acquired Title.
    Where three of four heirs owning land in common conveyed the entire tract in severalty by warranty deed, and after-wards acquired the interest of the fourth heir, and brought ejectment against the purchaser to recover the interest of such heir, held :

    (1) That they could not show by parol that the purchaser understood that he was not purchasing the interest of such fourth heir unless the latter was then dead, and that the consideration was adjusted on that basis.
    (2) That such subsequently acquired title inured to the benefit of the purchaser.
    Error to Ionia; Davis, J.
    Submitted April 18, 1901.
    Decided May 7, 1901.
    Ejectment by George H. Dye, Jr., and Harvey 0. Dye, against Edward H. Thompson and Mary Thompson. From a judgment for defendants on verdict directed by the court, plaintiffs-bring error.
    Affirmed.

      George E. & M. A. Nichols, for appellants.

      A. A. Ellis and E. M. Davis, for appellees.
   Moore, J.

This is an action of ejectment. On the 9th day of September, A. D. 1895, Nelson F. Dye and wife, Harvey 0. Dye and wife, and George H. Dye, Jr., single, made and delivered to the defendant Edward H. Thompson a warranty deed of the premises iii dispute, wherein they covenanted and agreed “that at the time of •the ensealing and delivery of these presents they are well seised of the above-granted premises in fee simple.” The defendants entered into the occupancy of the premises. On the 27th day of June, A. D. 1898, one Lionel P. Van Doren made a quitclaim deed to the plaintiffs, George H. Dye, Jr., and Harvey 0. Dye, of the premises in dispute. Based on that title, the plaintiffs seek to recover an undivided one-fourth of the premises.

The plaintiffs, on the trial, showed:

First. That the title to the premises originally was in Emily P. Dye.

Second. A decree made' by the probate court on the 30th of March, A. D. 1896, determining the heirs of Emily P. Dye, and showing that Lionel P. Van Doren was one of the four heirs of Emily P. Dye.

Third. A quitclaim deed made by Lionel P. Van Doren to the plaintiffs June 27, 1898, conveying an undivided one-fourth of the premises.

Fourth. Oral evidence tending to show the value of the-premises.

To support the case on the part of the defendants, they offered the warranty deed made by the plaintiffs and Nelson E. Dye to the defendant Edward H. Thompson. Plaintiffs then sought to show by parol that, when the warranty deed was made, it was not known whether Mr. Van Doren was dead or alive, and that Mr. Thompson did not pay for his interest in the land, and did not expect he was buying it, if he was in fact alive. The court excluded this testimony, and a verdict was rendered in favor of defendants.

The question involved is whether in an ejectment case \ you can vary the terms of a deed by parol. In Jacobs v. Miller, 50 Mich. 119 (15 N. W. 42), the rule is stated as/ follows:

“By the principles of the common law, the legal effect due to the plain words of a deed cannot be contradicted by parties or privies in any collateral matter by parol evidence. The terms must stand and receive their just legal significance. 2 Whart. Ev. §§ 1050, 1054, and cases; Jackson v. Foster, 12 Johns. 488; Jackson v. Roberts’ Ex’r, 11 Wend. 422. The name of the grantee is part of the deed (2 Rolle, Abr. 43); and where a deed is made to several individuals, without designating in what proportions they shall hold, they will take in equal proportions, precisely as though it had been detailed at length in the deed (Campau v. Campau, 44 Mich. 31 [5 N. W. 1062]; Treadwell v. Bulkley, 4 Day, 395 [4 Am. Dec. 225]), and no parol proof can be admitted to give the deed a different effect than such as the words in it legitimately import (Treadwell v. Bulkley, supra; Morse v. Shattuck, 4 N. H. 229 [17 Am. Dec. 419]; Gully v. Grubbs, 1 J. J. Marsh. 387-390; 1 Cow. & H. Notes, 217, 1428 et seq., 1442, 1444). The case before us is governed by the same principle.”

See, also, Adair v. Adair, 5 Mich. 204 (71 Am. Dec. 779); Jones v. Phelps, Id. 218; Vanderkarr v. Thompson, 19 Mich. 82; First Nat. Bank of Sturgis v. Bennett, 33 Mich. 520; Price v. Marthen, 122 Mich. 655 (81 N. W. 551).

An ingenious argument is made to the effect that, as the records show there were four heirs at law, only'three of whom conveyed to Mr. Thompson, he ought to have known he was getting title to only three-fourths of the property conveyed, and, as Mr. Van Doren could have maintained ejectment, his grantees can do so. We tbink the counsel have overlooked the effect of the warranty deed. Had the deed been a quitclaim instead of a warranty deed, it would not have cut off a subsequently acquired title; but the rule is well settled that where a grantor, who has made a warranty deed, subsequently acquires title, it will inure to the benefit of his grantee. Morris v. Jansen, 99 Mich. 436 (58 N. W. 365); Duffy v. White, 115 Mich. 264 (73 N. W. 363), and the many cases there cited.

Judgment is affirmed.

The other Justices concurred.


author: Long, J.

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    CURTISS v. PERRY.
    Statute oe Limitations — Joint Contractors — Payments — Husband and Wiee — Agency.
    Under 3 Comp. Laws 1897, § 9745, providing that no joint contractor shall lose the benefit of the statute of limitations by-reason of any payment made by another joint contractor, a payment made by a husband, without the knowledge or consent of his wife, on a mortgage given by them jointly to secure his debt, will not prevent the running of the statute in favor of the wife, even though he was authorized to act for her generally.
    Appeal from Kent; Wolcott, J.
    Submitted April 18, 1901.
    Decided May 7, 1901.
    Bill by George S. Curtiss against Peleg R. Perry and Mary Perry to foreclose a mortgage. The bill was dismissed, and from an order denying a rehearing complainant appeals.
    Affirmed.

      E. C. Watkins and Frank Kutts, for complainant.

      James A. Lombard, for defendants.
   Long, J.

Bill to foreclose a mortgage made by the defendants, who are husband and wife. The mortgage was made September 30, 1876, for $600. It covered three small parcels of land owned by the husband and an 80-acre piece owned by the wife. It became due three years after date. The defendants claim that the mortgage has been paid, or that, if it has not been paid in full, it is barred by the statute of limitations. It is conceded that the mortgage is barred by the statute unless a certain indorsement on the mortgage of five dollars was made by the defendants on June 22, 1889.

From the view we take of the case, it is not necessary to determine any other question than that whether the ■five dollars was paid, if paid at all, by and with the consent of Mrs. Perry. The court below found that, though the five dollars was in fact paid by Mr. Perry, it could in no way operate to prevent the running of the statute as to defendant Mrs. Perry, and entered a decree dismissing the complainant’s bill. A motion for rehearing was made'by the complainant for the purpose of introducing testimony to show that Mr. Perry was the general agent of Mrs. Perry. This motion was denied. Complainant •appeals. Both defendants testify that the debt which the mortgage was given to secure was the debt of Mr. Perry.

We are satisfied that, under the evidence, the court was not in error in finding that the five dollars was paid without the knowledge and consent of Mrs. Perry, and that the payment would not operate to relieve the mortgage from the bar of the statute as to her. Sections 9741 and 9745, 3 Comp. Laws 1897, provide that one joint contractor cannot, by an individual payment, bind another joint contractor so as to prevent the statute of limitations running in his favor; and in Rogers v. Anderson, 40 Mich. 290, it was held that a joint maker of a note does not lose the benefit of the statute by payments made by another joint maker. See, also, Holcomb v. Sloan, 39 Mich. 173.

The claim made that the husband was the general agent of the wife can have no force. There is nothing in the record to show that the payment was made by or with her knowledge or consent.

The decree below must be affirmed, with costs.

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

       All of the lands except the 80 belonging to the wife had been released from the mortgage. — Reporter.


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    RICHMOND v. NYE.
    1. Trial — Evidence—Harmless Error.
    Where the jury find against the existence of a claimed agreement, the exclusion of testimony tending to prove its breach becomes nonprejudicial.
    2. Engagement to Marry — Dissolution—Title to Presents.
    The dissolution, by mutual consent, of an engagement to marry, does not, as a matter of law, entitle the parties to a return of presents exchanged during the continuance of the engagement.
    3. Same — Contracts—Consideration. >
    Hence, where an engagement between plaintiff and defendant was broken off by consent, and plaintiff returned to defendant a watch he had given her, he agreeing, in consideration, thereof, to return her letters and not to speak to her without her consent, and, in case of a breach of such conditions, to return the watch, his promise to return the watch was supported by a sufficient consideration, and, on breach of the conditions, plaintiff could recover the value of the watch.
    Error to Clinton; D.aboll, J.
    Submitted April 18, 1901.
    Decided May 7, 1901.

      Assumpsit by Jennie Richmond against Harvey Nyefor the value of chattels converted. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Edwin H. Lyon, for appellant.
    Spaulding, Norton & Looting, for appellee.
   Long, J.

This action was commenced jn justice’s court for the value of a certain watch. After judgment there, the cause was appealed to the circuit court, where, on a trial before a jury, the plaintiff recovered a judgment for $20. Defendant brings error.

It appears that the parties had entered into a contract of marriage, and that certain presents had been made by the defendant to the plaintiff, among which was the watch in controversy. There had passed between them certain letters, which each held. In August, 1896, they had mutually concluded to terminate and break off the contract of marriage, and thereupon they entered into the following contract:

“In consideration of the return to me of one certain watch (gold) which was presented by me to. Jennie . Richmond heretofore as a Christmas present, I hereby transfer all my right, title, and interest in and to a certain tea set, two tablecloths, fruit dish, and pickle castor, granite ware, and any other personal property at any time in the possession of said Jennie Richmond in which I have claimed an interest. I also agree to transfer to said Jennie Richmond all letters written by her to me at any time, and agree that I will not molest her in any way in the future, or speak to her, or address her in any way, without her consent. In case of the breach of any of the above conditions, I agree to return the watch, or the value thereof, to said Jennie Richmond.”

The plaintiff’s claim is, and testimony was admitted to show the facts, that defendant violated this agreement by not delivering to her all her letters as agreed, and by molesting and speaking to her, without her consent, in a vile, rude, and insulting manner. The plaintiff testified that, upon the execution of this contract, she delivered to defendant the watch in question, but that defendant did not turn over to her all the letters she had written him; that in justice’s court she heard defendant testify that he had kept back certain of her letters, and that he intended to show them; that he also testified there that a demand had been made upon him for the return of the watch previous to the commencement of the suit; that, after the contract was made, she saw him, and in the presence of three different parties he called her vile names, and at other times he had called to her on the street, asking her when she was going to bring back his furniture. The defendant admitted that he signed the agreement above set forth, but claimed that there was an oral agreement made by plaintiff at the same time in which she agreed to turn over to defendant’s sister certain things, which she thereafter refused to do.

On the cross-examination of the plaintiff she testified that, at the time of her talk with the sister of defendant,, she might have claimed that she could not turn over the things to her because she did not have them, but that she had no recollection of so stating. She was then asked, “In the meantime you had disposed of those things, had you not?” This was objected to, and objection sustained. It is claimed that this was error prejudicial to the defendant. We think the defendant was in no manner prejudiced by the refusal to admit this testimony. It appears that the defendant submitted the special question to the jury, “Did Nye sign the paper of August 10, 1896, upon plaintiff’s promise to turn certain things therein mentioned over to his sister?” The jury answered that he did not sign the agreement upon any such promise.

The defendant asked the court to charge the jury that:

“1. Under the law and under the undisputed testimony in this case, the watch in question having been presented by defendant to plaintiff at a time when they were engaged to marry each other, the defendant was entitled to the watch when the engagement was set aside by the consent of the parties.
“2. No consideration valid in law has been shown in this case for the promise of defendant to return the watch in question to plaintiff.” .

These requests were refused, and the court charged the jury:

“ It is claimed upon plaintiff’s part that the watch was a Christmas present, given to her in the ordinary way, and delivered over to her. If it really was, then she owned it; and the fact that they broke off their engagement after that does not transfer the title back to him.”

We think the court properly refused to charge as requested, and that the charge given was not error. The plaintiff gave evidence tending to show that the watch was given to her as a Christmas present, with her name engraved thereon, and to be used by her. It became her absolute property. The contract of marriage was broken by the mutual consent of the parties, and the defendant entered into an agreement to return the watch on certain conditions stipulated in the contract. The court stated to the jury that the issues were: First, whether the contract was made or not; and, second, whether there had been a breach on the part of the defendant. These were the issues submitted, and the court specifically stated to the jury that, if the .plaintiff committed a breach, she could not recover. We think the case was fully and fairly submitted. The doctrine as to the return of presents where one of the parties breaks off the engagement without the consent of the other has no application to the present case. Here the watch belonged to the plaintiff. She had the right to stipulate the conditions under which the defendant should retain it. If the conditions were broken, as found by the jury, he had no right to retain it, and the verdict for its value was properly found.

We think no other questions need be discussed. .

The judgment will be, affirmed.

The other Justices concurred.


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    TULLER v. CITY OF DETROIT.
    Public Improvements — Assessments—Estoppel.
    A landowner who stands by while an adjacent street is being graded and paved, and steps taken to assess his property therefor, without raising any objection to the'proceedings, cannot maintain a bill 10 years thereafter to set aside the assessment because of an irregularity consisting of the failure of the assessor to attach to the roll a certificate that the assessment was made in accordance with the city charter.

      Appeal from Wayne; Rohnert, J.
    Submitted April 19, 1901.
    Decided May 7, 1901.
    Bill by Elizabeth Tuller against the city of Detroit to set aside a special assessment. From a decree for complainant, defendant appeals.
    Reversed.

      Flowers & Moloney, for complainant.

      Timothy E. Tarsney, for defendant.
   Long, J.

The complainant is the owner of certain premises in the city of Detroit. In the year 1889 proceedings were taken by the city to grade and pave the street adjoining her premises. No complaint is made of the proceedings or their regularity, except that the board of assessors returned the roll to the common council without attaching thereto or indorsing thereon a certificate showing that the assessment of the property was made in accordance with the provisions of the charter, which, complainant’s solicitors allege, should have been done. The claim is made that the omission of such certificate is fatal to the right of the city to enforce the payment of the tax assessment. It appears that the tax assessed was not paid, and that the property was sold and bid in by the city in 1890. This bill is filed to cancel the sale and set aside the tax. The court below granted the relief prayed, and the city has appealed.

We think it wholly unnecessary to discuss or determine the question whether a formal certificate to the roll was necessary to its validity. The complainant, now, after the lapse of so many years, and after sitting by and seeing the improvement made, and her property benefited thereby, cannot be permitted to set up such irregularity, if it be an irregularity, to defeat this assessment. The case falls squarely within the rule laid down in Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161); Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698); Goodwillie v. City of Detroit, 103 Mich. 283 (61 N. W. 526 ); Fitzhugh v. City of Bay City, 109 Mich. 581 (67 N. W. 904).

The decree of the court below must be reversed, and a, decree entered here dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


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    MURPHY v. SCHODER.
    Bill of Review — When Lies.

      1. The failure to take an appeal is no ground for the support of a bill of review.
    2. On the facts stated, no case was made for a bill of review.
    Appeal from Calhoun; Smith, J.
    Submitted April 19, 1901.
    Decided May 7, 1901.
    Bill by Edward Murphy against William Schoder and Kate Schoder to set aside certain deeds. The bill was dismissed, and, from an order denying his petition for leave to file a bill of review, complainant appeals.
    Affirmed.

      John F. Henigan, for complainant.

      F. W. Clapp, for defendants.

       Head-notes by Grant, J.

   Grant, J.

Complainant has appealed from an order denying him leave to file a bill of review. He filed his bill in June, 1896, to set aside three deeds made by him,— one to defendant William, and the others to defendant Kate, who is his sister. He filed an amended bill in January, 1897. He was 29 years' of age when the deeds were made. The basis of his claim is that he was an habitual drunkard, incapacitated to do business; that defendants knew this, and fraudulently secured these deeds without full consideration. The case was heard upon pleadings and proofs in open court, and the bill dismissed; the court finding that the defendants paid all that the property was worth, and that there was no fraud in their dealings with him. The sole ground now presented by his counsel for the reversal of the order of the court below is that he was deprived of his legal and statutory right to have his case reviewed in this court by the fact that Mr. Mains, one of his solicitors, was arrested on a criminal charge just after the decree was entered, and that complainant himself was also arrested and detained as a witness from July, 1898, to January, 1899.

There is no force in the claim. Mr. Mains was detained in prison but a few days, and complainant was allowed several times, while in prison at Marshall, to go to Battle-Creek and to Albion to see about his case; was also given the liberty of the city of Marshall, the county seat; and was allowed full freedom to correspond on his business matters. All that was done was to file a claim for an appeal, and present a bond conceded to be invalid. It does not appear that complainant ordered a transcript of the evidence, or applied for an order extending time to settle the case. The failure to take an appeal is no ground for-the support of a bill of review. Aside from this, complainant has failed to make a case which, even in a court of law, would be sufficient ground for granting a, new trial.

Order affirmed, with costs.

The other Justices concurred.


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    SCHWANDT v. WILLIAM WRIGHT CO.

    Death op Employé — Contributory Negligence — Duty of Employer. .

      1. Where an employé climbed upon the roof of a building to remove a plank, placed to protect the building and those working within from the falling of heavy weights above the building, used in raising and lowering doors, he was found guilty of contributory negligence, and his administratrix cannot recover where he was killed by the falling of one of the weights.
    2. An employer is under no obligation to inspect what he has no reason to believe any of his employés will interfere with, and with which he has no right to interfere.
    Error to Wayne; Hosmer, J.
    Submitted April 19, 1901.
    Decided May 7, 1901.
    Case by Minnie Schwandt, administratrix of the estate of Julius Schwandt, deceased, against the William Wright Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Defendant, a manufacturing corporation, has a dry Min, 18 feet wide and 25 feet long, extending from .its main building, used for drying lumber. At each end is a passageway about 8 feet wide. Along the center of the Min is a track consisting of two rails, used for propelling platform cars. Upon these cars lumber is loaded and taken in and out of the kiln. The roof is flat, covered with pine flooring about three-fourths of an inch thick, laid on joists 2x12, about 16 inches apart. Two joists extend through the roof, upon each of which is a pulley. Over each pulley is an iron cable, one end of which is attached to a door and the other to a weight containing about 300 pounds. The weights are made of boxes filled with scrap iron. To protect the roof and guard against accident, a plank about 17 feet long, 12 inches wide, and 3 inches thick, of Norway pine, was placed directly underneath the weights, so that, when the door was raised, the weights would rest upon the plank. This plank was not nailed, nor was it necessary to do so in order to keep it in place. There was no occasion for any employé of the defendant to go upon the roof. The plank could only be removed by some human agency. Plaintiff’s decedent, Julius Schwandt, and another employé, had taken a lot of lumber from the kiln. They then pulled down the door, and, while doing this, one of the cables parted, the weight came down, broke through the roof between the joists, and fell upon the decedent, causing his death. The negligence charged is the failure to inspect the cables, and prevent their becoming unfit for use from rust. Plaintiff had a verdict and judgment.

      Fred A. Baker ( George Gartner, of counsel), for appellant.

      James H. Pound, for appellee.

       Rehearing denied, but new trial granted, July 19, .1901.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). It is conceded that, if the defendant had taken no precaution to protect the roof from the falling of one of these weights, it would be liable. Defendant had no knowledge that this plank had been removed. There is no evidence that it was not sufficient to stop the weight if it should fall. After the accident, an investigation disclosed that the plank had been removed from its place, so that the weight did not strike it as it fell. It had been removed but a short time, as was apparent from the appearance of the roof underneath where it had been placed. The sole evidence as to its removal is from an employé who worked with Mr. Schwandt. He testified that some time before the accident, he and Mr. Schwandt loaded a car so high that it could not be taken out when the door was raised to its full height with the weights resting on the plank. Mr. Schwandt said he could arrange it so as to raise the door higher. He went into the yard, took a ladder, went upon the top of the building, and removed the plank. The door was then raised to a sufficient height to permit the load to be taken out. These facts were uncontradicted. It is apparent that the defendant had taken ample precaution to prevent accidents of this kind. The plank would have stopped the weight. It was not responsible for its removal. It had no reason to suppose that anybody would go upon the roof to remove the plank.' The theory upon which the circuit judge submitted it to the jury appears from the following excerpt from his charge:

“ It may present a question of negligence on the part of that employe; but if it was susceptible of removal, as the testimony shows, I think it is for you to say whether a sufficient inspection of the premises was made by the company to insure the safety, — to insure the fact that the plank was in proper position, if the safety of those below was made to depend upon the existence of the plank in ■that place.”

The defendant was under no obligation to inspect what it had no reason to believe any one of its employés would interfere with, and which he had no right to interfere with. If it had made safe provisions for preventing the weights from doing damage if they should fall, it was relieved from the duty of inspecting the cables. The ■deceased alone was responsible for the injury, and his own negligence prevents a recovery.

Judgment reversed, and no new trial ordered.

Hooker, Moore, and Long, JJ., concurred. Montgomery, C. J., did not sit.


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    EAGLE v. SMYLIE.
    Homestead — Voluntary Conveyance — Estates op Decedents— Rights'op Creditors.
    A homestead exemption is an absolute right, and not a mere-privilege personal to the owner. Hence, creditors of a decedent cannot complain of a voluntary conveyance by him of' his homestead during his last illness, though he left neither wife nor children him surviving.
    Appeal from Wayne; Rohnert, J.
    Submitted January 30, 1901.
    Decided May 7, 1901.
    Bill by Elizabeth E. Eagle against Robert W. S my lie, administrator of the estate of James R. Elliott, deceased,. George M. Savage, Richard William Elliott, Ralph Elliott, Edward P. Elliott, Richard R. Elliott, Adelia M. Savage, and James H. Savage, for a partition of real estate. From an order directing the payment of the proceeds of decedent’s interest to his grantee, George M.. Savage, the administrator appeals.
    Affirmed.

      M. Hubert O’Brien (Keena & Lightner, of counsel), for appellant.

      Edward W. Pendleton, for defendant George M. Savage.
   Moore, J.

By this appeal the court is asked to decide-the question whether the sum of $1,128.72, being a part of the proceeds of the sale of certain premises, should be paid to defendant George M. Savage or to the defendant Robert W. Smylie, administrator of the estate of James R. Elliott, deceased.

The proceeding in the court below was a bill of partition filed in March, A. D. 1899, wherein the complainant, Mrs. Elizabeth E. Eagle, sought to have partition of certain premises on Congress street east, in Detroit, which prior to 1841 belonged to her father, Robert Thomas Elliott, of Detroit. Thfe bill of complaint sets up the many transfers in the title after that date, and shows that prior to August 3, A. D. 1898, James R. Elliott, an unmarried man, and brother of complainant, acquired substantially a six-sevenths interest in the property; that complainant had the largest remaining interest, and the other Elliott defendants held the small remaining undivided interests. In 1893, James R. Elliott, who alone of the owners in common of the premises had been in possession •of the same for some years previous thereto, and who alone of said owners continued to occupy the same until Ms death, executed a mortgage upon his interest in the premises for the sum of $1,800, which mortgage defendant George M. Savage duly acquired after the death of said James R. Elliott, and shortly prior to the filing of the bill of partition. James R. Elliott died on August 31, A. D.' 1898. During his last illness, and on or about August 3, A. D. 1898, Mr. Elliott, by quitclaim deed, •conveyed an undivided one-half of his interest in the premises to Adelia M. Carey and to John C. Elliott, each. Miss Carey, shortly after the death of Mr. Elliott, married •defendant George M. Savage, and she is a defendant in this proceeding as Adelia M. Savage. Defendant George M. Savage acquired by quitclaim deed the interest of his wife in said premises, and, subsequent to the filing of the bill of partition, also by quitclaim deeds, he acquired any interest that John C. Elliott had in the property.

The bill of complaint further sets forth the appointment of defendant Robert W. Smylie as administrator of the ■estate of James R. Elliott, deceased; the appointment of commissioners on claims in due course of administration in the probate court for the county of Wayne; the insolvency of the estate; and the claim asserted by defendant Smylie, as administrator, that, upon any sale of the premises under the partition proceedings, he was.entitled ¿o the iuterest therein, over and above the mortgage above referred to, which James R. Elliott had prior to the 3d day of August, A. D. 1898, being the date of the quitclaim deeds to Miss Carey and to John C. Elliott, on the ground that the said conveyances were voluntary, and without consideration, as against claims of the creditors of deceased.

The answer of defendant Smylie, as administrator aforesaid, states the claims allowed against the estate of James R. Elliott, deceased, as being $4,704.39, and that the assets of the estate amounted to $640; and he asserts his-right, as administrator, to the surplus, over the mortgage, which belonged to James R. Elliott before he gave-the quitclaim deeds above referred to.

The answer of defendant George M. Savage and his-. wife denies the claim of defendant Smylie to the fund in question, and asserts that the quitclaim deeds were given, upon sufficient consideration. This answer was after-wards amended, setting up that the land conveyed was a homestead when the quitclaim deeds were made, in which the creditors had no interest.

On February 26, A. D. 1900, a decree was entered in the circuit court, establishing the interests of the several owners in common to the premises, ordering a sale of the property, and reserving for the further order of the court the determination of several questions, among which was-the controversy between defendant Savage and defendant. Smylie, as administrator, as to their right to any amount arising from the sale which would represent the interest, over and above the mortgage, which James R. Elliott had in the premises on August 3, A. D. 1898. This amount was determined to be $1,128.72.

It is not claimed there was any intent on the part of Mr. Elliott to defraud his creditors in making this deed.. The grantees in the deed were adopted children, who had lived with him a long time, and rendered him valuable service, and he without doubt thought he was leaving enough estate to pay his debts; but it is insisted that, as he was in fact insolvent, the conveyance was, in law,, a fraud upon his creditors.

In onr view of the case we need consider bnt one question, and that is whether the creditors can complain of the conveyance by Mr. Elliott of his homestead. The position of counsel for the administrator is that the homestead is not an absolute estate, but at most is an artificial estate, which may be waived by the person to whose benefit it inures; citing Riggs v. Sterling, 60 Mich. 652 (27 N. W. 705, 1 Am. St. Rep. 554); 15 Am. & Eng. Enc. Law (2d Ed.), 638, 639. Counsel say:

“We admit that James E. Elliott had a homestead interest in the premises at the time he executed the quitclaim deeds in question, while calling attention.to the fact that he alone had any such interest in the property, and while emphasizing the fact that any homestead interest in the premises lapsed with his death. There being no widow; or children surviving him, the provisions of sections 3 and 4 of article 16 of the Constitution have no application to this case. We admit that the homestead law (3 Comp. Laws 1897, § 10362), which is founded upon the constitutional provisions; has, been and should be liberally construed, and that the real estate, while occupied as a homestead (that is, in this case, during the life of James E. Elliott), could not be levied upon or in any other way subjected to the claims of his creditors. Furthermore, we admit that James E. Elliott might have sold his property, and during his lifetime his creditors could not complain of the sale, even if it was voluntary. And, further, if Mr. Elliott had sold his interest in the property for, say, $1,500, this fund would likewise have been exempt from process during a reasonable time within which to invest the same in another homestead. Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380). But our contention is that appellant, as administrator, may, in behalf of such creditors, attack such voluntary conveyance after the death of James E. Elliott.”

They argue that the homestead is a privilege personal to the owner, and may be waived by him, and that a gift of the homestead is fraudulent as to the creditors; citing Fellows v. Lewis, 65 Ala. 343 (39 Am. Rep. 1); Kingsbury v. Wild, 3 N. H. 30; Currier v. Sutherland, 54 N. H. 486 (20 Am. Rep. 143); Ruohs v. Hooke, 3 Lea, 306 (31 Am. Rep. 642); Schaffer v. Beldsmeier, 107 Mo. 314 (17 S. W. 797); Miller v. Leeper, 120 Mo. 466 (25 S. W. 378).

An examination of the authorities will show a want of harmony in them. The following authorities are to the effect that a creditor has no interest in a homestead, and cannot complain of its conveyance by the debtor: Crummen v. Bennet, 68 N. C. 494; Sears v. Hanks, 14 Ohio St. 298 (84 Am. Dec. 378); Wood v. Chambers, 20 Tex. 247 (70 Am. Dec. 382); Hibben v. Soyer, 33 Wis. 319; Dreutzer v. Bell, 11 Wis. 114; Conklin v. Foster, 57 Ill. 104; Hartwell v. McDonald, 69 Ill. 293; Smyth, Homest. § 234; Legro v. Lord, 10 Me. 165; Baker v. Kinnaird, 94 Ky. 5 (21 S. W. 237). In Marshall v. Strange, (Ky.) 9 S. W. 250, it was held that, where a debtor conveys a portion of his homestead, the whole of which is worth less than the statutory limit, his creditors cannot, after his death, charge the land so conveyed with his debts. In Grimes v. Portman, 99 Mo. 229 (12 S. W. 792), it was held one may sell, mortgage, or' give away his homestead, and his creditors cannot complain.

The question in this State is not a new one. The constitutional provision is as follows:

“Every homestead * * * shall be exempt from forced sale on execution, or any other final process from a court, for any debt contracted after the adoption of this Constitution.” Article 16, § 2.

The statutory provision reads:

“A homestead * * * owned and occupied by any resident of this State shall not be subject to forced sale on execution, or any other final process from a court, for any debt or debts growing out of or founded upon contract, either express or implied, made after the third day of July, A. D. 1848.” Section 10362, 3 Comp. Laws 1897.

In Riggs v. Sterling, 60 Mich. 643 (27 N. W. 705, 1 Am. St. Rep. 554), it was argued, as it is argued here, that the homestead is a privilege personal to the owner, and not an absolute right. The court said:

“The homestead exemption, as it now exists, is not •only a privilege conferred (Chamberlain v. Lyell, 3 Mich. 458), but, under the Constitution, it is an absolute right. ‘It was intended to secure against creditors a Lome, and, to a certain extent, the means of support, to every family in the State.’ Dye v. Mann, 10 Mich. 297; McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743).”

In Farrand v. Caton, 69 Mich., at page 242 (37 N. W. 203), it is said one may do what he pleases with his exempt property.

In Anderson v. Odell, 51 Mich. 492 (16 N. W. 870), it is said creditors have no right to complain of dealings with property which the law does not allow them to apply on their claims.

In Rhead v. Hounson, 46 Mich. 243 (9 N. W. 267), in ■speaking of a voluntary conveyance of real estate from a father to his son, the court said:

“It appears conclusively from the bill and evidence that, when the executio.n debtor gave the deed in question, he held and occupied a homestead on the premises. That part of the farm was therefore exempt. The holder was •as free to dispose of it without interference as though he had not been indebted at all,” — citing Smith v. Rumsey, 33 Mich. 183.

See, also, Pulte v. Geller, 47 Mich. 560 (11 N. W. 385); Vermont Sav. Bank v. Elliott, 53 Mich. 256 (18 N. W. 805); Armitage v. Toll, 64 Mich. 412 (31 N. W. 408); Toll v. Davenport, 74 Mich. 386 (42 N. W. 63); Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380).

We think the circuit judge made a decree in harmony with the uniform decisions of this court. The decree is affirmed.

Montgomery, C. J., Ho'oker and Long, JJ., concurred. Grant, J., did not sit.


author: Montgomery, C. J.

text:
    NAVARRE v. CITY OF BENTON HARBOR.
    Municipal Corporations — Icy Sidewalks — Ne&ligenoe—Question for Jury.
    Where a depression existed in a sidewalk constructed up a, steep grade and alongside an embankment, permitting surface water, and liquids escaping from a garbage tank maintained on private premises at the top of the embankment, to flow across the walk to the gutter, some 18 inches below, which condition had existed for a long space of time, the question of the city’s liability for injuries sustained by a pedestrian in falling upon ice forming on the walk at such point should have been submitted to the jury.
    Error to Berrien; Coolidge, J.
    Submitted January 10,. 1901.
    Decided May 21, 1901.
    Case by Editb Navarre against the city of Benton Harbor for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error..
    Reversed.

      Gore & Harvey, for appellant.

      H. 8. Gray (G. M. Valentine, of counsel), for appellee.'
   Montgomery, C. J.

This action was brought to recover damages for personal injuries sustained by plaintiff from a fall upon a sidewalk on High street, in the city of Benton Harbor, on January 23, 1899. High street is a principal street of the city, and much traveled. At the point where the injury occurred, the street ascends a hill ¿t a high grade. The sidewalk was four feet in width, and at the place of the injury was eighteen inches above the-gutter. From the inner side of the walk an embankment arose to a height of something like four feet. This embankment was faced with artificial stone. It appeared that, abutting this embankment, the walk had a slope towards the street of about four inches in four feet. It also appeared that there was a drop in the walk at that-particular point, — a place where the walk had settled down, — making it slope off towards the gutter, and, as may be inferred, arresting the flow of water lengthwise of the walk. There was testimony tending to show that the result of this was to accumulate ice at the place of this drop, and that it would form there, and had been accustomed to form there for a considerable period before the injury. It was also in evidence that adjacent to this point on the walk was a building, occupied by tenants, and that a large garbage tank was located upon these premises near the embankment, and that the liquid from this garbage tank found its way onto this walk through a leakage, and that this had continued from 1896 down to the time of the injury to the plaintiff, in 1899; that the flowage from the garbage tank followed the depression in the sidewalk; that the result was that this depression and drop in the walk formed a course for the flowage of the liquids from the garbage tank and other waters that flowed from the adjoining premises, and in cold weather it became frozen, and formed a sheet of ice from two to three feet in width and from a half inch to an inch and a half in thickness. The walk was not safeguarded by rails, nor were there any cleats of any kind. There was sufficient evidence to justify the submission to the jury of the question of whether the city had notice of these defects. The injury to the plaintiff occurred in the early morning, before daylight, while going from her rooms to her work; and, while some question is made in the briefs of counsel as' to whether the injury is shown to have occurred at the point in question, we think this was a question for the jury. The circuit judge was of the opinion that the case should be ruled by Gavett v. City of Jackson, 109 Mich. 408 (67 N. W. 517, 32 L. R. A. 861), and directed a verdict for the defendant.

We think the case should have been left to the jury. There was here a concurrence of a peculiar formation of the walk, which arrested the flow of water down the hill, and caused it to flow across the walk at this point, forming an open gutter, with the improper flow of wastage from the garbage tank, resulting in a dangerous and icy place. The case is distinguished from Gavett v. City of Jackson in these respects: In that case a majority of the court was of the opinion that there was no improper flowage of water across the sidewalk in question, which was itself in good repair, and not so laid as to cause water to accumulate and form ice. That cannot be said of the present case. The jury would be justified in inferring that the depressed condition of this walk was such as to induce the formation of ice in unusual quantities, and it certainly would be justified in finding that an improper flowage of the wastage from the garbage tank was permitted by the city, and continued for a long period. Canfield v. Railway Co., 78 Mich. 356 (44 N. W. 385). The case is a close one on its facts, but closely resembles Hughes v. City of Lawrence, 160 Mass. 474 (36 N. E. 485), and is in principle like Fitzgerald v. Inhabitants of Woburn, 109 Mass. 204. See, also, Hampson v. Taylor, 15 R. I. 83 (8 Atl. 331, 23 Atl. 732); 1 Wood, Nuis. § 120.

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

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


text:
    TITUS v. CHASE.
    Townships — Recovery for Sheep Killed by Dogs —Justice’s Award — Review of Proceedings.
    2 Comp. Laws 1897, § 5600, provides that, whenever any person shall sustain loss by the killing or wounding of his sheep by dogs, he may call on a justice of the peace, who shall proceed to view the sheep, and if, from such view, he shall be satisfied that the sheep were killed or wounded by dogs, he shall make a certificate thereof in writing, stating the damages sustained. Section 5601 provides that the township board shall examine all such certificates, and, if satisfied that the damages are excessive, they may reduce the same to a just amount, and may order the payment of the just loss out of the dog-tax fund. Held, that the determination of the justice cannot be reviewed by the courts, nor his award be increased by the township board.
    Appeal from Van Burén; Carr, J.
    Submitted January 29, 1901.
    Decided May 21, 1901.
    Bill by Lincoln H. Titus against E. A. Chase and others, composing the township board of the township of "Waverly, and Charles W. Dayton and another, justices of the peace of said township, to compel the payment of damages for the killing of certain sheep out of the dog-tax fund. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    .The defendants are members of the township board of the township of Waverly, and the bill is filed against them in their official capacity. The bill alleges that in June, 1899, 12 sheep and 10 lambs belonging to complainant were killed by dogs, and that 4 others were wounded; that he applied to Charles W. Dayton, a justice of the peace, to appraise the damages, under section 5600, 2 Comp. Laws 1897; that the justice repaired to the premises and viewed the sheep and lambs killed, but that, through negligence and gross carelessness, he failed to ascertain the whole number of sheep and lambs killed and wounded, and fixed the damages at $21;. that on the 27th of March, 1900, complainant appeared before the township board prepared with proof to show the inadequacy of the award; and that the justice then asked permission to amend his certificate to show the number of sheep and lambs killed as 8 and 2, respectively, and fix the damage at $25. This amendment was made. The bill alleges that the allowance was still grossly inadequate, and that the board refused to make further allowance or to hear testimony, and prays that the township board may be decreed to pay out of the dog-tax fund all such damages as may be found due to complainant by the court. The defendants demurred to this bill. The demurrer was sustained, and complainant appeals.

      T. J. Cavanaugh,, for complainant.

      James E. Chandler and Benjamin E. Heckert, for defendants.
   Montgomery, C. J.

(after stating the facts). The question presented is whether the legislature intended that the determination of the justice should be subject to review by the courts, or that the township board should be authorized to enter upon a general retrial of the case, and increase the damages awarded by the justice. The statute gives a new right or remedy. Except as provided by this act, one suffering a loss of sheep in the manner complained of has no right or remedy against the township, or against any fund in its hands. The statute (section 5600, 2 Comp. Laws 1897) provides that the justice “shall proceed to view the sheep or lambs so killed or wounded, and if, from such view, he shall be satisfied that the same were killed or wounded by a dog or dogs, he shall make a certificate thereof in writing, stating the amount of damages sustained.” The next section provides that:

“At the annual meeting of the township board in each year, * * * said board * * * shall examine all certificates of damage filed by the clerk, as aforesaid, during the preceding year, and, if satisfied that in any case or cases the certified damages are excessive, they may reduce the same to such amount as they may consider just, and may order the payment of all such loss as they may consider just out of the fund aforesaid.”

No machinery is provided for a trial of the question of fact before the justice. The proceeding is summary, and the determination of the justice is on view of the injured •or dead sheep. The provision that the township board may reduce the award of the justice is for the purpose of safeguarding the interests of the township, and does not imply a power to increase the damages. We do not think the determination of the justice is open to review by the •courts, nor do we find authority for an increase of the allowance by the township board.

The decree will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    GRUETT v. DIBBLE.
    1. Accounting — Rents and Profits.
    Where complainant let a farm on shares, and defendant received the rent, agreeing to keep an account thereof, but failing to do so, defendant, on an accounting, was properly-charged with the rental value of the land.

      2. Same — Appeal—Evidence.
    On appeal in an accounting, an allowance to complainant for services in procuring a conveyance of land to defendant will not be rejected on the ground that the only proof of the conveyance was complainant’s oral testimony, where such testimony was neither objected to nor disputed by defendant.

      Appeal from Isabella; Smith (Stearns F.), J., presiding»
    Submitted January 30, 1901.
    Decided May 21, 1901.
    Bill by Bhilip Gruett against Mason B. Dibble, impleaded with Thomas Bamborough, for an accounting» From a decree for complainant, defendant appeals.
    Affirmed.

      Bussell & McNamara and F. H. Dodds, for complainant.

      J. Lee Potts (Edwin H. Lyon, of counsel), for defendant.
   Hooker, J.

Complainant’s bill alleges his ownership of an undivided third interest in a parcel of land, subject-to a mortgage. Wishing to purchase the other two-thirds, he arranged with defendant that said two-thirds should be conveyed to him as security for the purchase price and the amount of said mortgage, both of which defendant paid for him. The parties have had dealings ever since, covering a period of 11 years; and the bill is filed for an. accounting, and to compel defendant to convey his interest in the premises to the complainant. From a decree in favor of the complainant, the defendant has appealed.

The case is reduced to a matter of accounting. Counsel for each party have succinctly stated the account, in a. most commendable way, making a comparison and elimination of undisputed items easy.

1. The first disputed question involves the date of what is called the “Kempf Note.” Our examination of the. record leads us to the conclusion that the defendant’s-claim is correct, and that the indebtedness was incurred in 1888.

2. It is claimed that the Exchange Bank note, of $1,-'300, was offset to the amount of $100 paid by complainant to the defendant. As complainant’s testimony is undisputed, this item should be allowed him.

3. One Welch harvested some wheat raised upon a parcel of land owned by the complainant, and, by complainant’s direction, delivered complainant’s share to the defendant. It is claimed that this amounted to 800 bushels. Defendant’s statement shows a deduction of one-sixth, upon the claim that it was short in weight; but we think this was not proved. It is also claimed that the complainant received 25 bushels of his share of the wheat; but we think this, if proved, is offset by the price shown to have been received for the wheat, and we therefore allow the item as charged.

4. Complainant leased certain lands for the period of three years on shares, and the defendant received his share. The complainant testified that he had no knowledge of the amount received, and stated that defendant agreed to keep account of it, but claims that he did not. A charge of the rental value was therefore made, and we think it should be allowed as charged.

5. A claim was made for $200 agreed to be paid to complainant if he would induce his mother to deed a parcel of land to defendant. It is said that this should not be allowed, because the only proof that the same was deeded to defendant is the oral testimony of the complainant. No objection was made to this testimony, and the defendant, who was a witness, did not dispute it. Under these circumstances, we think the item should be allowed.

6. Defendant desired to purchase a parcel of land owned by a third person, and complainant endeavored to buy it for him, but could not. He found, however, that the owner would trade it for a parcel owned by the complainant, and this was done; complainant’s land being first deeded by complainant to defendant. Both parties testify as to the price to be paid, there being a difference of $600 between them. The item is allowed as claimed by complainant.

7. An item of. $225 paid into the bank by Hart is disputed. Complainant states that it was paid in, by his direction, for defendant, and that he notified defendant of the fact. Defendant claims that it was applied on a mortgage upon the premises sold to Hart; but, if it was, it appears to have been under an arrangement between defendant and the bank, with which complainant had nothing to do. If it was not, it is not binding upon him. The item should be allowed.

8. A similar disagreement appears in relation to another parcel deeded by complainant to the defendant, the disputed amount being $400. Neither of these items is free from doubt, but the learned circuit judge, who saw the witnesses, must have believed the complainant’s version, and we think it the more credible, in view of all the evidence.

The decree appealed from awarded $1,000 to the complainant, and, as our own computation exceeds that sum to a small amount, the decree is affirmed, with costs.

Montgomery,' C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


text:
    COAN v. TOWNSHIP OF BROWNSTOWN.
    1. Townships — Defective Bridges — Liability—Instructions.
    In. an action against a township for injuries to a traction engine by the giving way of a bridge, the court, in concluding his charge to the jury, said that there was something, at least, that they could remember: That the engine went down and was injured; that the bridge gave way; that they were starting to use considerable caution, by putting planks across; how the engine went off; how the bridge gave way; and all about it, — that that was something that must be left to the judgment of the jury. Held, that the instruction was erroneous, as conveying a wrong impression as to what would establish defendant’s negligence.
    2. Trial — Conduct of Counsel.
    Where a witness testified that, on examining an engine after an accident, he found the piston rod and cylinder uninjured, counsel’s conduct in asking the witness whether he had the face to sit there and swear to the jury that, without putting steam on the engine, he could tell anything about it, and adding that the witness ought to be committed, was prejudicial, and should have evoked a reprimand from the court.
    S. Torts — Damages—Interest.
    Where, in an action on the case for'negligence, defendant’s liability was established as for a total loss of the1 property involved, interest on the value of the property was properly allowed from the date of the injury.
    Error to Wayne; Donovan, J.
    Submitted February 14, 1901.
    Decided May 21, 1901.
    Case by Amos A. Coan against the township of Browns-town for injuries to property caused by a defective bridge. From a judgment for plaintiff, defendant brings error.
    Neversed.

      Samuel W. Burroughs, for appellant.

      James BE. Pound, for appellee.
   Long, J.

This action was brought under the statute to recover damages for injuries occasioned to plaintiff’s threshing engine by the falling of a bridge over which the engine was passing.

It appears that the bridge was built some 18 or 20 years before the accident, but that it had been overhauled and Tebuilt in 1894. It spanned what was called the “Blakely Ditch,” and was about 30 feet long and 16 feet wide. As ■originally built, it had a long stringer, 30 feet in length, on each side, reaching from one abutment to the other. These stringers were heavy, square, continuous timbers; the ends resting upon abutments about 8 feet high. Braces were mortised in the stringers some distance from each end, meeting in the center about 5 feet above the center of the stringers. Through the top or apex of these "braces an iron rod extended down through the stringers on each side, and through a supporting beam under the stringers. This beam was a heavy timber, and for years acted as a support to the center of the stringers. The center pieces, upon which the plank floor of the bridge was laid, extended from each abutment to the center beam. Heavy planking for the floor was then laid across the bridge from stringer to stringer, resting upon these center pieces.

The evidence is conflicting as to how the repairs were made in 1894. Plaintiff’s testimony tended to show that at that time the east stringer had become rotten, and was taken out and a new stringer put in, which, instead of extending from abutment to abutment in one continuous piece, as it had formerly done, was put in in two pieces, each piece extending only from its abutment to the center beam, and the center ends of the stringer resting upon the cross beam; that, to strengthen the center of this east stringer, a heavy plank had been nailed on each side of the stringer, extending out some distance on either side of the cross beam. The defendant introduced testimony tending to show that the new stringer put in was a continuous piece, extending from one abutment to the other.

The accident occurred in August, 1896. The engine was a self-propeller, and weighed about six tons. When the plaintiff approached the bridge that day, he stopped his engine and examined the bridge. The pathmaster of the district was there, and the plaintiff asked him if he' thought the bridge was as safe as it had been the year before, when he crossed it with his engine. The path-master said he thought it was. They then took some heavy planks and laid them down lengthwise of the bridge, for the wheels of the engine to run on. The claim of the plaintiff is that, when this was done, the pathmaster said there would be no danger then in taking his engine over it. He attempted to do so, and, when near the center, the east stringer gave way, and the engine fell or went off the east side into the ditch, occasioning the damage for which suit was brought. The claim of the defendant is that the engineer was careless and negligent in driving his engine over the bridge, in that he lost control of it, and that it ran too near the east side, thus causing the east stringer to break.

The court charged the jury upon the various claims of the parties. He said to the jury:

“If you find that the bridge, as built, and as repaired two years previous, was reasonably safe and suitable for ordinary travel, including the bearing up of an engine like the one in question, and that the township used due diligence in the construction and in the repairs, and in its watchfulness over the condition of the bridge, and that the accident occurred without any fault of its officers, or in the construction of the bridge or in its repairs, the plaintiff cannot recover.”

.The court fairly submitted the issues to the jury, but, in concluding his charge, said:

“If, with all the words that have crept into the case, I leave it to you, for there is something left, at least, that you can remember: That the engine went down and was injured; that the bridge gave way; that they were starting to use considerable caution, by putting planks across, making a double-plank floor; how the engine went off; how the bridge gave way; and all about it. That is something that we must leave to the judgment of eleven men.”

It is the claim of the defendant that this last part of the charge was misleading to the jury and prejudicial to defendant. We think that this part of the charge was misleading, and may have conveyed a wrong impression to the jury as to what facts would establish the negligence of the defendant.

One Mr. Wagar was called as a witness by the defendant. He testified on his cross-examination, in relation to the condition of the engine when found in the ditch, that the piston was not injured, as it was protected by the cylinder, and that the cylinder was not broken. He was asked by plaintiff’s counsel:

“Maybe I did not catch you exactly. Have you got face enough to sit there and swear to this jury that, without putting steam on that engine, you could tell anything about it, — whether that piston rod was right, straight or not, — until you took and used it ? ”

This language was objected to by defendant’s counsel, when plaintiff’s counsel stated: “I think that this witness should be pretty near committed.” Counsel for defendant excepted to these remarks, and the court compelled the witness to answer the question. There is nothing in the testimony of the witness which called for these remarks from counsel, and the tendency was to prejudice the jury. The court should have then and there reprimanded counsel for such uncalled-for and prejudicial statements.

There was great contradiction among the witnesses as to the value of the engine; some of plaintiff’s witnesses placing its value at $1,200 and over, and the defendant’s witnesses testifying that it was an old engine; and not worth over $150. The jury returned a verdict for the value of the engine at'$800, and interest of $166.99; being interest from August 8, 1896, the date of the injury. The court charged the jury on the question of interest on plaintiff’s claim as follows:

“The total claim of the plaintiff is $1,210. If the jury find he is entitled to recover, his damages will be fixed by the jury. This is modified under the testimony of the case, to which they may add or compute 6 per cent, interest for the time that they have been already told to compute the interest for.”

It is the claim of defendant that no interest can be allowed in this class of cases prior to judgment.

The declaration avers, substantially, that, after the accident, the plaintiff delivered up the engine to the township officers upon their promise to have the same repaired and then returned to him; that they never had it repaired and never returned it, but left it out in a field, where it-became rusted and worthless; that by reason thereof the-plaintiff lost the engine, which was of the value of $1,200. Plaintiff’s proofs tended to show that the engine was-delivered to the township officers for repairs. The case-was tried by the plaintiff as though the engine were a total loss. The defendant gave evidence tending to show that no arrangement was ever made with plaintiff to do anything more than pay for the cost of repair, and that the cost of such repair would not exceed $80. The supervisor of the township testified that he directed the plaintiff to take the engine to the shop, and that, if he would do so, the township would pay for the repairs, which he estimated would be about $80. This phase of the case was not submitted to the jury. The question submitted was as to the total value of the engine. There was nothing allowed for the value of the loss of the use of the engine, and, that being so, the plaintiff was certainly entitled to the interest on the value of the property. Interest may be recovered as a legal compensation for lost use. McGuire v. Galligan, 53 Mich. 453 (19 N. W. 142). We think, therefore, that the court was not in error in this part of the charge as to interest.

For the errors pointed out, the judgment must be reversed, and a new trial granted.

The other Justices concurred.