author: Moore, J.

text:
    GADD v. CITY OF DETROIT.
    1. Municipal Corporations — Detroit Charter — Employes —< Contract.
    Under the charter of Detroit, Act No. 415, Local Acts 1901, § 6, it is not required of the commissioner of public works that before he employs a person to fill a position in his department which has been created by the council, he shall submit the contract of hiring to the council and obtain its approval; section 8 of such act not being applicable.
    2. Same — Employes—Salary—Overtime.
    Where a city has by ordinance provided for an eight-hour day and for a minimum wage, it is bound by the contract of its commissioner of public works to pay extra for all time over eight hours per day put in by one of his employés.
    3. Appeal and Error — Record—Questions Reviewable.
    Where the certificate accompanying the bill of exceptions shows that it does not purport to contain substantially all the testimony taken in the case, a question not raised below, and as to which the available testimony may not have been offered, or, if offered, not included in the bill of exceptions, will not be considered.
    Error to Wayne; Donovan, J.
    Submitted July 21, 1905.
    (Docket No. 68.)
    Decided January 24, 1906.
    Assumpsit by Charles A. Gadd against the city of Detroit for work and labor. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    P. J. M. Hally (T. E. Tarsney, of counsel), for appellant.

      John J. Speed (Navin & Sheahan, of counsel), for appellee.
   Moore, J.

The plaintiff sued the defendant to recover for overtime work. By direction of the circuit judge the jury returned a verdict in his favor. The case is brought here by writ of error.

The plaintiff commenced work July 11, 1901, and worked until July 8, 1903. At this time an ordinance existed in the city of Detroit reading:

That hereafter eight hours shall constitute a day’s work for all laborers, workmen, and mechanics, who may be employed by or on behalf of the city of Detroit, or any of its authorized boards or officers, or may be employed by contractors or subcontractors, in work done or executed under contracts with the said city of Detroit or its various authorized boards or officers.”

There was another ordinance providing that the minimum wage of a laborer or workman employed by any board or commission for the city should be not less than $1.50 a day. Act No. 415, Local Acts 1901, § 6, provides that the commissioner of public works may appoint such employés of the department as the common council shall create. The plaintiff was employed as watchman by the department of public works. He went to work at 5 o’clock in the afternoon and continued to work until 7 o’clock or later the next morning. He testified that after he worked a day or two he protested to the commissioner of public works against the length of the days he was required to work, and that he was promised by the commissioner that he should be paid for all time more than eight hours, and that, relying upon this promise, he continued to work overtime. He was paid from week to week for his work, but was not paid for the overtime. It is his claim that he called the attention of the commissioner to this fact, and protested to the paymaster and asked why his overtime was not turned in, and that he was promised by the commissioner he should be paid for his overtime. When he sent in his resignation, he also sent a claim to the common council for this overtime. It was allowed by a vote of 20 to 12. Its allowance was'vetoed by the mayor, and it failed to pass over his veto.

Afterwards this suit was commenced. No witnesses were sworn on the part of the defendant. Section 8 of an act approved May 4,1901 (Act No. 415, Local Acts 1901), provides:

“The commissioner of public works shall have no .power to enter into any contract for or on behalf of the city of Detroit without the consent or approval of the common council.”

The city claims that because of this provision the city is not bound by this agreement made between the plaintiff and commissioner. We think the limitation sought to be made upon the powers of the commissioner is too narrow. The city had provided by ordinance for an eight-hour day. It had provided a minimum wage. The charter provided the commissioner might hire such employés in his department as the council had decided should be employed. It was not intended by the provision quoted that before a particular person could be employed as the night watchman after the position of night watchman had been created the contract for hiring must be submitted to the council .and have its consent or approval. The case is within O’Boyle v. City of Detroit, 131 Mich. 15.

After writing the foregoing, it was suggested the plaintiff is not a laborer within the ordinance, and counsel were asked to discuss that question. Counsel for plaintiff say the question ought not to be discussed for the reason it was not raised in the court below; citing Broughton v. Jones, 120 Mich. 462, and many other cases. General assent is given to this proposition, but it is said to be a sufficient reply to say the point is not raised by counsel, but is raised by the court, and is covered by the statute. Section 193, 1 Comp. Laws. I cannot agree with this conclusion as applied to this case. From the brief record it appears it was the duty of the plaintiff, among other things, to close up the yard where the property in charge of the board of public works was situated, and that he had the care of the property, and “ everything for repairs, the apparatus and tools, and all sorts of things.” The certificate signed by the judge, accompanying the bill of exceptions, shows it does not purport to contain substantially all the testimony taken in the case. The circuit judge certified:

“The testimony bearing upon the questions raised is included in the foregoing bill of exceptions.”

I do not see how it can be said that all the duties performed by the plaintiff are stated in the record. It does appear, however, that he had charge during the nighttime of the yard in which the property in charge of the board of public works was contained, and of its apparatus and tools, and all sorts of things.” The question of whether plaintiff was a laborer or not was not raised upon the trial. The testimony was not put in with that point in view. The only safe rule to apply to such a case is to dispqse of it only upon the questions presented in the court below, as to which the evidence appears to be substantially returned.

In vi'ew of what I have- said, I think we ought not to enter upon the discussion of whether the plaintiff was a laborer, and the judgment should be affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    BAKER v. CITY OF GRAND RAPIDS.
    :1. Municipal Corporations — Powers — Engaging in Commercial Enterprises.
    A city has the right, through its board of poor commissioners, to provide fuel for needy citizens, and, in emergency, when a coal famine seems imminent, is authorized to purchase such amount of fuel, in any market, as is necessary for that purpose; but it cannot enter into a commercial enterprise by buying and selling coal to its citizens as a business, thereby entering into competition with dealers in coal, since such a use of public funds is not for a public purpose.
    ”2. Equity — Clean Hands.
    The unlawful conduct of complainant and other coal dealers in entering into á combination, in violation of the statute (§§ 11377-11379, 3 Comp. Laws), to enhance, regulate, and control the price of coal in the market, will not excuse the unauthorized action of defendant city in engaging in the coal business, but bears upon the question as to whether complainant comes into a court of chancery with clean hands.
    -3. Same — Jurisdiction—Dismissal op Bill.
    A bill by a coal dealer and taxpayer to restrain a city from dealing in coal, on the ground that such action damaged his business, and was being conducted at a loss which the taxpayers would have to bear, is properly dismissed where it appears that complainant was not damaged in his business, that a few days after the bill was filed the city discontinued the business and up to that time no loss to the city had occurred, and complainant neither 'by his bill nor by the evidence showed that the prospective tax burden upon his property to result from the city’s action would amount to §100 (Act No. 183, Pub. Acts 1903).
    Appeal from superior court of Grand Rapids; Newnbam, J.
    Submitted October 3, 1905.
    (Docket No. 54.)
    Decided January 24, 1906.
    Bill by Eugene E. Baker against the city of Grand .Rapids to restrain the maintenance of a municipal coal yard. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Adsit & Danhof, for complainant.

      Moses Taggart and S. W. Barker, for defendant.
   McAlvay, J.

In January, 1908, the supply of coal in the city of Grand Rapids was limited, with prospects of great scarcity. Citizens could not readily obtain a necessary quantity for household purposes. Complainant and certain other coal dealers were acting in concert to control the price of- hard coal. Prices were fixed'by certain circulars which, from time to time, were sent around to these dealers. The price was advanced to $12 per ton, and those coal dealers not following the fixed prices found it difficult to obtain coal. In view of the situation, the common council of Grand Rapids, on January 5, 1903, passed a resolution transferring from the contingent fund $10,000 to a special fund for the purpose of buying coal to sell to the citizens, and a commission was appointed for that purpose. This action was rescinded for the reason that its legality was questioned. The same amount, January 19,1903, by a unanimous vote of the council, was transferred from the contingent fund to the poor fund, to be drawn upon in the usual way by the poor commissioners. The commissioners purchased coal and disposed of it in the following manner : Paupers were furnished coal free. Those poor people who could pay something for coal furnished were required to do so. Coal was also sold at cost to those citizens who could not get any elsewhere. The first car load of coal was purchased January 31 and the last February 5, 1903, and coal was sold to about 470 people. This work of disposing of the coal continued about one month. The board of poor commissioners on March 30th made its report to the council. Three thousand dollars had been drawn from the treasury, and $3,054.70 was returned.

Complainant, a retail coal dealer and a taxpayer in said city, on or about February 23, 1903, filed his bill of complaint in this cause against the city of Grand Rapids, defendant, alleging that defendant, a municipal corporation, was unlawfully engaged in a commercial enterprise, to wit, the business of selling and dealing in coal, and unlawfully using the funds of the municipality for that purpose, and asked for an injunction to restrain such action. Complainant also alleged that the city was conducting the business at a great loss, was damaging his business, and that the money so used would enter into the assessments for taxes, and become a lien upon his property.

It was not contended by defendant that it could enter into the business of dealing in coal commercially, but that in the then existing emergency, when coal and. other fuel could not be procured, and there was a reasonable probability that a coal famine was impending, it had the right to procure fuel to furnish, not only to the needy poor, but also to other citizens who could not procure it elsewhere, and claimed that the action of the city, through its board of poor commissioners, was not illegal and void. It admitted that out of such fund coal and wood were purchased, and alleged that no loss whatever was made to the city, and that the officers of the city had been informed by the coal and wood dealers that in a short time no hard coal or wood could be procured. To provide for an emer-. gency, to be able to furnish to the needy fuel free of charge, as had been done for years, and to supply with coal at a reasonable price other citizens who could not pay the price of $12 a ton exacted by a combination of dealers, the proceedings complained of were taken. The answer also denied that complainant had been deprived of profits from his business, or would be subjected to any assessment upon his property by reason of the premises, or that it had, or would, unlawfully appropriate the property of complainant or any other person.

There is little, if any, dispute as to the facts in the case. The entire proofs consisted of the testimony of complainant and two officers of the city sworn in his behalf, together with the records of the city showing the action taken and the report of the board of poor commissioners. No evidence was offered on the part of defendant. From a decree for defendant, complainant appeals.

The city authorities had the right, through the board of poor commissioners, to provide fuel for needy citizens, and under the then existing emergency, where a coal famine appeared imminent, were authorized to purchase such amount of fuel in any market, as, in their opinion, would be necessary for that purpose. A municipality, however, cannot enter into a commercial enterprise, such as buying and selling coal to its citizens as a business, thereby entering into competition with dealers in coal. Such use of moneys is held not to be for a public purpose. Opinion of the Justices, 155 Mass. 601 (15 L. R. A. 809), and cases cited. The same court, where questions are submitted by the legislature and opinions required as to the constitutionality of pending legislation, said:

“ Under a condition in which the supply of fuel would be so small, and the difficulty of obtaining it so great, that persons desiring to purchase it would be unable to supply themselves through private enterprise, it is conceivable that agencies of government might be able to obtain fuel where citizens generally could not. Under such circumstances we are of opinion that the government might constitute itself an agent for the relief of the community, and that money expended for the purpose would be expended for a public use. * * *
“As to that we are of opinion that, if the supposed conditions exist in any city or town, it may* be authorized under proper legislation to sell fuel, with the limitations above stated, so long as these conditions continue.” Opinion of the Justices, 182 Mass. 610 (60 L. R. A. 592).

The first action of the city council was the transfer of $10,000 from the contingent fund to a special fund to be used for the purpose of selling coal to the citizens of Grand Rapids at actual cost under a commission to be appointed by the mayor. This action was rescinded, and, “in order to make the $10,000 immediately available * * * for the purchase and sale of fuel,” it was transferred to the poor fund. For such purposes the use of the fund so transferred was not a public use, the action of the council was not authorized under existing legislation. •

If complainant has made a case which will warrant the court to exercise its equitable jurisdiction in his behalf, and has shown that he has suffered damages by reason of such action on the part of the city, he is entitled to relief. It appears that complainant at the time in question'was in a combination with certain other coal dealers in the city of Grand Rapids, in violation of the provisions of sections 11377-11379, 3 Comp. Laws, the purpose and intent of which was to enhance, regulate, and control the price of coal in that market, and that by reason of such unlawful combination the municipality acted as it did relative to supplying coal to some of its citizens. Such unlawful conduct of complainant would not excuse unauthorized action by the city, but would bear upon the question as to whether complainant came into a court of chancery with clean hands. It further appears that his suit is brought under an agreement that certain coal dealers are to bear the expense of litigation. Complainant testified that he was not damaged in his business to the amount of a single dollar, that he supplied all of his customers, and had no coal to supply others. It is shown that a few days after the bill of complaint was filed the city discontinued selling coal, and the $10,000 put into the poor fund was transferred back to the contingent fund. It also appears, without dispute, that by the city’s action no loss at all occurred, and no' increased burden could be imposed upon complainant’s property by reason thereof. By his case he failed to show any present or prospective injury.

Complainant commenced his suit in his own behalf to restrain the city from unlawfully injuring him in his business and from subjecting his property to the burden of an unlawful assessment for taxes. Neither by his bill of complaint nor by the evidence in the case does it appear that the court had jurisdiction under the statute (Act No. 183, Pub. Acts 1903) to restrain the proceedings taken or to be taken which might have resulted in a tax being levied upon his property, for the reason that it would not have amounted to more than $100. The record shows that complainant has not made a case entitling him to relief. . '

For the reasons stated, the decree of the court below is affirmed, with costs of both courts.

Grant, Blair, and Montgomery, JJ., concurred with McAlvay, J. Ostrander, J., concurred in the result.


author: Grant, J.

text:
    CROWE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Passengers—Negligence—Equipment of Cars.
    The use by a railroad, company of a standard three-step passenger car of the height and construction in common use upon railroads is not negligence, although a four-step car, the lower step of which is eight inches nearer the ground than the lower step of the three-step car, is used on some roads.
    3. Same — Equipment—Stations—Care Required.
    The high degree of care required of carriers in transporting passengers, and in constructing and caring for their vehicles for that purpose, is not required in the construction and maintenance of their platform and station grounds; but, as to them, reasonable care, to be determined by the surroundings and the probable dangers, is all the law requires.
    3. Same — Platform—Defects—Negligence.
    A hole six inches deep and containing a loose obstacle in its • bottom, situated in a station platform upon which passengers are invited to step when alighting from cars, is a negligent defect.
    4. Same — Injury to Passenger — Contributory Negligence — Question for Jury.
    In an action against a railroad company for injuries sustained by a passenger while alighting from the train at a station, with a suit case and packages in his hands, evidence examined, and held, that whether he was guilty of contributory negligence was a question for the jury.
    5. Same — Weight of Evidence.
    In an action against a railroad company for injuries sustained by a passenger while alighting from the train by reason of defects in the station platform, held, that a verdict for plaintiff was against the weight of the evidence, and that a new trial moved for on that ground should have been granted.
    Error to Shiawassee; Smith, J.
    Submitted October 20, 1905.
    (Docket No. 93.)
    Decided January 24, 1906.
    Case by Fred Crowe against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Plaintiff, a traveling salesman, alighted from the smoking car of the defendant at Owosso at 8 o’clock a. m. October 24, 1903. He had a dress suit case in one hand, an umbrella and package in the other, and was smoking a cigar. In stepping from the car onto the platform cqnstructed of cinders, he turned his ankle, causing the injury, for which he recovered a verdict of $6,370. The negligence charged in the declaration is—
    “Providing a step about three feet from the ground, being at least one foot or more higher or further from the ground than the steps of ordinary cars used in ordinary railroading. * * * Failure to pull its train up to the ordinary platform provided for the alightment of passengers, stopping its train and ordering plaintiff and other passengers to alight at a considerable distance south of its platform; and at the place of alightment where this plaintiff was directed, requested and invited to alight was a quantity of loose cinders, upon which said plaintiff stepped in alighting from the train.”
    The declaration further alleges that in consequence of these conditions the loose cinders gave way under his foot, made his footing uncertain and unsafe, and caused the injury. . The train stopped at the usual place. So this allegation of negligence is eliminated. Two grounds of negligence remain — the height of the step and the condition of the cinder platform.
    Plaintiff described the accident as follows:
    “ I got up, took my grip, and started for the door, walked to the door, started to step down the steps. As I got down from one step to the other getting off in this manner, I discovered there was something I' ought not to step on. My foot was beyond my control, and I went into it and turned my ankle over. At this time I had the grip in my right hand, the umbrella and parcel in my left hand, and I was smoking a cigar. * * *
    ‘c The cinder platform, in the first place,- is below the rails, not up to the rails, and then it was scooped out extending in this manner basin form, but larger than a basin, and where I stepped, stepped into the center of it and after I had — my foot had turned over. In getting up I looked up to see really what it was that was the cause. I discovered the height of the platform was much higher than the other platform. I discovered also a chunk of cinder my foot had struck, which was loose and rolled. That is all I discovered.”
    He further testified that the chunk of cinders upon which he stepped was in a hole at least six inches lower than the surface, and a foot to two feet across the top; that the chunk of cinders was about six inches long by two or three inches wide, and rough.
    “ When -I stepped on it, it just turned my foot over, tore the ligaments open, and broke the bones.”
    Plaintiff was familiar with the cinder platform. Owosso was his home. He had been in and about there for 20 years, and had been familiar with the station grounds for 12 or 14 years. He frequently for many years boarded, and alighted from, trains at this same place.

      George L. Nadolleck (O. E. Butterfield and John T. McCurdy, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Grant, J.

(after stating the facts). It was conclusively established that this car was a standard one, of the height and construction such as is in common use upon railroads. It was the standard three-step smoking car. There are also four-step smoking cars; but no such car had been in use upon this road, extending from Jackson to Saginaw, for three or four years.' The difference in height between a three-step and a four-step car is about eight inches. The court should have instructed the jury that the use of this car was not negligence.

2. Counsel for defendant insist that the existence of the hole, with the piece of cinder in the bottom, as described by plaintiff, was not negligence, citing Jackson v. City of Lansing, 121 Mich. 279. The high degree of care required of common carriers of passengers, in transporting them and in the construction and care of their vehicles for that purpose, is not required by the law in the construction and maintenance of its platforms and station grounds. Reasonable care to be determined by the surroundings, the situation, and the probable dangers, is the requirement of the law. 6 Cyc. p. 605; 3 Thompson on Negligence, § 2697; 5 Am. & Eng. Enc. Law (2d Ed.), p. 532; 26 Am. & Eng. Enc. Law (2d Ed.), p. 512; Hiatt v. Railway Co., 96 Iowa, 169; Finseth v. Railway Co., 32 Or. 1 (39 L. R. A. 517); Pennsylvania Co. v. Marion, 104 Ind. 239; Illinois Cent. R. Co. v. Hobbs, 58 Ill. App. 130; Mayor, etc., of New York v. Bailey, 2 Denio (N. Y.), 433; Collins v. Railway Co., 80 Mich. 390; McKone v. Railroad Co., 51 Mich. 601. Counsel for plaintiff concede this to be the rule. Réasonable care is a relative term, to be determined by the surroundings of each case, and the dangers to be apprehended and avoided. St. Louis, etc., R. Co. v. Barnett, 65 Ark. 255. The construction of a platform may be such that a very high degree of care will be required in its construction and maintenance. Such was the case where the platform joined an open trestle. Johns v. Railroad, Co., 39 S. C. 162 (20 L. R. A. 520). We do not think that Jackson v. City of Lansing is applicable. That was a depression worn in a sidewalk to the depth of about three inches. There are depressions and steps in sidewalks which the law recognizes as not negligent, and the risk of which the traveler must assume and guard against. We are not prepared to say that a hole six inches deep and containing a loose obstacle in its bottom would not constitute negligence even in a sidewalk. We think it evidently would constitute ■ negligence when existing in a platform upon which passengers are invited to step when alighting from cars. A passenger has a right to assume that such platform is reasonably safe. He must alight with reasonable expedition. Others may alight before him and partially obstruct his view. He majr be holding his traveling bag or packages, which may also somewhat interfere with his vision.

3. It follows from what has already been said that the plaintiff was not as a matter of law guilty of contributory negligence in stepping as he did from the car. It was a question for the jury to determine from all the surrounding circumstances.

4. Defendant made a motion for a new trial, one of the grounds of which was that the verdict was against the overwhelming weight of the evidence. Whether the jury found the defendant guilty of negligence on account of the height of the steps of the car or the hole in the platform, with a chunk of cinder therein, it is impossible to determine. It is due to the intelligence of the jury to believe that they did not find that a hole such as that described by the plaintiff existed. The overwhelming weight of the evidence is against such claim. Plaintiff alone testified to its existence. ' It is significant that he did not allege in his declaration either the existence of the hole or of the chunk of cinder, but that he stepped upon loose cinders. He never saw the hole before, and he had taken the train and had alighted there many times a year. No such accident had ever occurred before upon this platform. It is not probable that the defendant would permit the existence of so dangerous a place for passengers to alight. Several employés of the defendant and other entirely disinterested witnesses testified that the platform was firm and level, and that there was no hole.. Two disinterested persons standing close to the plaintiff as he alighted, who witnessed the accident, testified that plaintiff stepped upon a loose piece of coal lying upon the platform; and one of them testified that he kicked it away with his foot, saying to the plaintiff: “That is what you stepped on.” The evidence, aside from the plaintiff’s testimony, established beyond a reasonable doubt that this platform was level, solid, and in good condition. The presence of a piece of coal, entirely unaccounted for, was undoubtedly the cause of the plaintiff’s accident. Upon the question of granting new trials, see Brassel v. Railway Co., 101 Mich. 5; Gregory v. Railway, 138 Mich. 368; Whipple v. Railroad Co., 130 Mich. 460.

Other questions are raised, but as they are not likely to occur upon a new trial, should one be had, we deem it unnecessary to determine them.

Judgment reversed, and new trial ordered.

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


text:
    ILLINOIS ROOFING & SUPPLY CO. v. AERIAL ADVERTISING CO.
    1. Witnesses — Cross-Examination.
    Where, in an action on an agreement to give a note, defendant claims he sent plaintiff the note as agreed, which plaintiff returned, and plaintiff claims that the note sent was not such a one as agreed upon, and was returned for that reason, it is proper to show by cross-examination of defendant that plaintiff demanded a note after the return of the one sent.

      %. Evidence — Admissibility—Letters.
    In an action on an agreement to give a note, it is not error to admit in rebuttal a letter from plaintiff to defendant relative to the subject-matter calling attention to the fact that the agreement had been ignored, and unless it was complied with suit would be commenced;.the letter having been in defendant’s possession and produced on demand of plaintiff.
    3. Contracts — Consideration—Extension oe Time oe Payment oe Bill.
    Evidence tending to show a want of consideration moving to-the indorser for an agreement to give an indorsed note is immaterial and properly stricken out where the admitted facts show that at the time the proposed indorser signed the agreement the account was due, that the agreement extended the time of payment, and that neither the amount of the subsequent cash payment nor the note offered complied with the terms of the agreement.
    4. Same — Certainty.
    The agreement of a corporation and its officers to make a good cash payment of between $100 and $200 on its debt, and to furnish the creditor with a note for the balance, to be indorsed by a certain one of the officers, is not void for uncertainty,
    5. Trial — Directed Verdict — Grounds.
    Whether all the reasons given by the trial judge, and his statements made in arriving at his conclusion to direct a verdict, are correct, is immaterial, where he is right in his conclusion, and properly directs a verdict.

      Error to Berrien.; Coolidge, J.
    Submitted November 10, 1905.
    (Docket No. 120.)
    Decided January 24, 1906.
    Assumpsit by the Illinois Roofing & Supply Company against the Aerial Advertising Company, Clinton G. Cribbs, and George R. Dater for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      G. M. Valentine, for appellants.

      John J. Sterling, for appellee.
   McAlvay, J.

Plaintiff, an Illinois corporation, was a creditor of defendant company, a Michigan corporation, for goods sold and delivered. There, was due on account $454.54. Defendant George R. Dater was president, and Clinton G. Cribhs was secretary and treasurer, of defendant company. On December 12, 1902, defendants sent plaintiff the following agreement:

“ Benton Harbor, Mich., Dec. 5, 1902.
“ Illinois Roofing & Supply Company,
“ Chicago, Ill.
Gentlemen: In reference to that part of your account against us of invoice of June 26, 1902, amounting to $454.54, we agree to pay you a good cash payment of between $100 and $200 and to furnish you with a note for the balance and accrued interest since account was due at six per cent, per annum, this note to be indorsed by Mr. George R. Dater.
“Aerial Advertising Co.
“C. G. Cribbs.
“Geo. R. Dater.”

On December 20, 1902, defendant company sent plaintiff a draft for $95, and a 90-day note for $359.54, signed by defendant company and indorsed by defendants Cribbs and Dater. This note was returned to defendants with a letter indicating that it was not signed by Dater according to agreement, and ending with the words:

“ I therefore return it and ask you to be kind enough to have him attach his signature to it.”

Defendants did not return the note nor send one in place of it. Credit was given for the draft. Suit was commenced against defendants February 18, 1904, in assumpsit by declaration counting upon this agreement, with the common counts added. Defendants pleaded the general issue. Upon the trial it was admitted that plaintiff was entitled to a judgment against defendant company, and that the agreement was made and executed by all the defendants. Defendants’ attorney in his opening statement further stated, among other things, that the agreement had been fully performed:

“That this is not the debt of Mr. Dater or Mr. Cribbs; that, so far as there is any claim against them, it is because they have assumed to pay the debt of some one else. We sent them a note and complied with the agreement, * * * which they declined to receive, qnd which they expressly returned and repudiated. Therefore we shall insist, if there is any liability at all on the part of Cribbs and Dater, it is because they didn’t pay as much as |100. If the payment was only $95, perhaps those gentlemen would be bound by the amount of $5.”

After the proofs in the case were closed and some discussion by counsel, the court directed a verdict for plaintiff against all the defendants for $404.44, the amount claimed. Afterwards a motion for a new trial and to amend the plea was granted, conditioned upon the'payment of the costs'taxed. This condition was not accepted, and Cribbs and Dater appeal to this court.

But two errors are assigned upon the rulings of the court as to admitting evidence. The first is that on the cross-examination of Mr. Dater the court erred in admitting proof of a demand for a note in favor of plaintiff, after the note defendants delivered was returned. The question was a proper one. Plaintiff was undertaking to show that defendants refused to give a note as agreed, or to return the first note. The second exception relates to admitting a letter from plaintiff to defendant Dater February 27, 1903. The letter was relative to the subject-matter, calling attention, to the fact that the agreement had been ignored, and unless it was complied with suit would be commenced. It was in possession of defendants, and, on demand of plaintiff, was produced and allowed in evidence on rebuttal. There was no error in admitting it.

It is also claimed that the court erred in striking out evidence given on the part of defendants to show want of consideration for the agreement sued upon. The admitted facts in the case show that, when defendants signed the agreement, the account was due; that the writing extended the time of payment for more than three months; that neither the amount promised to be paid nor the amount of the note complied with the terms of the agreement. Under these facts and the pleadings the court was correct in granting the motion to strike out the testimony tending to show want of consideration. The refusal of the court to give defendants’ requests that the writing was without consideration and void for want of certainty was not erroneous.

Whether all the reasons given by the court and his statements made in arriving at his conclusion to direct a verdict for plaintiff were the correct ones or not is immaterial. He was right in his conclusion, and properly directed a verdict for plaintiff. '

The judgment of the circuit court is affirmed.

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


author: Blair, J.

text:
    PEOPLE v. HAMILTON.
    1. Intoxicating Liquors — Local Option Election — Petitions— Sufficiency — Determination by Supervisors.
    The record of the proceedings of a board of supervisors with reference to determining the sufficiency of petitions for calling a local' option election examined, and held, to show that substantially everything was done which the statute requires. Act No. 183, Pub. Acts 1899.
    2. Same — Presumptions.
    Where the board of supervisors determines as a fact that the requisite number of electors have petitioned for a local option election, as provided by section 6 of Act No. 183, Pub. Acts 1899, it will be presumed that the board complied with the law in ascertaining the facts.
    3. Same — Resolutions.
    There is no legal objection to combining in one resolution the finding as to the sufficiency of the petitions and the order calling the election.
    4. Same — Record—Affidavit of Publication — Act of Clerk.
    The act of the clerk of the board of supervisors in recording the affidavit of publication after several pages of extraneous matter had been recorded after the resolution is not fatal.
    Exceptions before judgment from Montcalm; Davis, J.
    Submitted November 16, 1905.
    (Docket No. 242.)
    Decided January 24, 1906.
    Thomas Hamilton was convicted of violating the local option law.
    Affirmed.

      George E. Nichols and O. L. Barden, for appellant.

      Frank A. Miller, Prosecuting Attorney, for the people.
   Blair, J.

The respondent was convicted upon the 10th day of April, 1905, in the circuit court for Montcalm county, of violating the local option law alleged to be in force in that county. Respondent introduced no evidence in his defense, but contended, as he contends in this court, that the alleged local option law was invalid for the reason that the proceedings of the board of supervisors were not sufficient to authorize the submission of the proposed law to a vote of the electors of the county. The fatal omissions of the board relied upon for a reversal of the judgment below are:

First. That the board did not, before adopting the order of submission, determine and declare by resolution that, upon the face of the petitions and by reference to transcripts of the poll lists or by the returns and canvass of the last general election, such submission has been prayed for by the requisite number of electors of the county. •

Second. That the clerk did not spread the Original affidavit of publication on the records of the board following the record of the adoption of the resolution of prohibition; that there were 12 pages of record of matters foreign to the local option question intervening between the record of the resolution and order of submission and the record of the affidavit and certificate.

The substance of the proceedings complained of may be stated, so far as necessary for the consideration of the questions involved here, as follows: On the report of the clerk that certain petitions praying for submission of the liquor question to the electors, apparently signed “by more than one-third of the qualified electors of the entire county, as shown by the returns and canvass of the last general election,” had been filed in his office, the board, on January 7th, appointed a committee “ of five to investigate and report on the local option petitions presented to this board.” On January 9th the committee submitted majority and minority reports, as follows:

Gentlemen: Your committee to whom was referred the matter of the local option petitions, so-called, have thoroughly considered the same, and respectfully report thereon, as follows:
“First. There are not the requisite number of petitioners upon legally authenticated petitions to authorize this board to submit this question to the electors of this county.
Second. We therefore recommend that the prayer of the petitioners be denied.
“ Dated this 9th day of January, A. D. 1903.
“L. W. Sprague.
“George Mathison. “H. S. Sharpe.”
“ Gentlemen: The minority of your committee to whom was referred the local option petitions, so-called, respectfully submit the following: That upon examination of said petitions we find the requisite number of names upon legally authenticated petitions sufficient in our judgment, and recommend that the prayer of petitioners be granted.
“Grant Terwilliger.
“D. D. Dilley.”

The majority report was rejected by a vote of 14 to 8, and ■“the minority report was adopted” by a vote of 17 to 4. Thereupon the following resolution was adopted:

“ ‘ Whereas, twenty-three petitions from as many townships and wards of Montcalm county, praying that the manufacture of liquor and the liquor traffic be prohibited in said county, have been laid before the board'of supervisors at the present session, of the board by the county clerk of said county, which petitions have been duly examined and upon which examination it appears that such petitions have been signed by more than one-third of the qualified electors of said county as shown by the returns and canvass of the general election for State officers held in said county in November, 1902.
“ ‘ The board finds that the highest vote cast for any State officer in said county at the said last general election was four thousand three hundred twenty-four votes, and that said petitions have been signed by two thousand three hundred forty-four electors of said county:
“ ‘ Therefore, resolved, and it is hereby ordered, that the question whether the manufacture of liquors and the liquor traffic be prohibited in Montcalm county under the provisions of Act No. 207 of the Public Acts of 1889 and the acts amendatory thereof and supplemental thereto be submitted to the qualified electors of said county at the next general election of township officers in the several townships, villages and cities in Montcalm county, to be held on the first Monday in April, 1903, to ascertain whether or not it is the will of the electors of the county that the manufacture of liquor and the liquor traffic should be prohibited within the limits of the county.’
“ On motion of Mr. Helmick, the resolution was adopted by the following yea and nay vote:
“Yeas: Messrs. Bailey, Cadwell, Dickerson, Freeman, Helmick, Holland, Holcomb, Johnson, McNaughton, Montgomery, Sharp, Stearns, Terwilliger, Steere, Van Denberg.
“Nays: None.”

Sections 6 and 14 of Act No. 183 of the Public Acts of 1899, are as follows:

“ Sec. 6. At such meetings of the board of supervisors it shall be the duty of the county clerk to lay before them petitions filed in his office praying for such submission of said question of prohibition, and, when upon examination, it shall appear to the said • board, upon the face of said petitions, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such submission of said question has been prayed for by the requisite number of electors, as herein-before provided, they shall, by resolution, determine and declare to that effect, and such determinations shall be final as to the sufficiency of the petitions and the requisite number of electors signing the same, and they shall thereupon issue an order directing that such question shall be voted upon at the next annual township election to be held in and for such county. Said order shall recite: The filing and examining of the petitions; the resolution determining and declaring that said petitions represent not less than one-third of all the qualified electors of the county as shown by the transcripts of the poll lists, or the returns and canvass of the last preceding general election for State officers held in such county; the ordering of the question of prohibition to be submitted at the next general election for township officers in the several townships, villages and cities in the county, to ascertain whether or not it is the will of the electors of the county that the manufacture of liquor and the liquor traffic should be prohibited within the limits of the county, which said day of election shall always be at the time of the township meeting for the election of township officers. Such orders shall be entered in full upon the journal of the proceedings of the board for that day, and the same shall be signed by the acting chairman and clerk of the board before final adjournment. The county clerk shall, without delay, eause a copy of such order, duly certified by him, to be delivered to the township clerk of each township, and to one of the inspectors of election of each ward or election district of every city in the county, and shall also at the same time cause such order to be published for three successive weeks in two newspapers published in the county.”
“Sec. 14. It shall be the duty of the clerk of such board of supervisors to publish without delay, once in each week until the first day of the next May, in a newspaper published and circulating in such county, to be designated by the board, a copy of the preamble and resolution adopted by the board; as provided by section thirteen of this act: Provided, That if such proposition shall have been decided in the negative, such publication shall not be required. The said clerk shall also, without delay, forward to the secretary of State a certified transcript of such resolution and of so much of the journal of the proceedings of the board of supervisors as pertains to such election, including the tabular statement of votes, together with a copy of the affidavit of publication of the notice of the adoption of the resolution. Such original affidavit of publication shall be filed with the clerk of the board of supervisors, and he shall spread the same on the records of the board, following the record of the adoption of the resolution of prohibition, and the said clerk shall state next on the record the date when said notice and affidavit of publication was entered for record, and shall then sign the record officially. The record of such resolution of prohibition and the publication of notice, and all duly certified copies thereof, shall be the evidence of the facts therein stated so far as relates to the territory and municipalities within the limits of said county; and the regularity of any proceedings prior to the adoption of such resolution by the board of supervisors, shall not be open to question on the examination or trial of any person for the violation of any of the provisions of section one of this act.”

It is apparent from the records of the board of supervisors, as above quoted, that substantially everything was done which the statute required to be done. The question whether the requisite number of electors had signed the petitions was directly presented to the board for its decision by a majority and minority report. The board found in favor of the minority report, adopted it, and thereby determined that there was a sufficient number of names upon legally authenticated petitions to authorize an order of submission. The board also explained in the preamble its interpretation of the effect of its action in adopting the minority report, and then proceeded to declare that it found, not by way of recital, but as a fact, “that the highest vote cast for any State officer in said county at the said last general election was 4,324 votes, and that said petitions have been signed by 2,344 electors.” The board having determined this fact, which it was its duty to determine, we must presume that the law was complied with. Giddings v. Wells, 99 Mich. 221; Hanna v. Chalker, 136 Mich. 8. The record, in our opinion, sufficiently sets forth the essential facts, and no one reading it could have any doubt that the proceedings required by law had been taken. It might, perhaps, be more in accord with the letter of the statute if the board had adopted a distinct resolution determining ‘ that such submission of said question has been prayed for by the requisite number of electors;” but we can discover no legal objection to combining the successive resolutions ip. one as was done in the case at bar. While the recital in the order of submission of the proportion of signatures to the petitions is not called a resolution, nor, technicálly, in the form of a resolution, it is, in effect and within the mean-' ing of the statute, a resolution.

We do not think that the clerk’s failure to record the affidavit of publication in the right place should be held to be fatal to the proceedings. The neglect of the officer to perform a mere ministerial duty cannot be permitted to defeat the election. ^

The judgment is affirmed.

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


text:
    FREEMAN v. INGERSON.
    Warehousemen — Receipt—Demand—Limitations.
    Where wheat is stored in an elevator and a receipt taken reciting that the wheat is subject to the owner’s order of sale on or before a certain date, a demand for the wheat or its proceeds must be made within a reasonable time after that date, which, by analogy to the statute of limitations, will be deemed to be six years.
    Error to Barry; Smith J.
    Submitted November 17, 1905.
    (Docket No. 143.)
    Decided January 24, 1906.
    Assumpsit by William O. Freeman against Stephen S. Ingerson for the value of certain wheat stored with defendant. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial granted.

      Colgrove & Potter, for appellant.

      Walter S. Powers and Thomas Sullivan, for appellee.
   Blair, J.

William O. Freeman, the plaintiff above named, commenced an action of assumpsit in justice’s court against the defendant, Stephen S. Ingerson, July 27, 1903, whereupon the defendant filed a plea of the general issue and gave notice of the defense of the statute of limitations. The case was tried in justice’s court, where a verdict of no cause of action was rendered, and came into the circuit court for the county of Barry by appeal, where, upon the second trial of the same, a verdict was rendered in favor of the plaintiff and against the defendant for $135.94, and judgment duly entered, and defendant appeals.

Prior to the 14th day of December, 1885, the defendant and one Simon Overholt were engaged in the grain elevator business in the village of Nashville, Barry county, Mich., being associated together under the firm name of Ingerson & Co. The plaintiff in this case was a farmer, owning a farm in the vicinity of Nashville, and stored with Ingerson & Co., on or before the 14th day of December, 1885, 1054-4- bushels of wheat, taking therefor a wheat check, as follows:

“Nashville, Mich., December 14, 1885.
“ Wheat check.
“ Barry & Downing, Bankers.
“ William O. Freeman has stored in our elevator 105-44 bushels of No. 1 white wheat, subject to his order of sale on or before July 1st, 1886.
“ Ingerson & Co.”

The defendant was engaged in the grain business from July, 1881, to February, 1887. The firm of Ingerson & Co. continued to February, 1887, at which time the defendant sold his interest to Henry Reynolds and the defendant had no further interest in said firm of Ingerson & Co. after February, 1887, except to settle up the business of the firm. Át the time of the dissolution of the co-partnership of Ingerson & Co. notice was published for three successive weeks in the Nashville News, a newspaper published in the village of Nashville, as follows:

“ Inasmuch as there is a change in the firm of Ingerson & Company, all notes due and outstanding accounts must be promptly settled, also all stored grain must be sold by March 12, 1887.
“ Ingerson & Company.”

The plaintiff made no demand on this cheek until the 24th day of August, 1897, and then delayed the commencement of suit until the 27th day of July, 1903, or 5 years and 11 months after demand.

The books of the firm of Ingerson & Co., pertaining to the grain trade, were left in the care of Mr. Overholt in the office which had been maintained in connection with the grain business. The defendant never saw the books after the time he settled up the business of Ingerson & Overholt. They were left with Mr. Overholt, who died somewhere in Ohio six years at least prior to the trial of this case. Search was made for the books in various places, but after diligent search and inquiry nothing could be ascertained of the books in question or of their whereabouts.

We think that the rule supported by the greater weight of authority is that, where a demand is necessary to create a cause of action, such demand must be made within a reasonable time, which, by apalogy to the statute of limitation, will be deemed to be six years. Kimball v. Kimball, 16 Mich. 220; Palmer v. Palmer, 36 Mich. 493; Smith v. Smith’s Estate, 91 Mich. 10; Jewell v. Jewell’s Estate, 139 Mich. 578; In re Emmons’ Estate, 142 Mich. 299; Atchison, etc., R. Co. v. Township of Burlingame, 36 Kan. 628; Codman v. Rogers, 10 Pick. (Mass.) 119; Pittsburgh, etc., R. Co. v. Byers, 32 Pa. 22; Ball v. Railway Co., 62 Iowa, 753; 9 Am. & Eng. Enc. Law (2d Ed.), p. 214; 19 Am. & Eng. Enc. Law (2d Ed.), pp. 193, 194, 196, 211; 13 Cyc. p. 808. We do not find in this record any special circumstances to excuse the making of such demand. On the contrary, it clearly appears that there was a conversion of this wheat, to the knowledge of plaintiff, in 1887. Counsel for plaintiff state, at page 1 of their brief, that—

“After Mr. Ingerson, the defendant, went out of the elevator business, in 1887, and after Mr. Freeman noticed that Mr. Reynolds was conducting the elevator business, he claims that he went to Mr. Ingerson, the defendant, and asked him what he had done with his stored wheat; that he (Ingerson) stated that he had turned it over to Mr. Reynolds.”

Upon any view which can be taken of the facts of this case, the statute of limitations had run against the plaintiff’s cause of action, and the verdict should have been directed for the defendant.

The judgment is reversed, and no new trial granted.

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


author: Montgomery, J.

text:
    BUNDAY v. COLUMBUS MACHINE CO.
    1. Sales — Breach op Warranty — Action by Buyer.
    An action for breach of warranty of quality in goods sold does'not lie in advance of the actual transmission of the title’to-the buyer.
    5. Same — Transfer op Title — Executory Contracts.
    Where a contract for the sale of machinery provides for its delivery to the buyer and for payment of the price in installments and that the title shall remain in the seller until the purchase price is fully paid, the contract is merely executory, ■and title is not thereby transferred to the buyer subject to a lien in behalf of the seller for the unpaid portion of the purchase price.
    Error to Clinton; Stone, J.
    Submitted November 17, 1905.
    (Docket No. 144.)
    Decided January 24, 1906.
    Assumpsit by Fred P. Bunday against the Columbus Machine Company for breach of a contract for the sale of a certain engine. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Nash, Lentz, Addison & Fritter and William M. Smith, for appellant.

      Lyon & Moinet, for appellee.
   Montgomery, J.

Plaintiff and defendant, in August, 1903, entered into a contract having the form of a proposal and acceptance, in the following terms:

“Columbus Machine Co.,
‘ ‘ Columbus, Ohio,
“ Manufacturers of Gas and Gasoline Engines.
“Mr. E. P. Bunday,
“St. Johns, Mich.
“We propose to furnish and deliver f. o. b. cars Columbus, Ohio, one 40 H. P. gasoline engine, specified as follows:
“Horse Power. The engine shall be of 40 actual horse power, and shall be tested at our works before shipment, and 40 actual horse power shall be developed.
“ Supplies. There shall be furnished by us with each gasoline engine one 56x14 in., one 30x12 in. drive pulley; one set of batteries with spark coil (batteries guaranteed for period of three months when properly installed); switch and 20 feet of wire; 100 gal. gasoline tank; neccessary wrenches, oilers, and muffler; but no piping unless specified in this contract. All piping and fittipgs for gasoline and water. All exhaust pipe and fittings to extend out of engine room. One plunger pump for water circulation. One exhaust pot. One 24x14 in. friction clutch pulley for line shaft 2 3-16 in. bore.
“ Foundation. You are to build foundation according to plans furnished by us, and you are to furnish a competent man to assist in installing engine.
“Defective Material. We will furnish free of charge any defective part or parts for a period of one year. Also guarantee the engine not to use to exceed one gallon of 74 degrees gasoline per horse power per ten hours when developing full load.
“Terms. Price ($1,150)eleven hundred and fifty dollars, payment to be made as follows: As soon as the engine is set and running successfully, I agree to pay three hundred dollars ($300) cash and one St. Johns 25 H. P. gasoline eng. complete f. o. b. cars St. Johns. One hundred and twenty-five dollars ($125) in 60 days from starting engine, one hundred dollars.($100) in four months and one hundred dollars ($100) in six months from starting engine. With interest at 6 per cent, per annum, secured by-note subject to strjkes, fires or other unavoidable causes.
“ Ownership. Said engine shall not belong to you until the price herein stipulated shall be paid in full. Until the price herein stipulated is paid in full, the title and ownership in said engine is to be and to remain in the Columbus Machine Company, and said engine and machinery so furnished shall not become a part or parcel of the real estate to which it is attached, or be permanently attached to said real estate, but said engine and machinery shall be and remain the personal property of the Columbus Machine Company. Engine to have air starting outfit.
“ Respectfully submitted,
“Columbus Machine Company,
“Per H. C. King.
“Acceptance. The above proposal, especially that part thereof reading as follows: ‘ Said engine shall not
belong to you until the price herein stipulated shall be paid in full. Until the price herein stipulated is paid in full, the title and ownership in said engine is to be and to remain in the Columbus Machine Company, and said engine and machinery so furnished shall not become a part or parcel of the real estate to which it is attached, or be permanently attached to said real estate, but said engine and machinery shall be and remain the personal property of the Columbus Machine Company’ — is hereby accepted this 28th day of August, 1903.
“Columbian Maneg. Co.,
“Per E. P. Sunday.
“Engine must be delivered,on cars, Columbus, Ohio, within one week from above date.”

The engine was shipped and received by the plaintiff and set up on a foundation prepared for that purpose; the 25 horse power engine referred to in the contract was delivered to defendant, but the cash payment provided has not been made. It was soon discovered that the engine furnished by defendant failed to answer the guaranty as to the quantity of gasoline required, and after some delay and negotiations this action was brought. On a trial before a jury a recovery was had by plaintiff, and the case is brought before us for review on error.

The action is for a breach of warranty of quality. The case presents two questions which are controlling: First, whether, if. the contract be held an executory one and not one evidencing a completed sale, an action for a breach of warranty lies; and, second, whether the title had, in this case, passed to plaintiff. There is no serious contention made by plaintiff that such- action does lie in advance of the actual transmission of title. The authorities negative the right. See Benjamin on Sales (7th Ed.), p. 662; Frye v. Milligan, 10 Ont. 509. Plaintiff, however, contends that there was in this case a completed sale with a reservation of title in defendant by way of security only. The circuit judge so held and permitted a recovery based on that contention. This was error. The contract is not equivocal in its terms. The provision is express and precise that the title shall remain in the vendor until the purchase price is paid. And, unless we do violence to the language employed, we must hold that the intention to reserve title is expressed. The case is not to be distinguished in this respect from Harkness v. Russell, 118 U. S. 663. Contracts of similar import have been frequently held by this court to amount to executory contracts only. Whitney v. McConnell, 29 Mich. 12; Smith v. Lozo, 42 Mich. 6; Marquette Manfg. Co. v. Jeffery, 49 Mich. 283; Baird v. Furniture Co., 98 Mich. 457; Fuller v. Byrne, 102 Mich. 461; Pettyplace v. Manufacturing Co., 103 Mich. 155; Ryan v. Wayson, 108 Mich. 519.

Plaintiff’s counsel rely chiefly upon the cases of Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 268; Choate v. Stevens, 116 Mich. 28 (43 L. R. A. 277); and Van Den Bosch v. Bouwman, 138 Mich. 624. In Chicago Railway Equipment Co. v. Merchants’ Bank, the contract was materially different from the one under consideration here, as is manifest from the finding of the trial judge (approved by a majority of the Supreme Court) that any one contemplating a purchase of the notes would draw the inference that the freight cars had already been sold by the payee to the maker, and that the payee was to retain a lien and security upon them in the way of mortgage. It was held that, so construed, the contract was an executed one. The present case is quite different. In its very terms the contract is executory and cannot be construed as indicating a previous sale. So in Choate v. Stevens, which followed Chicago Railway Equipment Co. v. Merchants’ Bank, supra, a delivery of the property which furnished the consideration for the note had, in fact, occurred long before the note was given. Van Den Bosch v. Bouwman in no way departs from the cases above cited. The question there presented was whether, when a title note authorized the original owner to retake the property and sell it, applying the proceeds on the note, such sale when made was on account of the maker or payee of the note. It was held that the contract should be enforced according to its terms.

. For the error pointed out, the judgment is.reversed, and a new trial ordered.

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


text:
    ROGERS v. KRUMREI.
    .Evidence — Memoranda—Res Gestee.
    On. the issue whether certain cement blocks were agreed to be furnished at actual cost of making, or at an agreed price, a memorandum of the price which the buyer claims was agreed upon, made by the buyer in the seller’s immediate presence, is admissible as res gestas.
    Error to Washtenaw; Kinne, J.
    Submitted December 5, 1905.
    (Docket No. 258.)
    Decided January 24, 1906.
    Assumpsit by El wood C. Rogers and James Thoms against August F. Krumrei for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Murray & Storm and Arthur Brown, for appellant.

      Bennett & Newkirk, for appellees.
   Montgomery, J.

Plaintiffs sued to recover for cement blocks furnished to defendant for use in the construction of a dwelling house. The plaintiffs’ testimony tended to show that the blocks were furnished to defendant under an agreement that he should pay to plaintiffs the actual cost of the work and material; their, purpose being to advertise their work at Ann Arbor. The defendant testified that the blocks were furnished at an agreed price. Upon this issue the jury found for plaintiffs. Defendant brings error, and alleges that there was error in denying his motion for a new trial and in the ruling of the court in excluding a memorandum appearing upon his book, claimed to have been made at the time the contract was made. His testimony as to this memorandum was as .follows:

“ In Saline, on the church grounds, the first time I dealt with plaintiffs and made arrangements with them, I marked the figures in my book. Mr. Rogers stood where I think he could see it. I stood right beside him, and Mr. Rogers came back and gave me the figures — 8 cents a block, or $80 for 1,000. I marked it down in my book. Then I said: ‘You figure up what this whole job will cometo; make the color all right.’ I gave him the number of the house, and he went back to Mr. Thoms and figured and came back and gave me the figures of $136, and I still had my book in my hands, and he stood right by me when I put it down as you will find it there. He couldn’t help but see me mark it in the book. The other items about the rock face and the color were entered four to six weeks later at Rogers’ house on the porch. He was also sitting on the porch. I laid the book down right before him, and he could see when I put down the $15 for the rock face, and for the plain face and color whatever it cost. He couldn’t help but see me write it. He was sitting right by me.”

The memorandum was then offered and excluded. In this ruling there was error. The memorandum was made in the immediate presence of the plaintiff with whom the contract was made, and, while not conclusive, was a part of the res gestae, and as such admissible testimony. 1 Current Law, p. 1149; Bennett v. Smith, 40 Mich. 211; Freese v. Arnold, 99 Mich. 13; Place v. Baugher, 159 Ind. 232. The case of Weaver v. Bromley, 65 Mich. 212, cited by plaintiff, is quite different. In that case the memorandum was not made in the presence of the other interested party. We are not able to say that this error was without prejudice. The case was a close one on its facts, and defendant was entitled to the benefit of all legitimate testimony.

The judgment is reversed, and a new trial ordered.

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


text:
    McDONALD v. IDEAL MANUFACTURING CO.
    1. Appeal and Error — Estoppel to Allege Error.
    Whether or not there is a substantial conflict in the evidence . on a certain issue, is not before the court, where plaintiff in error requested the trial judge to charge that that issue was solely for the jury.
    2. Master and Servant — Contract oe Employment — Action for Breach — Instructions.
    In an action by a servant for breach of a yearly contract of employment, evidence examined, and held, not to support an instruction interpreting a witness’ testimony as being to the effect that the contract was terminable on 30 days’ notice.
    3. Witnesses — Production oe Books — Discretion oe Court.
    Where plaintiff served a subpoena duces tecum for the production of defendant’s books, and it appeared that there were some 21 of them, consisting of about 700 pages each, it was proper to require him to send some one to examine the books to at least ascertain what particular books were necessary, but plaintiff should not have been limited to sending some one to check over a statement from the books furnished by defendant.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1905.
    (Docket No. 156.)
    Decided January 24, 1906.
    Assumpsit by Peter E. McDonald against the Ideal Manufacturing Company for breach of a contract of employment. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Edward S. Qrece and John H. McIntyre, for appellant.

      John H. Bissell, for appellee.
   Blair, J.

Plaintiff brings this action to recover damages growing out of an alleged breach of a contract of employment. Plaintiff claims that he was employed by defendant for one year, from April 1, 1901, at a salary of $2,000 and $5 per day as traveling expenses.

“It was also agreed that when my sales amounted to $76,500, 5 per cent, of which would be equal to the amount of my salary and expenses, I was to have 5 per cent, on all sales over that amount. * * *
“ If a special man went from the factory or company to sell goods in my territory and gas stoves or any other material made by them, I was to have credit for those sales.”

Defendant claims that plaintiff was not hired for one year, but for an indefinite period, with a distinct understanding that the contract could be terminated at any time upon 30 days’ notice. These conflicting claims as to the duration or term of the employment present the principal question of fact in the case. It is doubtful, to say the least, whether there was any real conflict as to the term of the employment, but inasmuch as the plaintiff requested the court, in his first request to charge, to instruct the jury that “the question is whether or not the plaintiff was employed by the year at a yearly salary, payable semi-monthly, is for the jury to determine solely,” the question is not open on this record.

We think, however, that the court erred in charging the jury as follows, viz.:

“ If the evidence is as Bush testified in his deposition at least five times (I have the quotations here), at least five .times, that it was at the rate of say $1,200 a year, or whatever it was, at the rate of $1,200 as paid like all the help in the works he said, in one place, and he said they had a right, in one place, to cut them off at any time, and another 30 days, that would be the end of the transaction, that would be 1, 2, 3, and I will add 4.”

This charge clearly gave the jury to understand that Bush had testified that the agreement provided that plaintiff could be discharged on 30 days’ notice. We do not think his testimony will bear such an interpretation. At all events, it cannot be said that such is the necessary interpretation. So far as this question is concerned, Bush testified:

“ Q. Did not all the terms of employment between the company and the salesmen made under their direction or by you contain a proviso that the employment could discontinue or terminate on a notice of 30 days by either party ?
“A. I made it a rule, and to the best of my recollection never deviated from it but once (that was in the' employment of Mr. Marsh); that is, that I had a distinct understanding with each person that they could be and would be dismissed without a moment’s notice if they disobeyed orders or did not fully comply with the terms of their employment. I cannot remember any deviation from any of the above answer as to the 30 days’ notice. My recollection of Mr. McDonald’s employment was to be at a certain rate per year, his services to be terminated at any time by the company, but only for reasons warranting a dismissal.”

There was no other testimony in the case from which the jury could legitimately infer that the agreement was terminable upon 30 days’ notice. It is true that the plaintiff testified that on two different occasions prior to April, 1901, he had sent in his resignation to take effect in 30 days. But he says that Bush refused to receive it, claiming that plaintiff was employed for a year, and he therefore went on with his work.

One of the jurors questioned him upon this subject:

“You say you sent in a resignation twice; each time giving 30 days’ notice ?
“A. Yes, sir.
Q. If you were employed by the year, what right had you to resign, giving them 30 days’ notice ?
“A. ■ Well, I did not have any right.
Q. Would it not indicate giving 30 days’notice? Would it not indicate that you each had the right to sever it on 30 days’ notice ? Would it not rather indicate that you had the 30 days in your own mind ?
“A. Well, it was never understood that way orally, really. Mr. Bush, the first one I sent, refused it oh the ground I was employed by the year.”

It is apparent from this testimony, which is undisputed, that neither Mr. Bush nor plaintiff understood that plaintiff had a right to resign and leave the company’s employ' without its consent. It is plain, therefore, that the statement of the court, as his interpretation of Bush’s testimony, that the agreement was terminable on 30 days’ notice, was prejudicial error.

Plaintiff also contends that the court erred in not requiring the production of certain of defendant’s books. The court refused to order their production, upon the ground that they were cumbersome and unnecessary, and to save time. Defendant’s counsel says upon this point r.

“We concede that, if the books had been necessary to make plaintiff’s case, the inconvenience or expense to defendant would not have constituted an excuse for not producing them. But, on the showing made, the discretion of the trial court was properly exercised.”

A subpoena duces tecum was regularly served for the production of the books, and we think that some of them were probably necessary to enable the plaintiff to make out his case. He could only show shipments made upon his orders by the books, and he could only show by them sales made by other agents in his territory. It appeared, however, that there were some 21 of these large books, of about 700 pages each, and the court, for the purpose of expediting the trial of the cause, required that plaintiff should send some one to check over the statement from the books furnished by defendant, instead of requiring all of the books to be brought into court and interrupting the trial for the purpose of examining them at length. While we do not think that plaintiff should be limited to merely checking over defendant’s statement, we do not think it was unreasonable to require that he should endeavor at first to ascertain the desired facts in the manner suggested by the court. He at least could ascertain what particular books he wished produced, and avoid the delay incident to an examination of all of them in court. The court will undoubtedly make such order as may be necessary to afford the plaintiff a proper opportunity to examine the books in advance of the new trial.

There are many other assignments of errors, which we do not think it necessary to discuss, since the errors complained of will probably not arise upon another trial.

For the error abové pointed out, the judgment is reversed, and a new trial granted.

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


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    WHEATON v. CADILLAC AUTOMOBILE CO.
    1. Principal and Agent — Partnership as Agent —Effect of Dissolution.
    A contract of agency, by which a partnership is appointed agent, may be abandoned by the principal upon retirement from the firm of the member of the firm with whom the principal was acquainted and upon whom he relied in the management of the agency business.
    2. Contracts — Severable Provisions — Agency and Purchase of Goods.
    Where the main purpose of a contract was to establish a selling agency for the principal’s goods, an order and acceptance for goods in connection therewith was incidental to the main purpose, and, on the principal’s becoming entitled to abandon the contract of agency, it was also entitled to cancel the order.

      3. Sales — Indefinite Order — Effect of Acceptance.
    Where a manufacturer of different styles of automobiles, at different prices, agrees to fill “specified” orders, an order for a certain number of machines, without specification of style, is too indefinite for enforcement, though accepted. •

      Error to Wayne; Hosmer, J.
    Submitted December 6, 1905.
    (Docket No. 148.)
    Decided January 24, 1906.
    Assumpsit by Linden S. Wheaton, doing business as the New Jersey Automobile Company, against the Cadillac Automobile Company for breach of a contract for the sale of certain automobiles. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Clark, Jones & Bryant, for appellant.

      William, H. Wetherbee (Thomas T. Leete, Jr., of counsel), for appellee.
   Blair, J.

This is a suit brought by plaintiff for himself and as assignee of all the interest of his former partner, Stewart, in the business carried on by the copartnership known as the New Jersey Automobile Company, to recover for the alleged breach of a contract to sell and deliver to plaintiff 50 automobiles, for which plaintiff claims to-have placed an order which was accepted by defendant. It is not disputed that there was a contract between the-parties, but counsel disagree radically as to its character. Counsel for plaintiff insist that the contract is evidenced by the correspondence between the parties exclusively, and that it was primarily an agreement for the purchase and sale of personal property.

On the other hand, counsel for defendant contend that the contract is to be derived from the correspondence and talks of the parties, and that the agreement was primarily for a selling agency in the State of New Jersey, involving the personal relationship of the parties. The pai’tnership was dissolved, and Mr. Stewart retired from the firm before any automobiles were furnished. Mr. Metzger, at the time the contract was entered into, was sales agent for defendant, was well acquainted with Mr. Stewart, of the New Jersey Automobile' Company, and had confidence in him as a salesman of automobiles. Metzger testified that he relied upon these qualifications in entering into the contract:

“In proposing the arrangement, I certainly relied upon Mr. Stewart being in the capacity of the salesman in handling the business. * * * I never knew Mr. Wheaton (before the agency was given). In fact, originally, I supposed we were dealing entirely with Mr. Stewart. *' * * I, of course, expected Mr. Stewart to sell the goods, to maintain the agency, and employ competent help to assist him.”

The circuit judge held that the defendant’s construction-of the contract was correct, and that—

“The order for the 50 automobiles — the acceptance, if there is an acceptance by the Cadillac Company — is predicated upon the consideration that Mr. Stewart would use his personal efforts at least as a partner in the New Jersey Automobile Company, during the balance of the season, in the procuration of orders, and, if that is so, gentlemen of the jury, upon the dissolution of that firm, one of the elements of consideration which moved to the Cadillac Automobile Company was thenceforth lacking.”

For this, among other reasons, the circuit judge directed a verdict for the defendant. We are of the same opinion as the circuit judge. The main purpose of the parties, as disclosed by this record, was, we think, the establishing of a selling agency in the New Jersey territory. The sale and delivery of machines to the agency so established was incidental to this main purpose. The contract was an entire one and indivisible, and not, as contended by plaintiff’s counsel, separable into two distinct contracts, one for the establishment of an agency, and the other for the purchase of machines. Manifestly, the defendant was entitled, under such a contract, to the personal services of Mr. Stewart; and, having lost them by the dissolution of the partnership, it was entitled to abandon the contract.

We are also -satisfied-that, even if the contract were severable, there was no such order and acceptance as would bind the defendant to deliver, or the plaintiff to accept, 50 automobiles. Defendant manufactured three different styles of automobiles for different prices. According to the correspondence, defendant was to fill 4 ‘ specified ” orders, and manifestly could fill no others. Until the plaintiff specified what style of machine he wished shipped, the defendant could only guess as to whether it should ship the Runabouts, the Tonneaus, or the Top Automobiles. An order for 50 automobiles was too indefinite for enforcement, if accepted.

The judgment is affirmed.

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


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    LABO v. ASAM.
    Highways and Streets — Obstructions — Removal—Justification.
    A highway commissioner, claiming that plaintiff had encroached on the highway, made and served upon him an order requiring him to remove his fence thereon. Plaintiff served no denial, as required by statute, and the commissioner removed the fence. Held, that, in trespass for so doing, the order alone was no proof of the fact stated in it that the fence was in the highway, and, in the absence of such proof, furnished no justification to the commissioner.
    Error to Monroe; Lockwood, J.
    Submitted December 8, 1905.
    (Docket No. 186.)
    Decided January 24, 1906.
    Trespass quare clausum fregit by Clement Labo against August Asam and others. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      George M. London and E. R. Gilday, for appellants.

      G. A. Golden and Willis Baldwin, for appellee.
   Blair, J.

Appellee was the occupant and owner of a tract of land in the township of Frenchtown, Monroe county, described in his declaration in this case as follows: Tract in section 17, town 6 S., range 10 E., bounded, north, by highway, as then fenced on the said 8th day of May, 1904; west, by the west line of said section ; south and east, by lands of Fix. On the 19th day of January, 1904, the then highway commissioner of the township, claiming that the appellee had encroached upon the highway above mentioned as the northern boundary of appellee’s land, made an order, under his hand, requiring the fence constituting such encroachment to be removed. On the 29th day of said January a copy of said ordfer, together with a notice requiring him to remove said fence, was served upon appellee. Appellee gave this order and notice no attention, and served no denial in writing, as required by law [§ 4122, 2 Comp. Laws], of the existence of a highway as therein claimed, or of the encroachment, in whole or in part, on the commissioner of highways of the township. After the expiration of the 30 days the commissioner of highways, with the aid of the other appellants, whom he called to his assistance, took down the fence, placing the materials on appellee’s land, south of the highway.

Appellee then brought his action of trespass in justice’s court and filed his written declaration, to which defendants pleaded the general issue, with notice that the locus in quo was a public highway, and that plaintiff had been ordered to remove an encroachment existing. thereon, which he had neglected and refused to do, and that he had not made and served a denial, in writing, of the existence of a highway, or the fact of encroachment, as claimed, and that defendant Asam, as commissioner of highways, the others assisting him, had acted, in the performance of official duty, etc. Bond was given, and the case was certified to the circuit court of the county for trial.

The plaintiff offered evidence tending to show: That he had been the owner and in possession of the lands described in his declaration for about 35 years, and that the north line of said premises is the section line where the old road is. That plaintiff’s grantor of the westerly part of said premises, before the convey anee thereof to plaintiff, had built a rail fence, some 30 to 35 rods in length, along the south border of the road. That plaintiff had himself built and maintained a fence on the easterly part of the premises, along said road, ever since he had owned it. The entire fence, some half a mile in extent; along the road, was thrown down on the 6th day of May, 1904, by defendants, and the materials were thrown .onto the meadow land south of the fence. That his damages are $50. That one A. F. Kuhl, who, at the time, was highway commissioner of the township of Frenchtown, served a paper on plaintiff which was not dated, and afterwards another paper was served on plaintiff by one Steckmeyer, officer, or deputy, or constable. ‘ ‘ I was on friendly terms with Steckmeyer, and that was ' all I wanted to know about it.” This was in January or February, 1904. Plaintiff kept the paper; got some one to read it to him;, and found out what it was, in part. This paper, Exhibit A, was produced by plaintiff, and received in evidence. Plaintiff sent no word or written notice to said Kuhl,, highway commissioner, within 30 days or at any time, and did not remove any fence. The defendants took the fence down, acting under the orders of the defendant, August Asam, the then highway commissioner of French-town. This comprised all of the testimony in the case. The defendants did not offer any evidence, but requested the court to direct a verdict in their favor. The court refused to grant defendants’ request, and directed a verdict in favor of plaintiff. This constitutes the error relied upon for a reversal.

We think the ruling of the trial court was correct. The order of the highway commissioner recited that the road was on the town line, and that the “east half of said highway is allotted to the township of Frenchtown to maintain.” But there was no proof of any such allotment, or even that the fence was not upon the true line as described in the order. The order is not of itself proof of the facts stated in it, and, in the absence of such proof, furnishes no justification. Cronenwaite v. Hoffman, 88 Mich. 617. See, also, Neal v. Gilmore, 141 Mich. 519.

The judgment is affirmed.

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


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    WALKER v. MARION.
    1. Tenancy in Common — Authority of Co-Tenant.
    A contract by a tenant in common,, giving permission to erect sign and bill boards on the lands, is not binding on the co-tenants.
    2. Injunction — Evidence—Sufficiency.
    On a bill to enjoin the removal or destruction of sign or bill boards, evidence examined, and held, insufficient to sustain an allegation that the person with whom the complainant contracted for the right to erect the bill board had authority from the owners of .the land to malre the contract.
    Appeal from Wayne; Donovan, J.
    Submitted December 8, 1905.
    (Docket No. 168.)
    Decided January 24, 1906.

      Bill by Henry W. Walker and Harry C. Walker, co-partners as Walker & Co., against Sylvester T. Marion, Albert L. Melvin, and Anna L. Melvin to restrain the removal of certain bill boards. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.

      William E. Henze, for complainants.

      E. A. Fink, for defendant Melvin.
   Blair, J.

Sylvester T. Marion, his brother Adolph N. Marion, and Alexis Campau were tenants in common of certain real estate on the northeast corner of Fort street west and Scotten avenue, in the city of Detroit. Campau owned an undivided one-half, and the Marions each an undivided one-quarter of the property. In May, 1903, Sylvester T. Marion filed a bill for partition of these and other lands, resulting in a decree for partition and the appointment of commissioners on October 22, 1903. January 13, 1904, the report of the commissioners was filed, setting off to Sylvester T. Marion, in severalty, the property in question. February 9, 1904, an order nisi was entered, confirming the partition as made unless objection was made within eight days. ■ June 9, 1904, the final decree was entered. On September 24, 1903, the complainants herein entered into the following agreement with Adolph N. Marion, viz.:

“Detroit, Sept. 24, 1903.
“ In consideration of the sum of forty-five ($45) dollars per annum, payable semi-annually, permission is hereby granted Walker & Co. to occupy space for billboard and advertising purposes at premises known as northeast corner of Fort street west and Scotten avenue, northwest corner of Champlain and Riopelle streets for one year, or until space occupied shall be required for other uses than advertising and bill board purposes. And when so required, it will give Walker & Co. twenty days’ notice to have removed their board.
“ Should the view of the boards become in any way obstructed, the lessee may terminate this lease, and the lessor shall refund to the lessee the amount paid in advanee pro rata for the unexpired term above mentioned. The boards placed upon the premises under this lease shall remain the property of the lessee.
“Received Sept. 34, 1903, on account of above, $33.50 in full from Sept. 18, 1903, to March 18, 1904.
“'Name, A. N. Marion. Address, Chamber of Commerce.
“ Terms and conditions fully accepted by us.
’“ Walker & Co.
“S. King.”

Under this agreement, the complainants, who were rivals of the defendant Melvin in the sign advertising and bill-posting business, maintained a bill board 150 feet long and 13 feet wide, and, above this, a sign board 50 feet long and 13 feet wide. In April, 1904, defendant Sylvester T. Marion notified complainants that he was the owner of the premises and demanded that they vacate them, which they promised to do in a week or 10 days. ' The boards not having been removed, complainants were notified a second time and agreed to remove them in four or five days, and thereupon Sylvester entered into the following agreement with defendant Melvin, viz.:

“Detroit, Mich., May 1, 1904.
“For and in consideration of $100, to be paid S..T. Marion in advance, I hereby lease to A. L. Melvin, manager of the Melvin Sign Co., the privilege of erecting and maintaining signs and bill boards on my premises, being lot on northeast corner of Fort and Scotten streets, said lot being 60 feet on Fort and 300 feet on Scotten, for the term of one year from May 1st, 1904, and they are to maintain the same without let or hindrance.
[Signed] “S. T. Marion,
“3407 Wayne Ave., Chicago, 111.”
Indorsed on the back:
“Received $35 from the Melvin Sign Company for rent.
“ S. T. Marion.”

Complainants made no payments on the lease after the first. They offered to make the payment due March 18th to Adolph Marion, but he refused to receive it. “He said it was in the air.” On Sunday, May 8th, defendants entered upon the premises and cut, tore down, and practically destroyed complainants’ bill board and partially erected their own. On May 9th complainants filed the bill of complaint herein, alleging:

“That they occupied the premises under a written agreement, still in force, with Adolph N. Marion, who owns an interest therein and who is the authorized agent ■for the other owners; that on the preceding day, Sunday, May 8th, defendants entered on the premises and cut down complainants’ bill board, and that complainants believe defendants Melvin intend to enter into possession of the premises and erect thereon a bill board of their own [they being also in the same business as complainants], and that complainants would suffer great loss and injury thereby, the amount of which would be difficult to determine ; that there are no buildings on the premises, and that complainants fear defendants would again tear down and destroy complainants’ bill boards, should they repair or erect them; and that a number of trespasses and causes of litigation would thus arise; and also praying for damages against defendants for injury to their bill boards.”

An injunction was issued restraining defendants from interfering with complainants or erecting a bill board upon the premises. On June 29th the defendant Sylvester T.. Marion conveyed the premises to Barbara A. Schoneman, who, in July, caused the complainants’ boards to be cut down and removed; whereupon complainants abandoned the premises. The court, upon the hearing, found that complainants had sustained damages to the amount of $150, and decree was entered for that amount, from which defendants appeal.

The complainants’ bill of complaint was founded upon the'allegation “that they occupied the premises under a written agreement, still in force, with Adolph N. Marion, who owns an interest therein and who is the authorized agent for the other owners.” The proofs failed to show that Adolph was the authorized agent of the other owners. On the contrary, the proofs show that Adolph’s authorized agency expired in 1902, and that thereafter he had no authority over the premises in question save such as flowed from his ownership of an undivided one-quarter thereof. As such tenant in common, his agreement was not. binding upon his co-tenants, whose rights in the premises remained unaffected thereby. 17 Am. & Eng. Enc. Law (2d Ed.), pp. 673, 674; Moreland v. Strong, 115 Mich. 211. Adolph recognized that he had no right to deal with the premises when he refused to receive the second installment of rent, and complainants recognized the same fact by tendering the rent to Sylvester, and, when he refused to receive it, agreeing to move out.

The case made by the bill was not supported by the proofs. Complainants were not entitled to the exclusive possession of the premises. The defendant Sylvester had never recognized any authority in Adolph to grant any such possession, but, on the contrary, had instituted proceedings against him in chancery, resulting in a decree on September 3, 1903, that the agreement for such authority had expired on March 31, 1902, and ordering a reconveyance by Adolph to Sylvester of his undivided, one-fourth interest, which was so conveyed on September 4, 1903. The defendants were, at least, equally entitled to possession with complainants, and, for any injuries to complainants’ property, they have an adequate remedy at law.

The bill is dismissed, with costs to defendants.

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


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    MYERS v. MYERS.
    1. Appeal — Decree—Recitals—Presumptions .
    Recitals in a decree, though incorrect, will be treated as correct on appeal, where they were not brought to the attention of the trial court and corrected.
    2. Divorce — Support of Child — Modification of Decree.
    On petition of a divorced husband for a modification of the decree in so far as it required him to pay for the support of a child, it appeared that the child was over 14 years of age, and that prior to the decree the husband and wife entered into a contract binding him to pay a specified sum per week for the support of the child until it attained the age of 14 years, and stipulating that he should have the right to visit the child from time to time. The decree required the husband to pay a like sum for the support of the child until further order of the court. The child, shortly before reaching 14, left the State, to live with its grandmother, residing in another State. Held, that the changed circumstances arising from the removal of the child from the State justified the granting of the petition.
    Appeal from Saginaw; Beach, J.
    Submitted January 4, 1906.
    (Docket No. 5.)
    Decided January 24, 1906.
    Bill by Flora E. Myers against Ellsworth O. Myers for a divorce. On petition of defendant to be relieved from contributing to the support of a minor child. From an order granting the prayer of petitioner, complainant appeals.
    Affirmed.

      E. E. Emerick, for complainant.

      W. E. Grane, for defendant.
   Blair, J.

Prior to May 4, 1903, the complainant, Flora E. Myers, filed her bill of complaint in the circuit court for the county of Saginaw in chancery against said defendant, praying for a decree of divorce. Answer and replication were filed. The case was heard upon proofs taken in open court, and on May 4, 1903, the court rendered a final decree in the cause. By this decree a divorce was granted complainant, and the custody of the minor child of the parties, a girl, Estella,. was awarded to the complainant “until she shall attain the age of 14 years, or until the further order of-the court,” and the decree further provided that the defendant pay to the register of the court, to aid in the support and education of the child, the sum of $2.50 per week from the date'of the decree, payable weekly, until the further order of the court. The decree was duly enrolled on December ?, 1903. The defendant made the required payments until the child became 14 years of age, which occurred on November 28, 1904, at and after which time he refused to make any further payment or contribution whatsoever to the aid or support of the child. Subsequently proceedings for contempt were by the complainant instituted, which finally culminated in the issuance of an attachment, and on July 24, 1905, under the orders of the court and in the attachment proceedings, he paid the balance then due under the decree.

On July 20, 1905, and pending the attachment proceedings, the defendant made and filed a petition in the cause, praying therein that the decree be reformed and modified so as to relieve him from any further payment whatsoever for the support of the child. To this petition complainant filed her answer. On July 24, 1905, the matter of said petition came on to be heard in open court, and after argument of counsel the court filed an opinion and made a final order in the case, granting the prayer of the petition. From that final order so modifying the decree, complainant has appealed.

The decree complained of contains the following recital, viz.: “And both parties being ready for the hearing and consenting to the matter being heard by the court upon the petition as filed and the objections as made by complainant,” etc. Counsel for complainant now urge that the court was in error in making this recital, and call attention to a claimed objection on their part to hearing the case as it then stood, without replication or proofs. If the recital in the decree was incorrect, it should have been brought to the attention of the court and corrected. We must treat the recital as correctly stating the fact.

It is contended that no new facts, arising since the decree, were shown which would authorize the court to modify the decree; citing Smith v. Smith, 139 Mich. 133. Prior to the making of the decree for di.vorce the parties entered into a contract, whereby, amongst other things, the defendant, Ellsworth O. Myers, in the event of a decree of divorce being granted, agreed “topay to the register of the court for the support of the minor child the sum of $2.50 per week until she shall attain the age of 14 years, but it is understood and agreed that the father may visit the child, and that she may visit him from time to time and at such reasonable times as circumstances shall warrant.” In June, 1904, the child left the State of Michigan and went to South Carolina, whence she went to Wisconsin to live with her grandmother, in September, 1904, where she was still staying at the time of modifying the decree in July, 1905. If any change of circumstances or new facts arising since the decree were necessary to be shown, under the contract and decree in this case, they may be found in the prolonged absence of the daughter from the State of Michigan, and the inability to visit her, guaranteed to defendant by the contract, with no assurance that the daughter will ever return to this State.

The decree is affirmed, but without costs.

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