author: Moore, J. Ostrander, J.

text:
    HULSE v. MICHIGAN SUGAR CO.
    1. Contracts — Sales — Breach—Construction of Instrument— Beet Sugar Contract.
    Plaintiff brought an action for breach of contract upon a special agreement with the defendant sugar company providing that plaintiff should grow and deliver during the' season of 1911 five acres of sugar beets, the contract also containing the provision that “said beets shall be harvested and loaded by the grower for the company on cars or delivered at factory sheds at such time and in such .quantities as may be directed by the company, allowing each grower his pro rata amount.” Plaintiff’s evidence tended to establish his readiness to perform the contract during the campaign and that defendant refused or neglected to carry out its part of the agreement by declining to receive certain beets, which plaintiff offered to deliver in unfit condition for making sugar. Held, that the contract was not ambiguous, that it reserved to the defendant the right to receive from various growers such portion of the beets from time to time as was equitable; also, that the contract by its express provisions determined the time for delivery and that no question for the jury as to reasonable time arose under its terms.
    2. Same — Time—Reasonable Time — Interpretation.
    Considering the contract in the light of surrounding circumstances and of the subject-matter to which it related, as is the ordinary method and rule of legal construction, defendant sugar company was required to receive plaintiff’s crop during its campaign, the duty to protect and cover the beets resting upon plaintiff, and defendant was liable for failure to accept sound beets grown as provided during the season although the company was authorized to regulate the amount to be delivered proportionately among the growers as the campaign progressed. There was no duty to pay for decayed or spoiled beets on the part of defendant.
    Moore, J., dissenting.

      Error to Clinton; Searle, J.
    Submitted November 16, 1914.
    (Docket No. 82.)
    Decided June 7, 1915.
    Assumpsit by Roy Hulse against the Michigan Sugar Company for breach of a special contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      William A. Bahlke and Warren, Cady, Ladd & Hill, for appellant.

      Lyon & Moinet, for appellee.
   Moore, J.

(dissenting). From a judgment in favor of the plaintiff' for the sum of $300, the case is brought here by writ of error. The plaintiff sued to recover damages for defendant’s refusal to receive sugar beets grown during the season of 1911 for its sugar campaign of 1911-12. These beets were grown in pursuance of two written contracts. The plaintiff’s declaration was on the common counts in assumpsit and a special count upon each of the contracts. It is alleged the defendant refused to receive the beets after 'they were grown and ready for delivery “in violation of the terms and conditions of said agreement and in violation of the duty of said defendant to receive said beets in season and within a reasonable time after the same were harvested and ready for delivery,” The defendant pleaded the general issue and gave notice that it would set off against the plaintiff’s claim certain items. It also gave notice of recoupment for breach of the contracts, upon which suit was brought.

The parts of the contract material to this issue read:

“The undersigned hereby agrees to plant, cultivate, harvest and deliver during the year commencing with the spring of 1911, to the Michigan Sugar Company (Alma Plant) at its factory in Alma, Michigan, 5 acres of sugar beets on the following described lands. ❖ * *
“The beets are to be given due care, and as far as practicable the grower will follow instructions in regard to preparing the soil, seeding, caring for and harvesting the crop.
“For beets delivered at the factory under this contract the company will pay at the rate of four dollars and fifty cents per ton for beets testing 12 per cent, sugar, and 33 1/3 cents per ton additional for each per cent, above 12 per cent., subject to tare for dirt and improper topping.
“The grower is guaranteed to receive not less than five dollars per ton net for beets delivered at the railway station or factory sheds, and if according to the test and the terms of the contract, the beets are worth more, he shall be paid such excess. * * *
“Said beets shall be harvested and loaded by the grower for the company on cars or delivered at factory sheds, at such time and in such quantities as may be directed by the company, allowing each grower his pro rata amount. The company will not be liable to receive or pay for beets which are rotten or otherwise unfit or undesirable for making sugar.
“An additional price of 50 cents per ton will be paid by the company for beets delivered after December 1st.”

Upon the back of said contract were the following words:

“Michigan Sugar Company, Alma Plant, Sugar Beet Contract with Roy Hulse; * * * Loading Station, Bannister.
“Remarks and Instructions: Always select the best land for sugar beets. Plow your land in the fall, if possible; get down deep with your plow and put your land in the best condition possible. * * * Do not harvest until beets are ripe. Beets should be topped square below lowest leaf growth.”

Upon the trial of the case there was no dispute as to the amount of beets actually delivered under the contracts, the price, or the total advances made by the defendant. These debits and credits were tabulated. This statement shows the plaintiff owed the defendant on account of said transaction a balance of $174.93. The plaintiff delivered to defendant ten wagon loads of beets which, after being credited to him, left his account standing as an indebtedness of $174.93 as above stated. This amount the defendant waived the right to recover without regard to the issue as presented by the court to the jury.

It is the claim of plaintiff that he grew an exceptionally good crop of beets; that he was notified to commence lifting them early in October; that he did so, and, after the crop was nearly all gathered, began drawing them to Bannister December 6th, and after drawing two loads he was directed by the agent at Bannister not to bring any more until he was notified; that he persisted in his efforts to draw his beets; and that between December 6th and December 26th he was permitted to draw but two loads, although after the 6th of December he was prepared'to deliver his beets at Bannister. It is his claim that, when he delivered the load on December 26th, he was again notified by the agent to bring no more until notified; that his beets were then in good condition; and that he was then prepared to deliver them and desired to do so. His further claim is that, though he received no notice, he drew another load January 11th, and that his beets were then all right, and that he was then prepared to deliver the rest of his beets; that -at this time he was again notified not to bring any more until further notice; and that no further notice was given.

The record discloses plaintiff had a supplemental contract with defendant to furnish laborers to care for the crop during its period of growth and during the harvesting. It is claimed the beets as they were harvested were piled and covered with leaves, and that Mr. Sebring, representative of the company, was consulted about the manner in which this was done, and that it had his approval. It is the claim that because of the delay and the refusal of the company to receive the beets they spoiled.

Plaintiff prosecuted his suit upon the theory that he had performed and tendered performance of his part of the contracts, and that the defendant was liable because it refused to receive the beets in accordance with the provisions of the contract, in a reasonable time after the crop was ready for delivery; there being no time of delivery specified in the contracts.

At the conclusion of the case made by the plaintiff, a request for a directed verdict in favor of defendant was made and overruled. At the conclusion of all the evidence, defendant presented many requests to charge, some of which asked for a directed verdict. The case was submitted to a jury under a charge the material parts of which, so far as relate to the assignments of error, are as follows:

“Now, gentlemen, it was the duty of. the plaintiff, under these contracts -which you have heard read to you here, to do and perform certain things, and I instruct you, as requested by the defendant’s counsel, that under the contract relations existing between the plaintiff and defendant it was the duty of the plaintiff to plant, cultivate, harvest, and deliver * * * on cars, or at such places as the defendant company should designate at the Bannister weigh-station of the Alma plant of the defendant company, with due care, ten acres of sugar beets during the season of 1911 and the manufacturing campaign of 1911-12 of the Alma plant of the defendant company. * * *
“I also charge you in that connection, as requested by defendant’s counsel in his twenty-second request, that under the contracts sued upon, the instructions of the company in regard to preparing the soil, seeding, caring for and harvesting the crop, as well as the instructions written upon the back of the contract, were advisory and did not, except as to the time when such beets should be harvested and the time and quantities that the same should be delivered to the company, * * * release the plaintiff from the contract duty and obligation to plant, cultivate, harvest and deliver during the season of 1911 and the sugar campaign of 1911-12, with due care, the ten acres, of beets in question to be grown under said contract. * * *
“Now it was the duty of the defendant company, under their contract, to give notice to the plaintiff here when to harvest his beets. It was their duty to give notice to him when to deliver his beets. It was their duty to receive the beets in reasonable times and under reasonable regulations and during the season for the delivery of beets that year. What I mean by that is this, during the ordinary season that beets could be marketed and sent to the factory and made into sugar. You have heard the remark about there being a campaign a certain period of time when the factory was running, and I suppose it is a matter of common knowledge, if it is not shown by the evidence here, that beets are delivered up to a certain time in the winter before it would ordinarily thaw up in the spring, and they are made into sugar that year. It is a matter of common knowledge, and you can take notice of the fact, that it is a perishable product and could not be kept over, and, when I say that it is the duty of the company to receive these beets in due and reasonable season, I mean within the season where they could be handled before they would ordinarily spoil on account of the spring weather coming on.
“I have told you in a general way what are the duties of the respective parties under this contract. If I have not already said it, I will say it again, that there is no dispute but what the defendant did give notice at some time to Hulse, the old gentleman, who was agent for his son, the plaintiff here, to go to lifting these beets, that it was time to harvest them. There is a dispute between the parties as to what time that notice was given. That will be a matter for you to determine. After he received that notice, it was his duty to proceed to lift the beets and keep ahead of the workmen that were sent there to finish the harvesting. * * *
“Now the plaintiff claims that there came a time when he was stopped from drawing be.ets, said he was notified not to draw any more until the company should send him word or notify him to commence drawing again. I instruct you that if you' find that the plaintiff has shown that by a preponderance of the evidence, under the instructions I have given you, • then he was not in duty bound to commence drawing again until he did receive notice. But perhaps I ought to qualify that to this extent, that if he understood generally by the farmers, seeing other farmers drawing beets, that the place was open, that the station was open, and that they were receiving beets again, then it would be his duty to go to drawing or to make inquiry and see if he could go to drawing, even though he had not had notice from them; in other words, no matter how the notice got to him, whether it came direct from the company or whether it came indirectly from the farmers that the station was open, it would be his duty then to go to drawing again if he had the opportunity to do so from the company.
“The defendant company claims that they did not tell him that they would send him notice again; that it was his duty to find out when they were going to commence again. * * * If they are1 right about that, it would be his duty to find out when they were open and go to drawing again.
“I charge you as a matter of law that, if both parties •kept and performed the contract and performed the duties enjoined upon them under the instructions I have given you here, then the loss because of the beets spoiling and. rotting would fall upon the plaintiff and he cannot recover. In other words, the plaintiff took the chances of the ordinary freezing and thawing of these beets and their rotting, providing the defendant did and performed all of its duties. And if you find that the defendant kept and performed its contract and duties and plaintiff was at fault in not performing his part, then the plaintiff cannot recover. But, if the plaintiff kept and performed his contract and his duties thereunder and was prevented from delivering his beets by the refusal of the defendant to take them in the manner in which I have instructed you that they should take them, then the plaintiff can recover to the extent that you find under the evidence the amount that he would have received for marketable beets under the contract less the expense of marketing the same. When I use the expression marketable beets under the contract, I mean beets which would have been taken under the conditions of this contract. You will remember that the contract provides that the company are not to take beets which are rotten or otherwise unfit or undesirable for making sugar. In computing what the plaintiff would be entitled to recover here, you are limited to such, providing you find under the evidence here and the instructions I have given you, that the company did refuse to take the beets, and that refusal was unreasonable under the instructions I have given you and shall give you, then in determining how much the plaintiff should recover on that account, you must charge the company only with so much of those beets that were not delivered as would have come under the contract had they been delivered. * * *
“The plaintiff can only recover for such beets as you find under the evidence he would have delivered in marketable condition under the contract. * * *
“I mean by that, that the company would not be obliged to take rotten beets, or beets not fit to make sugar of, and this rule must be applied in determining the damages where they refused to take, if you find they did.
“And in determining that question you consider all the evidence in the case as to the condition of the weather and of the beets, and determine to the best of your judgment what amount he would have received for marketable beets, providing he had not' been prevented from delivering them. And you must remember to deduct the cost of hauling of the beets, because, he not having hauled them, he cannot recover for that work. * * *
“It is not for the court to say to you how long the defendant company might close its station at Bannister for .the purpose of receiving beets. I will say to you, however, that they would have a right to close it for a reasonable time. They would not be obliged to take ^ beets every day from the time they opened the station. But it is a question for you to determine whether or not' they acted reasonably with this plaintiff or not. I have already charged you it was their duty to take these beets within a reasonable time during the season. * * *
“At all times after the 1st day of December it was his duty to deliver the beets at such times as he was notified to do so by the company within a reasonable time thereafter — therefrom and thereafter, as fast as he could. If it was late in the season so that an ordinarily reasonable man would deem it necessary to hire other teams to deliver, then it would be his duty to hire other teams. . He should do just what an ordinarily reasonable man would do under the circumstances after he was notified. * * *
“It is for you to say whether or not these parties acted within the rules I have laid down here and acted reasonably and diligently. If the company did not close its factory for an unreasonable time and did give this plaintiff a reasonable opportunity to get his beets delivered, then he cannot recover. If they did not do that, and he performed his part and acted reasonably, and you find that he could have gotten the beets in before the end of the season, then to the extent that he would have delivered marketable beets there he is entitled to recover, under the instructions I have given you.”

There are many assignments of error discussed, but there is one question that is controlling. This is recognized by counsel for appellant, who says in the brief:

“The seventh is the all-important paragraph of the contract and which must be construed and applied to the subject-matter of this suit.”

I cannot state the contention of the appellant more concisely than to quote from the brief, as follows:

“The contract, however, was not silent as to the harvesting and delivery of the crop. In dealing with a large number of growers, it was seen that disputes and jealousies might arise between growers or between them and the company touching these matters. There was no one who could regulate or control this but the company. It was vital in the conduct of the business that the company should control the time of the harvest and delivery of the beets to the company. Who else could assure a timely harvest and an orderly and efficient handling of the crop? The grower, by the seventh paragraph of the contract agreed that ‘said beets shall be harvested and loaded by the grower for the company on cars or delivered at factory sheds at such times and in such quantities as may be directed by the company.’ Then to assure the grower that such direction on the part of the company would not be abused, it provided, as a restriction on such power, that such deliveries should be directed by the company by ‘allowing each grower his pro rata amount.’ The same paragraph provided that ‘the company should not be liable to receive or pay for beets, which are rotten or otherwise unfit or undesirable for making sugar.’
“It should be noted that the contract placed the entire work of producing and delivering the crop upon the plaintiff and he was to give the beets ‘due care.’ Until the beets, were delivered to the company, the whole work of providing and caring for the crop was upon the grower. * * *
“That the defendant by the contract is given the right to direct all deliveries of beets by the plaintiff, subject to the limitation that the plaintiff be permitted to deliver during the 1911-12 campaign, in point of time, being the season as described, such portion of his crop of beets as his tonnage of beets bore to the total tonnage of beets, of the Alma plant for its 1911-12 campaign; that until his beets were so delivered to the company, the whole burden of their care and protection as against damage by the elements was the burden and duty of the plaintiff; and that the company possessed the right to reject all beets which were rotten or unsuitable for making sugar. * * *
“Who can reasonably and logically contend that these parties did not agree and understand at whose direction and at what times these beets were to be delivered. Certainly it was to be upon the direction of the defendant and during the sugar campaign of the defendant of 1911-12. To drop this language from the contract and attempt to make this defendant accept beets from this plaintiff and all growers ‘within a reasonable time,’ under the circumstances and conditions surrounding their use by the company, simply means disorder and disaster to the business. It would result in a feast or á famine of beets as might suit the caprice or notion of 2,500 growers.
“These parties did not contract with any such illogical and unreasonable result. The contract contemplated co-operation and fair dealing with due regard to the interests and welfare of each other. The parties recognized the exigencies of the business and the nature of the industry and placed the question of directing the delivery of beets in the hands of the only party capable of determining when it should be done and in what amounts, during the campaign or ‘season.’ To supersede this understanding and agreement by the rule insisted upon by plaintiffs counsel and the rule which was given by the court to the jury puts this business of the defendant beyond its power of regulation and control.”

In the conclusion of the supplemental brief counsel again state the position of defendant:

“This whole suit, in its last analysis, gets down to the simple question of whether this court will preserve to this defendant the right to direct the time of harvest and the time and amount of delivery of beets to the company by the grower. This was the contract right given to this defendant under this contract. If the pro rata clause of this contract is eliminated, we assert that we have the unlimited right and power to direct the time and quantities in which this plaintiff shall deliver his beets to us under this contract during the whole period covered by the campaign of 1911-12. That that time expired reasonably and seasonably in conformity with tíre contract, on the 17th day of February, 1912, and that at the end of that time, if the plaintiff had any beets which complied with the contract, we were required to pay for them whether we took them or did not take them; and that if he had beets which were rotten and unfit to make sugar we were not under contract obligations to take them. The great prejudice to the appellant upon this trial was and is that this right was not preserved to the defendant by the court. We were made liable for refusal to receive beets from time to time as tendered, when there was no proof that at such time we were under contract obligation to receive them.”

The logic of this contention is, of course, that plaintiff, though authorized to harvest the beets when ripe, must hold himself in readiness to deliver them at any time after that when required by the defendant, but that defendant was under no obligation to take the beets until just prior to the end of the campaign February 17, 1912. Counsel say: ,

“It was vital in the conduct of the business that the company should control the time of the harvest and delivery of the beets to the company.”

This argument ignores the fact that the business about which the contract was made was as much the business of the grower as it was of the receiver of the crop, and that it was also vital to him that he should be given an opportunity to deliver his crop after it was grown. The business of growing sugar beets for manufacture into sugar has grown to be of such importance in this State that the courts may well take judicial notice of some of the conditions surrounding the growing and the marketing of the crop.

The contract contemplates, and the interest of the grower would indicate^ that the harvesting of the crop would not be commenced until it was ripe, and in this climate ordinarily this would be the latter part of September or early in October. The season for lifting the crop from the ground after that would be comparatively short if the beets were to be gathered before there was great danger of freezing them fast in the soil. We may also take notice that the sugar beet factories, though calling for a large investment of money, are idle the greater share of the year; the period of manufacture called the campaign commencing in the fall after a sufficient number of beets have been delivered to keep the factory in operation, the season ending when the supply of beets is manufactured, usually in January or prior to the middle of February. It may also be said that the labor conditions are such that, if the average farmer is to deliver his crop during the campaign, he must be given an opportunity to commence doing so soon after the harvest commences, and be allowed to continue to do so in a reasonable way until fhe crop is marketed. We may also well take notice that the crop is not like a crop of wheat, beans, or many other products, one that may be carried a long time, irrespective of weather conditions, without harm. It is a perishable product and must be marketed within a reasonable time after it is harvested, or the labor and the investment of the grower will be a total loss.

It has already appeared that the contract is a short one. It does not go into details. We think it should be construed in the light of its subject-matter, and the circumstances and the situation of the parties to it. It was prepared by the company. If its terms are ambiguous, it must be most strongly construed against the company. There is no definite date fixed in the contract itself, when either party to it, by reading it, could say when the delivery should be commenced or ended.

In Reinforced Concrete Pipe Co. v. Boyes, 180 Mich. 609 (147 N. W. 577), Justice Kuhn, speaking for the court, said:

“It is an elementary proposition of law that, where no time is specified in the contract for the completion of work, it must be done within a reasonable time. What is reasonable time usually depends upon the nature of the contract and the particular circumstances. Where facts are in dispute, it presents a question of fact for the jury. Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162 (10 N. W. 183); Hill v. Mathews, 78 Mich. 377 (44 N. W. 286); Greenwood v. Davis, 106 Mich. 230 (64 N. W. 26).”

We conclude the learned trial judge properly charged the jury as to the law of the case.'

The other assignments of error have been considered. We think it unnecessary to discuss them.

Judgment should be affirmed.

Ostrander, J.

There is no ambiguity in the contract. Its enforcement according to its terms is a simple enough matter. It is when the court attempts to make a new contract, attempts to modify and amend it, or to permit a jury to determine how defendant should have conducted its business, that difficulty arises. It is difficult, in the face of the contract, to permit plaintiff, or any other beet grower, to recover pay for spoiled beets. It is obvious that the defendant could not have received all of the beets grown during the first week, or the first month, of the campaign. And only one of the beet growers could deliver the last load of beets. Defendant reserved the right to take some beets from each grower, which was equitable, and the grower agreed to the reservation. An increased price was to be paid for beets delivered after December 1st. Whether delivered early or late, the defendant was bound to receive only sound beets. The duty to preserve the beets for delivery was the duty of the grower: If he protected them, if he was in a position to deliver them and the campaign closed before they were delivered, he would be entitled to pay for them. If they were then spoiled, he would not be so entitled. This, it seems to me, is what the contract provides for.

The theory that there is involved any question of a reasonable time for delivery and acceptance of the beets is wholly unsupported by facts. The contract fixes a time in which all beets are to be delivered. In the opinion of Mr. Justice Moore it is said, “There is no definite date fixed in the contract itself, when either party to it, by reading it, could say when the delivery should be commenced or ended,” and this is followed by reference to the elementary principle that, when no time is specified in the contract for the completion of work, it must be done within a reasonable -time. But Mr. Justice Moore also says the contract “should be construed in the light of its subject-matter, and the circumstances and the situation of the parties to it.” Applying this rule, no difficulty is experienced in ascertaining the limits of the time for delivering beets, which are the limits of time, not alone for plaintiff, but for him and many hundreds of other beet growers, and, referring to the contract, we find it there provided that they shall be delivered at such time and in such quantities as may be directed by the company, allowing each grower his pro rata amount.

The learned counsel for plaintiff says, in the brief, that:

“The pro rata clause in the contract cuts no figure in this case for two reasons: (a) That provision is not specific enough so as to throw any light upon any question involved in the case; and (b) the time for the delivery and receipt of the beets not having been fixed by the terms of the contract, the plaintiff was bound to deliver and the defendant was bound to accept them in a reasonable time.”

It seems plain that, as applied to a single grower of beets, any time within the limits fixed by the contract and by circumstances is a reasonable time. Because the labor and expense of protecting beets delivered early in the period may be saved to the grower, while those delivered later, or kept for delivery, may require protection, the pro rata clause may be important in a particular case. And this, not because defendant can be held to any nice computation of the amount of beets to be called for or received from each grower, but because it is possible that out of malice some growers might be greatly favored by an early delivery, from taking part in which others might be wholly excluded. This theory of the meaning of the term in the contract does not, however, permit any grower to recover for beets lost because not protected, but may permit him to recover the additional expense, if any, occasioned by being obliged to care for beets which otherwise would require no protection. I cannot escape the conviction that under the contract the defendant was bound to pay for the beets which plaintiff raised and harvested and held himself ready to deliver in sound condition during the campaign; the duty to protect them being a duty of the grower.

It follows that the judgment must be reversed, and a new trial granted.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WEIL v. DETROIT UNITED RAILWAY.
    Automobiles — Negligence •— Contributory Negligence — Street Railways — Duty to Look.
    Where evidence, in an action for damages to an automobile, tended to show that plaintiff’s servant looked for a street car as he approached defendant’s tracks, and the view was obstructed so that he could see but a short distance up the track, but that he might have looked after passing the obstruction and the view was then unobstructed for several blocks, so that he must have seen defendant’s car approaching, the trial court should have directed a verdict in defendant’s favor on the ground of contributory negligence of the driver.

      Error to .Wayne; Codd, J.
    Submitted April 14, 1915.
    (Docket No. 78.)
    Decided June 7, 1915.
    Case by Henry M. Weil against the Detroit United Railway for damages done to an automobile. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Thomas W. Payne, for appellant.

      Corliss, Leete & Moody (Claude H. Stevens, of counsel), for appellee.
   Moore, J.

This suit was brought to recover damages done to an automobile owned by plaintiff and driven by his employee. In addition to the oral testimony photographs of the situation were introduced in evidence. The trial judge was of the opinion that the driver of the automobile was guilty of contributory negligence, and for that reason directed a verdict in favor of the defendant. The case is brought here by writ of error, and the question is whether there was a case to go to the jury.

The accident happened in the daytime. It was caused by one of defendant’s cars striking one of the rear wheels of the automobile as it was moving along Le May avenue, which at this place crosses Mack avenue at right angles. Defendant at that time had two tracks on Mack avenue. On the southwest corner of the intersection of these streets was a frame building which came nearly to the sidewalk on the south side of Mack avenue; this walk was six feet wide, and from its north edge to the south rail of the first track it was five or six feet. When approaching Mack avenue the driver of the automobile came to a full stop. Because of the building near the sidewalk his vision was obstructed and according to measurements made by him the next day he could see up the track but 63 feet. He looked and saw no car; he listened and heard no signal. He started his automobile on low speed, and before he got across the track the automobile was struck as before stated. '

The cross-examination of the driver discloses what is clearly shown by the photographs, and by the testimony of the other witnesses, that if he had looked after passing the obstruction caused by the building, and while yet in a place of safety, he could have seen the track for a number of blocks, and thus avoided the accident.

The case made by the record is not one where the driver has looked and seen the car, and, thinking he had time to cross in safety, attempted to do so and was caught by the negligence of the motorman. We. think the case as to contributory negligence is within Cardinal v. Railway Co., 165 Mich. 155 (130 N. W. 627); Measel v. Railway, 166 Mich. 688 (132 N. W. 453); Manos v. Railway, 168 Mich. 155 (130 N. W. 664); Colborne v. Railway, 177 Mich. 139 (143 N. W. 32); Champaign v. Railway, 181 Mich. 672 (148 N. W. 201), and the many cases therein cited.

Judgment is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: Stone, J.

text:
    C. J. HUEBEL CO. v. MacKINNON.
    1. Stipulations — Oral Arrangement — Dismissal — Equitable Relief.
    Under the provisions of Circuit Court Rule 39, relating to agreements between attorneys and requiring the same to be in writing, the court of equity may, in a proper case, relieve the party who has in good faith relied upon and acted on an alleged agreement of opposing counsel for a settlement and discontinuance of the law suit.
    2. Replevin — Discontinuance — Stipulations — Compromise and Settlement.
    The ordinary issues of a replevin action do not include or permit the trial of an alleged settlement after the institution of an action.
    3. Accounting — Equity — Jurisdiction — Adequate Remedy at Law.
    Where complainant contracted with the defendants for transportation by water of a quantity of cedar posts and other lumber, and as an advancement on the purchase price complainant paid a portion of' the agreed freight for one cargo-, also making additional advancements upon account for expenses of loading, etc., and it appeared that the defendants shipped the cargo of posts which they delivered at complainant’s dock on board boat and made a claim for an excessive charge of freight, threatening to take away the boat, which was in an unseaworthy condition at the time, and complainant instituted an action of replevin to prevent defendants from carrying out their threat, and that on the morning after the execution of the writ the barge sunk in the river at its moorings, that, as claimed by complainant but contradicted by defendant, the parties made a settlement at this stage of the proceedings by complainants’ paying to defendants the sum of one hundred dollars in excess of the amount of freight which it was under obligation to pay, and actually made such settlement; that defendants refused to execute the discontinuance of its suit in replevin and that defendants claimed a further balance due and proposed to proceed to the trial of the issue in that cause; held, that a bill for an accounting and to enjoin the action at law cannot be maintained by the complainant; that under the provisions of 3 Comp. Laws, §§ 10402, 10403 (5 How. Stat. [2d Ed.] §§13116, 13117), an issue might be framed and the question of settlement determined in the action of replevin. See, also, 3 Comp. Laws, § 10090 (5 How. Stat. [2d Ed.] §12742).
    4. Same — Suggestion-—Issues—Practice.
    A suggestion is a statement formally entered on the record of some fact or circumstance material to the further proceedings in the case which cannot be regularly pleaded.
    Appeal from Menominee; Flannigan, J.
    Submitted April 28, 1915.
    (Docket No. 69.)
    Decided June 8, 1915.
    Bill by C. J. Huebel Company against Donald L. MacKinnon and another for an accounting, an injunction and further equitable relief. From an order overruling the demurrer of defendants to said bill of complaint, defendants appeal.
    Reversed.

      Sawyer & Sawyer, for complainant.

      Michael J. Doyle, for defendants.
   Stone, J.

This case is before us upon the appeal of defendants from an order overruling their general demurrer to the bill of complaint. The ground of the demurrer was that complainant had not stated such a case in its bill as entitled it to any relief in a court of equity, and that the matters stated therein were such as might be tried and determined in a suit at law; with "respect to which the complainant was not entitled to any relief in a court of equity.

The bill of complaint sets forth with great particularity the facts: That the complainant had had dealings with the defendants by which the latter agreed to transport by water a large amount of cedar posts and other forest products from various points, and deliver them to the complainant at Menominee, at an agreed freight rate. That defendants represented that they had boats and barges of sufficient capacity to carry 60,000 cedar posts at a single cargo, for which they would charge $1,000, which sum complainant agreed to pay. That complainant advanced to defendants the sum of $400 to apply on such freight charges, and that it also, in the process of loading said cargo, paid to apply on said freight agreement for the use of defendants the further sum of $223.25, as a fee for stowing charges of the men employed on said boat by said defendants. That on the 18th day of July, 1913, said defendants came to Menominee with a cargo of posts, and tied their barge to complainant's pier in the city of Menominee. That the barge was an old craft, long out of repair, and defendants informed complainant that she had come near sinking several times with her cargo, and that it was with great difficulty that they had been able to keep her pumped out and afloat. That thereupon complainant provided men to promptly unload said posts, whereupon the defendants made claim that there were $600 their due for freight on said cargo, and refused to permit the unloading of any posts until such further sum of $600 was paid in cash, and threatened that if the same was not paid they would untie the barge and tow her with her cargo into the bay. At this time cohiplainant had not received any report of inspection at the time of loading said cargo, and was ignorant of the quantity of posts which was on board the barge. Upon being informed by defendants that the cargo contained about 42,000 posts, complainant immediately offered to pay defendants such sum as should be due over and above the amount already paid, computing the freight on the number of posts loaded on the basis of $1,000 for 60,000 posts, which offer said defendants then and there refused, again saying that they would accept nothing less than the further sum of $600 in cash. The complainant thereupon demanded of said defendants the right to unload and possess said posts, expressing a willingness to pay them the balance due them for said freight. That the same was refused, and, as the defendants were financially irresponsible, and believing that they would carry out their threats, the complainant sued out of the circuit court for the county of Menominee, on the 18th day of July, 1913, a writ of replevin for the said cargo of posts, wherein this complainant was plaintiff and said defendants were defendants, and placed said writ in the hands of the sheriff of said county to be executed. That the sheriff of the county immediately, and in the afternoon of said day, seized and replevied the said cargo of posts then being aboard the said barge, but too late to remove or inventory the same that day, and left a custodian in charge thereof, said defendants also continuing in possession and charge of the boat, and leaving a watchman thereon. That on the morning of the following day complainant was informed, as was the fact, that said barge, with its cargo, had sunk during the night in the river where it was tied at said pier. That in the sunken condition of the barge it was impossible for the sheriff to inventory or remove all of the cargo, and that—

“negotiations were immediately renewed between the parties hereto for a settlement of the controversy. Complainant then had in mind that it had paid to and for the defendants to apply on such freight bill only the sum of $600, whereas it had actually paid the sum of $623.25, and this complainant computed that the freight bill for said cargo at the number of pieces then claimed by the defendants to be therein, and which number this complainant now alleges to be correct according to the inspection report thereof, would aggregate the sum of $700, and this complainant then made and delivered to the said defendants its check for the further sum of $100, and again demanded the surrender of possession of said posts, which surrender was still refused by said defendants, and further negotiations were then and there had, resulting in an agreement between the parties hereto, on a settlement of the matter there in controversy by the payment by complainant to defendants of the still further sum of $100 by way of compromise, that being $123.25 in excess of the amount of such freight according to the claims of complainant, and by the surrender of the possession of said posts to said complainant with the right to immediately unload the same. That thereupon the complainant paid the said defendants, and the said defendants received said further sum of $100, and said defendants surrendered the possession of said posts to said complainant with the right to remove the same from said barge, and the said sheriff was relieved by agreement between the parties from the care and custody thereof, and this complainant has taken and received said property pursuant to said settlement.
“(12) That shortly thereafter complainant requested of said defendants a stipulation for the dismissal of said replevin suit, and it was claimed by said defendants that the same was not fully settled, and that there was still a balance of $400 due the defendants from complainant on account of said freight on said cargo, and the defendants wholly refused to abide or recognize that said suit had been settled, or to permit the same to be dismissed.
“(13) That thereupon, as complainant is informed and verily believes and charges the fact to be, its attorneys in that case presented to the attorney for defendants therein a request for a stipulation as to the payments that had been made since the commencement of the suit, and that the issue be tried out in that case as to the balance of the freight still remaining due. if any, but that said defendants’ attorney so refused to stipulate, and threatened to default complainant and take judgment against it unless a declaration was filed in the cause, and that thereupon and because thereof, and to prevent the injustice of such a judgment, and in the hope that the facts occurring subsequent to the issuing of the writ might be permitted in evidence, the complainant herein through its attorneys caused its formal declaration to be filed in said cause, to which the defendants have pleaded the general issue.
“(14) That said replevin suit was brought on for hearing at the last term of said court, and this complainant, as plaintiff therein, sought to give in evidence proofs of the payments made and settlement had subsequent to the issuing of said writ of replevin, which said proofs, under the objection of the defendants, were rejected by the court, and this complainant was thereby debarred the privilege of proving in that case the true facts now existing regarding the controversy therein, without which proofs, and due consideration thereof, justice cannot be done, and great injustice may be done this complainant, as the plaintiff therein.
“(15) That at said trial the plaintiff therein, this complainant, was granted a continuance, with privilege to amend its pleadings therein as its counsel might be advised is proper for the purpose of submitting to the court by the complainant the facts and transactions that have occurred subsequently to the commencement of said suit, and that said replevin action now stands upon the records of said court in that condition.
“(16) That your orator is. informed by his counsel and verily believes, and charges the fact to be, that under the strict rules and regulations applicable to practice in replevin suits there is no way provided by which the complainant, as the plaintiff therein, can bring into that case by any form of pleading the facts that have occurred by way of payment of freight charges, or of full settlement of such charges, for which the defendants in that action claim a special interest by way of lien, and that, as a consequence, this complainant is without remedy in the matter, except in a court of equity.”

The bill prays for an accounting, and that the defendants may be enjoined from further proceeding in said suit of replevin, and that said suit may be declared settled between the parties and dismissed, and the bond therein canceled; and the bill also contains a prayer for general relief.

The single question in the case, in our opinion, is whether or not the plaintiff in the replevin suit, and the complainant here, had a full and adequate remedy at law in the premises. The situation is anomalous and somewhat unusual, owing to the peculiar conditions attaching to the action of replevin. Although not directly alleged, yet wé infer from the prayer that the complainant gave in the replevin suit the statutory bond.

At first blush it would seem as though, if the plaintiff in the replevin suit claimed that the same had been settled, it might discontinue its suit upon payment of costs; but the difficulty arising there would be that the defendants would be entitled to a return of the property, or a judgment at least to the extent of their interest therein, at the time of the commencement of the suit, and, the complainant being, as alleged, financially responsible, such judgment might be collected, without resort to an action upon the replevin bond. Under our decisions, in an action on the replevin bond, the defendant in that suit (the plaintiff in the original suit) might show in mitigation of damages that the obligees in the bond had no interest in the property. We have spent some time in the examination of our authorities, and the authorities outside of this jurisdiction, to determine whether the complainant has an adequate remedy in the replevin suit. If it has, there is no occasion to resort to a court of equity. We have reached the conclusion that the matter is fully provided for by our statute, and that an issue can be framed upon the question whether or not the replevin suit has been settled.

We gather from the bill that there was no written stipulation or agreement signed by the parties to discontinue the suit, but that the agreement rests in parol. Circuit Court Rule 39 provides that:

“No private agreement or consent between the parties to a cause, or their attorneys respecting the proceedings in a cause, which shall be denied by either party, shall_ be binding, unless the same shall have been made in open court, or unless evidence thereof shall be in writing subscribed by the party or his attorney against whom the same is alleged.”

It has been held, however, that where there is a misunderstanding between counsel, it is an ordinary •exercise of the power of the court to relieve a party who has acted in good faith on a verbal agreement, notwithstanding this rule which has been in existence, in one form or another, for many years. Scott v. Scott, 5 Mich. 106; Campbell v. Barclay, 4 Biss. 517, Fed. Cas. No. 2,352. And it has been held, as to a similar rule, that it did not apply to an agreement to discontinue a cause under special circumstances. Gaillard v. Smart, 6 Cow. (N. Y.) 385; Turner v. Burrows, 1 Hill (N. Y.), 627.

We think the learned trial judge was not in error in holding that the question of the alleged settlement, when asserted at least by a plaintiff, could not be tried under the ordinary issue in the replevin suit, as the action is to be tried under the declaration and plea upon the state of facts existing at the time of its institution (Wells on Replevin, p. 674); nor could it be disposed of upon mere motion or affidavit.

Under the heading “General Provisions Concerning Actions,” section 10402, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13116), provides that:

“Whenever a suggestion shall be made upon the record, or in any stage of the proceedings in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner, and within the same time, as to a declaration.”

The next section provides that:

“If an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment rendered thereon, as on other issues.”

The succeeding sections provide for the practice. A suggestion is a statement, formally entered on the record, of some fact or circumstance which will materially affect the further proceedings in the case, but which for some reason cannot be pleaded. Under this statute many such issues have been framed and tried, as will appear by a reference to the following cases: Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926); Stringer v. Dean, 61 Mich. 196 (27 N. W. 886); Muskegon Booming Co. v. Circuit Judge, 97 Mich. 622 (57 N. W. 190); Turner v. Tunnel Co., 102 Mich. 574 (61 N. W. 72), see note; Caille Bros. Co. v. Circuit Judge, 155 Mich. 480 (120 N. W. 6); Grand Rapids, etc., R. Co. v. Circuit Judg, 161 Mich. 181 (126 N. W. 56); Foley v. Railroad Co., 168 Mich. 496 (134 N. W. 446); 1 Green’s Michigan Practice, p. 220; 1 Abbott’s Practice (Mich.), § 947.

Section 10090, 3 Comp. Laws (5 How. Stat. [2d Ed.] §12740), provides for a reference to try such an issue as is here indicated. We are therefore of opinion that complainant has an adequate remedy at law in the replevin suit, and that the circuit court should have sustained the demurrer and dismissed the bill of complaint.

The order of the circuit court is therefore reversed, with costs to the defendants.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    SUNDAY LAKE IRON CO. v. TOWNSHIP OF WAKEFIELD.

    1. Taxation — Mines and Mining — Fraud — Evidence — Assessment.
    In an action to recover back taxes paid under protest by a mining corporation, the question of fraud in overvaluing the property is for the jury only if there is legitimate evidence to raise the issue, and the question whether or not there is any probative evidence of fraud is a question of law for the court.
    2. Same — Fraud—Presumptions.
    Fraud is never presumed; there must he evidence tending to prove it. It must be something more than an honest mistake in judgment to defeat a tax.
    3. Same.
    Mere excessiveness does not evince fraudulent conduct on the part of the officials, if they have not acted from improper motives: but if the assessment is purposely made too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons, the case is a plain one for equitable relief.
    4. Same — Appraisal—Equity.
    Evidence that, in valuing the plaintiff’s mine, the State tax commissioners used information obtained from mining experts, also taking into consideration the Finlay method of appraisal; that one or more of the commissioners was familiar with mining and exploration, and that no malice or bad faith was established, did not tend to show fraud: the assessment, whether too high or not, was valid.
    5. Same — State Tax Commission.
    Evidence held, to be insufficient to show reckless disregard of duty on the part of the commissioners, in opposition to what must necessarily he the judgment of all competent persons or to warrant the finding that mining property was fraudulently overvalued in relation to other property.

      Error to Gogebic; Cooper, J.
    Submitted January 7, 1914.
    (Docket No. 3.)
    Decided June 14, 1915.
    Assumpsit by the Sunday Lake Iron Company against the township of Wakefield to recover back taxes paid under protest. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      William P. Belden (Horace Andrews, of counsel), for appellant.

      J. A. O’Neill and Le Gendre & Driscoll, for appellee.

       Removed to United States Supreme Court by writ of error October 8, 1915.

   Kuhn, J.

This action is brought in assumpsit to recover from the defendant $31,910.45 in taxes on its property for the year 1911, paid by the plaintiff under protest. At the conclusion of the testimony, the trial court directed a verdict for the defendant of no cause of action, and, judgment being entered thereon, plaintiff brings the case to this court for review by writ of error.

The property of the plaintiff was assessed in the years 1910 .and' 1911 by the township supervisor at $65,000. In 1911, the board of State tax commissioners, acting under authority of legislative enactment (Act No. 114, Pub. Acts 1911) > employed an expert mining engineer, Mr. James R. Finlay, of New York City, to assist it in making an appraisal of the value of the mining properties throughout the State. Mr. Finlay, assisted by Dr. C. K. Leith, professor of geology in the University of Wisconsin, and others, made an investigation of these properties extending over a period of three months, and made a report to the board of State tax commissioners with reference thereto on August 18, 1911, which report contained a valuation of the plaintiff’s property. The method pursued by Mr. Finlay and his assistants in making this appraisal is set forth and commented upon in the opinion of this court written by Mr. Justice Ostrander, in the case of Newport Mining Co. v. City of Ironwood, 185 Mich. 668 (152 N. W. 1088). Mr. Finlay’s estimate of the value of the property of the plaintiff company was $1,460,000.

At a hearing by the State board of tax commissioners in the village of Bessemer in October, 1911, held for the purpose of reviewing the assessments of mining properties in the township of Wakefield, the board raised the assessment of plaintiff’s property from $65,000 to $1,071,000. At this hearing the plaintiff, by its representative, objected to the assessment on the grounds that:

First, the valuation was grossly in excess of the true cash value; second, the Finlay method of determining the value was contrary to the manner in which other property was assessed throughout the State; and, third, it was not proportionate to the assessment of other property generally in Wakefield township.

The claims that are now urged by counsel for appellant are stated by them in their brief as follows:

“(1) That the said board committed a fraud .upon the rights of the plaintiff in wilfully raising the assessment of its property to an amount in excess of its true value, while at the same time with full knowledge of the general underassessment of other property it wrongfully refused to raise or increase at all the assessment of such other property, with the purpose and effect of making the plaintiff pay more than its just proportion of the taxes for the year 1913.
“(2) That the action of the State board here complained of resulted in denying to the plaintiff^ the equal protection of the laws of the State of Michigan, and in substance and effect took the plaintiff’s property without due process of law, in violation of the provisions of the fourteenth amendment to the Constitution of the United States.
“(3) That the board of State tax commissioners wilfully and fraudulently imposed upon the property of the plaintiff an assessed valuation grossly in excess of its true cash value.
“ (4) That the plaintiff is entitled on this, record to have judgment entered in its favor.”

In general, it is plaintiff’s claim that Mr. Finlay obtained his results without personal examination and acted largely on information derived from maps and knowledge obtained from Mr. Leith, his assistant, who did visit the mine, and that acting upon this information he estimated that the ore deposit in the Sunday Lake and Brotherton mines — the latter adjoins the former on the west — contained 3,500,000 tons, 1,500,000 of which he judged were in the Sunday Lake property. Witnesses were produced on the part of the plaintiff who testified that the deposit in the plaintiff’s mine could not be expected to exceed 400,000 tons, and that its value was not over $550,000, and on the trial a map was produced showing a dyke which underlaid the Brotherton mine and dipped toward the east, below which drilling had discovered no ore. There was evidence that the approach to this dyke in the Brotherton mine had been indicated by an increasing amount of non-Bessemer ore, and that subsequent developments in 1912 showed that the Brotherton mine did not bear out the expectations of 1911, one of the plaintiff’s witnesses saying it had run out; and also that on the twentieth level in the Brotherton mine (the lowest level in 1911) the dyke was running in a downwardly direction, but, at the intersection of the twenty-first level, reached in 1912, it had changed its course to a more horizontal direction, the engineer who had prepared the map saying that it was flattening rapidly toward the east. Coupling this evidence with the fact that the amount of non-Bessemer ore was increasing rapidly in the Sunday Lake mine, the plaintiff contends that it is wellnigh certain that the dyke will soon be encountered and the ore exhausted in the Sunday Lake mine.

It is defendant’s claim that the record shows that these claims on the part of the plaintiff are met by the testimony of Mr. Finlay, who said that in making his valuation he had considered the presence of the dyke, and that the ore body had been showing an enlargement in the Sunday Lake property which would make unnecessary the depth assumed by the plaintiff to be required to develop 1,500,000 tons; also, the testimony of Dr. Leith, who said that a subsequent examination of the mine in 1912 did not modify, in his opinion, the value fixed by Mr. Finlay; also, the admission of plaintiff’s witness Crowell, a mining engineer, who stated that he thought the dyke would eventually get to Sunday Lake mine, but “just what angle it will assume when it comes there I cannot say.”

In the opinion of this court in the Newport Mining Company Case, supra, we have discussed and determined the propriety of the Finlay method of appraising mining property and of the use of such an appraisal by the State board of tax commissioners in reviewing the assessments. Indeed, in this case no serious criticism is made of that method of appraisal, and it is said that it, “when based upon correct factors and assumptions, might produce reasonably satisfactory results.” It is insisted, however, that, because it was hastily and superficially applied in the instant case, it resulted in a legal fraud, in that the property of the plaintiff company was assessed grossly in excess of its true cash value. It is urged that, as a matter of law, the proof of fraud does not require the establishment of an evil or vicious intent on the part of the State board of tax commissioners, and that all that it is necessary to show is that the act in question was wrongful and that it was intentionally done, and that if its result was to produce injury it is fraudulent in the eye of the law.

With reference to this claim, the learned trial judge in his charge said:

“We find that the State board of tax commissioners took these figures of Mr. Finlay of $1,460,000 and considered them, and considered the method by which he placed the value upon the mine, and then made a reduction of approximately $388,000 from those figures, making the assessment as fixed by the State board of tax commissioners at $1,072,000; the State board of tax commissioners having raised the property from $65,000 to $1,072,000. The immense difference between Mr. Finlay’s figures and the State board of tax commissioners, approximately $388,000, shows conclusively that they did not accept all of his figures, but made an enormous allowance from his figures; in fact, they cut them approximately 26 per cent., so that the State board of tax commissioners assessed this property at 26 per cent, below its cash value as fixed by Mr. Finlay.
“I-find no evidence in this case which would justify the court in arriving at a conclusion that the State board of tax commissioners acted fraudulently towards this plaintiff, or unjustly. The evidence all indicates that they used their best judgment and their honest endeavors, assisted by the State, in having this expert employed, and, after an expenditure of many thousands of dollars in getting this information, I think there is but one conclusion, and that is that the State board of tax commissioners • acted fairly, honestly, and justly towards this plaintiff in arriving at this valuation upon the property in question, and there is nothing to justify the court in setting aside their action and finding a verdict in favor of the plaintiff. I know of no way by which a more accurate or just method could be found for getting at the value of these mines.”

The law in this State with reference to fraudulent overvaluation for taxation purposes has recently had the consideration of this court, in the case of Island Mill Lumber Co. v. City of Alpena, 176 Mich. 575, 579 (142 N. W. 770), in which Mr. Justice Steere, in speaking for the court, said:

“Counsel for plaintiff contend that the question of fraud is never a question of law, but is always held by all courts to be a question of fact for the jury, citing numerous cases. This is unquestionably correct, when there is in the case legitimate 'evidence of fraud to raise the issue, but whether or not there is any probative evidence of fraud in the case is a question of law for the court. Fraud is never presumed; there must be evidence tending to prove it. The law upon the question of fraudulent overvaluation for taxation purposes is well settled in this State. It must be something more than an honest mistake in judgment to defeat a tax. In 2 Cooley on Taxation (3d Ed.), p. 1459, it is said:
" ‘An assessment is not fraudulent merely because of being excessive, if the assessors have not acted from improper motive; but, if it is purposely made too high through prejudice or a reckless disregard of duty in opposition to what must necessarily be the judgment of all competent persons, * * * the case is a plain one for the equitable remedy by injunction.’
“In such case the tax is necessarily invalid.
“The above rule has been quoted by this court with approval and consistently followed. The subject is exhaustively discussed, with citation of numerous authorities, in Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430 (74 N. W. 700), and City of Muskegon v. Boyce, 123 Mich. 535 (82 N. W. 264)

See, also, City of Port Huron v. Wright, 150 Mich. 279 (114 N. W. 76).

After a careful consideration of this record and the plaintiff’s claims, and considering all the testimony produced in the light most favorable to the plaintiff, without determining the relevancy of such testimony as was admitted to show changes in conditions subsequent to the assessment, we cannot agree that there is any evidence to sustain the charge that the State board of tax commissioners, in disregard of its duty, recklessly or intentionally or fraudulently overvalued the plaintiff’s property for taxation. Applying the rule cited above in the Island Mill Lumber Co. Case from Cooley on Taxation, it cannot be said that the State board of tax commissioners acted in “reckless disregard of duty, in opposition to what must necessarily be the judgment of all competent persons.” In fixing the value* of this mine the State board did use the information produced for it by disinterested experts of a high standing, in accordance with authority granted by an act of the legislature of this State. The figure arrived at may possibly have been in fact too high or too low, but Mr. Shields, one of the commissioners, who himself had charge of the review, and was familiar with the development of iron mines on the Gogebic range and its ore formation, we are convinced, acted honestly, fairly, and in good faith upon all the information he had at hand, and made a proper and legal assessment in fixing the value of plaintiff’s mine in the way that he did.

The claim is also made, as was made in the Newport Case, supra, that the value of one class of property — mining property — was raised and the values of other classes of property known to be undervalued were not raised, and that such intentional inequality of assessment constitutes fraud and invalidates the tax. This is based largely upon claimed admissions of Mr. Shields of his knowledge of the undervaluation of other property in the State and in that locality, and the fact that great increases were made in the assessment of other than mining property in the year 1912.

An examination of the evidence in this record is convincing that the business of the defendant township depended almost entirely upon the mining business, and the mine of the plaintiff company, which was one of the largest mines in the township, in 1911 was assessed at the small sum of $65,000, although plaintiff now admits that it is reasonably worth the sum of $450,000. People, generally, at least, did not know the extent of the ore deposits, and it appears that business was dull. It further appears that after the report of the Finlay appraisal was made public, disclosing the value and the long life of the mines in the township, business conditions in the village and township of Wakefield became better and the values of property increased. These changed conditions, it may be said, at least in part, accounted for the increased assessments in 1912, and, as in the Newport Case, we are in the instant case unable to find any specific data in this record to sustain the conclusion' that the nonmining property in the defendant township was not assessed relatively as high in 1911 as was the mining property.

. We are convinced that the trial judge arrived at the proper conclusion in directing a verdict for the defendant upon this record, and the judgment is therefore affirmed.

Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    MILLETTE v. DETROIT UNITED RAILWAY.
    1. Street Railroads — Highways and Streets — Crossing Tracks —Negligence.
    The driver of a coal wagon containing about 4 tons of coal was not chargeable with contributory negligence in cross» ing defendant’s street car track with his team and vehicle when it appeared that he stopped about 30 feet from the track and observed a car approaching about 400 feet away, which made a stop at the nearest crossing before it collided with plaintiff’s rig, and that plaintiff believed he had time to cross before the car could reach the crossing.

    2. Same — Declaration—Pleading—Want oe Negligence — Last Clear Chance.
    Plaintiff’s declaration charging that defendant wilfully, wantonly and maliciously ran its ear with great violence into the wagon in which he was riding sufficiently charged gross negligence and authorized the court in submitting to the jury the question whether the motorman might have stopped the car in time to avoid running down the plaintiff.

    3. Same — Ordinance—Evidence—Pleading.
    Although a municipal ordinance, to be available for the purpose of proving negligence, should be pleaded, an ordinance of the city of Detroit limiting the speed of cars to 15 miles per hour was not improperly received as affecting the question of plaintiff’s contributory negligence.

    4. Damages — Personal Injuries — Street Railways — Measure oe Damages — Employment.
    Where plaintiff was employed as driver of a coal wagon at the time of his injury, but introduced evidence tending to show that his usual occupation was that of a brakeman, and that he had made application for a position as brakeman, at that time, the measure of his damages was not confined to the loss which he would have incurred in the business in which he was temporarily engaged; he was entitled to recover for injury to his earning capacity as brakeman.
    5. Evidence — -Witnesses—Speed oe Cars — Expert Testimony.
    In an action for personal injuries sustained in a collision with a street car, the plaintiff was rightly permitted to testify to the speed of the street car by which he was injured, where the foundation was laid by showing that he had been a brakeman for nearly 15 years, and he had ridden with motormen on street cars, and had observed the operation and stopping of cars; and a witness who had driven a moving van in the city for about 20 years and ridden in cars almost daily and observed their speed at different times qualified to give his opinion as to the rate of speed.
    Error to Wayne; Hosmer, J.
    Submitted June 18, 1914.
    (Docket No. 106.)
    Decided. June 14, 1915.
    Case by Alphonse Millette against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Maxwell W. Benjamin, for appellee.

      As to the right of driver of vehicle to assume that motorman will give him time to cross the track, see note in 5 L. R. A. (N. S.) 1081.

       As to operation of street car at speed in excess of that prescribed by ordinance as negligence or evidence of negligence, see note in 8 L. R. A. (N. S.) 1093.

       As to sufficiency of general allegation of negligence, see nóte in 59 L. R. A. 238.

   Bird, J.

Plaintiff and his companion were seated on a wagon load of coal, weighing about four tons, going north on Second avenue in the city of Detroit. When they reached a point about 30 feet south of defendant’s north track, they stopped the team and made observations. To the west the way was clear, but a car was seen approaching from the east a- block and a half away, or between 400 and 500 feet. Plaintiff started his team across. The car stopped at Elizabeth street a block away, and then came on rapidly. Plaintiff was delayed somewhat in crossing by reason of the slipping of his horses on the damp pavement. When it began to look as though the wagon was not going to clear, the companion of plaintiff waved his hand to the motorman, who was then in the middle of the block, to slow down. The motorman did not heed the warning, but turned on more power and increased the speed of the car, and collided with the front wheel of plaintiff’s wagon, shoving the wagon along the pavement about 50 feet, when the fuse blew out and the car stopped. Plaintiff was thrown from his wagon and injured, and the jury fixed his compensation at $2,500. The defendant offered no testimony, and does not dispute its own negligence, but relies upon the contributory negligence of the plaintiff and the defects in his case to defeat a recovery.

1. For plaintiff to attempt to cross the tracks ahead of the car, under the conditions as they existed at the time he made his observations, was not negligence upon his part as a matter of law. Seebach v. Railways Co., 177 Mich. 1 (142 N. W. 1086), and cases cited. His observations led him to believe that he had time to cross the tracks before the car would reach that point. His horses did get across, and it is quite likely the wagon would have cleared, had his horses not slipped, and had the motorman decreased the speed of the car, instead of increasing it.

2. After the jury had deliberated for a time, they returned and submitted to the court the following question:

“If the plaintiff was careless or negligent in attempting to cross the track, and then, after doing so, he could see far on the track, that the motorman had had notice of the obstruction, but failed to stop the car, although he could and might have done so, is the plaintiff entitled to damages?”

The trial court instructed them again, in substance, as he had theretofore instructed them, that:

“Gentlemen, I charge you, in case that happened, and the motorman had the ability and could have stopped the car, but carelessly and negligently failed to do so, and ran down on the plaintiff, that the company is liable.”

This instruction is assigned as error, for the reason that the declaration did not count upon the subsequent negligence of the defendant. An examination of the declaration discloses an averment that the servants of defendant “wilfully, wantonly, recklessly, and maliciously ran said car with great violence into said coal wagon.” This allegation was sufficient to charge the defendant with gross negligence. See Fike v. Railroad Co., 174 Mich. 167, 207 (140 N. W. 592); also Baldwin on Personal Injuries, § 138.

3. Exception was taken to the admission of the ordinance of the city of Detroit limiting the speed of the cars to 15 miles per hour. Subsequently some discussion took place between counsel, and it was excluded, but defendant claims that it left its harmful effect upon the jury. It has been several times held by this court that an ordinance, to be available in establishing the negligence of the defendant, must be pleaded. Richter v. Harper, 95 Mich. 221 (54 N. W. 768); Gardner v. Railway Co., 99 Mich. 182 (58 N. W. 49). The ordinance was not pleaded in the instant case, but was offered only for the purpose of affecting the question of plaintiff’s negligence. For this purpose it was admissible. Putnam v. Railway, 164 Mich. 342 (129 N. W. 860).

4. As bearing upon the question of damages, the plaintiff was permitted to introduce testimony of his earning power as a railroad brakeman. This was assigned as error, for the reason that, when injured his occupation was that of a driver of a coal wagon, whose wages were very much less than those of a brakeman. The injured party’s damages are measured by his inability to follow his usual employment or business, and are not confined to the temporary employment which he may be following at the time of the injury. 13 Cyc. p. 47; Central of Georgia R. Co. v. Perkerson, 112 Ga. 923 (38 S. E. 365, 53 L. R. A. 210); Peterson v. Traction Co., 23 Wash. 615 (63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586); Louisville, etc., R. Co. v. Clarke, 152 U. S. 230 (14 Sup. Ct. 579); Chicago, etc., R. Co. v. Long, 26 Tex. Civ. App. 601 (65 S. W. 882); McIntyre v. Railroad Co., 37 N. Y. 287. The proofs disclosed that plaintiff, who was 32 years of age when injured, had spent the greater part of his working years in the capacity of a railroad brakeman and switchman, and when injured he had an application filed with the Michigan Central Railroad to re-enter such employment. If he were actually qualified to discharge the duties of a brakeman, and had discharged them for nearly 15 years, to measure his loss by being deprived of his ability to drive the coal wagon would not be just compensation.

5. The assignments of error relating to the admission of the testimony of the plaintiff and of the witness Griffen with reference to the speed of the car are not well taken. The record .shows that the plaintiff had been a brakeman on a steam railroad-for nearly 15 years, and that he had ridden with the motormen on street cars, and observed the stopping of the cars. The witness Griffen had been driving a moving van in the city of Detroit for upwards of 20 years, had ridden upon the cars almost daily, and had observed the speed of the cars on- Grand River avenue. The opinion of these witnesses might not have been entitled to great weight, but we think they qualified themselves to express an opinion thereon. Line v. Railway Co., 143 Mich. 163 (106 N. W. 719), and cases cited.

The judgment of the trial court will be affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


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    LUND v. LOUGH.
    1. Negligence — Conversion—Navigation—Boats and Shipping.
    Where the plaintiffs claimed and offered evidence tending to prove that the' defendants, without permission, took a boat or lighter without their knowledge, loaded it with a boiler and some merchandise, and towed the lighter to a point about 20 miles away and refused to permit the master of the tug to bring the lighter back until it was loaded, that the master. of the tug left a tow line and anchor with express directions how to use them to secure the boat, that defendant neglected these instructions and failed to exercise' ordinary care in anchoring and protecting the lighter, which was lost in a storm, the testimony, being disputed, presented a proper issue for the jury as to defendants’ negligence.
    2. Evidence — Damages—Negligence—Navigation—Bailments.
    Testimony that one of the defendants, in an action for loss of a lighter during a storm, stated or admitted immediately after the lighter broke up and sank that he guessed they would have a lighter to pay for, was admissible in evidence and furnished a proper basis of the inference that he understood he had neglected some duty.
    Error to Cheboygan; Sharpe, J.
    Submitted June 22, 1914.
    (Docket No. 108.)
    Decided June 14, 1915.
    Case by Robert Lund and another against Albert Lough and another for negligence in failing to properly secure and anchor a boat. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      I. S. Canfield, for appellants.

      C. S. Reilley, for appellees.
   Bird, J.

Plaintiffs sued and recovered a judgment in tort for $650 against the defendants for their negligence in failing to care for and protect a certain lighter, which was in their possession, but which was owned by the plaintiffs. Not being content with the result reached by the trial court, the defendants have brought the case to this court for review.

1. It is urged with much earnestness that the trial court was in error for refusing to direct a verdict in behalf of defendants, on the ground that, the testimony failed to disclose any negligence on their part. It is not only the claim of plaintiffs, but the testimony tended to show that in November, 1913, the defendants took possession of the lighter, which was moored in Cheboygan river, without either the knowledge or consent of plaintiffs, loaded it with a boiler and smokestack and merchandise, and on November 18th had it towed to Grace Harbor, a point 20 miles south of Cheboygan, where they were carrying on lumbering operations; that they refused to permit the tug to convey the lighter back to Cheboygan until it was loaded with shingles; that in consequence of such refusal, the return of the lighter was delayed several days; that on the 21st day of November, while the lighter was still at Grace Harbor, a severe storm prevailed, and the lighter was wrecked. It was further shown that when the master of the tug learned that he was not to take the lighter back with him, he left a tow line and anchor and gave defendants instructions how to securely fasten and anchor the lighter, so that it would safely outride the storm; that defendants neglected to follow the instructions given by the master, and it is claimed that they failed to exercise ordinary care in securing and anchoring the lighter, and in consequence thereof the lighter was wrecked and became a total loss. These items of proof, or most of them, were disputed, but if plaintiffs’ version were believed by the jury they were sufficient to establish the negligence of the defendants.

2. Complaint is made of the admission of certain statements in the nature of admissions claimed to have been made by defendant Lough. The following testimony will illustrate the nature of them. Cook, the master of the tug, was permitted to testify, over ■ defendants’' obj ection, that:

“Mr. Lough came aboard of the tug after the lighter had broken up, and I told him that I regretted very much that the thing had happened, and he says, ‘Yes, sir; I guess we have a lighter to pay, for all right enough.’ ”

In view of the contention of the defendants on the trial that they were not responsible for taking possession of the lighter, and, further, that they were not responsible for the lighter not being returned by the tug, and denying all responsibility for its loss, we think the testimony was properly received. . If Mr. Lough made the statement credited to him that “I guess we have a lighter to pay for all right enough,” it furnished a basis for an inference that he himself understood that he had neglected some duty which he owed the plaintiffs to see that their property was properly protected.

Several assignments are based upon the charge of the court. We have examined them with reference to the criticisms, made, but do not think they are well taken. • .

The judgment of the trial court is affirmed..

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


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    JOLMAN v. ALBERTS.
    1. Automobiles — Negligence — Pleading — Declaration—Allegation of Duty.
    Plaintiff’s declaration charging defendant with negligently colliding with a vehicle in which the plaintiff was sitting, alleging that the defendant was riding in an automobile along the street and negligently and carelessly drove and guided said automobile so that it ran into the buggy which was standing on the west 'side of the street by the curb occupied by the plaintiff, and other persons, etc., was not fatally defective for failure to set forth the duty owed- by defendant to plaintiff, and an objection to the pleading on the trial, for failure to'allege a duty violated by the defendant was not ground for directing a verdict.
    2. Same — Trial—Misconduct of Counsel — Closing Argument.
    It was reversible error, in closing plaintiff’s argument, to argue to the jury that no one of the jury would be willing to take $5,000 for the injuries sustained by plaintiff and, although counsel withdrew the argument, but further stated that no person would for one moment consider going through life in that condition for any sum of money, the trial court should have interposed and advised the jury that the argument was improper, and the failure of the court to take proper action to correct the harmful impression upon the jury constituted reversible error.
    Error to Muskegon; Sullivan, J.
    Submitted June 2, 1914.
    (Docket No. 4.)
    Decided June 14, 1915.
    Case by Sadie Jolman against Frank Alberts for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Clink & Farmer, for appellant.

      William Carpenter (Harry W. Jackson, of counsel), for appellee.
   Bird, J.

On the evening of August 30, 1913, plaintiff’s husband drove up close to the curb on the west side of Peck street, in the city of Muskegon, in front of a dwelling, to call for his wife. After plaintiff had seated herself in the rear seat of the carriage, and while waiting for her husband to enter the carriage, defendant came along from the rear with his automobile and ran into her carriage, with the result that plaintiff was thrown out and severely injured. Two things occurred to make it difficult for defendant to see plaintiff’s carriage, namely, the overhanging branches of the shade trees and an automobile with bright lights coming toward him, as he approached plaintiff’s carriage. Defendant was adjudged guilty of negligence in the operation of his car, and plaintiff’s damages were assessed by the jury.

1. The first assignment of error relates to the insufficiency of the declaration. The point made is that the declaration was faulty for the reason that it contained no allegation of duty nor any breach of duty. The material portion of the declaration alleges that:

“For that whereas, heretofore, to wit, on the thirtieth day of August, A. D. 1912, at the city of Muskegon in said county, at about the hour of nine o’clock in the afternoon, the said defendant was riding in and driving an automobile along Peck street, a public street of said city, and when between Washington avenue and Grand avenue, he negligently and carelessly drove and guided said automobile so that it ran into a buggy standing on the west side of said street near the curb, occupied by plaintiff and other persons who were then and there in the exercise of due care and caution and free from negligence, and struck the said buggy with such force as to break and crush it, and thereby threw the plaintiff out of the same, across the box of said buggy, and upon the ground.”

Counsel is quite right in his contention that the rules of pleading require an allegation in the declaration of the duty defendant owed to the plaintiff on the particular occasion. Flint, etc., R. Co. v. Stark, 38 Mich. 714, 717. The rigor of this rule has been somewhat modified by this court on several occasions by holding that, where the facts are so set forth in the declaration that the duty can be implied, the count will be sustained in the absence of a demurrer. Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Ella v. Boyce, 112 Mich. 552 (70 N. W. 1106). The declaration in question, we think, falls within this modified rule. The facts alleged are such that the duty of defendant to operate his car carefully, and in such a manner as to avoid colliding with plaintiff’s carriage, is clearly implied from the facts stated. No demurrer having been interposed, the point is not now available.

2. Serious complaint is made of plaintiff’s closing argument to the jury. The objectionable portion and the manner in which it arose will be gathered from the following:

“Mr. Cross: I take an exception to the argument of counsel, Mr. Carpenter, that there would be no one of the jurors who would be willing to take $5,000 for the injuries of the plaintiff. That is not a legitimate argument, and our Supreme Court has so held it.
“Mr. Carpenter: I will withdraw that part of it. I didn’t mean anything wrong. I say no person would for one moment consider going through life in that condition for any sum of money.
“Mr. Cross: I make the same objection to that. It is illegitimate argument.
“The Court: Counsel will take notice of the objection that is made.
“Mr. Cross: I ask the court to correct it.
“The Court: The court refuses to go any further.
“Mr. Cross: Exception.”

Under the holding of this court in Hughes v. City of Detroit, 161 Mich. 283 (126 N. W. 214, 137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106), and Wells v. Railroad Co., 184 Mich. 1 (150 N. W. 340), this argument was improper. If, when counsel for the plaintiff withdrew the remark, the court had granted an exception, and given the. jury to understand that it was improper argument, a reversal in this case might have been avoided; but the attitude of the trial court in refusing to so instruct the jury quite likely'left the impression upon the minds of the jurors that the argument was unobjectionable.

For this reason we feel constrained to reverse the case with an order for a retrial.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


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    POWER v. GRAY.
    1. Municipal Corporations — Townships — Warrant—Order for Payment of Money — Tools and Machinery.
    In payment for tools and machinery purchased neither highway commissioner nor township board may lawfully issue a warrant calling for the future .payment of money, and interest thereon, unless authorized by a vote of the electors of the corporation.
    2. Same — Time—Warrant.
    Under section 2269, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1326), the validity of such order or warrant depends upon compliance with the statutory, requirements and unless authorized by the electors, or by special statutory provisions, the obligation did not bind the township.
    3. Same — Borrowing Money — Power to Create Debts.
    Under section 8 of the general highway law (Act No. 108, Pub. Acts 1907, 1 How. Stat. [2d Ed.] §2173), the authority to borrow money íor highway purposes does not extend to a period of three years in advance of the issuance of the order: though after the tax has been de-termined the board 'has authority to borrow in anticipation of the collection of taxes for purchasing tools, machinery, etc.
    4. Same — Sales—Bills and Notes — Negotiability.
    A township order for the payment of thg price of tools or machinery purchased by the highway commissioner and township board is not a negotiable instrument which passes to a bona fide purchaser free from equities. Being void in the hands of the original holder, or payee, it was invalid in the possession of a holder in due course.
    Certiorari to Benzie; Lamb, J.
    Submitted June 27, 1914.
    (Calendar No. 26,290.)
    Decided June 14, 1915.
    Mandamus by Delbert H. Power against Earl Gray, treasurer of Almira township, Benzie county, to compel respondent to recognize and pay an order of the township board. An order was entered denying the writ; relator brings certiorari.'
    Affirmed.

      Gleason & Lee (Myron H. Walker, of counsel), for relator.

      Warner, Raudabaugh & Person, for respondent.
   Bird, J.

In response to an order of the circuit court for the county of Benzie to show cause why he, as treasurer of the township of Almira, should not pay a certain township order presented for payment by the relator, the respondent showed cause by insisting that the township order in question was issued without authority. The trial court agreed with respondent, whereupon the relator removed the proceedings by certiorari to this court for review.

The township order in question was in the follow-, ing form:

“To -the Treasurer of Almira Township, in Benzie County, State of Michigan:
“Whereas, the commissioner of highways and township board of your said township has heretofore duly contracted for and purchased of the C. W. Carter Co., Ltd., in pursuance of the laws of the State of Michigan, one No. 2 all steel snow roller ten foot long:
“You are hereby directed and required to pay to the said C. W. Carter Co., Ltd., Detroit, Michigan, or order, out of the highway funds of said township (350) three hundred fifty dollars, the contract price therefor as per such contract as follows:
“$150 on or before 1st day of April, 1910; $100 on or before 1st day of April, 1911; $100 on or before 1st day of April, 1912; with interest at the rate of six per cent, per annum, payable annually, from the 1st day of January, 1909, at the State Bank in Traverse City, Michigan.
“Witness our hand and seal as highway commissioner and township board of said township this 29th day of December, 1908.
“Wm. T. Shutt, Highway Commissioner.
“Earl Gray, Supervisor.
“Wm. J. Shilliday, Township Clerk.
“J. W. Buskert, Justice of Peace.
“S. S. Burnett, Justice of Peace.
“The above order has been duly registered with me as clerk of the said township and a true copy thereof filed in my office this 29th day of December, 1908.
“Wm. J. Shilliday, Clerk of Almira Township.
“P. O. Lake Ann, Mich.”
On the back of said order was written:
“Without recourse on us.
“C. W. Carter Co., Ltd.
“C. W. Carter.”

1. One point made against the validity of the order is that neither the township board nor the highway commissioner, nor both together, have the authority to issue an interest-bearing obligation payable in the future, to pay for highway tools and machinery. In support thereof, the following provisions of the statute are relied upon:

“That hereafter it shall be unlawful for any highway commissioner to draw or- issue any order or orders for the payment of mohey upon the township treasury of any township, or to contract for, or to permit to be done or furnished any labor or materials upon or for the highways or bridges in such township, for any sum or sums greater than the highway funds theretofore authorized by the votes of such township, or otherwise- provided by law, except in cases especially provided by existing laws.” § 4212, 2 Comp. Laws.
“No board, officer or officers shall create any debt or liability against the township, or issue any warrant, certificate or order for the payment of money, except when the creation of such debt or liability or the payment of such money has been authorized by such vote or by the provisions of law.” § 2269, 1 Comp. Laws.

The township order in question is dated December 29, 1908, and provides for future payments only. The first one is due March 1, 1910, and the last one on March 1, 1912, with a provision for annual interest. It is clear that neither the township board nor the highway commissioner could bind the township with such an obligation, unless authorized by the statute. Hosier v. Township Board, 45 Mich. 340 (7 N. W. 897). In order to make such an obligation valid, it must either be authorized by a vote of the electors of the township or by some- existing provision of the statute. There is no claim that it was authorized by a vote of the electors, nor has there been called to our attention any provision of the statute, which was in force at the time, granting any such power. On the contrary, there is an express provision against the exercise of it, except in the cases mentioned. Section 2269,, supra.

The relator argues that sections 8 and 10 of the highway law of 1907 (Act No. 108, Pub. Acts 1907) authorize the issuance of the order. These sections provide that.:

“Sec. 8. When the amount of either or both of said taxes shall have been determined by the township meeting or the township board, the township board shall have the power and authority to borrow an amount not exceeding three-fourths of the tax determined upon for the ensuing year, for the purpose of paying for labor, material, tools or machinery, or other expenses in connection with the laying out, building, repairing or improving of highways and bridges of the township.”
“Sec. 10. The highway improvement fund shall be expended by the township highway commissioner under the direction of the township board in laying out, building and permanently improving or repairing highways and bridges and in the employment of labor, purchasing of material, tools or machinery to be used therefor.”

The authority given by. section 8. does not contemplate that the borrowing will extend beyond the collection of the taxes for the current year. Obviously the board did not- rely on this section, as it fixed the time of payment of the obligation over three years away. Without doubt, the township board has the power, after the tax is determined, to borrow in anticipation of the collection of the taxes and pay for highway tools and machinery, but that is a different proposition from the one involved here. And it is very evident that the legislature did not understand that it had granted to township boards the power contended, for, if it had, it would not have passed the following provision in 1909:

“ * * * The commissioner of highways, under the direction of the township board, may contract for such tools or road machinery as they may deem advisable,' to be paid for in not to exceed four years’ time, but in no one year shall the payment made thereon exceed one-fourth of the amount of the allowable highway improvement tax. * * * ” Section 10, chap. 2, Act No. 283, Pub. Acts 1909.

Had this section been in force when the obligation in question was created, no question would probably have arisen as to its validity. We must conclude, as did the trial court, that the order was unauthorized and void.

2. The relator claims that he purchased the order in good faith before it was due, and for value, and that he is in the position of a bona fide holder. It has been determined by this court that such orders are nonnegotiable instruments. This being true, it must therefore follow that relator took the order subject to all the defenses which might have been made to it in the hands of the original holder. Miner v. Vedder, 66 Mich. 101 (33 N. W. 47); Field v. Village of Highland Park, 141 Mich. 69 (104 N. W. 393). In view of the conclusion reached as to this point, it will be unnecessary to consider the other questions raised against its validity.

We think the trial court reached the right conclusion, and its order will be affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    POWER v. BALITZ.
    Certiorari to Benzie; Lamb, J.
    Submitted June 27, 1914.
    (Calendar No. 26,289.)
    Decided June 14, 1915.
    Mandamus by Delbert Power against Fred Balitz, treasurer of the township of Platte, Benzie county, to require respondent to pay an order. From an order denying relief relator brings certiorari.
    Affirmed.

      Gleason & Lee (Myron H. Walker, of counsel), for relator.

      Warner, Raudabaugh & Person, for respondent.
   Bird, J.

Substantially the same state of facts and the same legal questions are involved in this case as were considered and passed upon by this court in Power v. Gray, ante, 646 (153 N. W. 37), filed herewith. This case is ruled by that .one, and the order made herein by the trial court will be affirmed, with costs to the respondent.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.