author: Hooker, J. Blair, J.

text:
    CHAMBERLAIN v. EDDY.
    1. Witnesses — Competency — Transaction With Person Since Deceased — Objection—Materiality.
    Whether a witness who testified to a transaction with a person since deceased was disqualified by the statute is immaterial where the facts testified to were otherwise proved by the undisputed testimony of a competent witness.
    2. Gifts — Inter Yivos — Requisites.
    To constitute a valid gift inter vivos there must be a delivery, actual or symbolical, of the subject-matter, unless it is already in the possession of the donee, with an intent on the part of the donor to presently divest himself of all title and dominion over the same, and an acceptance by the donee.
    3. Same — Evidence—Sufficiency.
    On a bill by an administrator for a discovery and to establish a trust in money and property claimed by defendant to have been transferred to her by decedent as a gift, evidence examined, and held, to support a finding that decedent in contemplation of suicide transferred the property to defendant with the intention that it should become hers on his death if not called for earlier, and that a valid gift was not made, notwithstanding he may have intended never to call for it, and never did call for it. Blair, Moore, and MoAlvay, JJ., dissenting.
    4. Trusts — Enforcement—Equity—Jurisdiction.
    Equity has jurisdiction of a bill by an administrator, against a person claiming money and property of decedent as his donee, to establish a trust in the property, to follow the fund, and to restrain further disposition of the unexpended balance, and the bill should not be dismissed on the ground that there exists an adequate remedy at law.
    5. Same — Jury Trial — Propriety.
    The bill should not be dismissed on the ground that the case is one peculiarly adapted to trial by jury, since the ohancellor can decide the questions as well, and the jurisdiction of equity being clear there is no obligation to send questions of fact to a jury; though if it should be thought expedient to do so, it should be done by sending an issue, and not by dismissing the ' bill upon the hearing.

      6. Interest — Trust Funds.
    Defendant, claiming money and property of decedent as donee, on its being decreed a trust fund for the estate, should be charged interest thereon only from the date the property was demanded by the administrator.
    7. Trusts — Enforcement—Lien—Homestead.
    Where defendant, claiming money and property of decedent in good faith as his donee, had expended a portion thereof for personal property and for improvements on her homestead, the administrator, on a bill to establish and enforce a trust, was given a lien on the personal property and improvements, exclusive of defendant’s homestead rights.
    Appeal from Newaygo; Palmer, J.
    Submitted April 14,1908.
    (Docket No. 72.)
    Decided November 30, 1908.
    Bill by Routine L. Chamberlain, administrator of the estate of Clark A. Jones, deceased, against Elda Jones Eddy for a discovery, and to establish a trust. Prom a decree for complainant, defendant appeals.
    Modified and affirmed.

      John G. Anderson (Edwin H. Lyon, of counsel), for complainant.

      William Carpenter, for defendant.
   Hooker, J.

Clark Jones was one of eight brothers and sisters. He died a suicide on January 21, 1906, at Shreveport, La. On December 17, 1905, he was the owner of a farm and some personal property, which last included two certificates of deposit for the sums of $600 and $1,800, respectively, and two promissory notes, an uncollected claim for $30.29, and an interest in the estates of his father and mother, then in process of settlement, and practically ready for distribution. He had been in the habit of keeping the aforesaid certificates and notes in the safe of his sister Mrs. Eddy, the defendant, at her home, and after his death these papers were found to be indorsed in blank by him, as appears from her testimony, she having been called as a witness for the complainant at the hearing in the circuit court. She testified, in answer to questions asked by complainant’s counsel, that she had cashed the checks and deposited the money in her own name, collected the claim for $30.29 and the interest on the notes; that she had loaned $300 upon a mortgage, and after-wards sold it for an interest in some land owned in common by herself and two sisters, upon which land she resided, and paid her $100 in addition to the mortgage. She expended $800 upon a barn which she erected upon the same premises. She bought a team, wagon, farming implements, buggy, harness, etc. She paid for the removal and burial of Clark Jones, and at the time she testified had some money and some notes left of the property. So much appears in the direct examination by complainant’s counsel of the defendant. The complainant is the administrator of the estate of Clark Jones. He filed a bill in equity for discovery, claiming that defendant’s actions, doings, and claim of ownership were fraudulent, that there was danger of the property being disposed of by her, and lost to the estate of Clark Jones, and praying that a decree be made adjudging that the said money, promissory notes, and the lands purchased with the money obtained by defendant constitute a trust fund for said estate, and for a lien upon any and all lands of said defendant upon which she had used any of said money in making improvements, and that it be sold to pay all such sums, and that she be required to convey to the estate all property purchased by her with any of said money. An injunction pendente lite was prayed and issued.

The defendant claims that she became the owner of all of said property, except the farm (which is not in disputé) by gift from her brother Clark Jones in December, 1905, about the time he left home. It is claimed, on her behalf, that this proceeding is not a proper one, for the reason that there is an adequate remedy at law. To maintain her claim to the property, the defendant brought out, through cross-examination of the defendant, the following testimony: Clark Jones lived at Troy, 16 miles from defendant’s home. He went to her home the evening before he left home, and his papers were then in the safe. They had a conversation as follows:

“ He asked me to open the safe so that he could fix the money so that I could get it. I opened the safe. I did not take out the papers myself. I knew they were there. He went to the safe and took the papers. I didn’t see him indorse them. I found them there that morning that he went away. It was that morning that he asked me to open the safe. After he left I found them there, and they had his indorsementon each one of them, the certificates and the notes. After he went out of the house he went to the barn. He asked me if my nephew had come in from the barn, and I told him no, and he went to the barn. I don’t know of my own knowledge that he talked with my nephew. * * * My nephew’s name is Earl R. Leland. He talked with me after my brother went away, the same morning after I had last seen my brother. * * * My nephew said that Clark said for me to deposit the money in my own name so that I could have the same to use, and it would be handy for him to use when he was up North to send him some. I was not married at that time. I was living in the old homestead, and had lived there all my life. My father and mother were both dead. Their estates were partially administered. He left, besides these certificates and notes and an account for lumber, another paper. This is the paper written on the back of a receipt. * * * That is my brother’s signature and his handwriting. I found that the morning that he went away. I had possession of the safe, and had given my brother permission to put the things there, and they were all left in my possession. The paper is directed to Mr. A. O. White. He was the administrator of father’s and mother’s estate at the time. There was still something unpaid to the heirs in his possession.”

The witness also stated that a paper writing was found with the certificates. The paper referred to is as follows:

“Mr. A. O. White,
“ Please pay my share of the estates to Elda A. Jones, and oblige,
“Clark A. Jones.”
“There was never any instruction given by my brother, either verbally or in writing, qualifying this order in any way or bearing on it. There was never anything given to me, or that came to me, indicating that I should not use this for myself if I could get it. My brother lived with me at one time. He was sick at my house with smallpox in the spring of 1904. He was near to death. I took care of him during that sickness. I nursed him through the entire sickness. After that I lived with him as his housekeeper, and took care of him so far as a housekeeper would. My relations with him were very close.”

The foregoing testimony was taken under objection, it being claimed that defendant was disqualified as a witness, by the statute; but as Mamie Brittan testified substantially the same, and there was no contradiction, the admissibility of defendant’s testimony is not important. She stated:

“ I live in Dayton township, and am a sister of Clark Jones and Mrs. Eddy. I was at their home at about the time he left. The last place that I remember seeing him was as he came from the room where the safe that has been spoken of was, from the room where I was in the house there. That was just shortly before he took his departure. I heard a conversation between him and Mrs. Eddy. In his peculiar way he had of saying things — of course, we had no idea of its coming to this — I could not say right definite, but this is what it was, as near as I can recall it now: It was that he asked her to open the safe for him so that he might fix his check so that she might get the money to pay his taxes for him. I don’t know as I am telling it just as it was. He had spoken to her about paying his taxes for him, and as I understand, he had also made arrangements with the bank so that he could leave the money so that she could get it. He says, ‘You open the safe, and I will fix that so you can get the money, and then you can — ’ I am under oath, and I want to be pretty careful in what I am saying here — he says, ‘ I will fix this so that, you can get the money to pay my taxes, and you might want to use some.’ That is the substance of what he said, as near as I recall it now. I had no other conversation with him, and did not hear him say anything of this character at any other time. He came to the house the evening before, and stayed there all night. I was staying at the house at that time. That is all the conversation that I can now remember. Mrs. Eddy went into the room, and, as I suppose, opened the safe for him. As the safe was in the other room, and positively out of my sight, I cannot say that she opened the safe. He went into the room. I didn’t see him while he was in .there. Afterwards he came out, and I saw the certificates and the notes. They were indorsed in his handwriting and his name. I don’t know whether I ever saw them before or not.”

Earl R. Leland, a nephew of Clark Jones, testified:

“I have made my home principally with my aunts Mrs. Eddy and Mrs. Brittan, in Dayton township. I am a nephew of Mrs. Eddy and of Clark Jones. I knew him in his lifetime. I have known him ever since I was big enough to know anyone, and before he left Dayton I saw him occasionally. He was back and forth there. I knew of his having the smallpox. Elda Jones took care of him that time. Afterwards she kept house for him as long as he stayed on the place. I think he thought more of .her than he did of any of the rest of them. I could not help but think it. I drew that from his general conduct, and from his actions. I was situated so I would have a pretty fair opportunity to know. He always showed a large amount of affection for her, more for her than any of the rest. There was friction or difficulty between the members, growing out of the settlement of the estates. I could not say what it was. I think it affected Clark Jones to some extent. I last saw Clark Jones the morning that he left the home place, some time in December. I don’t remember the date. I was right in the road between the house and the barn when I last saw him. I had a conversation with him prior to .that time. Our conversation was at the barn. He came to me where I was milking. He sought me out and spoke to me. * * * As near as I can remember, Clark Jones at that time told me to tell Elda to take that check that was due in a few days and the timber money, and deposit it in her name so that, if he wanted to get some of it, he could get it a little handier, and she might want to use some of it. That is as near as I can remember what he told me. There was no further conversation there in regard to this property. He wanted me to put in some wood for him at Fremont— cut up some tops out of his timber. When he went down the road, I asked him which way he was going, and he said he didn’t know which way he was going. Those were his last words to me.”

Mrs. Ida M. Newlun testified:

“lam Clark A. Jones’ sister. I live about six miles away. I had not seen him for about three months before he went away. I think that he had more affection for Mrs. Eddy than for any of the rest of us. They had been, together for the last four or five years. * * * I am one of the heirs of his estate. I think he intended to make a gift of the.property to Elda Eddy.”

Fred Reynolds testified:

“ I live in Fremont, and am in the Old State, what was formerly the First Bank. It changed its name in August last year. I knew Clark Jones in his lifetime. I had a conversation with him shortly before he died. It occurred in the bank. He called one day, and asked if we could pay his certificates to anyone by presenting them. I told him we would on his say-so, but the proper way was to have them indorsed, and he made some remark about his sister Elda paying some taxes, and I don’t remember what else. He made some remark about paying his taxes, and I explained to him how he could indorse them to turn them over to anyone, but I don’t think he made any remark at all, and passed out. That is all I know that was said.
“Q. And he had reference to his sister getting the money— Did he make mention that it was his sister that was to draw them ?
“A. No; he just made a remark about how she could draw the money, and as he went out, he made some remark about paying taxes. The certificates were issued by our bank. They were indorsed when they were presented in his name and his handwriting.”

On cross-examination he said:

“He wanted to know if anybody else could draw that money out of the bank on those certificates, and he mentioned that he wanted Elda to pay his taxes. He did not say that he wanted it drawn for that purpose. He wanted to know if she could draw that money, and at the time he mentioned that he wanted to pay some taxes.”

The foregoing is all of the testimony relating to the transaction relied upon to prove a gift. There is testimony in the record of surrounding circumstances, however, which are relied upon as tending strongly to establish an intent upon Clark Jones’ part, to give the property to Mrs. Eddy. There was testimony tending to show that he was partial to her, and on ill terms with most of his other brothers and sisters; that he had suffered a matrimonial disappointment, and had trouble with the township authorities relating to a road; that he had said that life was not worth living a few days before he left; that he had peculiar ways of doing things, and an instance of this kind was stated by defendant:

“He had given me things before this time. When I was going to town he would give me some money.
“Mr. Anderson: I object to that as incompetent and immaterial to show a gift in this case.
“Q. Do you remember of his giving you a calf at one time ?
“A. Yes, sir.
“Q. State how he did that. What was his manner ?
“A. Why, he asked me if I had fed the calf yet, and I supposed— He hadn’t said it was mine, but he kept calling it mine, and he said, ‘ Have you fed your calf ?’ So I got to claiming it, and when he moved away he wanted to know if he should take care of it for me that summer, and I told him yes, and so when it was a cow, he brought it back to me.
“Q. Do you remember one time you were talking about it, and you called his attention to the way he has been talking ?
“A. Yes, sir.
“Q. What was that ?
“A. He said, ‘If I call it yours, can’t you — ’ I can’t use the exact words.
“Q. Do you remember of your saying to him when he spoke of it as your calf that if he kept on calling it yours, you would claim it ?
“A. Something that way.
Q. And what was his answer ?
“A. He said if he called it mine, I could — or something. He calculated it was mine, or something like it.
I don’t remember.
“Q. And you called it yours ?
“A. Yes, sir; that was his mode of doing it. He was very peculiar.”

This testimony was objected to. At the time he left he sent the following letter to his brother Judd, of whom he was fond:

“ Fremont, Michigan, 12/19-05.
“Well, Judd, I could not do anything with the board, so I wish you would sell off the stock and stuff and get all you can for it and take pay for your trouble out of the proceeds. Let Earl take the plane, square, saws, pincers, hammer, chains, bit stock and bits until I call for them. I am looking for another location. You can fence up the road and do what you think best with the farm.
“ Clark A. Jones.”

William Taylor, a blacksmith, testified:

“I live in Fremont, and am a blacksmith. I knew Clark A. Jones in his lifetime. I saw him a great many times at my shop. I had a conversation with him at one time in regard to himself and his family. I should judge it was in November before he went away. I cannot tell how long it was before he went away. The nearest I can come to it, he came there about ironing a pair of bobs. I should judge it was in November, maybe in October, possibly. He said he thought there was difference in the family. He seemed to think they could not agree on anything, any one of them. He was complaining about it. He had some trouble with the township or something. I understood it to be at Troy, I think about the road. He said he had bought it. At some time there was a road running past the place. I guess he didn’t like it, and I don’t believe it was really intended to be there, and he bought it, and he opened it. He paid them $100 for it, and after they took his money, they were about to back out on it and wanted him to take his money back. They was going to change the road, what he told me. At that time I didn’t think it had been settled against him. It was still under discussion, the way I understood it. He showed some feeling in regard to it, and didn’t seem to like it. He seemed to think he would rather have the road than the money. He didn’t like the idea of their giving the money back. There was quite a little talk about that, and about dividing some of the property that he could not divide. That seemed to bother him. I asked him some questions, and he told me a good many things. It seemed that there was some young stock, horses and cattle, that he could not divide with his brothers and sisters. He was complaining about that country not being fit to live in, almost out of the world, lonesome. I said, ‘ Why don’t you get married and fix you up a place and build a house ? ’ The answer was that he did not know anybody that would have him. He tried one, and she would not have him. He could not get the lady he wanted. He said, ‘ I don’t know as _ I blame her any for not going up there.’ He said he did not think his life was worth living. He seemed to be depressed quite a little over the three matters and family troubles.”

There is little conflict of testimony in the record. The learned circuit judge held that the proof failed to sustain defendant’s claim, and made a decree for complainant. If we consider the testimony of the defendant, Mrs. Brit-tan, Leland, and Reynolds by itself, disregarding the other circumstances, we shall find it difficult to say that the transaction amounted to a gift. Clark Jones did not intimate to the banker or to his sister or to Earl Leland that he intended to give defendant this property. Apparently he placed it where she could get it, for his use, and incidentally indicated that she might want to use some of it herself. It is doubtful whether he said that she should transfer more than the $600 certificate to her own account, and nothing was said as to his destination or the period of his prospective absence. He indicated an expectation that he might want her to send him some of the money, and that he was fixing his affairs so that she could do so upon request. On the other hand, the succeeding events cast a light upon the transaction which is quite consistent with the defendant’s claim that he intended that she should have the property. In the first place we are impressed with the fairness of the defendant’s conduct throughout this affair. She made no disposition of his property until she learned of his death. She appears to have concealed nothing from others. She advised with counsel and others as to her rights, which she was not overhasty to assert. Her testimony is free from color, though it is not difficult to see where slight changes might have materially strengthened her case. While there is language in itself inconsistent with an intended gift, it is also consistent with a design to take his own life, which intention he did not wish to disclose, and to place his property in her control for her use and ownership, disclosing such intentions as far as he could without arousing suspicions as to his other intentions. The letter to Judd Jones is susceptible of a construction similar to that claimed for the transaction with the defendant. It seems clear that his brothers and sisters were allowed to understand that he was going away for an indefinite period; that he was making no plans for the conduct of his farm. He directed that his tools be delivered to his nephew, till called for, his stock sold with no directions regarding the proceeds, except such as should be required to pay Judd for his trouble, who was to fence up the road, and do what he thought best with the farm. If $100 was coming to him from the board, as may fairly be implied, he does not mention it. He vouchsafes only the explanation “I am looking for a location.” These entire transactions, when read in the light of later events, are suggestive of final disposition, veiled only so far as to him seemed necessary to avoid disclosure of his ulterior designs. Head in the light of these events, the letter to Judd is pathetic in what it omits, as well as in what it contains, and at first blush it may seem that here was such a delivery from the donor to the donee as would place the property within the dominion and control of the latter, with intent to transfer the title. Gray v. Barton, 55 N. Y. 72.

We recognize the rule that, in order to constitute a valid gift,

“ There must be a delivery, actual or symbolical, of the subject-matter, unless it is already in the possession of the donee, with an intent on the part of the donor to presently divest himself of all title and dominion over the same, and an acceptance by the donee.”

The intent may be deduced from all the circumstances. From the language used alone we would not say that an unconditional gift was intended, but when viewed in the light of his contemporary and subsequent acts, it may reasonably be inferred that it was his intention to give this property to his sister and to take his own life. Had he immediately committed suicide, it would be a very natural conclusion. But it requires more than an intention to make a gift. It would require no stretch of imagination to infer an intention that the defendant should become the owner of this property after his death if not called for earlier, but this would be inconsistent with the theory of a present gift, and though he may have intended never to call for it, the fact that his language implied a reservation of the right to do so precludes the conclusion that he made a valid gift. The language used reserved the right to call for this property, and if it could otherwise be considered a gift, the right to revoke it, being reserved, would be fatal to it. Not only does the language clearly imply the reservation of this right, but the defendant evidently so understood it, and would have recognized the right had he sought to exercise it. In fact it appears pretty conclusively that she had no suspicion that she was the recipient of a gift, in the legal sense, previous to her brother’s suicide. This is implied by her conduct, and is inferable from her testimony. Having reached the conclusion that the defendant’s claim cannot be sustained, some other questions demand attention.

Jurisdiction. It is contended that the bill should be dismissed, for the reason that there was an adequate remedy at law, and it is said that the case is one peculiarly adapted to trial by jury. We are of the opinion that equity has jurisdiction in this case, first, to declare that the property received was a trust fund, and to follow the fund and enforce payment against property purchased by it; second, to restrain by injunction the further disposition of the unexpended portion of the property. We are not impressed with the importance of a jury to decide any question in the case. A chancellor can do it as well. Where the jurisdiction of equity is clear, as in this case, there is no obligation to send questions of fact to the jury, and if it be thought expedient to do so, it should be by sending an issue to a jury, and not by dismissing the bill upon the hearing.

Interest. We are of the opinion that interest should be allowed only from the date of a demand made by the administrator upon her for the property.

Lien. We cannot sustain the decree in its provision that the same shall be a lien upon defendant’s homestead. We think that the same may well be decreed to constitute a lien upon the personal property purchased by the fund, and the sum invested in buildings and improvements upon the land should be a lien thereon, exclusive, however, of defendant’s homestead rights therein; such sums to be determined on the settling of decree.

In all other respects than as hereinbefore indicated, the decree will he affirmed. Neither party will recover costs of this court.

Grant, C. J., and Montgomery and Ostrander, JJ., concurred with Hooker, J.

Blair, J.

(dissenting). Complainant filed his bill of complaint as administrator of the estate of Clark A. Jones, deceased, charging, briefly, as follows: That Jones died on or about January 21, 1906, at Shreveport, La., and that he was at that time a resident of Newaygo county. That at the time of his death Jones was the owner of two certificates of deposit issued by the First Bank of Fremont, one for $600, and the other for $1,800, two promissory notes, one for $51, made by Jake Rozema, and the other for $80, made by Charles Emmons, and also an account of $30.29 for timber which he had sold. That previous to his death Jones had kept his valuable papers in a safe in the home of defendant, who was his sister, and that upon going to Louisiana shortly prior to his death, he left said certificates of deposit and promissory notes in the safe, in accordance with his custom, and that shortly after his departure, defendant obtained the money on the two certificates of deposit, depositing such money in the same bank, and that she converted all of the property mentioned to her own use. Defendant’s answer practically admits the foregoing allegations, except that she claims that Jones gave her the property referred to shortly before his departure. That defendant used the moneys in question in purchasing a piece of land described, in Newaygo county, and in building a barn and making other improvements thereon, and she admits that she used a part of the money in building the barn and making improvements on the land referred to, and does not deny that she converted all of the property to her own use. That complainant demanded the property in question as a part of the estate of Clark A. Jones, and that Mrs. Eddy refused to turn- over any portion of the property, averring that she, in good faith, claims the property as her own, and relying upon a gift of the same to her by her brother. The safe in which the papers were kept belonged to defendant, and she alone had a key thereto. The case was heard in open court, and a decree was made holding with complainant, and granting him the relief prayed for, and making the amount which was found to be due to the complainant a lien upon the land referred to, and the personal property thereon which had been bought with some of the moneys mentioned. Defendant appeals from this decree.

Clark A. Jones in his lifetime lived at Troy, about 16 miles north of defendant’s home. He was a bachelor, and owned and cultivated the place where he lived, and was keeping house by himself at the time he went away. The record shows, as we think, that he was a peculiar man, not possessed of the will power of the average normal man, and with a tendency to be disturbed by trifles, and towards a melancholic frame of mind. We are also satisfied from the evidence that he thought more of his sister, the defendant, than of any other member of his family, and that he had trouble with some of the others. He came to defendant’s house the night of the 18th of December, and went away the morning of the 19th. Prior to going away, as defendant testified:

“ He asked me to open the safe so that he could fix the money so that I could get it. I opened the safe. I did not take out the papers myself. I knew they were there. He went to the safe and took the papers. I didn’t see him indorse them. I found them there that morning that he went away. It was that morning that he asked me to open the safe. After he left I found them there, and they had his indorsement on each one of them, the certificates and the notes. After he went out of the house he went to the barn. He asked me if my nephew had come in from the barn, and I told him no, and he went to the barn. I don’t know of my own knowledge that he talked with my nephew. * * * My nephew said that Clark said for me to deposit the money in my own name so that I could have the same to use, and it would be handy for him to use when he was up North to send him some. I was not married at that time. I was living in the old homestead, and had lived there all my life. My father and mother were both dead. Their estates were partially administered. He left, besides these certificates and notes and an account for lumber, another paper. This is the paper written on the back of a receipt.

“Mr. Anderson: I object to the introduction of the paper.

“That is my brother’s signature and his handwriting. I found that the morning that he went away. I had possession of the safe, and had given my brother permission to put the things there, and they were all left in my possession. The paper is directed to Mr. A. O. White. He was the administrator of father’s and mother’s estate at the time. There was something still unpaid to the heirs in his possession. * * * The paper was offered in evidence, and marked ‘ Exhibit Dl,’ and reads as follows:

“ ‘ Mr. A. O. White,
‘“Please pay my share of the estates to Elda A. Jones, and oblige,
“ ‘Clabk A. Jones.’

“ In accordance with my nephew’s report to me, I took the certificates to the bank, they being indorsed, and had them put in my name. I did that, in good faith, believing that my brother designed that I should do it, and that I had a right to use them. I collected the interest on the notes, but not the principal. I renewed only one note. * * *

“ My brother died in Shreveport, and my brother-in-law went after the body. He died in lodging rooms there, and a bottle that had carbolic acid in was found near him. At the time it had the appearance of his having taken carbolic acid. He was not married. He had a disappointment, I think, some short time before he left. There was a lady in the county whom he desired to marry. She married someone else. I don’t know whether he ever proposed to her or not. * * *

“Q. Earl Leland told you, did he not, that Clark said: ‘ Take that $600 certificate and deposit it in the bank in your own name so that he might get money from you handy in case he wanted it ? Isn’t that so ?

“A. He said I might want some to use, and it would be handy for him when he was up North.

“Q. So that you could send it to him ?

“A. I think so; yes. He didn’t say anything about promissory notes, nor about the $1,800 certificate. * * * [Counsel shows witness a paper.] I recognize the writing. It is Clark A. Jones’. It is his signature. The paper was offered and received in evidence, and marked ‘ Exhibit C2.’ It is as follows:

“‘Fremont, Michigan, 12-19-05.
“ ‘Well Judd, I could not do anything with the board, so I wish you would sell off the stock and stuff and get all you can for it and take pay for your trouble out of the proceeds. Let Earl take the plane, square, saws, pincers, hammer, chains, bit stock and bits until I call for them. I am looking for another location. You can fence up the road and do what you think best with the farm.
“ ‘ Clark A. Jones.’

“Judd is my brother Judson Jones. * * * I think I told my brothers and sisters, in talking with them, that I wished I knew for sure whether Clark intended the money for me or not, so that they would be satisfied. I am satisfied in my mind. * * * Mr. Mansfield, my brother-in-law, went after my brother’s body, and returned with it. He brought this book. He said he found it, or they gave it to him down there where he was, and he said it was stuck in back of the door-casing in the room occupied by my brother. The writing in it was my brother’s handwriting. The book referred to was marked ‘Exhibit D4,’and the writing was read in evidence, as follows: ‘Tell them that I died with a broken heart.’ There had been more or less friction and trouble in our family with regard to these other estates. There had been some difference between Clark Jones and the other brothers and sisters.”

The nephew, Earl Leland, testified :

“I last saw Clark Jones the morning that he left the home place, some time in December. I don’t remember the date. I was right in the road between the house and the barn when I last saw him. I had a conversation with him prior to that time. Our conversation was at the barn. He came to me where I was milking. He sought me out and spoke to me. * * * As near as I can remember, Clark Jones at that time told me to tell Elda to take that check that was due in a few days and the timber money, and deposit it in her name so that, if he wanted to get some of it, he could get it a little handier, and she might want to use some of it. That is as near as I can remember what he told me. There was no further conversation there in regard to this property. He wanted me to put in some wood for him at Fremont — cut up some tops out of his timber. When he went down the road I asked him which .way he was going, and he said he didn’t know which way he was going. Those were his last words to me. * * * In his conversation he spoke that he would want to send down when he was up North so that if he wanted some he could have her get it and send it to him. The money then was in the bank in his name. * * * [The witness is shown letter (Exhibit C2).] I think I have seen that letter. I am the ‘ Earl ’ that is mentioned there. Clark did not say anything to me about this. I think this was written the day he left. I saw it before his death.”

A sister, Mrs. Brittan, testified as to the conversation in the house:

“He says: ‘You open the safe, and I will fix that so you can get the money, and then you can — ’ I am under oath, and I want to be pretty careful in what I am saying here — he says: ‘ I will fix this so that you can get the money to pay my taxes, and you might want to use some.’ That is the substance of what he said, as near as I recall it now.”

Mr. Reynolds, cashier of a bank in Fremont, testified:

“ I had a conversation with him shortly before he died. It occurred in the bank. He called one day, and asked if we could pay his certificates to anyone by presenting them. I told him we would on his say-so, but the proper way was to have them indorsed, and he made some remark about his sister Elda paying some taxes, and I don’t remember what else. He made some remark about paying his taxes, and I explained to him how he could indorse them to turn them over to anyone, but I don’t think he made any remark at all, and passed out. That is all I know that was said.
“Q. And he had reference to his sister getting the money ? Did he make mention that it was his sister that was to draw them ?
“A. No; he just made a remark about how she could draw the money, and as he went out, he made some remark about paying taxes. The certificates were issued by our bank. They were indorsed when they were presented, in his name and his handwriting.
“Mr. Anderson: No question about that.
“Clark Jones has had money in the bank for a long time. It was represented by those certificates of deposit. There was one certificate of deposit for $600, dated December 21, 1904, No. 22,456. It was paid in December, 1905. I cannot say to whom it was paid. I think Mrs. Eddy presented both of these certificates. One of them is dated April 12, 1905, No. 23,227, for $1,800, paid December, 1905. Those certificates represented money that he had had in the bank for a long time. They would be renewed each year. He would come and collect the interest on them each year and get a new certificate. The last time that they were renewed would give those dates. He had had the money in the bank for several years. He wanted to know if anybody else could draw that money out of the bank on those certificates, and he mentioned that he wanted Elda to pay his taxes. He did not say that he wanted it drawn for that purpose. He wanted to know if she could draw that money, and at the time he mentioned that he wanted to pay some taxes.”

William Taylor testified:

“I live in Fremont, and am a blacksmith. I knew Clark A. Jones in his lifetime. I saw him a great many times at my shop. I had a conversation with him at one time in regard to himself and his family. I should judge it was in November, before he went away. I cannot tell how long it was before he went away. The nearest I can come to it, he came there about ironing a pair of bobs, I should judge it was in November, maybe October, possibly. He said he thought there was difference in the family. He seemed to think they could not agree on anything, any one of them. He was complaining about it. He had some trouble with the township, or something — I understood it to be at Troy — I think, about the road. He said that he had bought it. At some time there was a road running past the place. I guess he didn’t like it, and I don’t believe it was really intended to be there, and he bought it, and he opened it. He paid them $100 for it, and after they took his money they were about to back out on it, and wanted him to take his money back. They was going to change the road, what he told me. At that time I didn’t think it had been settled against him. It was still under discussion, the way I understood it. He showed some feeling in regard to it, and didn’t seem to like it. He seemed to think he would rather have the road than the money. He didn’t like the idea of their giving the money back. There was quite a little talk about that, and about dividing some of the property that he could not divide. That seemed to bother him. I asked him some questions, and he told me a good many things. It seems that there was some young stock, horses and cattle, that he could not divide with his brothers and sisters. He was complaining about that country not being fit to live in, almost out of the world, lonesome. I said: c Why don’t you get married, and fix you up a place and build a house ?’ The answer was that he did not know anybody that would have him. He tried one, and she would not have him. He could not get the lady he wanted. He said: ‘ I don’t know as I blame her any for not going up there.’ He said he did not think his life was worth living. He seemed to be depressed quite a little over the three matters and family troubles.”

Adelbert Mansfield, a witness for complainant, and husband of a sister of decedent, testified, as follows:

“ I went for the body, and I brought back ‘Exhibit C3,’ this book. A bottle of carbolic acid was found.
Q. And he had taken it ?
“A. Well, that was a question whether he took it or not. It is supposed lie did. The empty bottle was found in the room. There were marks on him to indicate that he had taken it, and that was the only way that they could account for his death.”

Complainant called defendant as a witness, and questioned her fully about the certificates and notes, except as to her conversation with decedent, and she had been examined in the probate court upon written interrogatories, and had testified substantially as in this case. Under such circumstances we think her testimony was admissible. Fox v. Barrett’s Estate, 117 Mich. 162.

The principal question for our determination is whether, under the circumstances, decedent made a gift of the certificates and notes to Mrs. Eddy. The answer to this question must depend largely upon our determination as to the intention with which he indorsed the certificates and notes. It seems clear from the testimony that there was a delivery of the certificates and notes for some purpose, either to Mrs. Eddy, in trust, to hold for the benefit of her brother, or to her absolutely for her own property. If the language used by decedent is to be taken at its face value, then the delivery was manifestly in trust and without an intention to part with the right of disposal of it. If, however, the intention, notwithstanding the language used, was to put the ownership in Mrs. Eddy, then she is entitled to hold the property. The indorsement of the certificates and notes and the delivery to Mrs. Eddy, if nothing had been said at all to qualify the act, would have vested the title in her. State Bank of Croswell v. Johnson, 151 Mich. 588.

In determining whether his intention was expressed by his words or otherwise, it is necessary to consider all the circumstances of the case. The amount of the taxes, as appears from the record, was some $6 or $7, and it seems unreasonable to suppose that Mr. Jones was indorsing certificates of deposit, amounting to $2,400, and notes and a timber claim, for the purpose of enabling his sister to pay his taxes. It seems equally unreasonable to suppose that he turned this amount of property over to her for the wholly unnecessary purpose of sending money to him at his place 16 miles north. It becomes still more unreasonable, when we find from his letter that he did not intend to go back North, but intended to change his location, and from his statement to his nephew — the last words that he said — that he did not know where he was going. On the other hand, it appears altogether reasonable that, if decedent had arrived at that desperate state of mind where he intended to take his own life, he would have endeavored to conceal this intention from his sister, and upon this view the language used becomes at once consistent with his subsequent acts. His peculiar character, his conversation with the blacksmith, the reason assigned for his suicide, that he died of a broken heart — a condition which would not arise within a brief period — the giving of his interest in the two estates to his sister, the letter which he wrote to his brother Judd, and all the facts surrounding the case, viewed in the light of the culminating tragedy, leave no doubt whatever in my mind that at the time decedent indorsed these notes and certificates he fully intended to give them absolutely to his sister, and went to his death with the belief that he had accomplished his purpose.

The decree should be reversed, with costs of both courts to defendant.

Moore and McAlvay, JJ., concurred with Blair, J.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    PEOPLE, for use of KROENKE, v. TITLE GUARANTY & TRUST CO.
    Mechanics’ Liens — Public Buildings — Contractor’s Bond — Materialmen — Subcontractors—Eneoroement oe Bond.
    In an action on a bond given by the contractor for the erection of a high school building under sections 10743-10745, 3 Comp. Laws, evidence examined, and held, that plaintiff was a materialman, and not a subcontractor, and was therefore entitled to recover on the bond.
    Error to Washtenaw; Kinne, J.
    Submitted October 8, 1908.
    (Docket No. 6.)
    Decided November 30, 1908.
    Assumpsit by the People of the State of Michigan, for the use and benefit of August Kroenke, Paul Schlesner, and Albert Haeger, copartners as the Badger Wire & Iron Works, against Edwin M. Campfield and the Title Guaranty & Trust Company, upon a statutory bond. There was judgment for plaintiff on a verdict directed by the court, and defendant company brings error.
    Affirmed.
    Graves, Hatch & Wasey, for appellant.

      J. W. Bennett, for appellee.
   Blair, J.

This is a suit brought upon a contractor’s bond given under the provisions of sections 10743-10745, 3 Comp. Laws, for the value of certain lockers furnished by the plaintiffs, the Badger Wire & Iron Works, of Milwaukee, Wis., to Edwin M. Campfield, the contractor for the erection of a high school building at Ann Arbor, Mich. Defendant Campfield, the contractor, was not served with process, and did not appear, and the suit is defended by his surety on the bond, the Title Guaranty & Trust Company.

The sole question before the court below and this court is whether or not plaintiffs were materialmen or subcontractors. At the conclusion of plaintiffs’ case, defendant moved the court to direct a verdict for defendant, on the ground that plaintiffs were subcontractors, and not materialmen. The motion was denied and defendant excepted. This is the basis of the first assignment. Defendant offered no testimony, but agalin, raised the same question by presenting three requests to charge. The requests were refused, and defendant excepted, and the other assignments cover this refusal and the action of the court in directing a verdict for the plaintiffs.

Negotiations between plaintiffs and contractor Camp-field began with a letter dated February 8th, which, with the inclosed specifications, was as follows:

“Ann Arbor, Mich., Feb. 8, 1906. “Badger Wire & Iron Works,
“Milwaukee, Wis.
“G-entlemen: Please find inclosed specification and floor plan of lockers, which we need for the High School and Library Buildings at Ann Arbor, Michigan. Quote me your lowest price on the same, to be delivered when ordered, this coming spring or early summer, f. o. b. cars Ann Arbor.
“Yours truly,
“E. M. Campeield.
“ Lockers. Double tier lockers to be furnished and set up complete where indicated in boys’ and girls’ locker rooms on ground plan. All to be made of standard steel with reinforcing frames and vent perforations in doors as directed and heavy wrought-hinges and master keyed rim locks. To he constructed in stacks as shown and with vent duct as detailed formed in corner of every four lockers and arranged for connection to forced draft system of building. Each locker to be inside. Each
to be fitted with one double ceiling and two double side hooks and long hat hook on back of door. Double hook coat poles for upper lockers. All to be of standard enamel finish inside and outside and left perfect and complete in place by this contractor.”

In reply to this letter, plaintiffs wrote on February IS, 1906, in part, as follows:

“Before quoting on this contract, we should like further information in reference to the vent ducts called for. We notice that details of these are mentioned in the specifications and would like you to forward these details so we may know just what is required. * * * From the specifications we gather that lockers the same as shown on the double page illustration in the booklet inclosed herewith will be wanted. We give you below a description of the material we would propose to use, and in your reply kindly indicate in what respect, if any, changes aire advisable, which will then be used as the. basis for the quotation we will make you. * * * On receipt of particulars as to the vent ducts and your approval of the material we propose using or suggestions of changes in reference to same, we shall be glad to advise you fully as to price.”

To the letter of February 13th Campfield replied on March 3d :

“We have no detail except the arrangement as sent you. * * * All we want is what will fill the specifications at cheapest cost, but, of course, must be good and all right.”

Negotiations, having been abandoned in March, 1906, were resumed in July following by the following letter from Campfield:

“ E. M. Campfield,
“ Builder, Manufacturer, etc.
“ Ann Arbor, Mich., July 23, 1906. “Badger Wire & Iron Works,
“Milwaukee, Wisconsin.
Gentlemen: Some time since you quoted us the prices on 548 lockers. We were not in need of the lockers at that time, and want to place an order this week for the same, and kindly ask you to quote us the price on the same, according to the specifications that you had at that time, except the hardware. We wish the prices on the lockers with and without the hardware trimmings. Awaiting your early reply, I am,
“Yours truly,
“E. M. Campfield.”

To this letter plaintiffs replied July 31,1906, as follows:

“E. M. Campeield,
“Ann Arbor, Mich.
Dear Sir: Replying to your letter of the 23d inst., we confirm our quotation of March 13th to furnish 548 lockers or compartments, each to measure 12/yxl2"x42tf inside and arranged in double height, and as shown in the sketch sent us some time ago, at net fifteen hundred dollars ($1,500.00) knocked down and on board cars at Ann Arbor, including a 6" length of pipe at points indicated on the sketch referred to. The lockers will be of the style as shown on pages 6 and 7 of the inclosed booklet. They will be constructed entirely of No. 20 U. S. S. Gauge sheet steel in i"x%Jxl¡'J steel angle frames. The doors will be fitted with rim locks of standard make, without duplicate, two keys to be furnished for each lock, also a master-key that will operate all locks. Each compartment will be fitted with one double ceiling and two side hooks and hat hook on back of each door. Double coat-hook poles will be furnished for the upper tier of lockers. The finish will be black japan baked. Replying to the inquiry in your letter of July 23rd, we will make allowances as stated below in case we will not be obliged to furnish the items mentioned. A deduction of the amount set opposite the items specified below may be made in case that item is not
wanted.
“Double ceiling hooks................ $30 00
Side hooks ......... 45 00
Coat poles............ 30 00
Looks................. ...225 00
Number plates...................... 20 00
“We should require about 60 days’ time to execute an order for this quantity of lockers. If you do not fully understand our proposition, kindly advise and we shall then be pleased to give you such additional information as you ' may require. We are,
“Yours very truly,
“Badger Wire & Iron Works.”

August 11th Campfield wrote plaintiffs:

“You may place my order for the lockers in question as per quotations without the hardware, that you named prices thereon, all to be as your quotations and as per your plans and specifications as have been furnished you regarding the hardware.”

August 15th plaintiffs replied, saying at the close of their letter:

“ In order that we may have no further misunderstanding regarding this contract, kindly state in your reply whether the specifications as given in our letter of the 31st ult. are approved in every particular. If not, kindly state definitely in what respect same are not satisfactory, and, if any suggestions you may make will involve additional expense, we shall then advise as to amount of same. We would prefer not to have the contract at all if there is later to be any dispute or trouble regarding it.”

In response to the last-mentioned letter, Campfield wrote on August 17th as follows:

“We have your favor of Aug. 15th to hand, and in reply will say that you may place our order for the lockers, as per your letter of the 15th inst. With regards to the hardware, such as you mention in your letter, will say that we wish you to have holes bored, and do all necessary punching, so that it may be made ready for the reception of the hardware when it is furnished by the board of education there at your factory, or at the building. Further will say that we cannot see where there will be any chance for controversy.”

Plaintiff Haeger testified:

' “I never at any time received from Mr. Campfield any plans or specifications other than the paper attached to the letter that was sent to me. We did not follow those plans and specifications in manufacturing the lockers. * * * We could not make a locker by those specifications. The material is not specified, and we would have to guess at some of it. * * *
“Q. They had an arrangement for vent duct in the corner of every four lockers ?
“A. No; that vent duct is a long tube. They had a tube from the bottom to the floor. That had nothing to do with that.
”Q. There was an arrangement for a vent to go to every four corners, was there not ?
“A. No, sir.
liQ. What kind of frames did they have ?
“A. Steel angles 3£x3ix£ steel angles which were not called for.
“Q. They had enameled finish, didn’t they ?
“A. They were japanned.
“Q. That is enameled?
“A. Not what is regularly understood to be enameled; that is japanned.
“Q. Is not that enamel ? .
“JL That depends. Broadly speaking it is, but as a definite proposition it is not. If you say enameled in a general way, it includes this, but that is not called enamel.
“Q. Japan is a kind of enamel ?
“JL Enamel is something different from japan.
“Q. I ask whether black japan is not a kind of enamel ?
“JL I would not say it is.”

We are of the opinion that the court did not err in directing a verdict for plaintiffs. Tried by the test approved of in People, for use of Davis, v. Campfield, 150 Mich. 675, and People, for use of Reynolds, v. Banhagel, 151 Mich. 40, plaintiffs never agreed that the original contract of the board of education with Campfield should be the standard by which the performance of their contract should be judged. They prescribed their own standard in their letter of July 31st, which was accepted by Mr. Campfield. The original contract was indefinite and lacking in, details, for which plaintiffs substituted their own definite proposition to furnish to Campfield the lockers as specified by them, leaving him to- take his chances with the board of education. Contractor Camp-field evidently had this understanding of their relations, as evidenced by his letter of December 3, 1906, in which he said:

• “We beg to advise you that we must complete our conr tract here at Ann Arbor, which you are furnishing material for, not later than Jan. 1st, 1907.”

Judgment affirmed.

Grant, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


text:
    SAGINAW MILLING CO. v. MOWER.
    1. Statute of Frauds — Original or Collateral Promise — Evidence-Sufficiency.
    In an action for the price of goods delivered to the tenant on defendant’s farm, after plaintiff’s agent had a conversation by telephone with defendant, evidence examined, and held, to raise a question for the jury whether defendant’s promise was an original promise or a collateral undertaking required by section 9515, 3 Comp. Laws, to be in writing.
    2. Same — Evidence—Writings—Plaintiff’s Books — Collusiveness.
    On the issue whether defendant’s promise was original or collateral, plaintiff’s order, books, and letters, showing that the attitude of plaintiff originally was that the promise was collateral, were not conclusive, but were open to the explanation that plaintiff’s agent who took the order, and had the conversation with defendant, unintentionally misdescribed the circumstances, and that plaintiff’s original attitude was based upon such misdescription.
    3. Same — Instructions—Propriety.
    The question presented by conflicting testimony being whether defendant promised to pay in the first instance for goods to be delivered to P., or whether his promise was only to pay in case P. did not, instructions examined, and held, not open to the objection that by them the jury were permitted to find against defendant without finding that the credit was given solely to defendant, and not at all to P.
    4. Appeal and Error — Review—Questions of Fact — Refusal of New Trial.
    A verdict based upon substantial, though conflicting, testimony, which the trial court has refused to set aside as against the weight of the testimony, will not be set aside by this court, though it disagrees with the conclusion of the jury, where to do so would be to disregard the principles announced in Hints v. Railroad Go., 132 Mich. 305.
    Error to Saginaw; Gage (William G.), J.
    Submitted October 9, 1908.
    (Docket No. 14.)
    Decided November 30, 1908.

      Assumpsit by the Saginaw Milling Company against T. Dailey Mower for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brooks & Cook, for appellant.

      Fred W. Newton {Beach, O’Keefe & Bockwith, of counsel), for appellee.
   Blair, J.

This action was originally brought in justice’s court to recover of the defendant the price of certain seeds, for which it was alleged defendant was liable. The defendant, Mower, was the owner of a farm which he had leased to one Peacock by written lease, providing, among other things, that Peacock should furnish all seed, that the title to all crops raised should be in defendant, and that he might retain out of the proceeds of his sales from Peacock’s share the amount of advances made by him, with interest at 6 per cent. Mr. Hubbard, an employé of plaintiff, who made the sale, testified:

“April 5, 1905, Mr. Peacock called at the office, and told me he wanted some seed. He met no one there except myself.
“Q. Did you say anything to him ?
“A. I asked him if he was going to pay for it ‘yourself.’ He said ‘No;’ it was for T. Dailey Mower, to call up upon the phone. * * * I says, ‘ What, is this seed to go on his farm?’ And he says: ‘Yes; it is, and he told me to call you up.’
“Q. Did you have any further talk before you called Mower up ?
“A. I did not. I stepped to the phone and called him up.
“Q. At that time was Mr. Peacock there.
“A. Yes; he stood within three feet of me on the opposite side of the standing desk. * * *
“Q. Tell us what that talk was in reference to furnishing of the seed ?
“A. It took place about noon. The boy at the billing desk had gone to dinner, and I was looking after that desk through the noon hour, and after talking to Mr. Peacock, I stepped to the phone and got Mr. Mower on the phone at his house, and told him Mr. Peacock was there and wanted seed oats, etc., enumerating what he wanted, and told him we didn’t know Mr. Peacock, that he had told us the seed was for Mr. Mower, and that Mr. Mower was to pay for it, and I wanted to be sure before delivering it to him. He says: ‘You can give him the seed, and, if he don’t pay for it, I will.’ I says: ‘ That’s not it. He says the seed is for you, and you will pay for it.’ And he says: ‘ I will pay for it, and I will confirm the conversation in writing if you wish.’ And I says: ‘ We have known you for some years, and it isn’t necessary.’ * * _
_ l‘Q. Look at this bill No. 14,769 [showing witness paper], and state if that was the order which was taken at the time ?
“A. That’s the order made out in my handwriting.
UQ. ‘ Louis A. Peacock ’ is signed on the back of it ?
, “A. Yes; he receipted for it. That is always demanded when delivering goods to any one, but the party to whom it was sold; that the agent or whoever went for it should receipt for it so there would be no question after-wards. * * *
L. Peacock, 4-5-4.
Guaranteed by T. D. Mower. 14,769
F 200 bu. Seed oats........-........... 43......8 86 00
F 25 bu. Seed barley.................. 70------ 17 50
F 10 bu. Tim. seed.................... 1 50 ----- 15 50
8119 00
[Signed] “Louis A. Peacock.”

Defendant Mower testified:

“ He [Peacock] said that he had got to have some seed, oats, barley, and some timothy seed; that he was unacquainted with — he was acquainted with Jerome Bros., and could get it there, but he had to have it, and he hadn’t the money to pay for it; that he had to get it on credit; that he was acquainted with Jerome Bros., and they would let him have it on credit, but they didn’t have what he wanted; that he would have to get it either at Callam’s or the Saginaw Milling Company, and that they were not acquainted with him; and I told him to go to Callam’s or the milling company and have them call me up, and I would advise them in regard to him.
“Q. After that conversation, what did Mr. Peacock do ?
“A. He went away, and in a short time I was called up by phone, and they said it was the Saginaw Milling Company. They said to me that a Mr. Peacock was there, and wanted to by some grain for seed on credit, and ‘ What do you know about him ? ’ I told them that Mr. Peacock was on my farm, that he was thoroughly reliable and honest, and they wanted to know if I would guarantee the account, and I told them I would if they thought it was necessary, but I didn’t think it was necessary because I considered Mr. Peacock thoroughly reliable; and they wanted to know if I would guarantee the account in writing, and I told them ‘Yes,’ to send me an invoice. I never heard anything further from them for six months.
“Q. Did they send you an invoice?
“A. No; I never heard a word from them, either written or verbal, for six months.”

Prior to the litigation, plaintiff treated the original order and the books as stating correctly the legal character of the transaction, as shown by sending Peacock to Mower with a note from him to the company for Mower’s indorsement and by their letters to Mower, of which we quote the following:

“Jan. 39th, ’06. .
“Mr. T. Dailey Mower,
“ Owen St., City.
Dear Sir: Since talking over phone with you a few days since in regard to our account against L. Peacock, we have looked up the original order covering our sale and find that there is a notation on same stating that the account is guaranteed by you. Upon referring the order sheet to our Mr. Hubbard, who made it out, he states that he distinctly remembers calling you on the phone, and asking if you would guarantee the account, as we were unacquainted with Mr. Peacock. He states that you agreed to do this, and under these conditions we allowed Mr. Peacock to have the goods he desired. We do not wish to cause you any inconvenience in the matter, but would ask that you kindly use your influence to get Mr Peacock to take care of the account.
“Yours truly,
“Saginaw Milling Co.,
“ W. H. E. — M. F.” “Cashier.

The court submitted the case to the jury, who found a verdict in favor of plaintiff, overruled defendant’s motion for new trial, and defendant brings the record to this court for review upon writ of error.

As stated by defendant’s counsel:

“On the record only three main questions are presented under which all of the assignments of error will be taken up. These are:
“(1) Was the agreement of the defendant, T. Dailey Mower, as shown by the undisputed testimony, a promise to answer for the debt of another person required to be in writing by section 9515, 3 Comp. Laws ?
“ (2) Was the jury instructed to find for the plaintiff if they found the defendant made the promise claimed by plaintiff’s witness Hubbard, even though that promise was one to answer for the debt of another person ?
“(3) Was the verdict against the weight of the evidence (a) in regard to whether the defendant, T. Dailey Mower, said ‘ I will pay for it’ (the goods) as claimed by Hubbard; (6) in regard to whether credit was given to Peacock ?”

1. It is clear that if the transaction was as stated by Hubbard — that the sole credit was given to Mower and no credit at all given to Peacock — the promise of defendant was an original promise, and the court did not err in refusing to direct a verdict or grant a new trial on the ground that the undisputed testimony showed a collateral undertaking. The original order and the books and letters of the company’s officers and employes were not conclusive of the question, but subject to explanation. Larson v. Jensen, 53 Mich. 427; Taylor-Woolfenden Co. v. Atkinson, 127 Mich. 633; Butters Balt & Lumber Co. v. Vogel, 130 Mich. 33. If the jury credited the testimony of Hubbard and accepted as true his statement of the conversation between him and Mower over the telephone, they might logically find that he unintentionally misdescribed the undertaking of Mower in the original order and the conversation with the cashier, to which the letter quoted referred, and that the attitude of the company was based upon such misdescription.

2. Defendant’s counsel contend:

“The trial court regarded the sole issue in the case to be whether or not T. Dailey Mower told Hubbard he would pay for the goods to be delivered to Peacock. If he did, he was liable even though credit was also given Peacock. This appears in his reasons for denying a new trial on the first and second grounds, and on his refusal to direct a verdict for defendant. This was also his attitude in the charge to the jury.”

We do not think this contention is well founded. The question presented by the conflicting testimony of Hubbard and Mower was whether Mower promised to pay in the first instance for seed to be delivered to Peacock, or whether his promise was only to pay in case Peacock did not. The court charged, in substance, that in the first instance the promise would be an original promise not within the statute of frauds and the credit would be given to Mower, but that in the second instance the promise would be collateral, to answer for the debt of another, and void under the statute, and plaintiff could not recover. Near the close of the charge the court gave defendant’s sixth request, as follows:

“ Under the evidence in this case, you must find by a fair preponderance of the evidence that Mr. Mower told Mr. Hubbard, of the Saginaw Milling Company, that he would pay for whatever goods the Saginaw Milling Company should let Mr. Peacock have on the occasion of the purchase of the goods in April, 1905, and that, relying solely on this promise of Mr. Mower’s, and not extending credit to Mr. Peacock, the Saginaw Milling Company let Mr. Peacock have the goods.”

After giving this request, the court said:

“You will take that in connection with the instructions already given you.”

Defendant’s counsel argue that the effect of the previous instruction was—

“That if Mower made that promise, the credit was given to him alone, and, if he did not. it was given to Peacock. Therefore defendant’s sixth request, when considered with the instructions already given, was nothing more or less than a repetition of the three already quoted, to the effect that, if Mower made the promise claimed, it was an original one, and need not be in writing.”

On the contrary, we are of the opinion that the trial judge intended, and the jury would naturally so understand, that this instruction should be taken as qualifying the previous instructions, and requiring the jury to find that credit was given solely to Mower, and not at all to Peacock.

3. The determination of the essential question of fact in this case, viz., the nature of the agreement made by Mower and Hubbard over the telephone, depended upon the conclusion the jury should reach as- to their credibility. They have accepted Hubbard’s testimony as a reliable and correct statement of facts; and, although we may disagree with their conclusion, we cannot say that it was not based upon substantial testimony, nor invade their province of weighing conflicting testimony by determining that plaintiff’s testimony was so contrary to the weight of the evidence as to justify us in reversing the ruling of the trial judge, viewing his determination in the light of the principles governing our review of his action as stated by us in the case of Hintz v. Railroad Co., 133 Mich. 305.

Judgment affirmed.

Grant, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    CULLEN v. KSIASZKIEWICZ.
    1. Boundaries — Establishment — Agreement — Eppect Upon Subsequent Grantee.
    After complainant and his adjoining owner on the west had agreed upon their boundary and occupied, thereto longer than the period of limitations, defendant, a subsequent grantee of the west 41 feet of complainant’s lot, could not move the western boundary to the eastward by a new survey for the purpose of moving the eastern boundary likewise to com. plainant’s detriment, the western adjoiner making no such claim.
    2. Same — Establishment — Equity — Jurisdiction — Remedy at Law — Ejectment.
    Equity will not entertain a suit for the purpose of determining the boundary between properties where defendant has been in possession and ejectment is open to try the title.
    3. Same — Equity—Retention op Jurisdiction.
    Where there is stated some ground for equity jurisdiction, the mere fact that there is involved in the case a controversy as to the line between two properties will not oust the court of jurisdiction.
    4. Same — Injunction—Continuing Trespass.
    Where a fence erected by complainant along their boundary was torn down by defendant under the claim that complainant was enclosing land which belonged to defendant, equity had jurisdiction of a bill to restrain the continuing trespass, notwithstanding the claim of disputed boundary.
    5. Same — Quieting Title — Bill—Right to Maintain.
    Where complainant never surrendered possession of a disputed strip of land along the boundary between his property and a parcel granted to defendant, and the only possession defendant ever had was under a license granted him to make use of a well thereon, complainant had sufficient possession to authorize him to build a fence along the line, and to maintain a bill to enjoin defendant from interfering therewith; the rule which denies the right to maintain a bill to quiet title to a complainant who has obtained possession by sharp practice not being applicable.

      Appeal from Kent; Wolcott, J.
    Submitted October 9, 1908.
    (Docket No. 18.)
    Decided November 30, 1908.
    Bill by John Cullen against Casimir Ksiaszkiewicz and Rozalia Ksiaszkiewicz to enjoin an interference with a line fence. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles E. Ward, for complainant.

      Everett D. Comstock, for defendants.
   Montgomery, J.

The bill in this case was filed to restrain the defendant from interfering with a line fence between the complainant’s property and defendant’s, and for a mandatory injunction to compel defendant to replace and rebuild a fence torn down by him between the property of complainant and defendant. From a decree for complainant restraining defendant from interfering with complainant’s possession and establishing the line between the two properties of complainant and defendant, the defendant has appealed.

The facts of the case necessary to be stated are that the complainant was for many years the owner ,of lots 1 and 2, of block 5, of Van Burén & Turner’s addition to the city of Grand Rapids; that Mary Blood was the owner of lot 3 adjoining lot 2 on the west. On lot 1 was situated the complainant’s dwelling house. There was also a house located upon lot 2. On the 9th of July, 1900, by a written contract, complainant sold to defendant Casimir Ksiaszkiewicz the west 41 feet of lot 2. Defendants went into possession of said 41 feet. On the easterly portion of lot 2 near the line between lot 2 and lot 1 was a well, and it was agreed by complainant that defendants might make use of this well so long as the parties agreed. It would appear that, when defendant went into possession of this property, the easterly line of the 41 feet was understood by both parties to be 41 feet from the fence on the westerly side of lot 2, and that the occupancy of the remainder of lot 2 up to the line 41 feet from the fence marking the easterly boundary was in complainant, with the exception of -the use of the well, which defendants had. Some disagreement arose between the parties, and complainant determined to build a fence to mark the line between the two properties, which he did. Defendant thereupon entered with force and tore down this fence, and interfered to some extent with complainant’s use of the well. It is thoroughly established by the testimony that the westerly boundary of lot 2, being the easterly boundary of lot 3, was established by agreement between complainant and the owner of lot 3 many years ago, and that for much more than the period of the statute of limitations the complainant has undisputably occupied up to a fence marking this boundary. The defendant sought to show on the trial that this was not the true boundary, but that the boundary was some five feet easterly of this line so marked. No claim to this five feet is made by Mary Blood, the owner of lot 3. We think the case is very clear upon the facts, and that the defendant is not either legally or equitably entitled to shift the line as marked by the owner of lots 2 and 3 by a new survey after the line has become so fixed by agreement and occupancy.

It is earnestly contended, however, that complainant is mistaken in his remedy, and cases are cited which hold that a court of equity will not entertain a suit for the purpose of determining the boundary between properties. Where the possession has been in the defendant, and ejectment is open to try the title, this is the undoubted rule, and the cases cited by defendant fully sustain that contention. Wykes v. Ringleberg, 49 Mich. 567; Kilgannon v. Jenkinson, 51 Mich. 242; Dolan v. Smith, 147 Mich. 276. But as we have frequently held, where there is stated some ground for equity jurisdiction, the mere fact that there is involved in the case a controversy as to the line between two properties will not oust the court of jurisdiction. Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331; Campbell v. Kent Circuit Judge, 111 Mich. 575; F. H. Wolf Brick Co. v. Lonyo 132 Mich. 162; Rhoades v. McNamara, 135 Mich. 644.

As already indicated in this ease, the possession of this disputed strip was in complainant at the time of the sale to the defendant. It never was surrendered to the defendant. The complainant was within his rights in building the line fence between the properties. The defendant committed a trespass in tearing down the fence. The bill was filed to restrain the defendant from continuing such acts of trespass. The case in this respect is very similar to F. H. Wolf Brick Co. v. Lonyo, supra, where a bill was filed to restrain the defendant from removing a line fence. The court below in that case did not find that complainant was not in possession, but dismissed the bill on the ground that there was a dispute as to the boundary line which should be tried in a suit at law. It was said:

“ That complainant was in possession * * * when defendant commenced to remove the fence is clearly established by the evidence. It, being in possession, could not bring an action of ejectment.”

It was further said:

“Complainant was under no obligation to stand by, see the defendant build the fence upon another line, and then bring an action of ejectment. Defendant could not prevent complainant from maintaining this action by the removal of a small portion of the fence. It invoked the aid of the court to restrain this unjustifiable action on the part of the defendant as soon as it learned that he had commenced such removal. It moved seasonably.”

So in the present case. The complainant acted promptly, as soon as the attempt was made to remove the fence which he had constructed.

It is insisted, however, that complainant erected this fence forcibly, and it was only permitted to stand for two days when defendant tore it down, and that, therefore, the statute authorizing a person in possession to file a bill to quiet title was not intended to reach such a case, where

a party acquires possession by sharp practice; citing Stetson v. Cook, 39 Mich. 755, and cases which have followed the holding in that case, including Rubert v. Brayton, 82 Mich. 632; If the sole possession which complainant had was that acquired during these two days, there might be force in this contention. But it is apparent from this record that complainant never surrendered possession of this five-foot strip, that the only possession which defendant had was that under the license granted him to make use of this well, and in this respect the case is much like Rhoades v. McNamara, 135 Mich. 644. In that case complainant gave to one Tallman a license to construct a roadway across his land and to draw certain timber belonging to him, and, after this timber was drawn, defendant, contrary to the objection of complainant, drew over said roadway timber belonging to himself, and persisted in so using said roadway, and a bill was filed to obtain an injunction restraining him from such use and for compensation for the damage. The bill was sustained on the ground that he had a right to have this continuing trespass stopped by injunction; citing Wilmarth v. Woodcock, Campbell v. Kent Circuit Judge, and F. H. Wolf Brick Co. v. Lonyo, supra. We think the circuit judge committed no error in holding that the court had jurisdiction of the case.

The decree of the court below is affirmed, with costs.

Grant, C. J., and Blair, Ostrander, and Mo Alta v, JJ., concurred.


author: Moore, J.

text:
    KRAMER v. SCHULTE.
    Judgments — Equitable Relief — Justice's Judgment — Diligence —Sufficiency.
    A bill to restrain the enforcement of a justice’s judgment ren- ■ dered by default, which states that after appearance complainant entrusted the management of the case to his attorney, and upon information and belief that the attorney was mistaken as to the date of the adjournment, states no case for equitable relief.
    Appeal from Wayne; Donovan, J.
    Submitted October 13, 1908.
    (Docket No. 40.)
    Decided November 30, 1908.
    Bill by George E. Kramer against Caspar H. Schulte to restrain the collection of a judgment. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      James J. McCann, for complainant.

      Daniel P. Cassidy, for defendant.
   Moore, J.

The bill in this cause is filed to restrain the collection of a judgment alleged to have been obtained by fraud and improper conduct on the part of defendant, and because it is unconscionable. Amendments to the bill of complaint were offered later, and for the purposes of this case we shall treat the bill as though amended. A demurrer was interposed and sustained. The demurrer is based upon the claim that the bill of complaint does not show that complainant had no opportunity to make his defense to said suit, or that he was prevented from making his defense by accident, or by fraud or improper conduct of defendant, and that complainant was without fault on his own part, and for the further reason that said judgment was legally rendered after due service of the summons issued therein; that complainant was represented by counsel and duly appeared, and procured several adjournments, and no appeal was taken. The bill avers that on October 31, 1906, Caspar H. Schulte began a suit before a justice of the peace against the complainant, by summons; that on the return day of the summons both plaintiff and defendant appeared by their attorneys; that defendant therein also appeared personally, and thereafter the defendant left the conduct of his case entirely with his attorney; that said .cause was adjourned from time to time, until January 10, 1907, when a judgment by default was rendered against defendant; that defendant, Kramer, called on his attorney during the progress of the suit, and was assured by him that everything was all right, and that the attorney would notify defendant when to appear for trial; that a transcript of said judgment was filed in the circuit court on-March 25, 1907, an execution issued and a levy made on certain property belonging to the defendant. The bill of complaint sets forth that complainant did not learn of the judgment until April 1, 1907, when he called on his attorney, and was informed that a judgment was rendered on January 10, 1907. It further avers that about April 6, 1907, complainant filed a petition in the circuit court for leave to appeal from said judgment, which petition was denied on June 10, 1907. The amendment adds:

“And your orator avers that he depended entirely upon the said promise of his attorney that he would give your orator notice when to appear for trial of said cause, and that your orator never received any notice or information from his said attorney concerning said suit, or anything else until about April 1, 1907, nor any,information concerning said suit from any other source until about said April 1, 1907; and your orator avers, upon information and belief, that his said attorney’s nonappearance in said justice’s court when said judgment was taken was due to a mistake on his part as to the time to which said cause was last adjourned; that said defendant is a brother-in-law of your orator, and all the time said suit was pending, and ever since, has lived near your orator, and frequently saw your orator during the time said suit was pending, and up to said April 1, 1907, and purposely and fraudulently concealed from your orator the fact of his taking said judgment, and purposely and fraudulently made no effort to collect said judgment until a considerable time after the taking of said judgment in order that he might be able to make your orator appear as negligent of, and sleeping on, his rights so that a court of equity would not grant him relief when your orator discovered the fraud consummated by said defendant by the taking of said judgment, and your orator avers that so many adjournments were requested and had by said defendant in order that he might catch your orator, or his attorney, off his guard, in which he eventually succeeded.”

It will be observed that the statement of the reason of the nonappearance of his attorney is made upon information and belief. While the bill of complaint states that the plaintiff in the suit in justice’s court frequently saw complainant, and that he purposely and fraudulently concealed the fact that he had taken judgment, it does not appear that any inquiry was made of him by complainant, or that he misled the complainant in any way. Stripped of all its verbiage, the bill shows that a suit in justice’s court was commenced against him October 31, 1906; that judgment was taken therein January 10, 1907; that a transcript was taken to the circuit court March 25, 1907; that he learned of the situation April 1, 1907; that he sought to take a dilatory appeal April 6, 1907, which was denied him June 10, 1907, and the following day this bill was filed. The only excuse given why the attorney did not appear in the case in justice’s court is the statement of the complainant, made upon information and belief, that the attorney was mistaken as to the date of the adjournment. The circuit judge on the hearing on the application for a dilatory appeal, for some reason which does not appear, denied the application. It is not shown, except by hearsay, that the attorney mistook the adjourn day. To say the least, the complainant gave very little attention to the suit at law brought against him. He had ample opportunity, in a court of law, to have his differenees with his brother-in-law settled by a jury. The case made by the bill is not such a one as calls for the interference of a court of equity. See Miller v. Morse, 23 Mich. 365; Foster v. Wiley, 27 Mich. 244; Gray v. Barton, 62 Mich. 187; Cleveland Iron Mining Co. v. Husby, 72 Mich. 61; Valley City Desk Co. v. Insurance Co., 143 Mich. 468.

The decree is affirmed, with costs.

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


author: Grant, C. J.

text:
    BLAKELEY v. WHITE STAR LINE.
    1. Negligence — Use of Premises — Trespassers—Licensees.
    Though one is under no obligation to keep his premises safe for trespassers, he is obliged to use ordinary care to keep them reasonably safe for those whom he invites thereon, either for business or pleasure.
    2. Theaters and Shows — Amusement Park — Injuries to Guest —Liability.
    Where the owner of an amusement park allowed a game of throw and catch to be played in the vicinity of the dancing pavilion therein, at a point other than the diamond set apart for ball games, without giving notice to other visitors, or making proper arrangement for their protection, he was liable, for injuries inflicted by the ball upon a guest who had no notice of the game.

    3. Same — Liability of Owner — Pecuniary Profit — Necessity.
    Pecuniary profit to the owner of an amusement park is not essential to render him liable for injuries to an invited guest arising from his permitting a dangerous game at an unusual place.

      Error to Wayne; Rohnert, J.
    Submitted October 12, 1908.
    (Docket No. 43.)
    Decided November 30, 1908.
    Case by William Blakeley against the White Star Line for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Clarence P. Milligan, for appellant.

      Gray & Gray, for appellee.
    The defendant owns and operates a line of boats running from Detroit to various places on the St. Clair river. It owns and controls a pleasure resort known as “Tashmoo Park.” It makes no entrance charge to visitors, but makes its profit by carrying passengers to and from the park. It has furnished various means of amusement, including a baseball ground known as “the diamond,” a dancing pavilion, and places for other forms of amusement. On June 18, 1905, the retail clerks of Detroit gave a special excursion to the park, and were given by the defendant the right to the possession of the diamond for the purpose of playing baseball. Plaintiff went to the park with this excursion. When the excursion arrived the diamond was in possession of a club of players known as the “Mohawk Club.” They surrendered, evidently under the instruction of the defendant, the diamond to players of the retail clerks. Some members of the Mohawk- Club on leaving the diamond went outside, between it and the pavilion, where a dance was in progress, and commenced pitching and catching balls. Plaintiff stood near the pavilion, with his back to the players, watching the dance. A ball was thrown towards the pavilion. The catcher failed to catch it, and it struck the plaintiff’s ankle with such force that it broke the bones. Plaintiff brought this suit, alleging negligence on the part of the defendant, its agents, and servants:
    “To keep and maintain its park and recreation grounds in an orderly manner, * * * and to see that all dangerous games, diversions,' and recreations, in which there was an element of danger to patrons and the public, should not be played upon any portion of its park except that set aside for such diversions and amusements, and not in places in said park in close proximity to the paths and spots where passengers and patrons were accustomed to be and to gather, and at places not intended for the exercise and carrying on of such pastimes and diversions.”
    The declaration further avers the duty of the defendant to employ and maintain in its park agents and servants for the purpose of seeing to the care, safety, and security of its patrons, and a violation of this duty. At the close of the plaintiff’s ease the court directed a verdict for the defendant. In so directing he stated:
    “The game of throw and catch would not be a dangerous game where it is conducted in a way that is not wild and erratic, and there is nothing in the testimony to indicate that it was extremely wild and careless, or that the conduct of the little game that was being conducted would be such that people must take notice of, those people who are supposed to look out for the comfort and safety of the people in the park. It is just such a game as people visiting a park of this kind might naturally expect to be conducted there, and which they must look out for. They must look out for the dangers incident to such a game.”

       As to liability of one maintaining place of amusement to which the public are invited for safety of persons visiting premises, see note to Higgins v. Franklin County Agricultural Society (Me.), 3 L. R. A. (N. S.) 1132.

   Grant, C. J.

(after stating the facts). Counsel for each party cite with approval, as the law applicable to this case, the statement of Justice Cooley, in his work on Torts (page 605):

“ One is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure .that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.”

This rule has been cited with approval by this and many of the courts of other States. The difficulty lies only in applying the rule to the facts of a given case. We find, however, no difficulty in applying the rule to the facts here. Plaintiff was invited to the defendant’s park or pleasure ground to spend the day. In so far as various sports were allowed to be carried on in places allotted for them, visitors who went to the vicinity of these places to witness the sports undoubtedly assumed the risk of danger. In this case the defendant had marked off grounds for the game of baseball. It is knowledge common to all that in these games hard balls are thrown and batted with great swiftness; that they are liable to be muffed or batted or thrown outside the lines £>i the diamond, and visitors standing in position that maybe reached-by such balls have voluntarily placed themselves there with knowledge of the situation, and may be held to assume the risk. They can watch the ball, and may usually avoid being struck. Plaintiff had no reason to anticipate a game of throw and catch off the diamond, and in close proximity to the dancing pavilion. The defendant should not have permitted such a game in close proximity to a crowd of visitors, without giving notice, or making proper arrangement for the protection of its visitors. There is testimony from which a jury might infer that this game, in this unusual place, had been going on for a sufficient length of time to give notice to the defendant’s agents or superintendents that it was in progress, and that a woman had been struck nearly a half hour before, and seriously injured by a ball thus thrown. The owners of pleasure resorts may not permit dangerous sports to be played in places other than those set apart for them. This plaintiff was standing where he had been invited. He was not in any danger from a ball game played at the customary place. The defendant owed him a duty, and that was either to prevent the game at that unusual place, or to notify him and other visitors that it was to be played. It was likewise its duty to keep a reasonable number of watchmen or servants to see that its grounds were protected from the playing of games as dangerous as this was. It may safely be inferred that this ball was thrown with all the force and swiftness with which the thrower was capable. The result justifies the inference. This may not be “extremely wild and careless” ball throwing, as between players who were on their guard, or as to visitors who were warned that the game was in progress; but as to those who were not warned, and who have no knowledge of it, I do not agree with the circuit judge that it was not “ wild and careless throwing.”

We held in Cousineau v. Traction Co., 145 Mich. 314, that a common carrier of passengers owning a park owed a duty to the plaintiff, a girl, to protect her from the crowd as she was attempting to enter one of its cars. For the same reason there given, the owner of the park is bound to protect its invited guests from unusual occurrences which may result in serious danger to its patrons, if he has the requisite notice or knowledge. The rule we have thus enunciated as applicable to this case is sustained by the following authorities: Selinas v. Agricultural Society, 60 Vt. 249; Richmond, etc., R. Co. v. Moore’s Adm’r, 94 Va. 493 (37 L. R. A. 258); Lane v. Agricultural Society, 62 Minn. 175 (29 L. R. A. 708); 1 Thompson on Law of Negligence, § 998; Brotherton v. Improvement Co., 48 Neb. 563 (33 L. R. A. 598), 50 Neb. 214; Indianapolis St. Ry. Co. v. Dawson, 31 Ind. App. 605; Williams v. Park Ass’n, 128 Iowa, 32 (1 L., R. A. [N. S.] 427, 5 Am. & Eng. Ann. Cas. 924, and note). See, also, Larkin v. Saltair Beach Co., 30 Utah, 86 (3 L. R. A. [N. S.] 982, 8 Am. & Eng. Ann. Cas. 977). Invitation is sufficient. Pecuniary profit to the owner is not essential. 1 Thompson on Law of Negligence, § 968; Davis v. Congregational Society, 129 Mass. 372.

The learned counsel for the defendant cite and rely upon Steele v. City of Boston, 128 Mass. 583, and other similar cases. In that case the public park was “traversed by divers footpaths, leading in different directions,” with openings in the fence, to give access to and from the adjoining streets. One of these paths had been fitted up by the public authorities for boys to coast upon with sleds. They had built a bridge over an intersecting path, and had stationed a policeman at the foot of the path to keep people from walking on it. It had turned water on it so that it might freeze and render the path slippery. The plaintiff deliberately walked along this path and was injured by a coaster. The court used the following language:

“If a private person owned a similar park to which he had given the public free access, we are at a loss to see how he could be held liable for an accident like that of the plaintiff. Such person might, if he saw fit, set apart and fit for use one of the paths for the recreation of youth in coasting, and if any one should, as was the case with the plaintiff, choose to enter upon the path, seeing that it was set apart for this purpose, he would do so at his own risk, and could not hold the owner responsible if he was injured by a passing sled.”

The court further held that, if the path were in a public highway, the plaintiff could not maintain his suit because the statute gave no right of action. That case does not apply to this.

So the defendant in its private park may establish places for a sport dangerous to those visitors who choose to come within the radius of danger, without incurring liability for an injury. Visitors, however, may properly assume that they may visit other places without being exposed to the dangers of the same sport elsewhere.

Judgment reversed, and new trial ordered.

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