text:
    SHEARER v. BOARD OF SUPERVISORS OF BAY COUNTY.
    1. Constitutional Law — Title to Aot — Highways — County and Township System.
    Act No. 149, Pub. Acts 1893 (3 Comp. Laws, § 4262 et seq.), en- » titled “An act to provide for a county and township system of roads, and to prescribe the powers and duties of the officers having the charge thereof,” and providing in what cases the county shall assume control of the highways, and in what cases they shall remain within the jurisdiction of the townships, is not obnoxious to section 20, art. 4, of the Constitution, declaring that no law shall embrace more than one object, which shall be expressed in its title.
    2. County Road System — Adoption—Vote op Electors.
    Under section 49,' art. 4, of the Constitution, providing that the county road system shall become operative only in such counties as shall adopt it by a majority vote of the electors of said county, a majority of the votes cast at the election is sufficient for the adoption thereof.
    3. Same — Bonds—Validity—Curative Legislation.
    Section 49, art. 4, of the Constitution, provides that no county shall issue any bonds for county roads except on a two thirds vote of the supervisors elect, and on approval by a majority vote at any election. A vote of the electors in favor of an issue of bonds was invalid, in that the bonds were to run for 30 years, whereas by section 3484, subd. 8, 1 Comp. Laws, all ' county bonds are limited to a period of 15 years. Held, that the proceedings could not be validated by a subsequent curative act, so as to authorize the issue of the bonds.
    Appeal from Bay; Shepard, J.
    Submitted October 10, 1901.
    Decided November 4, 1901.
    Bill by Gr. Henry Shearer and others against the board of supervisors of Bay county and others to restrain the issue of certain bonds. From a decree dismissing the bill, complainants appeal.
    Reversed.

      E. A. Gooley (J. L. Stoddard, of counsel), for complainants.

      E. E. Anneke, Prosecuting Attorney (U. JR. Loranger, of counsel), for defendants.
   Montgomery, C. J.

The bill in this case was filed by a number of taxpayers of the county to restrain the issue of $100,000 of bonds for the purpose of extending the county road system. The bill alleges that the levy of the tax on the property of complainants to meet the bond issue would exceed $100, and that the amount levied upon the property of several of the complainants individually would exceed $100. Under the amended pleadings, two questions are presented: First, whether the county road system was legally adopted in Bay county; and, second, whether the issue of the $100,000 of bonds in question was lawfully authorized by a vote of the electors, and, if not, whether the curative act of the legislature has remedied the defects.

Section 49 of article 4 of the Constitution provides that the county road system shall become operative only in such counties as shall adopt it by a majority vote of the electors of said county, after said question has been submitted to them by a two-thirds vote of all the members-eleot of the board of supervisors, at a general or special election called for that purpose. Following the adoption of this constitutional amendment, the legislature of 1893 passed Act No. 149, to provide for a county and township system of roads. 2 Comp. Laws, § 4262 et seq. It is contended that this is obnoxious to section 20, art. 4, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title. We think the act is not open to the objection raised. The general purpose of the act is to provide for a system of highways, and, in its details, it provides in what cases the county shall assume control of them, and in what cases they shall remain in the jurisdiction of the township authorities. The case of Davies v. Saginaw Co. Sup'rs, 89 Mich. 295 (50 N. W. 862), presented no such question. It was there held that certain provisions of the act under consideration were not within the purview of the title. Such cannot be said of the present act, as all of its provisions come within the scope of the general title.

It is further insisted that the vote by which it was determined by the electors of the county of Bay to adopt the county road system was never legally adopted, for the reason that a majority of all the electors in the county did not vote affirmatively upon the proposition. It does appear that a majority of all those who availed themselves of the opportunity to vote, voted affirmatively; and the question presented is whether, under the language of the Constitution above quoted, a majority of the votes cast at the election is sufficient. As was said by Mr. Justice Geant in Stebbins v. Judge of Superior Court, 108 Mich. 695 (66 N. W. 594), the authorities which bear upon this question are very numerous, and not in harmony. But the determination, as a rule, depends upon the peculiar language of the constitutional provision or of the statute which submits to a vote of the people the question to be determined. The purpose in every case must be to ascertain the intent of the enactment. Thus, in Stebbins v. Judge of Superior Court, above cited, the court construed a provision- requiring an affirmative vote of the “qualified electors,” “by a majority of their votes cast at any regular election, or at a special election,” and held that a majority of the votes cast upon the particular proposition in question was not sufficient. In so holding we distinguished cases which we think presented substantially the question involved in this case. In that case it will be noted there was a ready means of determining, in case of a general election, what voters availed themselves of the opportunity of voting at the election. But in the present case there is no machinery provided, and the result could never be definitely ascertained, if the construction contended for by complainants is to prevail, until an investigation aliunde the record. In many cases this consideration has been deemed a controlling one in determining the intent of the lawmakers. It is true that in North Carolina a provision requiring a vote of “a majority of the qualified voters • therein ” was construed to mean voters who had, previous to the election, qualified themselves, and had their competency to vote determined by a board of registration. McDowell v. Construction Co., 96 N. C. 514, 530 (2 S. E. 351). The very language of the provision of our Constitution repels such a construction. In McCrary, Elect. § 208, it is laid down that:

“Where a statute requires a question to be decided or an officer to be chosen by the votes of ‘a majority of the voters of a county,’ this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast. * * * In such a case, the only proper test of the number of persons entitled to vote is the result of the election, as determined by the ballot-box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote, who did not do so. The ‘voters of the county,’ referred to by all such statutes, are necessarily the voters who vote at the election, since the result in each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast.”

This view has the support of the Supreme Court of the. United States in an opinion by Mr. Justice Matthews. County of Carroll v. Smith, 111 U. S. 556 (4 Sup. Ct. 539), at page 565. See, also, State v. Grace, 20 Or. 154 (25 Pac. 382); Walker v. Oswald, 68 Md. 146 (11 Atl. 711); Yesler v. City of Seattle, 1 Wash. 310 (25 Pac. 1014); Metcalfe v. City of Seattle, 1 Wash. 297 (25 Pac. 1010); State v. Renick, 37 Mo. 270. In our opinion, the county road system was properly and legally adopted in Bay county.

The next question is whether the bonds in question were properly authorized by a vote of the electors. The same section of the Constitution provides that no county shall incur any indebtedness or issue any bonds for the construction or maintenance of county roads, except upon a vote of two-thirds of all the supervisors elected, and then to be approved by a majority vote at any general or special election. Acting undor this constitutional provision, the legislature, in the act above referred to, authorized the issue of bonds to raise money for the construction of roads, upon a vote of the electors of the county. 2 Comp. Laws, § 4283. The board of supervisors of Bay county, assuming to act under this authority, submitted to the electors the proposition of issuing bonds to run for a period of 30 years. Under the statute, the bonds could only be made payable within 15 years. 1 Comp. Laws, § 2484; McMullen v. Ingham Circuit Judge, 102 Mich. 608 (61 N. W. 260); Board of Sup’rs of Alpena Co. v. Simmons, 104 Mich. 305 (62 N. W. 292). It is also contended that irregularities occurred in the notice of the election and in the manner of taking the vote.

It appears to be conceded by defendants that these bonds cannot legally be issued unless the curative act shall be upheld. Act No. 286, Local Acts 1901. This act was passed on February 20, 1901, and, after reciting the action taken in submitting the question to the electors, enacts that the board of supervisors is authorized to issue the bonds of the county in the sum of $100,000, and that the bonds shall become due and payable 30 years from their date, and bear interest at 3J per cent., as provided in the original proposition.

The rule as to what may properly be done by a curative act is clearly stated in Cooley, Const. Lim. (6th Ed.) p. 457:

“If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is some-1 thing the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.”

It is urged by defendants’ counsel that the curative act in question is within the rule; for, it is said, with great appearance of plausibility, the legislature might have provided in the first instance for submitting the question to the electors of issuing bonds running for a period of 30. years, and, as the legislature might have so provided in the first instance, it may now, by a curative act, validate the action taken.

We think there is a fallacy in this position. At the time when this vote was taken, it must be conceded that there was'no power to issue bonds running for a longer period than 15 years. There was no existing authority at that time, on the part of the board of supervisors, to submit the proposition which it proposed to the electors. In view of the constitutional provision above quoted, the legislature had no power to dispense with a vote of the people upon the question. We have, then, a case where, when the question was submitted to the people, every elector had the right to assume that no action which might be taken would be valid, as the proposition submitted was, by the express terms of the statute, nugatory. It is evident that many refrained from voting, whether for this reason does not appear, but it is not a violent assumption to infer that they' treated the attempt at an election as abortive. It is not a case where the legislature might have dispensed with the necessity of any election whatever, as was true in many of the cases cited, but, under the Constitution, the electors had a right to have submitted to them an authorized proposition. The vote of the board of supervisors, submitting the question, was in itself unauthorized, and the electors had the right to so treat it. It cannot be said, therefore, that the electors have had the opportunity contemplated by the Constitution to vote upon the question of issuing these bonds.

In some of the cases cited by defendants’ counsel there was a subsequent vote of the people provided for by the curative act. This is true of the following cases: Booth v. Town of Woodbury, 32 Conn. 118; Baldwin v. Town of North Branford, 32 Conn. 47; City of Bridgeport v. Railroad Co., 15 Conn. 475. In Bartholomew v. Town of Harwinton, 33 Conn. 408, it was said:

“The law is unquestionably retroactive and absolute. But it is not contrary to any constitutional prohibition, nor, in our opinion, so unjust as to violate the principles of the social compact.”

It will be seen that in that case the court would, in order to hold the act unconstitutional, have had to imply a constitutional provision prohibiting the legislature from foisting debts upon municipalities without their consent, while, in the present case, the question is whether a vote of the electors, invalid at the time it was taken, can, by a subsequent act of the legislature, be validated, when, under the Constitution, no legislative authority to incur the debt could be given effect without a vote of the electors. The same is substantially true of County of Otoe v. Baldwin, 111 U. S. 1 (4 Sup. Ct. 265), where it was held that the legislature had the power to authorize the issue of the bonds with or without a popular vote. So, in the case of Single v. Marathon Co. Sup’rs, 38 Wis. 363, no popular vote was had at any stage of the proceedings, and the court held that none was necessary. In Grim v. School District, 57 Pa. St. 433 (98 Am. Dec. 237), an act was held good validating bounty taxes assessed by a township at a public meeting. There was in that case an antecedent vote of a majority of the citizens of the township. In Schofield v. Watkins, 22 Ill. 66, where the court hold valid an act legalizing the acts of officers in attempting to form a school district, the court say: “There can be no doubt that the legislature have the power to form a school district.” In re Sackett St., 74 N. Y. 95, is a case where public improvements had been made and paid for by the municipality. It was said that “the legislature can adopt and sanction an improvement or an expenditure which it could previously authorize.” In City of Lowell v. Oliver, 8 Allen, 247, the question was whether the State could reimburse cities and towns for bounties paid to volunteers, thus ratifying their action; and it was held that it could. In Comer v. Folsom, 13 Minn. 219, it was said that it was competent for the legislature to give bounties, “and to tax the citizens generally therefor; and, if it had the power» it had the right to delegate it to the several towns or counties.” It is apparent, therefore, that the legislature was restricted by no constitutional provision as to the manner in which the municipalities should assent to such action.

We have found no case which deals with the precise question here involved. The two cases most nearly approaching the one in question are, perhaps, Hasbrouck v. City of Milwaukee, 13 Wis. 37 (80 Am. Dec. 718), and Marshall v. Silliman, 61 Ill. 218. In Hasbrouck v. City of Milwaukee there was legislative authority for the city to incur an obligation to .the amount of $100,000 for the improvement of the harbor. A contract for expending a much larger sum was entered into. An enabling act was .afterwards passed, and it was contended that, from and after the passage of such enabling act, the agreement for the excess became valid and binding upon the city. The court, in an opinion by Chief Justice Dixon, state the question to be:

‘ ‘ Can the legislature, by recognizing the existence of a previously void contract, and authorizing its discharge by the city, or in any other way, coerce the city, against its will, into a performance of it, or does the law require the assent of the city, as well as of the legislature, in order to make the obligation binding and efficacious ?”

His decision of the question is that “the latter act [that is, the assent of the city], as well as the former [thelegislative act], is necessary for that purpose, and without it the obligation cannot be enforced.”

It may be urged in the present case that the county, through its board of supervisors, by the issue of the bonds-in question, might be said to assent to the legislative act. But the answer to that is that the Constitution prescribes, the manner in which assent to incurring such an obliga- * tion as is sought to be created may be given, namely, by a vote of the electors.

In Marshall v. Silliman the electors of the township, at a regularly called meeting, had voted in favor of creating a debt of $15,000. There was no law authorizing the creation 'of this debt in existence at the time. A subsequent curative act was passed. It was said:

“It cannot be said that the town has ever consented to' the creation of this debt. The so-called ‘vote’ was an idle form. Persons opposed to the subscription were under no necessity or obligation to vote against it, because they had a right to regard the entire proceeding as a nullity. The vote can no more be accepted, as the action of the town, or as giving the consent of the town to the creation of this debt, than would a resolution adopted by the same number of persons at one of their dwellings, or in a casual encounter at a street corner. Neither can the subsequent issue of the bonds be taken as showing the assent of the town. That was the mere ministerial act of the supervisor and clerk, performed in obedience to the act of the legislature.”

It is further said:

“The town supervisor and clerk, who issued theSe bonds, do not represent a township, as the board of trustees represent an incorporated town, or the common council represent a city. The supervisor and town clerk are but a part of the corporate authorities.”.

The conclusion was that the curative act was invalid.

The reasoning of the court in the case last cited is peculiarly applicable to the present. In this case, as in that, the attempted vote authorizing these bonds was a nullity. It was not within the power of the legislature to authorize the county authorities to issue these bonds, and thus create an indebtedness against the county, without a vote of the electors. The Constitution stands in the way. If the legislature could not, in the first instance, do this, the wholly unauthorized vote of as many of the electors as chose to take part in a proceeding not authorized by law cannot be held to fulfill the requirements of the Constitution.

We distinctly limit this holding to a case where, as in the present, the proposition itself upon which the vote is cast is one upon which the voters at the time had no legal authority to pass. We do not determine that any irregularity in the election, or even want of the statutory notice, would so far render the proceedings invalid that they might not be validated by legislation. We leave that question for determination when a decision upon it shall be required. But, for the reasons pointed out, we hold that in this case the curative act was beyond the power of the legislature.

It follows that the decree dismissing the bill must be reversed, and an injunction will issue in accordance with the prayer of the bill.

Hooker, Moore, and Long, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    BEUNK v. VALLEY CITY DESK CO.
    1. Negligence — Boiler, Explosion — Prima Facie Case.
    In an action for injuries caused by the explosion of a boiler, evidence that the boiler, though adapted to a pressure of not more than 60 pounds, was run with the safety valve set to blow off at 90 pounds, aijd that, to defendant’s knowledge, it was carrying a pressure of over 80 pounds at the time of the accident, together with the testimony of experts, based on an examination of the boiler after the accident, that the explosion was causad by overpressure, was sufficient to make a prima facie case.
    2. Same — Expert Testimony.
    Such expert testimony was properly admitted, the witnesses • having stated the grounds for their opinions.
    3. Same.
    Expert testimony was also admissible on the issue of whether or not the safety valve had been negligently and unskillfully repaired.
    4. Same — Corporations—Agency—Admissions .
    But statements made in a casual conversation by the manager of the defendant corporation, after the accident, were not competent as admissions of the corporation.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted October 10, 1901.
    Decided November 4, 1901.
    Case by William Beunk, Jr., against the Valley City Desk Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. IP. & W. H. Me Garry, for appellant.

      Hatch & Wilson, for appellee.
   Hooker, J.

The plaintiff worked at a boring machine in defendant’s factory, in proximity to a brick wall, beyond which was the boiler-room of the establishment. An explosion of the boiler caused the wall to fall upon and injui’e him. He recovered a judgment against the defendant in an action for negligence, and defendant has appealed.

The declaration, as originally filed, counted upon the. wanton and negligent maintenance of a weak boiler and an undue pressure. Plaintiff’s proofs were made, and after the denial of a motion to direct'a verdict on behalf of the defendant, and, the introduction of some testimony by the defense, a count was added by leave of the court, charging the defendant with wantonly and negligently employing an unqualified man for engineer, who attempted to remedy a defect in the safety valve, and that, by reason of his attempted and unskillful repairs, the explosion resulted. It is contended that the plaintiff failed to make aprima facie case, and that the verdict should have been dii’ected.

There was testimony tending to show that the boiler was not one which could be safely subjected to a pressure of over 60 pounds, that it was run with a safety valve set to blow off at 90 pounds, and that the boiler, immediately before the explosion, carried over 80 pounds of steam, and that this was necessary to perform the work expected of it, and that the defendant knew and directed it. There was also testimony that an inspection of the boiler, made after the explosion, indicated, in the opinion of the witnesses, that the explosion was from over steam pressure. Error is assigned upon the admission of some of this testimony, but, assuming it to be admissible, we think it made a case for the jury. We find no evidence of wantonness, and we are not advised that the case went to the jury upon that theory.

The boiler had been in use a number of years, having been made about 1888, and a year later repaired, by a boiler maker named Brobst. The boiler was in charge of an engineer, and there was testimony tending to show that he was a competent-man. There was also proof that it was usual for the engineers employed similarly to clean and inspect their boilers at proper intervals, and to make adjustments and ordinary repairs of the boilers and machinery under their charge, and that such was the custom of the defendant’s engineer. It was shown, and not disputed, that in January, 1898, a tube began leaking in this boiler. A qualified person was employed to make repairs, and upon examination the back head of the boiler was found to be fractured. The defendant’s manager was informed of it, and advised that it should have a new head. He replied:

“ ‘ Well,’ says he, ‘ we are very busy in the shop, but I want things right.’ He says, ‘Can you hurry things along ? ’ I said, ‘ It won’t take much longer; we will put on a double gang, and work the job night and day;’ and so he consented, saying, ‘Yes, I won’t run no chances; I want it right.’ He said he wouldn’t run any chances; he wanted the boiler made safe; and we took the head out and examined the shell inside; had it cleaned inside; pounded it with a harnmei*, and sounded all over, and had the scale pounded off, and the boiler makers and I went inside and underneath, and examined it to see if there were any corroded places in the boiler shell, and we didn’t find any. Then the job was worked with a double gang, — a gang over there nights and daytimes. There were from nine to twelve men working on the job at that time, and we all- conceded it was a good, safe repaired boiler. When I turned the boiler over to Mr. Hodges, after we got through repairing it, in my opinion it was safe and sound, and I pronounced the boiler safe. Before I turned the boiler over to Mr. Hodges, I applied upon it a hydraulic test of 125 pounds pressure. According to my experience, after a boiler is subjected to 125 pounds hydraulic pressure, it would be safe at between 90 to 100 pounds. It would be safe, in my opinion, to work every day at 90 to 100 pounds. When I had the head out of the boiler, and made the examination, in hammering I did not discover any flaws or lagging or blistering in the shell. This work was done by myself and the man who worked under me. I was right in under the boiler and on the inside myself after the head was taken out, and I saw no defects of the character mentioned. When the hydraulic pressure was put upon the boiler, I discovered no leaking of water through the seams. There was a slight sweating from the new work, and a little in the •calking where the new head was put in. That is generally so when you fill a boiler up. The sweating is produced by the difference in the temperature on the inside ■of the boiler and that on the outside.
“Q. I say when the boiler had been completed you considered it a safe and sufficient boiler, did you not ?
“A. Yes, sir.”

This testimony was uncontradicted, so far as the statements of fact contained in it are concerned. The engineer testified that the boiler always blew off at 90 pounds; that it did so the morning of the accident; that, on the day of the accident, the safety valve and steam gauge were in perfect working order, and that, four or five seconds before the accident, he had between 80 and 85 pounds of steam; that he had just looked at the steam, and turned around, when the explosion occurred.

The boiler maker, Brobst, was called as a witness for the plaintiff. He testified that he made the boiler in 1888 or 1889, — possibly 1887. A year later he took it to his shop, and repaired it. It had been fired without water, and the bottom had sagged down. He put a new bottom into it and fixed it as good as new. He next saw it after the explosion, and looked the plates and tubes over, to see if he could determine the cause of the explosion. He was asked the result of his observation, and, under objection, was allowed to state:

“From what I.could find- on the boiler, the explosion was caused by overpressure, — overloading.”

He afterwards stated the reasons and evidences which led him to believe that it did not result from low water. He testified that the plates were very hard and crystalized, and was then asked:

Q. Did you notice any other peculiarity about the explosion ?
“A. Nothing to indicate anything else, only that the boiler had an overload, — more than she could carry. From the plates there was no indication of low water.”

He also testified that the hydrostatic test is the only practicable one to make after repairing a boiler, and should enable a boiler maker to know whether the boiler is capable of standing any pressure. He testified that his examination, after the accident, showed the boiler clean, free from scale, and in fair condition, and he could discover nothing which indicated a want of proper care. He gave it as his opinion that from 50 to 60 pounds of steam would be a big load for that boiler to carry. He also testified that', when he repaired the boiler, he made it as good as a new one, and put on 150 pounds hydraulic test.

There was evidence tending to show that, some weeks before the accident, the safety valve leaked steam. After grinding the seat without remedying the trouble, the engineer discovered that the valve did not sit down square,, owing, as he thought, to the effect of the weight, which was on one side. Thereupon he put on a lever and ball on the opposite side, which cured it, not increasing the pressure necessary to raise the valve. He testified that it worked all right, and blew off at 90 pounds the day of the accident, and that he did this work without instruction. Brobst testified that he never saw a valve fixed that way, and that in his opinion it was not safe.

Brobst was also permitted to testify to a conversation with Hodges, defendant’s manager, when he was at the scene of the accident, after the explosion. He said:

“A. He was standing alongside of the brick pile there where the boiler stood; had some men working there; and I said to him, ‘It is quite a bad accident you had here.’ He said, ‘Yes.’ I said, ‘It might have been worse.’ He said, ‘Yes; it might have been worse.’ I said, ‘What steam pressure were you carrying ?’ He said, ‘ The engineer said we had 95 pounds.’
Mr. McGarry: I believe that is hearsay; I will object to it as hearsay.
The Court: It may be received.
“Mr. McGarry: Note an exception.
“The Witness (continuing): He says, ‘ It came on cold the last couple of days, and we had to run the pressure up in order to heat the building and do our work.’ He said, ‘We have a new boiler ordered, but have been unable to get it in.’
“Mr. McGarry: I object to tíiat as absolutely incompetent and irrelevant.
The Court: It will be received.
“Mr. McGarry: Note an exception. . I move to strike out that statement.
“The Court: Overruled.
“Mr. McGarry: Note an exception.
“ Q. Was there anything further said ?
“A. That was about all the conversation I had with him. I walked over to the boiler, and looked it over. I told him 95 pounds was awful big pressure to carry on that old boiler.
“Mr. 'McGarry: I object to it as incompetent.
The Court: The objection is overruled.
“Mr. McGarry: Note an exception.
Q. Go on.
“A. I told him 95 pounds was-too much to carry on that boiler. He said, ‘Yes;’ that they had run the pressure up for the last couple of days on account of being cold, but the new boiler that they had ordered they hadn’t been able to get in yet.
Q. Was there nothing further said ?
“A. That was about all.
“Mr. McGarry: I move to strike out the entire testimony of the witness in reference to the conversation with John Hodges.
“ The Court: Overruled.
“ Mr. McGarry: Note an exception.”

Several questions are raised upon the testimony of Brobst. It is said that it was error to permit him to express an opinion upon the cause of the accident, or upon the safety of the valve as repaired; but we think that the former was proper, in view of his explanation and reasons subsequently given. As to the repair of the valve, it was a mechanical device, original with the maker apparently, and only experts would be competent to determine its efficacy or safety. Brobst was shown to be competent to testify upon the subject as an expert.

The alleged statements of Hodges were received as admissions of the defendant corporation. They were not made in any transaction in the line of his duty, but occurred, if at all, in a casual conversation after the expíosion. Hodges was an agent of the company, and as such had no authority to bind it by admissions of this character, which did not accompany any official act. See Andrews v. Mining Co., 114 Mich. 379 (72 N. W. 242), and cases cited; Peek v. Novelty Works, 29 Mich. 313; Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 89; Maxson v. Railroad Co., 117 Mich. 222 (75 N. W. 459). See, also, Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 255 (47 N. W. 104); Bond v. Railroad Co., 62 Mich. 651 (29 N. W. 482, 4 Am. St. Rep. 885); Roux v. Lumber Co., 94 Mich. 611 (54 N. W. 492).

It is said by plaintiff’s counsel that the latter case sustains their position. That case recognizes the general rule stated above, but holds that the error was cured by the subsequent testimony of the agent alleged to have made the admission. This case should be distinguished, as it falls within the rule laid down in the opinion of Mr. Justice Moore in the case of Van Alstine v. Kaniecki, 109 Mich. 322 (67 N. W. 502). As in that case, this testimony was offered as substantive admissions of the principal. Not only that, but the witness was permitted to state his opinions, then and there expressed to the agent, as to the matter under discussion. This testimony was clearly erroneous and injurious.

We think it unnecessary to discuss the other assignments of error. The judgment is reversed, and a new' trial ordered.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


text:
    BATTERSBEE v. CALKINS.
    1. Bills and Notes —Equitable Defenses — Sale and Repurchase by Payee.
    Where the payee of a note sold it to a bona fide purchaser, who transferred it to an agent of the payee, it was not free from equitable defenses in the hands of such agent.
    2. Sane — Attorney and Client — Privileged Communications —Instructions to Jury.
    Where, in an action on a note, defendant claimed that the payee had sold the note to an innocent purchaser, and repurchased it through plaintiff, as agent, for the purpose of barring equitable defenses, all of which negotiations had been conducted by the payee’s attorney, it was not error for the court, on the examination of the attorney as a witness, to inform counsel that, though the witness would not be compelled to produce the correspondence between himself and the payee, his failure so to do might be commented on to the jury.
    3. Same — Prima Facie Title.
    Possession of a note indorsed in blank is prima facie evidence of a right to sue thereon.
    4. Same — Authority of Bank Cashier.
    The cashier of a bank has presumptive authority to maintain an action for the collection of its paper.
    Error to Oakland; Smith, J.
    Submitted October 10, 1901.
    Decided November 4, 1901.

      Assumpsit by Frank J. Battersbee against Philip Calkins on a promissory note. From a judgment 'for defendant, plaintiff brings error.
    Reversed.

      William H. Aitken, for appellant.

      Charles F. Collier (John H. Patterson, of counsel), for appellee.
   Hooker, J.

Myers & Co., residents of Niagara Falls, N. Y., were the payees and holders of the note in suit. It was a negotiable promissory note, payable to their order. It was sold before maturity to the Citizens’ Savings Bank of Detroit, under circumstances which admittedly made the bank a bona fide purchaser. It was sold to this bank by E. F. Bacon, the attorney of Mjmrs & Co., to whom it had been sent for collection. It does not appear whether or not Myers & Co. directed such sale. Bacon indorsed the note before sale in blank, as Myers & Co. had previously done. The note went to protest for nonpayment, and subsequently it was indorsed to “ any bank or order,” over the signature of the Citizens’ Savings Bank, and transferred to the State Bank of Croswell, which sent to the Citizens’ Savings Bank its check for the amount due upon the note. The plaintiff is the cashier of the Croswell bank, and testified that he is not the owner of the note, having brought this action for the benefit of the bank. This is a substantial statement of plaintiff’s case.

The defendant, who is the maker of the note, sought to show that the note was obtained by fraudulent representations made by an agent of Myers & Co. He caused Bacon to be called as a witness, who testified that he received the note before maturity for collection, and indorsed and sold the note to the Citizens’ Bank, and received payment of the consideration, which he put in the bank to his own credit, and checked out, as he did other money. He testified that he sold the note because he wanted to, and did not know that he was directed to do so by Myers & Co. It was shown that, after protest of the note, Bacon had a conversation about the note with a stockholder and director of the Croswell bank, who was also its attorney, who said that his bank would take it. Bacon also wrote the plaintiff, who was cashier of that bank, about the, note, as did also the Citizens’ Bank, after Bacon had told its officers that the Croswell bank would take the note. The court permitted the jury to find that the purchase of the note by the Croswell bank was collusive, as agent for Myers & Co., — holding that, if it was not a purchaser in the ordinary sense, it would not be entitled to set up the bona fides of the Citizens’ Bank, — and refused to direct a verdict for the plaintiff.

The judge instructed the jury that:

“ Upon the third proposition, I need say but little about it, outside of the request that I shall give you, except to say that it does appear, if I am correct, that the note was not indorsed for collection by the bank over to Battersbee, and that the suit was not brought by Battersbee for the use and benefit of the bank, but was brought in his own name, and the plaintiff admits he was not the owner. Beyond that, I think I need not say anything, except as to what will be covered by the request. On the part of the defendant I charge you as follows, and the request has a bearing upon the second and third propositions involved in the case: If the jury find from the evidence that the plaintiff was not the owner of the note in suit at the time the suit was brought (I have already stated to you that he does not claim to have been the owner when suit was brought), then, under the pleadings, the plaintiff is not entitled to recover, unless he has shown affirmatively, by a preponderance of evidence, that he had authority to bring the suit; and I state it in that way because there is no indorsement by the bank at Croswell to the plaintiff, and no authority in writing to bring the suit in his own name is produced at the trial. I ought to add to that, gentlemen, I think, however, that if the bank did give Mr. Battersbee, as its cashier, authority to collect this note, and he brought suit with full knowledge of the bank, and for its use and benefit, and that is all there is of that part of the case, then you could not refuse collection of the note merely because the suit happened to be brought in the name of Battersbee, rather than in the name of the bank. But I mean to leave it in shape that, the bank not having used the note or any of the proceeds from Batters-bee after collection, the authority to bring suit must have been affirmatively shown by the plaintiff, before he could recover.”

The plaintiff’s counsel says that, being indorsed in blank, the possession of the note was sufficient proof of plaintiff’s right to sue, and that it was error to permit the jury to defeat the plaintiff upon this ground, which they may have done under the charge.

In the case of Kost v. Bender, 25 Mich. 515, it was held that the payee of a note could not avoid the equities in favor of the maker by repurchasing the note from a bona fide holder, to whom he had sold it. This rule should apply in this case, if, as claimed, the transfer to the Croswell bank was colorable only, to cover an actual payment or repurchase by Myers & Co., or by their attorney on their behalf. There was testimony from which this might be inferred; and in this connection we may add that the conduct of the plaintiff and Myers & Co. and their attorney, as well as any concealment or refusal to show the true inwardness of the transaction, were in the case for the consideration of the jury, and it was not error on the part of the judge to so state, or to give the instruction that “I think I should feel obliged to decline to compel him to produce the letters, but you may comment upon it if the case goes to the jury;” and on the argument to the jury defendant’s attorney, following the suggestion of the judge, says, “You may take into consideration the attitude of Mr. Bacon on the stand, the interest he has in the case, and the refusal to submit to you the letters and correspondence.” There may be cases where such instruction would not be warranted, but, in view of the relation-of all of these persons to the transaction, we think it proper in this case. See Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795).

We are of the opinion, however, that the court erred in his instruction upon the subject of plaintiff’s ownership. The plaintiff was trying his case upon the theory that the bank owned the note. If it did own it, it was lawful for it to permit suit to be brought upon it in the name of another, and, the note being indorsed in blank, the possession was presumptive evidence of ownership by the plaintiff. Furthermore, the plaintiff was the cashier of the bank, and presumptively authorized to represent the bank in the collection of its paper. Whether the bank owned this paper, or held it as agent for Myers & Co., there was no testimony in the case tending to overcome the presumption that the plaintiff was entitled to bring an action upon the note. He had a presumptive title, he was cashier, and represented the bank in whatever capacity the bank acted (Boyd v. Corbitt, 37 Mich. 52; Moore v. Hall, 48 Mich. 143 [11 N. W. 844]; Coy v. Stiner, 53 Mich. 42 [18 N. W. 552]); and, if it did not act at all in the premises,. there is nothing to show that plaintiff was not authorized to collect the note for whoever owned it.

The judgment must be reversed, and a new trial ordered.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


text:
    SHAW, KENDALL & CO. v. BROWN.
    1. Partnership Associations — Bills and Notes — Names.
    2 Comp. Laws, § 6081, requiring partnership associations to use their full names in promissory notes, has no application to a note made to, and not by, such an association.
    2. Same — Indorsement.
    By 2 Comp. Laws, § 4870, notes payable to fictitious persons are made of the same effect as if payable to bearer. In an action on a note given to, and indorsed to plaintiff by, a partnership association in other than its true name, held, that the variance was immaterial, as the indorsement was either effective or unnecessary to pass the title.
    3. Same — Limited Liability.
    2 Comp. Laws, § 6083, declares that no liability shall be created on the part of a partnership association for an amount exceeding §500, unless reduced to writing and signed by two managers. Held, that the transfer by indorsement of notes belonging to such an association, in payment of a valid claim against it, was not the incurring of a liability in such sense as would prevent the indorsee from taking title to the notes.
    4. Bills and Notes — Bona Fide Holder — Order oe Proof.
    Where, in an action by a transferee of a promissory note plaintiff, at the outset, makes a prima facie case of bona fide holding, it is not error to exclude evidence of fraud in the inception of the note, or want of consideration therefor, until such prima faeie case has been attacked by competent evidence.
    Error to Wayne; Rohnert, J.
    Submitted October 11, 1901.
    Decided November 4, 1901.

      Assumpsit by the Shaw, Kendall & Company against Mason L. Brown on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Charles C. Stewart, for appellant.

      Palmer & Palmer, for appellee.
   Hooker, J.

The plaintiff’s action is based upon two promissory notes made by the defendant, payable to the Wolverine Oil & Gas Company, Limited. They bear the indorsement of the Wolverine Oil & Gas Company, Limited. A writ of error has been taken by the defendant, against whom a judgment was rendered in the circuit court.

The evidence indicates that the plaintiff sold to the Wolverine Oil & Gas Company of Detroit, Mich., Limited, from time to time, supplies for use in the latter’s business. The company being in need of funds, its stockholders undertook to raise an amount of money for it; and defendant gave the notes in question for his proportionate share, he being a stockholder. It is noticeable that the words “ Detroit, Mich.,” are omitted from the name of the payee in the notes; but it appears that these words are omitted in its certificates of stock, and it was commonly known by the name used in the notes, and it indorsed them in that name. The testimony of the plaintiff shows that.these notes were given to the plaintiff in payment of its claim by the proper officers of the company, and were received in payment therefor, before maturity.

Upon the trial defendant claimed that the notes were procured through misrepresentation and fraud by the "Wolverine Company, and offered testimony to prove it. He also sought to show that defendant received no consideration whatever for the notes. This testimony was excluded upon the ground that it was not competent until some evidence had been given tending to show that the plaintiff was not a bona ficle holder of the paper. The defendant alleges error upon this ruling. He also asserts that the misnomer of the Wolverine Company made the notes nonnegotiable, and that, if not, the indorsement did not convey -title, because not indorsed in the company’s true name. Error is also alleged upon the ground that plaintiff had no valid claim against the Wolverine Company.

The notes in question were made to the Wolverine Company in the name in which it saw fit to do business. Section 6081 of the statute (2 Comp. Laws) is cited as authority to the point that the full name is required in its promissory notes. Plainly, it is not applicable, having reference only to papers made by it; and we do- not mean to intimate that such would be void.

To the claim that the notes were made payable to a fictitious person, and therefore not negotiable, the statute (2 Comp. Laws, § 4870), which makes such notes the same as though made to bearer, is an answer. The defendant delivered them to the Wolverine Oil Sc Gas Company of Detroit, Mich., Limited, and that company became the owner of them. The indorsement is either effective or unnecessary to pass title to the notes to the plaintiff.

The claim that plaintiff did not pay value, because it had no valid claim against the company, is based on a statute (2 Comp. Laws, § 6083) which reads:

“No debt shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding five hundred dollars, except against the person incurring it, shall bind the said association unless reduced to writing and signed' by at least two managers.”

The debt for which these notes were given to plaintiff was the result of a running account. The aggregate exceeded $500, but there is testimony that indicates that each of the items going to make up the amount was under $500. The transfer of the notes was not the incurring of a liability, but paying it. It may be said that the indorsement creatéd a liability, if valid. But the indorsement may be effective to pay the debt, and ineffective to create a liability as indorser, like an indorsement “ without recourse.” Certainly the delivery of the property of the company to pay a valid debt is not within the letter of the statute. The case is unlike Citizens’ Sav. Bank v. Vaughan, 115 Mich. 157 (73 N. W. 143).

It was within the discretion of the court to exclude proof of fraud and want of consideration until plaintiff’s prima facie proof of bona fides was contradicted by sufficient testimony to raise a question for the jury. Drovers’ Nat. Bank v. Blue, 110 Mich. 31 (67 N. W. 1105, 64 Am. St. Rep. 327); Drovers’ Nat. Bank v. Potvin, 116 Mich. 474 (74 N. W. 724).

We discover no error in the record, and the judgment is affirmed.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit.


author:
Grant, J.
      Hooker, J.

text:
    BOND v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroads — Accident at Crossing — Signals —Weight of Evidence-New Trial.
    Where, in an action for injuries caused by a collision at' a railroad crossing, the negligence alleged was a failure to give the statutory signals, and there was the testimony of seven witnesses, including those in charge of the train, that the signals were given, as against the sole testimony of the plaintiff, a woman partially deaf, who, at the time of the accident, was sitting in a closed carriage, and whose testimony was in several respects contradictory of that given by her on a former 1 trial, a motion to set aside a verdict in her favor, and grant a new trial, on the ground that the verdict was against the weight of the evidence, should have been granted.
    Error to Washtenaw; Kinne, J.
    Submitted October 22, 1901.
    Decided November 4, 1901.
    Case by Hattie M. Bond against the Lake Shore & Michigan Southern Railway Company for personal injuries. Verdict and judgment passed for plaintiff, and, defendant’s motion for a new trial having been denied, it brings error.
    Reversed.

      C. E. Weaver (George G. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Lehmann Bros. & Stivers, for appellee.
   Grant, J.

This case is before us for the second time.

See 117 Mich. 652 (76 N. W. 102), for a sufficient statement of the case. It has been tried again, resulting in another verdict for the plaintiff. We held that, under the evidence appearing upon that trial, the court should have directed a verdict for the defendant. The situation and the facts elicited are substantially the same now as then. Plaintiff is the only witness who has made any substantial change in her testimony.

Was the defendant negligent? The negligence relied on is the failure to give the crossing signals. We said upon the former trial that there was no conflict in the evidence upon this point. Defendant introduced two new witnesses who swore positively that they heard the crossing signals given, and very quickly thereafter heard the alarm whistle given. The sole testimony relied on to sustain the verdict of the jury is that of the plaintiff and the boy Ukle. The boy’s testimony is the same as before. Upon this trial he testified:

“The first thing that attracted my attention was the alarm whistle, and I had not been paying any attention to the train until I heard that.
Q. You do not know whether the crossing signals were given or not ?
“A. No, sir. I know where the whistling post is, about halfway to our house.
■ “ Q. You do not know whether they whistled there or not, do you ?
“\A. No, sir; I did not pay any attention to it.”

Plaintiff gives the only testimony relied upon to take the question out of the former decision of this court and leave it a question for the jury. She testified upon, the second trial that she was familiar with the signals that trains give at crossings. She was then asked:

Q. State whether any such signal as that whs given for that crossing that day.
A. There was not.”

Her testimony upon the former trial is as follows: Cross-examination:

‘ ‘ Q. Prom your recollection, can you state whether the bell was rung or not ?
A. I could not tell whether the bell was rung or not.”

Re-direct examination:

Q. Do you understand he is calling your attention to what occurred at the crossing or at the station?
“A. I could not hear anything at the crossing where I was struck.
‘ ‘ Q. But just before you were struck, and after you saw the train, you say you first heard the whistle, and then the alarm whistle ?
A. Then the alarm whistle.
Q. To the time you saw the train was the bell rung?
A. I could not tell whether the bell was rung or not. When I saw the train I was listening.
Q. Then can you state that the bell at the time you were listening was not rung ?
“A.. I could not say it was not rung, but the alarm whistle made such a frightful noise I could not think of anything else. But that bell might have been ringing. I might have heard it at the same time.
Q. But, if the bell had been ringing before you heard the alarm, would you have heard it ?
“A. I should.
Q. Was it ringing before you heard the alarm ?
“A. I did not hear it.”

Upon this trial she testified that she did not know whether the bell was rung. Upon the former trial she testified she did not stop, but slowed up as she approached, the track, and all the other witnesses who saw her corroborated her. These witnesses so testified upon the second trial. Upon the second trial she testified that she did stop just as she reached the line of the defendant’s right of way, and looked and listened. She was riding in a buggy with closed sides and back. She was quite deaf in her left ear, — the one nearest the train. Her testimony upon the two trials is so contradictory that it is impossible to reconcile it. The situation is this: Seven witnesses, including those who gave the signals, swore positively that they were given. Plaintiff alone testified that the whistle was not blown, but that she did not know whether the bell was rung. A woman, partially deaf, sitting in a closed buggy, with the noise made by her carriage, is allowed under this record to outweigh the testimony of seven positive fitnesses. Her testimony, under such a state of facts, does not rise to the dignity of evidence. Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253). Such a verdict is not based upon evidence, but upon either prejudice or sympathy. The language used in Baldwin v. Railway Co., ante, 417 (87 N. W. 380), is applicable here. See, also, County of Montmorency v. Putnam, 127 Mich. 36 (86 N. W. 398).

Was plaintiff guilty of contributory negligence? She testified upon the former trial that she heard the whistle-of the train when it left the station. The engineer then testified that he did not know whether he blew the whistle as the train started, but it was not customary to do so. The train consisted of 16 freight cars. The engine, when it started, stood between 1,900 and 2,000 feet from the crossing. She was then between 250 and 280 feet from the crossing. On the second trial she testified that she heard no whistle then, but did hear the puffing of the engine and the ringing of the bell as the train started from the station. She also testified upon the former trial that she heard the rumble of the train after it left the station. She heard all these sounds while riding in a closed carriage, with the train nearly 2,000 feet away. Upon the second trial she testified that she stopped upon reaching the line of the right of way, but heard nothing, although the train could not have been over 400 or 500 feet from her. If she heard the puffing of the engine,, the ringing of the bell, and the rumbling of the train when she was from 250 to-' 280 feet from the crossing, it is impossible to believe that she would not have heard the train if she had stopped at the line of the right of way. The undoubted fact is, as she testified upon the first trial, and as all the other witnesses who saw her testified both upon that trial and upon this, that she did not stop. If, however, it be assumed that her testimony is true, and that her vision was obstructed from Ukle’s house to the railroad, while she was standing at the right of way, so that she could not see the approaching train, what was her duty under the circumstances ? The train was on time. She knew that it was either on this road or on the Ann Arbor road, but did not know which. There was nothing to induce the belief that it was on one road rather than the other. She had no right to assume that it was on the other road. It was her duty, if she could not see, to stop and ascertain, before attempting to cross, whether the train was on the track which she was approaching. This she could have determined by a wait -of two or three minutes at the longest, without alighting from her carriage. According to her theory, the trainmen could not see her, neither could she see them. They, could not know she was approaching. She might have known, by the exercise of reasonable care, that they were approaching. She could stop, as it was her duty to do. The train could not. The engineer was not called upon to ■attempt to stop until he saw her, and saw that she was in peril. The train was running at a lawful rate of speed, ■and no claim is made that the trainmen did not use all possible effort to avoid the accident when they saw she was in danger. Where two railroads were 264 feet apart, .and a person approaching very much in the same manner •as this plaintiff was approaching saw the smoke of an •approaching train several hundred feet distant, and supposed it was on the farther track, instead of the one nearest to him, and drove on under that belief, we held that he was guilty of contributory negligence, and that it was his duty to stop and ascertain which road the train was on before he attempted to cross. Brinker v. Railroad Co., 121 Mich. 283 (80 N. W. 28). If it was the duty of plaintiff to so act in that case, a like duty devolved upon the plaintiff in this case, who heard the train, and knew it was on one of two roads, but could not tell which without ■stopping. The noise of a moving train was as much a warning to her in this case as was the smoke of a moving train to the plaintiff in that. A wait of two or three minutesj as above stated, would have solved the question for Tier, and saved her injury. It was her duty to wait. I •am of the opinion that she was herself negligent. The .judge should have directed a verdict for the defendant.

. Judgment reversed, and I think that no new trial .should be ordered.

Hooker, J.

We are of the opinion that the judgment should be reversed and a new trial ordered upon the ground- that the verdict was contrary to the weight of the testimony.

Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J.


author: Grant, J.

text:
    GINGRASS v. MATHER.

    Landlord and Tenant —Surrender by Tenant — Acceptance oe Assignee op Lease.
    Plaintiff leased lands to W. for mining purposes. W. executed a sublease to defendant, and then assigned his interest thereunder to plaintiff. Soon thereafter a corporation was formed to operate the mine, to which the sublease was assigned by-defendant. A number of written agreements changing the terms of the sublease were made between plaintiff and the-corporation, of which defendant had knowledge, he being an officer of the corporation, but to which his assent was not requested, and no demand was made on him for any payments under the lease for 11 years, when this action was brought to-recover the same. Held, that the lease was surrendered, by operation of law, as to defendant, plaintiff having accepted, the corporation as her tenant.
    Error to Marquette; Stone, J.
    Submitted October 22,, 1901.
    Decided November 4, 1901.

      Assumpsit by Victoria Gingrass against William G. Mather for royalties under a mining lease. From a judgment for defendant on verdict directed by the court,, plaintiff brings error.
    Affirmed.
    August 14, 1885, plaintiff, being the owner of certain-lands, executed a lease thereof to Anson B. Miner and William L. Jones for 21 years, for the purpose of mining gold. August 19, 1885, Miner and Jones assigned it to Peter White. It provided that if a mine should be discovered after August 14, 1886, the lessees were to work it to full capacity, and pay as royalty one-tenth of the product ; but if they should not find a mine, or if they should find a mine and not work it vigorously, they were then to pay as royalty $5,000 annually at the expiration of the year. The lessees were authorized to terminate the lease by giving ten days’ written notice. On August 1, 1887, White sublet a portion of this land to defendant, Mather, for the full term of the original lease, lacking two days. The provisions of the sublease were the same-as those of the original lease. At the same time Mr. White assigned his interest in this lease to plaintiff, and paid her $5,000 as royalty.
    August 20, 1887, the Michigan Gold Company was organized, and filed its articles of association. It was in process of formation at the time of the sublease to Mather, and the sublease was piade to him with the understanding that he took it for, and was to transfer it to, the Michigan Gold Company, when organized. September 3, 1887, Mather assigned this lease to the company, by which assignment it agreed to prosecute the explorations required by the lease, or, should it decide to abandon or surrender it, to notify the plaintiff, who had become the assignee and the owner of the lease by the assignment of Mr. White. The company immediately took possession of the property, and all subsequent transactions were conducted between it through its agents and the plaintiff. By the terms of the original lease, cessation of work for 30 days at one time before a mine was discovered should work a forfeiture at the option of the plaintiff. It appears that no mine was discovered, and it is claimed by the plaintiff that the terms of the lease have not been complied with, and she seeks to recover the royalty of $5,000 per year since the date of the sublease. Neither party terminated the lease by notice.
    Several written agreements were executed between plaintiff and the Michigan Gold Company, which are important. On January 4, 1888, plaintiff executed an agreement releasing the Michigan Gold Company from any payment of cash royalty up to August 14, 1888, and allowing it to quit work entirely from January, 1888, to May 15, 1888, on certain conditions. On December 29, 1892, an agreement under seal was made between plaintiff and her husband and the Michigan Gold Company relieving the company from complying with its lease for six months, in consideration of which the company .agreed to work double the number of men required by the lease during the remainder of the calendar year. July 1, 1893, plaintiff and her husband executed under seal another agreement, providing that the Michigan Gold Company might suspend all work until May 1, 1894, without incurring any forfeiture “under the lease from the said parties of the first part,” upon condition that the Michigan Gold Company pay the taxes for the year 1893. September 24, 1894, they made another agreement with the Michigan Gold Company, releasing it from all work under the lease until June 1, 1895. June 2?, 1895, they executed a similar agreement for the suspension of all work by the company until July 10, 1895. On September 6, 1895, plaintiff and her husband, of the one part, and the Michigan Gold Company, of the other, executed an agreement under seal, by which it was agreed as follows:
    “The Michigan Gold Company has this day agreed with Peter E. Gingrass and Victoria Gingrass, his wife, that the lease now held by‘the Michigan Gold Company from said parties may be so far suspended that the said Michigan Gold Company need not keep any men at work until 30 days after notice from the said parties, Peter E. and Victoria Gingrass, that they wish this agreement suspended or vacated; and that it is understood and agreed that the said Peter E. Gingrass may take possession of the Michigan Gold Company location and property, and use the engine and other machinery without any charge therefor, in consideration of the suspension of the lease as above stated. The Michigan Gold Company will also have the right to cancel this agreement by giving the said Gingrasses 30 days’ notice at any time after the 1st -day of November next. In case either party should want to sell the property or their respective rights thereunder at any time, the time of notice may be shortened to 30 days after notice has been given by either party to that effect. The arrangement heretofore made by James E. Jopling, on the part of the Michigan Gold Company, with Peter E. and Victoria Gingrass, is to cease as of the 1st day of September, and this agreement takes its place, so that the Michigan Gold Company may cease work without prejudice to its rights under the lease; and it is understood that the said Peter E. Gingrass and Victoria Gingrass are tenants under the Michigan Gold Company, and will vacate at any time under the conditions hereinabove stated.”
    In addition to this written evidence, plaintiff, during the 11 years after this lease was executed, dealt exclusively with the Michigan Gold Company, and made no claim, verbally or written, against Mr. Mather for the payment of rent. The court directed a verdict • for the defendant upon the ground- that plaintiff had released defendant, and that the lease as to him was surrendered.

      M. H. Crocker (Tarsney & Fitzpatrick, of counsel), for appellant.

      George Hayden (.Benton Hanchett, of counsel), for appellee.

       Rehearing denied February 11, 1902.

   Grant, J.

(after stating the facts). It is matter of common knowledge that mining operations require large capital, and are seldom carried on by individuals, but almost universally by corporations. Options or leases for long terms of years are usually obtained from the fee owners by individuals, corporations formed, and the leases then assigned to the corporations. The business in this case was done in the usual way. While this fact would not release the defendant from the obligations of his lease,' it is, however, a fact important to consider in connection with the other facts in the case, and the manner in which the parties dealt with each other after the execution of the lease and until suit was brought.

The several written agreements with the Michigan Gold Company, above mentioned, changing the terms of the original lease, are consistent only with the recognition of the company as plaintiff’s tenant, and a release of the defendant from all obligation under it. Some of these agreements were executed when defendant was an officer of the company, and others when he was not an officer, but only a stockholder. Plaintiff could not have two tenants, to either of which she might look for rent at her option. Had the dealings with the company involved only the payment of rent, undoubtedly the defendant would not be discharged from liability. Payment of rent alone does not operate as a surrender, or a recognition of an assignee as the landlord’s tenant. The rule, however, is well settled that, where the landlord’s dealings with an assignee of the lease, by written agreements and otherwise, are consistent only with the theory that the parties are dealing as landlord and tenant, the. original lessee is released, and the assignee is accepted by the landlord as his tenant.

While it is probably true that defendant had knowledge of all these agreements, and some of them were made at his request as an officer of the company, this fact does not relieve the plaintiff from the legal effect of her conduct and writings. She was dealing with an entity entirely distinct from the defendant, Mather. If she had desired to hold Mr. Mather when these agreements were made changing the terms of the sublease, she should have said, done, or written something to indicate her intention to hold the defendant, or to obtain from him consent to a waiver of the changes. Plaintiff undoubtedly knew at the beginning that this lease was to be assigned to the company, and that it was to. carry on the business, develop and work the mine. Defendant was in possession of the property, if at all, only for a few days; and at no time did she make any claim upon defendant for the payment of royalty, or attempt to negotiate with him individually in regard to the various changes which were made. The court correctly held that the lease, as to defendant, was surrendered by operation of law. The case comes within the principle of the following cases: Logan v. Anderson, 2 Doug. 101; Donkersley v. Levy, 38 Mich. 54; Walsh v. Martin, 69 Mich. 29 (37 N. W. 40); Coe v. Hobby, 72 N. Y. 141 (28 Am. Rep. 120); Talbot v. Whipple, 14 Allen, 177; Levering v. Langley, 8 Minn. 107; Fifty Associates v. Grace, 125 Mass. 161 (28 Am. Rep. 218).

Judgment is affirmed.

The other Justices concurred.


text:
    WIDNER v. CHRISTIAN.
    Appeal — Review—Questions oe Pact.
    The conclusion of the court below, from conflicting testimony-taken in open court, that complainant purchased the lands in controversy in his own interest, and not as agent for defendant, is sustained.
    Appeal from Alcona; Connine, J.
    Submitted October 33, 1901.
    Decided November 4, 1901.
    Bill by John A. Widner against Frank H. Christian to restrain the cutting of timber. From a decree for complainant, defendant appeals.
    Affirmed.

      L. G. Dafoe, for complainant.

      I. S. Canfield, for defendant.
   Grant, J.

Complainant is the owner of the record title to the lands in dispute. Defendant was cutting timber therefrom, and, after notice, refused to desist. Thereupon, complainant filed this bill to restrain the acts of trespass threatened by the defendant.

Complainant obtained a deed from one Bolton, the former owner of the land. Defendant claims a parol contract with Bolton for the purchase, and that complainant was defendant’s agent in making it. Complainant denies the agency, and asserts that he purchased the lands for himself and paid for them. The question is one purely of fact, and upon this there is a sharp conflict of testimony. The proofs were taken in open court, and the court decided it in favor of the complainant. A review of the testimony would constitute no precedent of value. It is sufficient to say that the court, in our judgment, reached the correct conclusion, and the decree is affirmed, with costs.

The other J ustices concurred.


author: Montgomery, O. J.

text:
    DOMLING v. DOMLING.
    1. Deeds — Incompetency op Grantor — Successive Transac- . tions — Maintenance and Support.
    On January 17th, D. conveyed certain land to his daughter, who was mentally incompetent, and the deed was at once recorded. On March 3d thereafter the daughter conveyed the land to her brother in consideration of the support bf herself and her father during their lives; and oil the same day the father conveyed another parcel to the son. Held, that the several deeds could not be considered as one transaction, but that the first deed vested title in the daughter, and, she not being competent to convey, the deed subsequently executed by her would be set aside on application of a guardian.
    2. Same — Equitable Lien.
    In addition to the second parcel above referred to, conveyed in 1891, the father gave the son some $140 in money, and he also received $300 from the sister’s guardian. The son cared for his father until the latter’s death, in 1892, and for his sister until his subsequent death, in 1896, after which the burden was assumed by those succeeding to Ms interests. The support furnished the sister, however, was of the plainest character, and she at the same time rendered certain services about the house and farm. Held, that there were no substantial equities in favor of the son’s successors for the care of the father and sister for which a lien would be declared on the land conveyed by the latter on the setting aside of such conveyance.
    Appeal from Monroe; Kinne, J.
    Submitted October 22, 1901.
    Decided November 4, 1901.
    Bill by Joseph Domling, guardian of Isabelle Domling, an incompetent, against Anna Domling and Barbara Wallrobenstein, to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Reversed.

      E. B. Oilday and W. L. McAran, for complainant.

      John O. Zabel and Willis Baldwin, for defendants.
   Montgomery, O. J.

This bill is filed by the complainant, as guardian of Isabelle Domling, for the purpose of setting aside a deed executed by complainant’s ward to Frank P. Domling on the 3d day of March, 1891. The facts, as they appear from the testimony, are that one Moritz Domling, the father of Isabelle and Frank P., was the owner of two pieces of land, — the one a homestead of 37 acres, and another piece of 18 acres. Isabelle Domling was an unmarried daughter, who appears, by all the testimony, to have been mentally incompetent to transact any business. On the 17th of January, 1891, a deed of the homestead was made to Isabelle Domling. This was recorded on the 19th of January, 1891. On the 3d of March, 1891, Moritz Domling conveyed to his son, Frank P., the 18-acre tract of land, and on the same date Isabelle Domling went through the form of conveying the homestead to Frank P., for an expressed consideration of $1, and the care and support of Isabelle Domling and • Morit Domling during their lives, and the payment of ' their funeral expenses; and the deed contained a proviso that said Frank P. Domling should “faithfully carry out and furnish the considerations above mentioned.” It appears that Moritz Domling died in 1892, and Frank P. Domling died in 1896. His wife, the defendant Barbara Wallrobenstein, succeeded to his interests in the property. She remained unmarried for a few years, and then remarried. Frank P. Domling cared for his father until his death, in 1892, and for Isabelle until 1896. Since the death of Frank P. Domling the defendant has continued to care for Isabelle until the appointment of complainant as guardian, in January, 1900. The circuit judge dismissed the bill of complaint, upon what ground does not appear.

It is the contention of the defendants that the deeds of January 17th to Isabelle and of March 3d from Isabelle to Frank P., as well as the deed of the 18 acres on the latter date to Frank P., are to be considered as one transaction. We do not see how the transaction can be so construed. There can be no doubt of the fact that a conveyance was made to Isabelle on January 17th, and the deed at once recorded. No further steps were taken until March 3d. The title had then vested in Isabelle, and a conveyance by one competent to make it was necessary to pass the title from her. This conveyance was never made.

Defendants further contend that there are, in any event, strong equities in favor of the defendants, and that a lien should be declared upon the property in their favor. But we think that Frank P. Domling and the defendants have received adequate compensation for what they have expended upon the property and upon the care of Moritz Domling and Isabelle. It appears that the father, in addition to the 18 acres of land conveyed to Frank P. Domling, gave him some money, variously stated at $140 and $175. It also appears that the complainant sent to Frank $300. The 18 acres of land passed absolutely to Frank P. Domling and his successors, and they have all the time had the use of the land. We are satisfied that, considering the work which Isabelle was able to do about the house and on the farm, and the very plain manner in which she was clothed and supported, there are no substantial equities in favor of the defendants.

The decree, therefore, will be that the deed be set aside. “We do not think, however, that the defendant Barbara should, in the first instance, have been charged with costs, as she assumed the responsibility of the situation, as it appeared to her, in good faith. No costs of the trial court will, therefore, he awarded to either party, but the complainant will recover costs of this court.

The other Justices concurred.


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    E. G. DAILEY CO. v. CLARK CAN CO.

    1. Contracts — Proposal and Acceptance — Certainty.
    A written proposal and acceptance whereby defendant was to furnish, and plaintiff to buy, all the tin cans that plaintiff might use in its canning factory for a stated period, was not a mere option or unilateral contract, revocable by defendant at any time as to future orders, but a valid, mutual contract, binding on the parties for the time specified.

    2. Same — Fraud—Question for Jury.
    Whether defendant was misled by plaintiff into a belief that no more cans would be required under the proposed contract than defendant had previously furnished during a like period was fairly submitted to the jury.
    3. Same — Construction—Changed Conditions.
    The fact that plaintiff increased the capacity of its factory after the contract was made, resulting in a heavier demand on defendant, would not avoid the contract, where such increase was no greater than was necessary to meet the legitimate requirements of the business, and the new conditions were apparently within the contemplation of the parties when the contract was executed.

      4. Same.
    Plaintiff was not precluded by the contract from using cans already on hand, or from purchasing elsewhere cans which defendant was unable to furnish on request.
    5. Same.
    The fact that plaintiff sold its goods for less than the usual market price, thereby increasing the demand, and requiring more cans, was no defense to an action on the contract.
    6. Same — Expert Testimony — Harmless Error.
    The exclusion of expert testimony as to the extent to which the capacity of the plant had been increased was not reversible error, all of the facts in that connection, including the * number of cans used both before and after the contract, having been placed before the jury.
    Error to Wayne; Rohnert, J.
    Submitted October 23, 1901.
    Decided November 4, 1901.

      Assumpsit by the E. G. Dailey Company against the Clark Can Company for the breach of a contract to furnish certain cans. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    On November 10, 1898, the defendant made to the plaintiff the following proposition:
    “We hereby agree to supply to the E. G. Dailey Company, from date to January 1, 1900, all the cans they will use for packing in their factory on Fourteenth street, at the below-mentioned prices, delivered at their factory, Fourteenth street and railway; terms cash, and with the usual guaranty as to leaks. This agreement is made in consideration of the E. G. Dailey Company buying all the cans they may use from us at the below-named prices. In case of destruction of our factory by fire or other causes,’ we agree to furnish cans as stated in contract.
    “Gallons....................§35.00 per 1,000 Standard Cans.
    31bs.--.......-............- 15.35 per 1,000 “ “
    2 lbs_______________________10.85 per 1,000
    Friction Top___________17.00 per 1,000
    Tall lib.................... 8.00 per 1,000
    Flat 11b____________________ 8.50 per 1,000

      This contract was accepted in writing November 19th following. Defendant continued to furnish cans under the contract thus made until the ,16th day of September, 1899, when it sent a letter to the plaintiff refusing longer to carry out the contract, upon the ground that the capacity of plaintiff’s factory had been increased so as to work a violation of the contract, and offering to furnish cans at a greatly increased price, upon the stipulation that they were to be furnished without prejudice to any claim plaintiff might have by reason of the refusal of the defendant to further recognize the contract as valid. To this plaintiff on the same day replied, asserting the validity of the original contract, ordering more goods under it, and stated that, if the defendant still refused to perform the contract, the plaintiff desired to have the goods furnished without waiving its right to sue for the breach of the contract. Defendant continued to furnish goods under this arrangement until the close of the time specified in the original contract. Plaintiff paid for them at the increased price, and brought this suit to recover damages. Plaintiff recovered verdict and judgment.
    The defenses urged are:
    1. That the offer and acceptance constituted merely an option, and not a contract.
    2. That the .option or contract was secured by fraud.
    3. That the capacity of the plant was so increased as to avoid the contract.
    4. That plaintiff produced an abnormal demand by underselling the market.
    5. That plaintiff violated the contract by buying goods elsewhere.
    The errors assigned relate to the construction of the contract, the rulings upon testimony offered, and the instructions to the jury.

      Moore & Moore (Otto Kirchner, of counsel), for appellant. »

      Bowen, Douglas & Whiting, for appellee.

       Rehearing denied December 21, 1901.

       See Lanford v. Wooden-Ware Co., 127 Mich. 614 (86 N. W. 1033)

   Grant, J.

(after stating the facts). The argument of the learned counsel for defendant is that the written proposal and acceptance constituted not a mutual, but a. unilateral, contract, or a mere option, by which defendant at most was only bound to furnish such cans as plaintiff should specifically order before the offer was withdrawn, and that, after having filled all such orders, and withdrawn its offer, all liability ceased. This contract must be construed in the light of the surrounding circumstances. Plaintiff had been in the canning business since 1893. A large part of its material had been put up in tin cans. Defendant, during the year 189?, had furnished cans to the plaintiff to the number of 1,787,591, and had a contract with it covering one-half of that year, but did not supply all the cans then used. Mr. Dailey himself testified that plaintiff did not obtain all its cans used in 1897 from the defendant. Both parties understood that plaintiff would need and would use a large number of cans in its business. It was essential that they be furnished promptly as needed, in order that plaintiff might make contracts in advance, and supply the market. Defendant agreed to supply plaintiff with all that it would use in its factory during the time covered by the contract, and in consideration thereof plaintiff agreed to buy all the cans it would use in its business, at the prices named. Neither knew just how many would be required. One was willing to bind itself to buy what it would use, and the other was willing to bind itself to manufacture and sell that number, whatever it might be. The use of tin cans by plaintiff during the life of the contract was contemplated by both parties. It was made with the knowledge that the greater part of the plaintiff’s goods had always been put up in such cans, and that they had always been in use by other manufacturers of like goods. So anxious was each party to bind the other for the entire time, that it was agreed that defendant should furnish the cans even if its factory was destroyed by fire. The proposal and the acceptance constituted a mutual contract, binding upon both parties. Plaintiff could not go outside to buy without violating it, and the defendant •could not refuse to supply plaintiff’s demands without equally violating it. The validity of the contract was recognized and acted upon by both parties for nearly a year, and to within three months and a half of its termination. Not until the price of tin — which constituted the main item of cost in these cans — was increased did defendant raise any question under the contract. Neither -does it appear to have had any difficulty in furnishing all the cans plaintiff ordered. The case is ruled by Cooper v. Wheel Co., 94 Mich. 272 (54 N. W. 39, 34 Am. St. Rep. 341), and Hickey v. O’Brien, 123 Mich. 611 (82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227), where contracts of this character are discussed and authorities cited. See, also, Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85 (43 N. E. 774, 31 L. R. A. 529). The court below was correct in holding that the contract was valid.

The questions of fraud and the increase of the capacity of the plant may be disposed of together, as the testimony upon which these defenses are based is substantially the same. Both questions were left to the jury. Upon the question of fraud the instruction of the court is summed up in the following excerpt from the charge:

“If you find that the plaintiff represented or induced the defendant to believe that, at the time the contract was made, in 1897 it had used no other cans than those bought of the defendant, and that the quantity of cans then used at the time of making the contract would be substantially all the cans used or bought in 1897; and if you find further that the plaintiff had, in 1897, used other cans than those he had bought of the defendant; and if you find the plaintiff had greatly increased the capacity of his factory, and knew that it was using more cans than he had used in 1897, and that he was using more cans in 1898; and if you believe that the defendant had no knowledge of the increase in capacity of the factory; and if you believe that the defendant actually believed that the number of cans that they were using in 1898 would be substantially the same as those sold by the defendant to the plaintiff in 1897, and, so relying and believing, the defendant entered into the alleged contract; and if you find that those representations were false, — that is, if you find that the comparison between 1897 and 1898 was false, — then your verdict must be for the defendant. In making out a case of fraudulent representation, it is not necessary to prove express affirmative representations. . The whole conduct of the parties, and the impression that it is designed to make, must be considered.”

Upon the question of the changes the court instructed the jury as follows :

“No change in the factory or increase in its capacity after or subsequent to November 19, 1898, would justify the defendant in refusing to fill the terms of the contract, unless such change or increase was greater or other than that which would be demanded by the legitimate increase and growth of the Dailey Company’s business.”

The judge very clearly and very fully elucidates this branch of the case. These instructions were certainly as favorable to the defendant as, under the record, it was entitled to. It is very doubtful whether there was any question of fraud to be left to the jury. Plaintiff made no statement to the defendant of the number of cans it manufactured in 1897 or 1898. Mr. Clark did not ask Mr. Dailey for the number of cans used in 1897, and there is no testimony that Mr. Dailey informed him as to the number. His testimony is as follows:

‘ ‘ I asked him [Dailey] how many cans he would want or use. He said: ‘Clark, I can’t tell you; but I will look it up and let you know.’ So I went back to Mr. Dailey, and asked him, and he said, ‘Clark, I haven’t had time to look it up; but,’ he said, ‘you know, and can look it up as well as I can.’ ”

This conversation is denied by Mr. Dailey, who testified that in one conversation he told Mr. Clark he thought plaintiff would use about 3,000,000, and that, when Mr. Clark asked him if he knew how many cans he would want in 1899, he replied, “You know that just as well as I do.” Without any further inquiries or any further representations, this contract on the part of the defendant was executed.

Many of the improvements now complained of were either then completed or were in progress at the time the contract was made. There is evidence to show that Clark knew of these improvements; that he went through plaintiff's plant; that he congratulated plaintiff’s manager, Dailey, upon the increase of business; that Dailey informed him that its business was growing; that he wanted a contract to deliver him just as many cans as were needed; and that Dailey told him the company contemplated building a new brick building, so as to further ■extend the business. Defendant evidently made this contract, not with the understanding that the capacity of the factory should remain the same as it had been previously, •or that the machinery should remain the same as it was, hut with the understanding that plaintiff might make improvements incident to the increase of business and the requirements of trade.

Upon the question of purchasing cans elsewhere, the court instructed the jury as follows:

“It is a part of the plaintiff’s case to satisfy you by a preponderance of evidence that the plaintiff bought from the defendant all the cans used in its factory between November 19, 1898, and September 16, 1899; and unless you are satisfied by a preponderance of proof that the plaintiff did buy of the defendant the cans used by him between these dates of the kind mentioned in the contract, your verdict must be for the defendant, unless you find that the other cans that he did use were those cans which he had in stock, being such a stock as his business required him to have on hand for the continuation of that business, •or unless they were cans which he bought where the Clark Can Company could not furnish them, and Mr. Clark informed him that he could not furnish them. Of course, then he would have a right to purchase them elsewhere. If you are satisfied that the only cans that Mr. Dailey used in his business outside of the cans that he bought under this contract were the three-pound cans he testified to, you will find for the plaintiff. If you find that he used other cans, then there is a misrepresentation, and it would, prevent him from recovery.”

This instruction was correct, and there was ample testimony to support it. At the time the contract was made, plaintiff had some cans on hand. These were used. The court correctly instructed the jury that, under the evidence in the case, it was entitled to use them. At the time the contract was made, defendant did not have the machinery with which to manufacture the “friction top” cans. Plaintiff had been using those cans for some time. If defendant, when requested, could not furnish these cans, or any others, plaintiff had the legal right to purchase elsewhere. There was a substantial conflict of testimony, and the question was therefore one for the jury.

Defendant offered testimony tending to show that the goods manufactured by plaintiff had a market price, and that plaintiff offered its goods at a less price, and thereby created -an abnormal demand. This testimony was excluded, and, we think, very properly. Plaintiff did not agree to sell at any stipulated price, or at the market price. It was at liberty to fix its own prices for the goods. If this created a greater demand, it was entirely legitimate, and was one of the increases in business which, the contract contemplated. The price of the goods had nothing whatever to do with making the contract. Manufacturers are not bound to sell by any market price if there is one. They are constantly underselling each other,, and have the right to do so.

A witness testified to the changes that were made hr the plaintiff’s factory in the latter part of 1898 and in 1899. He was then asked to what extent, in his opinion, such changes increased the capacity of the factory. This testimony was excluded. While it might not have been error to admit the testimony, we do not think any prejudicial error was committed in rejecting it. All the changes were minutely described to the jury; the number of cans-used, both before and after the contract, was minutely given; and plaintiff’s books, showing its sales, were introduced. The opinion of this expert would not have been any material aid to the jury in determining the question submitted to them.

Some other questions are raised upon the testimony, but we find no error in them.

The judgment is affirmed.

The other Justices concurred.


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    NEPHEW v. MICHIGAN CENTRAL RAILROAD CO.
    Attorneys — Scope of Authority — Settlement of Suit.
    It cannot be presúmed that the general attorney of a railroad company, having power to adjust and settle claims against it for personal injuries, has authority, as part of such a settlement, to bind the company by a contract to employ the injured person for life.
    Error to Wayne; Hosmer, J.
    Submitted October 23, 1901.
    Decided November 4, 1901.

      Assumpsit by Joseph Nephew against the Michigan Central Eailroad Company for the breach of an alleged contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    In 1887, and for some two years prior thereto, plaintiff had been employed as a brakeman on a passenger express train of the defendant company. On May 5,1887, his hand was injured while coupling the engine to the baggage car. He was detained from work only two or three days, and continued in his employment as a brakeman of that train until he was taken off in the fall of that year, and ordered to a similar position upon a regular train. He testified that he was not able to set the brakes and hold the train according to the rules and regulations. He thereupon left the company’s employ, and brought a suit for damages. In May or April, 1888, that suit was referred to an attorney of the company, was settled and discontinued, and the following receipt given by plaintiff: ‘
    “June 13, 1888.
    “The Michigan Central Railroad. Company,
    “ To Joseph Nephew, Dr.
    “Address: Bay City, Mich.
    “For damages for injuries received May 5, 1887, at West Bay City, being employed as passenger brakeman by this company, ‘and while in the act of coupling the engine onto the baggage car, right hand was caught between the end of the link and lower part of the draw-bar of the engine, severely injuring the first and second fingers, and the cords leading to the same, disabling him for a long time, and it is claimed that the accident was caused through a defective draw-bar on the baggage car, —$314.75. _ .
    _ “This received in full settlement and satisfaction of all claims for damages of every kind whatsoever which I have or may have against the Michigan Central Railroad Company, arising in any way from said accident.
    “Received June 13, 1888, of the Michigan Central Railroad Company, the sum of three hundred fourteen 75-100 dollars in full of the above account.”
    Plaintiff testified that this settlement was made with Mr. Russel, the general attorney for the defendant company; that, at the same time he executed this receipt, a written agreement was made and signed by him and Mr. Russel as attorney for the company, agreeing to employ him for the railroad company, for the rest of his life, at the same wages he had been receiving, to wit, $50 per month; that for'this consideration he was to be employed at what he could do with his crippled hand. He testified that this agreement was retained by Mr. Russel; that he received a check for the amount stated in the receipt, less an amount deducted for his attorneys. A brother of plaintiff corroborated plaintiff’s testimony as to the settlement.

      The making of such an agreement is absolutely denied by Mr. Russel and by Mr. Nadolleck, who was then the chief clerk in the defendant’s legal department, and Mr. Russel’s assistant. Mr. Russel testified that he had no authority to make such a contract, and never had, by virtue of his employment as attorney, or by any special instruction, during his entire service with the company, made such an arrangement with any person; that his duty was to attend to the legal masters of the company; that claims for injuries came into his office, and that such claims were referred to him; that plaintiff presented a claim against the defendant company; that he told plaintiff the company was not liable, and he would settle only to avoid the expense of litigation; that he then referred plaintiff to Mr. Nadolleck, with instruction to settle at a sum not exceeding about $300. Mr. Nadolleck corroborates Mr. Russel.
    Plaintiff testified that after the settlement he returned to Bay City, and applied to the superintendent of the company for employment; that he was not employed, and never has been employed, by the company, except one night and a day in 1889. He has been engaged in various businesses at different places. He testified further that he had applied to the company for work, but had never received it. He took no legal steps to enforce this contract until the commencement of this suit, May 11, 1899. The record contains not even a scintilla of evidence to show any ratification. There is no testimony to show that anybody, on the part of the defendant, aside from Mr. Russel, ever had any knowledge of the alleged contract.

      Ediuin Henderson and Frederick C. Martindale, for appellant.

      Ashley Pond, for appellee.
   Grant, J.

(after stating the facts). Authority to settle a lawsuit does not imply authority on the part of the attorney to make contracts for future employment. Mr. Russel, the attorney for the company, had nothing whatever to do with operating the road, or the employment or discharge of employés. His sole duty was connected with legal matters. Corporations usually have such a general attorney, to whom they refer their legal matters, and ask for advice. His authority is limited to what is customary or necessary in such transactions. Mechem, Ag. §§ 285, 286; Upton v. Suffolk County Mills, 11 Cush. 586 (59 Am. Dec. 163). No authority is cited holding that an attorney at law is, by virtue of his employment, authorized to settle a suit against his client by entering into life contracts, or any contract affecting the future status between the claimant and the client. This contract is a most unusual one, to sustain which the proof should be clear and explicit. One seeking to uphold such a contract must show either express authority in the agent to make it, or a clear ratification. Neither is shown. In Gamacho v. Engraving Co., 37 N. Y. Supp. 725, it was held, in regard to even a general manager, that no presumption exists that he has “the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the corporation in enormous obligations and for long periods of time.” It has been held that even directors have no authority to make contracts beyond the statutory terms of office. Carney v. Insurance Co., 162 N. Y. 453 (57 N. E. 78, 49 L. R. A. 471, 76 Am. St. Rep. 347). This case is expressly ruled by Maxson v. Railroad Co., 117 Mich. 218 (75 N. W. 459), where we distinguished and limited the application of the case of Brighton v. Railway Co. 103 Mich. 420 (61 N. W. 550).

Judgment affirmed.

The other Justices concurred.