text:
    DETROIT UNITED RAILWAY v. BOARD OF STATE TAX COMMISSIONERS.
    1. Street Railways — Taxation—Construction of Franchise-Real Estate — Fixtures.
    Relator street-railway company, by the terms of its franchise from the city of Detroit, was to pay to the city a percentage of its gross earnings, and also such taxes for municipal purposes as might be levied “upon the lots and parcels of land, and buildings thereon,” which were the property of the company; the same to be in lieu of all other taxes and charges. At the time such provision was incorporated, relator’s cars were operated by animal power; but subsequently the motive power was changed to electricity, and a large amount of machinery was installed for that purpose. At such time, also, the general tax law declared that, for the purpose of taxation, real property should include all lands within the State, and all buildings and fixtures thereon and appurtenances thereto, unless otherwise expressly provided by law. Held, that relator was not exempted from taxation on so much of its machinery as constituted fixtures.
    2. Same.
    Where an electric-railway company installed ponderous boilers, engines, dynamos, etc., in its power house for the purpose of generating electricity, and its superintendent testified that it was intended that such machinery should so remain until it should become worthless, either from wear or because of the discovery of improved appliances, such machinery was properly regarded as fixtures, and taxable as real estate, though apparatus had been erected whereby it might be removed without materially injuring the building.
    3. Taxation — Municipal Corporations — Authority of Board of State Tax Commissioners.
    Under the charter of Detroit, after the general assessment rolls have been confirmed by the common council, it is made the duty of the board of assessors to spread thereon the taxes ordered to be raised for city purposes, and to make copies of such rolls, and on such copies assess the State and county taxes. Held, that the authority of the board of State tax commissioners, created by Act No. 154, Pub. Acts 1899, to review and correct assess-merits, extended to the original assessment rolls, and was not limited to the rolls for State and county taxes. Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, 124 Mich. 491, followed.

      Mandamus by the Detroit United Railway to compel the board of State tax commissioners and the board of assessors of the city of Detroit to reduce an assessment.
    Submitted October 20, 1903.
    (Calendar No. 20,013.)
    Writ denied March 23, 1904.

      Brennan, Donnelly & Van De Mark and Gorliss, Andrus, Leete & Joslyn (John J. Speed, of counsel), for relator.

      Timothy E. Tarsney, for respondents.
   Moore, C. J.

This is an application for a writ of mandamus to compel the board of State tax commissioners to set aside an order made by them increasing the assessed valuation of relator’s lands and buildings in the city of Detroit, and to oyder the assessors of the city of Detroit not to extend a tax against the lands and buildings of relator for the year 1903 according to such increased valuation.

It is claimed in the petition that, by virtue of certain ordinances referred to therein, the machinery used by relator in the operation of its lines of railway by electrical power cannot be placed upon the assessment rolls for taxation for municipal purposes, and that it has not heretofore been assessed. The respondents filed an answer to the petition, in which, among other things, the following is stated:

“These respondents deny ‘that, by the terms of said agreement, the machinery used by your petitioner and its predecessors in the operation of its lines of railway by electrical power cannot be placed upon the assessment rolls of the city of Detroit for taxation for municipal, purposes,’ and aver that said machinery is properly assessed and assessable as a part and portion of the land and buildings owned and occupied by said relator, and to which said land and buildings said machinery is affixed in a permanent manner; that said ordinances referred to and set out in said relator’s petition, nor any of them, did not and could not have included said machinery as a part of the personal property of said relator or its predecessors, for the reason that, at the time of the adoption of said several ordinances referred to therein, the entire system originally known as the Detroit City Railway, the system known as the Ft. "Wayne & Elmwood Railway, and the system known as the Grand River Street Railway were conducted and operated by animal power, and so continued to be operated up to and including some portion of the year 1893, and in some instances to a later period; that during the year 1893, and thereafter, said several lines of street railway were entirely reconstructed, rails of greater weight were substituted and laid in place of the lighter ones upon which 'the horse cars were operated, electricity was introduced as a motive power, power plants for the purpose of making and supplying electricity by the said several companies, and ponderous mechanical machinery, including engines, boilers, dynamos, and other appliances for the production of electricity, were installed, and said engines, boilers, dynamos, and other machinery were firmly and permanently affixed to the lands and premises of said railway companies, with the intent and design of said several companies, and the officers and managers thereof, at the time of the installation thereof, that said machinery should be and remain a permanent fixture annexed to the lands of the said several companies, and the buildings thereon, and that there has been no actual or constructive severance thereof since said time of installation; and that the same has remained, and now is, a part and parcel of the real estate to.which it is affixed, and should be, and is, properly assessed as such. * * * And, further answering, say that the machinery now treated as real estate is only such as is permanently affixed to the lands and premises, and which cannot be removed therefrom without injury thereto, and which, as hereinbefore stated, it was the intent and design of the said railway companies to be affixed thereto, and to remain a part thereof permanently; that there is a large quantity of appliances which may properly be designated machinery, such as electric motors, etc., which is not included in said assessment as real estate, but is treated as a part of the personal property of said relator, and valued as such. * * *
“They deny that the said increased assessment was made up solely of the value of said machinery used in connection with the power houses, as therein stated, but state that the increase on lot 8 and part of lot 9 from $62,920 to $382,400 was not only upon the machinery affixed thereto, but upon the valuation of the buildings thereon; and they aver that said machinery is in law and in fact a part of the real' estate, and that the same is so constructed and installed that it cannot readily be removed without in any way injuring the land or the buildings thereon; and they aver that while it is true, as stated in said paragraph, that said petitioner has removed in the past parts of said machinery from one power house to another, they deny that it was done without affecting in any way the value of the premises or the buildings thereon; that the power house of the Ft. Wayne & Elm-wood (the Ft. Wayne & Belle Isle) Railway was located on Clark avenue when said system was a separate entity, but that, when the Detroit Citizens’ Railway Company acquired the same, said power house was dismantled and the machinery transferred to another place, and that such removal so affected the value of the real estate and premises upon which said machinery was located on Clark avenue that the board of assessors of the city of Detroit took notice thereof, and reduced the assessment thereof for that reason; and they aver that said machinery so treated as real estate was intended by said Detroit Citizens’ Street-Railway Company to be a part and parcel of the real estate, and that the same is a part of the lots and parcels of Kind and buildings thereon, within the scope, effect, and meaning of the ordinances referred to and set forth in said relator’s petition. * * *
“ These respondents, the board of State tax commissioners, deny the allegations contained in the fourteenth paragraph of said relator’s petition as therein stated, and aver that they did take into consideration the valuation placed upon the personal property of said relator, and considered and determined that the valuation placed thereon, after deducting the value of said machinery transferred to the real-estate assessment, was not too high, and that the valuation of the personal property of said relator, excluding said machinery now remaining on said assessment roll, is, in the opinion of these respondents, a fair and just valuation of the said relator’s personal property.”

Upon the filing of the answer, this court directed the taking of testimony before a special commissioner, and that testimony is before us.

The ordinance under which the relator is operating provides for the payment to the city of Detroit of a percentage upon its gross earnings. It also has these provisions :

“Sec. 2. From the 1st day of July, 1882, to the end of its franchise under the ordinance approved November 14th, 1879, the said railway shall also pay the city of Detroit such taxes for municipal purposes as have been up to this date, and shall be thereafter, levied and assessed upon the lots and parcels of land, and buildings thereon, which are the property of the said railway. Such taxes shall be levied and assessed in the same manner, and shall be payable at the same time, as other city taxes on lands.”"
“Sec. 4. The above-mentioned percentage payments, and the tax on lands provided for, to accrue from January 1st, 1887, to the end of the franchise of said railway, are to be paid by said railway and received by the city in lieu of and in discharge of all taxes, license fees, and charges of any kind against the property, capital stock, rights, and privileges and franchises of said company which have been or may be levied, assessed, or imposed under any present or future law or authority.”

The general tax law in force when the ordinance was adopted, and in force now, has the following among other provisions: 0

“For the purpose of taxation, real property shall include all lands within the State, and all buildings and fixtures thereon and appurtenances thereto, except in cases otherwise expressly provided by law.” Act No. 153, Pub. Acts 1885, § 2; 1 Comp. Laws, § 3825.

It is said by counsel that this court has recognized that land may be taxable wholly distinct from the buildings thereon, and wholly distinct from the buildings and fixtures, or from either one of the two (citing Lefevre v. Mayor, etc., of Detroit, 2 Mich. 586), and that applying-this principle to the language used in the ordinance requiring the relator to pay taxes for municipal purposes “upon the lots and parcels of land, and buildings thereon, which are the property of the said railway,” indicates an intention between the city and the relator, which should be respected, to exempt the fixtures from taxation. We do not draw the same conclusion from Lefevre v. Mayor, etc., of Detroit, supra, reached by counsel. In that case it was held that a statute providing that all houses of public worship should be exempt from taxation did not exempt the land from the payment of a paving tax.

At the time the ordinance was granted, the motive power employed for running the cars was horses. The fixtures attached to the barns and other buildings owned by the company would be of little value. There is nothing in the ordinance, when viewed in the light of the surrounding circumstances which existed when it was passed, indicating that the city and the company expected that fixtures attached to the buildings owned by the company would be exempt from taxation.

The relator insists that the increase in the assessed valuation of the real estate was brought about by adding thereto machinery which was personal property, and not properly taxable as real estate. It is contended that the boilers used in the generation of steam, the engines used to drive the dynamos, the dynamos used to generate electricity, the batteries used for storing it, the boosters, the switchboards, and other machinery, are none of them real estate; citing several cases, and among them Newport Illuminating Co. v. Assessors of Taxes, 19 R. I. 632 (36 Atl. 426, 36 L. R. A. 266), which is said to be a parallel case.

In the power house, at the top of the iron columns which ■support the roof, there is a projection which allows laying thereon an iron beam on each side of the building, and running lengthwise of it. These two beams or girders are technically called “I beams,” and may be said to form a wide railway track, — that is, a track as wide as the building, — upon which is operated what is called' a “crane.” This crane may be said to be a sort of a car, whose wheels run upon the tracks just described. This car has blocks and tackle and other appliances for lifting and holding heavy machinery. These blocks and tackle, by means of pulleys, are moved from side to side, as may be found necessary to be brought immediately over any piece of machinery to be removed. The tackle and hoisting apparatus is then fastened to the piece of machinery, which is then lifted up and carried across the building by the crane or car to the doorway, out of which it is taken. This was put in to facilitate the handling of the machinery, and it is said that, as the machinery can be taken out without injury to the building, it is personal property. The boilers occupy a space of 25 or 30 feet square, and are 16 or 18 feet high. They are suspended upon boiler frames set upon piers built up from the concrete floor, and are inclosed with a brick wall, 12 to 14 inches thick, upon three sides, the front of the inclosure being of iron. Some of the engines develop 1,200 horse power, are 30 feet long, 20 to 28 feet wide, with flywheels that weigh 20 tons each. The engines, dynamos, and other machinery are large and heavy; some of them, in addition to their weight, being held in place by bolts.

We have examined the cases cited by counsel. In Newport Illuminating Co. v. Assessors of Taxes, supra, it appears that the statute of Rhode Island differs from ours in relation to assessments. Under the construction given to it by the courts, it is held that dynamos removable at pleasure, by simply unscrewing bolts, and without doing injury to the freehold, come under the provisions of section 11, which provides that “machines of all sorts, propelled by steam or water power,” should be classed as personal property for purposes of taxation. Pub. Stat. 1882, chap. 42. Our statute has no such provisions. It was also held that switchboards that can readily be removed without injury to the real estate come within the provisions of the same section.

Mr. Dupont, a witness for the relator, superintended the construction of the power house, and caused the machinery to be put it. On the cross-examination, in addition to other testimony, he said:

Q. You did intend that machinery that you put in there — engine and boiler, generators, and other appliances — should continue to be used to produce power for the system that you operated, so long as it lasted, or until new appliances were discovered to take its place ?
“A. Yes; which would produce power cheaper.
Q. With the exception of that limit, it was intended to be permanent ?
“A. Certainly; yes.”

The relator was then the owner of the land and the buildings, and put into them this ponderous machinery, with the intention that it should remain, as stated by Mr. Dupont. Without going into details, we are satisfied that, as to the most of this machinery, it was properly assessable as real estate. See Wickes Bros. v. Hill, 115 Mich. 333 (73 N. W. 375); People v. Jones, 120 Mich. 283 (79 N. W. 177).

It is suggested that, when this machinery was put in, it was expected that in time it would be supplanted by improved machinery, and provisions were made to make it practicable to remove it, and for that reason it is not to be regarded as real estate. We do not see how this differs in principle from the expectation that any manufacturer has to replace his machinery when it has outworn its usefulness, either because it is worn out, or because of improvements made, making new machinery indispensable if he is to compete with manufacturers who do use the improved machinery.

The respondents return:

“ That the machinery now treated as real estate is only such as is permanently affixed to the lands and premises, and which cannot be removed therefrom without injury thereto, and which, as hereinbefore stated, it was the intent and design of the said railway companies to be affixed thereto, and to remain a part thereof permanently; that there is a large quantity of appliances which may properly be designated machinery, such as electric motors, etc., which is not included in said assessment as real estate, but is treated as a part of the personal property of said relator, and valued as such. ”

We are not able to say from tbe record that this return is not true.

It is said (and we quote from tbe brief of counsel):

“ The city charter of Detroit provides for aboard of city assessors, and makes it their duty to assess ‘ all the real and personal property subject to taxation by the laws of the State-.’ Section 163, Compilation of 1893 [Local Acts 1883, Act No. 326, chap. 10, § 2]. By an amendment of the charter approved June 6, 1901 [Local Acts 1901, Act No. 472], it was enacted that the assessment rolls shall be completed on the 1st of April. Provisions are made for a review by the common council and for confirmation of the rolls, ‘ and, after due consideration thereof, said rolls shall be fully and finally confirmed by said council, and shall remain as the basis of all taxes to be levied and collected in the city of Detroit according to property valuation until another assessment shall have been made and confirmed as above provided.’ These provisions, it will be understood, relate to assessments for city taxes.
“By the same amendment last referred to, after confirmation of the assessment rolls, the assessors a're required to extend upon the rolls the amount of money which the common council, with the consent of the board of estimates, has ordered to be raised for the next fiscal year for city purposes, and these provisions contemplate that the tax rolls will be in the hands of the receiver on or before July 1st, when the fiscal year begins. ‘ All city taxes become a debt against the owner from the time of the listing of property for assessment by the board of assessors.’ * * *
“ The State may use local agencies for State purposes, and, in the matter of assessment and collection of taxes, the legislature may provide for the assessment and collection of general taxes by local officers, or by officers selected by the State; and, if the State may by its own officers assess property and collect its taxes thereon, it may review the rolls made by the local officers, — the power to revise or review involving the power to make the roll in the first instance. But, while the State may use and confer upon local officers functions for State purposes, it is not equally true that the legislature may authorize State officers to perform duties merely for local purposes. The mayor of a city may, for certain purposes, exercise powers of a State officer; but the State cannot, on the plea that a mayor is authorized to exercise powers in which the State is interested, appoint the mayor of a city, nor authorize a State officer to perform the duties of the mayor. The State cannot select the assessors of Detroit merely because their assessment may be made the basis for State taxation. There is a general theory that it is the duty of the State to see to it that the locahgovernment is maintained, and, this being the duty of the State, it may appoint its own officers to see that it — including the assessment of taxes — is performed. This duty may authorize the State, by proper means, to compel local officers to perform their duties, exercising the discretion and the powers conferred by law; but the difference between compelling the local officer to perform a duty, and the performance of the duty by a State officer, is manifest. The carrying of the theory to its limits would result in the absorption by the State of all the functions of the local government and its officers. * * *
“The State is not concerned in the making of the assessment for merely local purposes, further than it may be interested in the enforcement of the law of,the land, and in respect to which it may resort, not to its own officers, but only to the courts. The State, as to purely local taxation, has no more authority to interfere with the assessment through State officers than it has to collect the money, or pay it out after collection.
“The copy of the roll prepared for the levying of the State and county tax, up to the time of the equalization of the State and county assessments, may be reviewed by a State official; and, it being the duty of the city assessors to make a copy of their roll for State and county taxes as soon as the city roll is completed, that copy, I submit, becomes and is the only State and county assessment roll, and I submit that the authority of the State board to review should be confined to this State and county roll.”

In this connection the following provision of the charter is important:

“ It shall be the duty of the board of assessors to make copies of said rolls as finally confirmed by the common council, upon which they shall ratably assess the county and State taxes, as provided by the general laws of the State.” Act No. 472, Local Acts 1901, chap. 10, § 9.

The question presented is not a new one in this State. It was directly involved in the recent case of Board of State Tax Com’rs v. Board of Assessors of Grand Rap ids, 124 Mich. 491 (83 N. W. 209), where there is so full a discussion of the principles involved that we do not deem it necessary to attempt to restate them here. See, also, Board of State Tax Com’rs v. Quinn, 125 Mich. 128 (84 N. W. 1).

The writ of mandamus is denied.

Carpenter, Montgomery,, and Hooker, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    WILSON v. GODKIN.
    1. Contract of Employment — Practical Construction — Parol Modification.
    Where, by contract in writing, plaintiff was to work at certain wages in or around defendant’s sawmill and at loading lumber on boats, or at whatever'"defendant might direct him to-do, a subsequent parol agreement, made while plaintiff was required to act as engineer, that he was to receive higher wages while doing that work, was not only a practical construction of the original contract as not including engineer’s services, but was a valid modification of such contract as to the wages to be paid.
    2. Same — Definiteness.
    A contract whereby one is to work for another “for three months, more or less, or until” the latter’s “logs are all sawed,” is not open to the objection that it is for an indefinite period.
    3. Same — Stipulated Damages — Penalty.
    The fact that a provision in a contract of employment, for the retention of wages by the employer until its completion, was intended to cover different breaches of varying importance, is not conclusive that it was not based upon the theory of compensation, but was designed as a penalty..
    4. Same — Mutuality.
    A provision in a contract stipulating the damages for its breach is not void because available to one party only.

      5. Same.
    A provision in a contract of employment for a term of three months, giving the employer the right to retain six days’ pay till the completion of the contract, is a valid provision for liquidated damages in case of a breach by the employé, and not a provision for a penalty.
    Case made from Bay; Shepard, J.
    Submitted November 4, 1903.
    (Docket No. 86.)
    Decided March 23, 1904.

      Assumpsit by Ira Wilson against John Godkin for work and labor. There was a judgment for plaintiff, and. defendant assigns error.
    Reversed.

      John L. Stoddard, for appellant.

      A. H. McMillan (F. W. Newton, of counsel), for appellee.
   Montgomery, J.

The defendant was the owner of a sawmill at Milakokia, Schoolcraft county, and on the 23d of June, 1902, entered into a contract with plaintiff as follows:

“Memorandum of agreement, made this 23d day of June, 1902, between Ira Wilson, party of the first part, and John Godkin, of Bay City, Michigan, party of the second part:
“Said party of the first part, for and in consideration of a sum hereinafter mentioned, agrees to go to Milakokia, Schoolcraft county, Michigan, when directed by second party, and work for said second party for three months, more or less, or until said second party’s logs are all sawed; to work in or around his sawmill and at loading lumber on boats, or at whatever said second party or his representative may direct him to do from time to time, and to do his work in a good and workmanlike manner. And in consideration of the faithful performance of the above, said second party agrees to pay said first party $2.12-^- per day of 11 hours for the above-mentioned work in manner as follows: On the 20th of each month to pay for all work performed except the price of six days’ work and that paid for railroad fare, which shall be kept back by second party until the completion of this contract. And said second party further agrees to pay first party’s railroad fare back to Bay City or Saginaw when first party has completed his contract. And second party further agrees to board first party for $3.50 per week.”

Plaintiff went to Milakokia in company with Mr. Dygart, defendant’s foreman. On his arrival at the mill, he ascertained that there was no engineer, and Mr. Dygart put plaintiff to work as engineer. Plaintiff testified that he then said to Mr. Dygart that he could not work as engineer at $2.12£ per day, and that it was agreed between him and Dygart that he should have $3. Defendant subsequently came to Milakokia, and plaintiff and defendant agree that the subject of wages was discussed; plaintiff testifying that he told defendant that Dygart had promised him $3 per day, and that defendant replied that he could not pay but $2.50; that later it was agreed that he should stay for a time at $2.50. Defendant testifies that plaintiff told him that Dygart said he was going to refer the question of wages to him (defendant), and that Dygart told him the same thing, and that he (defendant) told plaintiff that he could “stop on” at $2.50. Plaintiff left without valid excuse, sued on the quantum meruit count, and at the trial recovered. Defendant brings error.

Numerous questions are discussed, but the whole case may be briefly stated. There is much discussion as to whether the plaintiff was bound, under the contract, to perform services as engineer. In our view, much of the difficulty on this subject is removed by the fact that the parties have themselves not only practically construed the contract as not including engineer’s services, but have agreed upon a higher rate of wages, as they had the undoubted right to do. Blagborne v. Hunger, 101 Mich. 375 (59 N. W. 657); Smith v. Railway Co., 56 Mich. 529 (23 N. W. 208); Spicer v. Earl, 41 Mich. 195 (1 N. W. 923, 32 Am. Rep. 152). But, if the question be treated as an open one, the charge of the circuit judge was sufficiently favorable to the defendant.

The main question, however, is whether the court erred in charging that defendant had not the right to deduct the price of six days’ work. The plaintiff’s testimony tended to show that the contract was in no way modified, except as to the increase of- wages for the substituted duty. The question presented, therefore, is whether this contract for the retention of six days’ pay can be treated as providing for stipulated damages for the breach of the contract, and enforceable, or whether this provision is for a penalty. It is urged in support of the latter view that the retention of the wages was intended to cover different breaches of the contract, varying in importance, and that hence the presumption is that, it was not intended as furnishing compensation. We do not think the conclusion necessarily follows from the premises. Huntingdon v. Claffin, 38 N. Y. 182.

It is also said that the contract was not mutual; but as to this we differ with counsel. We think the employment was for a definite period. 9 Oyc. 324.

It is also urged that, as both parties were not equally protected, the court will not enforce this provision. It is not, however, essential to the validity of such a provision that the damages resulting to either party shall be recovered in the same manner. One may stipulate the damages for his breach, while the other may rely upon general rules for his. Preston v. Linen Co., 119 Mass. 400.

We think this contract should be construed as fixing a definite sum as liquidated damages, and valid for that purpose. Preston v. Linen Co., supra; Tennessee Manfg. Co. v. James, 91 Tenn. 154 (18 S. W. 262, 15 L. R. A. 211, 30 Am. St. Rep. 865); Pierce v. Whittlesey, 58 Conn. 104 (19 Atl. 513, 7 L. R. A. 286); Richardson v. Woehler, 26 Mich. 90; Whiting v. Village of New Baltimore, 127 Mich. 66 (86 N. W. 403); Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78).

Judgment reversed, and new trial ordered.

Moore, O. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


author: Moore, C. J.

text:
    HEWITT v. EAST JORDAN LUMBER CO.

    1. Appeal — Actions—"Death” and “Survival” Acts.
    An objection that plaintiff’s action should have been brought under the "Survival Act,” instead of the “Death Act,” cannot be raised for the first time on appeal.
    2. Death by Wrongful Act — Damages —Instructions —Failure to Request.
    In an action for wrongful death, the omission of the court, in instructing the jury as to the measure of damages, to refer to the possibility of the remarriage of decedent’s widow, is not ground for reversal, in the absence of a request for an instruction in that respect.
    3. Master and Servant — Injury to Railro'ad Brakeman — Assumption of Risk.
    Where a competent railroad brakeman, who had been in defendant’s employ for more than a year, was killed, while coupling cars, by reason of the slipping of a movable platform of a car, due to the presence of an inclined brace between the bolster over the trucks and a cleat on the under side of the platform, held, that it could not be said, as a matter of law, that he had assumed the risk.
    A Same — Contributory Negligence.
    Where it would have been safe for a railroad brakeman to couple cars from the inside of a curve had it not been for the negligent construction of a car permitting a movable platform thereon to slide forward, in consequence of which he was killed, his attempt so to make the coupling was not contributory negligence.
    Error to Charlevoix; Mayne, J.
    Submitted November 17, 1903.
    (Docket No. 31.)
    Decided March 23, 1904.
    Case by Margaret Hewitt, administratrix of the estate of David C. Hewitt, deceased, against the East Jordan. Lumber Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      E. N. Clink (Halstead & Halstead and Converse & Perkins, of counsel), for appellee.

       Rehearing denied April 26, 1904.

   Moore, C. J.

This suit was brought to recover damages because of injuries received by David C. Hewitt while coupling cars belonging to the defendant company, which resulted in his death. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

It is said by defendant that this action was brought under the “ Death Act,” when it should have been brought under the “Survival Act.” The circuit judge states in the bill of exceptions that no mention was made during the trial of the cause that recovery was erroneously sought under the “Death Act,” instead of the “Survival Act.” Under these circumstances this court will not consider the question. Mower v. Verplanke, 105 Mich. 398 (63 N. W. 302); Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833); John Hutchison Manfg. Co. v. Pinch, 107 Mich. 12, 15 (64 N. W. 729, 66 N. W. 340); Rogers v. Ferris, 107 Mich. 126, 129 (64 N. W. 1048); Broughton v. Jones, 120 Mich. 462, 465 (79 N. W. 691); Storrie v. Elevator Co., 134 Mich. 297 (96 N. W: 569).

It is claimed the court erred (we quote from brief of counsel) in charging the jury as follows:

‘“Evidence has been introduced intending to enable you to determine the loss which she has sustained. I have forgotten, but you will remember, the amount which she testified she received per year from Mr. Hewitt. Under the law, her expectancy is 26 years; that is, a healthy person at her age, as they average, will live 26 years. This does not mean that she will necessarily live that many years, of course.’
“The court should have also explained that the jury were to. take into consideration the possibility of Mrs. Hewitt’s remarriage. Jones v. McMillan, 129 Mich. 86 188 N. W. 206).”

Counsel for defendant preferred several requests to charge, but none as to the use which the jury might make of the mortality tables, and did not suggest to the judge that he ought to charge further upon that subject. In view of this situation, we think' the following language, used by the court in Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283), is in point:

“If the defendants desired fuller instructions, it was their duty to have asked them. Parties cannot remain silent, and thereby lie in wait to ground error, after the trial is over, upon a neglect of the court to instruct the jury as to something which was not called to its attention on the trial, especially in civil cases.”

See, also, Mahiat v. Codde, 106 Mich. 387 (64 N. W. 194); Record Publishing Co. v. Merwin, 115 Mich. 10 (72 N. W. 998); McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21); Field v. Magee, 122 Mich. 556 (81 N. W. 354).

It is claimed the deceased assumed the risk, and the court should have given the following request:

“ The testimony shows conclusively that whatever dangers were encountered by plaintiff’s decedent in the operation of coupling and operating defendant’s train were well known to him, and were risks assumed by him, and therefoi'e the verdict of the jury must be for the defendant.”

This contention is based upon the claim that deceased was a competent brakeman in the employ of defendant for upwards of a year; that he saw the cars which caused the mischief, and knew, or should have known, as much about the use of them as any one. The following description of the construction of the cars and of the claim of the plaintiff in that regard is from the opinion of the court:

“They consisted of the trucks, — four wheels to each truck, two pairs of trucks to each car; these trucks connected by two heavy timbers, called ‘leaders,’ which were near the center of the bunks or bolsters. When logs were loaded on these cars, they were loaded right onto' these bolsters; but when they desired to carry gravel, sand, bark, or wood, it was necessary to have a platform. They therefore had constructed platforms, which they placed upon the cars when they wanted to use them for this purpose. These were made by heavy planks placed side by side of about the length of the cars, and held together by a two or three inch plank beneath, placed across said planks. The plaintiff claims that this plank was placed there for the purpose of keeping the platform from slipping backwards or forwards while the cars were being shunted.
“Plaintiff also claims that there were extending from the leaders to the top of the bunks, at an angle, heavy iron straps for the purpose of bracing and rendering the framework of the cars more stiff; that these straps or braces extended from the leaders both forward and back of the bolsters; that, when the platform was placed upon them, the cross-plank did not go up tight to the bunk or bolster, but that, at about two or three inches back of the bolster, this cross-piece struck the strap, which, of course, extended at an angle from the top of the bolster down to the leader, and that, by reason of the force of the impact when they came together, the platform would slide forwards or backwards, rising up on the strap or brace which was placed at an angle, and that it would not have done so had the cross-piece been placed directly next to the bolster and this strap had not come between them at this angle. It is this method of constructing the platforms and placing them upon the cars and keeping them there in which, it is claimed, the negligence of the defendant consisted; the plaintiff claiming that some other appliance should have been used to keep the platform from slipping backwards and forwards when the car was being shunted.
“The defendant claims that this cross-piece was not placed there for the purpose of preventing the platform from slipping, but that its sole purpose was to form the platform itself, and to keep the planks stationary, and that it was not placed there for the purpose of keeping them from moving backwards or forwards.”

It is the claim of plaintiff that the situation of these, straps of iron and of the cross-pieces or cleats nailed under the planks, and their relation to each other, was not obvious to the deceased in the discharge of his duties. It is evident the mechanic who constructed the cars and the movable platforms knew the method of construction, and, if he had stopped to think, would have known that the angle at which the iron braces were put would make an inclined plane, up which the cleat on the under side of the platform would travel, lifting and shifting the platform if the collision between the cars at the time they were coupled was sufficient.

Justice McGrath, in speaking for the court in Piette v. Brewing Co., 91 Mich. 605 (52 N. W. 152), said:

• “The risks incident to an employment, and which an employé assumes, are those which are inseparable from the employment, and which the exercise of ordinary care on the part of the employer in the selection, use, and operation of appliances cannot avoid. A danger which exists only because of defective appliances, of which an employé has no notice, cannot be said to be one of the risks which the employé assumes.”

In Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929), thereis afull discussion of the doctrine of assumed risk, in which Justice Carpenter said, among other statements:

“The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employer that the employé shall assumo the risk of all dangers obviously incident to his employment. See Bauer v. American Car & Foundry Co., 132 Mich. 537 (94 N. W. 9). * * * The doctrine of assumed risk applies, and is limited in its application, to dangers which the employer either actually knows or should know. Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592).”

See, also, Swoboda v. Ward, 40 Mich. 420; Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Smizel v. Iron Co., 116 Mich. 149 (74 N. W. 488); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041).

The court charged the jury upon this subject, among other things, as follows:

“An employé entering upon his employment under this implied contract that the machinery or appliances are safe must thereafter use reasonable care and diligence in the conduct of the business, and, if defects which are unknown to the employer should arise which the employé might have discovered by the exercise of due and reasonable care and caution in the business for which he is employed, then the employe assumes the responsibility, and not the employer, and he cannot recover from the employer by reason of any defects which might have been discovered by the exercise of due and reasonable care and caution and the use of his faculties, and his employer would not be liable where these defects were unknown to him. * * * So that in charging you that if you find that the deceased had actual knowledge of the faulty construction, if you find there was a faulty construction, and use of those cars and defects and wrongs alleged in the declaration, the plaintiff cannot recover. Or if you should find that by the exercise of due care — due ordinary and reasonable care— and caution in his employment he would have discovered them, then the law implies a notice which is equivalent to actual knowledge, and he cannot recover. You will observe, therefore, the importance that attaches to the fact as to whether there was knowledge of these defects on the part of the deceased.”

We do not think it can be said as a matter of law that deceased assumed the risk growing out of the construction of the car and platform.

It is said deceased was guilty of contributory negligence in attempting to couple the cars while on the' inside of the curve, and for that reason a verdict should have been directed in favor of defendant. On the part of the plaintiff it is claimed that it was a comparatively straight track where the stationary car was standing when the coupling was made, and that no harm would have come to deceased if the platforms had not shifted. The court instructed the jury upon that feature of the case as follows:

“Before the plaintiff c.an recover; you must find negligence on the part of the defendant, and the negligence must he that negligence described in the declaration; that is, the faulty construction of the cars, and the defects alleged therein, and the use of the same as I have explained it to you, and that it occurred by reason of the platforms slipping as described in the declaration. You must also find that there was no contributory negligence on the part of the deceased, and, unless you so find from the evidence, you must return a verdict of no cause of action.
“Now, in relation to this curve on the switch. If you find that the deceased stepped between the cars for the purpose of coupling the same, and that he received the injury in the manner described in the declaration, but that, if he had gone to the other side of the switch, — that is, to the outer side of the curve, — he could have made the coupling and not have .received the injury, then your verdict will be ‘No cause of action,’ because it would be contributory negligence for the deceased to step in to make the coupling between the cars on the inside of the curve, where the danger was apparent, if he could make the coupling all right, and without danger to himself, by standing on the outside of the curve and stepping between the cars on that side. If he voluntarily used the inside instead of the outside, when he might have used either, and the inside was dangerous and the outside was not, then he assumed the responsibility of taking the dangerous side instead of the safe side, and the injury would be the result of his own negligence.
‘ ‘ It will be necessary, therefore, for you to consider whether the deceased was sick upon that day or not, as testified to by some of the witnesses. If you should find that he was taken ill, and that while ill he continued in his employment, and by reason of his sickness he did not see the car approaching, and was, by reason of his distress or illness, injured, when he would not have been had he been well and attending to his business, your verdict must be ‘No cause of action.’ The defendant in this case knew nothing of his illness,— if you find he was ill,— consequently they could not be held liable or responsible for any injury which resulted to him by reason of his sickness. So that, if this sickness of deceased — if you find he was sick — contributed towards the injury, then he was the one who was in fault in continuing at work when he was ill, and not the defendant, and the plaintiff cannot recover. If, however, you should find that he was ill, but that the illness in no way contributed towards the injury, then you will not consider it in your verdict at all. * * *
“If he could have entered there in safety to himself had it not been for the slipping of the platforms, then the fact that he entered from the inner side would be immaterial, and would not affect the plaintiff’s right to recover, because then the accident would be the direct result of the slipping of the platforms, and not of his entering from the inner side of the curve. If it had been safe for him to have gone in there, and he. would not have been injured, except for the slipping of the platform, then he may recover. ”

There was testimony tending to support the several claims of the plaintiff and defendant. This made it a question of fact. The judge submitted the question of fact in a very carefully considered charge, which properly stated the law.

Judgment is affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.


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    HAYNES v. HOBBS.
    1. Trover — Parties—Interest.
    Evidence of an agreement between a father and son whereby the son was to help about the father’s business, and to have an interest therein after all the debts against it should be ; paid, does not show such a present interest in the son as to defeat an action by the father’s administrator for the conversion of the property by a third person prior to the payment of the debts.
    2. Chattel Mortgage's — Bill oe Sale — Construction.
    Where a bill of sale recited that it was given to secure certain debts owing to the grantee and to third persons, which the grantee was to assume, and provided that after the payment of such debts by the sale of all or a part of the property, or out of the proceeds of the business in which it was used, the title to the remainder should revert to the grantor, the instrument was a chattel mortgage.
    3. Same — Conveyance in Trust — Trover.
    But, whether construed as a mortgage or as a conveyance in trust, it authorized the sale of only so much property as should be sufficient to pay the debts, ahd for a sale in excess of such amount trover would lie.

      4. Same — Assignment by Mortgagee — Parol Evidence.
    Defendant in trover, claiming under a written assignment by a mortgagee of all of his interest in the property, cannot show by parol that he bought the property outright and in good faith.
    5. Sale-Price Received — Evidence.
    Evidence that defendant received $850 on the sale of certain property, he agreeing to return $150 when the buyer should sign his liquor bond, that being the amount which he generally paid for such service, conclusively shows that he received $850 for the property.
    Error to Kalkaska; Chittenden, J.
    Submitted November 5, 1903.
    (Docket No. 100.)
    Decided March 23, 1904.
    Trover by Mary M. Haynes, administratrix of the. estate of James S. Haynes, deceased, against Miller Hobbs. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      William D. Totten and J. L. Boyd, for appellant.

      Ernest C. Smith, for appellee.
   Montgomery, J.

This is trover, brought against the assignee of an instrument claimed to be a mortgage. The plaintiff recovered the value of the excess of the property over and above the amount secured, and defendant brings error.

Plaintiff’s intestate, James S. Haynes, being indebted to divers parties, in June, 1900, gave a bill of sale of his horses, wagons, and livery stock to two of such creditors, Howard Price & Co. and George F. Bow. The bill of sale was in the ordinary form, but contained in addition the following statement and defeasance:

“This bill of sale is given to secure the said second parties for the sum of $253, owed by first party to Howard Price & Co. And the sum of $289.46, indebtedness of said first party assumed by said second parties, being $258.81 owed on two notes to Loeser Brothers, also $100 owed to Kinney, $30.65 account owed to A. B. Cornell, which last indebtedness is to be assumed and paid by said second parties, each to pay one-half. Said George F. Bow to take immediate possession of said property, and retain possession of same until said indebtedness shall all be paid: Provided, that when said indebtedness shall be paid by the sale of all or a portion of said property, or out of the net proceeds of said livery business, then all remaining property is to be returned to said James S. Haynes, and title thereto revert to him, said Haynes.”

Bow took possession, paid about $100 of the debts which were assumed, and after a few days assigned his title and interest in the contract to John Moran. On the 26th of October, Moran and Howard Price & Co., by an assignment in writing, transferred their right, title, and interest in and to the property covered by the mortgage to Miller Hobbs, the defendant. The defendant took possession, and from the use of and sale of the property covered by the mortgage received a sum in excess of the amount secured and expenses incurred, amounting to $222.05, for which sum a verdict was directed. This last statement is open to a qualification; i. e., if the defendant’s claim that there was only realized $700 on the final sale be allowable, then the figures fixed by the court were $150 too high.

Several grounds of error are urged, and we will consider them in the order adopted by counsel.

It is asserted that the testimony showed the title to this property to have been at the date of the decease of James S. Haynes in part in John Haynes. We do not construe the testimony as showing that there was a present interest in John Haynes, and therefore hold that the circuit judge was not in error in refusing to direct a verdict on this ground.

It is next urged that the instrument in question was not a chattel mortgage. We think it has all the attributes of a mortgage. It was a conveyance by way of security, and contained a defeasance operative when sufficient should be realized to pay the indebtedness secured. It would not be very material, however, by what name this instrument was called, for it is very clear that, when sufficient property had been sold to satisfy the indebtedness, the remainder was to revert; and it follows that the sales should have been limited to that necessity, and that for a sale of more than sufficient trover would lie. Brink v. Freoff, 40 Mich. 610. See, also, Card v. Fowler, 120 Mich. 646 (79 N. W. 925).

It is also claimed that error was committed in refusing to permit the defendant to show that he bought the property outright, and in good faith. But to have permitted such testimony would have been to permit the witness to place a grossly erroneous construction upon a written instrument,-which was admittedly prepared to express the purpose of the parties, which was plain and unambiguous in its terms, and was nothing more than an assignment of the interest of Moran and Howard Price & Co. to defendant.

It is claimed that the court erred in charging that defendant received on the final sale $850. The testimony of defendant was as follows:

“ Tyler was going into the livery business, and defendant was running behind, and didn’t want to run it at all. I wanted to get rid of it. Finally he came in, and witness told him that he would take $850. That Tyler said he had some notes here; if I would take them, he would buy it. Witness said to Tyler, ‘ If you would give me $850 for the livery stable, I will give you $150 for signing my bond.’ He said he thought the livery barn was a little high. I said that, ‘If you buy the barn, and sign my bond, I will give you $150 for doing that;’ and that is how I happened to get $850 for the barn. I figured that I was getting $150, as I generally have to pay a man $150 for signing a bond here.”

On .cross-examination defendant further testified that some years he had to pay $150 for the liquor bond and some years not; that Tyler gave him his note for $150; that the agreement was that he was to give Tyler back the note in the spring, when he signed his bond; that he received the §700 note and the §150 note for the barn.

We think it is idle to say that he received but §700 for the property, and the court correctly stated the amount.

The motion for a new trial was properly overruled.

The other questions discussed have been considered, but are shown by the conclusions reached on the main questions discussed to be without merit.

The judgment is affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.

      John. Haynes testified that he had a' “working interest” in the business; that, by an agreement between him and his father, the deceased, he was to help about the business, and, after all the debts should be paid, was to have a half interest therein.


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    GRAND RAPIDS BARK & LUMBER CO. v. TOWNSHIP OF INLAND.
    1. Taxation — Lumber—Place op Assessment.
    By the express terms of 1 Comp. Laws, § 3837, subd. 1, lumber piled in a millyard at the place of its manufacture under contract is taxable to the owner in the township where situated.
    2. Same — Sale—Passing op Title.
    By contract between A. and plaintiff, A. was to manufacture into lumber at his mill all the timber on certain lands owned by him, and sell the same to plaintiff at $6.25 per thousand, merchantable scale, payable, §5 per thousand when piled, and the balance when loaded on cars. It was also provided that plaintiff should have delivered at A.’s mill logs which plaintiff should buy from others in the vicinity, the amount paid therefor, not exceeding $4.25 per thousand, to be charged to A.’s account, and plaintiff to pay for the lumber manufactured from said logs at the rate of $6.25 per thousand, piled and loaded. Held, that title to none of the lumber passed to plaintiff prior to its delivery on cars, and hence plaintiff was not until then subject to taxation thereon.

      3. Same.
    The case was not altered because of the advances made by plaintiff under the contract, the same being taxable as credits only.
    Error to Benzie; Chittenden, J.
    Submitted November 19, 1903.
    (Docket No. 140.)
    Decided March 23, 1904.

      Assumpsit by the Grand Rapids Bark & Lumber Com-pany against the township of Inland to recover taxes paid under protest. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Oovell & Gross, for appellant.

      D. 6r. F. Warner, for appellee.
   Montgomery, J.

An assessment in the sum of $4,500 was made against the plaintiff on the tax roll of defendant for the year 1901. The tax assessed was $260.04. The property assessed was lumber in a millyard. After demand for the payment of the tax, and refusal, the treasurer of the township seized property of the plaintiff. The plaintiff thereupon paid the tax under protest, and brings this action to recover the amount paid. 9

The grounds of the protest are, in brief, two: First, that the plaintiff was not the Owner of the property; and, second, that plaintiff was not in possession or control of the yard where said property was situated.

As it appears that the plaintiff procured the lumber assessed to be manufactured, it would follow that under section 3837, 1 Comp. Laws, as amended by Act No. 32, Pub. Acts 1899, it was properly assessed to plaintiff if it was the owner. The last ground of protest was therefore without force, as the case must be determined upon the question of title.

The lumber in question was manufactured under a contract with one William A. Anderson which was as follows :

“ This agreement, made and entered into this 21st day of November, 1899, between William A. Anderson, of Benzonia, Mich., party of the first part, and the Grand Rapids Bark & Lumber Company, a corporation organized under the laws of the State of Michigan, of Grand Rapids, Mich., party of the second part, witnesseth:
“ The party of the first part, for and in consideration of the specifications and agreements hereinafter mentioned, agrees to sell to the party of the second part all the hemlock lumber which is manufactured from the logs, standing or down, estimated at 500,000, located on the following described lands, to wit: The S. W. ¿, the N. W. ¿of the S. E. i, the W. i of the N. E. -]-, and the S. E. ¿ of the N. W. ¿ of section 25, town 26 north, of range 14 west. Logs to be cut as follows: 75 to 12,14, and 16, largely 16, balance 18. The lumber is to be manufactured at the mill of the party of the first part at Turtle Lake, on the Honor branch of the C. & W. M. R. R., at $6.25 per thousand, merchantable scale, mill culls out, f. o. b. cars. Manistee car inspection rules to govern. The lumber not to run over eight per cent. cull. The lumber is to be manufactured as the party of the second part may direct. Lumber to be cross-piled, each length and width by itself. It is understood and agreed that all lumber loaded direct on the car from the saw shall be one shilling less than purchase price. The lumber is to be all manufactured and in cross-piles not later than July 1, 1900. And to be piled not less than 200 feet from the mill.
Said lumber is to be manufactured in a satisfactory and workmanlike manner; and, in consideration of the faithful performance of the same, party of the second part agrees to pay first party the following prices: Five dollars ($5.00) per thousand when lumber is properly manufactured and piled in cross-piles at Turtle Lake mill. Payment to be made between the first and tenth of each month for all lumber manufactured the previous month; the balance of the purchase price to be paid when lumber is loaded on cars.
“ It is also further agreed that the party of the second part shall have delivered at the Turtle Lake mill the logs which they buy from F. M. Styles, the Thompsonville Cooperage Company, and such other logs as they may purchase from time to time in the vicinity of Turtle Lake mill, the purchase price of these logs not to exceed $4.25 per thousand. The amount paid for these logs is to be charged to the account of party of the first part. It is further agreed that, for all the lumber manufactured from these logs, the party of the second part shall pay to the party of the first part six and 25/100 dollars ($6.25) per thousand for lumber cross-piled and. loaded on cars, and, for lumber loaded direct from the saw, one shilling less.”

Did the title pass to the plaintiff at any time before delivery on the cars ? As to the lumber manufactured from logs cut'from Anderson’s own lands, we think it is clear that the title did not pass. As to this lumber, it remained to ascertain the quantity and quality, and the presumption that the intention was not to pass title remains. Lingham v. Eggleston, 27 Mich. 324, 329; Wagar v. Farrin, 71 Mich. 370 (38 N. W. 865); H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299 (87 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452).

It is contended by defendant’s counsel, however, that, as to the lumber manufactured from logs purchased by plaintiff from Styles, the Thompsonville Cooperage Company, and others, the title to the logs and lumber remained in the plaintiff at all times. We do not so construe this agreement. Plaintiff agreed to deliver the logs purchased by it to Anderson, and agreed that the price paid should not exceed $4.25, and it was mutually agreed that the amount paid for the logs should be charged to the account of Anderson. The record shows that in fact Anderson paid direct for some of the logs with merchandise out of his store. It was then further agreed that plaintiff should pay Anderson for the lumber manufactured from these logs $6.25 per thousand, cross-piled and loaded on cars, and it is plainly inferable that the grades and inspection were to be as provided for in the preceding portion of the contract. Whatever profit was realized from the purchase of the logs was, therefore, Anderson’s, and it is the fair inference that it was at his risk. The transaction amounted to a sale of the logs, and an agreement to purchase the lumber when manufactured and delivered. And as to this the question of title is therefore similar to that presented with reference to the lumber manufactured from logs cut from Anderson’s land.

The circuit judge was of the opinion that plaintiff was properly assessed for the interest represented by the advance of §5 per thousand on the logs, but we are unable to agree with this view. If plaintiff had not the title to the property, — was not the owner, — any assessment against it should have been at its home office.

Judgment reversed, and a new trial ordered.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant. J., took no part in the decision.


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    GILMAN v. BODEN.
    Partition — Actual Division — Prejudice—Evidence—Sale.
    3 Comp. Laws, § 11045, provides that, if the commissioner to whom a partition proceeding shall have been referred shall report that a division of the premises cannot be made without great prejudice to the owners, and the court shall be satisfied that the report is correct, it may order a sale of the premises. Held, that where the premises consisted of a building hexagonal in shape, and the commissioner reported that a partition could not be made without great prejudice, an order requiring the erection of a wall through the building, entailing the tearing out of various partitions, and changes in the size and form of rooms and stores, was erroneous, and the case was one for a sale under the statute.
    Appeal from Wayne; Donovan, J.
    Submitted January 5, 1904.
    (Docket No. 1.)
    Decided March 23, 1904.
    Bill by Baxter H. Gilman and wife against John M„ Boden and wife for a partition. From a decree, directing a physical division of the premises, complainants appeal.
    Reversed.

      George W. Radford, for complainants.
    i

      John D. Harger, for defendants.
   Montgomery, J.

This is a bill filed by complainants, under the statute, for partition of lot 20 of Backus’ subdivision of outlot No. 96 of the Woodbridge farm, situated on the southwest corner of Grand River and Trumbull avenues, in the city of Detroit; said Baxter H. Gilman and John M. Boden being equal owners thereof. Complainants appeal from a decree of the circuit court for the county of Wayne, entered July 22, 1903, directing a physical division of the property by the construction of a new brick wall through the building standing on the front portion of the lot, on a line supposed to divide the building into two equal portions, and fixing a basis of accounting for rents.

The lot is a hexagon in shape, with its southerly line at right angles to the westerly line of Trumbull avenue; the lot having a depth from Trumbull avenue of 120 feet, and a width at the rear of 35 feet. The lot has a combined frontage of 85.8 feet on Trumbull and Grand River avenues; the Trumbull-avenue front being 45.8'feet, the Grand River avenue 40 feet, forming an obtuse angle on the southwest corner of the two avenues. The westerly line of the lot is a broken line forming another obtuse angle at about the center, which is 59.9 feet from the southerly line of Grand River avenue, and at right angles thereto. From the center angle it extends 43.2 feet parallel with the south line.

The building covers the entire front end of the lot, and is 60 feet in depth. The width of the building at the rear end is about 44 feet, the wall forming another obtuse angle. The ground floor of the building is divided into three stores, separated from each other by two 12-inch solid brick partition walls, extending from the foundation to the roof. The second story of the building is divided into three flats, each covering the space between the brick partition walls, the same as the stores below, and partitioned into several rooms each. The entrance to the flat over the southerly store, fronting on Trumbull avenue, is by means of a door and staircase leading up from the street. The other flats are reached by means of a like entrance, leading up from the street, in the front of the northerly store, which fronts on Grand River avenue.

The proposed wall ordered by the decree will bisect and extend from the corner of the building at the intersection of Trumbull and Grand River avenues to a point at the center of the rear wall. If such a wall'is built, the middle or ‘ ‘ keystone ” store, as it is described in the record, will be cut into two parts. The southerly part, fronting on Trumbull avenue, would have a frontage of about 24 feet by 8 feet at the back end, while the other part, facing Grand River avenue, would have a frontage of about 18 feet on Grand River avenue and about 3 feet at the back end. The defendant, Boden, in order to do away with these narrow back ends, proposes, after the ground floor is divided by the proposed party wall, to convert each half of the building into one store, to do which would necessitate the removal of the present inside partition walls. Similar changes would be made necessary in the upper story. The evidence fairly tends to show that the expense of these changes would amount to $1,500. The commissioner reported that partition could not be made without great prejudice to the owners, and complainants asked that a sale be directed under section 11045, 3 Comp. Laws. The circuit judge overruled the commissioner, and directed a division as above indicated.

We think the case is one falling clearly within the purpose of the provisions of section 11045. If it be within the power of the court in any case to direct partition by building a partition wall, thus changing the purposes and adaptability thereto of a structure existing upon premises, — a point which we do not find it necessary to decide, — we are all agreed that the evidence in this case does not show that such a course could be taken with the building in question without' great prejudice to the owners. The proposed change involves more than mere construction; it involves a tearing down.

Complaint is also made of the finding of the court upon the question of rent and rental value, but we are not disposed to disturb the finding in this regard.

A sale of the premises will be decreed, and the case will be remanded, with directions to carry the decree into effect. Complainants will recover their taxable costs in this court.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


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    HICKEY v. RUTLEDGE.
    1. Taxation — State Tax Lands — Title off State.
    As between, the State and the original owner of lands sold to it for taxes at regular sale, the title of the State is absolute, although such owner has a subsequent right to redeem upon a sale of the State’s interest.
    2. Same —Trespass —Timber—Subsequent Purchase by Tres- . PASSER.
    Where timber was severed from State tax land by one who subsequently purchased the land from the State, the title to the timber did not pass to him, but remained in the State, which, through its trespass agent, was justified in seizing the same.
    Case made from Roscommon; Sharpe, J.
    Submitted January 15, 1904.
    (Docket No. 87.)
    Decided March 23, 1904.
    Replevin by George Hickey against Homer Rutledge. There was a judgment for plaintiff, and defendant assigns error.
    Reversed.

      Charles L. De Waele, Prosecuting Attorney (Emil Stenberg, of counsel), for appellant.

      Henry H. Woodruff, for appellee.
   Montgomery, J.

This is replevin brought by a purchaser of State tax land against a State trespass agent for ties cut from such land while the title remained in the State. The ties were cut by plaintiff, who entered before purchase. The contention of the defendant was that, upon a severance, the timber became personal property, belonging to the State, and that, as a consequence, the subsequent sale to the plaintiff of the State’s title to the land did not vest in the plaintiff title to the severed timber. The ‘circuit court held otherwise.

The regularity of the proceedings' by which the title to the land in question was vested in the State is not questioned. It is settled that, as between the State and the original owner, the title to lands sold for nonpayment of taxes becomes absolute in the State on a regular sale. Robbins v. Barron, 32 Mich. 36; Connecticut Mutual Life-Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656); Allen v. Cowley, 128 Mich. 530 (87 N. W. 620). It is true that, as to the original owner, there is a subsequent right to redeem, upon a sale of the State’s interest, upon payment of double the amount of the taxes and costs, after notice. But it is clear that, when timber is severed from land, it becomes personal property, and the question arises whether, as between the State, in which the title is vested, and the subsequent purchaser, the title to such personal property vests in the State. We think this question is answered by Allen v. Cowley, supra.

The circuit judge was of the opinion that, the State having conveyed all the interest it had in the land after the trespass was committed, it was not any longer the province of the commissioner of the State land office to collect for the trespass committed prior to that daté. In this we think the circuit judge erred. When this timber was severed, the right of the State to pursue it became fixed. It was no longer a part of the land. The purchaser of the land would not take the timber by purchase from the State. In whom, then, is the title to be vested ? In a naked trespasser ? Clearly, the rights of this plaintiff are no greater under his purchase than they would have been had the trespasser been a third party. Tlie State having a title at the time he committed the trespass, and the right to seize and pursue the timber, it does not lie in his mouth to say that that right has been defeated by a sale of something other or different, whether such sale be to another or to himself.

Judgment will be reversed, and judgment entered upon the findings for the defendant.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


text:
    BOARD OF SUPERVISORS OF ALCONA CO. v. AUDITOR GENERAL.
    Taxation — State Tax Lands — Homestead Lands — Nature of State’s Title — Sums Collected for Trespass — Ownership.
    An examination of the various provisions of the tax law leads to the conclusion that, while the title of the State to State tax and tax homestead lands is absolute as between itself and. the original owners, it holds such title for the State, county, and township, in proportion to the several taxes due to each; and hence moneys collected by the State land commissioner under 1 Comp. Laws, § 1323, for trespasses committed on such lands, belong to the several municipalities in the proportion indicated.

      Mandamus by the board of supervisors of Alcona county to compel Perry F. Powers, auditor general, and Edwin A. Wildey, commissioner of the State l,and office, to account for certain moneys.
    Submitted November 19, 1903.
    (Docket No. 174.)
    Writ granted March 23, 1904.

      John H. Killmaster (S. K. Gustin and De Vere Sail, of counsel), for relator.

      Charles A. Blair, Attorney General (Charles W. McGill and Fmil G. Stenberg, of counsel), for respondents.
   Montgomery, J.

The application for mandamus in this case presents three contentions on behalf of relator:

First. That moneys collected for trespass committed upon the State tax lands situated in Alcona county be accounted for to the State, the county, and the townships thereof, in proportion to the amount of taxes due each.
Second. That the moneys. collected for trespass committed upon the State tax homestead lands situated in Alcona county be accounted for to the State, the county, and the townships thereof, in proportion to the amount of taxes due each at the time such lands were deeded to the State.
Third. That the moneys received by the State land commissioner from the sale of State tax homestead lands be accounted for to the State, the county, and the townships thereof, ip proportion to the amount of taxes due each at the time such lands were deeded to the State and became tax homestead lands.

Respondents concede relator’s third contention, and we need, therefore, spend no time over it.

It is insisted on behalf of .the respondents that the State acquired, under the general tax law, an absolute title to the State tax and tax homestead lands in Alcona county, and should therefore deal with them as State property. It is further stated that, under sections 1393 and 1323 of the Compiled Laws of 1897, there is no requirement that the moneys should be paid into the treasury for the use of the county and townships.

To attempt to set out at length all the provisions of the tax law which may have a bearing upon the questions involved would extend this opinion unreasonably. It may ■be generally stated that the theory of the tax law is that, up to a certain stage in the proceedings, at least, the township is the agent of the county and State in the assessment and collection of taxes, while at the same time acting on its own behalf; that at a later date the county occupies the same relation to the State and the township, and still later the State assumes this relation to the township and county. "When the State becomes a purchaser of tax lands, it is provided by section 70 of the tax law (1 Comp. Laws, § 3893') that, in a certain contingency, the county treasurer shall bid off the land in the name of the State, for the State, county, and township, in proportion to the taxes, interest, and charges due each. If at this date the absolute title vested in the State, there could be little doubt as to what the interest of the respective municipalities would be. The language is plain and unambiguous, and the State would hold the title for the use of the State, county, and township in certain named proportions. The respective interests would not be more distinctly fixed had aliquot parts been described. Section 89 (1 Comp. Laws, § 3912) provides for adding interest on the redemption of lands and payment of taxes, and provides that the interest and taxes shall be paid to the State, county, and township, in proportion to their respective rights therein.

The provisions as to State tax homestead lands are that, when the lands are deeded, all the taxes charged against such lands shall be canceled, and that no part of these taxes due to the township or county shall be charged to the State, but each shall bear the share of loss on such taxes that properly applies to each. Section 130 (1 Comp. Laws, § 3952). By section 131 as amended (Act No. 107, Pub. Acts 1899), it is provided that, before any proceedings shall be taken against the purchaser of any State tax homestead lands by the original owner, he shall pay all delinquent taxes returned to the auditor general, together with interest, costs, and charges, and the amount so received by the auditor general is to be deposited in the State treasury to the credit of the State, county, and township wherein said lands are situated, in proportion to the amount of taxes due to the State, county, and township. By Act No. 141, Bub. Acts 1901, the auditor general and commissioner were authorized to withhold lands when they determined it was not advantageous to open them for entry; and it authorized them to offer for sale the State lands at prices discretionary with them, and provided that the proceeds for any such sale should be accounted for to the State, county, and township in which said lands were situated, pro rata, according to their several interests therein, arising from the nonpayment of taxes thereon, as such interest should appear in the office of the auditor general.

We think all of these provisions, taken together, when read in connection with other provisions of the State tax law, to which references need not be given, indicate that the whole theory, of the taxing laws is to vest the title in the State, as between itself and the original owner, but for the State, county, and township, in proportion to the several taxes due to each.

In this state of the law, there was enacted, in 1897, section 1323, 1 Comp. Laws, authorizing the land commissioner to adjust and collect for trespasses on lands held by the State for the nonpayment of taxes, and directing that he should pay over the money received by him in satisfaction of such trespasses to the State treasurer, for the benefit of the fund to which it might belong. It is said of this provision by the counsel for the respondents that it contains no direction to pay the sum collected into the treasury for the use of the county, township, and State, and that the result is to pay it into the general fund, and, as no provision is made for pdying any portion of it to the county or township, that this show's a legislative intent to treat the proceeds of such adjustment as State property.

We think the burden to maintain such a construction should rest upon the respondents. The legislative purpose to appropriate moneys or property of the county and township to the State ought certainly to be manifest and clear before the courts should hold that that has been accomplished. As we have pointed out, at the time this sale was made to the State it was made to the State for the use of the State, county, and township. If it should transpire that the entire value of the land consisted in timber, of which it had been denuded, and thereby the rights of the State, county, and township infringed and wholly defeated, a legislative purpose to permit a trustee — if the State be so termed — to appropriate the entire proceeds, even though they might satisfy all the interests of the State, county, and township, is not to be lightly inferred. We think no such result need follow. The proceeds- are to be paid into the State treasury, into the fund to which they belong. To . what fund do the proceeds belong ? As the avails of the property of the State, county, and township, we think it clear the fund belongs to. these respective municipalities in the proportion' defined by the statute itself.

The respondents’ counsel refer to the cases of Robbins v. Barron, 32 Mich. 36, Connecticut Mutual Life-Ins. Co. v. Wood, 115 Mich. 448 (74 N. W. 656), and Allen v. Cowley, 128 Mich. 530 (87 N. W. 620), to sustain the proposition that the title to the land is in the State absolutely. In all these cases the question was whether, as between the State and the original owner, the title was in the State, and the cases are to be read with reference to that question. But, notwithstanding these cases, it would not be contended that, as between the county, township, and State, the title was absolutely in the State, so that upon a resale or redemption the rights of the county and township would not be protected. It is not so contended here; and certainly, where the timber is the chief value of the land, the respective rights of the county and township are just as patent as they are in the land itself. As to the force and effect of such a sale to the State, and as to the right of the State, as against a wrong-doer, to the avails of the trespass settlement or seizure, we deal with both questions in the case of Hickey v. Rutledge, ante, 128 (98 N. W. 974).

After this case was fully-presented in the main briefs, the respondents’ counsel contended, in a supplemental brief, that, in any view, mandamus is not the proper remedy. But we have thought best to deal with this question on its merits, as the case had been fully argued and presented before this question was suggested. Undoubtedly, upon the views herein expressed, the respondents and relator can promptly adjust the questions at issue between them.

As the case is one of public interest, no costs. will be awarded.

Moóre, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


author: Hookeb, J.

text:
    TOBIAS v. COMMERCIAL SAVINGS BANK.
    Partnership — Firm Property — Mortgages—Priority.
    A partner sold his interest in the firm, and with it conveyed his interest in the firm real estate, to an incoming partner, taking a purchase-money mortgage on the land, to the giving of which the copartners assented; it being agreed that the incoming partner should make good the deficiency occasioned by the giving of the mortgage by a contribution of money. The firm was thereupon reorganized under new articles, and subsequently executed a trust'deed of the property for firm debts contracted after the recording of the retiring partner’s mortgage. Held, that the title of the new firm was merely an equity of redemption, and subject to the retired partner’s mortgage, which was therefore prior to the trust deed executed by the new firm for the payment of its debts.
    Appeal from Lenawee; Chester, J.
    Submitted January 15, 1904.
    (Docket No. 42.)
    Decided March 23, 1904.
    Bill by Burton E. Tobias, administrator de bonis non of the estate of Elizabeth Sinclair, deceased, against the Commercial Savings Bank and others, to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      B. A. Watts, for complainant.

      John E. Bird (Alanson Bennett, of counsel), for defendants.
   Hookeb, J.

On April Í8, 1883, Joseph C. McKenzie, James Farrar, and John I. Knapp were equal copartners in business, and carried it on under the name of the Adrian Brick & Tile Machine Company. On that day they purchased the lands described in the bill of complaint in this cause. It is conceded that this was copartnership property. It was deeded to “Joseph C. McKenzie, James Farrar, and John I. Knapp, doing business under the firm name of the Adrian Brick & Tile Machine Company.” Farrar’s health failed, and it was agreed that he should sell his interest, if he could find a purchaser who should be satisfactory to his copartners. ■ William Humphrey offered himself as a purchaser, and it was agreed by all that he should buy the interest of Farrar in the copartnership, and “step into the business” in place of Farrar; and on October 16, 1883, Farrar signed a bill of sale to Humphrey, by which he assumed to convey all his right, title, and interest in and to the property, assets, rights, claims, choses in action, and demands of said copartnership, subject to all of Farrar’s liabilities as such copartner. Farrar and wife also made a warranty deed of the premises in question, the consideration named being $15,000, which deed conveyed the premises (describing them), including the interest of the said James Farrar as copartner with said McKenzie and Knapp in and to the premises; and it was recited in the deed that the interest ot the said James Farrar in said premises intended to be conveyed was an undivided one-third interest, subject to any rights and claims of the other members of said copartnership and of said firm therein. On the same day Humphrey executed to Farrar a mortgage for $9,500 upon the premises. It contained this language as to the premises, viz.: “ The whole being the same premises and the same interest this day conveyed by said James Farrar 'to the said William Humphrey by deed of even date herewith.” It was given for a part" of the purchase price of the premises. It secured the note mentioned in the bill, and was owned by the complainant’s intestate at the time of her death, when this suit was pending. The deed and mortgage were promptly recorded.

Humphrey continued business with McKenzie and Knapp under new articles of copartnership, executed February 1, 1884. This firm subsequently borrowed money from the Commercial Savings Bank, which holds obligations dated April 3, October 7, and November 17, 1895, and January 23, 1896; being indebtedness created after the recording of the mortgage. On August 11, 1897, Humphrey and wife, Knapp and wife, Lizzie M. McKenzie, and Ephraim L. Luther, executor of Joseph C. McKenzie, deeded the premises to Richard A. Watts and Seymour Howell in trust, conditioned to pay the debt due the • Commercial Savings Bank. There is now due the complainant upon this note and mortgage over $6,000, said note and mortgage having been duly assigned to his intestate. The bill is filed to foreclose the mortgage, the other parties in interest being made parties defendant. The defendants contend that the property was taken by Watts and Howell, under their deed, discharged of this mortgage, and ask that it be so decreed; the premises having been sold in conformity to the provisions of said trust deed. The court sustained the priority of the mortgage lien and decreed foreclosure, and the defendants have appealed.

The testimony shows that this mortgage was made with the assent of Farrar’s copartners, and that it was understood between them and Humphrey that the latter should make good his deficiency occasioned by giving this mortgage by the payment of money into the concern, which money he was to procure by the sale of securities which he claimed to own. This transaction was nothing more nor less than a sale of Farrar’s interest in this portion of the copartnership property of the old firm, which was then and there dissolved. It conveyed such interest subject to the liquidation of firm debts, and subject to the liens of Farrar’s copartners, unless they can be said to have waived them. None but these two classes of persons could question the transaction. The copartners do not question it, but freely admit the validity of complainant’s mortgage. There are no remaining creditors of the old firm, and the defendants’ claim rests upon the proposition that the property must be treated as property of the new firm in favor of creditors.

The deed to Humphrey, and his mortgage back, for the purchase price, of the land, were simultaneous acts. Humphrey’s purchase went into the new firm, — the old being dissolved by the transaction, — and was taken by the new firm subject to the complainant’s mortgage. Its assets did not include an unincumbered interest in the property received from Humphrey, who then held a legal title to a third interest in this land, but an incumbered one, —except in favor of existing creditors of the old firm,— which, together with the promise to make up the deficiency, constituted the share contributed by him to the new firm, and subsequent transactions were all subject to the Farrar mortgage. A case varying little from the present one is found in Connecticut (i. e., Beecher v. Stevens, 43 Conn. 587). This is perhaps a stronger one than that, inasmuch as in this case the copartners expressly assented to the mortgage, and arranged with Humphrey to make them whole by another and different contribution as his share of the partnership capital or assets. This is in harmony with our own case of Childs v. Pellett, 102 Mich. 558 (61 N. W. 54).

Counsel argue that this land must be treated as personal property 'belonging to the firm, and subject to the payment of debts, and that Humphrey conveyed nothing but his interest in the firm assets. In equity this land was subject to treatment as personal property belonging to the old firm, for the purpose of the payment of its debts, —possibly for the purpose of copartnership accounting,— but it was nevertheless land, of which Farrar had the legal title to the undivided one-third. He. sold and conveyed a valid legal title; but subject to these equities. One equity was cut off by agreement of the parties; the other, by payment of all debts outstanding at the time of the dissolution. The new firm’s interest was limited to the equity of redemption, as already said.

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

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


text:
    MOORE v. KELLEY.
    Intoxicating Liquors — Regulation oe Saloons — Holidays — Statutes — Repeal by Implication.
    3 Comp. Laws, § 5395, requires saloons to be kept closed on all legal holidays. By subsequent act the common council of Bay City was authorized to enact ordinances “to restrain, t license, and regulate.saloons, and to regulate and prescribe the location thereof.” Held, that such act should be construed, not as abrogating the general law, but as authorizing the city to regulate saloons in a manner not inconsistent therewith; hence that an ordinance permitting saloons to remain open on the 4th of July was invalid.

      Certiorari to Bay; Shepard, J.
    Submitted January 5, 1904.
    (Calendar No. 20,251.)
    Decided March 23, 1904.

      Mandamus by Bertram Moore to compel William M. Kelley, police j ustice of Bay City, to issue a warrant for a violation of the liquor law. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The State law provides:
    “All saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug stores,, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail, shall be closed * * * on all legal holidays, and until seven o’clock of the following morning,” etc. 2 Comp. Laws, § 5395.
    The charter of Bay City provides:
    “The common council, in addition to the powers and duties specially conferred upon them in this act, * * * shall have power within said city to enact, make, continue, establish, modify, amend, and repeal such ordinances, bylaws, and regulations as they may deem desirable within said city for the following purposes: * * *

      "" Eleventh. * * * To restrain, license, and regulate saloons, and to regulate and prescribe the location thereof.” Local Acts 1897, Act No. 448, chap. 3, § 21. .
    Assuming that the charter provision just quoted gave them authority; the common council of Bay City, on June 1, 1903, adopted the ordinance whose validity is here in question. On the following 4th of July the saloons of the city were kept open. Subsequently the relator applied to William M. Kelley, police justice of the city, for a warrant against one Charles Clave, charging him with keeping his saloon in Bay City open on the 4th of July. The respondent refused to issue a warrant on proper complaint. Application for mandamus was then made to the circuit court, and, after a hearing, was granted. Certiorari is now brought to review this ruling.

      A. H. McMillan, for relator.

      T. A. E. & J. C. Weadock and Brakie J. Orr, for respondent.
   Montgomery, J.

(after stating the facts). It will be seen that the sole question presented is whether the provision of the city charter abrogates the provisions of the State law requiring the closing of saloons on legal holidays and Sundays. The charter contains no language which in terms suspends the operation of the general law. Repeals by implication are not favored. Gordon v. People, 44 Mich. 485 (7 N. W. 69); Tillotson v. City of Saginaw, 94 Mich. 240 (54 N. W. 162); In re Bushey, 105 Mich. 64 (62 N. W. 1036). And in all cases of a claimed repeal resulting by implication from an affirmative act, except where the intent, appearing from a design to substitute the new law for the old in toto, is clearly to the contrary, it must be remembered that the repeal extends only so far as the provisions of the statutes affecting each other are inconsistent; the old law being in all other respects left in full force and effect. Endl. Interp. Stat. § 205. In other words, the two statutes should, if fairly consistent, be construed together, and both treated as in force.

Having this rule in mind, it is significant that the general statute delegates to cities the authority to fix the hour for opening and closing of saloons. The charter again authorizes the common council to enact ordinances to restrain, license, and regulate saloons, and prescribe the location thereof. It is a reasonable construction which accords to this charter provision a legislative intent to regulate in a manner not inconsistent with the State law,— that is, to prescribe additional regulations, — which purpose is further manifested by the authority given “to prescribe the location thereof. ”

A similar question arose in House v. State, 41 Miss. 737. It was there held that an act amending the charter of a town, and giving to the mayor and aldermen the exclusive right to grant licenses for the sale of spirituous liquors, would not supersede the general law requiring the application for a license to retail to be recommended by a majority of the legal voters.

The order of the circuit court is affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


author: Grant, J.

text:
    LUCAS v. MARQUETTE CITY & PRESQUE ISLE RAILWAY CO.
    Street Railways — Injury to Passenger While Alighting-Negligence — Question for. Jury.
    The fact that a passenger on a street car fell therefrom at a point 75 feet beyond the place where it had stopped to permit him to alight does not conclusively show that he jumped from the car, but, there being evidence that he had hold of the rail with one hand, and stood with one foot on the lower step, in the act of alighting, as the car started, and held on for a while thereafter, the question was for the jury.
    Error to Marquette; Stone, J.
    Submitted January 18, 1904.
    (Docket No. 107.)
    Decided March 23, 1904.
    Case by William H. Lucas against the Marquette City & Presque Isle Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff took a street car over the defendant’s road to go to his place of work at a furnace. The car stopped at the regular stopping place. Plaintiff sat in the center of the car, and was the last to leave over the rear platform. He had reached the platform, and, according to his own testimony, stood with one foot on the lower step, ready to alight, when the car started, and he was thrown to the ground and injured. He fell from the car 75 feet from the stopping place. The negligence alleged is the failure to give the plaintiff reasonable time to alight from the car, and the starting of the car before he had reasonable time, in consequence of which he was thrown and injured.
    Plaintiff testified:
    “I was on the lower step with one foot, just as I stepped off the platform, and the other was on the platform. I was bringing the other foot forward, and held on the rail with one hand, and at the same time my dinner pail in the other, when the car jumped. It hoisted Tight up. It took the senses all out of me. I didn’t know any more until after I was picked up. * * * It started up when I was in the act of getting off ^ I was in the act of stepping off.”
    The court instructed the jury that, if the plaintiff was thrown from the car while in the act of alighting, the defendant was liable, but that it was his duty to get off within a reasonable time after the car had stopped; and if the car started before he had alighted, and he had not lost his balance and could remain upon the platform, it was his duty to do so until the car stopped again. The jury rendered a verdict for the plaintiff.

      Clark & Pearl, for appellant.

      Button & Heffernan, for appellee.
   Grant, J.

(after stating the facts). There was evidence to sustain both theories. The fact that plaintiff fell 75 feet from the stopping place is not conclusive that he jumped from the car. There is evidence that he had hold of the rail with his left hand, and, with his dinner pail in his right, stood with one foot on the lower step, in the act •of alighting; and that he held on fqr a while after the car started. The question was clearly one for the jury.

Judgment affirmed.

The other Justices concurred.