text:
    Ralph Hamilton, By His Next Friend, v. The City of Detroit.

      Municipal corporations — Defective streets.

    The liability of a city is coextensive with its duty respecting the ordinary use of its public streets, but such liability cannot be extended beyond that limit, where a child, attracted by the machinery employed in the construction of a public sewer, is thereby induced to climb upon or over the barriers’ or guards into the excavation; it appearing that that portion of the street was closed against travel, and guarded against accident to persons in the ordinary use of the same.
    Error to Wayne. (Lillibridge, J.)
    Submitted on briefs April 18, 1895.
    Decided May 28, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    Tbe facts are stated in tbe opinion.

      Charles C. Stewart (S. O. Van Be Marie, of counsel), for appellant.

      John J. Speed, for defendant.
   McGrath, C. J.

Defendant bad let to one Porath tbe contract for tbe construction of a public sewer in. Wabash avenue. Porath, for the purpose of - enabling him to tunnel, had put down a shaft about 6 feet square, and over it had erected a derrick. On the north side of the derrick a platform had been erected, some 5 or G feet from the street level, extending north 30 feet. The clay was elevated in buckets to a point above the platform, and then dumped into a light car. The car was then run along the platform, and the earth dumped over the side of the platform. Plaintiff, who was about five years old, after work had ceased for the day, had climbed up to the top of the platform, and, while playing with the car, fell from the south end of the platform down into the shaft, and was injured.

That part of the street was closed against travel, and guarded against accident to persons in the ordinary use of the street. The injury cannot, therefore, be said to have resulted from a defective condition of the street, or from a failure to guard the excavation against injury to persons using the highway. In this respect the case differs from City of Detroit v. Corey, 9 Mich. 164. In Storrs v. City of Utica, 17 N. Y. 104, cited in support of that opinion, the liability of the city is put on the ground of its duty to keep the streets in repair. In Bailey v. City of New York, 3 Hill, 531, the dam which gave way was owned by the city.

In Lesher v. Navigation Co., 14 Ill. 85, the company was authorized by its charter to enter upon plaintiff’s land, and take therefrom material for the construction of its works, by making compensation therefor, and the court held that the privilege which the charter conferred upon the company devolved upon the contractors for the same purpose; in other words, that the company could not, by an agreement with the contractors that the latter should furnish the material, authorize such contractors to enter upon plaintiffs’ land, and take the material, and deprive the owners of the material of the right to claim compensation therefor from it. The contractors’ justification, in an action against them for trespass, would have been the authority conferred upon the company, and, so far as plaintiffs were concerned, the taking was by the company under the authority so conferred. In no sense was the agency a general one, so as to make the company liable for the debts or torts of the contractors.

In the Corey case the Court held that the city took its power with the'understanding that it should be so executed as not unnecessarily to interfere with the rights of the public in the streets, and that all needful and proper measures would be taken, in the execution of the power, to guard against accidents to persons lawfully using the highways. The liability of the city is coextensive with its duty respecting the ordinary use of the highway, but cannot be extended beyoDd that limit to a case like the present, where a child had been attracted by the machinery employed in the construction or operation of the work, and thereby induced to. climb upon or over the barriers or guards, into the excavation. This conclusion renders it unnecessary to consider the other questions raised.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    Mott Gleason v. David Fitzgerald, Survivor, etc.

      Novation — Statute of frauds.

    I. A firm of railway contractors sublet tbe work, reserving tbe right to pay off the laborers employed by the subcontractors, who assigned to the contractors all moneys due said laborers. The liability of the contractors to the laborers was limited to the amount so assigned, and to the amount due and payable to the subcontractors. The subcontractors abandoned their contract, apd gave time checks to the laborers for the amount due them. The laborers sold their checks, and the contractors arranged with the purchaser, with notice that he was to release the subcontractors, to pay said checks, which were charged up in account against the subcontractors. And it is held that a complete novation was effected, and that the contractors could not defend on the ground that they had in fact overpaid the subcontractors.
    2. Such an agreement is not within the statute of frauds.
    Error to Lake. (McMahon, J.)
    Submitted on briefs April 19, 1895.
    Decided May 28, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Thomas F. McGarry and George E. Nichols, for appellant.

      Charles A. Withey, for plaintiff.
   Grant, J.

July 18, 1889, the defendants made a contract with the Chicago & West Michigan Railroad Company by which they agreed to lay and ballast the track between Baldwin and Traverse City. The work was to be done under the instruction and supervision of its chief engineer, whose decisions were to be final and conclusive on all matters of dispute. The defendants sublet this work to the firm of Lambert & Van Norman. The contract contained the following provision:

“That the said parties of the second part reserve the right to pay off the laborers who work for said first party under this contract, and the said party of the first part, for and in consideration of the sum of one dollar, hereby sells, releases, and assigns unto the party of the second part all moneys and sums of money due to laborers under this contract, and in execution of the same; but it is expressly agreed that the party of the second part assumes no liability to the laborers who do worlc in execution of this contract, over and above the amount assigned by the party of the first part to the party of the second part, and not over and above the amount due and payable to the party of the first part.”

Lambert & Van Norman continued for some time to work under the contract. A dispute arose between them, and Lambert & Van Norman finally abandoned it. Lambert & Van Norman, through their time keeper, gave time checks to their workmen; certifying the number of days’- work performed, the rate per day, the deductions, and balance due, and made payable at Hannah, Lay & Co.’s Bank, at Traverse City, Mich. Lambert & Van Norman had no money at the bank with which to pay these checks. Plaintiff insists that he purchased these time checks, and made an arrangement by which the defendants agreed to pay them; that he released Lambert & Van Norman from liability; and that a complete novationwas effected. It is insisted on the part of the defendants that a novation was not proven, and that before a novation could take place a valid indebtedness must be shown to exist between Lambert & Van Norman and the defendants. - ’ .

It is not necessary, under the facts of this case, to determine whether the defendants were in fact indebted to Lambert & Van Norman. They had assigned to the defendants.all moneys due from them to- their laborers.If, therefore, the defendants had agreed to pay the plaintiff, and he had released Lambert & Van Norman, it- is entirely clear that they, could not defend upon the. ground that they had in fact overpaid Lambert & Van Norman. The statute of frauds has no application to such case. The evidence on the part of the plaintiff tended to show that he made the agreement with defendants and Lambert & Van Norman, that defendants made the promise to pay with notice that Lambert & Van Norman were to be released, and that these time checks were in fact charged up against Lambert & Van Norman in an account rendered by the defendants. It is unnecessary to review the evidence at length. The question was fairly left, to the jury, under proper and explicit instructions, and there was ample evidence to support their Verdict. The case is controlled by Mulcrone v. Lumber Co., 55 Mich. 622.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    William H. Stevens v. William E. Pendleton and William D. Morton.
    [See 83 Mich. 342; 85 Id. 137; 94 Id. 405.]

      Evidence — Directing verdict.

    A land-owner agreed to advance a specified sum, to be used in erecting a hotel on the land, which the party to whom the advances were to be made was to lease for a term of years at a fixed rental, payable quarterly in advance. After the completion of the buildings a lease was executed between "the parties,' by which the rent was made payable at the end of each quarter. The landlord brought suit on the original agreement to recover rent, and the defendants sought to show that the change in the time of payment of rent was agreed upon between the plaintiff and the tenant, and the ■ tenant testified in support of said claim. And it is held that it is apparent that the witness based his claim of a change in the agreement upon the fact that the lease contains the clause as to payment at the end of each quarter, or else that he depended upon an alleged oral agreement, made prior to the making of the original contract, contradicting said contract; that this testimony cannot be construed as tending to show that a change was agreed upon, particularly when the testimony of the attorney who prepared said original agreement and said lease, that there was no agreement for a change in the time of payment of the rent, and of the plaintiff, that he never authorized any such change, is taken into account.
    Error to Wayne. (Hosmer, J.)
    Submitted on briefs May 1, 1895.
    Decided May 28, 1895.

      Assumpsit. Defendants bring error.
    Affirmed.
    The facts are stated in the several opinions.

      Dicldnson, TJmrber & Stevenson, for appellants.

      Barbour cG Rexford, for plaintiff.
   Montgomery, J.

This case has been before the Court on three former occasions, and is reported in 83 Mich. 342, 85 Id. 137, and 94 Id. 405. The facts sufficiently appear in'the former opinions. It was held, when the case was here before, that the determination in the chancery proceeding against defendant Pendleton, that there was a mistake in preparing the lease, was not conclusive on the surety, but it was held, in effect, that the force of the lease as evidence had been broken by the chancery decree, and that the burden of proof rested with the defendants to- show that there was an agreement to effect a change from- the terms of the original contractu On the last trial tile circuit judge directed a verdict against defendants on the ground that the testimony had no tendency to show that such an agreement had in’ fact been, made, and, on the present appeal, the sole question discussed in the brief of defendants’ counsel is whether this ruling is justified by the evidence. Upon this subject Mr. Pendleton testified, in. different places in the record, as follows:

“Q. What arrangement was there between you and Stevens by which the rent was to be payable at the end of the quarter rather than at the beginning of the quarter? Was there any different arrangement than that mentioned in this preliminary agreement?
“A. The only arrangement was that the rent was to be paid at the end of the quarter; at the end of the three months I was to pay the rent. That was all between Mr. Stevens and I and Mr. Woodruff. Mr. Woodruff understands it; he made the papers out.
“Q. Was the payment to be made according to the arrangement in this first agreement between you and Mr. Stevens?
“A. Well, it was to-be paid every three months.
“Q. Was it to be paid according to the arrangement stated in this agreement [referring to the original agreement] ?
“A. I suppose, if we both signed it, it was. * * ■ *
“Q. Was there any subsequent arrangement between-you and Mr. Stevens that varied the terms of that writing?
, “A. No, not that I know of. It was mentioned in the lease.
“Q. How did it come to be mentioned in the lease differently?
“A. I don’t know. That is the way it was understood, and that is the way it was made. I don’t know that it was to be made. It was to be paid every three months.
“Q. There was no talk between you and Mr. Stevens with reference to making-any changes, was there?
“A. Not making any changes; no, sir.
“Q. So that you don’t know how it came about?
“A. I could not say. I know it was to be paid every three months. That was the first agreement.
“Q. Every three months; how?
“A. It was to be paid at the end of every three months, —at the end of each quarter. That is the arrangement we made when I took the lease.
“Q. That was the arrangement when you took the lease?'
“A. Yes, sir. * * *
“Q. Did you have any talk with Mr. Woodruff at the time of the drawing of the second lease as to the terms when the rent was to be payable?
“A. At the end of each quarter. The lease was to he the same as the other. To be paid at the end of each quarter.
“Q. Did you have any conversation with him to that effect?
“A. That was the way it was to be paid, — th,e lease was.
“Q. Was there any time when it was not agreed that you should pay the rent at the end of the quarter from the time that the lease was executed?
“A. No, sir. At the end of the quarter; that was the way. * * *
“Q. That is to say, it was never understood, after the execution of that writing, any different from what the writing expresses?
: “A. I don’t recollect about that writing, but that was ■the arrangement of the lease. - At the end of every three months I was to pay the rent.
■' “Q. And the rent Was tó be in accordance with this .writing, was it not? • ■
“A. Well, I don’t know how that is particularly; I have forgotten.
“Q. You don’t know of. any writing to the contrary, do you?
“A. I don’t know anything about it; only I know that the rental was to be paid at the end of every three months.
“Q. You .don’t know of any contract to the contrary, by which the. lease was to be made different from this [referring to the original contract] ?
“A. We had no talk different from it; only from the first agreement it was to be paid every three months. Mr. Stevens was satisfied, and that was all that was necessary for me.”

It is apparent from these quotations that the witness is basing his claim of a change in the agreement upon the fact that the lease contains the clause, or else that he depends upon an alleged oral agreement,, prior to the first contract, which contradicts that agreement. We think this testimony cannot be construed as tending to show that a change was agreed upon, particularly when the testimony of the witness Woodruff, that there was no such agreement, and the witness Stevens, that he never authorized any such change, is taken into account.

It is contended that the testimony is substantially the same as that introduced on the former trial, and that the Court held in that case that the question was for the jury. - The testimony of the plaintiff himself, however, did not appear in the former record, and it was thought that, in the absence of direct evidence of the want of authority or of intention on the part of the plaintiff to change the terms of the preliminary agreement, inferences were open of an intention, in which the minds of the parties met, to make a change in the terms of the agreement. But this inference is now disproved by direct testimony, and there being no evidence of; an actual agreement, and there being direct proof that there was no intention on the part of the plaintiff to depart from the original' agreement or to give authority to his agent to do so, we think the court was justified in directing a verdict. ¡

The judgment will be affirmed.

The other Justices concurred.


text:
    Rudolph Munzer and Frederica Zimmerman v. Henry Stern.

      Fraudulent purchase — Rescission—Replevin—Return of property — ' Evidence.

    1. With a view to the amicable settlement of differences which had arisen between the vendors of a lot of goods and the vendees, the vendors claiming that the goods were fraudulently purchased, an agreement was entered into under which the vendees returned to the vendors a portion of the goods, and were to pay for the remainder upon the terms of the original sale, in consideration of which the vendors were not to bring suit for the recovery of the goods so retained until the bill for the same became due. Sixteen days after entering into said agreement, the vendees gave a trust mortgage on their entire stock to secure certain alleged creditors, most of whom were relatives of one or the other of the vendees. In replevin by the vendors for the goods so retained, there was evidence to support the conclusion, which the jury must have reached in rendering a verdict for the plaintiffs, that the vendees made the original purchase with intent to defraud, and that they entered into said agreement with intent to retain the goods not surrendered for the like purpose. And it is held that the plaintiffs were justified in rescinding the contract and retaking the goods.
    2. It was not necessary for the plaintiffs to return the goods surrendered to them by the vendees before bringing replevin for the goods which the vendees retained.
    8. Testimony is not admissible to rebut a statement made by ' counsel in his opening to the jury which there is no evidence ' to sustain.
    4. It was error to permit the plaintiffs’ attorney to testify to a statement, made by the representative of other vendors in the absence of the vendees, of a conversation he had with a stranger in a street ear that he had sold the vendees a large bill of goods, and that the representative further said that he had ascertained that the vendees had purchased several thousand dollars worth more than they had gotten of him.
    Error to Kalamazoo. (Buck, J.)
    Argued May 1, 1895.
    Decided May 28, 1895.
    Replevin. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Howard & Boos and Boudeman & Adams, for appellant.

      Osborn, Mills & Master, for plaintiffs.
   Grant, J.

A firm by the name of Livingston & Block was engaged in the dry goods amd retail cloak business in the city of Kalamazoo. In the summer of 1893 plaintiffs sold to this firm cloaks of the value of $2,728.50, shipping the same in July or August. About August 29 the plaintiffs learned that Livingston & Block had purchased a much larger amount of goods than formerly, and that they had been shipping goods away. Munzer thereupon went to Kalamazoo; intervewed Livingston & Block; at first tried to obtain payment, although the purchase price was not due until January following, by informing Livingston & Block that they were in need of money, and offering a large discount for cash payment, and, failing in this, charged them with shipping away goods, and demanded a return of at least a part of the goods which plaintiffs had sold to them. Livingston & Block admitted to Munzer that they had shipped away goods, but none purchased of the plaintiffs, and there is no evidence-that at that time they had done so. Livingston & Block refused to surrender any of the goods, and Munzer returned to Chicago, leaving the matter in charge of plaintiffs’ attorneys, Osborn & Mills. Mr. Mills shortly thereafter interviewed Livingston & Block, and testified that he informed them of plaintiffs’ claim that they had purchased more goods than usual, and had shipped goods away, and that Mr. Block denied having shipped away: any goods. At the second interview Mr. Mills informed Livingston & Block that he was instructed to replevin the goods, and should do so at once unless a compromise was effected, whereupon a proposition was made, which, was submitted to plaintiffs by their attorneys, assented-to by them, and on September 2, 1893, incorporated into the following contract:

“Whereas, R. Munzer & Company, of Chicago, Illinois, has heretofore sold and shipped to Livingston & Block,, of Kalamazoo, Michigan, two bills of cloaks, one amounting to $71 and one to $2,657.50, said bills being dated December 1, 1893, due in 30 days, with 7 per cent, discount if paid in 10 days and 6 per cent, discount if paid in 30 days; and
“Whereas, a misunderstanding has arisen between the parties in regard to said bills of cloaks; and
“Whereas, it is desired by all parties to settle said dif-. ferences amicably:
“Now, therefore, it is hereby agreed between the parties that said Livingston & Block shall return to said R. Mun-' zer & Co. $1,600 worth of said cloaks, and that the same shall be received by R. Munzer & Co. in payment of said bills to that amount, and that said Livingston & Block, shall keep the balance of said cloaks, and shall pay for the same upon the terms of the original sale; that is to say, they shall pay for the same on January 1, 1894, and by so doing said Livingston & Block have a discount of 6' per cent., and, if said Livingston & Block so desire, they may pay for said cloaks on December 10,1893, less a dis-. count of 7 per cent. The cloaks that are to be reshipped' to R. Munzer & Co. are to be shipped this day. And in consideration of the foregoing said R. Munzer & Co. are not to bother or disturb said Livingston & Block in the> possession of the cloaks retained by them, or to bring; suits for the recovery thereof, until the bill for the same becomes due, as herein agreed.”

Livingston & Block reishipped the goods according to this contract. On September 18 Livingston & Block executed a chattel mortgage on the entire stock to the defendant, Stern, as trustee, to secure certain alleged creditors, most of whom were relatives of either Livingston or Block. Between that date and the close of the month 15 replevin suits were brought against Stem by the creditors of Livingston & Block to recover goods claimed to have been purchased fraudulently. Plaintiffs also brought this. suit of replevin, and recovered $849 worth of their goods out of $1,128.50. Verdict and judgment were for the plaintiffs.

The defendant requested the' court to direct a verdict for the defendant, for the reason that under the evidence the plaintiffs were fully advised of the circunde stances and conditions surrounding the case, and entered into the compromise agreement with full knowledge of the facts. The court instructed the jury that the plaintiffs by this agreement waived every right to bring suit in replevin because of any claim on their part that the goods were fraudulently purchased, and that they could not repudiate the agreement unless they had shown that the plaintiffs or their agents were misled into making such agreement by reason of some fraud practiced by Livingston &' Block, and that they must show that some active fraud was perpetrated to induce them to enter into said' agreement. We think the instruction was correct. If the jury believed the evidence on the part of the plaintiffs, — which, of course, they did, — they were justified in-reaching the conclusion that this compromise agreement was not entered into in good faith by Livingston & Block; that they were then hopelessly insolvent; that they had purchased,, at a time when business was depressed, nearly five times the usual amount of their purchases, that they did. this without intending to pay for them; that they themselves, without the knowledge of their clerks,’ secretly packed and shipped a large amount of goods to fictitious consignees; and that they sold goods at cost less a discount of from 10 to 18 per cent., and that some were shipped in the original packages. There was other evidence upon this point, which it is unnecessary to state. These things, were done within a few days after the receipt of the goods. Plaintiffs had the right to assume that this agreement was made with a view to the continuance of their business, whereas the evidence on plaintiffs’ part tends strongly to show that they had no such intention. There was evidence to sustain the finding not only that they purchased these goods and others with intent to defraud, but also that they entered into this agreement with intent to retain the goods mentioned therein for the like purpose. In such case the plaintiffs' were justified in rescinding the contract and retaking their goods.

It was not necessary for the plaintiffs to offer to return the goods obtained by the agreement before bringing replevin for the remainder. Such action would be an idle ceremony, not required by the law. Neither does the law require a party to tender back or surrender that to which he is entitled. Livingston & Block had paid nothing. Their purchase was fraudulent. Both the original purchase and the compromise agreement were tainted with fraud. By retaking the remainder of the' goods, the plaintiffs placed themselves in the situation in which they were before the perpetration of the fraud,' and this was their clear legal right. The general rule requiring the surrender, or offer to surrender, what has been received, upon the rescission of a contract voidable for fraud, is not one of universal application, and has many exceptions. It does not require unreasonable or impossible things to be done. Sloane v. Shiffer, 156 Penn. St. 59, 65; Insurance Co. v. Hull, 51 Ohio St. 270; Pearse v. Pettis, 47 Barb. 276; Smith v. Salomon, 7 Daly, 216; Montgomery v. Pickering, 116 Mass. 227. The rule has no application to the present case.

The only remaining question arises upon the admissibility of evidence. Mr. Mills was permitted to testify to a conversation between himself, Mr. Munzer, and one Einstein, who represented a New York firm who had sold goods to Livingston & Block. Livingston & Block were not present, and, among other things, Mr. Mills testified to a statement made by Einstein of a conversation he had with a gentleman, whose name was not given, upon a street car in New York, that he had sold Livingston & Block a large bill of goods, and that Mr. Einstein further said that he ascertained that they had purchased several thousand dollar's more than they had gotten of him. It is attempted to support its admission upon the opening-statement to the jury of counsel for defendant that they would show that Mr. Munzer was the sole cause of all the difficulty in which Livingston & Block were involved, and that he had written to various creditors for the express purpose of breaking up their business. It was furthermore insisted that this conversation was substantially told to Livingston & Block by .Mr. Mills. The admission of the testimony cannot be justified under any rule of evidence. The opening statement of counsel did not make it competent. It was hearsay. Testimony is not admissible to rebut a statement made by counsel which there is no evidence to sustain. We do not find that the most damaging statements in this conversation were repeated to Livingston & Block by Mr. Mills. The record states that the defendant introduced evidence tending- to controvert that given by the plaintiifs. We do not, therefore, feel at liberty to hold that this was error without prejudice.

For this reason judgment must be reversed, and a new trial ordered.

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


text:
    Cornelia G. Fuller v. The City of Grand Rapids.
    Municipal corporations — Paving—Widening roadway — Rights of abutting owner — Conversion.
    1. The resolution of the common council of a city, declaring the paving of a street to be a necessary public improvement, was silent as to the width of the roadway. The estimate of the board of public works, previously made and submitted to the council, specified a roadway 38 feet wide, being the width of, the roadway as then in use. Before the contract for paving the street was entered into, the plans and specifications were filed, showing the roadway to be 42 feet wide, and bids were solicited on such plans and specifications, which had been adopted by the board of public works and council, and the contract was let accordingly. And it is held that the change in the width of the roadway did not vitiate the proceedings; citing Williams v. City of Detroit, 2 Mich. 560; Davies v. City of Saginaw, 87 Id. 439.
    2. Where land has been appropriated to the public use for street purposes, either by condemnation proceedings or by dedication, the owner, if by the former method, has been compensated in damages for the taking of the land, and, if by the latter method, he has waived compensation, except as he may have considered himself benefited by the construction of the public highway; and in either case the municipality acquires the right to use the entire street for public travel.
    3. The construction of the roadway in such a street of a width less than that of the street does not bind the municipality to maintain the roadway at that width for all time, but it may increase or decrease the width of such roadway as in its judgment the needs of the public demand.
    4. A roadway of a width less than that of a city street was used for some years, and an adjoining lot owner, at his own expense, constructed a stone wall along the curb line of the roadway and to its full height, and over the space between the roadway and the line of his lot constructed a plank sidewalk, all on his own motion, and without any contract with the city. And it is held that the silent acquiescence of the city in the construction of said wall and walls did not biñd it either to permit the wall and walls to remain, or to remove and. rebuild the same, when public necessity required that the roadway should be widened.
    5. A contract was awarded to repave the roadway to an increased width, and the owner of the lot refused, on due notice, to remove the wall, built as aforesaid, whereupon the contractor, under the direction of the city, removed the sidewalls, placing the planlss and timber on said lot, covered up the wall, and paved above it. The lot-owner sued the city in trover for the conversion of the wall and sidewalk to its use. And it is held that in removing the walk in order to make the improvement, and in placing the planks and timber on plaintiff's lot, neither the city nor the contractor was guilty of converting said material.
    6. The act of depositing earth on plaintiff’s lot, being unnecessary, was not the natural result of making the improvement, and the trespass was one, therefore, for which the contractor, and not the city, was liable.
    Error to'superior court of Grand Rapids. (Burlingame, J.)
    Submitted on briefs May 3, 1895.
    Decided May 28, 1895.
    Case. Plaintiff brings error.
    Affirmed.
    The*facts are stated in the opinion.

      Sweet, Perldns <£ Judkins, for appellant.

      Henry J. Pellcer (William Wisner Taylor, of counsel), for defendant.
   Grant, J.

December 4, 1886, plaintiff purchased from one John You ell lot 1 of Bryan & Ball’s addition to the city of Grand Rapids, situated on the corner of East Fulton and South Waterloo streets. The deed excepted the .right of way for Fulton street. She was the owner at the time of the grievance complained of. In 1884, Fulton street was opened, from Waterloo street to the Fulton street bridge,.66 feet wide. It became necessary to fill in the street between those points, so that the roadway, which was then fixed at the width of 38 feet, was about 6 feet above the level of the lot. Mr. Youell, at his own' expense and a cost of about $G80, constructed a stone wall along the curb line of the roadway and to its full height. Over the space between the roadway and the line of his lot he constructed a plank sidewalk 14 feet wide, at an expense of about $200. The lot was vacant. On July 5, *1892, a contract was awarded to one Sekell to repave the roadway 42 feet wide. The sidewalks were to be 12 and 14 feet wide. The proceedings prior to the letting of the contract were regular, and need not be given in detail. August 11, 1892, the board of public works served a written notice upon plaintiff to remove the area wall within 1.5 days. She replied to this notice with a written communication, setting forth her claims, and positively .declining to remove the wall, and remonstrating against the action of the city. The contractor then, under the direction of the city, removed the sidewalk, placing the planks and timbers upon her lots, covered up the wall, and paved above it. She thereupon instituted this suit, an action of trespass on the case, for the conversion of the wall and sidewalk to the use of the defendant. The court directed a verdict for the defendant.

The plaintiff’s claims are these:

“1. The resolution of the common council, that the paving of the street was a necessary public improvement, did not carry with it the right to widen the grade or the roadway on a part of the street, and such change was not properly authorized.
“2. The area wall was her property. Even if the city, under its general charter authority over streets, had a right to remove it after taking proper steps, it had no right to appropriate it to its own use. Such appropriation amounted to a taldng, and falls within the constitutional prohibition.
“3. There was an absence of such impartiality as a city is bound to exercise in its dealings with its citizens.
“4. The destruction of the sidewalk and the filling of the area constituted damage, for which, under the circumstances of this case, the city is liable.
u5. The deposit of earth on plaintiff’s lot was a further damage, from which defendant could not escape liability by removing it after this suit was commenced, and as to whether it had been removed at all or not there was a conflict of testimony, raising a question of fact, which should have been submitted to the jury.”

The resolution of the common council declaring the paving of this street to be a necessary public improve-” ment was silent as to the width of the roadway. The estimate of the board of public works, previously made and submitted to the council, specified a roadway 38 feet wide. Before the contract was entered into plans knd specifications were filed showing that the roadway was to be 42 feet wide. Bids were solicited upon these plans and specifications, which were adopted by the board of public works and the council. The change from a width of 38 feet to 42 did not vitiate the proceedings. Williams v. City of Detroit, 2 Mich. 560; Davies v. City of Saginaw, 87 Id. 439.

The action is in trover, and filie question is, did the defendant city wrongfully convert the wall and sidewalk to its use? The land used for this street had been appropriated to the public use either by condemnation proceedings or by dedication. If the former, the owner had been compensated in damages for the taking of the land; if the latter, he had waived compensation, except as he might have considered himself benefited by the construction of a public highway. In either case, the city acquired the right to use the entire street 66 feet wide for public travel. The construction of the roadway, in 1884, to the width of 38 feet, did not bind the corporation to maintain it at that width for all time. Municipal corporations may increase or decrease the width of their roadbeds and sidewalks as in their judgment the needs of the public demand. These are elementary principles, and counsel for plaintiff do not contend to the contrary. The widening of the street necessitated the temporary removal of the sidewalk and the removal or covering of the wall. No contract for its erection was made between the city and Mr. Youell. The silent acquiescence of the city to its construction did not bind it either to permit it to remain or to remove and rebuild it when public necessity required that the roadway should be widened. Mr. Youell, at his own expense and for his own benefit, chose to erect a wall in a public street 14 feet from the line. By this act he obtained no property right in the street. The sole property right obtained by him or his grantee was in the stone, with the right to remove it whenever the city desired to use the space occupied by it. Owners of adjacent lands acquire no permanent rights in the public streets by the erection of structures for their own use and benefit. So long as the space so occupied is not required for public use, they are usually permitted, but, when the public demands it for the use for which it has been condemned or dedicated, the private use must go, and the structures be removed. The opportunity to remove them is all the right the law gives the owners.

The authorities cited do not sustain the contention of the learned counsel. In Fisher v. Thirkell, 21 Mich. 1, the opinion goes no further than to hold that excavations under public streets, properly and safely constructed for the benefit of the adjacent owner, and which do not interfere with the public use, are not unlawful.

Grand Rapids & Indiana R. R. Co. v. Heisel, 38 Mich. 62, decides' that a commercial steam railroad cannot be authorized in a city street without compensating adjacent owners.

Muzzey v. Davis, 54 Me. 361, decides that granite curb stones, put in by the lot owner, were his property, and the city was liable for removing and selling them.

In Sheldon v. Kalamazoo, 24 Mich. 383, the corporation tore down the plaintiff’s fences upon the assertion that he was occupying part of a village street, and it was held that he could not be dispossessed without legal process.

In Vanderlip v. City of Grand Rapids, 73 Mich. 522, the city proposed to build an embankment which would extend back 35 feet on plaintiff’s land, and cover up the front of her house and barn several feet, without compensation or condemnation, a proceeding unfounded .in reason or authority. In the present case there is no encroachment upon plaintiff’s land, nor any interference with the enjoyment thereof.

The contract and specifications contained the following:

“All plank walks on the street to be taken up with care and be deposited on the adjoining premises, unless previously cared for by property owners. All plank approaches to crosswalks or sidewalks, required to be taken up in excavating approaches in intersecting streets, shall be taken up with care, and be deposited in some safe place, and, when such approaches are graded and crosswalks laid, said plank walks and approaches shall be relaid in as good condition as before they were disturbed.”

It became necessary to remove the sidewalk in order to make the improvement. In removing it, and placing it upon plaintiff’s lot, neither the city nor the contractor was guilty of converting the material of which it was built. After the improvement was completed it appears that a sidewalk was constructed, but by whom or at whose expense does not appear. Certainly, if the city rebuilt it, plaintiff has not been injured.

It is insisted that there was some evidence tending to show that some earth was deposited upon plaintiff’s land, and that this question, and the subsequent damages, should have been submitted to the jury. The amount of earth, if any, was trifling, and the damage nominal. It is questionable whether the declaration is broad enough to include a mere act of trespass quare claMSum fregit. However this may be, the act of depositing earth upon her land was unnecessary, and not the natural result of making the improvement. The trespass, therefore, was one for which the contractor, and not the city, was liable.

Judgment affirmed.

The other Justices concurred.


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    The Peninsular Savings Bank of Detroit v. The Black Flag Stove Polish Company, James C. Hathaway, and Robert McDougall Campau.

      Corporations — Liability of stockholders to creditors — Unpaid subscriptions.

    1. Upon the organization of a corporation for the purpose of engaging in the manufacture of store polish, one of the corporators, who was secretary and general manager of a store company, which was anxious to secure a first-class article in the shape of store polish, receired, in consideration of his influence and seryiees to be giren and rendered in recommending the polish, 100 shares of the corporate stock. The corporator saw buyers, wrote letters from the store company recommending the polish, and also recommended it at conventions of store manufacturers which he attended, but rendered no seryiees which took time from his customary employment. The corporation became insolrent, and a judgment creditor filed a bill to compel said corporator to pay the amount of his subscription to the capital stock for the purpose of satisfying said judgment. And it is held that the stock was issued as a gift to the defendant for his influence; that, while this might hare been a sufficient consideration as between him and the corporation, it did not satisfy the requirements of the law as to creditors, to whom he is liable for the amount of his subscription.
    2. The following general propositions are summarized from the opinion of Mr. Justice Geant:
    a — Serriees rendered to a corporation in good faith constitute a good consideration for the purchase of stock if reasonably commensurate with its par value.
    6 — Tbe law permits individual stockholders to limit their liability for the debts of the corporation to the par value of the stock for which they subscribe; but creditors have a right to deal with and rely upon this capital stock as one of the assets of the corporation, and to demand that it shall be fully paid to meet the liabilities of the corporation, and the policy of the law, therefore, requires the utmost good faith pn the part of the stockholders in the payment for their stock.
    c — Any attempt to evade this liability, either by issuing stock as fully paid when it is not, or by putting in property at a value grossly in excess of its real value, or by gift, or by-services, or by an agreement to render services, grossly incommensurate with their value, is void as to the public and the creditors of the corporation.
    Appeal from Wayne. (Frazer, J.)
    Argued May 8, 1895.
    Decided May 28, 1895.
    Bill to require defendant Campau to pay the amount of Ms subscription to the capital stock of defendant corporation. Complainant appeals.
    Decree reversed, and case remanded.
    The facts are stated in the opinion.

      Brennan, Donnelly & Van De Marie, for complainant.

      F. A. Baker, for defendant Campau.
   Grant, J.

The complainant obtained a judgment in the circuit court for the county of Wayne for $2,115.82 upon two promissory notes executed by the defendant corporation, the proceeds of which were used in its business. The corporation was insolvent, and an execution was returned nulla bona. Thereupon this bill was filed to compel defendant Campau to pay the amount of his subscription to the capital stock for the purpose of satisfying the judgment.

The corporation was organized July 25, 1887, by the defendants Campau and Hathaway and one George B. Smith as original corporators. Campau took 100 shares, Smith 1,100, and Hathaway 800. The capital stock was $50,000, and the number of shares 2,000. Hathaway was the only stockholder who paid any money, and he paid in $3,000. Smith turned over to1 the company a patent for the polish, and certain articles used in its manufacture. Mr. Campau’s defense is set forth in his testimony as follows:

“Mr. Smith, who was supposed to be the patentee of this formula, came down with a sample of this polish. We manufactured a very fine class of goods, the Peninsular Stove Company did, and we had been troubled very much about getting a first-class article in the shape of stove polish. We had been imposed upon by numerous institutions, and when we found that this was a good article we were very anxious to get hold of it. They came to me and said: ‘Here, this is something that you want.’ In fact, we submitted it to our practical men for two or three weeks, and tried it in all sorts of ways, and they said it was a first-class article; and they said: ‘If you will take an interest in this thing, using your influence to market it, we will make you a present of 100 shares of fully paid-up stock.’ At the time of this conversation, in fact, at the drawing up of these articles, before they were signed, I asked Mr. Moore if this stock had any liability, and at that time Mr. Moore said, ‘No.’ He then repeated the question to these gentlemen. He said, ‘Gentlemen, you understand this stock is fully paid up;’ at which they said, ‘Yes.’ The stove-polish business had been run into the ground by a great many different people. They had been imposing upon all the manufacturers throughout the country by inferior articles; and it is next to impossible to introduce an article of this sort, unless some man of influence is at the head of it; somebody in trade. I was to use what influence I could. I was to write letters to the different manufacturers, who were personal friends of mine, throughout the country, stating we were using this stock, which we did. I was to do everything in my power,-directly and indirectly, without interfering with my legitimate business, to assist in marketing the stock, which I did.”

He further testified that he saw buyers, wrote letters from the stove company recommending it, and he also recommended it at conventions of stove manufacturers which he attended. He was at that time the secretary and general manager of the Peninsular Stove Company. He was chosen president of the defendant corporation. He testified that he had been nominally the president of the company, but had performed no services as such officer. He had performed no services otherwise than as above stated,, in causing it to be us’ed by the Peninsular Stove Company, and in recommending its use.

It is conceded that services rendered to a corporation in good faith constitute a good consideration for the purchase of stock. Liebke v. Knapp, 79 Mo. 22, and Van Cott v. Van Brunt, 82 N. Y. 535, are illustrations of the rule. Such services, however, must be reasonably commensurate with the par value of .the stock subscribed.

The corporation wa,s organized under Act No. 232, Laws of 1885. The articles stated that the stock was actually paid in. This was not in fact true. There is no evidence that Mr. Campau entertained any intent to defraud subsequent creditors of the corporation. Undoubtedly he honestly believed that he had the legal right to make this arrangement without incurring any liability.

It is the established rule that the capital stock of a corporation constitutes a trust fund for the benefit of its creditors. Sawyer v. Hoag, 17 Wall. 610; Fogg v. Blair, 139 U. S. 118; Howe v. Agricultural Works, 46 Ill. App. 85; McDaniel v. Harvey, 51 Mo. App. 198; Farnsworth v. Robbins, 36 Minn. 369; Thayer v. Minmg Co., 40 Ill. App. 344; Carbon Co. v. Mills, 78 Iowa, 460; Wetherbee v. Baker, 35 N. J. Eq. 501; Spel. Priv. Corp. §§ 792, 810. It is unnecessary to multiply authorities. The law permits individuals to limit their liability for the debts of corporations to the par value of the stock to which they subscribe. Creditors have a right to deal with and rely upon this capital stock as one of its assets, and to demand that it shall be fully paid to meet its liabilities. The policy of the law, therefore, requires the utmost good faith on the part.of stockholders in the payment of their stock. Any attempt to evade this liability either by issuing stock as fully paid- when it is not, or by putting in property at a value grossly in excess of its real value, or by gift, or by services, or by an agreement to render services, grossly incommensurate with their value, is void as to the public and creditors. This rule is also thoroughly established by the authorities.

In Sawyer v. Hoag the stockholder gave his check for $5,000, the full amount of his subscription, taking back a check from the company for $4,250, which was the amount of his subscription, less 15 per cent., required to be paid in cash.' For this he gave his note, and it was treated as a loan by the officers of the corporation and himself. He sought to offset a claim he had against the corporation against this note. The court held that the note was in fact given for his stock, and that all the creditors were entitled to share equally in the assets of the corporation.

In Herbert v. Uhl (Sup.) 20 N. Y. Supp. 743, it is said:

“While it is true, under the decisions, that stock may be issued in payment for services rendered to the company, if there is evidence that the amount of stock issued for such alleged services is grossly in excess of the fair value thereof, the plaintiff has at least the right to go to the jury upon the question whether such services were actually rendered, whether they were fairly worth the amount of stock issued in alleged payment thereof, or whether, the issuance of stock for alleged services was not in fact an evasion of the statute.”

See, also, the authorities above cited.

Mr. Campau rendered no services which took time from his customary employment. Clearly the stock was issued to him as a gift for his influence. While this may be a sufficient consideration, as between him and the corporation, it does not satisfy the requirements of the law as to creditors. It is not a tangible asset, such as the law contemplates as a part of the capital stock of a corporation.

The decree must be reversed, with the costs of both courts, and the case remanded for further proceedings in accordance with this opinion.

The other Justices concurred.


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    Josiah W. Sherwood and Eliza S. Sherwood v. Frank D. M. Davis, Circuit Judge, of Ionia County.

      Mandamus — Remedy by appeal.

      Mandamus will not lie to obtain a decision upon the merits in a chancery case, appeal being the proper remedy.

      Mandamus.

    Argued May 7, 1895.
    Denied May 28, 1895.
    Relator applied for mandamus to compel respondent to vacate on order. The facts are stated in the opinion.

      John Nichol (A. A. Ellis and Charles P. Locke, of counsel), for relators.

      Thomas F. McGarry and George E. Nichols, for respondent.
   Grant, J.

Relators are the owners of 160 acres of land. Upon 100 acres was a mortgage of $5,500, and upon the 60 acres one of about $2,000. They borrowed of one William Vincent $7,000 for the purpose of paying off these mortgages, securing this loan by a mortgage upon the same property. Sherwood agreed to pay the other $500 so as to leave Vincent’s mortgage the first lien. Relators claim that they agreed with Vincent that they might cut and remove sufficient timber to pay the remaining $500 due upon the mortgages. Vincent denies such an agreement, and claims that Mr. Sherwood told him he had debts due him which he could collect, and pay the other $500. Subsequently Sherwood induced one Hawley to indorse two notes for Mm, aggregating $500, for the purpose of paying this deficiency, and gave a chattel mortgage to Hawley. Sherwood insists that at this time he made an agreement with one Temple, the agent of Vincent, permitting him to cut and remove the timber, and that this chattel mortgage was given to Hawley as security for the payment of the money realized from the sale of the timber, upon the Hawley notes. The timber was situated upon the 60-acre tract. Sherwood began to cut and remove the timber, whereupon the first mortgagee obtained an injunction preventing it. Vincent also, learning subsequently that Sherwood had erected a mill upon the- land, and was cutting and removing the timber, filed his bill and obtained an injunction. Hawley afterwards filed a petition to so modify the injunction as to permit timber to be cut sufficient to pay the notes which he signed with Sherwood. Vincent also filed a petition praying that Hawley be ordered to exhaust his chattel mortgage security, or that he be subrogated to the rights of Hawley under said chattel mortgage. After hearing these petitions, the court, on September 13, 1894, entered an order refusing to modify the injunction or to direct Hawley to proceed to sell and dispose of the property under the chattel mortgage, but directing that said Vincent be subrogated to all the rights of said Hawley under and by virtue of his chattel mortgage and the notes secured thereby; that Hawley be directed upon demand to. assign them to Vincent; and that, upon such assignment, Vincent be empowered and authorized to sell sufficient of the property to satisfy the expenses of sale and the amount due on the notes, and to release Hawley from liability in so far as the amount realized should pay the notes. Subsequently relators filed a petition to vacate the above order. This the court denied, and the purpose of this petition is to secure the writ of mandamus to compel the respondent to vacate that order.

It appears that a large amount of testimony was taken upon the various issues involved in these petitions, and the court found that no agreement to permit Sherwood to cut the timber was made between him and Vincent, and that Vincent had no knowledge of any such arrangement made between Sherwood, Hawley, and Temple, and that Temple had no authority to make such an arrangement. He further found that the chattel mortgage was given to indemnify Hawley against loss for the payment of the notes, and not for loss by misappropriating the proceeds from the sale of the timber, and failing to apply them as agreed. This appears to be an attempt to obtain a decision upon the merits in a chancery case by mandamus rather than by appeal. The facts are all found against the relators. If the evidence justifies the facts, the order of the court is right. Mandamus is not the proper remedy to review such an order. Appeal is the only proper remedy.

The issuance and retention of the injunction were within the discretion of the respondent, and, under the facts as he found them, he not only did not abuse his discretion, but was fully justified in both granting and retaining the injunction.

This case well illustrates both the inconvenience and the impropriety of the attempt to review such cases in this manner. The papers presented'for our examination, including the testimony, cover nearly 200 pages of typewritten matter.

The writ is denied, with costs.

The other Justices concurred.


author: Hooker, J.

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    The People v. Steve Bauman.

      Embezzlement — Intent—Instructions.
    It Is error to instruct the jury in a prosecution for embezzlement that the mere retention of money, or its expenditure for the purposes of the firm for -which the respondent was selling-cigars, with authority to make collections, in excess of the amount agreed upon for his expenses, if accompanied by a bare failure to report or accurately account for the money, is sufficient to convict, as it leaves out the important question of criminal intent, — the design to wrong, cheat, or defraud the owner, — which is a necessary element of the crime of embezzlement.
    Error to recorder’s court of Detroit. (Chapin, J.)
    Argued May 8, 1895.
    Decided May 28, 1895.
    Respondent was convicted of the crime of embezzlement, and sentenced to imprisonment in the State prison at Jackson for two years and a half.
    Judgment reversed, and new trial granted.
    The facts are stated in the opinion.

      James V. D. Willcooo (F. F. Bacon, of counsel), for respondent.

      Allam, H. Fraser, Prosecuting. Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant appeals from a verdict and sentence upon a charge of embezzlement. He sold cigars for the complainant, and was authorized to make collections. Incidental expenses, such as money used in saloons, were adjusted from time to time, but he was expected to make reports of collections and expenses at short intervals, if not daily. The testimony introduced-on behalf of the prosecution tended to show that the defendant had collected moneys from customers which he had failed to report and had denied receiving, and that he was short upwards of $100. The testimony for the defendant does not dispute a possible shortage, but tends to establish the facts that there was no intentional concealment; that it was usual for him to appropriate some of the money collected, and apply it upon his salary; that he was sometimes overpaid, or had drawn or used, to the extent of $75 or $100 in advance of his earnings; but that it was never with the fraudulent or felonious design of cheating or defrauding his employer.

In his charge to the jury the court said:

“He is charged with not having done that; that is to say, with not having turned in the moneys which he collected. Now, if you find from the evidence in this case that he retained these moneys, it is not necessary that he appropriate them to his own use. If he retained the moneys, if he made these collections, and kept them, if you are satisfied beyond a reasonable doubt that that is the case, then, of course, it will be your duty to convict, and your verdict will be guilty. * * * If you are satisfied from the evidence in this case, beyond a reasonable doubt, that the defendant did make these collections, and that he did not turn the moneys in, — all the money which he collected, — barring, of course, the amount which he was authorized to spend, if you believe that he was authorized by C. P. Collins & Go. to spend a portion of what he collected for the purpose of advertising their business, but if you "believe that he kept more than that, then, of course, it will be your duty to convict. * * *• If you believe that he had authority to spend a certain amount, then, of course, you must find that he had no authority to spend any more than that. If he spent any more than that, he was doing it upon his own authority, and without authority from the firm, and that was spending money which he had no right to spend; and if he spent any more money than he was authorized by the firm, and failed to account to the firm for the moneys which he collected, barring the amount which he was authorized to spend, then he made such an appropriation of this money as he was not entitled to make; and, if you believe that he did that, — failed to account to this firm for these moneys which he collected, — then it will be your duty to convict.”

Under this charge, the mere retention of money, or its expenditure for the purposes of the firm in excess of the amount agreed upon for expenses, if accompanied by a bare failure to report or account for accurately, was sufficient to authorize a conviction. It leaves out the important question of criminal intent, — the design to wrong, cheat, or defraud the owner, — which is a necessary element of embezzlement. It may be that the facts found by the jury were sufficient to prove the existence of this intent had that question been submitted to them, but we cannot assume that they found it.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.


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    Frank Lamotte v. Jonathan Boyce.

      Negligence — Injury to employé — Obvious dangers.

    1. There is no obligation upon the part of an employer to make his premises and machinery perfectly safe, or to have the most approved appliances. His duty to provide reasonably safe machinery is qualified by his right to contract for the use of machinery which falls short of the best and most approved; and when the defect is obvious, and cannot escape ordinarily careful observation, which is always due from the employé, the risks attendant upon such use are assumed by the employé.
    2. In places like sawmills, appliances more or less crude may reasonably be expected, and employes who use them are ordinarily as good judges of their safety as the employer. If unsafe, and the employé still consents to use them, the risk is his;and the employer has a right to expect that the employé assumes it, where the nature of the appliance, and its dangers, are obvious; citing Batterson v. Railway Co., 53 Mich. 129; Ragon v. Railway Co., 97 Id. 274.
    3. Plaintiff, who was experienced in sawmill work, fell from a ladder in the defendant’s sawmill, where he had been engaged for a month or more firing a boiler. The ladder, which was intended as a means of reaching the boiler, consisted of strips of wood nailed upon a- wooden post or stanchion, which supported the wall encasing the boiler, and which extended a foot or 18 inches above the brickwork. The sawdust carrier passed over the boiler, and sawdust scattered upon the top of the boiler ignited. Plaintiff testified that the nightwatchman told him to take a broom, hurry up the ladder, and sweep it off; that he took the broom in his right hand, and went up the ladder; that, when he reacted the top of the post, he thought it extended further up; that if did not extend up far enough for him to land on the boiler; that it was dark, and he could not see, and that he fell, and was injured. He further testified that he had seen the post, but never noticed how high it was, and that on the occasion of the accident he knew that he had reached the last slat, but was feeling for the post, which he supposed went higher. And it is held:
    a — That, had the defendant himself been there, there could have been no occasion for him to caution the plaintiff that •the post was short, for that fact was obvious, and the most ordinary familiarity with his surroundings could have apprised plaintiff of it; that it was not the case of a latent or hidden danger, but one which was apparent to the casual observer, and therefore one which the defendant had every reason to believe was known to the plaintiff, and the accident was one for which the defendant should not be held liable.
    6 — That the fact that the sawdust was allowed to aceumulate upon the boiler was not the proximate cause of the injury.
    Error to Bay. (Maxwell, J.)
    Argued May 9, 1895.
    Decided May 28, 1895.
    Negligence case. Defendant brings error.
    Reversed, and no new trial granted.
    The facts are stated in the opinion.

      Simonson, Gillett & Courtright, for appellant.

      Pratt, Yan Kleeok & Gilbert, for plaintiff.
   Hooker, J.

The plaintiff obtained a judgment for personal injuries received through a fall from a ladder in the defendant’s sawmill, where he had been engaged for a month or more in firing a boiler. The ladder consisted of strips of wood nailed upon a wooden post or stanchion, which supported the wall encasing the boiler, and which extended a foot or 18 inches above the brickwork. It was intended as a means of reaching the top of the boiler. The sawdust carrier passed over the boiler, and sawdust scattered upon the top of the boiler and ignited upon the night in question. The sawdust was swept from the boiler once a week. This was done by the crew in general, and the firemen took part in it. There were three firemen, and it does not appear that the plaintiff had done so. The plaintiff testified that the night watchman, being in charge, discovered fire on the boiler, and told the plaintiff to take a broom, and hurry up the ladder, and sweep it off; so he took the broom in his right hand, and went up the ladder. He says that when he up to the top of the post he thought it extended farther up, but it did not extend up far enough for him to land on the boiler, and it was dark, and he could not see, and fell. The negligence complained of is (1) permitting sawdust to accumulate on the boiler, where it was likely to ignite; (2) failure to provide a safe way to reach the top of the boiler; (3) directing plaintiff to go upon the boiler in the dark, without instructing him that the post was short, and that he would have nothing to support himself above the post, when stepping upon the top of tLr boiler.

The plaintiff was experienced in sawmill work. He was at work in a separate room, called the“Boiler Room,” 30x16 feet in size. To go from the front to the rear of this boiler, it was customary to pass close to the post; and it was of frequent occurrence that the ladder was used, as it was the only means of getting upon the boiler, when the men did not go to the troub’e of getting a ladder for the purpose. The plaintiff stated that he had seen the post, but never noticed how high it was, and that on the occasion of the accident he knew that he had reached the last slat, but was feeling for the post, which he supposed went higher.

There is no“ obligation upon the part of employers to make their premises and machinery perfectly safe, or to have the most approved appliances. The duty of the employer to provide reasonably safe machinery is qualified by his right to contract for the use of machinery which falls short of the best and most approved; and when the defect is obvious, and cannot escape' ordinarily careful observation, which is always due from the employ’d, the risks attendant upon such use are assumed by the latter. In places like sawmills, appliances more or less crude may reasonably be expected, and those who use them are ordinarily as good judges of their safety as the master. If unsafe, and the employé still consents to use them, the risk is his; and the master has a right to expect that he assumes it, where the nature of the appliance, and its dangers, are obvious. Batterson v. Railway Co., 53 Mich. 129; Ragon v. Railway Co., 97 Id. 274.

The conduct of the business, including the exigency of the fire, made it necessary for the plaintiff to go upon the boiler. He did so without comment, when directed by the watchman, apparently knowing- just how to get there. Had the master himself been there, there would have been no occasion for him to caution the plaintiff that the post was short, for it was obvious, and the most ordinary familiarity with his surroundings could have1 apprised him of it. It was not the case of a latent or hidden danger, but one which was apparent to the casual observer, and therefore one which the employer had every reason to believe was known by the plaintiff, and the accident was one for which the defendant should not be held liable.

The fact that sawdust was allowed to accumulate upon the boiler was not the proximate cause of the injury.

The jury should have been instructed to find a verdict for the defendant.

The judgment will be reversed, and no new trial ordered.

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


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    Newman E Cole v. The Lake Shore & Michigan Southern Railway Company.

      Railroad companies — Fires originating on right of way — Evidence —Instructions.

    1. In an action to recover for the destruction of plaintiff’s barn by fire, caused, as claimed, by the negligent burning of grass and other refuse upon defendant’s right of way by its employés, a witness was asked how he remembered that the wind was blowing so hard the morning of the fire, and answered, “We spoke about it, Mr. Buck and myself.” And it is held that the evidence was admissible, within the rule laid down in Angell v. Rosenbury, 12 Mich. 257; Railroad Co. v. Van Steinburg, 17 Id. 107.
    2. A request to charge, which failed to recognize a right to recover for setting the fire at an improper time, was properly refused, and a request which made the setting of the fire under circumstances customary with prudent railroad men the test was properly modified by omitting the word “railroad,” while a request for an instruction that, if the fire was carefully set and carefully guarded, there could be no recovery, was properly refused, the propriety o‘f setting the fire at the time it was set being omitted, or, if comprehended under the words “carefully set,” it being susceptible of misinterpretation.
    Error to Branch. (Yaple, J.)
    Argued May 9, 1895.
    Decided May 28, 1895.
    Case. Defendant brings' error.
    Affirmed.
    The facts are stated in the opinion:

      ' G. E. Werner (George O. Greene and O. G. Getsen-D antier,. of counsel), for appellant.

      ■Campbell & Johnson and Charles N. Legg, for plaintiff.
   Hooker, J.

The plaintiff obtained a judgment against the defendant for the destruction of a barn by fire, which he claimed to have been caused by the negligent burning of grass and other refuse upon defendant’s railroad by its employés. The principal claim urged upon the oral argument was that the court erred in not directing a verdict for the defendant, it being contended that there was no evidence tending to support the case beyond conjecture. It would serve no useful purpose to review the evidence upon this question, and it is enough to say that, in our opinion, it was proper to permit the case to go to the jury. This covers the questions to which counsel called special attention, which their brief says may be included in the following propositions, viz.:

1. The testimony given on the trial did not in any appreciable degree tend to show that the fire in the barn originated from the fires on the railway grounds.
2. There was no proof tending to show that the fires on the railway grounds were wrongfully or negligently set.
3. There was no proof tending to show that the fires were negligently cared for.

We incline to the opinion that this covers the questions that counsel rely upon, but, as the brief mentions others, we notice them.

A witness for plaintiff was asked:

“Q. How do you remember that the wind was blowing so hard that morning?
“A. We spoke about it, — Mr. Buck and myself.”

The evidence was admissible within the rule laid down in Angell v. Rosenbury, 12 Mich. 257; Detroit & Milwaukee R. R. Co. v Van Steinburg, 17 Id. 107.

A witness testified to the direction and force of the •wind that morning at a place four of five miles distant. Exception was taken to this, but, as the testimony was stricken out, it is unnecessary to discuss it.

Error is assigned upon the refusal to give several requests to charge. Most of them are covered by what has been said. As to the others,- while not given verbatim, they were fully and fairly covered by the charge. Several of them should not have been given, as they •omitted to fully state the law. Thus, the third failed to recognize a right to recover for setting fire at an improper time. Again, the fourth made the setting of fire under circumstances customary with prudent railroad- men the test. The court properly omitted the word “railroad.” The fifth was:

“If the fires were carefully set and carefully guarded, there can be no recovery.”

Here again the propriety of setting the fire at the time is omitted, or, if comprehended under the words “carefully set,” it was susceptible of misinterpretation. The charge made the subject clear, and that is sufficient.

We discover no error, and the judgment must be affirmed.

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


author: Long, J.

text:
    Henry Harper et al. v. The City of Grand Rapids and William Bragg, Marshal.

      Municipal corporations — Public improvements — Acceptance of work —Finality.

    Where property owners, whose lands are liable to assessment for a public improvement, fail to agree with the contractor as- to the quality of the work being done, and at their request examinations are made from time to time -by order of the common council, which, after a final investigation, accepts and pays for the work, its action, in the absence of fraud, is final, the case being ruled by Motz v. City of Detroit, 18 Mich. 515; Dixon v. City of Detroit, 86 Id. 520.
    Appeal from superior court of Grand Rapids. (Burlingame, J.)
    Submitted on briefs May 7, 1895.
    Decided May 28, 1895.
    Bill to restrain defendants from collecting an assessment for a special improvement. Complainants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      O. O. Smedley (.Bern M. Oonoin, of counsel), for complainants.

      'William Wisner Taylor, for defendants.
   Long, J.

The bill in this cause was filed by Henry Harper and some 60 other citizens of Grand Rapids to obtain a perpetual injunction restraining the defendants from proceeding with the sale of certain parcels of their lands for the collection of taxes growing out of a special assessment for street improvements. The contract was let for grading and paving Oakland avenue to Charles Prange. He entered upon the work under the contract, and, after it had progressed for a time, petitions were presented by the complainants to the board of public works, and to the common council of the city, that an examination of the work be made, as it was not being done in accordance with the contract. Examinations were made, under the order of the council, from time to time. Many petitions were presented, each stating that the work was not in accordance with the contract; and, after the work was completed, remonstrances were presented to the council, asking that the council refuse to approve the work, and withhold the pay from- the contractor. The council took final action in the matter, approved the work, audited and paid the contractor’s accounts in full, ordered an assessment district to be laid off, and the tax assessed upon the property benefited. The roll was made, and the proper notice given, and the marshal of the city is proceeding to collect the tax. Upon the filing of the bill, an injunction was issued restraining the collection. Proofs were taken in open court, and on the final hearing the superior court' dismissed the bill.

It is true that the property owners have the right to have the contract performed substantially, but as was said in Dixon v. City of Detroit, 86 Mich. 516, 520:

“We have never interfered with the discretion of the authorized agents of municipalities, in the exercise of the powers granted by the Legislature, except when there was a want of jurisdiction in the proceedings. Here the matters complained of are not jurisdictional, but are irregularities not affecting the jurisdiction, and mainly for the reason that the work and material were not such as the contract called for. That such objection is no defense to the enforcement of the assessment was directly held in Motz v. City of Detroit, 18 Mich. 515.”

No fraud is shown in the. present case. All that can be said is that the parties whose lands are assessed did not agree with the contractor as to the quality of the work; but the common council, after an investigation, accepted the work, and paid the contractor, thus finding that the work had been done in accordance therewith. The case falls fully within the cases above cited. The court below was correct in dismissing the bill.

The decree below will be affirmed.

The other Justices concurred.


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    Hiram A. Crane v. Fitzland L. Wilson et al.

      Sale — Time of delivery — Waiver.
    Where a contract for the sale of logs expressly limits the time of delivery to a certain season, the vendor cannot, in the absence of an acceptance of the logs or a waiver of the time fixed for their delivery, insist upon the vendees taking them at a later date, and, if the evidence as to such acceptance or waiver is conflicting, the question is for the jury.
    Error to Bay. (Cobb, J.)
    Submitted on briefs May 9, 1895.
    Decided May 28, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      L. E. Joslyn (H. H. Hatch, of counsel), for appellants.

      Pratt, Tan Kleech & Gilbert, for plaintiff.
   Long, J.

Plaintiff and one Hart entered into a written contract with the defendants, as the Wilson Hoop Company, to “deliver in the boom limits of .the Bay View Boom Company, below M. Haggerty’s boom,” one to three hundred thousand feet of elm logs, 12 inches in diameter and upwards. ■ The logs were to be banked at a certain place mentioned in the contract. The contract provided that, in consideration of the faithful performance of the agreement, the Wilson Hoop Company was to pay to Hart & Crane $6.50 per 1,000 feet, as follows: $2.75 when the logs were delivered on the bank,' and $3.75 when the logs were delivered in the Bay View boom, rafted in good shape, as provided above. The contract provided, as to time of delivery, as follows:

“The party of the first part further agrees to run said logs down to the boom just as early as possible in the spring of 1891; if possible, before or ahead of the drive.”

The contract was assigned to the plaintiff in this suit. He claims to have delivered on the bank 111,188 feet of contract logs; that, after they were scaled, all were rafted that defendants furnished chain dogs for; that they were run to the Bay View boom, the greater part in 1891; that those not run remained in the jam the following winter, and were run the next season; that he had received $2.75 per 1,000, according to the contract, for 111,188 feet; and that the balance of the contract price was still due. This action is brought to recover such balance. On the trial, defendants contended that under the contract they were not bound to receive the logs delivered after the season of 1891; that the logs were for manufacture into hoops, and must be green timber; that the logs remaining over the season exposed to the sun were spoiled for hoops; and that the contract limited the time in which they were to be received to the season of 1891.

The court charged the jury that—

“If the logs came down, and were delivered to the defendants, in the boom company limits and below Haggerty’s boom, either in the year 1891 or 1892, they would be bound to take them. * * * They would be bound to pay for them, whether they took them or not, if they were put down there for them.”

This raises the only question which we need discuss. The contract, in very plain terms, limits the time of delivery to the season of 1891. It is true that if an agreement calls for delivery by a certain time, and delivery is not made by such time, a subsequent delivery will be binding, provided the party to whom the delivery is to be made accepts .¡nd retains the property, as such acceptance is a waiver of the terms of the contract, so far as the time is concerned, and is evidence of a new contract, fixing a different time; and it is true that the plaintiff claimed that the defendants did accept delivery at a time later than the time mentioned in the contract. But this was in dispute between the parties, as the defendants contended that they had not accepted them. The testimony was conflicting on this point. The court, however, explicitly instructed the jury that the defendants were bound to take them, even if not delivered until the year 1892. It was a question of fact, for the jury to determine, whether there was. an acceptance of the logs of 1892. If there was no such acceptance, or waiver of the time of delivery, then, under the terms of the contract, the plaintiff could not insist upon the defendants taking the logs of 1892. The court was in error in the charge. The parties had reduced their contract to writing, and must be bound by its terms.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.


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    Catherine Andries v. The Detroit, Grand Haven & Milwaukee Railway Company.

      Easement — Railroad right of way — Boundaries—Equity Jurisdiction.

    1. The mere fact that a railway company knows that the public and an abutting lot owner are passing and repassing oyer a portion of its right of way will not create a right in the public or in the lot owner to continue such passage.
    2. The remedy to settle a disputed boundary line is at law, and not in equity, it appearing that each party claims a legal right, and that the land has never been adjudged to belong to the complainant.
    Appeal from Wayne. (Donovan, J.)
    Argued January 22 and 23, 1895.
    Decided June 4, 1895.
    Bill to restrain the defendant from trespassing upon complainant's land. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Robert Parker and Jonas B. Houek, for complainant.

      L. G. Stanley, for defendant.
   Long, J.

The complainant is the owner of lots 53 and 55 of the Dequindre farm in the city of Detroit. These lots abut upon the west side of defendant’s right of way, commonly called “Dequindre Street,” and are situate between Gratiot avenue and Jay street. She and her grantors have been in possession of them for many years. The bill in this case is filed to restrain the defendant from preventing or in any manner interfering with the complainant’s passing over and along said Dequindre street, to and from her said lots; and also from moving back upon her lots a certain fence, which complainant contends is now erected upon the true line of her said lots. The complainant claims that on September 10, 1892, the defendant,, with a force of men, entered upon these lands, and commenced to tear down and move back the said fence some three feet upon her lots. She also claims that a sidewalk had for more than 30 years existed along the said Dequindre street, next to her said lots, which had been used by her and her grantors and others of the public for ingress and egress to and from said lots to Gratiot avenue and Jay street, and that said way was the only way thereto; that about 8 years before filing her bill the defendant filled said street with earth, covering said walk, but that complainant and others of the public have continued to use said street as of right of such ingress and egress for more than 30 years, and therefore have acquired a right of way by user, which defendant» now threatens to close against her and others of the public. The defendant denies that the premises have been held adversely to it.

It appears that prior to .1836 one Antoine Dequindre was the owner of land extending from the Detroit river to the. westerly line of the city of Detroit. These lots were a part of those lands. Adjoining these lands on the east was a 40-foot strip. On May 24, 1836, a written agreement was entered into between Dequindre and the Detroit & Pontiac Railroad Company, by which the said company acquired this strip for a right of way for its tracks. The railroad company at once entered into possession of this entire strip, leaving® no portion thereof open to street travel. In October, 1836, Dequindre conveyed the lands to Peter J. Desnoyers, in trust for creditors, subject to the railroad company’s right of way. In February, 1840, Dequindre and Desnoyers made a plat of the Dequindre farm, which plat, it appears, was not properly executed and acknowledged, and never became entitled to record; but by said plat Dequindre and Desnoyers attempted to dedicate said 40-foot strip to street uses, in utter disregard of the rights of the railroad company.

In 1843, Dequindre died intestate, and in 1845 Desnoyer.s reconveyed to the Dequindre heirs all that part of said lands not disposed of. Partition proceedings were thereafter had, and said lot 53 was allotted to John Watson. No part of the 40-foot strip was partitioned. The lots partitioned were not described as abutting on any street, but as bearing certain numbers in certain blocks of the Dequindre farm, according to the plat.

In 3851, Watson and some of the Dequindre heirs claimed to own said strip of land discharged of the claims of the Detroit & Pontiac Railroad Company, whereupon the said railroad company purchased from Watson and others all their claim and title to said strip; and since December 27, 1851, the defendant railroad company, claiming all the rights of the Detroit & Pontiac Railroad Company", has actual!) occupied the entire strip as owner, and its possession thereof has been open and notorious. All of the lots so platted, except five, from the Dequindre farm, were made to front on streets, among which were the complainant’s lots. ' These lots were accessible by inferior alleys, and no other lots were so accessible. The complainant’s grantors well knew the situation of these lots at the time of their allotment to and purchase by them.

In 3871 the abutting owners of lots along this 40-foot strip, and the city of Detroit, set up a claim that this strip was a public street. The city filed a bill against the defendant company in the Wayne circuit, in chancery, to enjoin its use by the company. The cause was heard on appeal in this Court, and a decree entered here, holding that the strip was not a public street, but the private property of the railroad company. City of Detroit v. Railroad Co., 23 Mich. 173.

At the time the father of the complainant purchased lot 53, the railroad company was in possession of the strip, using it as its right of way, and occupying it by its tracks. Under its charter it had the right to hold 100 feet in width for such purposes. At the time complainant’s grantor purchased lot 55 the chancery case had been decided in this Court, holding that this strip was the private property of the defendant company. After the decision of that case in this Court in 1871, the defendant at once began to warn the public of its exclusive right to said strip, as owner thereof, by placing signs along the extent thereof, and one of which was placed near the complainant’s property, which read: “No way here. Bail-road property.”

In 1883, Emil A. Tapert, being the owner of lot 54, abutting on said strip, filed his bill against the defendant Qpmpany to prevent it from occupying the strip by laying another track, his claim being that he had a right of way over it appurtenant to his lot. That case was heard in this Court on appeal, and the complainant’s right denied, and again it was held that the defendant company had the exclusive right over said strip. It was said that the defendant’s title had vested and become absolute before the complainant’s title had passed out of the representatives of the estate. Tapert v. Railway Co., 50 Mich. 267. The defendant has since that time been in possession of said strip, keeping the signs posted up, notifying the public that it is railroad premises.

It is therefore apparent that the complainant here has no rights over this strip, though she may, with the public, have gone over it to gain access to her premises. The railroad company had the right at all times since its purchase to exclude the public and the complainant from the premises. The mere fact that the defendant company knew that the public and the complainant were passing and repassing there would not create a right in the public or complainant to continue such passage. Elliott, Roads & S. p. 130; Stewart v. Frink, 94 N. C. 487.

It appears that several years ago the defendant company claimed that the fence in front of complainant’s lots encroached on its right of way. Several persons owning abutting lots on that side moved their fences back, opening up the strip to its entire width. In 1877 the defendant company, claiming that it had a right to the full width of this 40-foot strip, commenced to move the fence back, but was stopped by Mr. Andries, the then owner of the lot. Again, in 1887, the defendant attempted to move the fence, and was again stopped by the husband of the complainant. The fence has been built there many years, but the true line has been in dispute, and the defendant contends that there has been no acquiescence such as would permit the complainant to hold the strip by adverse possession. The bill seeks to restrain the defendant from interfering with complainant’s possession and occupancy of the strip in dispute, and to establish the line where the fence is as the true line, and to perpetually enjoin the defendant from interfering with her possession.

As we have seen, the bill cannot be maintained upon the first proposition; that is, as establishing the right of way of the complainant over these premises. Can it be maintained to settle the dispute over this boundary line? We think not. The principle of injunctive relief against a tort is that, whenever damage is caused or threatened to property, admitted or legally adjudged to be the plaintiff’s, by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at’law, the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong. Adams, Eq. p. 207. Here" there is a controversy over the boundary, each party claiming a legal right. The boundary is not settled, and the land has never been adjudged to belong-to the complainant. It is held that a party whose right to land has not been established at law will not be protected by injunction against a suit to recover the land. Hil. Inj. 279. That there has been an act of trespass does not give the complainant the right to proceed in equity, and the bill is not framed to enjoin irreparable injury from repeated acts of trespass, but to settle the boundary. The remedy is clearly at law, and not in a court of equity. Wykes v. Ringleberg, 49 Mich. 567; Kilgannon v. Jenkinson, 51 Id. 240; Bresler v. Pitts, 58 Id. 347. In Kilgannon v. Jenkinson, it was said:

“A full review of the proceedings makes it entirely clear that the fundamental dispute is about the correct position of the line between lots 3 and 7. * * * The result is that the case in the record is not one of which a court of equity is authorized to take cognizance. The grievance implies legal remedies, and there are no elements to divest the jurisdiction at law, and entitle equity to deal with the controversy.”

From these considerations it is evident that complainant is not entitled to any equitable relief.

The decree of the court below must be affirmed, with costs of both courts.

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


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    Delbert L. Booth v. The Majestic Manufacturing Company.

      Authority of agent.

      A finding that defendant’s traveling agent had authority to employ the plaintiff as a salesman in a store, the proprietors of which had been given by said agent the exclusive agency in their city for the sale of defendant’s wares, is supported by' evidence that the defendant accepted the contract made with the proprietors of the store, and shipped to them the wares to be sold; that said contract provided that the defendant should advertise, and in that way aid ¡said proprietors in making sales, also for the hiring of a party to aid in the advertising, for which purpose, among others, the plaintiff was employed; that said agent came to said city to establish an exclusive agency, and that all he did in relation thereto was ratified and approved by the defendant; that a contract of advertising was entered into by the defendant through the agent; that some considerable advertising- was done, one bill for which the defendant paid, and afterwards wrote to the newspaper company that the agent had some little leeway, but had not notified the defendant of the bill before, and requested the newspaper company not to accept any expense on defendant’s account in the future, except with a written order from defendant’s office, but stating that defendant hoped to do some further advertising the next spring with the newspaper company.
    Error to Wayne. (Carpenter, J.)
    Argued January 25, 1895.
    Decided June 4, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    Tbe facts are stated in the opinion.

      Lemuel H. Foster, for appellant.

      Eaug é Yerlces, for plaintiff.
   Long, J.

Defendant is a corporation engaged in the manufacture of stoves, ranges, etc., at St. Louis, Mo., and had in its employ as an agent one J. W. Johnson. Johnson came to Detroit in the middle of December, 1892, and made a contract with Stearns Bros, for the exclusive agency for the sale of the defendant’s stoves, etc., in Detroit. At about the same time he arranged with the plaintiff, at the sum of $100 per month, to enter the defendant’s employ as salesman in the Stearns store, to ^exhibit the stoves, advertise them, and send out circulars, etc. He was so employed for two months. It is for this service that this action is brought. Plaintiff recovered, and defendant brings error.

The principal claim made by defendant is that there was no evidence in the case showing, or tending to show, that Johnson had any authority to make the contract with plaintiff. The contract made with Stearns Bros, was that Johnson was to expend $500 for them in newspaper advertising, or in any other way that they desired to advertise, either in street-car signs or in newspapers.. He was to send them a cook for one month, and have a salesman for two months, or, if a cook was not wanted, then he was to furnish a salesman for three months. Under this arrangement Stearns. Bros, were to have the exclusive agency in Detroit, and to have sent to them 20 ranges at once. The 20 ranges were sent to Detroit from St. Louis, Mo. While these negotiations were pending, Johnson asked if they could not ñnd a salesman, and the plaintiff was mentioned to him, and hired by him for two months. He worked the full time, doing the work required, when some trouble apparently arose between the defendant company and its agent, Johnson, and the contract made by him with plaintiff was repudiated. It claimed that Johnson was merely a traveling salesman, and had no greater power or authority. It appears that, some time previous to the arrangement made by Johnson with Stearns Bros, and the plaintiff, Johnson had ordered some advertising for the defendant company from the Detroit Free Press, and in a letter to the Free Press of February 7, 1893, it says of Johnson “that he had some little leeway, but had not notified us of this before.” The defendant company shipped, the stoves to Stearns Bros., and apparently recognized them as its exclusive, agent-in Detroit. The defendant also paid the Free Press for advertising done by the plaintiff while acting under the contract with Johnson.

The fact of Johnson’s agency is not disputed, but the contention is that he was but a traveling salesman, and therefore the arrangement with plaintiff was entirely outside of the scope of his employment. It. is undoubtedly true fhaf, if Johnson was a mere traveling salesman,. hie had no authority to hire the plaintiff, and the plaintiff could not recover. An officer of the defendant company at St. Louis testified that Johnson was employed simply as an agent for the sale of the company’s goods, at a monthly salary, and under an eral contract of no specified duration; that he had no authority to make contracts except for the sale of goods; that he had no right to buy anything for the company, to pledge its credit in any way, or to employ any agent for the company. This, standing alone and uncontradicted, would debar the plaintiff from recovery. But it is not uncontradicted. The dealings of the company,through Johnson, with other parties, contradict this. He did make the contract with Steams Bros., and the company accepted its terms, and shipped the stoves. That contract specified that the company should advertise, and in that way aid Steams Bros, in making sales. It also provided for the hiring of a party to aid in the advertising. The plaintiff was employed for this very purpose. This is some evidence that Johnson had larger powers than a mere salesman. He apparently came to Detroit to establish an exclusive agency, and all he did in relation thereto was ratified and approved by the defendant, except the payment of plaintiff. Perhaps from this alone the jury would not have been justified in saying that Johnson had power to bind the defendant for plaintiff’s payment. But there is other evidence in the case which shows larger powers vested in Johnson. As early as May, 1892, a contract of advertising was entered into by the company ^through Mr. Johnson, with the Detroit Free Press. While this was subject to the approval of the management, it seems that some considerable advertising was done, and in November, 1892, the company paid a bill to the Free Press Company, and promised to send more “as soon as we get straightened out in Detroit.” On February 7, 1893, the company again wrote the Free Press:

“Replying to your favor of the 6th inst., will say that Mr. Johnson had some little leeway, but had not notified us of this before. In future, please accept no expense at our account, except with a written order from this office. We hope, however, to do some further advertising with you this, spring:”

It is wholly improbable that Johnson was clothed with no greater authority than that of a traveling salesman, when we view his acts in the Stearns matter and the Free Press contracts. What the little leeway was which Johnson had is not made to appear except by his conduct in making contracts which were ratified by the company. There was evidence, therefore, from which the jury might well find that Johnson was something more than a mere traveling salesman, and that the contract made by him with plaintiff was within the scope of his employment. The case was fairly submitted to the jury.

The judgment must be affirmed.

Grant, Montgomery, and Hooker, Jj., concurred. McGrath,.O. J., did not sit.