text:
    PEARCE v. QUINCY MINING CO.

    1. Jury — Competency—Person Employed by Party.
    A person in the employ of one of the parties is incompetent to sit as a juror.
    2. Same — Harmless Error.
    Where there is no claim that an impartial jury was not secured, a judgment will not be reversed because the court overruled a challenge to an incompetent juror, though the party objecting challenged him peremptorily, and used all his peremptory challenges.
    8. Master and Servant — Death of Servant — Action—Istructions — Sufficiency.
    In an action against a mine owner for the death of a minor servant caused by a fall of rock in the mine, instructions as to negligence, contributory negligence, duty to warn, and deceased’s knowledge of the danger, examined, and held, correct and applicable to the case.
    Error to Houghton; Streeter, J.
    Submitted June 11, 1907.
    (Docket No. 68.)
    Decided July 1, 1907.
    Case by James H. Pearce, administrator of the estate of Timothy Sullivan, deceased, against the Quincy Mining Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    This is an action of tort, based upon the alleged negligent killing of plaintiff’s intestate, Timothy Sullivan. Timothy, at the time of his death, was a little over 16 years and 2 months old. The declaration alleges that he "was an intelligent, ambitious, strong, and healthy boy, and accustomed to earn large wages.” He was killed by a fall of rock from a hanging wall. The claim of negligence in the declaration is that, without warning, instruction, or explanation, the deceased was sent to work in a place where there was latent or extraordinary danger; that "the place was attended by latent or extraordinary danger, as hereinbefore stated, in that blasting had been, and was being, done in said stope or place, and the hanging wall of said stope or place might be or .become loose, and rock or earth might become detached from said hanging wall and fall upon persons working there and injure them.” The deceased entered the employ of the company September 7, 1904, and was killed December 6, 1904; He had previously worked one month in another mine. He was what was called a "pony boy,” i. e., his first employment was mainly to run a pony engine. The evidence establishes the fact that these boys are also employed at other work. They run errands, help to clean out the stopes, and do other work. That is the manner in which boys learn to become miners. His own brother, a miner, working in the same mine, testified;
    " I know when the pony stopped running that Tim was doing something else.”
    The testimony of other miners is:
    " There is no boy hired for any one purpose. He runs a pony when it is needed; otherwise he works around the mine, * * * cleaning the levels, oiling the tram cars, running dirt for the trammers, carrying drills and water for the miners, filling miners’ places. His duties as a pony boy bring him into acquaintance with all parts of the mine. He does little jobs that he is able to do around the mine, cleaning up levels, running dirt in stopes, work in a miner’s place. * * * It is the custom in mining districts that, after two or three months’ experience operating a pony, to work at the foot of stopes.”
    The deceased and a miner named William Halgreen were employed shoveling dirt or rock from the south part of the stope and wheeling it to a hole and dumping it into the stope below. How the work was done, and how the deceased met his death, appears from the testimony of the miner Halgreen as follows:
    “ I am 32. I have worked for the Quincy about five or six years altogether at all kinds of work. I couldn’t name them all. I have trammed. I have worked as a miner, stemming. .1 have worked as a timberman. I have worked for the Quincy five or six years, seven different times. I now live in Minnesota. I went there about a month ago. My folks live there. I am farming. I own a farm. I was working in the Quincy on December 6th of last year in the ninth level. I worked with Timothy Sullivan. We shoveled dirt in the wheelbarrow and wheeled the wheelbarrow to the hole. That was on the night the accident happened. There were two company men and the boy and I and four miners working on that night shift in that level. I was working on the south side of the hole. The dirt was about 18 or 20 feet from the hole. The nearest stull timber was about 10 or 15 feet from the hole. I am not sure. There was a broken stull timber in the level that was laying down on the level, the hanging side of the level, about six or eight feet from the hole, south of the hole. I don’t know how many shifts Sullivan and I worked there altogether, two or three. I knew Sullivan. I saw him first when he started to work with me. I had a talk with him as to what part of the work he would do. I told him that he had to shovel the dirt into the wheelbarrow, and I would put it into the hole. He didn’t do any wheeling. That was too heavy for him. I went to work about half past 6. I noticed two pieces of rock that came down from the hanging that night. The first piece came down about, I couldn’t tell sure, about 10 o’clock. It wasn’t very large. It was small. I am not sure where the piece came from, but I think it came from the hanging; somewhere on the back. It fell so that part of it went into the hole and another fell'down close to where Timothy Sullivan was; some of the first ones went into the winze hole and some into the level. It was a small piece. It wasn’t as large as my head.”
    Witness further testified that he told Timothy that he better go away from there; that he might get hurt. The deceased was lying on this timber apparently asleep when the rock fell and killed him. The rock was 40 to 50 feet long, 10 to 15 feet wide, and 8 feet high at the thickest place. It .is undisputed that the miners were charged with the duty of testing the rock and determining whether it is safe; had examined it that morning, and had determined that it was solid and safe. The end of the stope where Halgreen was at work was perfectly safe. The case was submitted to the jury, who rendered a verdict for the defendant.

      Burritt & Burritt, for appellant.

      Hanchette & Lawton, for appellee.

       Rehearing denied October 4, 1907.

   Grant, J.

(after stating the facts). 1. The first error assigned is the refusal of the court to excuse a juror who was challenged by the plaintiff because he was an employé of the defendant. We are cited to no case in this court which decides the question. Counsel for defendant rely on Goodrich v. Burdick, 26 Mich. 39, where the defendant’s clerk was excused by the court. It was there said, the court speaking through Christiancy, C. J.:

“Though it might not have been erroneous for the court to have allowed Stewart, the clerk of the defendant, to sit as a juror, no other cause being shown against him, there was no error in rejecting him for this cause, and we think his rejection judicious and proper.”

Probably the reason that the question has not before been raised is because courts usually excuse a juror who occupies a business relation to either of the parties litigant. The question, however, has frequently arisen and been decided in other jurisdictions, and the cases, which are numerous, almost, if not quite, universally hold that such a person is incompetent to sit as a juror. 24 Cyc. p. 276; 17 Am. & Eng. Enc. Law (2d Ed.), p. 1127. Numerous cases are there cited. Jurors should be strictly impartial. Undoubtedly, many employes would be. Many employers might wish them to be. But a verdict in favor of the employer would not be satisfactory to the opposite party. The verdict would be subject to criticism. It would place the juror in an unpleasant position. It is a wise policy which prohibits such persons sitting as jurors. We think the law disqualifies them.

The objectionable 'juror, however, was peremptorily challenged by the plaintiff, and no claim is made that a perfectly impartial jury was not afterwards obtained. The sole ground, therefore, for reversing the case, is that the plaintiff exhausted all his peremptory challenges, and, if this juror had been excused for cause, he might have had one more peremptory challenge. There are decisions for reversing cases under such circumstances. Among them is one by this court. Theisen v. Johns, 72 Mich. 285. The question was disposed of by the statement that:

“ It will not do to say that this error was cured by the fact that counsel afterwards challenged the jury peremptorily, as it appears from the record that counsel upon both sides exhausted their peremptory challenges. There may have been others upon the jury whom counsel might desire to challenge peremptorily, and have been unable to excuse by reason of having exhausted his challenges.”

We think that, when the parties have obtained a competent and impartial jury, there is no good reason in setting that verdict aside and granting a new trial, because the judge erred in retaining upon the jury one who was in fact disqualified, but who was afterwards peremptorily challenged. An impartial jury is all that a party is entitled to, and when he has obtained that he has no valid ground for complaint. Where a qualified juror was ex-' cused, this court said:

So long as an impartial jury is obtained, neither party has a right to complain of this course by the court.” Atlas Mining Co. v. Johnston, 23 Mich. 36.

See* also, Luebe v. Thorpe, 94 Mich. 268. We therefore overrule that case upon this point.

2. The court, as requested by the plaintiff, stated to them fully the theory of the plaintiff’s case. This theory was repeated in various forms, one of which will be found in the excerpt from the charge, printed in the margin. After giving these requests, the circuit judge said to the jury that they must be satisfied by a fair preponderance of the evidence of two propositions: (1) that the defendant was guilty of negligence; and (2) that the plaintiff’s intestate was not guilty of contributory negligence; that the duty to warn the deceased was imposed upon the defendant, but, if the deceased knew of and appreciated the danger, that was sufficient; that if the defendant was guilty of negligence, and the deceased used the care that an ordinary, prudent, and intelligent person of his age, knowledge, and experience would use, plaintiff was entitled to recover. He also instructed them that liability could not be based upon sympathy. The last instruction appears to have been prompted by the remarks of counsel to the jury. It is these remarks, in summing up the case to the jury, of which plaintiff’s counsel complain. We find no error in them. The propositions were all correct, and were all applicable to the case. •

3. Plaintiff made a motion for a new trial upon the grounds: (a) That the verdict was against the weight of the evidence; (6) that the court erred in his instructions to the jury; (c) because an employe of the defendant talked with one of the jurors during the trial, for the purpose of influencing him. The motion was overruled, and, we think, very properly. The verdict was not against the weight of the evidence. The affidavit upon which the talk with a juror is based was denied by the employé and by the juror. Some other errors are assigned which have had full consideration. They are unimportant, and it is sufficient to say that they are without merit.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.

       “If you find from the evidence that deceased was young and inexperienced, and that the place where he was working when killed was attended by danger, and that the danger was known, or should have been known, to the defendant, and was not fully known to deceased, and was not fully apparent to a person of his age and experience, or was not fully appreciated by him, and that his incompetency to judge of such danger and fully appreciate the same was known, or should have been known, to the defendant, then the burden of proof is on the defendant to prove to your satisfaction by a preponderance of evidence that it did fully inform, warn, and instruct deceased concerning such danger, so that he might have fully understood and appreciated the same and have exercised care in proportion to such danger.’’


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    FARRAR v. LONSBY LUMBER & COAL CO.
    1. Fraudulent Conveyances — Sales in Bulk — Statute—Violation — Effect Between Parties — Lien for Price.
    A sale by a merchant of practically his entire stock in trade in bulk in violation of Act No. 223, Pub. Acts 1905, is void, not only as to creditors, but between the parties, and the bill of sale cannot be given effect as a chattel mortgage on the goods for the purchase money.

    2. Equity — Relief—Clean Hands.
    One who has purchased practically the entire stock in trade of a merchant in bulk, in violation of Act No. 223, Pub. Acts 1905, does not come with clean hands into a court of equity as an intervener to establish his title to the property as against the receiver of the seller.

      Appeal from Macomb; Law, J., presiding.
    Submitted June 11, 1907.
    (Docket No. 84.)
    Decided July 1, 1907.
    Bill by Judson S. Farrar and others against the Lonsby Lumber & Coal Company, Limited, Fred Breitmeyer, and others, to restrain the managers of defendant association from disposing of its property, for an accounting, and the appointment of a receiver. Spencer J. Dalby and A. Frank Sarns, copartners as the Lakeside Ice & Coal Company, filed a petition to intervene to establish their title to certain goods. From a decree for complainants, interveners appeal.
    Affirmed.
    The issue in this case is clearly stated by the learned circuit judge as follows: -
    “On January 13, 1906, the Lonsby Lumber & Coal Company, Limited, a partnership association, was insolvent.
    “On that day some negotiations were had relating to the sale of about 900 tons of soft coal and about 400 cords of wood to Dalby & Sarns, copartners under the name of the Lakeside Ice & Coal Company. On January 15, 1906, the sale was consummated, and a bill of sale of this property delivered by the officers of the Lonsby Lumber & Coal Company to Dalby & Sarns. No cash was paid, but the vendees gave three notes for the purchase price— two for $1,000 each and one for $1,130 — which notes are now in the hands of two banks in the city of Mt. Clemens. The property included in this sale was substantially the whole stock in trade of defendant association, except 386 tons of Jackson Hill coal and 3,000 bushels of charcoal which had been seized on January 13th under a writ of attachment in a suit brought by creditors.
    “On January 18th three of the stockholders of the Lonsby, Lumber & Coal Company filed the bill of complaint in this cause against this association, in which, among other things, mismanagement of the affairs of the association is alleged against four of the managing stockholders who are the officers, who are also made defendants. The bill of complaint asks for an order restraining the managing officers from disposing of the property of the association; for an accounting; for the appointment of a receiver; and for other relief. A temporary restraining order was made on the day the bill was filed in accordance with the prayer of the bill. On January 24th a receiver was appointed. On the date of his appointment the receiver took possession of the property which the Lonsby Lumber & Coal Company had attempted to transfer by bill of sale to Dalby & Sarns, except about 37 tons of coal which the vendees had removed between January 15th and January 24th.
    “ Since the filing of the bill of complaint some of the creditors of the Lonsby Lumber & Coal Company have been permitted to intervene, and answér has been filed by the defendants, an inventory has been filed .by the receiver, a steamboat belonging to the defendant association has been sold by the receiver as ordered by the court, and a report made by him of such sale. Dalby & Sarns have now filed a petition asking leave to intervene, and that the receiver be ordered to deliver to them the property which they claim to have purchased on January 15, 1906, from the defendant association, or, in the event this is refused, that the court order a lien in their favor upon the property less the value of the 37 tons of coal now in their possession.
    “ On the filing of this petition the court made an order permitting Dalby & Sarns to intervene, and providing that the receiver show cause why the prayers of petitioners should not be granted. The defendant partnership association has filed an answer to the petition of Dalby & Sarns, admitting that they are entitled to the relief for which they pray, and the receiver and the complainants have filed answer denying their right to such relief.”
    A hearing was had and a decree entered for the complainants, decreeing that the sale was void under Act No. 223, Pub. Acts 1905, that the notes be declared null and void, and the petitioners required to account for the sale of the 37 tons of coal of which they had taken possession.

      John A. Weeks, for complainants.

      Robert F. Eldredge, for defendant receiver.

      Martin Crocker, for appellants.

       As to validity and construction of statutory requirements on sale of stock of goods in bulk, see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.) 331.

   Grant, J.

(after stating the facts). Act No. 223 .known as the “ sales-in-bulk act,” was held valid by this court in Spurr v. Travis, 145 Mich. 721.

Counsel for the petitioning appellants appears to concede that under that act the sale was void, but claims that the receiver should either return the petitioners’ notes or pay them with the money derived from the sale of the goods. He also contends that the bill of sale should be treated as a mortgage. Neither of these contentions can be sustained. Otherwise a quick and easy way to completely avoid the statute would be furnished. A sale void as to creditors cannot, as between the parties, be made to operate to give the vendee a lien for the money he has paid. 4 Am. & Eng. Enc. Law (2d Ed.), p. 189. These petitioners acted in violation of the law. They are not before a court°of equity with clean hands. They are not in position to ask for any remedy in a court of equity. The holders of the notes in quéstion are not now before the court, and their rights cannot be determined in this proceeding. If they present their notes to the court for allowance against the estate of the company as indorser, the question will then arise for determination whether they are holders in due course and for value.

Decree affirmed, with costs. '

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Judgment — Res Judicata — Plea.
    The question of res judicata cannot be raised by a motion to quash an information filed by the attorney general, but only by a plea in bar.
    3. Abatement — Another Action Pending — Nature of Proceedings.
    The pendency of other suits against a corporation involving the same questions is not ground for quashing an information in the nature of quo warranto brought to test the right of the corporation to exercise its franchises as % corporation, none of the other suits having been brought for that specific purpose.
    3. Quo Warranto — Information—Leave to File — Application —Showing—Necessity.
    The procedure prescribed in quo warranto cases brought under sections 9866 and 9967, 3 Comp. Laws, is not applicable to cases in which the attorney general asks this court, or a justice thereof, for leave to file an information against a corporation under section 9951, 3 Gomp. Laws, and the court, or a justice thereof, may, in its discretion, grant such leave without notice to the respondent, and without any further showing than the facts set up in the verified information.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of John E. Bird, attorney general, to inquire into the right of the Detroit, Grand Haven & Milwaukee Railway Company to exercise certain franchises: On motion to quash.
    Submitted June 11, 1907.
    (Calendar No. 22,078.)
    Denied July 1, 1907.

      H. Geer and L. C. Stanley, for the motion.

      Roger Irving Wykes, contra.
   Grant, J.

The attorney general presented to the Chief J ustice of this court a duly verified information to inquire into the right of the respondent to exercise franchises or privileges not conferred upon it by law, and also to forfeit its charter and franchise for noncompliance with the act creating it. The Chief Justice granted leave to file the information. The respondent now moves to quash, because (1) the leave to file the information was improvidently granted; (2) no notice was given to the respondent of relator’s intention to make such application; and (3) because no proper showing was made by affidavits or otherwise for leave to file it. The statute upon the subject is section 9951, 3 Comp. Laws, which reads as follows:

“ Leave to file such information may be granted by the Supreme Court in term time, or by any justice thereof, but by no other officer, upon the application of the attorney general in vacation; and such court or justice may, in their discretion, direct notice of such application to be given to such corporation or its officers, previous to granting such leave, and may hear such corporation in opposition thereto.”

The information charges the respondent with unlawfully exercising certain franchises and privileges, to wit:

“1. All of the rights, franchises, and privileges at one or any time belonging to or possessed and exercised by the Detroit & Pontiac Railroad Company and conferred upon it by the act of the legislative council of the Territory of Michigan, March 7, 1834 (3 Terr. Laws, p. 1287), and amendments thereto.

“2. All of the rights, privileges, and franchises at one or any time belonging to or possessed and exercised by the Detroit & Milwaukee Railway Company and conferred upon it by Act No. 140 of the Laws of 1855 of Michigan and by the act of the legislative council of the Territory of Michigan of March 7, 1834, and amendments thereto.

“ 3. The right, privilege, and franchise claimed to be conferred upon it by section 16 and other sections of the act of the legislative, council of the Territory of Michigan of March 7, 1834, to perpetually fix and regulate its own tolls and charges without legislative interference, or regulation or limitation as to reasonableness of rates, tolls, or charges.

“4. The right, privilege, and franchise of perpetually paying the limited rate of taxation fixed by Act No. 140 of the Laws of 1855, to be paid and measured upon the capital stock of the Detroit &; Milwaukee Railway Company.

“5. The right, privilege, and franchise to extend the rate of taxation fixed in and by Act No. Í40 of the Laws of 1855, and therein conferred upon the Detroit & Milwaukee Railway Company to the portion of the said railroad belonging, previous to 1855, to the Oakland & Ottawa Railway Company, and extending from the city of Pontiac in the county of Oakland to the city of Grand Haven in the county of Ottawa, as well as the right to exercise this exemption as a perpetual right, privilege, and franchise.

“ 6. The right, privilege, and franchise to exercise the right of eminent domain as conferred and granted in said act of the legislative council of the Territory of Michigan of March 7, 1834.

“7. The right, privilege, and franchise of perpetual exemption from the provisions of the Michigan general railroad law, as to all parts of the railroad now operated or hereafter acquired by it, pursuant to law.

“8. The right, privilege, and franchise of a contract with the State, as embraced in and constituted of the act of the legislative council of the Territory of Michigan of March 7, 1834, and of Act No. 140 of the Laws of Michigan of 1855, exempting it from legislative interference with regard to. the regulation of its own tolls and charges, with regard to the alteration in the tax rate claimed to be fixed by said acts, and with regard to the other rights, powers, and immunities claimed to be conferred and enjoined under the provisions of said acts.

“9. The right, privilege, and franchise of an exemption from the provisions of Act No. 173 of the Public Acts of 1901, and from any and all prior or subsequent general acts of the legislature of the State of Michigan, fixing the tax rate to be paid upon the property or measured upon the gross earnings of railway or railroad companies, except the Act No. 140 of the Laws of Michigan of the year 1855.

“ 10. The right, privilege, and franchise of continuous perpetual succession to the charters composed of the act of the legislative council of the Territory of Michigan of March 7, 1834, and of Act No. 240 of the Laws of the State of Michigan of 1855, and to the rights, privileges, franchises, exemptions, immunities, and powers thereby created oí conferred.

11 j The right, privilege, and franchise to exist as the successor to the property, charter, franchises, rights, privileges, and immunities of the Detroit & Pontiac Railroad Company and the Detroit & Milwaukee Railway Company, and to the special' charters of either or both of them as claimed to be conferred by Act No. 96 of the Laws of 1859.

“13. The right and privilege of immunity from the passage and application of such acts of the legislature of the State of Michigan as Act No. 5, of the October Special Session of 1900.

“13. And that, in addition to the above, the said Detroit, Grand Haven & Milwaukee Railway Company, as such corporation, has offended against theprovisions of the act or acts creating, altering or renewing it as such corporation.”

The learned counsel for the respondent claim that certain of the questions are res judicata. The question of res judicata can be raised only by plea in bar. Briggs v. Milburn, 40 Mich. 513.

It is claimed also that certain other suits, brought against the respondent, involve the same questions here raised. If this be true, it is also true that they are not raised in a direct proceeding to test the right of the respondent to exercise its franchises as a corporation.

Counsel cite Vrooman v. Michie, 69 Mich. 44. That case was brought under sections 9966 and 9967, 3 Comp. Laws, andis applicable to cases brought under that statute. It does not govern cases where the attorney general asks this court or a justice thereof for leave to file an information.

The questions raised are important, and we see nothing to indicate that the relator is actuated by a desire to institute vexatious proceedings, or to again try questions which have been once adjudicated. The Chief Justice exercised the discretion reposed in him by the law, and we see no occasion to interfere with it.

The motion is denied.

McAlvay, 0. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    MULHOLLAND v. IDEAL MANUFACTURING CO.

    Master and Servant — Personal Injuries — Contributory Negligence.
    In an action against a master by a servant for personal injuries resulting from getting caught in the knives of a jointer, evidence examined, and' held, that plaintiff’s carelessness in attempting to clean the accumulated chips and dust from the defective suction pipe of the machine without stopping it contributed to his injury, and that a verdict should have been directed for defendant.
    Error to Wayne; Donovan, J.
    Submitted June 12, 1907.
    (Docket No. 18.)
    Decided July 1, 1907.
    Case by Wallace B. Mulholland against the Ideal Manufacturing Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Keena, Lightner & Oxtoby, for appellant.

      Frederic T. Harward, for appellee.

       Rehearing denied October 4.

   Moore, J.

The plaintiff lost a portion of his right hand while employed at the defendant’s factory. Upon the trial of the case in the Wayne circuit court he recovered a verdict for the sum of $7,000. The circuit judge denied a motion for a new trial and entered judgment on the verdict. The writ of error in this case was issued to review this judgment.

The errors assigned may be grouped as follows:

1. The verdict should have been directed for defendant.

2. The alleged negligent acts of defendant, relied on by plaintiff in this case, were not the proximate cause of plaintiff’s injuries.

3. Plaintiff assumed the risks incident to the work in which he was engaged when he was injured.

4. Plaintiff was guilty of contributory negligence, which was the cause of his injuries.

5. Errors in the court’s rulings.

In our view of the case it is necessary to discuss but one of these groups of assigned error.

No testimony was introduced on the part of defendant, except some photographs of the machine which inflicted the injury and its environment. In addition to his oral testimony, plaintiff introduced a wood cut of the machine in evidence. The record discloses without dispute the following situation: When plaintiff entered the employ of defendant, he was about 20 years of age. He worked for about 3 weeks upon a planing machine. He was then set to work upon the jointing machines, working first upon one and then upon the other alternately. This machine operates substantially as follows: There is upon the upper portion of the frame-work of' the machine two sets of knives, about one foot apart, which knives make about 3,000 revolutions a minute. There is a movable bed to the machine nearly a foot wide. Upon each side of this bed a board is clamped, with one edge down. When the boards are in place, the operator puts his foot upon a treadle, which sets in motion a cogwheel, which is midway between the rotating knives and somewhat nearer the movable bed of the machine. When the cogwheel is set in motion, the cogs upon it engage with cogs upon the lower side of the movable bed of the machine. It and the boards clamped upon the sides thereof are carried forward, so that the lower edges of the boards pass over the rapidly rotating knives. Upon the edge of one of the boards is cut a tongue, and into the edge of the other board is cut a groove. When this is done the boards are removed, the treadle is pressed by the foot of the operator, which brings the movable bed into position so that two more boards may be clamped thereon, and the operation repeated. The knives are, set in motion by means of a belt, which is pushed from a movable pulley to one that is fast. The cogwheel is kept in motion by beeping the foot of the operator upon the treadle. Coming up through the floor under each of these machines is a pipe, which terminates with a flaring end under the two sets of knives. This pipe is attached to the main suction pipe of the building under the floor, and when in good condition sucks away the chips and dust caused by the operation- of the machine. The pipe under one of these machines became detached just under the floor upon five occasions before the time of the accident. At such times the chips and dust would fill the upper end of the pipe, run over on the floor, and clog the machine. Upon the first of these occasions the foreman showed the plaintiff how tc attach the pipes together, and told him to remove the chips and dust with a stick, which he did. The foreman promised the plaintiff to fix the pipe so it would not separate. It is also claimed he made a like promise at each of the other times, and that plaintiff relied upon these promises. At about 5 o’clock of the day. when plaintiff was injured the pipe separated, the upper end filled up, and the chips and dust piled up on the floor and clogged the machine. The plaintiff left the knives running, went under the floor, and attached the pipe where it had been separated. Returning to the machine, he put his foot upon the treadle, setting the cogwheel in motion, took a stick about the size of a lath and about two feet long in both hands, and began to poke the end of it into the funnel end of the suction pipe for the purpose of removing the chips and dust which clogged the pipe. His shirt sleeve came too near the rotating cogwheel, his hand was drawn upon the revolving knife, and the mischief was done.

- It is claimed by plaintiff' that he left the knives revolving and set the cogwheel in motion while doing this work, so they would clear themselves of chips and dust, and that it would be difficult to clear out the machine if they were stopped. As to why he did not stop the knives and cogwheel, the following appears upon his redirect examination :

Q. Why didn’t you. do it ?

“A. Because the machine was running, and it would clean more readily, and I was working piece work, and wanted to do it as quick as I could.

“Q. Cleaned more readily ?

“A. Yes, sir.

“Q. Could you get your hand down- in there by the wheels and the gear to clear it out ?

“A. No, sir; I could not.

“Q. But when the wheels were going — revolving, that is, like this — you poked it out ?

“A. Yes, sir.

Q. And that is the way you did it ?

“A. Yes, sir.”

Counsel for plaintiff contends, and we quote from the brief:

“ The filling up of the machine with shavings, owing to defective suction pipe, blinded and confused plaintiff as to the exact location of the gear wheel and knives, and was the approximate cause of his injuries.”

When the accident occurred, plaintiff had been at work upon the two machines nearly four weeks. He knew perfectly well how to shift the belt to the movable pulley and thus stop the knives. He-knew all about setting the cogwheel in motion. He knew the exact location of the cogwheel and of the revolving knives. He knew the exact situation better than any one else. It was an extremely careless thing to do what he did do. It would be a misuse of words to say that his carelessness did not contribute to his injury. See Kean v. Rolling Mills, 66 Mich. 277, 285, 288; Hathaway v. Milling Co., 139 Mich. 708; Martin v. Lumber Co., 141 Mich. 363. _ A verdict should have been directed in favor of defendant.

Judgment is reversed, and new trial ordered.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


text:
    PEOPLE v. HENZE.
    Intoxicating Liquors — Keeping Open on Sunday — What Constitutes.
    Under section 5395, 2 Comp. Laws, requiring that saloons shall be kept closed on Sunday, a saloonkeeper is guilty who enters , his saloon on Sunday to fix the fires, empty the pans under the refrigerators, light the lights, and prepare his meals in an adjoining kitchen, though he has no other place in which to prepare his me_als, no liquors are ever served in the kitchen, and no person other than himself enters on Sunday.
    Exceptions before judgment from the superior court of Grand Rapids; Stuart, J.
    Submitted June 13, 1907.
    (Docket No. 120.)
    Decided July 1, 1907.
    Fred W. Henze was convicted under section 5395, 2 Comp. Laws, of keeping his saloon open op Sunday.
    Affirmed.

      Dunham & Malcolm, for appellant.

      John S. McDonald, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the offense of keeping his saloon open on Sunday. The sole question involved is whether or not this saloon was open on that day, within the meaning of section 5395, 2 Comp. Laws, which statute, so far as applicable, is as follows:

“All saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug stores, where any of the liquors mentioned in this act are sold, or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday, * * * until 7 o’clock of the following morning. * * * The word ‘ closed ’ in this section shall be construed to apply to the back door or other entrance as well as to the front door.”

The following statement of facts is substantially taken from the brief of counsel for respondent:

The respondent is a single man. His sleeping room was on the second floor over his saloon. There was no inner stairway. His sleeping room was reached by an outside stairway. On the Sunday morning in question Mr. Henze arose and went down stairs into his saloon to fix the fire, empty the pans under the refrigerator, and get his breakfast. After he had eaten his breakfast he went to church at 10:30. On returning from church he again went to and into his saloon, got his dinner, and then went to visit a friend, one Fred Platte, at the latter’s rooms, where he remained until about 5 o’clock. About 6 o’clock he again went to his saloon and fixed the fire and lit the lights in the front of his saloon, where he remained until about 7:30. He then left his saloon and went to church, getting there about 7:30. Returning from church at about 8:30, he again went into his saloon and got his supper, after which he went across the street to the drug store, where he spent the evening. At about 20 minutes to 11 p. m. he went back to his saloon, fixed the fire in his stove, emptied the pans under his refrigerator, and then went up to his room and retired for the night. The only premises respondent occupies is his saloon and sleeping room above it. He prepares all his own meals in a room off the rear of his saloon. There is an ordinary door between this kitchen of defendant and his saloon. The kitchen is about 8 feet by 12 feet, and in it no liquors are ever served. It is used for no other purpose than in which to prepare defendant’s meals and lunches, which are served out in his saloon proper. There is no way to reach this kitchen, except from the saloon; there. being no outside doors between the outside and defendant’s kitchen. On the Sunday morning in question no person was in the saloon other than the defendant.

Under this state of facts it is claimed the saloon was closed within the meaning of the statute. We cannot agree with this contention. The case is governed by the recent case of People v. Tolman, 148 Mich. 305, and the cases cited therein.

The conviction is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


text:
    IDEAL MANUFACTURING CO. v. LUDWIG.
    Injunction — Violation— Strike — Intimidation — What Consti tutes.
    An injunction-restraining the officers and members of a trade union from intimidating the employés of complainant, against whom a strike is in progress, is violated by the president of the union saying to a workman being escorted through a crowd of strikers by ah officer, “I see you are still doing your dirty work.”

    Certiorari to Wayne; Brooke and Mandell, JJ.
    Submitted June 13, 1907.
    (Docket No. 127.)

    Decided July 1, 1907.
    Bill by the Ideal Manufacturing Company against Martin Ludwig and others to enjoin an interference with complainant’s business: On petition, Martin Ludwig was adjudged guilty of contempt in violating the temporary injunction, and sentenced to imprisonment for ten days in the county jail.
    Affirmed.
    The respondent was found guilty of contempt of court in violating the injunction which the court had issued in the case of the Ideal Manufacturing Company v. Martin Ludwig and others. The injunction restrained the respondent and others from:
    “ 1. In any manner unlawfully interfering with the employés of the Ideal Manufacturing Company, complainant herein, now in the employ of complainant, and from in any unlawful manner interfering with any person who may desire to enter the employ of the Ideal Manufacturing Company, by the use of threats, intimidation, personal violence, or other unlawful means calculated or intended to deter or prevent such person or persons from entering or continuing in the employment of the Ideal Manufacturing Company, or calculated or intended to induce any such person or persons into leaving the employ of the said Ideal Manufacturing Company.
    “ 2. From congregating, gathering, assembling, lingering, or loitering about or in the neighborhood of the premises upon which the Ideal Manufacturing Company is engaged in carrying on its business, or at other places, with intent to unlawfully interfere with the employés of the said Ideal Manufacturing Company, or with the prosecution of their work, or to unlawfully interfere with or intimidate or threaten the employés of the Ideal Manufacturing Company, with intent to cause them to leave the employment of said company, or to interfere with or obstruct in any unlawful manner, the business and trade of said Ideal Manufacturing Company.
    “ 3. From interfering with the free access of the employés of the said Ideal Manufacturing Company to the premises on which the company is engaged in carrying on and conducting its business in their places of work,- and likewise from interfering with the free return of the said employés to their homes or places of business.
    “4. From giving any directions or orders, through associations, committees, or otherwise, for the performance of any such unlawful acts or threats or acts of intimidation hereinbefore enjoined, and from in any unlawful manner, whatever, impeding, obstructing, or interfering with the regular operation and conduct of the business of said Ideal Manufacturing Company.
    “5. From interfering, intimidating, boycotting by the distribution of circulars or otherwise, or otherwise molesting or threatening in any manner the employés or patrons of the said Ideal Manufacturing Company, or any other person or persons, for the purpose, by means of such interference, intimidation, threats, "or boycotting, of induc- • ing such person or persons not to do business or deal with or transact business with said Ideal Manufacturing Company.
    “6. From the performance of any acts, threats, or acts of intimidation hereinbefore enjoined, and from obstructing or interfering, by boycotting or otherwise, or by any acts of intimidation or coercion, with the regular conduct and operation of the business of the said Ideal Manufacturing Company, and from preventing, by these means, said company from carrying on its business, until the further order of this court.”

      George F. Monaghan and Peter J. Monaghan, for complainant.

      Dohany & Dohany, for respondents.

      As to the law relative to picketing, see note to Jensen v. Cooks’ & Waiters’ Union (Wash.), 4 L. R. A. (N. S.) 302.

   Grant, J.

(after stating the facts). The facts in this case are very similar to those in Beck v. Protective Union, 118 Mich. 497 (42 L. R. A. 407).

The complainant is carrying on a large manufacturing establishment, employing from 300 to 350 men. Among its workmen are those known as “metal polishers.” There is a union known as “ Metal Polishers’ Union No. 1,” of which respondent Ludwig was president. This union demanded of their employer that it discharge a workman because -he did not belong to the labor union. In other words, complainant claimed the right to employ its workmen without dictation from any union or other association. The labor unions claimed the right to dictate whom the complainant should employ. Complainant refused to comply with the demand, and a strike was ordered by the unions. Pickets were established in the streets around the complainant’s manufactory, crowds of union men, to the number sometimes of 300, gathered in the streets, particularly at morning, noon, and night, to intercept and intimidate the complainant’s employés, and threats of boycott, etc., were made. To such an extent was this unlawful interference carried on by the union men that 20 policemen were required to protect complainant’s employés in going to and from their work. Complainant filed a petition against Ludwig and others, charging contempt of court. They were duly served with the petition and affidavits accompanying it, and with an order to show cause. They appeared, proofs were taken, and the respondent found guilty.

Ludwig and other members of the Metal Polishers’ Union followed an employé of the complainant as he was being escorted by a policeman through a crowd. Ludwig walked in front of this employé, and said to him, “ I see you are still doing your dirty work.” When the officer asked him who he meant, he pointed to the employe, and said, “I mean that.” Further statement of the facts is unimportant. It is manifest that the attitude of the crowd, composed of union men, was hostile, threatening, and intended to intimidate. The claim of Ludwig and his associates that they were seeking only persuasion is the baldest subterfuge. The circuit judges of the court below who heard the testimony very properly said:

“It was a perversion of terms to claim, or to believe, that to approach a man surrounded by an unfriendly and menacing crowd and ask him to do or to refrain from doing something is lawful or peaceable persuasion, or is other than an act of intimidatioii as is specifically and in terms enjoined in this cause. No proofs are necessary to establish the fact that the natural and intended result of such conduct would be intimidation. * * * '

“His whole conduct, as sworn to by himself, constitutes, in our opinion, a deliberate disregard of the terms of the injunction with which he had been served prior to the time in question. It is, in our opinion, idle for the respondent to say that his purpose in joining the crowd surrounding Bert Brown was to peaceably solicit Brown’s membership in the union. Neither the time nor the circumstances were such as would make such an appeal possible. The claim of the respondent in this respect is, in our opinion, a mere colorable pretext to justify his conduct.”

The language we used in Beck v. Protective Union, supra, is applicable here:

“ The law abhors subterfuges, it lays aside the covering, and looks to the actual facts beneath. In the language of Chief-Justice Shaw:

“‘The law is not to be hoodwinked by colorable pretenses. It looks at truth and reality', through whatever disguise it may assume.’ Com. v. Hunt, 4 Metc. (Mass.) 111, 129.

Threats in language are not the only threats recognized by the law. Covert and unspoken threats may be just as effective as spoken threats. * * *

“ To picket complainant’s premises in order to intercept their teamsters or persons going there to trade is unlawful. It itself is an act of intimidation, and an unwarrantable interference with the right of free trade. The highways and public streets must be free to all for the purposes of trade, commerce, and labor. The law protects the buyer, the seller, the merchant, the manufacturer, and the laborer in the right to walk' the streets unmolested. It is no respecter of persons; and it makes no difference, in effect, whether the picketing is done 10 or 1,000 feet away.

It will not do to say that these pickets are thrown out for the purpose of peaceable argument and persuasion. They are intended to intimidate and coerce. As applied to cases of this character, the lexicographers thus define the word ‘ picket: ’ ‘A body of men belonging to a trades union sent to watch and annoy men working in a shop not belonging to the union, or against which a strike is in progress.’ Cent. Diet.; Webst. Diet. The word originally had no such meaning. This definition is the result of what has been done under it, and the common application that has been made of it.”

The court sentenced the respondent Ludwig to serve a period of 10 days in the Wayne county jail. The evidence fully justified the finding of the circuit judges.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Moore, JJ., concurred.


text:
    CARPENTER v. CARPENTER.
    1. Parent and Child — Custody of Child— Agreement of Parents — Effect.
    Though a husband and wife on separating may make a contract for the care of their minor children which will be recognized as valid between themselves, such contract will not be sustained to the detriment of the child, whose interests are of the first consideration.

    2. Habeas Corpus — Review — Certiorari — Questions ConsidERED.
    On certiorari to review habeas corpus proceedings, brought to-obtain the custody of a minor child, the finding of the court below that the welfare of the child will be best subserved by placing it in the care of the mother is a determination, of fact conclusive on this court.
    Certiorari to Grand Traverse; Mayne, J.
    Submitted June 14,1907.
    (Docket No. 100.)
    Decided July 1, 1907.
    Habeas corpus proceedings by Perlie P. Carpenter against Ora A. Carpenter to obtain the custody of an infant. There was judgment for petitioner, and respondent brings certiorari.
    Affirmed.
    Petitioner and respondent are husband and wife. Disagreements arising. between them, they separated and. executed articles of separation. They had two children. The older one the wife took, and the younger, by agreement, the father took. They executed an agreement, by which it was agreed that the father ‘ ‘ shall retain such custody so long as he gives the child proper care, support, and suitable home surroundings, subject to the right of said Perlie P. Carpenter to visit said child at reasonable intervals.” The petitioner filed her petition, asking the custody of the child, and alleging that the respondent was not providing the child with a suitable home or proper surroundings; that he was not a suitable person to have the care, custody, and education of the child; that the home surroundings of the child were improper and detrimental to his welfare and well-being. A hearing was had, testimony taken, and the circuit judge committed the custody of the child to the mother. The case is before us upon the writ of certiorari to determine the validity of the order of the circuit judge. The decision of the circuit judge is as follows:
    “ By nature the mother is better fitted than the father to have the care of young children. Our statute, providing that the mother shall have the care of children of tender years, recognizes this fact. For this reason the care of the child is committed to the mother. I will say, however, that from the evidence, and from the appearance of the parties, the father appears to be possessed of more affection and is more tender and sympathetic than fathers usually are. He is in every way fitted, as far as a father can be, to have the care of the child. Notwithstanding these qualities of the father, I am still of the opinion that the best interests of the child will be sub-served by intrusting its care to the mother.
    “It is to be distinctly understood, however, that the child is to be brought up to respect its father, also its grandparents; and that any act on the part of the mother which tends, or will tend, to cause the child to lose its respect for its father or its grandparents, will be deemed sufficient cause to transfer the custody of the child to the • father. The use of such expressions as “Uncle Didley ” by the mother or the members of her household, of and concerning the father or grandparents, or applying the term ‘ ‘ slave ” to the father, or the use of any language which will tend to cause the child to think less of its father, are prohibited, and if made use of- will be deemed sufficient reason for giving the custody of the child to the father.
    “In addition to the above, the father is to have the right to visit the child at all reasonable times during the daytime, but not later than 8 o’clock in the evening; and, in case the child is ill, immediate notice of such sickness will be communicated to the father, who will be permitted to visit the child and obtain for it proper medical care, provided the same has not already been furnished by the mother. Also, the father is to have the right to have the child visit him at his home three Sundays in each month.”

      Parm G. Gilbert, for petitioner.

      Underwood & Umlor and John W. Patchin, for respondent.

      As to validity of contract for transfer of parental responsibility or authority, see note to Enders v. Enders (Pa.), 27 L. R. A. 56.

   Grant, J.

(after stating the facts).' A husband and wife, on separating, may make a valid Contract for the care of their minor children. Such contract, while valid between the parties, will not be sustained to the detriment of the minor child, whose interests are of the first consideration. The circuit judge, in his return, finds that the respondent provided for the child in every way as the parties contemplated he would provide at the time they entered into the agreement, and that both are suitable persons to have the care and custody of the child; that the respondent, if awarded the custody of the child, will place him in the home of his father, Theron W. Carpenter, which consists of his wife, an aged lady in poor health, his daughter, a most estimable lady, who is a school teacher, and the respondent. He further returns:

“ In arriving at my determination as to the custody of this child, I have considered all the facts in the case as they appear in the evidence, the home surroundings, the peculiar temperament of Theron W. Carpenter, and the natural effect upon the child being brought up under the immediate influence of an adult person mentally constituted as is Mr. Theron W. Carpenter.”

■ Counsel for respondent, in their brief, ask:

“Are we to assume that courts are better qualified to say who shall have the custody of minor children than their natural parents ?”

The instant answer to this question is:

“Yes, when it appears that the child is not by the parents, or either of them, placed amid proper surroundings. ”

The judge, from the evidence which is not before us, and from a knowledge obtained by an .examination of the witnesses, has found as a fact that the welfare of the child will be best subserved by placing it in the care of the mother. In this proceeding, we can decide only questions of law; the determination of the judge as to the facts being conclusive. In re Sneden, 105 Mich. 61; Corrie v. Corrie, 42 Mich. 509. It is certainly tp be hoped that these parents, if they cannot live together in harmony and take care of their offspring as they ought to do, will at least have the good sense to agree to do what is for their children’s best interests.

The judgment is affirmed.

Mc4.lvay, C. J., and Carpenter, and Hooker, JJ., concurred. Moore, J., concurred in the result.


text:
    POWELL v. DWYER.
    1. Specific) Performance — Land Contract — Penalty.
    Equity will not permit a party to resist specifio performance of a contract to convey land by electing to pay the penalty stipulated therein.
    2. Same — Costs.
    A claim that affirmance of a decree for specific performance of a contract to convey land should be without costs, on the ground that the deed tendered by complainant for execution did not conform to the contract, is untenable where defendant did not decline performance on that ground, but on the ground, maintained to the last, that he had a right to decline performance on paying the penalty provided in the contract. '

      Appeal from Barry; Smith, J.
    Submitted June 17, 1907.
    (Docket No. 102.)
    Decided July 1, 1907.
    Bill by Lura Gregory Powell against Mary L. Dwyer, executrix of the last will and testament of John M. Dwyer, deceased, for the specific performance of a land contract. From a decree for complainant, defendant appeals.
    Affirmed.

      Isaac N. Payne (Golgrove & Potter, of counsel), for complainant.

      John H. McDonald (Edward S. Grece, of counsel), for defendant.
   Moore, J.

The bill was filed to enforce the specific performance of a written contract reading as follows:

“This agreement, made and concluded this 27th day of January, A. D. 1904, between John M. Dwyer, of Detroit, Michigan, party of the first part, and Lura Gregory Powell, of the same place, party of the second part, witnesseth:

“ The party of the first part, for the consideration hereinafter mentioned, does for himself, and for his heirs, covenant and agree with the said party of the second part, and her heirs and assigns by these presents, that he, said party of the first part, shall and will, on or before the 3rd of February, A. D. 1904, or as soon thereafter as possible, the same not to exceed ten days, by good and lawful deed or deeds, well and sufficiently grant, convey, and assure unto the said party of the second part her heirs and assigns, in fee simple, clear of all incumbrance, all of that certain tract or parcel of land being and situate in the city of Hastings, county of Barry and State of Michigan, and described as the south sixty-five (65) feet of lots 479 and 480, according to the recorded plat of said city of Hastings, the same being known as the Hotel Barry property and formerly known as the Ford House, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.

“ In consideration whereof, the said party of the second part, for herself and her heirs, does covenant and agree with the said party .of the first part, and with his heirs and assigns, by these presents that she shall and will, upon the execution of the said deed or deeds as aforesaid, and at the time aforesaid, well and Sufficiently grant, convey and assure, unto the said party of the first part, his heirs and assigns, in fee simple, clear of all incumbrance, except mortgages for the sum of sixty-five hundred dollars, all of that certain tract or parcel of land, being and situate in the city of Pontiac, county of Oakland, and State of Michigan, and described as lots 9 and 10 of the original plat of the city of Pontiac, the same containing 120 feet on Perry and Mill streets, and extending back 140 feet along Lawrence street, together with all and singular the hereditaments and-appurtenances thereunto belonging or in any wise appertaining. It is further agreed by both of the parties hereto that an abstract of title shall be furnished with each deed, each abstract to be brought down to date, a new abstract shall be furnished of the hotel property aforesaid, or in lieu thereof the sum of seven dollars will be paid second party.

“And for the true performance of all and every of the covenants and agreements aforesaid, each of the said parties bindeth themselves their heirs, executors and administrators unto the other his or her executors, administrators and assigns in the penal sum of one hundred dollars, to be paid to the party not in default.

‘ ‘ In witness whereof, the parties hereto have hereuntb set their hands and seals the day and year first above written.

“John M. Dwyer.

[Seal.]

“ Lura Gregory Powell.

[Seal.;

99

The court below decreed specific performance as prayed. The case is brought here by appeal.

The solicitors for the defendant say they regard the principal question in the case as turning upon the construction to be given to the clause of the contract reading:

‘ 'And for the true performance of all and every of the covenants and agreements aforesaid, each of the said parties bindeth themselves, their heirs, executors, and administrators unto the other his or her executors, administrators, and assigns in the penal sum of one hundred dollars, to be paid to the party not in default.” “

It is their claim' (we quote from brief):

4 5 It is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty by reference to any pecuniary standard, and where the parties themselves are most intimately acquainted with all the peculiar circumstances, and therefore better able to compute the actual or probable damages than courts or juries from any evidence which can be brought before them, in all such cases the law permits the parties to ascertain for themselves and to provide in the contract itself the amount of damages, which shall be paid for the breach. And the law permits parties to enter into contracts, and holds them binding, where the subject-matter is susceptible of only one ground or basis of damages; and this principle is sustained in all the cases cited, it makes no difference whether the parties call the consideration for the breach 4penalty ’ or 4 damages.’”

. It is their further claim that they tendered $100 to complainant, and therefore specific performance cannot be enforced.

The solicitors for complainant insist the court below was right in his construction of the concluding clause of the contract, when he said:

“Under the proof' it cannot be claimed that it was agreed upon between the parties as liquidated damages. It seems to be more in the nature of a penalty to be paid by the defaulting party, should anything occur by which either could not perform, and can in no sense apply to the situation as shown by the proof in this case, when it is shown specific performance can be made, but is refused by defendant because of a conception or belief that a more advantageous disposition of the property can be made than by complying with the terms of the contract.”

A prominent author states the rule as follows:

“ With respect to the effect of a penalty upon the equitable rights of the parties, while a court of equity will relieve the party who has thus bound himself against a penalty, or will restrain its enforcement against him at law, it will not, on the other hand, permit such party to resist a specific performance of the contract by electing to pay the penalty. Where a person has agreed to do a certain act, ordo refrain from doing a certain act, and has added a penalty for the purpose of securing a performance, a court of equity will, if the contract is otherwise one which calls for its interposition, compel the party to specifically perform, or restrain him from committing the act, as the case may be, notwithstanding the penalty. If the sum stipulated to be paid is really a penalty, the party will never be allowed to pay it, and then treat such payment as a sufficient ground for refusing to perform his undertaking.” 1 Pomeroy on Equity Jurisprudence (3d Ed.), § 446.

This is in accordance with the great weight of authority. See Kettering v. Eastlack, 130 Iowa, 498, in which is cited Lyman v. Gedney, 114 Ill. 388; O’ Connor v. Tyrrell, 53 N. J. Eq. 15; Brown v. Norcross, 59 N. J. Eq. 427; Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400; Hull v. Sturdivant, 46 Me. 34. See, also, Fry on Specific Performance (4th Ed.), §§ 140-164; Waterman on Specific Performance, § 22; Long v. Bowring, 33 Beav. 585.

In the case of Daily v. Litchfield, 10 Mich. 29, the complainant sought a specific performance of an agreement for the exchange of lands. The contract contained a clause which reads as follows:

“ Either party forfeiting the above contract, by failing to comply therewith, is to forfeit to the opposite party the sum of fifty dollars, as 'liquidated damages for the nonperformance thereof. ”

It was claimed by the defendant that by the terms of the agreement the parties had agreed upon the stipulated damages which either party is to pay in case of a breach; that these damages are agreed upon as a substitute for performance; and therefore that either party had the option to perform or to pay the $50 agreed upon. In answer to this claim the court uses the following language:

“ It is sufficient answer to this to say that, though the parties have called this sum stipulated damages, yet as it applies to several different stipulations of very different degrees of importance, and by the terms of the stipulation would be payable equally on the failure to perform the least as of that to perform the most important, or the whole of them together, it is, in legal effect, but a penalty and not stipulated damages, since it is evident the parties themselves could not have treated it as a mere compensation for actual damages. Jaquith v. Hudson, 5 Mich. 123. As a penalty it is no objection to specific performance. 2 Dart on Vendors & Purchasers (5th Ed.), p. 1061, and note 1. We must therefore consider the case on pleadings and proofs.”

See, also, Watrous v. Allen, 57 Mich. 362. A case much in point is Ropes v. Upton, 125 Mass. 258.

In the case before us it appears that neither party to the contract was consulted by the scrivener in relation to the penal clause that was inserted therein. The subject-matter of the contract was of the value of several thousand dollars. The properties involved were situate in cities a considerable distance apart. To act intelligently it became necessary to visit the respective properties, to have abstracts of title made, and to have the latter examined. It is very clear that the parties did not suppose they would be relieved from performing the contract by paying $100, and we think it ought not to be so held.

The solicitors for defendant say:

Should this court affirm the decree, we submit it should be without costs against the defendant, as it is conceded the deed tendered was not according to the contract,” citing Morris v. Hoyt, 11 Mich. 9.

It is an answer to this contention to say that the refusal to perform the contract was not based upon the failure to tender a deed according to the contract, but was upon the claim made all through the litigation that, if defendant was willing to pay the $100, he was relieved from performing the contract. A deed was tendered before the decree below was made with which no fault is found.

The decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CAMPBELL v. CAMPBELL.
    1. Divorce — Grounds—Refusal to Cohabit.
    Refusal of a wife to cohabit with her husband for three years is extreme cruelty warranting a divorce.
    2. Same — Charges of Infidelity.
    The action of a wife in repeatedly without cause accusing her husband of the offense of adultery is extreme cruelty warranting a divorce.
    3. Same — Alimony—Division of Property.
    Where a husband was given a divorce on the ground of extreme cruelty, and the wife was possessed of property of the value of $1,488, and the husband property of the value of $12,200, a decree allowing her to keep all her property and all the household goods, and requiring him to pay her $5,000, is not unfair to her, there being no children to support.
    Appeal from Wayne; Rohnert, J.
    Submitted June 18, 1907.
    (Docket No. 112.)
    Decided July 1, 1907.
    Bill by Henry Campbell against Sarah A. Campbell for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      George X. M. Collier, for complainant.

      Richard I. Lawson, for defendant.
   Moore, J.

The bill of complaint in this cause was filed praying for divorce on the ground of extreme cruelty.

The complainant alleges in his bill that since November 16, 1903, the defendant has absolutely refused to occupy the same sleeping room and refused to cohabit with him; that she refused to prepare his meals, attend to and care for his sleeping room, clothes, and washing; that she took up the carpet in his sleeping room, and, when requested by him to replace it, as it was uncomfortable in cold weather, replied that the bare floor was good enough for him; that the defendant took from the complainant’s bed two new blankets he had purchased to make himself comfortable, and would not let him have them; also that the defendant has frequently charged him with infidelity, without just cause, and has charged him with keeping the society of bad women.

The defendant answered, denying the acts of cruelty charged, and alleged that the cause of their domestic unhappiness was the fault of the complainant, in that the complainant has set about with deliberation to divorce the defendant. The parties were married January, A. D. 1865, in Nankin, Mich. The defendant lived with complainant as husband and wife until November 16, 1903. There were two children- born to them. The case was heard in open court. The case is brought here by appeal.

Some of the alleged acts of cruelty are explained by the defendant, but the record discloses that for three years defendant refused to cohabit with complainant. He testified unqualifiedly that she refused to cohabit with him. In her testimony the defendant said:

“The reason that I have not occupied the same bedroom with Mr. Campbell for the last three years is because he is not as I thought he should be.”

When she gave her testimony, she then expressed a willingness to resume her marital relations with him. Refusal of cohabitation has repeatedly been held to be a ground for divorce. Menzer v. Menzer, 83 Mich. 319; Whitaker v. Whitaker, 111 Mich. 202. The testimony clearly shows that defendant repeatedly accused complainant in the presence of others with the offense of adultery. The following occurred in her examination as a witness:

‘ ‘ Q. Why did you tell Miss Stanners that he was going with bad women ?

“A. Because I supposed he was.”

The record is barren of testimony which would warrant the inference of adultery. We think the court was right in granting the decree. See Whitmore v. Whitmore, 49 Mich. 417; Donaldson v. Donaldson, 134 Mich. 291.

Complaint is made in relation to the disposition of the property. Inventories of the property owned by the respective parties were filed. These showed the wife to have property valued at $1,488 and the husband to have property of the net value of $12,200. The decree allows defendant to keep all her property, gives her all the household furniture, and requires the husband to pay her $5,000. There are no children to be supported. We think defendant cannot complain of this division of property.

The decree is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blaie, J.

text:
    LOVE v. FLITCRAFT.
    Judgment —Res Judicata — Judgments Operative as Bar — Divisible Cause oe Aotion.
    Plaintiff brought attachment against defendant and declared for two payments on a building- contract only one of which was shown by the proofs to be due at the time of suing out the writ. Plaintiff then, with leave of the court, withdrew the second installment from consideration of the court and took judgment for the installment due. Held, that the judgment did not bar a subsequent action on the second installment.
    Error to Muskegon; Davis, J., presiding.
    Submitted June 19, 1907.
    (Docket No. 89.)
    Decided July 1, 1907.

      Assumpsit by Robert Love against Allen J. Mitcraft for work and labor, and materials furnished. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Cross, Lovelace & Ross, for appellant.

      Nims, Hoyt,'Erwin & Vanderwerp, for appellee.
   Blaie, J.

Plaintiff sued defendant upon the common Counts for $250, claimed to be due him for work, labor, and material furnished in building a boathouse foundation, slip, etc. defendant pleaded the general issue, and gave notice that the work was performed under a special contract, and that the terms thereof had not been complied with; that he claimed to recoup damages, and also pleaded former recovery. Judgment was rendered for the plaintiff, by direction of the court, for the full amount of his claim.

It appeared upon the trial of this case that the plaintiff, on the 1st day of August, 1905, caused to be issued out of the circuit court for the county of Muskegon a writ of attachment against the defendant. In the affidavit for the writ plaintiff claimed that there was then due him the sum of $500. Under this writ he caused property of the defendant to be attached to the value of $2,025. Defendant gave bond in twice the amount claimed to be due, in accordance with the statute, and the property was returned to him. Plaintiff filed a declaration upon the common counts in assumpsit, to which was attached a bill of particulars in the following language:

“To the Defendant:

“ The following is a bill of particulars of the plaintiff’s demand, for the recovery of which this action is brought, to wit:

‘ ‘ For work, labor, and material furnished by the plaintiff to the defendant in constructing foundation for new boathouse, driving additional piles, moving old boathouse, and constructing steps to boathouse, $500.

“ For interest on said amount from June 30, 1905, at 5 per cent, per annum.”

This bill of particulars is the same, substantially, except in amount, as the one in the case at bar. To this declaration defendant pleaded the general issue, and gave notice that the work was performed under a special contract, by which he was to pay $250 in 30 days after the completion of the work, .and 60 days thereafter an additional sum of $250 in full for plaintiff’s services; gave notice that the work was not performed according to contract; and claimed to recoup such damages as he had sustained by reason of such nonperformance. These notices of recoupment are substantially the same as those in the present case. Upon the trial it appeared that there was, according to the contract, only one-half of the payment due at the time of suing out the writ of attachment. Counsel for plaintiff thereupon obtained leave of the court, against defendant’s objection, to withdraw from the consideration of the court and jury the second installment of $250. The jury rendered a verdict for the amount claimed, which defendant paid. Plaintiff afterwards brought this suit. Defendant claimed the right to show at. this trial the breaches of the contract on the part of plaintiff, but the court refused to receive proof thereof. He also asked the court to direct a verdict in his favor, upon the ground that the former recovery was res judicata; but his motion was overruled, and a verdict directed in favor of plaintiff. To all these rulings defendant duly excepted, and on them has assigned error.

The only assignments of error discussed in appellant’s brief are those raising the question of res adjudicata.

Counsel for appellant contend that this case is within the rule' laid down in Dutton v. Shaw, 35 Mich. 431. We think the cases are palpably distinguishable. In Dutton v. Shaw, the plaintiff sought, by withdrawing a part of his claim which he had failed to prove, to split up an indivisible cause of action. We have uniformly held that this is not permissible. Andreas v. School District, 138 Mich. 54. . In the case before us the cause of action was divisible, and, as pleaded by defendant, the second installment was not recoverable in the first suit.

Judgment affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    O’DELL v. GOFF.
    1. Wills — Testamentary Capacity — Delusions — Foundation —Evidence—Sufficiency.
    In proceedings to probate a will, contested on the ground that testator’s belief in the illegitimacy of his son was an insane delusion, evidence examined, and held, that there was some evidence that testator’s belief in contestant’s illegitimacy which influenced the making of the will was produced by spiritualistic communications.
    2. Same — Evidence—Admissibility.
    A deposition filed in a suit for divorce, brought by testator in another State against contestant’s mother, in which the witness testifies to her infidelity before contestant was born, is admissible to prove that testator had good grounds to doubt the paternity of his child, there being a presumption that testator knew what the deposition contained.
    8. Same — Spiritualistic- Belief — Effect.
    A belief in spiritualism, like belief in any other form of religion, affords no evidence of insanity.
    4. Same — Monomania.
    A will made in consequence of a monomania, produced by testator’s thinking so continually and persistently upon the subject of spiritualism as to be incapable of reasoning where that subject is concerned, is void for lack of testamentary capacity.

    5. Same — Spiritualistic Communications — Effect.
    A will made in consequence of such extraordinary confidence in spiritualistic communications that testator was impelled to follow them blindly and implicitly is not testator’s will, and is not admissible to probate, and it is immaterial whether this conclusion rests upon the ground of absence of testamentary capacity or upon the ground of undue influence.
    6. Same — Undue Influence — Evidence—Sufficiency.
    In proceedings to probate a will, evidence examined, and held, that there was evidence that testator was a monomaniac upon the subject of spiritualism, that in making his will he was influenced by spiritualistic communications which he was incapable of resisting, and that there was therefore evidence of undue influence.
    7.. Same — Spiritualistic Baits — Evidence.
    In proceedings to probate a will, contested on the ground of incapacity and undue influence induced by monomania on the subject of spiritualism, the truth or falsity of the spiritualistic faith is not in issue, and witnesses should not be permitted to testify that testator was a monomaniac merely because he believed in spiritualism.
    8. Same — Insanity—Evidence—Admissibility.
    Refusal to permit proponents to prove by one who was duly qualified that there was nothing irrational from the standpoint of a spiritualist in testator’s belief that a medium in a trance might do him harm was error, since such testimony would tend to remove from the minds of the jury the impression which might otherwise exist that the particular belief was evidence of insanity.
    9. Same — 'Witnesses— Cross-Examination — Religious Beliefs.
    A witness for contestant, who had testified to lack of testamentary capacity, could not be cross-examined upon the subject of other religions and their effect on testamentary capacity.
    10. Same — Discretionary Rulinqs.
    It was discretionary with the court to refuse to compel one of contestant’s witnesses to state upon cross-examination which of several circumstances indicating insanity was, in his judgment, the most significant.

      11. Same — Paternity — Evidence — Personal Resemblance — Harmless Error.
    Whether evidence of contestant’s resemblance of testator was competent will not be decided upon a record that conclusively establishes paternity in testator, that being the only issue to which the testimony was applicable.
    12. Same — Declarations op Testator — Admissibility.
    Declarations of testator tending to prove lack of testamentary capacity made after the making of the will are admissible.
    13. Costs — Appeal—Prolix Brief.
    Where an excessively prolix brief is filed by appellant, costs-on reversal will include only so much thereof as would have been sufficient to amply present his case.
    Error to Cass; Coolidge, J., presiding.
    Submitted April 13, 1906.
    (Docket No. 6.)
    Decided July 13, 1907.
    B. O’Dell and others presented for probate the last will and testament of John E. Goff, deceased. The will was allowed in the probate court, and Leslie Goff appealed tei the circuit court. There was judgment for contestant, and proponents bring error.
    Reversed.

      A. Lynn Free (M. L. Howell, of counsel), for appellants.

      Lyle & Eby and Harsen D. Smith (Victor M. Gore, of counsel), for appellee.

      As to belief in spiritualism, witchcraft, etc., as affecting capacity to make will or deed, see note to Lewis v. Arbuckle (Iowa), 16 L. R. A. 677.

   Carpenter, J.

This suit is brought to secure the probate of the will of John E. Goff, deceased. The proponents are the executors named in said will. The contestant is the son of the testator. The will in question was made November 3, 1885, when the testator was 66 years old. It has a codicil made September 23, 1897, at which time the testator was 78 years of age. Testator died in 1904, when he was 85 years of age. The will and codicil disposes of testator’s entire estate, aggregating in value $41,000. The residue — constituting the bulk of the estate — is bequeathed “to be used as a nucleus in founding, building and equipping a home for poor and aged mediums.” Only $1,800 is given to contestant, who is described as testator’s “reputed son.” It should also be stated — and this is an important circumstance — that spiritualistic mediums whom the testator had been in the habit of consulting, and through whom he received spiritualistic communications, received small legacies. Testator was married August 6, 1854, to contestant’s mother. In May, 1855, he commenced suit for divorce in the circuit court for the county of Cass, in chancery; charging her with adultery. This suit was dismissed by stipulation, and the parties resumed their marital relations. Contestant, the son, was born in September, 1855. August 5, 1856, testator again commenced suit for divorce. This time he filed his bill in the circuit court for Elkhart county, Ind., and a decree of divorce was granted on the ground of desertion on the 17th of October, 1856.

After the granting of said last-mentioned divorce— which I think it may be assumed was invalid — Mrs. Goff and contestant, her son, went to California to live. There she remarried, and died in 1870. The testator has always believed and insisted that his wife was guilty of adultery, and that contestant was not his son.

He was a man of more than usual business ability. When the Indiana divorce was granted, he was worth only $3,000 or $4,000, and when he died, as already mentioned, he had accumulated an estate of $41,000.

When the will was made, and for many years prior thereto, and from that time until he died, he was a firm believer in the doctrine of spiritualism. He believed that the spirits of the departed communicated with him, hot only through mediums, but directly. He believed that he talked with the apostles. He believed in the materialization of spirits and other spiritualistic phenomena, and one witness testified that he said his will was dictated by spirits. The trial court charged the jury that they might render a verdict finding that the instrument in question was not the last will and testament of John Goff, upon either of the following three grounds:

First. That John Goff was “at the time of making the will laboring under an insane delusion in regard to the paternity of his child, which governed or controlled him in the execution of his will. In the same connection is also involved the question whether he was laboring under an insane delusion that his wife had been guilty of adultery.”

Second. That the will was “the result of undue influence over the mind of John Goff, manifested by the belief that communication from deceased persons had advised him how to make his will by adopting such communications as his guide in making the will and to the exclusion of his own free will and choice.”

Third. That John Goff was “a monomaniac upon the subject of spiritualism to such an extent and intensity as to produce that mental derangement which rendered him incapable of comprehending and appreciating the natural objects of his bounty.”

The jury rendered a verdict in contestant’s favor. We are asked to reverse the judgment entered upon said verdict on various grounds, which, so far as needful, we will discuss.

First. Insane delusion: Was the belief of testator that he was not the father of contestant an insane delusion ? It was certainly a delusion; for on this record we are bound to say that contestant was testator’s son. ( This subject will again be noticed in this opinion.) Was this delusion an insane delusion ? That was a question submitted to the jury. Proponents contend that there was no evidence to warrant the submission of this question, because, they say, “there is no evidence that tends to show ” that this delusion was produced by testator’s belief “in spiritualism or in spirit communications.” We content ourselves with saying there is such testimony. Proponents insist — and in this they may be right — that testator believed in his wife’s adultery and contestant’s illegitimacy before he became a spiritualist. But there is testimony indicating that he would not have continued to believe in said illegitimacy as he did when the will was made had he not received and given implicit credit to spiritualistic communications informing him that contestant was not his son. In short, there is evidence that testator’s belief in contestant’s illegitimacy which influenced the making of the will was produced by spiritualistic communications.

In this connection, we discuss certain objections to the admission and exclusion of testimony relating to this delusion. There was found in the files in the divorce proceedings of the Indiana court a deposition of William P. Bennett (an old and deceased resident of Cass county), wherein he testified that testator’s wife, Rowena Goff, admitted in his presence that she committed adultery with several men at different times and places while she was living with testator and many months before the boy — contestant — was born. This deposition was admissible-, not to prove the facts testified to by the witness, but to prove that testator had good grounds to duobt the paternity of his child. The trial court held it not admissible for this purpose, because there was no evidence that testator had ever seen the deposition. In so deciding the court proceeded upon the assumption that the jury could not infer that the testator, the complainant in the suit, was informed of the testimony which he introduced to establish it. This assumption was erroneous. It is to be presumed that he knew of it. While I have found no case in which this principle is announced, it is recognized in the following : Richards v. Morgan, 4 Best & S. 641; Blanchard v. Hodgkins, 62 Me. 119. Other objections to rulings excluding and admitting testimony upon the subject of insane delusion are made. They are not well taken and require no discussion.

Second. Did testator’s belief in spiritualism destroy his testamentary capacity ? His belief in spiritualism was not evidence of insanity. Bonard’s Will, 16 Abb. N. Y. Prac. (N. S.) 128; Rood on Wills, § 129; In re Spencer, 96 Cal. 448; Will of J. B. Smith, 52 Wis. 543; Buchanan v. Pierie, 205 Pa. 123. One accepts Ms religious faith on 'evidence that is satisfactory to his mind. A court of law will never inquire whether that faith is sound or unsound. It does not possess the machinery for executing such an undertaking. It will content itself with saying — and that is sufficient for the purposes of this case — that one’s religious faith affords no evidence of insanity.

It does not follow, however, that one may not have such a faith in spiritualism as to destroy his testamentary capacity. He may think so continually and persistently upon this subject as upon many other subjects as to become a monomaniac, incapable of reasoning, where this subject is concerned. In that case it should be said that a will made in consequence of such monomania is void for lack of testamentary capacity. Orchardson v. Cofield, 171 Ill. 14 (40 L. R. A. 256). So, too, a believer in spiritualism may have such extraordinary confidence in spiritualistic communications — whether those communications reach him through mediums or are received by him as he believes directly — that he is impelled to follow them blindly and implicitly, his free agency is destroyed, and he is constrained to do against his will what he is unable to resist. A will made under such circumstances is obviously not the will of testator, and is therefore not admissible to probate. "We need not speculate as to the ground upon which this conclusion rests. It is utterly unimportant whether it rests upon the ground of absence of testamentary capacity, or, as held by the trial court, upon the ground of undue influence. See, also, Robinson v. Adams, 62 Me. 369. It is sufficient to say that a will brought about by an influence 'which the testator could not resist is not his will.

Tested by the foregoing principles, which were recognized by the trial court, it cannot be said that there was no evidence upon which these issues should have been submitted to the jury. Indeed, we do not understand that it is claimed that there was no evidence tending to prove that testator was a monomaniac on the subject of spiritualism. There certainly was such testimony. There was testimony tending to prove that testator’s faith in spiritualism had led him to many strange conclusions; for instance, that- on one occasion a spirit brought him a crisp new $5 bill, and that on another occasion a spirit — designated by him as an evil spirit — tried to take his life with a butcher knife when he was lying in bed. There is evidence, too, that his mind dwelt upon the subject of spiritualism so persistently and profoundly as to make him incapable of reasoning when that subject was concerned. In short, there was evidence tending to prove that he was a monomaniac upon the subject of spiritualism. It is claimed, however, that there was no testimony tending to prove that the will was procured by undue influence. Undue influence as here used means that spiritualistic communications overcame the testator’s mind, and compelled him to make the will in question. There certainly was testimony tending to prove that in making the will testator was influenced by spiritualistic communications. And it is a significant circumstance (see Matter of Beach, 23 App. Div. [N. Y.] 411), already alluded to, that many of these communications came through mediums who are both directly and indirectly beneficiaries in the will. From testator’s actions and d eclarations the inference might be drawn that he was incapable of resisting the influence of these communications. There was therefore evidence of undue influence.

In this connection we consider objections to rulings admitting and excluding testimony upon the subject of testamentary capacity. As the truth or falsity of the spiritualistic faith was not at issue in this suit, it was proper for the trial judge to exclude testimony tending to prove it true — herein is included testimony showing the foundation upon which spiritualism rests — and it was improper for him to admit, as he did, testimony tending to prove it untrue. For the same reason, it was improper for contestant’s counsel to suggest during the taking of the testimony and to argue at the conclusion of the testimony that spiritualism was untrue. According to the foregoing rule, witnesses should not have been permitted to testify that testator was a monomaniac merely because he believed in spiritualism. Generally speaking, this rule was regarded. I think, however, in the case of contestant’s witness George Longsduff this rule was disregarded. The witness himself testified on cross-examination:

“My definition of a ‘monomaniac’ [and he had testified that testator was a monomaniac] would include any spiritualist who believed that, they could receive communications from the departed.”

The court refused to permit proponents to prove by one who was duly qualified to give such testimony that there was nothing ‘ ‘ irrational from the standpoint of a spiritualist in the belief of John Goff [and he had such a belief] that a medium in a trance might do him harm.” This was error. The excluded testimony would tend to remove from the mind of the jury the impression which might otherwise exist that the particular belief above referred to was evidence of insanity.

We have examined the other complaints respecting the rulings admitting and excluding testimony upon the question of testamentary capacity. None of these rulings were prejudicial. Most of them were clearly correct. As an instance of such rulings, we mention the refusal of the court to permit proponents’ counsel to cross-examine certain witnesses of contestant, who had testified to lack of testamentary capacity, upon the subject of other religions and their effect on testamentary capacity. This ruling was correct. See In re Hogmire’s Appeal, 108 Mich. 410. Other rulings related to questions within the discretion of the trial court. As an instance of these latter rulings, we mention the refusal of the court to compel one of contestant’s witnesses upon cross-examination to state which of several circumstances indicating insanity was, in his judgment, the most significant.

Third. Testimony that contestant resembled testator: Contestant was permitted to prove by various witnesses that he resembled testator. The purpose of this testimony was to prove that testator was contestant’s father. Proponents contend that this testimony was incompetent. This is a question which, upon this record, we are not called upon to determine; for the testimony was not prejudicial. It could be prejudicial only upon the assumption that the jury used it as evidence that contestant was testator’s son. Their use of the testimony for that purpose would not injure proponents, because upon this record the fact that contestant was testator’s son was conclu. sivelv established. Contestant was born in lawful wedlock, and there is no evidence whatever that his mother committed adultery (though there is evidence that testator entertained that belief). It will be perceived that, according to our ruling, it was quite unnecessary for the contestant to introduce the testimony under consideration, and the trial court might properly have excluded it, and he may properly exclude it upon a second trial if the record is like the one before us, because it relates to an issue which the jury will not be called upon to determine.

Fourth. Declarations of testator after the niaking of the will: Complaint is made because the trial court permitted contestant to prove various declarations of testator tending to prove lack of testamentary capacity made after the making of the will. This testimony was properly admitted under the rule recognized in Spencer v. Terry's Estate, 133 Mich. 39.

Proponents’ brief is a printed volume containing 269 pages. In taxing costs contestant will be required to pay only for a brief of -80 pages. Such a brief would have been ample and more serviceable.

Judgment reversed, and new trial ordered, with costs.

Mo Alva y, C. J., and Grant, Blair, and Moore, JJ., concurred.