text:
    LAMB v. PONTIAC, OXFORD & NORTHERN RAILROAD CO.
    Easements — Railroad Right of Way — Cattle Pass — Adverse Possession.
    Where a landowner for a nominal consideration conveyed land to a railroad company for the sole purpose of constructing and maintaining a railroad, and the company in constructing its road carried its track over a lane connecting the two parts of the farm, forming a stock pass which the landowner used continuously for 23 years, it will be presumed that such use was under a claim of right, and the company will not be permitted to discontinue it and compel the use of a statutory crossing.
    Appeal from Lapeer; Erskine, J., presiding.
    Submitted October 18, 1907.
    (Docket No. 95.)
    Decided December 10, 1907.
    Bill by Horace Lamb against the Pontiac, Oxford & Northern Railroad Company and Robert J. Lounsbury, receiver, for the restoration of a stock pass under defendant’s roadbed. Prom a decree for complainant, defendants appeal.
    Affirmed.

      E. L. Campbell (William E. Brown, of counsel), for complainant.

      John H. Patterson, for defendants.

      On the 7th of November, 1883, Jacob C. Lamb, who was then the owner of the southwest quarter of section 13, town 6 north, of range 11 east, in Lapeer county, in this State, executed and delivered to the Pontiac, Oxford & Port Austin Railroad Company for a nominal consideration a deed of “fifty feet in width with sufficient for slope on the line now located by said company for the route of their railroad from the city of Pontiac to the village of Caseville * * * over and across ” the above-mentioned description. The deed contained a provision that the land should be used for the purpose of constructing and maintaining a railroad and the appurtenances and for no other purpose whatever, and the habendum clause contains the words “ for the uses herein expressed but for no other use.” Mr. Lamb’s wife joined him in this conveyance, and it was duly recorded. Mr. Lamb was a man of affairs, a large landowner, and engaged in business at Imlay City. At the time the deed was made, the roadbed had been constructed across the land, and it divided the farm so that about 40 acres, abutting upon a stream of water and inaccessible from any highway, chiefly valuable for the purpose of pasturing cattle, was cut off from the remainder of the farm and from the farm buildings. A lane had for many years passed down to and across the land described in the deed at a point where the track of the railroad is laid upon a considerable embankment, made by filling the right of way with earth. At this point the railroad company constructed a passage or subway with wing fences to the line of the right of way. Timbers were used to support the track, and piling to confine the embankment, and no filling was done upon the land occupied by this way. By means of these fences and the subway, the lane was continued from.the farm buildings to the pasture and to water, through and along which cattle, without attendance and without danger, passed from one portion of this farm to the other. The railroad company also constructed a surface crossing at some distance from this subway. The passageway, including the fences, was maintained — at one time, in 1894 or 1895, new piling was put in — by the railroad company until April 26, 1905. It has been continuously used. The reasons of convenience and economy which would account for the original construction still obtain. The Pontiac, Oxford & Northern Railroad Company is the successor of the original grantee in said deed, and Robert J. Lounsbury is receiver of the corporation. Jacob C. Lamb died in 1898, and the complainant is one of his heirs at law who succeeded to the ownership of the premises. On April 26, 1905, the railroad company, having requested and been refused permission so to do, the conditions demanding that repairs be made, filled up this passageway and at the same time constructed a surface crossing 100 feet south, connected by a narrow lane within the defendant’s right of way with the east end of the lane so leading to the original passageway. The bill in this cause is filed to compel the company and its receiver to restore the pass and put it in such a condition that stock may use it, and for ah injunction perpetually enjoining them from filling up or obstructing it. It is averred in the bill that this passageway across the right of way of the railroad company was constructed by agreement for the use of the landowner. It is also, in another paragraph of the bill, charged that “the said stock pass has been used continuously by the owners of the land, by your orator and his. grantors, continuously, openly, adversely and under a claim of right so to do ever since its construction.”
    No written agreement concerning the construction and maintenance of the pass was produced. The testimony supports a finding that a search among the papers and files of the defendant company did not discover such a document; nor is it to be found among the papers of the grantor, a portion of which were destroyed in 1884 or 1885 at a time when his safe was entered by burglars. The witnesses to the deed were John J. Lamb, now deceased, and W. F. Hall. Mr. Hall was produced as a witness and gave testimony tending to prove that at the time he was called to witness the deed he heard a conversation between Jacob C. Lamb, the grantor, and representatives of the railroad company respecting matter written upon a sheet of foolscap paper which was read, but not aloud, and passed back and forth between them; that Mr. Lamb after reading the paper said he could not accept it in that form, that he wanted his lane to pass under the road and that he wanted stone walls; that piling was talked about; that the person who appeared to represent the company said it would be done all right in time but that it took time to get those things; that Lamb replied that he did not wish to take anybody’s word, he wanted it in black and white. Thereupon, something more was- apparently written upon the paper, it was passed to Lamb, who read it and said it was all right, and then signed the deed and passed it to the witness. In brief, this is all the testimony for complainant upon this subject. The person identified by the witness as present at this interview representing the company denied being present at such an interview, denies all knowledge of such or any similar transaction. It is the claim of the defendant that Jacob C. Lamb was permitted to use the cattle-pass during his lifetime and that he had no more than a parol license to do so, his right ceasing at his death in 1898; that if the right was given him by a writing, there is no proof of the contents of the writing or that the right inured to the benefit of his heirs or assigns. The learned circuit judge was of opinion that the complainant had established the elements of an adverse user for the requisite period. A portion of the reasoning employed in the opinion which was filed •is:
    “When the right of way was granted, the pass existed; and its continuance was desirable, as it was of value to the farm. It is improbable that Lamb would have consented to a conveyance cutting it off, especially when the consideration for this conveyance was nominal. On the other hand, it is not reasonable to suppose that the railway company would go to the expense of constructing this pass unless it was under obligation so to do; nor would it have maintained it all of these years in addition to the surface crossing, unless there was some obligation on its part to that effect. It appears that the only cattle-passes maintained by the railroad company were those which it was obliged to keep up. ”
   Ostrander, J.

(after stating the facts). At the time the railroad was constructed, and thereafter, Jacob C. Lamb owned the fee of the land in question and complainant now owns it. When the grant was made to defendant’s assignor, it had no possession of the land used as a lane, and has never since occupied it, except to bridge it; it has never occupied the surface of the land. On the contrary, by erecting piling to confine its embankments, by constructing the overhead work and by building and maintaining the wing fences, it has, from the beginning, bounded and defined the use it made of the land. It may be conceded that the grant to defendant’s assignor is not ambiguous and is sufficient in terms to give full and perfect use of the surface of the land conveyed and the right to go below and above the surface as may be necessary to make, operate, and maintain a railroad. The right created by the grant would not be lost by mere neglect to enjoy it for 15 years, or more, if there was no evidence of an adverse user. Day v. Walden, 46 Mich. 575, 583. But the grantee did construct its road in the manner described and so for 23 years it maintained it. It is a necessary inference from the proven facts that this was pursuant to an understanding of the parties to the grant. It involved maintenance of the road with reference to the lane.

There is no access to the pasture land and to the water except over or under the defendant’s road.. The land is now and has been used largely as a stock farm. There were 60 head of cattle on it when the way was obstructed. The presumption is, notwithstanding the grant, that the parties did not intend to deprive the grantor of reaching and using the land beyond the strip removed. New York, etc., R. Co. v. Railroad Com’rs, 162 Mass. 81. The statutory crossing (2 Comp. Laws, § 6294) would, it is true, secure passage between the different portions of the farm. And it has been held that a right of way is not to be implied merely because it is convenient. Jones on Easements, § 315. But neither is the implication limited by strict necessity. And we are not now called upon to determine whether the way claimed to exist was, in law, in its inception, a way of necessity. There is no reason why, in recognition of the demand for a suitable and convenient way, as a way of necessity, the parties should not agree, by parol, to locate it in this lane. Jones on Easements, § 337. If they did agree, equity will restrain the railroad company from taking possession of any additional part of the land after its roadbed is located and completed. Jones on Easements, § 343. Taking into consideration all of the circumstances, including the grant, we are of opinion that it must be presumed that the use of the pass by complainant and by his ancestor was under claim of right, the extinguishment of which defendant has not made out.

The decree of the court below should not be disturbed. It is affirmed, with costs.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hookee, J.

license: Public Domain

text:
    McAULIFF v. CITY OF DETROIT.
    1. Municipal Corporations —Detroit Charter — Claims — Notion— Service — Sufficiency.
    Under the charter of Detroit notice of a claim against the city for a personal injury must be brought home to the corporation counsel or his chief assistant, and in an action upon such a claim the burden is upon plaintiff to show such notice, proof of service upon a messenger in the corporation counsel’s office being insufficient.
    2. Same — Service—Evidence—Suepioienoy.
    Evidence examined, and held, sufficient for the jury on the issue whether the corporation counsel of Detroit or his chief assistant received notice of a claim for an injury left with a.. messenger in the office.
    Error to Wayne; Rohnert, J.
    Submitted October 17, 1907.
    (Docket No. 82.)
    Decided December 10, 1907.
    Case by Minnie L. McAuliff against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Thomas S. Parker (Hugh Shepherd, of counsel), for appellant.

      J. Walter Dohany (Timothy E. Tarsney, of counsel), for appellee.
   Hookee, J.

The record indicates that on April 30, 1905, the plaintiff sustained bodily injuries from a fall upon a defective sidewalk in the city of Detroit. On June 13, 1905, a petition for tho allowance of her claim for damages was presented to the common council and referred to its committee on claims for investigation. The committee acted upon the claim and reported to the council. On the same day, i. e., June 13, 1905, a notice of the time, place, and cause of plaintiff’s injuries and their nature, addressed to the corporation counsel, and a copy of said petition, were delivered at the office to one George Seymour, who was then employed as a messenger in said office. August 14, 1905, the notice was delivered by Mr. Seymour to Andrew J. Rogers, a captain of the police department, who was then assigned to the office of the corporation counsel as a member of its investigation department, and he entered the fact in the record kept for the purpose.

A short time after giving the notice, Mr. Parker, the-attorney for the plaintiff who served it upon Mr. Seymour, inquired at the office of the corporation counsel, “who had charge of the sidewalk cases for the city ?” and was referred to Mr. Dohany. He talked with him about arranging an early date for the hearing of the plaintiff’s claim before the committee of the council, and was told he would have to see the secretary of the committee, and that he would receive notice from him; that there were many claims ahead of this, and that claims were taken up in their order.

Testimony was taken before the committee on claims on January 3, 1906. Parker ánd Dohany were present and participated. No objection on the ground that a notice had not been served was made. Dohany was during this time assistant corporation counsel. The council refused to allow the plaintiff’s claim, whereupon this action was brought to enforce it.

At the conclusion of the plaintiff’s testimony, a verdict was rendered for defendant by direction, for the reason that it had not been proved that the statutory notice had been served upon the corporation counsel or his chief assistant. The plaintiff has appealed; claiming that the question whether the notice seasonably reached the corporation counsel or his chief assistant should have been submitted to the jury under the rule followed in the case of Beattie v. City of Detroit, 137 Mich. 325. It is also claimed that the service on the messenger was a sufficient service, even if the notice never came to the notice of the corporation counsel.

We are of the opinion that such a service is not a compliance with the statute. To make a valid notice, it must be brought home to the officers mentioned, apd the burden of proof is upon the plaintiff to show it. We are of the opinion, however, that to hold that there was no proof tending to show it would be to overrule the case of Beattie v. City of Detroit, supra.

The judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


author: Carpenter, J.

text:
      In re MANSBACH’S ESTATE.
    1. Witnesses — Competency — Privileged Communications — Physicians — Waiver of Privilege.
    The mother of a deceased person who is his next of kin and who is contesting the probate of his will is not his personal representative and cannot waive the statutory privilege excluding decedent’s physician from testifying to matters of which he acquired knowledge for the purpose of prescribing for him.
    2. Same — Husband and Wife — Ruling—Error—Sufficiency of Record.
    Where decedent’s divorced wife was not permitted to testify whether the matter contained in á scurrilous manuscript written by him and reflecting on her was true, on the ground that it related to the secret relations existing between husband and wife, and the manuscript is not in the record, this court cannot say on error that the ruling was erroneous.
    3. Wills — Testamentary Capacity — Burden of Proof.
    In a will contest the burden of proving testamentary capaoity is upon the proponent of the will, and it is error in such a case to charge the jury that the presumption of law is that every man is sane and that he who avers insanity has the burden of proving it.
    4. Same — Insane Delusions — Instructions.
    Where the evidence in a will contest affords a basis therefor, the court should instruct the jury that the proposed will may be disallowed upon the ground that it is the product of an insane delusion.
    Error to Wayne; Donovan, J.
    Submitted October 18, 1907.
    (Docket No. 94.)
    Decided December 10, 1907.
    Mary Maier presented for probate the last will and testament of John E. Mansbach, deceased. The will was allowed in the probate court, and Paulina Mansbach appealed to the circuit court. There was judgment for proponent, and contestant brings error.
    Reversed.

      A. O. Pitts, for appellant.

      James II. Pound, for appellee.
   Carpenter, J.

John E. Mansbach committed suicide March 11, 1905. At the time of his death he was 38 years of age and resided at the home of his affianced wife, Mary Maier. His relatives consisted of his mother, Paulina Mansbach, the appellant, and some brothers and sisters. He made a will December 23, 1904, by which he devised and bequeathed all of the property to said Mary Maier. This suit is brought for the purpose of probating said will. It was tried in the court below before a jury, to whom was left the question of testamentary capacity. They rendered a verdict sustaining the will. We are asked to set aside the verdict and judgment thereon rendered for various reasons, which we will proceed to consider.

First. Rulings upon testimony. Contestant called as a witness Dr. George C. Bassett, a practicing physician, who had treated testator as a physician. He testifled: “I learned nothing about him outside of knowledge necessary for prescribing.” He was then asked: “Did you form any opinion as to his mental condition?” This was objected to and the objection sustained. It is obvious that the opinion formed by the physician was immaterial unless he could state it to the jury. The trial court was of the opinion that he was forbidden to state it by the statute (section 10181, 3 Comp. Laws). It is quite clear that the statute forbids it, unless it should be held, as contestant contends, that she had a right to waive it. It is true we have held that this privilege may be waived by the personal representatives of a deceased person. See Fraser v. Jennison, 42 Mich. 225. That principle has no application to this cáse, for contestant is not the representative of the testator. She stands in this suit in the attitude of an adverse party. She had therefore no right to waive the statutory privilege, and the ruling was correct.

Mrs. Emma Langdon, testator’s divorced wife, was a witness for contestant. She testified that she had read part of a certain manuscript marked Exhibit 6 (a vile and indecent manuscript reflecting on the witness, written by testator, and which is not a part of this record). She was then asked if there was any foundation for the charges made in said manuscript. She was not permitted to answer this question, upon the ground that said manuscript “related to the secret relations existing between husband and w ife and cannot be opened up afterwards. ” It is quite obvious from the ruling that the trial court was of the opinion that the witness could not answer the question without violating the statute (section 10213, 3 Comp. Laws), reading:

Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communications made by one to the other during the marriage.”

Without an inspection of the manuscript we cannot say that this ruling was incorrect. We must therefore ■presume it to be correct. Other rulings are complained of. Some of these complaints are based upon no exception and others relate to rulings which were entirely proper. None of them are likely to arise upon a new trial. We do not therefore discuss them.

Second. The charge of the court. The trial court charged the jury:

The presumption of law is that every man is sane, andJ ie who avers insanity has the burden of proving it.”

Was this correct? In numerous decisions extending from a very early day to the present time this court has held that in will contests the law casts upon the proponent the burden of proving that the testator possessed testamentary capacity. See Beaubien v. Cicotte, 8 Mich. 9; Taff v. Hosmer, 14 Mich. 309; Aikin v. Weckerly, 19 Mich. 482; McGinnis v. Kempsey, 27 Mich. 373; Prentis v. Bates, 93 Mich. 245 (17 L. R. A. 494).

It follows that the burden of proof does not rest upon the contestant who challenges the sanity of the testator. It rests upon the proponent who seeks to probate the will. This precise question was determined in McGinnis v. Kempsey, supra. There it was held that the following request was properly refused:

“ If the jury should find that, upon the other testimony relating to the testator’s mental soundness, the evidence was balanced, the jury should permit the legal presumption of sanity to decide the question in the testator’s favor.”

The reasoning of the court is as follows :

“ There was no error in denying this request. When the question of capacity is actually controverted in case of a paper propounded as a will, it devolves upon the proponents to establish capacity by other evidence than is afforded by the common-law presumption in favor of soundness of mind, and the measure of the evidence to establish must exceed that given in opposition.
“ Perhaps it would be going too far to say that the statute, in requiring substantive proof of the testator’s sound ness of mind as a prerequisite to the establishment of the will, intended to put aside altogether and for all cases the common-law presumption in favor of sanity. But conceding the existence of the presumption as a principle to operate subject to circumstances, it is very clear that it cannot have the force of an independent fact to serve as a substantial make-weight against counter proof. Because if it could, the rule of law which casts upon proponents the necessity of showing the testator’s soundness of mind by other evidence might be subverted. The force and efficacy of the presumption will vary with cases, yet it can never have much influence when the issue upon the testator’s sanity is contested in the usual way, by an appeal to those facts which bear upon it. And whatever force may be due to it in given instances will be owing, not to its intrinsic weight as a distinct item of proof, but to its operation in some degree, more or less, in rendering the circumstances adduced to prove sanity more persuasive. .
“ Whenever the facts given in evidence are such as to leave room for it to have any appreciable influence upon results, it will be entitled to be viewed rather as a property of proponents’ proofs, than as something apart, and then it will not fail to be recognized by the good sense of the jury, in its tendency to strengthen the other evidence favoring sanity. The efficacy of the presumption, when it has any in contested issues, can never be predetermined, nor can any rule about it be safely laid down; and the experience and general knowledge of the triers may be trusted to consider and estimate it rightly whenever occasions make the inquiry needful.”

We are therefore of the opinion that the charge under consideration was erroneous.

Insane delusions. Complaint is made because the trial court omitted to charge the jury that the will might be disallowed upon the ground that it was the product of an insane delusion. There was evidence in this case that the testator was' insane. There was evidence that he entertained a feeling of aversion amounting to a hatred toward his mother; that this feeling actuated him when he made the will in question, and that it was the result of one or more delusions, which the jury would have been warranted in saying were insane delusions. The trial judge did not cover this subject in his charge to the jury, and he was not requested to do so by contestant’s counsel. Whether under these circumstances this omission constituted an error, we do not feel called upon to decide. But as the judgment must be reversed for the error already pointed out, we deem it óur duty to say that upon the new trial the jury should be charged that they may disallow the will upon the ground that it is the product of the insane delusion above referred to. And the entire charge to the jury should be made to harmonize with this particular change. The task of rendering it so harmonious will compel several changes in the charge heretofore given. We do not specify those changes. They will be apparent to the counsel engaged in this suit and they are of no interest to others.

Third. Other complaints are made. They relate to questions of no importance to the profession and questions not likely to arise upon a second trial. We, therefore, do not discuss them.

Judgment reversed, and new trial ordered.

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


author: Per Curiam.

text:
    McMEEKIN v. SAGINAW PROBATE JUDGE.
    1. Executors and Administrators — Appointment op Administrator — Application by Creditor — Dictation by Applicant.
    Section 9324, 3 Comp. Laws, subd. 2, providing that, after 30 days without application by those primarily entitled, administration may be granted to one or more of the principal creditors of a deceased person, if any such are competent and willing to take it, does not give to the creditor filing the petition the right to dictate the appointment, since, if the persons primarily entitled to apply are deprived by their delay of their right to be heard, it is the duty of the probate judge to listen to the other creditors and give due consideration to •their rights.
    2. Mandamus — Amended Petition — Questions Considered.
    Questions presented by an amended petition for mandamus, • which respondent has never answered, nor been called upon to answer, will not be considered.
    3. Same — Further Return.
    In mandamus to a probate judge, a suggestion in petitioner’s brief that the court make a'determination of the case upon the record before it, and if adverse to petitioner that it order a further return to an amended petition on file, cannot be complied with for the reason that the court will not decide piecemeal a mandamus case, in which the proceedings should be expeditious, especially so where it does not appear, even by the amended petition, that the point raised was made before respondent.
    4. Same — Questions Considered — Questions op Fact.
    Whether the person appointed administrator was a proper person to be appointed will not be considered on mandamus to the probate judge where there was evidence from which the judge had a right to reach the conclusion he did reach.
    5. Courts — Decisions—Stare Decisis.
    The denial on its merits of an application for a mandamus relieves the court of the duty of deciding whether the application should not have been denied for other reasons, and cannot be taken as an authority that mandamus is a proper remedy in similar cases.

      Mandamus by James W. McMeekin to compel Riley L. Crane, probate judge of Saginaw county, to appoint certain administrators.
    Submitted October 22, 1907.
    (Calendar No. 22,512.)
    Writ denied December 10, 1907.

      John A. McKay, for relator.

      Vincent & Nash, for respondent.
   Per Curiam.

Relator is a creditor of the estate of John L. Irving, deceased. Said Irving was a resident in the county of Saginaw, and died intestate May 19, 1907. Within 30 days thereafter no petition for administration was filed in the probate court, and therefore relator and another creditor filed such petition on the 19th day of June, 1907, praying that administration be granted to one of said ■ petitioners, or to some other suitable person. This petition was.heard by respondent August 21,1907. Other creditors and the next of kin of said deceased asked that Louis G. Nerreter be appointed as administrator. Thereupon respondent issued joint letters of administration to said Nerreter and to one Robert T. Holland, a nominee of relator and his co-petitioner. Holland declined the appointment, and subsequently respondent appointed in his stead one Asa W. Field, another nominee of relator and his co-petitioner, as co-administrator with said Nerreter' Relator then commenced this suit, praying for a writ of mandamus and a writ of prohibition. The propriety of issuing a writ of prohibition is not before us. We disposed of that on the preliminary application. We decided then that petitioner’s showing did not warrant the issuance of such a writ, and issued merely an order to show cause upon the application for the mandamus.

The principal question raised by the application for a mandamus arises from relator’s contention that respondent could appoint as administrator only the nominee of himself and his co-petitioner. The law by which this question is to be determined is contained in subdivision 2, section 9324, 3 Comp. Laws:

“If the widow, husband, next of kin * * * shall neglect for thirty days after the death of the intestate to apply for administration, or to request that administration be granted! to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it.”

This specifies that administration shall be granted in the contingency above set forth “to one or more of the principal creditors,” but it does not give to the creditor filing the petition the right to dictate the appointment.

This case must proceed upon the assumption that it was proper to appoint as administrator some one other than a principal creditor of deceased, for there is nothing in the record -to indicate, and it is not claimed, that either of the nominees of relator and his co-petitioner were principal creditors. In such a case the subdivision above quoted affords no warrant for the claim that the nominees of the creditors petitioning for said administration shall be preferred to the nominees of other creditors. If it is true, as relator contends, that because 30 days had elapsed since the death of her intestate (this contention is based on subdivisions 1 and 2, section 9324) the next of kin had no right to be heard, it is not true that the other creditors of the deceased could not be heard. It was the duty of respondent to listen to those other creditors and to give due consideration to their rights in appointing an administrator of the estate.

It is now sought to be shown by a document in the files called “an amended petition” that those creditors who petitioned for the appointment of Nerreter were merely creditors of a partnership of which the intestate was a member. If this circumstance would deprive them of a right jfco be heard when the administrator was appointed— a question which we do not decide — it should have been brought to our attention in some other way, for the so-called amended petition is not legitimately before us. Respondent has never answered,- and has never been called upon to answer it. It is true that in his brief relator asks “ that if necessary a further return be ordered to this amended petition.” By this we understand that he requests us to make a determination of the matter upon the record as it is before us, and if that determination be an adverse one, then that we order a further return. There are two sufficient reasons for refusing this request. First. We will not decide a case piecemeal; especially a mandamus case, where the proceeding should be expeditious. Second. It does not appear even by the amended petition that the point under consideration was made before respondent. If it was not so made, he had a right to assume, as he manifestly did assume, that as creditors they stood on an equality with relatorj and to act upon that assumption.

It is also contended that Nerreter was not a proper person to be appointed. We answer that, from the evidence presented, respondent had a right to reach and did reach a contrary conclusion. That conclusion we will not review.

The application for a mandamus is therefore denied.

This decision is not to be regarded as an authority holding that mandamus is the appropriate remedy to review the complaint of relator. By deciding as we have that there was no merit in his complaint, we are not called upon to decide whether his application should not have been denied for other reasons.


author: Blair, J.

text:
    VEIT v. ANN ARBOR RAILROAD CO.
    Master and Servant — Railroads—Personal Injuries — Fellow-Servants — Negligence of Train Dispatcher — Observance of Rules.
    In an action by a locomotive engineer against his employer, a railroad company, for injuries sustained in a collision between his train and another, based on the concurring negligence of th^ train dispatcher and the operatives of the other train, evidence examined, and held, that the dispatcher was not negligent, since he gave no orders affecting his right to rely upon a proper observance by the trainmen of the rules of the company governing the movement of trains, which observance would have prevented the accident.
    Error to Gratiot; Searl; J.
    Submitted October 22, 1907.
    (Docket No. 115.)
    Decided December 10, 1907.
    Case by Albert 0. Veit against the Ann Arbor- Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      T. W. Whitney {Ben. S. Warren and A lexander L. Smith, of counsel), for appellant.

      John T. Mathews and George P. Stone, for appellee.
   Blair, J.

Plaintiff, engineer of defendant’s train No. 7, brings this action to recover damages for injuries received near Mesick in a head-end collision with the detached engine of freight train No. 42. Mesick is a day and night telegraph station on defendant’s northern division. North of Mesick about three miles is Bagnall, which is a flag station. Between Mesick and Bagnall, and about two miles north of Mesick, there was a siding known as ‘‘ Claggett’s Siding.”

On the 18th day of March, 1905, an extra freight train, known as 42, was running south, and at Bagnall Biding nine cars and the tank of the engine left the track, and the wrecked cars covered the siding and the main line. This wreck occurred at about 6 o’clock a. m. The train crew succeeded in getting the engine back on the track, and they ran south to Mesick and reported fully what had occurred and the situation of the wrecked cars, so that the .train dispatcher knew that the siding at Bagnall was completely obstructed and the main line blocked. Upon receiving this report, the train dispatcher sent the following train order No. 6 to No. 42:

“Work extra 42 will work 7:55 a. m. until noon between Mesick and Bagnall with right over freight trains. Freight and extra trains will protect against extra 42. ”

This order was repeated and made complete at 8:05 a. m. and delivered to Conductor Coe, who was the conductor of No. 42. After receiving the order, Coe left his head brakeman, Moody, at Mesick to notify No. 7 of the wreck at Bagnall and he and his engineer, Criss, took some men upon the engine and returned to the wreck. A little later, the engineer again ran the engine back to Me-sick and to a tool house south of the depot, procured some tools and again returned to the wreck at Bagnall.

At about 8 a. m. on this morning in question, the plaintiff, who was engineer of No. 7, which was a regular passenger train, left Cadillac on its regular run north to Frankfort. The balance of the train crew were Jepson, conductor, and Doyle, fireman. At the stations between Cadillac and Mesick, section men had been collected by order of defendant’s superintendent and these men were ordered to take No. 7 and go to the wreck to help in the work of clearing the track, and they went on board of No. 7, as ordered. At about 8:54, schedule time, No. 7 arrived at Mesick, and as plaintiff ran in he found the board out. After plaintiff had made his usual station stop at Mesick, brakeman Moody came onto his engine, and, addressing him as “Al.,” said, “ 42 has had a wreck at Bagnall and the tank .and nine cars are off the track.” Plaintiff did not know the man and he carried no flag and wore no uniform or anything to indicate that he was in the employ of the railroad company. This person made no further remark or explanation, and plaintiff alighted from his engine and went to a water-closet; after being gone a few minutes he returned to his engine, and, after getting some tools from it, went to work upon it and remained by it constantly until he pulled out as hereinafter stated. As soon as No. 7 arrived at Mesick, conductor Jepson was handed the following order or dispatch from the train dispatcher :

“Durand, 3-18-05.
“No. 7 report at Mesick for instructions.
“J. S. M.”
After No. 7 had been waiting at Mesick about one hour, the train dispatcher sent and delivered to conductor Jepson this order:
“Jepson: Leave Mesick in time to transfer at Bagnall with No. 4.
“J. S. M.”

During all this time the order board remained out. At some time during this interval, while in the depot, Moody told Jepson there had been a wreck at Bagnall, and told him he was sent back for the purpose of flagging for the wreck at Bagnall.

A short time after Jepson received the order to leave Mesick in time to transfer with No. 4 at Bagnall, the train dispatcher, who had been and was talking over the wire with the agent at Mesick about the wreck, asked the agent what was holding No. 7, and the agent said to Jepson: “ J. S. M. wants to know why No. 7 don’t go and get the section men over there that are on the train,” and Jepson replied that he had an order to await instructions and he had not cleared from that, and the agent wired the train dispatcher that Jepson said he was waiting for further instructions and that the board was out. As soon as Jepson made this reply, thé agent worked his telegraph instrument for a few minutes, and then handed Jepson a clearance card from the order board, and at the same time he was handed the order No. 14, being, in substance, an order to run 2 hours and 60 minutes late Bagnall to Frankfort, and indicating a transfer at Bagnall with No. 4. '

Upon receiving this clearance card and order, Jepson gave the plaintiff copies and went aboard his train and pulled the signal in the engine cab to go ahead. Just as the train was starting, Jepson saw Moody and he called to him from the coach platform to go with him.

At the time hé started north from Mesick with his train, plaintiff had no knowledge or information whatever that No. 42 was on the track, but thought it was off the track at Bagnall and unable to move, and thought he had a clear track from Mesick to the wreck, and had no reason to believe anything to the contrary. When Jepson gave the engineer the signal to go forward on the order, he, Jepson, thought he had a clear track to the wreck, and did not know that No. 42 was working on the track between Bagnall and Mesick. No. 4 was a passenger train south bound from Frankfort to Cadillac, and was due at Bagnall at 11:33 a. m. It was about 10:30 that No. 7 left Mesick. The morning was foggy. As No. ? was running down grade at ten or twelve miles per hour, and while on a curve about three-quarters of a mile north of Mesick, it met No. 42 returning to Mesick, and a head-on collision resulted, completely demolishing both engines, killing the firemen on both engines and seriously and permanently injuring the plaintiff. The brakeman Moody testified, as did the conductor and engineer of No. 42, that he was instructed to flag No. 7 and hold the train at Mesick until the engine of No. 42 returned to Mesick.

Certain rules of the defendant company were put in evidence, providing, so far as pertinent to the issues involved, as follows:

ct Rule 86. An inferior train must keep out of the way of a superior train.
“ Rule 87. A train failing to clear the main track by the time required by rule, must be protected, as provided., in rule 99.
“Rule 89. At meeting points between trains of different classes the inferior train must take the siding and clear the superior train at least five minutes, and, must pull into the siding when practicable. If necessary to back in, the train must first be protected as per rule 99, unless otherwise provided.
“An inferior train must keep at least five minutes off the time of a superior train in the same direction.
“Rule 99. When a train stops or is delayed, under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When recalled, he may return to his train, first placing two torpedoes on the rail when the conditions require it. The front of the train must be protected in the same way, when necessary, by the brakeman or fireman.
‘ ‘ Form H. Work extra. (1) Work extra * * * will work * * * until * * * between * * * and * * *
“Examples: (1) Work extra 393 will work 7 a. m. until 6 p. m. between Berne and Turin.
“ The working limits should be as short as practicable, to be changed as the progress of the work may require.
“ The above may be combined thus: etc.
“ When it is desired that a work extra shall at all times protect itself while on working limits, it may be done by adding to (1) the following words: (9d) protecting itself.”

The court submitted the case to the jury upon the theory that the facts disclosed by the testimony presented an issue of fact as to the negligence of the train dispatcher, which might, alone or in concurrence with the negligence of fellow-servants, have occasioned the plaintiff’s injuries. Defendant appeals, assigning as errors, that the court erred in refusing to direct a verdict for defendant, and in the charge to the jury.

It is conceded by counsel for plaintiff, and was held by the trial court, that, unless the facts proved warranted an inference of negligence on the part of the train dispatcher, defendant was entitled to an instructed verdict. At the conclusion of plaintiff’s brief it is said:

“We are not contending that the general rules of the defendant do not provide as much safety to the lives of its employés as any general and uniform code of rules may provide. However, we contend that no general rules can anticipate every situation or meet every emergency. And when such a situation or emergency arises and it is known to the defendant that there is, or likely to be, some doubt or uncertainty arising from the peculiar circumstances of the case, then and in such case we claim that the law imposes upon the defendant the same duty which the defendant imposes by its rule 106 upon its trainmen, viz.: £ In all cases of doubt or uncertainty, the safe course must be taken and no risks run.’ And when the defendant ascertained that No. 7 was not held at Me-sick by a flag, and knew the condition and situation of the wreck and the sidings, and that No. 7 was 1 hour and 19 minutes off its time, and knew the usual custom and usage would be to hold No. 7 until it became necessary for it to be at Bagnall to transfer with No. 4, then the defendant knew, and is properly charged with full notice of the fact, that there was a case of doubt and uncertainty as to whether No. 42 would be in the clear at 10:30 a. m.,'and the safe course was obviously to either hold No. 7 until 11:25 or give it notice of the work order that had been given to No. 42, and thereby run ño risks, or at least reduce the risk to the minimum consistent with the public service required of it.”

The trainmen of No. 42 had the same understanding of their duty, under defendant’s rules, to protect themselves against No. 7 as plaintiff showed by his testimony that he had, and, to some extent at least, endeavored to discharge this duty, which, if fully discharged, would have entirely prevented the accident. The court instructed the jury, among other things, as follows:

“So under this rule you must inquire and determine whether Coe and Moody and Jepson each performed their duties properly or not. It was the duty of Coe to send out a flagman to stop No. 7 from comingon north to such apoint as would endanger that train, and endanger either train, for that matter, and to give that flagman instructions to inform the engineer and conductor, or one of them at least, of No. 7, of the fact that No. 42 was working in there, and if Coe did not do that, he was negligent, and the plaintiff cannot recover, unless you find this to be a concurring negligence as explained to you hereafter. It was the duty of Moody to follow these instructions. If he did not explain to Veit any more than Veit says he did, but failed to tell him that No. 42 was working from Mesick to Bagnall, or failed to tell Veit not to go on, then this would be the negligence of a fellow-servant, and if it was not negligence which concurred with some negligence of the train dispatcher, who, you will remember, is the company in this case, it would bar recovery on the part of the plaintiff. ‡ ^ Í
“ The defendant, by its train dispatcher, having knowledge of the wreck and having sent a work train to work between Mesick and Bagnall from 7:55 a. m. till noon, and knowing that No. 7, a passenger train, was due at Mesick at 8:54 a. m. going north, and that No. 4 was due at Bagnall at 11:35 a. m. going south, I charge you that it became and was the duty of defendant, by its train dispatcher, to act with reasonable care and prudence under all the facts and circumstances within its knowedge to safeguard the life of plaintiff and preserve him from injury.
“ If you find that defendant failed to perform his duty, that would be negligence — I mean its duty in that regard, and if you find that such negligence, either alone or concurring with the negligence of plaintiff’s fellow-servants or some one or more of them, caused the collision, then your verdict would be for the plaintiff, providing that the plaintiff was not guilty of contributory negligence himself.
“ Now, in determining whether the defendant used such care er not as I have spoken of, you will take into consideration all that was done by the train dispatcher that morning, the sending of the order holding up No. 7 at Mesick for further (orders) instructions, together with the order or message, whichever it was, to go to Bagnall in time to transfer with No. 4, and the order to run 2 hours and 50 minutes late, and also the talk over the wire between Jepson and the dispatcher through the agent at Mesick and the instructions given Jepson at that time, and determine from all these facts and all the other facts and circumstances in the case as shown by the evidence, whether the defendant was negligent in not giving notice to the plaintiff or the conductor of No. 7 in some manner of the fact that No. 42 was working between Mesick and Bagnall, or in not finding out whether they had received such notice from the flagman sent out by No. 42, before^ permitting them to leave Mesick to, go to Bagnall to make the transfer. If you find that it performed its duty in this regard, when it gave the order to No. 42, and that it had the right to rely upon the fact that the flagman of No. 42 would protect No. 7 from danger, notwithstanding what took place after these orders to No. 42 were given, and that it was not negligence on its part not to take any further precautions, then you will find for the defendant; but if you find that it should have used more care than it did use, and should have taken some further precautions, which, if taken, would have prevented the collision, then that would be negligence which makes the defendant liable. * * *
“I also instruct you that you cannot find the company liable simply because a copy of the work order was not delivered to train No. 7, that isi the trainmen, conductor and engineer on train No. 7. The rules of the company did not require this work order to be delivered to the crew of this passenger train. Mr. Veit knew the rules of the company before this accident happened; having knowledge of the rules of the company and that they did not require such dispatches or orders as this work order No. 6 to be delivered to a train crew of a passenger train, he cannot come in here and base negligence upon the failure of the company to deliver this order to his passenger train. That is what is known in law as an assumed risk, having knowledge that it was the custom of the company not to deliver these orders to the passenger crew, and having kept to work with that knowledge, be assumed that risk and he cannot complain because that order was not — a copy of that order was not delivered to his crew when they reached Mesick in the first instance. So that alone would not be sufficient to base a verdict upon of negligence.”

So far as the negligence of the train dispatcher is concerned, the facts are undisputed, and the question presented for our determination is, whether inferences may properly be deduced from those facts of some duty on his part towards the plaintiff which he failed to discharge.

As the court properly instructed the jury, “it was the duty of Coe to send out a flagman to stop No. 7 from coming on north to such a point as would endanger that train, and endanger either train, for that matter, and to give that flagman instructions to inform the engineer,” etc. The trainmen of both trains understood this duty just as the train dispatcher understood it. No act or order of the train dispatcher changed this duty. The order No. 6 gave the crew of No. 42 the right to work, regardless of freight and extra trains but subject to train No. 7, against which train it was their duty to protect themselves. The train dispatcher was not chargeable with notice that if the crew of No. 42 returned to Mesick, as he expected they might, they would disregard the well understood rules made largely for the protection of their own lives. He had a right to rely upon the observance of the rules by the trainmen and to give his orders upon that basis. There is no evidence in this case to affect the right of the dispatcher to rely upon an observance of the rules, without which reliance he could not conduct the train movements of the road.

Judgment reversed, and new trial granted.

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


author: Montgomery, J.

text:
    ADSIT v. IDE.
    Cancellation of Instruments — Assignment of Mortgage — Undue Influence — Evidence—Suffioienoy.
    In an action by the administrator of a deceased person to recover the proceeds of a mortgage transferred by decedent to-* defendants in his lifetime, on the ground that the decedent was mentally incompetent at the time of the transfer, and that the same was procured by undue influence, evidence examined, and held, sufficient to support a verdict for plaintiff.
    Error to Kent; Perkins, J. ,
    Submitted October 22, 1907.
    (Docket No. 45.)
    Decided December 10, 1907.
    Case by Allen C. Adsit, administrator of the estate of Rufus Corkins, deceased, against Daniel K. Ide and George Corkins for money obtained of plaintiff’s intestate by fraud and undue influence. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Dunham & Dunham, for appellants.

      Smedley & Corwin, for appellee. .
   Montgomery, J.

Plaintiff, as administrator of the estate of Riifus Corkins, deceased, brings this action to recover the proceeds of a mortgage transferred by Rufus Corkins, in his lifetime, to the defendants. The plaintiff’s claim is that Rufus Corkins was at the time of this transfer mentally incompetent to transact business of that importance, and also that defendants exerted undue influence in securing the transfer. The jury found a verdict in favor of the plaintiff. Defendants made a motion for a new trial on various grounds:

1. Because the verdict is contrary to law.

2. Because the verdict is against the great weight of the evidence.

3. Because the court erred in not directing for the defendants a verdict of no cause of action when plaintiff had closed his case.

4. Because the court erred in not directing a verdict for the defendants after all of the testimony in said cause was introduced.

The circuit judge gave his reasons for denying a new trial, stating that the verdict was not contrary to law if the jury found that the deceased was either mentally incompetent or that undue influence had been exerted by defendants, that the. weight of the evidence was left to the jury to determine, as it should have been, and that he was not able to find that the jury had reached a wrong conclusion, and that the verdict was not contrary to the evidence, as there was some evidence on both points submitted to them.

The defendants bring error, and assign as error the refusal of the court to direct a verdict for the defendants at the close of the plaintiff’s case, also the refusal to direct a verdict at the close of all the testimony, and the order overruling defendants’ motion for a new trial for the reasons given by the circuit judge. The whole case in this court narrows down to the question of whether there was testimony sustaining the plaintiff’s claim legally tending to show the mental incapacity of decedent or the undue influence exerted by the two defendants, and whether such testimony was, when weighed against the testimony of the defendants, of sufficient force to justify the verdict, or whether, on the other hand, the verdict was so clearly against the weight of the testimony as to indicate caprice on the part of the jury and to call upon the circuit judge to vacate the verdict upon that ground.

There are certain salient facts in the case which may be stated: Up to April, 1903, Rufus Gorkins was the owner of a farm in Wyoming township, Kent county. This farm consisted of 46 acres with two dwelling houses thereon. Some years previous he had given to each of his children, in land or money, the equivalent of $1,000, consisting in most cases of 40 acres of land. Some years prior to 1903 all the children of decedent had united in a petition to the probate court for the appointment of a guardian for him. This was explained by defendants’ testimony by the statement that this was done to protect him from the alluring wiles of a widow of doubtful repute. But the fact remains that he was 81 years old at the time of the transfer, almost wholly blind, and quite feeble. A sale of his farm was negotiated, and it appears that there were present, when the transfer was made, all of his living children; two grandchildren, sons of a deceased son, were not present but were represented by their mother. On this sale deceased received $7,000 for his 46 acres, and of this he divided $5,000 among his four children and the two grandchildren, retaining $2,000 for himself, in addition to $300 deducted from George’s share to cover an indebtedness owing from George, so that after deducting the commission on the sale the old gentleman had $400 and received a mortgage of $1,800. This mortgage was made to Jacob Steketee as trustee. The $400 was also left in his hands as trustee .to be paid over for the benefit of decedent. The question of the care of the old gentleman was discussed at this time, and it was understood that Mr. Steketee, as trustee, would allow no more than $1 a day to whatever one or ones of the children should care for Mr. Corkins. He lived part of the time with the Ides, Mrs. Ide being a daughter, and part of the time with George Corkins. This arrangement continued until August 19, 1904, when the mortgage was transferred, first by Steketee to the decedent, and on the same occasion by decedent to defendants, and by them soon after sold. The only consideration for the mortgage was an agreement on the part of the two defendants to care for the decedent during his lifetime. The other children were not consulted on this occasion.

There was testimony from which the jury might have inferred that an effort was made to convince decedent that his other children would not care for him, and, as we think, abundant testimony from which the jury might have found an overreaching on the part of these defendants. Seven years prior to this all the children had joined in a sworn petition saying of decedent:

“He is old and weak minded. He is nearly blind. He fell from a wagon a year ago and injured his head, and is troubled yet on account of it. He tries unreasonably to dispose of his property, both real and personal. He talks of and threatens to get married.”

When this testimony is taken in connection with the fact that when the important business of disposing of his property was in hand all the heirs or their representatives gathered and took part, and when it is considered that the decedent in his enfeebled state of body and mind was in the custody and under the influence of these two defendants more than a year, and that apparently departing from an understanding which was had at the time of the deed of the farm that $1 a day would be sufficient compensation for his care, the failure to take the other heirs into their confidence when a new arrangement was to be made is certainly open to very grave suspicion.

We think the jury were fully justified in reaching the conclusion which was recorded by their verdict, and that the circuit judge was not in error in holding that that verdict was not so clearly against the weight of the testimony as to justify setting it aside.

The judgment will be affirmed, with costs.

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


text:
    HUELLMANTEL v. TWEDDLE.
    Fraudulent Conveyances — Bill of Sale — Possession by Vendor — Estoppel of Vendee. '
    Section 9520, 3 Comp. Laws, imposes upon the purchaser of chattels not immediately delivered the burden as against subsequent purchasers of showing good faith, but neither the statute nor the common law goes so far as to work an estoppel as against the true owner who permits property purchased by himself to remain in the hands of the vendor, in the absence of anything to indicate that such purchaser had reason to believe that the vendor was offering or would be likely to offer the property to another.
    Error to Grand Traverse; Mayne,- J.
    Submitted October 22, 1907.
    (Docket No. 109.)
    Decided December 10, 1907.
    Replevin by Alpbonso B. Huellmantel against John J. Tweddle. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      J. J. Tweddle (Covell & Cross, of counsel), in pro. per.

      John A. Loranger, for appellee.
   Montgomery, J.

This is an action of replevin brought in justice’s court to recover a set of dray sleighs said to be of the value of $50. On the trial at the circuit the evidence tended to show the following state of facts: J. D. Pike & Son were engaged in the coal and wood business. at Traverse City, and had before that time agreed to purchase of plaintiff a quantity of wood, the plaintiff however retaining the title thereto in his own name. Beginning about the 1st of January, 1905, the plaintiff and Pike & Son were negotiating for some adjustment of their transactions, and in the negotiations it would appear that defendant acted as attorney for Pike & Son. It appeared that Pike & Son in their dealings with plaintiff ran behind and the result of the negotiations was that on the 12th of January plaintiff made a bill of sale of 660 cords of 4-foot wood, 56 cords of 3-foot wood, and 550 cords of 16-inch wood, a price being fixed upon the wood when disposed of which would leave a margin of 50 cents per cord above cost to apply on the original indebtedness of Pike & Son to plaintiff.

The plaintiff’s testimony also tended to show that on the 11th day of January, 1905, Pike & Son had transferred the dray sleighs in question in this case and another set of sleighs to plaintiff for an agreed consideration to be applied on the indebtedness of Pike & Son to plaintiff. On the 12th, by a separate instrument in the form of a property note, Pike & Son agreed to pay on or about April 1st to plaintiff $50, and the recital was made that the note was given for the sale of the sleighs referred to, and that the title to the sleighs should remain in plaintiff until paid for. Pike & Son continued in possession of the property and business as before, although defendant, as will appear later, claims to have taken possession. In the spring Pike & Son appear to have left the State, and defendant took possession of what property was left, including the sleighs in question. Plaintiff brought this action to recover.

Defendant’s testimony shows that on the 6th day of January, 1905, for the expressed consideration of $1,000, Pike & Son transferred to defendant and one George Jenne all their property used in their coal and wood business, including the sleighs in question, with a warranty of title as against all claims except of A. B. Huellmantel, Howard Whiting, and C. A. Hammond. The claim of Huellmantel referred to, as appears by the testimony of defendant Tweddle, was the claim of ownership in the wood mentioned in the principal contract of January 12th. The defendant’s testimony tended to show that this bill of sale was in consideration of money owing for services and obligations surrendered by himself and Jenne, and that the bill of sale was absolute. He states that he took over possession, but as a matter of fact no change of possession ever took place which was open to observation by the public. The bank account remained with J. D. Pike & Son, the business was conducted in the name of and by J. D. Pike & Son; the only connection which the defendant had with the business was apparently by way of direction through J. D. Pike & Son.

Plaintiff claims that because of Tweddle’s relations to Pike & Son in their dealings with plaintiff, and because of his knowledge that plaintiff was endeavoring to secure himself for what was due from Pike & Son, that he ought to be held estopped from asserting that the conveyance to him secretly should have priority over the transfer made a few days later by Pike & Son to plaintiff, and the case finally went to the jury upon the question of estoppel, the circuit judge charging the jury,—

“The principle of estoppel is this: That where the true owner, that is, where there has been a sale of the property, as claimed in this case, and where the true owner holds out another, or allows him to appear as the owner of, or as having full power of disposal ovér the property, and innocent third parties are thus led into dealing .with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the acts of the real owner which precludes him from disputing, as against them, the existence of the title tor power, which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance. * * *
“Now, two things must concur to create an estoppel by which an owner may dispose of his property by the act of the third party without his assent, under the rule now being considered: First, the owner, and in this case that is Mr. Tweddle, must clothe the person assuming to dispose of the property with the apparent title or the authority to dispose of it. Second, the person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority.
“In this case if you find that plaintiff entered into a new contract, a contract different in terms, that of itself would be a sufficient consideration, so that he will be the loser if the appearances to which he trusted are not real. It will be for you to determine whether he will be the loser if the appearances as to the title to the property are not real. That is, will he, plaintiff, suffer anything by reason of defendant allowing J. D. Pike & Son to hold out the property as theirs, or leaving it in their possession after he had bought it.”

Upon which instruction error is assigned.

It was not left to the jury to determine as to whether defendant’s knowledge of the negotiations between plaintiff and Pike & Son was such as to lpad an ordinarily prudent man to expect that plaintiff was seeking and Pike & Son was tendering security upon the property covered by defendant’s bill of sale. Under the instructions given the jury might have found that the mere fact that there was no change of possession as to the property covered by defendant’s bill of sale constituted a sufficient holding out of Pike & Son as possessed of the title to work an estoppel and defeat plaintiff’s right wholly. This is a mistaken view of the law. The statute, 3 Comp. Laws, § 9520, does impose upon the purchaser of goods and chattels not immediately delivered the burden as against subsequent purchasers of showing good faith. But neither the statute nor the rule of the common law goes so far- as to work an estoppel as against the true owner who permits property purchased by himself to remain in the hands of the vendor in the absence of anything to indicate that such purchaser had reason to believe that his vendor was offering or would be likely to offer the property to another. Barney v. Rutledge, 104 Mich. 289; Nichols v. Monjeau, 132 Mich. 582; McGinley v. Brechtel (Neb.), 95 N. W. 32.

The other questions presented are not likely to arise on another trial. The judgment is reversed, with costs, and a new trial ordered.

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


text:
    YOUNG v. POTTER.
    1. Saving Questions for Review — Chancery Appeal — Equity Jurisdiction — Accounting.
    Whether complainant is entitled to the equitable remedy of an accounting will not be'considered on appeal, though the question is raised by the answer, and it is doubtful whether the bill states a case for a court of equity, where, in view of the argument of defendant’s counsel and the opinion of the court, it would be unfair both to the trial court and to complainant’s counsel to assume that the point was pressed below.
    2. Partnership — Dissolution—Contingent Liabilities — Segur- - ity — Ownership of Fund.
    Where, on the dissolution of a partnership, the continuing partners retained in their hands the retiring partner’s portion of an amount for which the partnership was contingently liable as indorser, the statement of settlement referring to the -• amount as “Your one-third of this amount, which we agree to pay, if above notes are paid by other than” the continuing partners, the failure of any other than the continuing partners to pay the notes prior to their becoming outlawed did not transfer the ownership of the fund from the retiring to the continuing partners.
    3. Same — Limitations—Effect.
    The expiration of the period of limitations without suit being brought upon the notes absolved the retiring partner of his liability upon them and entitled him to his proportion of the retained amount, less the expense of litigating a suit controlling on the firm’s liability on the notes.
    4. Same — Limitations—Right to Plead.
    Though the continuing partners were the ones to exercise the privilege of pleading limitations as to any matter concerning them alone, they could not defeat the right of the retiring partner to insist that his money should be paid only upon a legal liability.
    5. Interest — Dissolution of Partnership — Security.
    Where money was left by a retiring partner with the firm to secure it against a contingent liability of the firm as indorser, nothing being said about interest, and the period of limitations expired without suit being brought upon the notes, interest is allowable to the retiring partner from the time the defense of limitations became available, and not during the whole period of the deposit.
    Cross-appeals from. Alpena; Emerick, J.
    Submitted October 24, 1907.
    (Docket No. 22.)
    Decided December 10, 1907.
    Bill by Benjamin R. Young against James J. Potter and John D. Potter for an accounting. Prom the decree rendered, both parties appeal.
    Modified and affirmed.

      Joseph H. Cobb, for complainant.

      Charles R. Henry, for defendants:
   Montgomery, J.

This is a bill filed for an accounting. The facts upon which the bill is based, briefly stated, are as follows: The complainant and defendants were engaged in the retail hardware business at Alpena under the firm name of Potter Bros. & Co. In April, 1889, the firm was dissolved, Potter Brothers continuing the business. The assets of the firm at this time were $57,000 or thereabouts. There was due to complainant from the firm, for interest and services, a small additional sum. There was outstanding a contingent liability on certain notes of the Prentiss Lumber Co. of $1,700, on a note of Ery Toland for $250, and a note of one Pisher for $200. In the adjustment which was coming to complainant, in settlement, defendants retained one-third of the amount of these contingent liabilities, viz., $716.67, and opposite the item was this statement: “Your one-third of this amount, which we agree to pay, if above notes are paid by other than Potter Brothers.”

The complainant filed the bill of complaint in this case praying for an accounting. It sets forth the above facts and that the firm of Potter Bros. & Co. had sold to the Prentiss Lumber Co. goods and supplies for which it took its promissory note amounting to $1,700, which they indorsed and placed in the hands of the Alpena National Bank; that the Prentiss Lumber Co. failed and that Potter Bros. & Co. refused to pay this note claiming to have a defense on account of certain actions, statements, and representations of the president of the bank, George L. Maltz; that on the 11th of April, 1889, Potter Bros. & Co. gave to the bank their note to stand instead of the Prentiss Lumber Co. note, but with the agreement that it should be open to the same defense as the original Prentiss Lumber Co. note indorsed by Potter Bros. & Co.; that a test case was brought upon notes held by other parties standing in the same relation to the Alpena National Bank, and that this test case has remained dormant for seven or eight years; that the complainant is willing to furnish ample security and ample bond of indemnity to Potter Brothers to protect them from all costs and damages if they are required to pay said note, and that after learning that said suit had been left in abeyance, and that defendants were no longer liable upon their note, that complainant asked for an accounting which was refused by defendants.

The answer admits in substance the making of this agreement, but alleges that the litigation pending to determine the liability of these parties has not been concluded, and that it does not yet appear that Potter Brothers may not be called upon at least in good conscience to pay this note, whether legally liable therefor or not, and it is said that the privilege of pleading the statute of limitations is personal, and it denies that the complainant is entitled to relief in equity, and it alleges that if entitled to relief at all he should proceed in a court of law.

The circuit judge gave a decree for complainant for one-third of the amount of $1,700, viz., $566.67, less expenses incurred by the defendants in the' conduct of the defense of these suits, adding interest from the date of filing the bill. Both parties appeal, complainant claiming to be entitled to interest from the date of the dissolution, and defendants claiming that the decree should be reversed.

As to the question of remedy, we think it not fair to the-circuit judge to treat this question as open. It is true that the answer raises the question, but it is manifest from the opinion of the circuit judge that he did not consider that the point was made on the argument, and the record contains the argument of counsel for the defendants,, which contains the following statements:

“We either want this'thing settled upon a law basis, according to the rules of law, or we want it settled upon an equity basis, according to the rules of justice and equity, and we are not very particular which it is. Mr. Potter has frequently said to me: ‘ I don’t want you to avail yourself of any technical defense in- this case, provided this thing is all settled according to a fair deal all around. If we get what we think we are entitled to — what belongs to us, why we will waive the other defense. ’ Now, our defenses are two: First, they come into this case and ask that we be required to account for one-third of $1,700 of the Prentiss note. And we say we are prepared and ready and willing to account for it, exactly according to the terms of our agreement, and our agreement was and we both signed it that when it shall be established that there shall be no liability upon it — when it shall be established that we are not required to pay anything upon that, then, very well. * * * Now, we say this: We would be willing to adjust this matter by having our expenses paid —our one-third of the actual expenses paid, and our one-third of this item, and we think that Mr. Potter should have something for his trouble in running to Lansing and running around taking care of these cases. It may, perhaps look like a small item, but people don’t like to leave their stores and run all over the country attending to law suits, defending them, hiring lawyers and counseling with them for nothing. Their time is worth something. It is fair and reasonable that he should have a fair and reasonable amount for that; and if he is given what the court shall say under all the circumstances — Mr. Young didn’t have the trouble of doing this — if the court should give him what is fair and reasonable for his services in that connection, and $117, or whatever that amounted to, his one-third of the bill of expense, and deduct from the amount one-third of the $796, we would be glad to pay Mr. Young the balance. When you come to the question of interest, though, the interest should not run, in my judgment, upon only the difference between the two accounts. That is our position in this case, and we feel that we are not asking anything that is unfair and unreasonable. Counsel says that a certain part of the errors is outlawed, and therefore it should not be considered. They have come into a court of equity here. They have not sued upon this; they might have done so. We claim in our answer that certain items of theirs are outlawed, and that this is outlawed, but we are here in a court of equity, and we are trying to adjust this matter fairly between both of the parties. I think we can very fairly eliminate all of the legal questions, providing we come to a fair adjustment of the accounts between the parties, so that we can get the matter settled up. We have tried to do this before, and we haven’t been able to agree, Mr. Cobb and I haven’t, as to what would be a fair amount.”

Taking the bill and answer together, an accounting was asked for. While it is doubtful if the bill states a case for a court of equity, yet, in view of these statements of defendants’ counsel, we think it would be unfair, both to the trial court and to complainant’s counsel, to assume that this point was pressed. On the contrary, the conclusion is clear that an adjustment of the whole matter was desired.

Defendants’ contention that the contingency has not arisen which makes this $5,66.67 payable to complainant, does not take due account of the substance of the transaction. This was a division of assets of the firm of Potter Bros. & Co. Complainant was entitled to one-third of these assets as a matter of right. It was his property. In view of the fact that he was about to leave for a distant State, the defendants very properly required that this sum be left in their hands to meet any contingent liability that would be established against them. It was a mere security. Their obligation to pay this sum to the complainant existed independent of any promise. It was recognized as the property of the complainant in the statement. It was referred to as “ your one-third of this amount.” The substance of the transaction was, and it taras so understood by all the parties, that Potter Brothers should turn this money back to complainant when they should be relieved from the obligation to pay it themselves to third parties. They expressed this in the agree-" ment in so far as to say that they agreed when any other than Potter Brothers should pay the note; but the failure of any other than Potter Brothers to pay the notes did not transfer the ownership of this fund from complainant to Potter Brothers.

Now, the note upon which Potter Bros. & Co. became liable to the bank outlawed January 21, 1903. There was no longer any excuse for holding this fund as security against any obligation of theirs. It is true that Potter Brothers are the ones to exercise the privilege of pleading the statute of limitations in any matter in which they alone are concerned. But as they were representing Potter Bros. & Co. in a promise which the latter made to the Alpena National Bank, they cannot defeat the right of complainant to insist that his money shall be paid only upon a legal liability.

It was sought to set up the claim that, on this adjustment in 1889, certain errors occurred in the settlement, but the court very properly held that any claim upon this was long since outlawed. The allowance of $117.05 was properly made to the defendants for expenses in looking after the litigation.

On complainant’s behalf, it is contended that interest should be computed from the time that this transaction took place. We do not think this allowable. This deposit of money.was left with the defendants as security. There was no agreement to pay interest. On the contrary, the agreement was to pay, either as contended by defendants, this amount when the notes were paid by other than Potter Brothers, or to pay, if the substance of the agreement be regarded, when Potter Brothers were relieved from their obligation to pay. Interest, therefore, should be computed from the 21st of January, 1903, when for the first time Potter Bros. & Co. were relieved from the liability to pay this note.

As so modified the decree of the court below will be affirmed, with costs of both courts to complainant.

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


text:
    BRIGGS v. TOWNSHIP OF PINE RIVER.
    Highways and Streets — Personal Injuries — Proximate Cause —Injury to Bioyole Rider — Evidence.
    In an action against a township for injuries sustained by plaintiff in falling from his bicycle and over the edge of a culvert on a highway which it was the duty of defendant to keep in repair, evidence examined, and held, that the undisputed testimony of plaintiff and his witnesses showed that neither the hole in the road complained of, the narrowness of the culvert or approaches, nor the lack of barriers constituted, singly or together, the proximate cause of the accident, and-that the accident was caused by reason of the bicycle slewing in the sand, or striking a stone, or in some other manner undisclosed getting out of plaintiff’s control and throwing him over the bridge, for which the township was in nowise responsible.
    Error to Gratiot; Searl, J.
    Submitted October 24, 1907.
    (Docket No. 129.)
    Decided December 10, 1907.
    Case by Otto Briggs against the township of Pine River for personal injuries. There was judgment for defendant on a verdict directed by-the court, and plaintiff brings error.
    Affirmed.

      William, A. Bahlke and James G. Kress, for appellant.

      George P. Stone, for appellee.
   Blair, J.

Plaintiff brought this action against defendant township to recover damages for injuries sustained by him by reason of falling from his bicycle and over the edge of a culvert on a highway which it was the duty of defendant to keep in repair. The first count of plaintiff’s declaration alleged that the highway was not reasonably safe and fit for travel, for the reasons, substantially, that the culvert was too narrow, that the approaches were narrow and unsafe and were built up from 12 to 15 feet above the surface of the highway, and that there were no barriers, railings, or other protection to prevent travelers from being precipitated over the embankments; that the highway was so constructed as ,to conduct the water on the highway in time of rains so as to convey it into the wrought or traveled portion of the highway and to a point very nearly, if not quite, over and upon the top of said culvert, where it was conveyed on account of said grade to the north of said culvert and ran over said embankment, “by reason of which construction, the said water in washing its way over the top of said culvert, produced and caused the said highway over, upon and at the point of said culvert, to become washed and dug out and a ditch to be formed thereby, which intersected the wrought and traveled portion of said highway from a point where the north wagon track at said place would lead to the north bank of said approach, and «said ditch or washout was of a depth of from 4 to 12 inches, and which ditch intersected the foot-path leading over said culvert to the north of said wrought and traveled road. * * * That owing to said defective, dangerous and unsafe condition of said highway, and by reason of the premises as aforesaid, he was thrown from his bicycle without any fault,” etc.

The second count of the declaration averred that the narrowness of the culvert and the want of railings or barriers concurred to cause the injury.

The highway ran in a westerly direction at the point where it ivas crossed by the culvert, which was 18 feet wide, north and south, and 13 feet wide, east and west. On the morning when plaintiff received the injuries of which he complains, he approached this culvert from the east upon his bicycle. He had known this road for many, years and was overseer of highways in 1903. The only defect in the traveled portion of the road was a depression, or, as some of the witnesses called it, a ditch, washed out by the surface water flowing down the road. This ditch ‘ ‘ starts on the traveled part of the road and cuts through the embankment to the north, where it is 4 or 5 feet wide, and it runs from nothing to a foot or 14 inches deep. It begins at the north wagon track. At the track it has no special depth but gets deeper as it goes north to where it breaks through the bank and throws the water into the ravine.”

Ordinary vehicles were able to pass safely over or through this so-called ditch or depression, but it was an obstruction to bicyclists, who turned around it. Plaintiff testified that he was familiar with the bicycle path.

“It was on the north side of the highway, that is, it was north of the wheel track, the wagon road, on the smooth ground, and it followed down to the side of the road, on the north side until it came within say perhaps 8 or 10 feet of this washout on the north side where the water runs from the wagon track out of the road. There it turned into the read, into the wagon part, that is, the wagon track of the road, and went over the culvert, then it turned to the north, on the north side of the road and on up the other hill. * * *
Q. What is the fact as to whether that was a conven-. ient and suitable path for bicyclists ?
“A. Why, I had always rode over there and he (meaning his companion who had preceded him) had always rode over there. I never had no accidents nor he neither until this time.
• “ Q. Describe how you went: over that place at the time in question; give us the track and just exactly how you went over and what you know or remember about it.
“A. Well, we were coming down that hill, I remember of knowing — recollecting and knowing that that place was there.
“Q. That is the ditch you mean ?
“A. Yes, sir, and we always slowed up in order to go by it, and turned out into the wagon road, and as I went by it, I came out into the wagon track.
“Q. Which wagon track, the north wagon track ?
“A. Well, I came out into the center of the road between the two wagon tracks and went by this hole, and as I went by it, I don’t know how far I had got by it, but the wheel slipped or slewed or struck a stone or something, I don’t know what, I don’t remember, but when I came to myself I was down in that hole on the north end of the culvert. * * *
“Q. As you turned to avoid the ditch, in the bicycle path and guide your bicycle to the left or to the south, into the traveled portion of the road, how far east of the hole was it that you began to turn into the highway ?
“A. Well, six or eight feet.
“Q. And as you started west towards and over the culvert what line were you taking with reference to the north edge of the culvert, how far in, tell us about where you were ?
“A. Well, it was a little to the north side near ,the wheel track, near the north wheel track.
“Q. And how far from the north edge of the culvert?
“A. About — well, two or three, perhaps between three and four feet.
“Q. Would that be your best judgment, between three and four feet ?
“A. Yes, sir. I think I was right over the culvert when I fell off from it and I fell directly to the north and I struck right in the bottom of the ravine and in the deepest part of it. * * * I couldn’t say whether the wheel struck a stone and throwed me out of balance or whether it struck the sand and throwed me out of balance.
“Q. You knew there was some sand there, do you not?
“A. I understand there was some sand there.
“Q. You were coming from the east as we call it, on a down grade ?
“A. Yes, sir.
“Q. And you were in a bicycle path on the north side of the wheel track ?
“A. Yes, sir.
“Q. And when you came down to this point near— within six or eight feet of where this water had broke over the north wheel track of the road, you then turned out into the road ?
“A. Yes, sir.
“Q. And as you turned out into the road you went into that sand, struck then right into that sand ?
“A. No, sir, the sand was deposited farther to the west than that hole.
“Q. A little farther than that hole ?
“A. Yes, sir. * * *
Q. And as I understand you, you went on past that depression ?
“A. Yes, sir.
“Q. And when you got just a little bit past that depression then something happened to you ?
“A. Yes, sir.
“Q. Do you know just how far you had got past the depression ?
“A. Well, sir, I had got four or five or six feet, somewhere there.
“Q. And then your wheel went out from under you?
“A. Yes, sir. I knew every inch of that road; I traveled it every night and morning and was familiar with it. I knew that it was necessary for me to turn out when I came to this depression and necessary for me to go through a little sand in going over the culvert. * * * I do not-know whether I struck a stone or whether I struck sand or what the bicycle struck, nor do I know that the bicycle slewed, but I did know that something occurred that threw me out of balance and when I was thrown out of balance I suppose I lost control of the wheel. When I lost control of the wheel, I did not pitch over the wheel, I went off to the side of it; there was a little time after the wheel slewed there that the wheel was uncontrollable and I sought to control it as anybody would.
“Q. And then you fell off from the wheel?
“A. I did, sir.
“Q. And either the wheel slewing in the sand or else it striking some obstacle and you don’t know which it was, threw your wheel out from under your control ?
“A. Threw it out from under my control.
“Q. And that caused you to fall ?
“A. That caused me to fall. * * *
“Q. Asa matter of fact, when you first struck into that sand you wasn’t going straight, were you ?
“A. Well, now, I was following the bicycle path, following the path that I had always followed.
“Q. That didn’t go straight, did it, through the sand ?
“A. Well, yes, sir, it did, went straight across that. It went straight across the culvert until it. got to the west side and there it veered to the north into the main track of the bicycle on the north side of the road. * * *
“Q. Then, as I understand you, that if it hadn’t been for your wheel either slewing in the sand there just as it did then, you would have passed around that hole and gone on over the culvert just as you always had before?
“A. I would have, sir. * * *
“Q. And when you went out around this place in question so you got to going straight down the road again, were you between the wheel tracks ?
“A. I was nearer to the north wheel track than I was to the south.
“Mr. Stone: But you were in the traveled part of the road ?
“A. I was in the traveled part of the road.
“Mr. Bahlke: Was that where the bicycle path was ?
“A. That was where the bicycle path was at that place.
Mr. Stone: Which part of the culvert had you been accustomed to running over with your bicycle ?
“A. Well, practically on the north half.
“Q. You had been accustomed to running over there ?
“A. Yes, sir.
“Q. And then on this morning in question you were steering around to get over the north part of the culvert ?
“A. Yes, sir, where I always had.
“Q. You, as I understand it, was perfectly familiar with the bicycle path ?
“A. Perfectly familiar, because I had rode it night and morning for three weeks anyway before that.
“Q. Twice a day right along ?
“A. Twice a day right along, have been over the road ' twice a day ever since, excepting while my arm was broke.
“Q. If you went off from the bicycle right over the culvert, how do you account for the fact that the bicycle didn’t go off ?
“A. Well, sir, I don’t know, simply I must have let go of the bicycle when I lost control of it and went off from it; a man naturally would throw his hands up to save himself and 1 knew that I was going off from there and realized it at the time and I done all in my power to save myself all I could.”

At the conclusion of plaintiff’s proofs, the court, on motion of defendant’s counsel, directed a verdict in favor of defendant, on the ground that the negligence of the defendant, if any such were proved, was not the proximate cause of the plaintiff’s injuries. Plaintiff brings the case to this court for review upon writ of error, contending that the court should have submitted the case to the jury, for various reasons argued in the brief.

We agree with the circuit judge that the undisputed testimony of the plaintiff and his witnesses shows that neither the hole in the road, the narrowness of the culvert or approaches or the lack of barriers constituted, singly or together, the proximate cause of the accident, but that such accident was caused by reason of the bicycle slewing in the sand or striking a stone or in some manner undisclosed getting out of plaintiff’s control and throwing him over the bridge. For this the'defendant township was in nowise responsible, and plaintiff is not entitled to recover. Bell v. Village of Wayne, 123 Mich. 386 (48 L. R. A. 644).

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