text:
    MARX v. KING.
    1. Evidence — Contracts—Parol Evidence Rule — Subsequent Modification.
    While parol contemporaneous evidence is inadmissible to vary the terms of a written contract, subsequent oral negotiations modifying its terms are admissible in evidence.
    2. Principal and Agent — Holding Out — Estoppel.
    Advice by the principal to a purchaser of goods from a salesman, who had been making prices to the purchaser below the usual invoice rates, that any prices or arrangements made by the salesman would be satisfactory to the principal, binds the latter and estops him to claim that the prices thereafter made were unauthorized.
    3. Same — Authority of Agent.
    Persons dealing with an agent may rely on his apparent authority.

      4. Same — Scope of Authority.
    The apparent power of the agent is to be determined by the acts of the principal and not by the acts of the agent.
    5. Same — Evidence.
    It is incompetent, for the purpose of showing apparent authority of an agent or as characterizing his employment, to introduce evidence of acts not authorized or known to the principal or to the one with whom he dealt.
    6. Evidence — Admissions.
    Testimony tending to contradict plaintiffs’ testimony and showing admissions made by them is admissible.
    Error to Washtenaw; Kinne, J.
    Submitted June 8, 1910.
    (Docket No. 28.)
    Decided July 14,1910.
    Assumpsit by Jacob L. Marx and Eugene H. Kopple, copartners as B. Marx & Son, against Johanna King, executor of the last will and testament of Joseph King, deceased, for goods sold and delivered. A judgment for plaintiffs for an insufficient amount is reviewed by them on writ of error.
    Beversed.

      Bernard B. Belling, for appellants.

      John P. Kirk (M. J. Cavanaugh, of counsel), for appellee.
   Stone, J.

The plaintiffs bring this case to this court on a writ of error from the circuit court, where a jury rendered a verdict in favor of the plaintiffs in the sum of $161.95, an amount conceded by defendant to be due. The plaintiffs’ claim, which was disallowed by the jury, was about $4,500. Plaintiffs are jobbers and wholesale dealers in shoes, leather findings, and shoe store supplies, and have been so engaged for many years, having their place of business in the city of Detroit. Defendant, Joseph King, who died a few days after the judgment in this case was rendered in the lower court, and against whose executrix this suit has been properly revived, was engaged in the shoe business at Ypsilanti, Mich., and had been so engaged for many years. Jacob L. Marx, one of the plaintiffs, had known Joseph King for many years, and had business dealings with him off and on for 15 years, or possibly longer. The plaintiff Marx for a long' time, but after him Mr. Kopple, one of the plaintiffs now, then a traveling salesman, and finally Sidney Berger, another of plaintiffs’ traveling salesmen, had taken orders, from said King for goods. The plaintiffs claim that. Berger, the traveling salesman, simply took orders, and had no right to make any contracts.

It is the claim of the plaintiffs that prior to July, 1906, Mr. King had always paid his bills by checks sent direct to the house, and that after July, 1906, Mr. King, with one or two exceptions, never sent any checks direct to the house. Money that was received at the office of the plaintiffs on his account was received through the said Berger. One Clarence C. French was a bookkeeper for plaintiffs during the year 1906, and down to the latter part of 1907. It was conceded by Mr. King that from January 4, 1906, to August 31, 1907, plaintiffs had shipped to him, and he had received, goods invoiced at the sum of $16,260.30. The books of the plaintiffs, as they appeared at the time of the discovery by the plaintiffs of the transactions claimed by them to be fraudulent between Berger and the defendant, King, showed credits during the same period of $12,305.22; but the plaintiffs claim that, after the discovery of the fraud, it appears that the bookkeeper French changed the entries in the ledger to correspond with those appearing in the cashbook and journal, whereby the amount of credits was reduced $700. In other words, it is claimed Mr. King had been credited on the ledger by French, the bookkeeper, with $700 more than the cashbook and journal showed, so that the balance, according to the original entries on the books of the plaintiffs (cashbook and journal), showed a balance still due from King to plaintiffs in the sum of $4,592.08, on September 1, 1907.

The defendant, King, both in his pleadings and evidence, admitted that he had not paid the full invoice prices for the goods, but through transactions had with Berger, plaintiffs’ traveling salesman, had deducted large amounts for discounts and allowances other than those appearing on the invoices sent by the plaintiffs to the defendant; and the said King claimed the amount of the discounts and allowances added to the amount actually paid to Berger totaled the full amount of the invoice prices of the goods, with the exception of said sum of $161.95, which the defendant paid into court and admitted to be due the plaintiffs, and which was the amount allowed by the'jury.

The method of doing business between the plaintiffs and the defendant, King, was .as follows: The traveling salesman, Berger, would go to the store of King, at Ypsilanti, and take orders for goods. These orders, when so taken, would be sent to the plaintiffs, who would ship the goods to the defendant, King, at the same time sending him an invoice for the same at the prices stated in the orders, which had in all cases either one of two rubber stamps impressed thereon:

“Terms, strictly net 30 days and 2 per cent, discount in 10 days, subject to draft when due,” or “ Positively no discount allowed other than specified on bill.”

It appears that each and every invoice sent by the plaintiffs to the defendant for merchandise contained one or the other of these rubber stamp markings thereon.

Plaintiffs concede that Berger had authority to collect, and that the defendant is entitled to be credited with all the money that he actually paid Berger, whether Berger turned it over to the plaintiffs or not.

The declaration contains a special count setting up a conspiracy between King, Berger, and French to defraud the plaintiffs, and sets forth the invoice prices of the goods shipped to King, the credits as they appear upon the books of the plaintiffs, and the alleged fact that it was discovered that some of. the credits in the ledger were fictitious and raised from the amounts actually shown by the cashbook. The declaration also contained the common counts, including a count for goods sold and delivered, and a bill of particulars was filed setting forth the amount of the goods sold and delivered.

Both of the plaintiffs testified in the case, and both claimed that neither had any knowledge nor notice at any time that Berger was assuming to give King any discounts or allowances other than those named in the invoices until August, 190?, when it is claimed the fraud was discovered and that Berger made a complete confession, in which it appeared that Berger and French, acting in conjunction, embezzled moneys collected, and gave unauthorized discounts to increase Berger’s sales.

Upon the trial, the defendant, King, seemed to rely upon the following defenses: (1) He claimed that he instructed his clerk, one Minnis, in July or August, 1906, to call up the plaintiffs, and Minnis claims that he got plaintiff Marx on the telephone and asked him why the invoices came billed higher than the prices that Mr. Berger made to Mr. King, and that Mr. Marx stated that Mr. Berger and Mr. King had an understanding, and to settle with Mr. Berger, and that it would be all right. Evidence to this effect was taken under objection and exception on thp part of the plaintiffs, and Mr. Marx denied any such conversation or arrangement. (2) That Berger had given discounts to other customers of the plaintiffs which, although a fact, was shown not to have been with the knowledge of plaintiffs or Mr. King. This evidence was received under objection and exception, and will be referred to more specifically hereafter.

There were many exceptions taken by the plaintiffs upon the trial. There was a motion for a new trial, which, having been denied, exceptions were duly taken, and there are 83 assignments of error in the record. We shall not discuss all of them. They may be discussed under three headings:

(1) The admissibility of certain testimony showing the dealings of the plaintiffs through Mr. Berger, their agent, with defendant King and other customers.

(2) The argument of counsel to the jury.

(3) The refusal of the court to grant certain requests in the charge to the jury.

Assignment of error 56a involves the question as to whether it was competent to receive the evidence of the witness Minnis as to the telephone communication, which he claims he had with the plaintiff Marx, relating to the right of the said Berger to allow discounts and allowances to the defendant. The plaintiffs presented a request to charge, reading as follows:

“ The plaintiffs in this case have proved the sale and delivery of merchandise of the invoice value of $16,197.30 from January 1, 1906, to August 31, 1907. I charge you that there is no evidence in this case from which you have the right to infer that Sidney Berger, plaintiffs’ agent for soliciting orders, had any authority to give any discounts or allowances to defendant other than those stated upon the invoices.”

This request was refused, and the following language occurs in the charge of the court:

“ In this case, however, the defendant insists that in all of his large dealings with the plaintiffs they have always made him discounts and allowances; that he had a distinct understanding with Mr. Marx, the leading member of this firm of the plaintiffs, that he should have these discounts and allowances; that he refused to trade with him except upon those terms; that it was so understood by the plaintiffs; and that the plaintiffs distinctly explained and waived the conditions stated in their invoices; and that in July or August, 1906, when Mr. King raised this question over the phone through Mr. Minnis, that Mr. Marx replied that Mr. Berger and Mr. King had an understanding about the question of discounts and allowances, and that whatever settlements were made by them would be all right. Now, gentlemen of the jury, if you find from the evidence that these contentions on the part of the defendant are sustained and established, then the plaintiffs are bound by such understanding, and the defendant is entitled to your verdict, except as to the amount conceded.”

The plaintiffs insist that it was error to receive evidence of this nature, and that the court erred in refusing to give plaintiffs’ requests in charging the jury as above. It is claimed by plaintiffs that this was permitting parol evidence to alter, or vary, or abrogate, a written contract. It will be borne in mind that this claimed conversation arose at a time when defendant King’s attention was called to the fact that goods were shipped to him with invoice prices larger than those agreed upon with Berger. There is no legal objection to the receiving of parol evidence of subsequent agreement to vary, and even to abrogate, a written contract, if it were conceded that this was such contract. The rule which it is sought to apply is the well-known rule that contemporaneous parol evidence will not be received to alter or vary the terms of a valid written instrument. The distinction is plainly pointed out in the case of Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665), cited by counsel for plaintiffs. The true rule is laid down in 17 Cyc., at page 734.

In support of the rule that a subsequent parol agreement may abrogate or modify the contract, we need only refer to two or three of our own cases. Town v. Jepson, 133 Mich. 673 (95 N. W. 742). In Mouat v. Bamlet, 123 Mich. 345 (82 N. W. 74), where the parties had acted under a parol agreement which had been substituted for one in writing, and had made settlements thereunder, they were held estopped to claim under the old contract; and that the old contract had been waived. Wolff v. Alpena National Bank, 131 Mich. 634 (92 N. W. 287).

In our opinion, the question of the altering of a valid written instrument by parol, is not here involved; and we think it very clear that if the plaintiffs, pending the dealings between the parties, when their attention was called to the fact that Berger was making prices to the defendant which were below the invoice prices, stated to the agent of the defendant, intending that it should be communicated to him, that any prices or arrangements made by Mr. Berger would be satisfactory to them, and would be all right, and that the dealings continued, the defendant relying upon such statement in all the subsequent settlements that were made with Berger, the plaintiffs are estopped to claim that no such arrangement was made, or that it was not binding. When the plaintiffs referred the defendant to Mr. Berger as the person who had authority to fix prices and settle accounts, they held him out to the defendant as clothed with authority in tha.t respect. This court has repeatedly held that if one party refers another to a third person for information, as authorized to act or answer for him, he will be bound by the actions and statements of the person so referred to. Reeves v. Kelley, 30 Mich. 132; Beebe v. Knapp, 28 Mich. 53; Beebe v. Young, 14 Mich. 136; Rosenbury v. Angell, 6 Mich. 508. We find no error in this action of the court.

This brings us to the other main claim of error urged by the plaintiffs upon the trial of the case. .It appears that the court permitted the defendant to show that Berger had dealt in a similar manner with divers other parties, in that he had allowed discounts and allowances to them differing from the invoices, and that this had been done without the knowledge of either of the plaintiffs, or of the defendant, King. This may be said of the testimony of the witnesses Leo Gruner, Fred Tagg, A. Levy, J ohn W ahr, and J ohn Lambert. This question was raised by objection and exception to the testimony, by motion to strike out the testimony, and by request to charge, and the question is presented by the 81st assignment of error.

Plaintiffs’ 33d request to charge was as follows:

“Thereis evidence in this case that Berger gave discounts and allowances to dealers other than the defendant; the evidence further shows that plaintiffs had no knowledge nor any information on the subject, nor did defendant, King. I charge you therefore that the giving by Berger of discounts or allowances to others under these circumstances may not be considered by you as a holding out by plaintiffs of said Berger as having any authority to grant discounts or allowances to King, nor as a circumstance from which King had a right to infer or believe that Berger had such authority.”

This request was refused, and the court charged the jury in the following language:

“The evidence as to the dealings of Berger with others was admitted in evidence as tending to show his apparent authority, and to characterize his agency, and as affecting the probable knowledge of the plaintiffs as to the conduct of their agent. If, in point of fact, Mr. Berger had no such authority, and the plaintiffs were ignorant of the conduct of Mr. Berger, inasmuch as the defendant had no knowledge of those transactions, it would in itself be no justification or protection to him, and his defense would fail, unless the defendant himself had express authority from Mr. Marx himself to settle with Mr. Berger according to their understanding.”

The last portion of the above charge attempts to qualify the former portion, but it is the claim of the plaintiffs that the admission of the evidence was error, and that the whole subject should have been taken from the consideration of the jury, and that it was error to submit the question at all to the jury.

The doctrine is clearly stated in 31 Cyc. p. 1331, et seq., as follows:

“While as between the principal and the agent the scope of the latter’s authority is that authority which is actually conferred upon him by his principal, which may be limited by secret instructions and restrictions, such instructions and restrictions do not affect third persons ignorant thereof; and as between the principal and third persons the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses, and which the principal is estopped to deny. The apparent authority so far as third persons are concerned is the real authority, and when a third person has ascertained the apparent authority with which the principal has clothed the agent, he is under no further obligation to inquire into the agent’s actual authority. The authority must, however, have been actually apparent to the third person who, in order to avail himself of the rights thereunder, must have dealt with the agent in reliance thereon in good faith, and in the exercise of reasonable prudence, in which case the principal will be bound by acts of the agent performed in the usual and customary mode of doing such business, although he may have acted in violation of private instructions, for such acts are within the apparent scope of his authority.”

In 1 Am. & Eng. Enc. Law (2d Ed.), pp. 989, 990, the author, after discussing the authority which an agent has been given by his principal, proceeds as follows:

“ Beyond that, he is bound by the acts of the agent within the apparent authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. For the acts of his agent within his express authority the principal is liable, because the act of the agent is the act of the principal. For the acts of the agent within the scope of the authority which he holds the agent out as having, or knowingly permits him to assume, the principal is made responsible, because to permit him to dispute the authority of the agent in such case would be to enable him to commit a fraud upon innocent persons.”

In Mechem on Agency (Ed. of 1889), § 84, that author says:

“ It may therefore be stated as a general rule that whenever a person has held out another as his agent, authorized to act for him in a given capacity; or has knowingly or without dissent permitted such other to act as his agent in such capacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity; whether it be in a single transaction or in a series of transactions, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights ■of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence, and he will not be permitted to deny that such other was his agent, authorized to do the act that he assumed to do, provided that such act is within the real or apparent scope of the presumed authority.”

It would seem that we need not go outside of the decisions of this court upon this question. They have been so numerous, and have arisen under so many different circumstances, that they seem to cover the entire field. Jewett v. Bryant, 159 Mich. 345 (123 N. W. 1097); Davis v. Kneale, 97 Mich. 72 (56 N. W. 220); Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75).

In the last-named case Justice Grant said:

‘ ‘ The apparent power of the agent is to be determined by the acts of the principal, and not by the acts of the agent. * * * No act of the principal in this case appears upon the record to show that it clothed its agent with authority to pledge its liability to pay the debts of third persons. The evidence here is one of original authority. There is no evidence of ratification.”

See, also, Heffron v. Armsby, 61 Mich. 505 (28 N. W. 672); Barry v. Insurance Co., 62 Mich. 424 (29 N. W. 31); Verdine v. Olney, 77 Mich. 310 (43 N. W. 975); Leo Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350); Hirschmann v. Railroad Co., 97 Mich. 397 (56 N. W. 842).

In Clark v. Dillman, 108 Mich. 627 (66 N. W. 570), Justice Hooker said:

“ It is undoubtedly the law that a person may be bound by the representations and acts of another, as agent, where there has been such a holding out as to reasonably lead one dealing with him to believe in the existence of such agency. But all of the elements of an estoppel must be present. There must be conduct calculated to mislead, and it must be under circumstances which justified the claim that the alleged principal should have expected that the representations would be relied and acted upon; and further, it must appear that they were relied and acted upon, in good faith, to the injury of the innocent party.”

In all of these cases the action of the agent had been brought home to the principal, and recognized and ratified; and it appeared that the other party had relied upon the apparent authority, and had acted in good faith. Many authorities in other States may be cited. Gallinger v. Traffic Co., 67 Wis. 529 (30 N. W. 790); Law v. Stokes, 32 N. J. Law, 249 (90 Am. Dec. 655); Edwards v Dooley, 120 N. Y. 540 (24 N. E. 827); Olcott v. Railroad Co., 27 N. Y. 558 (84 Am. Dec. 298); Beattie v. Railroad Co., 90 N. Y. 643; Creighton v. Finlayson, 46 Neb. 457 (64 N. W. 1103); Brown v. Eno, 48 Neb. 538 (67 N. W. 434).

In the light of these authorities we feel compelled to hold that the court erred in receiving this testimony and allowing it to go to the jury. Especially is this true with reference to the testimony of the witnesses Gruner, Tagg, and Levy. The testimony of John Wahr and John Lambert, in so far as it contradicted the testimony of plaintiffs and showed admissions made by them, was admissible for that purpose, and should have been so submitted to the jury. But we are constrained to say that neither for the purpose of showing apparent authority, nor as characterizing the employment, was it proper to submit this evidence to the jury, and in our judgment it was reversible error to do so.

We have read this record carefully and find no other error worthy of consideration. The'main charge of the court finds support in our own decisions; and in Leo Austrian & Co. v. Springer, supra, many of the principles are discussed which are embodied in the charge. We find nothing in the conduct of counsel in the argument of the case that is worthy of consideration, but we feel compelled to reverse the case upon the error pointed out.

Judgment reversed, and new trial ordered.

Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    HATHAWAY v. VAUGHAN.
    1. Corporations — Stock—Sale—Contracts.
    A corporation may sell its capital stock at par and at the same time, in good faith, sell its personal property for a sum payable partly in cash, partly, if at all, from dividends thereafter to be declared upon the stock issued to the vendee of the personalty, and may not, without disaffirming the agreement and retendering the consideration, recover the value of the personal property.
    2. Contracts — Implied and Express Obligations.
    The existence of an express contract executed upon both sides precludes recovery upon an implied contract relating to the same matters.
    3. Same — Actions.
    The commencement of an action of assumpsit affirms a contract where one exists and has not been disaffirmed.
    Case made from Baton; Smith J.
    Submitted June 9, 1910.
    (Docket No. 34.)
    Decided July 14, 1910.

      Assumpsit by C. Roy Hathaway, trustee in bankruptcy of the Dolson Automobile Company, against Barret D. Yaughan, for the price of an automobile. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.
    •. Frank A. Dean and Thomas, Cummins & Nichols, for appellant.

      Garry C. Fox, for appellee.
    This is an action in assumpsit to recover the value of an. automobile, sold by plaintiff’s insolvent to defendant. The facts agreed upon by the parties and adopted by the court are as follows:
    “(1) That the Dolson Automobile Company was incorporated under the general law for the incorporation of manufacturing and mercantile enterprises on the 11th day of October, 1905.

      “(2) That they were incorporated for the purpose of manufacturing and selling automobiles, and did manufacture and sell automobiles from the date of the incorporation up to the time of its bankruptcy.
    “(3) That one L. M. Disney was the general manager of said corporation and had authority from said corporation to sell its stock.
    “(4) That he (Disney) had a contract with the corporation to sell its stock; he to receive as compensation and. expenses the sum of 15 per cent, of the stock sold.
    “ (5) That one George Stephens was employed by Mr. Disney to sell such stock, and had a talk with the defendant in regard to the purchase of stock, and also of a sale to the defendant of an automobile.
    “ (6) That he (Stephens) represented that the company at such time could declare a dividend of 50 per cent., and offered the defendant, if he would buy 100 shares of stock at par value of $1,000, that the company would accept the dividends on such stock for four years, and that such. dividends with a cash payment of $500 should pay for the automobile, if any, which he (the defendant) purchased of the Dolson Company.
    “ (7) That the defendant came to Charlotte and had a. talk with Disney, who verified such offer so made by Mr. Stephens, and did so after he had a talk with the three Dolsons, namely, John L. Dolson, D. Eldo Dolson, and W. Elton Dolson; the three being directors of said corporation.
    “ (8) That Stephens, as an inducement to defendant to purchase said stock and said automobile, represented to him or furnished him with an itemized statement showing that the total cost of said automobile, which was sold at the market price of $2,500 without top, was $1,272.06; that that was, as appeared later, in the nature of an estimate; and that the real cost, including cost of sale, was something like $1,400.
    “(9) That on the 1st day of February, 1907, the defendant, after talking the matter over with Mr. Disney, and after Mr. Disney had referred the matter to the three Dolsons above named, entered into a contract or gave what might be called a note, which reads as follows:
    “ ‘ Charlotte, Michigan, Feb. 1, ’07.
    “‘Four years after date, for value received, I promise to pay Dolson Automobile Company of Charlotte, Michigan, $2,670.00, for one Dolson automobile, Model H, with full lined top complete with all accessories. It is understood that payment of this paper is to be by dividends on certificate of ,stock 127 and in no other way, and on the dividends accruing on this stock in the next four years. If at the end of four years from date said dividends have not paid this note, it is to be delivered to the signer paid, excepting $500, which is to be paid previous to the 15th of February. Machine to be delivered to B. D. Vaughan, Bellevue, Michigan, not later than April 1, 1907.’
    “ (10) That such contract was signed by the defendant and accepted by the Dolson company, and on the same day the defendant paid to the Dolson Automobile Company $1,000 for 100 shares of stock pursuant to said contract, which certificate of stock was numbered 127.

      “ (11) That later and on or before the 15th day of February the defendant paid the $500, which was indorsed upon the contract above referred to.
    “ (12) That the defendant has paid no other sum or sums for the automobile which was contracted for and delivered to him on April 1, 1907.
    “ (13) That at the time the Dolson Automobile Company and the defendant entered into this contract, and at the time the defendant purchased the stock referred to, the company was insolvent; but this fact was known neither to the officers of the corporation nor to the defendant.
    “ (14) That the company never earned or declared any dividends.
    “(15) That on the 9th day of July, 1907, at a meeting of the directors of said corporation, there were also present by representatives a large number of creditors; that it was arranged there by the directors of the corporation that a competent bookkeeper to be named by the directors was to be placed in full charge of the affairs of the company ; that the bookkeeper was to be placed under a good :and sufficient bond to be paid for by the company conditioned to account to the said company and to the said creditors of the said company weekly as to all moneys received and disbursed in carrying on the said business; that a competent superintendent was to be employed by said Dolson Company to have the entire charge of manufacturing the output of said corporation; that the directors should act in co-operation with the creditors and should hold weekly meetings on Thursday of each week at 4 o’clock p. m., at which meetings there should be reports read of its financial affairs, and in case the creditors should deem it advisable they should be represented on said board of directors.
    “(16) That the largest creditors of the company had agreed that no one of them should be preferred over any other in the way of collecting accounts.
    “ (17) That the Dolson Company was adjudicated a bankrupt on the 26th day of November, 1907, and on the 17th day of December, 1907, C. Roy Hathaway was appointed trustee; he being the plaintiff in this suit.
    “ (18) That the list price of the automobile which was purchased or of the class of automobiles one of which was purchased by the defendant was $2,500, and in addition thereto was a top at $150 and a speedometer at $20, for which the note was given, that being the purchase price, $2,670, and that that was the usual selling price of the machine.”
    The case was tried by the court, and a judgment was entered for defendant. Plaintiff has removed the case to this court for review by writ of error.
   Brooke, J.

(after stating the facts). It is urged by appellant that the contract entered into between his insolvent and defendant was an absolute nullity; that it amounted in effect to an agreement on the part of plaintiff’s insolvent to pay dividends upon defendant’s stock, whether such dividends were earned or not; and that, the contract having been performed by the insolvent, the trustee may maintain an action in assumpsit, upon the ground that the defendant has accepted and appropriated the benefit of the contract — this alleged right of action resting, not upon the contract, but upon the duty, promise, or obligation springing from the property, money, or benefit conferred by plaintiff and received by defendant.

We think that appellant is in error upon each one of the foregoing propositions. There can be no doubt that the responsible officers of a corporation may sell its capital stock at par, and may likewise, in good faith, sell its personal property for a sum, part to be paid in cash, and the balance, if paid at all, to be paid from dividends thereafter to be declared upon the stock of the corporation sold to the vendee of the personal property in the same transaction.

It will be noted that the corporation did not agree to pay dividends upon the $1,000 of stock sold, to the amount of $2,170, within four years. It did agree that it would accept $500 in cash and such dividends upon the stock as might be declared, up to the amount of $2,170, within four years, in full consideration for the automobile, and further, that if, within said period, the dividends declared did not amount to $2,170, then the $500 cash, paid by defendant, should be accepted by the corporation in full of his obligation. This contract was entered into between the corporation and defendant in good faith, and in the evident belief that the stock sold was worth the sum paid for it by defendant, and would produce dividends to meet the balance of the obligation. As a matter of fact, the stock was absolutely worthless. While this was unknown to the corporation, or its responsible officers at the time, it had the means of ascertaining the truth, while the defendant was obliged to rely upon the representations of the corporation as to the value and probable earnings of the stock. This was not a contract between a corporation and a stockholder, but one between the corporation and a stranger, by the terms of which the stranger became a stockholder and vendee of certain personal property.

Plaintiff cannot recover upon the theory of an implied contract. The contract was express and fully executed upon both sides. Defendant has done all he agreed to do, and plaintiff’s insolvent has done nothing more than it contracted to do. Galloway v. Holmes, 1 Doug. (Mich.) 330; Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Searles v. Reed, 63 Mich. 485 (29 N. W. 884).

An action in assumpsit affirms a contract where there is one. Galloway v. Holmes, supra.

Aside from this, neither plaintiff nor his insolvent has attempted to avoid the contract. Plaintiff still retains the $1,500, the fruits of the contract to his insolvent, and now seeks to impose new and alien liabilities upon the defendant. The plainest elements of justice forbid such a course. As was Said in Parish v. Wheeler, 22 N. Y. 494:

‘ ‘ The executed dealings of corporations must be allowed to stand for and against both the parties, when the plainest rules of good faith so require.”

See, also, Rehberg v. Tontine Surety Co., 131 Mich. 135 (91 N. W. 132).

The judgment is affirmed.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
      In re HOYLES’ ESTATE.
    1. Evidence — Expert and Opinion Testimony — Inoompetenoy— Wills.
    An. opinion that a testatrix was incompetent, in proceedings for the probate of a will, may only be given after the witness has testified to circumstances upon which it is predicated and which tend to justify his conclusion.
    2. Same — Wills—Opinions.
    A physician who attended deceased at intervals up to three days before she executed her will, and who saw her a few days after, who testified that she had locomotor ataxia, that she was nearly blind, and was helpless, that the disease had produced physical and mental debility, and stated other circumstances relating to her appearance and condition, is sufficiently qualified to express an opinion as to her competency to transact business.
    3. Wills — Competency—Burden of Proof.
    In a case where the evidence is conflicting as to competency of the testatrix, and the trial court has denied a new trial, and the burden of proof is on the defeated party, a verdict will not be set aside as contrary to the weight of the evidence, unless the case is a very clear one affording strong evidence that the jury was biased or prejudiced.
    Error to Lapeer; Smith, J.
    Submitted June 9, 1910.
    (Docket No. 37.)
    Decided July 14, 1910.
    Samuel Hoyles presented for probate the last will and testament of Euretta A. Hoyles, deceased. The will was allowed in probate court, and Elizabeth Briggs and another, contestants, appealed to the circuit court. A judgment for contestants is reviewed by proponent on writ of error.
    Affirmed.

      Geer, Williams & Halpin, for appellant.

      William E. Brown, for appellees.
   Stone, J.

The question in this case was upon the validity of the paper claimed by Samuel Hoyles, the appellant and proponent, as the last will and testament of Euretta A. Hoyles, deceased. The instrument was admitted to probate in the probate court, and contestants, two sisters of testatrix, appealed to, and prevailed in, the circuit court. The proponent has brought error. The main ground upon which the validity of the paper was assailed was that, at the time it was drawn and executed, the testatrix was not of sound and disposing mind and memory; but that her mental faculties were so enfeebled and overcome by disease as to render her incapable of properly understanding her relations to others, their relative claims upon her bounty, the particulars of her property, and the nature of the disposition made by the instrument. The following statement of facts is compiled from proponent’s brief:

The testatrix, a single woman, died July 6, 1906, at the home of William Osborne in Lapeer county, aged about 52 years. The will in question was executed June 19, 1906. Miss Hoyles’ father died when she was about two years old, and shortly after his death she was taken into the family of Samuel Hoyles of Aurora, Ill.; her mother being in poor circumstances. She was not legally adopted by him, but was raised by Samuel Hoyles and his wife as their own child, and lived in their family until she was 38 years old. They had no children, and Euretta did not know that she was not their child until she was 16 years old. She received her early education in the public schools of Aurora, and taught there and in a seminary for more than 20 years. She then went to the University of Michigan, where she graduated, and in the same year went to Lapeer as principal of the high school, which position she held for five years, during which time the children of William Osborne, were her pupils. She then went to the Philippines as a government teacher, and remained there three years. The climate there proving injurious to her health, she returned to the United States in the fall of 1904. She landed in New York, and went from there to Aurora, stopping a few days in Lapeer on her way. Her foster mother had died in the meantime, and she spent the winter in Aurora, hoarding at the same place where Mr. Hoyles made his home. The plan was that she and Mr. Hoyles should thereafter live together. When she was a student at Ann Arbor, Mr. Hoyles visited her there, and, during one or more of the summer vacations, took apartments where they spent the summer together. He also visited her while she was teaching in Lapeer. In the spring of 1905 she was afflicted with a nervous disease called “locomotor ataxia.” She had become weak and emaciated, and went to a sanitarium at Castile, N. Y., hoping to be benefited, and intending to return to Aurora. She soon became satisfied that she could not be benefited by the treatment at the sanitarium, and she wrote to a niece living not far from there, proposing to go and spend some time there. Not hearing from her after waiting a few days, she started home to Aurora. She stopped at Lapeer to visit friends. She went into the country to spend a few days at the farm home of Mr. Osborne, and, believing that the conditions there would prove beneficial to her health, she arranged with the Osborne family to permit her to make a more protracted stay. She then sought to have Mr. Hoyles come there to be with her; but the condition of his health would not permit, and he was not able to go until June 15, 1906, about a year after Miss Hoyles went to live with the Osbornes. Soon after he arrived, she asked him to draw her will. He suggested that this could better be done by a lawyer, but finally drew it for her June 19th, and it was witnessed by Mr. Osborne and his son. During the year she was at Osborne’s she required a good deal of care, being unable to dress herself, and this, and many more unpleasant duties, were discharged by Mrs. Osborne. Miss Hoyles paid |3 a week for her board and also for washings. Her estate consisted of about $1,000, nearly all in money. By the terms of the alleged will, Mr. Hoyles was to have $300, and there were other small bequests to his relatives aggregating $125, and $50 to the daughter of Mr. Osborne. Her trunk of clothing was to go to her sister, Mrs. Briggs, one of the contestants, and Mrs. Osborne was made residuary legatee.

Miss Hoyles had executed a prior alleged will on April 27, 1906, at the home of Dr. Blake at Lapeer, in and by which she had given Mr. Hoyles $100, Mrs. Cora Hoyles $25, Mrs. Osborne $50, and the balance to be equally divided between her two sisters, the contestants, after taking out $25 for each of her three nieces, and $50 for a monument; and some gifts of personal effects to friends were made. It was the claim of proponent’s counsel on the trial at the circuit court, that there was no evidence in the case that would warrant the jury in finding a verdict against the will of June 19th, and they asked the court to direct a verdict, which it refused. A motion for a new trial was made on the ground that the testimony of the only witness for the contestants was incompetent, and that the verdict was contrary to the weight of evidence. The motion was denied, and by exceptions and assignments of error the said questions have been raised and argued.

Dr. William Blake was the principal witness for the contestants, and it is the claim of the proponent that his testimony, as to the mental condition of Miss Hoyles, was incompetent, for the reason that he did not testify to any facts or circumstances that would sustain the opinion he expressed. We shall not undertake to give all the testimony of Dr. Blake which is contained in this record, but enough to indicate the nature and trend of it. He testified: That he had lived in the city of Lapeer 18 years. Was a physician, and had been in the practice of medicine for over 30 years. That he knew Miss Hoyles in her lifetime, and knew her during the five years in which she taught school at Lapeer, and that she had been a frequent visitor at his home. That she had visited his home after her return from the Philippines in the fall of 1904. That members of his family corresponded with her while she was in the Philippines. That by invitation she was present at the marriage of his daughter in June, 1905, and remained some days, probably a couple of weeks, in the family as a guest. That when she returned from the Philippines he observed she was in a very poor condition, suffering from nervous trouble. That she was very weak and debilitated, and very thin in flesh. That she stayed a few days upon her return from the Philippines and then went to Aurora. In June, 1905, he noticed she was in very poor health. That especially the nervous disease was then progressing. That she was then afflicted with locomotor ataxia. That she went to a sanitarium in the State of New York, for a time, in the spring of 1905, returning to his house in June, and was there a few days off and on, and that soon after she went to Mr. Osborne’s to live. That he saw her frequently, and observed that the nervous trouble was gradually growing worse, so that at times she was not able to get up or arise from a chair, and when she did so she staggered. That she had paid a visit to him and his family in the month of April, 1906, was there some two or three days, and that while there, on the 37th of April, his wife, at her request, prepared the will of that date. Pie further testified that he saw her the last Sunday previous to her death, and the Sunday before that. That she died July 6th. Also that he saw her about the middle of June. He had not been her physician, but in the fall of 1905 had treated her for an ulcer upon her foot. The relations between herself and his family had been very close. That she had issued two small volumes of poems, and that one of these books was dedicated to his wife. These friendly relations continued. During the second Sunday before she died, he saw her, and he testified that she was so nearly prostrated that she could not see distinctly. She could only talk in whispers. That her condition continued to grow worse, and on the second Sunday he thought she was totally blind, and that the disease from which she suffered is one that leads to the deterioration of the nerves. That the nerves become hard and deteriorated, and that the optic nerve becomes affected, and that persons frequently become blind before death with this disease. That the physical condition becomes weak and debilitated, and that the brain suffers with the rest of the body. That the brain is the center of the nervous system. That this particular disease is affecting to the nerves of the trunk and spine, leads to great inanition, loss of flesh, muscles become hard and weak, and the digestion is affected 5 and, in fact, the whole system is broken up, and with it the brain becomes weak and feeble. That he saw Miss Hoyles at Mr. Osborne’s on the 16th day of June, three days before the will in question was drawn. He took Mr. Hoyles up there and left him. He noticed that she had been failing very rapidly since he last saw her. That she was becoming weaker and more debilitated in the way of helping herself, and by loss of flesh she had become a mere skeleton. In fact, her face was drawn, mere skin and bones, and presented a skeleton-like appearance.

After giving testimony of this nature, Dr. Blake was asked the following questions:

“Q. From the progress of the disease and the condition you saw her in that day you have described, what would you say about her being able to remember her relatives or beneficiaries at that time without prompting f ”

Under objection and exception he answered:

“A. I think she could not remember.
ilQ. What would you say with reference to her being able to remember all of her affairs and property interests ?
“A. I think she could not remember.
UQ. Doctor, was she in a mental and physical condition to transact any business requiring exercise of the judgment or reasoning faculties and the consecutive continuation of thought ?
“A. No, she was not.”

Upon cross-examination Dr. Blake testified that he never heard her say or do anything that would show she was not mentally competent, but he judged of her condition from her general appearance and the recognized progress of the disease. He testified that he thought she would not be able to call to mind friends or property unless they were suggested to her; that he made no test to determine her mental competency, but based his opinion upon her weakened physical and mental condition resulting from the progress of the disease. He further said:

“ The disease that she was suffering from is one that we call locomotor ataxia, or disease of the spinal cord, and nerves coming from it; and the peculiarity of that disease is the general loss of power: First, local loss of power generally in the lower limbs, and that is progressive, goes from bad to worse. There is connected with it loss of flesh, loss of nutrition. Nutrition becomes poor, and if the patient lives long enough not only the spinal cord, but the general nervous system and the brain itself become affected, and the brain is somewhat hardened, and the optic nerves especially are liable to become affected, so that the patient may early become blind. It is not necessarily the case that blindness occurs, but it may. I wish to impress that it is a progressive disease, from bad to worse, and causes such great debility that the person before she dies is liable to be very weak and debilitated, and may be in various nervous conditions. That is as far as I think it is.necéssary for you to .understand what the case is, and how it leads to the termination, and what effect it has upon the general system, and through the general system on the brain itself. The blood supply becomes poor; nutrition is poor; the person cannot assimilate food enough; the blood doesn’t supply the brain properly, so that it becomes so dull that the person may be around but not know some things, somewhat disconnected, and at times not able to think in a consecutive manner; and this may come even before the brain itself has any organic disease. It will in time. Any organic disease is where a change takes place in the structure of the brain or in the nervous system, and the principal thing is that the nutrition becomes so poor, the ability to take food is poor, and the body is so poorly fed that it becomes thin to a mere skeleton, and the supply of blood to the brain is not sufficient to keep it in an active or normal condition.”

He further testified that it was not merely because Miss Hoyles was so poor physically that led him to say she was not able to make a will, but it was his knowledge of her condition and the disease, and its progress, from which she was suffering; that, while he did not gain this information by any tests, he did gain it from observation and anxiety to know the condition of the woman, as she was, and had for years been, a great friend of the family.

Dr. Blake was really the only witness offered by the contestants to show mental incapacity. There were a number of witnesses who testified on behalf of the proponent; but a careful examination of the record will disclose that many of these witnesses, upon cross-examination, gave evidence tending to strengthen the position of the contestants. For instance, the witness Mrs. Polglase, the wife of Dr. Polglase, testified to an intimate acquaintance with Miss Hoyles. She saw her about a week after the will in question was made. Again she saw her in July, just before her death, when she was helpless. She testified:

“ The last of June she could help herself a little. The last visit she would need some one to help her out of the chair. Up until the last visit I did not see much change in her. The condition was practically the same all the spring, May and June. She looked pretty bad to me. Her flesh was gone, and she was a mere skeleton. Skin drawn over her face. There was nothing but the bone, and it was surprising to think that she knew what she was doing. She had barely enough vitality to live.”

There was other evidence that Miss Hoyles was totally blind during the last two weeks of her life. The witness Mary Osborne, one of the legatees in the will, wrote to Mrs. Briggs, one of the sisters of testatrix, on July 19, 1906, detailing the circumstances of her death. She said:

“ During the winter she could not walk because of abscesses which formed on foot and knee. From that time there were few meals that she ate with us. We had to carry them to her. Gradually her appetite failed, and this, of course, reduced her strength. During June she failed very fast. We supposed Mrs. Blake told you of Miss Hoyles’ condition. Miss Hoyles became blind about two weeks before she died, and was unable to help herself in any way for about three weeks. It was certainly pitiful to see her. The last week she was so weak she couldn’t utter a whole sentence at a time.”

It is worthy of note that in the will of June 19th no reference was made to the will of April 27th. In fact, Mr. Hoyles testified that testatrix did not tell him of the former will, and that he had never seen it, and did not know its contents, but had learned from Mrs. Blake that' such former will had been made. There was other testimony that he did know its contents and said he had read it, and that the last will was not satisfactory, but was better than the first one. He testified that he drew the will from memoranda which he had made at dictation of testatrix; that after drawing the will he read it to her twice; and that she said it was right. Contestants claim that here was evidence of suggestion.

This raises the principal question in the case. The correct rule is well stated in a number of the cases cited by counsel for proponent. In White v. Bailey, 10 Mich., at page 161, Justice Campbell, speaking of the testimony of medical experts, said:

Dr. Blumerick was introduced, apparently as a medical expert, to give opinions not supposed to be receivable from others. Undoubtedly there are many cases in which medical- witnesses can do this. They may sometimes, where a question arises upon the proper scientific conclusions depending on facts sworn to by others, give their opinions upon a hypothesis presented to them, as to what such facts denote. Before doing so, however, the witness must be examined as to his qualifications as an expert. But when he is examined concerning facts which have occurred under his own observation, and his opinion is required concerning the proper inferences from those facts, he occupies, as to the facts themselves, the same position with all other witnesses, although there may be some questions arising out of the facts, which he can answer, and which others cannot. Upon questions of mental capacity, even nonprofessional witnesses may give evidence, not only of specific facts and conduct falling under their own observation, but also of the impression they derived at the time, involving to some extent matters of opinion. The difference between them and those who, in addition to being eyewitnesses, are also experts, is that there may be peculiar indications which the latter understand better, and concerning which they can express an opinion as scientific deductions, and not mere common sense inferences. But neither class can be allowed in any case to give an opinion upon mental capacity or condition, without first showing the circumstances and facts upon which that opinion is based. This is necessary for two reasons: First, it is necessary in order to enable other experts to determine whether the opinions expressed by the witness are correct, and to enable the parties to contradict them, if wrong. Second, it is necessary in order that, if an opinion is given on a mistaken or perverted statement of facts, the truth may be elicited from others to destroy the foundation of the conclusions. And a third reason might be mentioned, which is that the court and jury may know, from his opportunities, what means the witness had of forming any opinion at all. These are rudimentary principles which cannot safely be departed from.”

In Kempsey v. McGinniss, 21 Mich., at page 138, Justice Ohristiancy said:

“But in case of such professional witnesses, as well as in that of unprofessional witnesses, who are allowed to give their opinions only from personal observation, the facts upon which the opinion is founded must be stated, and the jury must be left to determine whether the facts stated, as well as the opinions based upon them, are true or false.”

In Beaubien v. Cicotte, 12 Mich., at page 502, Justice Campbell said:

“The general doctrine is that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossible; and, if it could be done, there would be no occasion for any opinion from the witnesses. It is a matter of daily experience that the opinion of an intelligent and familiar eye-witness is the only satisfactory means of ascertaining mental condition, or disposition, or expression, or any other of those impalpable but important facts upon which men rest in dealing with each other. There is no substitute for personal observation. But, if witnesses were not compellable to state such facts as are tangible, there would be no means of testing their truthfulness. * * * But n"o testimony can be of any real value, unless it appears the witness had adequate means and opportunities for forming some conclusion.”

See, also, Prentis v. Bates, 93 Mich. 241 (53 N. W. 153, 17 L. R. A. 494).

In O’Connor v. Madison, 98 Mich. 188 (57 N. W. 107), Chief Justice Hooker, after referring to Beaubien v. Cicotte, supra, said:

“This opinion, if read in the light of the writer’s opinion in the case of White v. Bailey, 10 Mich. 161, leaves no room for doubting that it is the settled law of Michigan that an opinion that a testator was incompetent can only be given when the witness has testified to circumstances upon which it is predicated, and which to some extent justify it. (Citing cases.) The extent to which such proof must go cannot be limited by an inflexible rule. It must depend upon the familiarity of the witness with the testator, the character of the disqualification, the nature and number of extraordinary circumstances detailed, and proximity to the act involved in point of time. Taken as a whole, they should move the judicial discretion of the trial judge, by apprising him that the witness may fairly doubt the competency of the person upon reasonable grounds; and this discretion must be carefully exercised.”

See, also, People v. Borgetto, 99 Mich. 340 (58 N. W. 328); Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000); Sullivan v. Foley, 112 Mich. 1 (70 N. W. 322).

In the light of this record, and of the decisions cited above, we are of opinion that it cannot be said that Dr. Blake did not have the opportunity and means, and sufficient familiarity with the condition of the testatrix, to enable him to express an opinion as to her mental capacity. We think that he stated sufficient grounds upon which to base an opinion to warrant the court in permitting his evidence to go to the jury. The facts were within his own observation. He gave the reasons for this opinion, referring to the appearance of the testatrix, and the progress of the disease. There was proximity in time; he having seen her only three days before the alleged will was made, as well as a few days thereafter, and down to her death. The facts and circumstances stated by him were sufficient, in our judgment, to move the judicial discretion of the trial judge, and, in permitting this evidence to go to the jury, we think there was no error.

It is also urged that the verdict was against the weight of the evidence, and it is claimed that the circuit judge so held in denying the motion for a new trial.

The question of undue influence was withdrawn from the jury, and the sole question was as to the mental competency of the testatrix. There was evidence pro and con upon this last question, and in our opinion it presented a fair question of fact for the jury to consider, and the burden of proof was on the proponent. In re Mansbach’s Estate, 150 Mich. 348 (114 N. W. 65). While the language of the circuit judge would indicate that in his opinion the verdict was contrary to the weight of evidence, it is evident that he thought there was a conflict in the evidence, and that the verdict was not so clearly against the weight of the testimony as to call for a vacation of the verdict, for he refused to disturb it. The verdict certainly was not contrary to the undisputed evidence, as was the case in County of Montmorency v. Putnam, 144 Mich. 135 (107 N. W. 895), cited by the circuit judge. In Stevens v. Michigan Soap Works, 134 Mich. 350 (96 N. W. 435), this court (held that the verdict of a jury will not be set aside, on writ of error, on the ground that it is against the weight of the evidence, unless it clearly appears it is against the overwhelming weight of the evidence. That cannot be said here. In Lovely v. Railway Co., 137 Mich. 653 (100 N. W. 894), Justice Montgomery, speaking for the court, said:

“The case must be a very clear one, affording very strong evidence that the verdict is the result of bias or prejudice, to justify this court in overturning a decision of the trial judge adverse to a new trial on this ground”

—viz., on the ground that the verdict was opposed to the great weight of the evidence. We cannot say that the verdict was not supported by evidence, nor that it was at variance with the great preponderance of the evidence; nor can we see any indication of passion or prejudice on the part of the jury. They found a verdict for contestants upon a fair issue of fact, and under proper instructions. We find no prejudicial error in the record.

The judgment of the circuit court is affirmed.

Bird, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


author: Blaie, J.

text:
    ELY v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Saving Questions for Review — Exceptions.
    Although counsel for plaintiff omitted to except at the time to the court’s ruling that he must elect between a count under the death act and a count under the survival act, a subsequent exception to the ruling that the plaintiff could not recover under the survival act should be held to apply where the election was made because of the ruling.
    3. Pleading — Election Between Counts.
    A ruling that plaintiff must elect under which count he would proceed was erroneous, where the decedent was struck by a falling trolley pole and wheel of the car on which he was riding, and died after being unconscious from five to twenty minutes.

      3. Death — Negligence—Survival Act.
    The direct cause of death' not operating continuously during the period in which the decedent survived, it was a question for the jury whether his administratrix was entitled to recover under the survival act.
    Error to Wayne; Donovan, J.
    Submitted June 9, 1910.
    (Docket No. 35.)
    Decided July 14, 1910.
    Case by Bertha Ely, administratrix of the estate of Henry Austin, deceased, against the Detroit United Railway and the Detroit, Monroe & Toledo Short Line Railway for the negligent killing of plaintiff’s intestate. A judgment for plaintiff for an insufficient amount is reviewed by her on writ of error.
    Reversed.

      Clarence P. Milligan, for appellant.

      Brennan, Donnelly & Van De Mark, for appellees.
   Blaie, J.

The plaintiff’s intestate in this case, Henry Austin, met his death as the result of being struck on the head by the trolley wheel and pole of an interurban car of the Detroit, Monroe & Toledo Short Line upon the back platform of which he was riding, and this case was instituted by the plaintiff as administratrix and daughter of the deceased to recover damages for his death. The declaration contained two counts; one setting up liability under the “ death act,” and the other alleging liability under the “survival act.” The length of time which elapsed between the fatal blow and the complete extinction of life is uncertain. According to the highest estimate, about 20 minutes elapsed from the time of the injury until the car reached Rockford. At this place a physician was sent for and procured, which must have consumed some time.

The physician testified’:

“ The man was on the platform of the car when I got there, and I looked at the man, and he was breathing at that time, and he was alive, and blood was coming out of his mouth and some blew on my vest. The man did not live longer than a minute after I got there. I raised the man up and tried to see what his pulse was and noticed that it was nearly gone. He had a contusion on the back part of the base of the brain, five inches and a half. * * * Mr. Austin was unconscious during the time I saw him. The breathing was not a normal breathing, still he breathed so that the blood came out of his mouth on my hand.”

The lowest estimate of the time between the accident and taking Mr. Austin from the car at Rockford was 5 or 10 minutes. At the close of plaintiff’s case the following occurred:

“Mr. Brennan: I would like Mr. Milligan to elect at this time which remedy he takes.
“The Court: Under the ruling of the cases you should elect which remedy you seek to recover.
“Mr. Milligan: Of course to save the record, while your honor is going to rule against the suryival act here applicable, I claim under the survival act; but, if not, I will claim under the death act.
“Mr. Brennan: He cannot play fast and loose; he has to elect. I think he has to make a positive statement on the record, which remedy he is going to pursue. * * *
“The Court: You must make your election now.
“Mr. Milligan: The only case—
“The Court: Never mind the argument, when I rule I rule.
“ Mr. Milligan: Well, then, I will rely upon the death act.
“Mr. Brennan: I then ask for the direction of a verdict.
“The Court: Why?
“ Mr. Brennan: I would like the jury excused.
“(Jury excused.)
The Court: Was this brought by the estate?
“Mr. Brennan: Yes, and my contention is under the showing in this case there is no one legally dependent upon or entitled to support from Henry Austin. The only heirs of Henry Austin were a married daughter and a son, living West, and both of them having attained their majority. Under the cáse of Rouse v. Railway [128 Mich. 149], I claim that the presence of a person legally entitled to support is not present in this case.
“(Argument by Mr. Brennan.)
The Court: I will hear from the other side.
Mr. Milligan: Your honor has ruled I have to elect my count. Now upon that proposition—
The Court: After I ruled I will not hear it. I have thought of that ahead, and I have looked it up, and there is no use of taking time upon it.
11 Mr. Milligan: Then I can have an exception to the refusal to permit me to be heard upon that.
The Court: Well, you have your ruling. There would not be anything but pain and suffering for 15 minutes, and the fact is that they are not conscious of pain that way.
“Mr. Milligan: Your honor, I want an exception to that.
“(At this point Mr. Brennan consented that a verdict be directed against the Detroit, Monroe & Toledo Short Line for the amount of funeral expenses paid by the administratrix.)”

A verdict was directed in accordance with defendants’ motion, and plaintiff has brought the record to this court, for review upon writ of error.

Among the errors assigned and relied upon for a reversal are the following:

“The court erred in holding that recovery could not be' had under the ‘ survival act,’ so called.
“ The court erred in holding that plaintiff’s intestate did not survive within the meaning of the statutes.
“The court erred in holding that plaintiff must elect under which act he would go to the jury before defendant had sworn a .witness or put in its case or any part of its defense. * * *
“The court erred in compelling plaintiff to elect his remedy under the death act.
“ The court erred in holding that the death act alone applied to the case.”

Counsel for defendant contend that plaintiff unequivocally elected to stand upon the death act, and, if not, there was no error in the rulings of the court, since the survival act does not apply to the facts shown, and there was no liability for damages under the death act. It is also claimed that no exception was taken to the ruling of the court compelling an election. It is apparent from the colloquy between court and counsel that counsel only elected to go to the jury upon the death act because the court had expressed the opinion that there was no case under the survival act, and we think the exception to the later ruling of the court should be held to apply to the previous ruling upon substantially the same subject. The ruling of the court requiring plaintiff to elect was erroneous. Carbary v. Railway, 157 Mich. 683 (122 N. W. 367).

We are also of the opinion that it cannot be said, as a matter of law, upon this record, that the survival act did not apply. This case does not fall within the principle of the case of West v. Railway, 159 Mich. 269 (123 N. W. 1101). In that case the direct cause of death continued to operate directly upon the injured person until life was extinct. In the present case the direct cause of death did not operate continuously, but ceased with the first blow, and plaintiff survived the original injury from 10 minutes to perhaps a half hour. In our opinion, the facts disclosed by this record bring the case within the principle of Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607).

The judgment is reversed, and a new trial granted.

Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.


text:
    ZASTROW v. ZASTROW.
    Divorce — Alimony—Amount.
    An award of $1,500 as alimony in a suit for divorce in which the wife was given a decree of divorce is insufficient and should be increased to $2,000 as against the defendant who has property worth $6,000, both parties being in poor health.
    Appeal from Lapeer; Law, J., presiding.
    Submitted June 13,1910.
    (Docket No. 45.)
    Decided July 14, 1910.
    Bill by Martha Zastrow against Arnold Zastrow for a divorce. From a decree for complainant awarding an insufficient amount of alimony, she appeals.
    Modified and affirmed.

      B. F. Beed, for complainant.

      Geer, Williams & Halpin, for defendant.
   Brooke, J.

This is a divorce case in which a decree was entered for complainant upon the ground of extreme cruelty, and the sum of $1,500 was awarded her as permanent alimony. Complainant appeals for the simple purpose of securing an increase in the allowance made by the circuit court.

The parties were married in 1899, and lived together 9£ years. There are no children. At the time of the marriage the court found that complainant had about $100, which she gave to defendant, and defendant $2,450. At the time of the separation, the court fixed the value of defendant’s real estate at $4,000, and his personal estate (exclusive of household furniture) at $1,100. Much testimony was taken as to the value of the farm, and, as is usually the case, it was contradictory in character; but there would seem to be no question that the farm is fairly worth $4,500, inasmuch as that sum was offered for it by one witness of conceded financial ability while upon the stand. Defendant himself, who gave the only testimony as to the value of the personal property, fixed that value at $1,194.80. The household furniture, not included, is worth between $200 and $300, so that the net estate of defendant is nearly, if not quite, $6,000. The record discloses the fact that defendant is not in good health; but it likewise shows that complainant is broken in health and not able to do hard work.

"While we do not desire to encourage appeals where the amount involved is trivial, we are, nevertheless, of the opinion that, in view of the relative ability of the parties to produce an income in the future, the allowance made by the learned circuit judge was too low.

A decree will be entered in this court for the sum of $2,000 as permanent alimony; but no costs will be allowed complainant upon this appeal, for the reason that an allowance has already been made in this court covering the expense to complainant for counsel fees and disbursements, which has been paid by defendant.

Modified as above indicated, the decree of the court below is affirmed.

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


author: Hooker, J.

text:
    BUCKEYE BREWING CO. v. EYMER.
    Account Stated — Compromise and Settlement — Parol Evidence Rule.
    Where it appeared that plaintiff at different times presented statements of account in writing to the defendant, who signed them, but upon the trial testified that it had been previously agreed to compromise his claim against the plaintiff for damaged goods, by allowing him a credit of a stated amount upon which future purchases should apply, evidence . was admissible to prove the compromise, notwithstanding the signed statements, which presented a question for the jury, whether they were intended as mere memoranda of goods furnished or as final statements of account.
    Error to Saginaw; Gage, J.
    Submitted June 14, 1910.
    (Docket No. 58.)
    Decided July 14, 1910.
    Assumpsit by the Buckeye Brewing Company against Andrew Eymer upon an account stated. A judgment for plaintiff for an insufficient amount is reviewed by it on writ of error.
    Affirmed.

      Miles J. Purcell and Henry E. Naegely, for appellant.

      E. L. Beach, for appellee.
   Hooker, J.

The defendant was a retailer of beer, doing business at Saginaw, and for many years purchased the beer that he sold from the plaintiff, a brewing company at Toledo, Ohio. During this time — a period of more than 25 years — there was an open account between them, except as this statement may be affected by transactions which, plaintiff’s counsel contend, amounted to settlements and statements of account. It was customary for plaintiff’s representative to call upon defendant several times each year, with statements of the account, when differences would be talked over, adjustments made, and money paid and other allowances indorsed as credits, a balance struck, whereupon the defendant would sign the paper. According to the plaintiff’s contention, these statements show a balance due it of $3,261.83, at the time of the trial. The defendant claims that prior to 1893 he suffered damage in his trade, from the furnishing of a poor quality of beer, and that an agreement was made between the parties adjusting said damages at $3,200. It was agreed, however, that he continue to buy beer of the plaintiff and should receive no part of said damages until an allowance of 25 cents a barrel upon his purchases of beer to be made thereafter should amount to that sum, viz., $3,200. Statements continued to be made and settled as before, but it was in contemplation of such allowance and application upon his account, when sufficient beer should have been purchased. The case was submitted to the jury who found a verdict for plaintiff of $67.90 after allowing defendant’s claim of $3,200. The plaintiff appealed from the judgment entered upon the verdict.

Counsel for plaintiff say that the three assignments of error are all based on the proposition that these accounts stated preclude the interposition of a defense that there was a different understanding than that shown by the statements of account. In short, we understand plaintiff’s counsel to contend that these statements of account being in writing and signed by the defendant cannot be varied by parol testimony. This cause was before us at the June term of last year, and is reported in 157 Mich. 518 (122 N. W. 124). The same questions were raised upon that record as upon this, and also some questions arising upon the instruction based on the pleadings, and upon the exclusion of evidence offered by the plaintiff. The decision was made to rest upon the latter, and no allusion is made in the opinion to the question of the right of defendant to question the statement of account. Moreover, we cannot say that the determination of such question was involved. Neither expressly nor by necessary implication does that opinion sustain plaintiff’s contention on that hearing.

We are of the opinion that the plaintiff’s contention cannot be sustained. The parties do not agree upon the circumstances attending the making and signing of the statements. Defendant produced testimony that the first one made was accompanied by an agreement which, if established, showed that it was no more than an agreed, memorandum of account of beer furnished, and of cash and some other credits allowed. It contained no express statement that it was a final account, nor any express promise to pay, while any implication of these is precluded by the express condition shown, viz., that it was subject to a conditional credit to be given later, and this testimony affects all subsequent statements. This raised a question for a jury. See 1 Cyc. pp. 381, 398; Spellman v. Muehlfeld, 166 N. Y. 245 (59 N. E. 817); Valley Lumber Co. v. Smith, 71 Wis. 304 (37 N. W. 412, 5 Am. St. Rep. 216); Charlotte Oil & Fertilizer Co. v. Hartog, 85 Fed. 150 (29 C. C. A. 56); Batson v. Findley, 52 W. Va. 343 (43 S. E. 142); McCormick v. Railway Co., 154 Mo. 191 (55 S. W. 252); 1 Am. & Eng. Enc. Law (2d Ed.), p. 446 and note; Harris v. Woodard, 40 Mich. 408; McColl v. Jackson Iron Co., 98 Mich. 482 (57 N. W. 578). See, also, 1 Cyc. pp. 368, 369, 375, 380; 11 Current Law, p. 22.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ.„ concurred.


author: Ostrander, J.

text:
    MICHIGAN SAVINGS BANK v. DIME SAVINGS BANK.
    1. Trade-Names — Corporations—Banks and Banking.
    In a suit in equity to enjoin the use by a corporation of a name similar to the name of another corporation carrying on business of the same character, relief may be granted if the public is misled, and the corporation first established is defrauded on account of the similarity.

      2. Same — Geographical Terms — Words and Phrases — Fraud —Injunction.
    The use of properly descriptive geographical words in a business name will not be enjoined in the absence of estoppel, actual fraud or misleading of the public.
    3. Same — Corporations—Statutes.
    In enforcing a statute intended to prevent such results (Act No. 232, Pub. Acts 1903), it must be made to appear that they will follow the use of the name sought to be enjoined.
    4. Same — Words and Phrases — Injunction.
    The proposed use by a bank, subsequently organized, of the name “Bank of Michigan,” in the absence of evidence of fraud or estoppel, or of actual injury, will not be enjoined as an infringement upon the rights of a corporation called the “Michigan Savings Bank,” doing business in the same place; but the complainant will be left to its remedy if actual injury and confusion result.
    Appeal from Wayne; Rohnert, J.
    Submitted June 14,1910.
    (Docket No. 57.)
    Decided July 14, 1910.
    Bill by the Michigan Savings Bank of Detroit against the Dime Savings Bank and others to enjoin a proposed change in the name of defendant bank. From a decree for complainant, defendant bank appeals.
    Reversed, and bill dismissed.

      Stellwagen & MacKay, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Ostrander, J.

The complainant has for more than 30 years conducted a general banking business in the city of Detroit under the name and style “Michigan Savings Bank,” its corporate name being “Michigan Savings Bank of Detroit, Mich.” The defendant bank has also conducted a general banking business in the same city since the year 1884, its corporate name being “The Dime Savings Bank of Detroit, Mich.” The Dime Savings Bank acquired the business of the Citizens’ Savings Bank of the same city and thereupon elected and determined to change its name to “The Bank of Michigan,” and for that purpose resolved to amend its articles of association. This action was taken, notwithstanding protests from officers of the Michigan Savings Bank, which, in consequence, filed its bill in the circuit court for the county of Wayne, in chancery, against the Dime Savings Bank, the county clerk of Wayne county, the secretary of State and the commissioner of banking, praying that the defendant bank be enjoined from using the name “The Bank of Michigan ” or any other name similar in any material respect to the name of defendant, from executing a certificate setting forth that it has amended its articles of association by changing its corporate name as aforesaid, and ■from recording the same either in the office of the county clerk, the commissioner of banking, or the secretary of State, and that the attempted action of its stockholders with reference to the change of its corporate name be declared to be of no effect. There were appropriate prayers for relief as to the other defendants. The bill was answered by the defendant bank, testimony was taken, and a decree was entered in accordance with the prayer of the bill. The Dime Savings Bank has appealed.

It is not claimed that the defendant bank has any fraudulent purpose — a design to mislead the public or to injure complainant — in changing its corporate name. No director of one bank is also a director of the other, no contract relations between the two institutions are relied upon by the complainant, and defendant bank is not estopped to use the name. But it is claimed that if two banks, with offices upon the same street, in the same city, use names so similar, confusion and injury will result; that the statute forbids the defendant bank to assume a name so similar to that of complainant bank, and that equitable principles support the decree appealed from.

The banking law, 2 Comp. Laws, § 6091, requires persons associating to organize a bank to specify in the articles of association, among other things,—

“ The name assumed by such bank, which shall be, in no material respect, similar to the name of any other bank organized under the laws of this State.”

So Act No. 232, Pub. Acts 1903, in section 2 thereof, relating to names to be assumed by corporations, contains the proviso that—

“No name shall be assumed already in use by any other existing corporation of this State, or corporation lawfully carrying on business in this State, or so nearly similar as to lead to uncertainty or confusion.”

Courts of equity are frequently called upon to remedy conditions which grow out of the use by a corporation of a name similar to the name of another corporation, carrying on a business of the same character. In such cases it is usually, if not always, true that relief is granted because experience has demonstrated that the public is misled, and the corporation first established is defrauded on account of the similarity of the names. We assume that the statutes referred to were intended to prevent, to some extent, the conditions which in such cases, when they arise, make a resort to the courts necessary. In this view of the legislation, in its enforcement by the courts as a preventive measure, it is necessary to consider, in advance of a demonstration based upon experience, and in a case where neither corporation has, or can acquire, the general right to an exclusive use of the words employed in the name, whether it is likely that the public will be misled, and whether the complaining corporation is likely to be injured. It is evident that experience, not in the particular case, but in other cases, must still be employed in determining the fact, and that mere conjecture that some confusion may result is not ground for granting equitable relief. We may also consider that if relief is refused and conjecture is in actual experience made fact, the complaining corporation may have its remedy.

We are not impressed that the testimony introduced on the part of complainant supports even the conjecture that the public, using ordinary care, will be misled by the alleged similarity of the names of these corporations. If it is true, and we assume that it is, that the public is apt to sieze upon some part of the corporate name and use it as descriptive of the whole and as designating the particular bank, we may also assume that the words “ Michigan Savings” in one case, and “the Michigan” in the other, will be apt to be used and will be properly and sufficiently distinctive. It is the general rule that when they are properly descriptive, the use of geographical words in a business name will not be enjoined, in the absence of estoppel or of actual fraud, or public misleading. In enforcing a statute intended to prevent some of these results, it must be made to appear that it is reasonably certain they will follow the use of the name sought to be enjoined. The principle is the same in either case.

The decree is reversed, and a decree will be entered in this court dismissing the bill, with costs of both courts to the defendant bank. It may be stated in the decree that it is without prejudice to the right of complainant to relief, if actual injury and confusion shall result from defendant’s use of the proposed corporate name.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    JOHNSON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Master and Servant — Fellow-Servant—Inoompetency.
    A question for the jury, relative to the defendant’s negligence in retaining in its employ an incompetent servant, is presented by a showing that a fellow-servant of plaintiff, while under the influence of intoxicating liquor, permitted a box to fall on plaintiff’s foot, that the intoxicated employé was in the habit of drinking and had previously promised defendant’s superintendent to amend, but continued to drink liquor to excess.

    2. Same — Intoxication.
    The defendant could not be said to have performed its duty, though after receiving his promise to amend it did not discover the servant intoxicated while on duty, it appearing that his habit of using liquor to excess was notorious with those who associated with him.
    3. Same — Proximate Cause.
    Notwithstanding that a sober employé might have caused a similar injury, it could not be held as a matter of law that the intoxication of the fellow-servant was not the cause of the accident, since he would be less competent to perform his duties while under the influence of liquor.
    4 Same — Contributory Negligence.
    The question of plaintiff’s contributory negligence in the exercise of care after discovering his associate’s condition was properly left to the jury.
    Error to Jackson; Parkinson, J.
    Submitted June 16, 1910.
    (Docket No. 67.)
    Decided July 14, 1910.
    Case by Curtis P. Johnson against the Lake Shore & Michigan Southern Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Boudeman, Adams & Weston, for appellant.

      Bichard Price, for appellee.

       As to master’s duty with respect to employment of servants and continuing them in employment, see note to Smith v. Railway Co. (Mo.), 48 L. R. A. 368.

   Ostrander, J.

Plaintiff was for upwards of-13 years prior to November 6, 1907, the agent of defendant at its station at Brooklyn, Mich. On that day a car, a portion of a freight train running between Ypsilanti and Hills-dale, in charge of Conductor Charles A. Mills, was brought alongside of the station platform at Brooklyn, for the purpose of unloading some freight. Conductor Mills and one or more other employés of defendant went into the car to remove the freight, and, as was the custom, plaintiff with the waybills entered and remained in the car to check the articles called for by said bills. It was dark enough so that lanterns were used. In removing a box, which he partly supported and rolled or turned from corner to corner in his progress from the end of the car to the open door in the center of the side of the car, Conductor Mills let the box fall upon plaintiff’s foot. To recover damages for the injury to his foot so occasioned, plaintiff brought this suit, and in his declaration alleged that Conductor Mills was a person addicted to the use of intoxicating liquors and in the habit of getting drunk; that he was upon the particular occasion under the influence of intoxicating liquor; that his condition made him. unfit to perform his duties as conductor, and was the reason why he failed to properly handle and move the box which fell on plaintiff’s foot; that defendant knew, or should have known, of the habits of said conductor; and that he had before that time been under the influence of liquor and intoxicated while in the performance of his duties as conductor ; that it was negligence on the part of defendant to keep him in its employ. Plaintiff recovered a substantial judgment, which defendant seeks to reverse upon the ground that it was error for the trial court to refuse to direct a verdict for defendant; it being contended:

(1) That the testimony fails to show any negligent conduct on the part of Mills.

(2) That it fails to show any negligence on the part of defendant in employing Mills and retaining him in employment.

(3) That it was not proved that the intoxication of Mills, if he was intoxicated, was the cause of the falling of the box.

(4) That plaintiff was not free from negligence contributing to his injury.

It is stated in the brief for appellant that if it shall be determined that the case was one for a jury, the judgment should be affirmed.

It is admitted that in October, 1905, it was reported to a division superintendent of defendant that Mills had been drinking the day before, that Mills was interrogated upon the subject, admitted that he had drunk beer, denied that he was in the habit of drinking, and promised to amend. Defendant’s trainmaster also knew of this fact and testified that thereafter he observed Mills at various times when he was on duty, and did not discover that he had been using liquor. He had the matter in mind and knew of Mills’ promise to “ cut it out.” The testimony tends to prove that he did not amend his conduct, and that before and after October, 1905, his habit of drinking liquor to excess when off duty was notorious in and about the places he frequented, and the city where he lived. It is said that the officers of defendant had the right to accept the promise of Mills and if he was not thereafter discovered under the influence of liquor, when on duty, it was not called upon to learn how he conducted himself when not on duty. The case is ruled, upon this point, by Hilts v. Railway, 55 Mich. 437 (21 N. W. 878).

There is some testimony tending to prove that Mills was under the influence of liquor upon the occasion in question. It is not very convincing, but the question of its weight is not before us. It is undoubtedly true that sober men, moving boxes, often lose control of them and let them fall. It may be assumed, however, that an.intoxicated workman is less competent to manage even so small an affair as moving a box, than the same workman would be if sober. The extent to which he is intoxicated must always be considered in determining his competency to do a particular thing, and whether the consequences of his actions are due to accident or to his condition. To the extent that his condition was discovered by a fellow workman, the duty to act with reference to that condition would ordinarily be imposed. It is apparent that both .the question of the cause of the injury and the one of the care to be exercised by plaintiff, under the circumstances, were questions of fact.

We are satisfied that we can determine none of appellant’s contentions as matter of law, and the judgment is therefore affirmed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.