author: Ostrander, J. Ostrander, C. J.

text:
    BIRD v. STIMSON.
    1. Ejectment — Title to Realty.
    A plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of the title of his adversary.

    2. Same — Burden of Proof.
    The burden rested upon plaintiff to establish the existence of the tract claimed by him between two lots, in the place stated, to which he had obtained title.
    3. Boundaries — Rule.
    If courses and distances do not agree courses will, as a general rule, govern.
    4. Ejectment — Evidence—Sufficiency.
    In an action of ejectment to recover a strip of land between two lots, evidence held, insufficient to sustain a verdict for plaintiff.

      5. Deeds — Quitclaim -Deeds — Estates Cheated.
    The grantee in a quitclaim deed acquires the right and title which his grantor had, and no other.
    Error to Oakland; Smith, J.
    Submitted January 12, 1917.
    (Docket No. 106.)
    Decided September 27, 1917.
    Rehearing denied March 28, 1918.
    Ejectment by George L. Bird against Edward I. Stimson. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Williams C. Harris, for appellant.

      Doty & Cram, for appellee.
    The action is ejectment, begun August 23, 1913, plaintiff claiming to own in fee and to be wrongfully dispossessed by defendant of land described in the declaration as follows:
    “Surplus parcel of land between lots ten and eleven (10-11), on unrecorded plat of Scarborough Beach, situated east of Pine Lake, southeast quarter of section twelve (12) in town two (2) north, range nine (9) east of Michigan meridian eight degrees described as follows: Beginning at an iron stake on the west side of public road called Glenwood avenue, 348 feet, northerly measured along the west side of said road from a white oak tree on the division line of said quarter section; thence westerly to stake on the shore of Pine Lake 412 feet northeasterly along shore line from above-named division line of said quarter section; thence northeasterly along said shore twenty-eight feet to a stake on the south line of lot ten; thence easterly to stake on Glenwood avenue; thence south nine and one-half feet to place of beginning.”
    Upon a trial, certain issues of fact were submitted to a jury, which returned a verdict for plaintiff, who had judgment. Neither the verdict nor the judgment specifies the estate or right established on the trial by the plaintiff. Defendant asked for a new trial, in refusing which the court, stating that the showing made was persuasive that the motion should be granted, said:
    “The situation of the case is such that two propositions are involved which ought to be settled by the Supreme Court before another trial, if there is to be one. Therefore I am formally denying the motion and leaving the appellate court (according to the statute) to pass upon the merits of the motion, if it shall be necessary, after disposing of the two matters involved in the trial itself. These two propositions involved are as follows:
    “(1) Defendant insists that the plaintiff cannot maintain an ejectment suit because the deed from his grantor, Burch, js but a quitclaim deed with Burch not at the time in actual possession or occupancy of this strip of land, while plaintiff insists this principle of ejectment law is not applicable to the situation in the present case.
    “(2) Plaintiff also insists that if wrong in his above contention, still that possession of a part is possession of all, and it being conceded that Burch, was in actual possession of the unplatted farm on the east side of Glenwood avenue, it is, for the purposes of this suit, possession of the strips claimed by plaintiff. Against the objection of defendant this question of possession by Burch was left to the jurors, who found in favor of the plaintiff.
    “It seems to be conceded (and if not the proofs are clear) that Burch was not, at the time, cultivating this strip nor living upon it, and that he took no steps himself to ascertain its exact amount, nor to separate it by fences or boundary lines from lands of the adjoining owners, and that he refused to execute a warranty deed. The affidavits of the jurors have been entirely disregarded.”
    Testimony for the plaintiff tended to establish the facts now to be stated. Edward Coates owned a part of the north half of the southeast quarter of section 12, town 2 north, of range 9 east, West Bloomfield, bounded on the north by the east and west quarter section line, and on the south by the east and west one-eighth, section line. The western boundary is Pine Lake, and the eastern boundary the town line separating West Bloomfield and Bloomfield townships. He died in 1902, testate, and his estate was settled in the probate court of Oakland county. The executor was Joshua W. Bird, the residuary devisees Gavie and William Richardson. The order closing the estate was made August 27, 1904, and Cavié Richardson having theretofore conveyed to William by two quitclaim deeds his interest in the residuum of the estate, “the real estate of which said deceased died seised and possessed” was assigned to William Richardson, his heirs and assigns, in accordance with the terms of the will and the assignments made by the other residuary devisee. At some time, while Edward Coates was owner, some one, presumably for him, made a plat of a part of the said above-described land which fronts upon Pine Lake. It is not known who made the survey, if one was made, or the plat. It was not dated, signed, or recorded. It was not produced, but what purports to be a copy of it, produced in evidence, shows the land between the lake and a north and south road, called Glenwood avenue, divided as follows: At the north, bounded on the north by the quarter section line, is a highway, 33 feet wide. To the south of the highway and north of the one-eighth section line are 14 lots, numbered from 1 to 14, and an alley 24 feet wide between lots 9 and 10. The shore of the lake is curved, lots to the north and south being in appearance longer than those in the middle of the plat. The highway, Glenwood avenue, appears to be curved, and does not in appearance parallel the lake shore. No courses are given, but the side lines of the lots appear to be parallel and parallel with the section lines. Distances are given, at least on some of the lots. For example, the south lot, 14, bears figures indicating a frontage on the lake of 105 feet and a length, east and west, of 475 feet, while lot 10 has a shore frontage of 146 feet and length of 295 feet. The total shore frontage of lots 14, 13, 12, and 11, as indicated on the plat, is 405 feet. Distances marked on the highway do not agree with distances marked on the shore line. What Edward Coates did with the land represented on the plat as lying north of lot 10 is not made to appear. A witness testifies to the purchase from him of lot 10, but the deed of conveyance thereof is not before us. No deed of any lot north of lot 10 is produced.
    Plaintiff produced the quitclaim deeds made by Cavie Richardson to William Richardson, the earlier instrument dated January 9, 1904, the later one May 31, 1904. The first describes the land on section 12, as follows:
    "Also all the northeast part of the S. E. % of section 12, T. 2 N. R. 9 east, being West Bloomfield township bounded north by the E. & W. % line of said section 12, bounded east by the township line between Bloomfield and West Bloomfield; bounded south by what is known as the John Ellenwood farm, and bounded west by the public highway running through said 3/4 section. Also all that part of the north part of the S. E. % of said section twelve (12) described as follows: Commencing on the easterly shore of Pine Lake where the line between Edward Coates’ land and John Ellenwood’s land intersects the same, running thence northeasterly following the shore of said lake 405 feet; thence north 86 degrees 2 minutes east 200 feet; thence southwesterly course, keeping 200 feet distant from the shore of said lake, 419 feet to said Ellenwood’s land; thence S. 89 degrees 30 minutes W. 200 feet to the place of beginning being known as lots 11, 12, 13, and 14, according to an unrecorded plat called Scarborough Beach. Also all that part of the N. part of the S. E. % of section 12: Commencing on E. shore of Pine Lake at a point 575 feet northeasterly from a point where the line between Edward Coates’ and John Ellenwood’s land intersects said lake, thence northeasterly and northerly following the meander line of said lake a distance of 385 feet, running thence north 60 degrees 30 minutes E. 185 and 2/10 feet to the W. line of the public highway; thence southerly following west line of said highway 363 and 2/10 feet; thence west on a parallel line with the N. line, 213 and 9/10 feet to the place of beginning, known as lots 6, 7, 8, and 9 on the above-mentioned plat, called Scarborough Beach.”
    The second deed contains the description following:
    “Part of southeast fractional quarter of _ section twelve (12) town two (2) north of range nine (9) east, Michigan. Being all that part of said quarter section lying westerly of highway running _ northerly and southerly through the north half of said quarter section, and extending west to high-water mark on east bank of Pine Lake (except lots heretofore sold on the unrecorded plat of Scarborough Beach).”
    Plaintiff produced, also, a warranty deed from William Richardson to Andrew Maclnnes, in which the parcel of land on section 12 is thus described:
    “Also the north part of the southeast fractional quarter of section 12 town 2 north of range 9 east the same being in the township of West Bloomfield and containing 5430/100 acres of land excepting therefrom ten acres of land heretofore conveyed by the party of the first part to Julius F. Rundell by deed recorded in Liber 211 of deeds at page 247 and excepting such portions of said land as have been heretofore conveyed from that part of said land known as Scarborough Beach by deeds which are upon record.”
    A deed from Andrew Maclnnes to Arthur E. Burch is dated February 9, 1910, is a warranty deed, and describes—
    “also conveying the north part of southeast fractional quarter section twelve T. 2 N. R. 9 E. containing 54.30 acres. Being in the townships of West Bloomfield. Excepting from the above premises ten acres of land heretofore conveyed to Julius F. Rundell by deed recorded in Liber 211 of Deeds, page 247.' And also excepting such portions of said land as have been heretofore conveyed from that part of said land known as Scarborough Beach by deeds which are duly recorded in Oakland county register of deeds office.”
    Plaintiff, a son of the executor of the estate of Coates, learned of an alleged or rumored surplus or excess of land on the lake front, over that described by distances on the unrecorded Coates plat of Scarborough Beach. He employed a surveyor, who found such a surplus, described it, and furnished a description of the same, which was employed in a quitclaim deed, dated June 9, 1913, executed by Burch and his wife to plaintiff, which description is recited in plaintiff’s declaration. Plaintiff paid $25 for the conveyance. At the time it was executed, Mr. Burch lived in a house on the east side of the road, Glenwood avenue, exercising, generally, the dominion of an owner over such portions of section 12 as he had title to.
    Plaintiff never had possession of the parcel of land in question. Two surveyors gave testimony for plaintiff, each producing a plat and each claiming to have found a piece of land lying between lots 10 and 11 as shown on the Coates plat in excess of the land called for by that plat. They had also had the benefit of a description of land in a certain mortgage executed by Edward Coates in 1895, conveying, on section 12—
    “all that part of the north part of the southeast quarter of said section twelve (12) described as follows, commencing on the easterly shore of Pine Lake where the line between Edward Coates’ land and John Ellen-wood’s land intersects the same, running thence northeasterly following the shore of said Lake four hundred and five feet thence north 86 degrees 2 minutes east, two hundred feet, thence southwesterly course keeping 200 feet distant from the shore of said Lake four hundred and nineteen feet to said Ellenwood’s land, thence south 89 degrees and 30 minutes west two hundred feet to the place of beginning, being known as lots 11, 12, 13, and 14 according to an unrecorded plat called Scarborough Beach. Also all that' part of the north part of the southeast quarter of said section (12) twelve, commencing on the east shore of Pine Lake at a point 575 feet northeasterly from a point where the line between Edward Coates’ and John Ellenwood’s land intersects said lake, running thence northeasterly and northerly following the meander line of said lake a distance of 385 feet, running thence north 86 degrees and 30 minutes east 185 2/10 feet to the west line of -the public highway, thence southerly following the west line of said highway 363 2/10 feet, thence west on a parallel line with the north line 213 9/1Q' feet to the place of beginning, known as lots 6, 7, 8, and 9 on above mentioned plat called ‘Scarborough Beach.’ ”
    Éach of these surveyors in making a survey and plat was governed by distances marked on the unrecorded plat and not by courses. William Richardson had conveyed lots 11 and 12 to defendant’s grantor, ^describing the land as:
    “Lots 11 and 12 according to the unrecorded plat of ‘Scarborough Beach’ and described as follows: Commencing at a point on the westerly side of the public highway running northerly and southerly through the southeast quarter of section 12 of said township, distant 178 feet northeasterly from the point where the north line of the southwest quarter of the southeast quarter of said section crosses the westerly line of said highway; thence northerly along the westerly line of said highway 170 feet; thence westerly parallel with the north line of said southwest quarter of said southeast quarter of said section 12 to the highwater mark on the bank of Pine Lake; .thence southerly along the highwater mark 200 feet; thence easterly parallel with said north line to the place of beginning.”
    Defendant’s grantor conveyed to defendant lot 11, describing the land also as beginning at a point in the said highway 256 feet northeasterly from the point where the north line of the southwest quarter of the southeast quarter of said section crosses the westerly line of said highway, thence northerly along the westerly line of said highway 92 feet, thence westerly parallel with the north line of said southwest quarter of said southeast quarter of said section 12 to the high-water mark on the bank of Pine Lake, thence southerly along high-water mark 100 feet more or less—
    “and to a point intersecting a line drawn westerly from the said point of beginning, and parallel with the said north line of said southwest quarter of said southeast quarter of said section twelve, thence easterly along said parallel line to the place'of beginning. Being a part of the same premises conveyed to the said party of the first part by Wm. Richardson by deed recorded in Liber 211 of Deeds at page 89.”
    These conveyances, read together, make lot 12\78, and lot 11, 92, feet on the highway, and each slightly wider on the shore, with side lines parallel and parallel with the section lines. \
    Witness Barnett, one of plaintiff’s surveyors, tes-' tified: 1,
    “I was employed to mark out the surplus lot, ac-i cording to description, and previous deeds covering lots 11,12,13, and 14 were furnished to me. I noticed that all the descriptions, in addition to showing a distance on the road at the easterly end of the lots, and a distance on the lake at the westerly end, also called for lines parallel to the one-eighth section line. In locating Mr. Bird’s lot I elected to ignore the calls for parallel lines, and depended upon the distances at the easterly and westerly ends of the lots. I do not necessarily survey in this manner, but in this case, the lake frontage being specified and being of value, I realized how difficult it is to run a line, one line parallel to another: if they diverged as they extended towards the lake, it would increase the shore line. That is according to the elements of surveying, generally with all surveys.”
    The other surveyor, Slater, said he had surveyed Scarborough Beach “from end to end, and located the surplus lot four times.” He, also, using the old Coates plat and distances, instead of courses, found a surplus.
    On the other hand, Heavenrich, to whom Richardson conveyed lots 11 and 12, and who conveyed lot 11 to defendant, had the land, lots 11 and 12, surveyed before he bought it, and a plat of it made in conformity with the survey. Joshua Bird, who had been executor of Coates’ estate, and seems to have been business agent for Mr. Richardson, pointed out to Heavenrich the north line of lot 11. This is the undisputed testimony of Mr. Heavenrich. His surveyors set stakes according to his survey, in making which he started at the one-eighth section line on the highway, measured north on the highway, and from the highway to the lake followed a line parallel with the section line. He observed the call for distance on the highway and the call for parallel lines, and disregarded the water frontage indicated in the unrecorded plat.
    Measuring along the shore now, 405 feet from the one-eighth section line, brings one to a point which is 28 feet on the shore and 10 feet on the road, south of the north line of lot 11, as it is occupied by defendant.
    Mr. Wild, who purchased lot 10 from Mr. Coates in the year 1886, testified:

      “Q. What did Maj. Coates say about the line, the boundary between your premises and his on the south?

      “A. He said that at the time, if he should carry that line that was established from the north end of the plat, the same as the rest of the lines north of our property, and carry that same parallel line right through to the Ellenwood fence, there would be an angling condition at the further end of the Ellenwood property.

      “Q. At the extreme end on the south?

      “A. Yes, sir; and that he therefore made this plat which he showed me, saying that he should start from the Ellenwood property, the line of that rail fence, and continue the line towards lot 10, in parallel lines, and whatever, if any, of that angling section was found to be on the property that I had bought from him, or in other words — it would be contiguous to my property — I was to have that property. * * * Maj. Coates said that I was to have that undivided, section. * * * And we personally went over the ground; he drove a stake slightly north of the hickory tree on the road which measured along parallel lines from the Ellenwood property. * * * Well, it is the Holliday property — and carried that line due west and struck the tree which Maj. Coates blazed with his ax in my own presence, and he said, ‘Here is your line/

      “Q. Do you know whether that tree still stands?

      “A. It was standing the last of my information.

      “Q. How long ago was that?
    “A. About 2 years ago.
    “Q. What sort of a tree is that down on the lake bank?

      “A. I think it is a hard wood tree of some kind, but whether it was—

      “Q. Well never mind, it must be a tree of some size now, at least 6 or 8 inches?

      “A. Yes.

      “Q. Now that parallel line then was the north line of this remaining property?

      “A. Yes, sir.
    . “Q. And I understand from what you have testified that he told you there would be — there was a little piece of land in between that line and the property which he had deeded to you?

      “A. Yes, sir.
    “Q. What did he say about that little piece of property in there?

      “A. He said, ‘That belongs to you. sir/
    “Q. How long ago was that?

      “A. Well, that is at least 24 years ago.

      “Q. How long did you occupy lot 10 together with your sisters?

      “A. Ever since it was purchased until 2 years ago.

      “Q. That would be in the neighborhood of 27 years?

      “A. Yes, sir.

      “Q. How did you occupy it, for what purpose?

      “A. Some cottages.

      ‘Q. Did you ever occupy, hold possession of this little piece of property that we have just been speaking about?

      “A. I was occupying it.

      “Q. What did you do with it?

      “A. I plowed it up, plowed up the ground at the west and set out berry bushes, and extended it all the way along the line up to the rear of the house, not clear up to the front of course. * * *

      “Q. Do you know, of your own knowledge, whether during the time that you had possession of that property, any other person claimed it, that is, this narrow piece I am speaking of, between your lot and lot 11?

      “A. I don’t know of any one.

      “Q. Never heard of any person claiming it?

      “A. Only recently I heard that Bird made a claim.

      “Q. Did you ever know of anybody besides yourself, ever having possession of it, during those 24 years?

      ‘A. No, sir.

      “Q. Do you know Arthur E. Burch?

      “A. Yes, met him a couple of times.

      “Q. Have you any knowledge or did he ever have possession of that property?

      “A. He certainly never did.

      “Q. Did you ever have any talk with him about it?

      “A. No, sir.

      “Q. Never?

      “A. No, sir; if he had attempted possession, I would have fired him off.

      “Q. So, as a matter of fact, you were in possession of that property for about 24 years?

      “A. Yes, absolutely.”
    There is testimony from which it may be inferred that upon, or nearly upon but north of, the eighth section line there was originally a fence, and that if this fence, instead of the true line, was used in making the Scarborough Beach plat, and if shore measurements began at the fence, or at the line of the fence projected to the shore line, which was north of the true line, all measurements on the shore were affected.
    The brief for each party contains a statement of facts. Appellant’s conclusions from his statement are:
    “It being conceded that a surplus strip of land has always existed between lots 10 and 11, any enlargement of such strip by taking away from lot 11 as the same was described in conveyances and laid out depends entirely upon the accuracy of Slater’s and Barnett’s surveys and their controlling force over elder surveys. If the former are incorrect, there exists only the surplus strip between lots 10 and 11, which has never been claimed or occupied by the defendant Stimson, but has been held by Wild for more than 20 years. If Slater’s and Barnett’s surveys are correct and of controlling importance, Arthur E. Burch must have had actual possession of the claimed surplus in order to convey title thereto to the plaintiff, Bird, by quitclaim deed.”
    Appellee says:
    “From defendant’s statement of the facts, together with plaintiff’s additions thereto, it is a simple conclusion that the plat of the property known as Scarborough Beach was never correctly drawn, and that the lines thereof have never become established lines by record. The calls for parallel lines boundaries of lots 11 to 14, inclusively, on the plat and in the various deeds thereof from William Richardson cannot be correct if those lots are each to be given the exact shore frontage called for on said plat and in said deeds. None of the lots 11 to 14 were ever occupied by their several owners according to the north and south parallel boundaries. Both-sides practically admit that if the shore measurements of lots 11 to 14 are to be observed instead of the parallel boundaries on the north and south of them that there is a surplus of 28 feet or thereabouts on the lake shore. The only written record in which Edward Coates, the plattor and original owner, is a party, and the only written record in which any evidence of his intention appears, places the northwest corner of lot 11 at a point 405 feet from the southwest corner of the plat (i. e., the place where the one-eighth line produced cuts the lake, the same being the line between Ellenwood and Coates), which is the location of that corner contended for by the plaintiff, and if said corner so located is the true northwest corner, the surplus of land on the lake shore corresponds to the description claimed in plaintiff’s declaration. This record of the original plattor calls for the shore frontage of the four lots to be exactly the same as called for on the original plat and as called for by the sum of the frontages in the various deeds of those lots from William Richardson, and as located by plaintiff. All the surveyors in the case, both plaintiff’s and defendant’s witnesses, agree that if the shore frontage of the four lots 11 to 14 is followed instead of the call for the north and south boundaries of those lots to be parallel, there is a surplus of land on the lake shore over what is called for on the plat as lake shore and in the deeds of those lots from William Richardson. And three of these surveyors are agreed that the amount of this surplus is at least 28 feet and a fraction.”
    Of the 13 errors assigned by appellant, 8 are relied upon, namely, the fourth, sixth, and the eighth to thirteenth, inclusive. Of these, the fourth is based upon objections to the introduction in evidence of plaintiff’s Exhibit J, a plat; the sixth, upon the refusal of the court to direct a verdict for defendant; the eighth, ninth, tenth, and eleventh, upon the refusal of the court to give appellant’s requests to charge; the twelfth, upon alleged failure of the court to clearly and definitely instruct the jury upon the law as to adverse possession, construction of deeds, and proper methods of surveying; the thirteenth, upon denial of the motion for a new trial.

      On the general rule that plaintiff must recover, if at all, on the strength of his own title, see note in 18 L. R. A. 781.

   Ostrander, J.

(after stating the facts). The first difficulty experienced in a study of the record is in concluding, upon any phase of the testimony, that there exists between the lines of lot 10 and lot 11, as they are called, a strip of land of any size, title to which remained in plaintiff’s grantor. It is a maxim of the law of ejectment that a plaintiff must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. As the trial court instructed the jury, the burden rested upon plaintiff to establish the fact that there was a piece of land as contended by him, in the place stated, to which he had obtained a title. Suppose it is true that if one measures along the shore line to the north 405 feet, pursuant to the distance calls in the old plat, he will reach a point 28 feet south of the north line of lot 11 as occupied by defendant. Does it follow necessarily that the owner of lot 11 has 28 feet more of frontage than belongs to him? Does it follow that the original proprietor or proprietors retained title to any 28 feet of the shore frontage? The testimony is that the contour of the shore line varies, and that it has changed and is changing, not greatly, but to some extent. The testimony is that the lake front of lots 14, 13, 12, and 11 is bold and high, and that in an earlier day, at least, there was undergrowth and various difficulties in the way of accurate measurement of the shore line. Beyond this, who can now tell how the shore line was measured? It is evident, and is a point upon which the jury was cautioned, that if a little bay extended into the land on any one or more of these lots, or if a cape ran out into the lake, the actual shore line, at high-water mark, might, at a given time, be double the length of the lot lines on the highway. The only use which can be made in this case of the old plat is to discover from it, if possible, how the original proprietor bounded each description of land. No one. is bound by it, and it does not appear that any land was ever conveyed merely by reference to it. There are in it calls other than the shore line distances. There are the distances on the highway and, inferentially, the side lines, parallel, in appearance, with the section lines. There is no presumption that the proprietor designed to narrow any lot on the highway and enlarge it on the water; that his measurements on the highway were inaccurate and those on the water front accurate. The material fact to be gathered from this plat is that in it he described all of the land between the east and west eighth and quarter lines, intended to embrace every foot of land on the highway, and on the water, in the plat. If he had sold it by reference merely to the lots, by number, he would have had nothing left. But because in the details of his plan are some figures which, considered alone, mathematically treated, do not account for quite all of the land, it is assumed and asserted that there was some land for which the plat does not account.

Mr. William Richardson had an equal right with Mr. Coates, the deviser, to convey the land by such description as he pleased. Mr. Richardson, owning all that Coates had not conveyed, did convey lots 11 and 12 — he intended to — and a reference to his deed will show that in bounding what he conveyed he began at a point on the highway, stated a distance or distances on the highway, and expressly described the side lines as being parallel with the section lines, describing the shore frontage indefinitely as “more or less.” I find no evidence tending to' prove that if this description is followed, defendant will have any land not conveyed by this deed.

It is said that by referring in the deed to the plat the calls of the plat were adopted by reference. But which calls? The expert testimony is to the effect that the shore line distances marked on this plat cannot be found if other calls of the plat are followed.

It is a general rule that if courses and distances do not agree, courses will govern. Like all rules, it must be understood and applied reasonably. I do not hold that by force of this rule defendant must be held to be entitled to judgment, but rather that in considering the old plat and all deeds of the land embraced therein which are in evidence, and considering also the rule, plaintiff has not as matter of law made out his case. If I have not misapprehended the record, if the conveyance by Richardson of lots 11 and 12 embraced all the land defendant claims to own, then it is my opinion that the trial judge should have directed a verdict for defendant. If there is in fact a surplus of land, the surplus lying between lots 10 and 11, defendant does not occupy it, and the undisputed evidence is that it has been occupied under claim of ownership for more than 20 years.

As in any event I think the court erred in refusing a new trial and the judgment must be for reversal and a new trial ordered, it is important to consider another phase of the case presented by the assignments of error. Appellant contends that in any event plaintiff cannot maintain this action because he was never dispossessed, and took from one never in possession by quitclaim deed. Upon this point, it is apparent that upon a new trial something material may be added to the record. Mr. Burch, plaintiff’s grantor, was not a witness at the trial. His affidavit appears among others offered in support of the motion for a new trial. In this affidavit he states, among other things, that he was asked to give a warranty deed of the disputed strip to plaintiff and declined to do so—

“because of the fact that deponent was in doubt as to the existence of any parcel of land answering such description and because he had never had possession of any such parcel of land.”

Independent of what may be developed upon a new trial upon this point, it is the law that the grantee in a quitclaim deed acquires the right and title which his grantor had, and no other. Messenger v. Peter, 129 Mich. 93 (88 N. W. 209). If Mr. Burch might have maintained the action, then plaintiff may do so. Legal titles only are involved. The testimony of Mr. Burch may develop the fact that he could not himself have maintained this action. But appellant’s contention that Burch, because of conveyances made by his grantor and his own deed, might not have constructive possession of any actually unsold and unconveyed land is not sustained.

The criticisms made of the charge of the court do not appear to be warranted. Considering the case as presenting questions of fact for a jury, the charge fairly presented the issues.

Appellant’s fourth assignment of error has been considered. The court should have excluded Exhibit J, since it is admitted that it is not a record of a survey made by the surveyor who made it. Its effect was that of hearsay evidence.

Reversed, with costs to appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.

ON MOTION FOR REHEARING.

Ostrander, C. J.

In this cause an opinion reversing the judgment went down September 27, 1917. In November, 1917, appellee moved for an order allowing a new trial, and the motion was granted December 28, 1917. The appellee (plaintiff) moved March 9, 1918, for a rehearing, the brief in opposition being filed March 23. The motion is based upon alleged misstatements of fact in the opinion and the argumentative conclusion that had the facts not been misapprehended the judgment would have been affirmed. The opinion will be found ante, 582.

A re-examinatipn of the record discloses the fact that the opinion contains at least one misstatement of fact, for which reason the motion, tardily made, is considered. The first misstatement pointed out is that in the opinion it is stated with reference to a certain deed purporting to convey lots 11 and 12 that the shore line of the lots was described indefinitely, as “more or less.” The description is correctly set out in the statement of facts in the opinion, the shore line being described as “thence southerly along the high water mark 200 feet.” This was a deed made to defendant’s grantor, who conveyed to defendant lot 11 by a deed in which the shore line is described as “thence southerly along high water mark 100 feet more or less.” It is probable that the mistake occurred by some confusion of these descriptions taken from copies of the deeds.

The other alleged misstatement of fact pointed out is in the concluding paragraph of the opinion where it is said:

“The court should have excluded Exhibit J, since it is admitted that it is not a record of a survey made by the surveyor who made it. Its effect was that of hearsay evidence.”

Exhibit J seems to be first referred to on page 33 of the record. The witness Slater, who was on the witness stand when the plat, Exhibit J, was introduced in evidence, was asked by counsel for plaintiff, whose witness he was, “What did you do, if anything, in regard to drawing that?” meaning Exhibit J. He testified that he drew it, and with care, and entered into details. The objection to the offer was that it was not “the original plat, as being so altered as not to be accurate.” The point is, not whether the witness made the plat, but whether it represents a survey which he made of the land. In the original brief for appellant,- it is said upon this point,

“Slater testified that his employer’ gave him a plat to work from when surveying in 1907, and that he himself made Ex. J. ‘patterned after the plat Bird had.’ We can only conjecture that Bird’s plat was, and Slater’s testimony is not positive and definite enough to warrant the admission of Ex. J, as a copy of another plat that was not produced nor accounted for in any way by plaintiff.”

On the other hand, in the brief for appellee it was said, among other things, and referring to a page of the record (28), which does not seem to contain anything upon this subject, that Slater testified that this plat was made from actual survey on the ground that it is a correct production of his notes. The matter will, in any event, be corrected as the facts warrant, upon a new trial. But as I before read and do now read the record, Exhibit J is an embellished copy of an old, unauthentic.ated plat, not produced in court, and is not a record of a survey made by the surveyor who was giving testimony.

It is further urged that the record was misapprehended as is evidenced by the statement in the opinion,.

“The testimony is that the contour of the shore line varies and that it has changed and is changing, not greatly, but to some extent.”

It is asserted that

“three survéyors who made surveys running from the year 1907 to the year 1914 all of them testified that the same amount of land was included on the lake shore and their surveys of the lake shore between the same given points correspond to the foot so that the actual testimony in the record is to the effect that the shore line has not changed whatever.”

But the testimony of the first of the surveyors to which counsel refers is:

“Experience has taught me that water front lines are changeable,” and “in surveying I would always take a parallel line in preference to water front line which I regard as a non-positive or indeterminate line.”

Another surveyor to whose testimony counsel refers testified: .

“I did not survey according to the shore line but measured according to the parallel line * * * I never measured any of the- shore measurements accurately.”

It is not perceived how this testimony requires an amendment of the statement that “the contour of the shore line varies and that it has changed and is changing, not greatly, but to some extent,” especially when one of plaintiff’s principal witnesses testified:

“From my experience I can say that the water fronts on all inland lakes change from time to time. Changes are caused by course of water, naturally the water recedes and the line will go out. Ice changes the shore line continuously to a certain extent. In the course of a year it is possible for the shore line of an inland lake to change considerably.”

It might be added that it is matter of common knowledge that in the course of the seasons the contour of the shore line of inland lakes, in this latitude, varies.

The opinion will be amended so as to correct the admitted misstatement therein first above mentioned.

The second ground upon which a rehearing is asked *is stated in the motion therefor in the following language:

“The opinion of this court that the trial court erred in not granting a new trial is based upon the possibility that the testimony of Burch may throw some light upon his possession actual or constructive of the disputed strip. Our contention is that plaintiff is entitled to maintain his action on his paper title irrespective of any possession actual or constructive by Burch. We spent considerable time in our brief to prove that a grantee under a quitclaim deed may bring ejectment whether or not the grantor was in actual or constructive possession of the premises, provided that the grantor had a legal title and a right to possess. Burch had such title and right to possess here because he took title to all of the undisposed of parts of the Coates farm, including. Scarborough Beach, by warranty deed from Maclnnes and transferred this same right to the plaintiff Bird. (See deeds Burch to Bird, Exhibit A, R. p. 80, and Maclnnes to Burch, Exhibit B, R. p. 82,) (See our brief pp. 13-16 for discussion of the above point.) This question is one of the questions which was expressly left to the Supreme Court for decision and we would like a ruling upon it for the purpose, if no other, to guide the trial court in a new trial for the reason that whatever the testimony of Burch may be as to his possession, constructive or otherwise, we will contend that plaintiff is entitled to maintain his action of ejectment on his paper title.
“The following authorities from our brief are respectfully called to the attention of the court again,”

giving 18 citations to statutes, text-books and reported cases. It is enough to refer to the opinion itself, not only to precisely answer the criticism here made, but to indicate the lack of consideration which the point has received.

It remains to consider whether the conclusion that the judgment should be reversed and a new trial should be had is affected by the erroneous assumption of fact. It must be apparent upon a reading of the portion of the opinion in which the assumed fact is stated in connection with the whole opinion that if all reference to the particular deed had been omitted the conclusion must have been the same.

The rehearing is denied.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
      In re DAY'S ESTATE. EATON v. MUDGE.
    Witnesses — Husband and Wife — Competency—-Estates of Decedent.
    In an action against the estate of a deceased person for services and board, a husband may testify in his wife’s behalf relative to the services performed but not as to the board, as he is an “assignor” as to the board within 3 Comp. Laws, § 10212 (3 Comp. Laws 1915, § 12553).

    Error to Barry; Smith, J.
    Submitted January 22, 1917.
    (Docket No. 42.)
    Decided September 27, 1917.
    Theressa Eaton presented a claim against the estate of Eliza Bay, deceased, for services rendered. The claim was allowed in part by the commissioners, and Lorenzo Mudge, administrator, appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Affirmed, conditionally.

      Colgrove & Potter, for appellant.

      Thomas Sullivan, for appellee.

      Authorities discussing the question as to competency of assignor of claim in suit, to testify as to transactions with or statements by deceased, where not expressly excluded by terms of statute, see notes in 29 L. R. A. (N. S.) 1179; 42 L. R. A. (N. S.) 316; L. R. A. 1917A, 2.

   Bird, J.

Theressa Eaton, the plaintiff herein, presented a claim against the estate of Eliza Day, her sister-in-law, for board, care, and incidentals in the sum of $2,611.95. The commissioners allowed it in part. An appeal was taken by defendant to the circuit court, where she recovered' a judgment for the full amount of her claim.

It appears that Eliza Day was an old lady 79 years of age when she died, and possessed of sufficient property to support herself. She was without family and was living alone when she went to reside with plaintiff. Some time before she was taken into the home of plaintiff, she expressed a desire to go to plaintiff’s home and be cared for. Henry Eaton, plaintiff’s husband, advised against it at first, but finally yielded, and informed his wife that “if she did take her, she took her on her own responsibility, and whatever she got out of it she might have, and I would have nothing to do with it.” Plaintiff assumed the responsibility and took her into the home, boarded, cared for, and nursed her, and furnished certain incidentals for a period of 3 years prior to her death.

Counsel for the estate raises the question that plaintiff could not recover the item of $468 for board because the record shows that the farm on which they lived belonged to Henry Eaton, and that the home was furnished by Henry Eaton, and that if plaintiff has a right to recover for board there must have been an assignment of such right from Henry Eaton to plaintiff. That being so, Henry Eaton was placed in the position of an assignor, and his testimony was incompetent under the statute. That without this testimony there was no proof before the court that plaintiff was entitled to recover for the board.

It is settled by authority that as to that part of the claim represented by plaintiff’s services, Henry Eaton, her husband, would be a competent witness under the statute to testify in her behalf. This is upon the ground that as to her services he is not an assignor. Ashley v. Smith’s Estate, 152 Mich. 197 (115 N. W. 1052); In re De Spelder’s Estate, 181 Mich. 153 (147 N. W. 589).

But as to that part of the claim which is represented by the board a different rule appears to have been laid down. In Stackable v. Stackable’s Estate, 65 Mich. 515 (32 N. W. 808), a like attempt was made to recover for both services and board. In holding the husband’s testimony incompetent under the statute as to the question of board, the court said:

“In regard to the board, it was shown that William was the head of the house, but he claims he gave the board to his wife, and that it was always understood that she should receive the pay for it. His testimony as to the time the deceased boarded at his house, and the amount to be paid for the* same, was objected to, as coming within the statute as amended in 1885. Pub. Acts 1885, pp. 156, 157 (Act No. 139). The court held that he could not be considered an ‘assignor’ under this statute. The object of the amendment evidently was to prevent the common practice of a claimant against an estate assigning his claim to another, and thereby becoming eligible as a witness, and defeating the spirit and intent of the statute as it stood before such amendment. See 2 How. Stat. § 7545. It is clear that, without some assignment, this claim for board would belong to the husband, and not to the wife. He was the head of the household, and furnishing the family supplies. There had to be some agreement on his part with his wife that she should receive the pay for the board. The statute is aimed at an assignment before the death of the party against whom the claim exists, as well as to one after his death. We do not think he was a competent witness in relation to the items for board.”

In Slack v. Norton, 111 Mich. 213 (69 N. W. 497), where a recovery was sought for both services and board, an attempt was made to apply this rule, but the court distinguished the case on the ground that the wife furnished the provisions herself, and therefore held the husband’s testimony competent. Later the rule was again applied in Finn v. Sowders’ Estate, 139 Mich. 623 (103 N. W. 177). The rule being established, we must hold in the present case that the testimony of the husband concerning the board was incompetent. This conclusion leaves the case without any competent proof that the wife was entitled to recover for the board.

Another item, alio wed by the jury and criticized by appellant was the fee paid the minister for conducting the funeral services. This item was $5.15. Counsel for plaintiff concedes this was not properly a claim against the estate.

We think the remaining assignments are without merit. If plaintiff remits these two items within 30 days from the filing of this opinion, the judgment will stand affirmed. Otherwise it will be reversed and a new trial ordered.

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


text:
    WEBER v. BEESON.
    1. Automobiles — Highways and Streets — Personal Injuries— Negligence — Question eor Jury.
    It was a question for the jury whether a person riding on a- motorcycle with another was guilty of contributory negligence, in an action against' the owner of an automobile to recover for personal injuries due to the collision with defendant’s automobile, where it appeared that when the south line of an intersecting street was reached they stopped for a moment and, seeing nothing to interfere, proceeded to cross the street; that when the street car tracks were reached defendant’s automobile was observed on the north side of the intersecting street 150 feet away coming at an unusual speed; that the driver thought they had time to cross, and blew his horn and proceeded north on his way at an increased speed in excess of that allowed by a city ordinance, and that tbe traffic on tbe intersecting street had the right of way.
    2. Same.
    It was a question for the jury whether the collision occurred on the street on which plaintiff was proceeding or on the intersecting street from which defendant' turned to go in the same direction as plaintiff.
    3. Same — Violation oe City Ordinance — Contributory Negligence — Evidence.
    The violation of a speed ordinance by the driver of a motorcycle, with whom plaintiff is riding, in attempting to cross a street in front of an approaching automobile is merely evidence of contributory negligence.

    Error to Wayne; Stevens, J., presiding.
    Submitted April 11, 1917.
    (Docket No. 28.)
    Decided September 27, 1917.
    Case by John Weber against Edward Beeson and another for personal injuries. Judgment for defendants non obstanto veredicto. Plaintiff brings error.
    Reversed, and judgment entered on the, verdict.

      Clarence P. Milligan, for appellant.

      J. O. Mur fin (Frank C. Sibley, of counsel), for appellees.

      As to effect of violation of statute or ordinance regulating speed limit of automobiles in-streets, as negligence, see notes in 25 L. ft. A. (N. S.) 40; 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.
      On effect of speed and application of speed regulations on liability for collision between automobiles or automobile and other vehicle at or near corner of street or highway, see note in Ii. R. A. 1916A, 747.
      On rules of the road governing vehicles at intersection of streets and when turning across streets, see note in 41 L. R. A. (N. S.) 346.

   Bird, J.

This is a personal injury case, in which plaintiff obtained a verdict for $1,500, which was subsequently set aside by the trial court under the provisions of Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), on the ground that the evidence showed as a matter of law that plaintiff was guilty of contributory negligence. Whether the trial court was in error in so doing is the sole question presented for our consideration.

The material facts involved appear to be that plaintiff was riding with his brother Jacob on a motorcycle in a northerly direction on St. Aubin avenue in the city of Detroit. When they reached the south line of Gratiot avenue, which crosses St. Aubin avenue at nearly right angles, they stopped for a moment to view the situation. Seeing nothing which they thought would interfere, they proceeded to cross Gratiot avenue. When they reached the street car tracks, and while on the north track, the driver observed an automobile coming in a westerly direction on the north side of Gratiot avenue about 150 feet away. They were then moving at the rate of from 6 to 10 miles an hour. Thinking they could cross before the auto reached there, the driver blew the horn and proceeded on his way, and it is plaintiff’s claim that they did cross in safety, but that just as the motorcycle cleared Gratiot avenue defendants turned in on St. Aubin avenue and collided with his rear wheel, thereby throwing him off and injuring him. Defendants insist that the collision occurred on Gratiot avenue, and they argue that plaintiff was guilty of contributory negligence in attempting to cross in front of the automobile, and for the further reason that he was operating the motorcycle at a speed in excess of that allowed by the city ordinance.

The defendants insist that, inasmuch as traffic on Gratiot avenue has the right of way over that on St. Aubin avenue, plaintiff was guilty of negligence as a matter of law in attempting to' cross from the north track to the north curb line when he saw defendants’ automobile 150 feet away. It is possible that under all the circumstances plaintiff should not have attempted to pass in front of the automobile, but we cannot hold so as a matter of law. The driver says he thought he could clear the automobile, and therefore proceeded on his way, and if his story is to be believed he did clear it, and no collision would have occurred, had it not been for the sole negligence of defendants. As traffic ordinarily moves in the business section of a city, few drivers would hesitate to act as plaintiff’s driver did, if they were moving from 6 to 10 miles an hour with an automobile 150 feet away. But whether the unusual speed at which the automobile was .traveling made it hazardous to undertake was a proper question for the jury. Whether the collision occurred on Gratiot avenue or on St. Aubin avenue was likewise a question for the jury. The determination of this question would have an important bearing on the question of plaintiff’s negligence. A finding by the jury that the collision occurred in St. Aubin avenue would verify ■plaintiff’s judgment that he had time to cross in safety, and it would further tend to support plaintiff’s theory that the defendants came around the corner and ran into him. There were several eyewitnesses of the accident ; but, as usual, they did not see the events leading to the collision with the same eyes. On several of the important features of the. case the testimony was in conflict.

But it is said that the testimony is uncontradicted that plaintiff was violating the ordinance as to the rate of speed he was traveling while crossing the intersection. We have held that a violation of an ordinance was merely evidence of negligence. Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703); Flater v. Fey, 70 Mich. 644 (38 N. W. 656); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986); Blickley v. Luce’s Estate, 148 Mich. 233 (111 N. W. 752). Whether the speed of the motorcycle caused or contributed to the accident was, in connection with the other facts, a question for the jury.

We think it is clear upon the whole record that the question of the contributory negligence of the plaintiff was one for the jury. Having reached this conclusion, the order of the court setting aside the verdict must be vacated, and the judgment reinstated. The plaintiff will recover his costs in this court.

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


text:
    PETERSON v. HARRINGTON.
    1. JUSTICES OF THE PEACE-TRANSFER OF CAUSES-STIPULATIONS— Jurisdiction — Waiver.
    Where an action of replevin pending before a justice of the peace was by stipulation of the parties transferred to a justice of the peace of another township, before whom the parties appeared and went to trial without objection, the question was one affecting only the jurisdiction of the parties, and, had there been no consent and objection had been timely made the justice to whom such transfer was made would have had no jurisdiction, but objection not having been made in that proceeding, and the record showing consent of the parties, the question was waived.
    2. Replevin — Bonds—Liability—Statutes.
    Under 3 Comp. Laws, § 10657 (3 Comp. Laws 1915, § 13087), providing as a condition of a replevin bond that plaintiff should return the same property taken on the writ if return he awarded and pay such sums of money as might be recovered against him in such action, an action on the bond against the principal and surety thereon was proper, notwithstanding no property had been seized on the replevin writ, and judgment was for defendant for costs.
    3. Justices of the Peace — Jurisdiction—Appeal and Error— Statutes — Replevin Bond — Double Costs — Collateral, Attack.
    The question whether a justice of the peace acted outside his jurisdiction in assessing double costs under 3 Comp. Laws, § 11265 (3 Comp. Laws 1915, § 13696), against a public officer in an action of replevin should be raised, if at all, upon the taxation of costs in that suit and not collaterally in an action on the replevin bond.
    4. Same — Taxation of Costs — Entries upon Docket.
    The reasons for allowing double costs, under 3 Comp. Laws, § 11265 (3 Comp. Laws 1915, § 13696), giving a justice of the peace authority to assess same in certain cases, need not be entered upon the justice’s docket.
    Error to Otsego; Sharpe, J.
    Submitted April 9, 1917.
    (Docket No. 101.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by Charles Peterson against William A. Harrington and another on a rer plevin bond. From a judgment for plaintiffs, defendants appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      W. A.' Harrington, for appellants.

      Wirt Barnhart, for appellee.
   Bird, J.

Plaintiff recovered judgment on a replevin bond against defendants in justice’s court, which was afterwards affirmed in the circuit court on certiorari. The material facts out of which this controversy arose are that defendant Harrington brought an action of replevin before Oris W. Farrar, a justice of the peace, against the plaintiff, Peterson, and gave the statutory bond, with defendant Johnson as surety. No property was seized on the writ, but plaintiff went to trial as in an ordinary action commenced by summons. The trial resulted in a disagreement of the jury. Subsequently the case was transferred to Arthur H. Hall, another justice of the peace, residing in an adjoining township. The parties appeared before Hall and went to trial, in which defendant was successful, and a judgment for costs was rendered in his behalf in the amount of $27. This judgment not being paid, Peterson began this suit which we have before us.

Defendants raise the question that the judgment rendered by Hall, of the adjoining township, was void for want of jurisdiction. They take the position that there is no authority in the statute for transferring a cause to a justice of the peace outside of the township ; that the justice to whom it was transferred acquired no jurisdiction of the subject-matter. Undoubtedly the transfer was irregular; but we think defendants are in error in contending that Justice Hall had no jurisdiction of the subject-matter. The matter was one cognizable by a justice of the peace, and so far as the subject-matter was concerned he had jurisdiction; but he did not have jurisdiction of the parties. The question is, therefore, one affecting the jurisdiction of the parties. The record shows that the parties appeared and went to trial without objection, and that the transfer was made by force of a stipulation of the parties. Had there been no consent, and the objection had been timely made, it would have left Justice Hall without jurisdiction; but not having been raised in that proceeding, and the record showing a consent of the parties, the point must be regarded as having been waived. Smith v. St. Joseph Circuit Judge, 46 Mich. 338 (9 N. W. 440).

It is further contended that the judgment is invalid against the surety, Johnson, because no property was seized on the writ, and therefore no action could be maintained on the bond; the contention being that the only purpose of the replevin bond is to indemnify the defendant in replevin for loss on account of the seizure of property. This is too narrow a construction to give to the statutory provision. The statutory condition of the bond is:

/'That if the defendant recover judgment against him in the action, he will return the same property, if return thereof be adjudged, and will pay the defendant all such sums of money as may be recovered by such defendant against him in the said action.” 3 Comp Laws, § 10657 (3 Comp. Laws 1915, § 13087).

This language has been construed to be broad enough to cover costs, not only in justice’s court, but in the circuit and Supreme Courts. Monroe v. Standish, 46 Mich. 12 (8 N. W. 571). See, also, Brabon v. Pierce, 34 Mich. 39.

Complaint is made that the judgment for costs was excessive, because the statute provides that the whole amount of the items of such costs shall not exceed $10. The judgment entries show that double costs were allowed. 3 Comp. Laws, § 11265 (3 Comp. Laws 1915, § 13696), gives the justice authority to assess double costs in certain cases against public officials. There is some slight evidence in. the record that the defendant Peterson was a public officer. In view of the fact that the statute gives the justice the power to assess double costs in certain cases, we do not think we should assume that he was acting outside of his jurisdiction in doing so, especially when questioned in a collateral way, as is done here. This question should have been raised, if at all, upon the taxation of costs in the original- suit. Miller v. Maher, 178 Mich. 571 (146 N. W. 196). But it is said the reason for allowing double costs should appear as an entry upon the docket. There is nothing in the statute requiring such reasons to be entered upon the docket, and therefore we cannot hold it was necessary. Stegeman v. Fraser, 161 Mich. 35 (125 N. W. 769).

Finding no reversible error in the proceedings, the judgment of the circuit court must be affirmed.

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


author: Bird, J. Brooke, J.

text:
      In re KLAPP’S ESTATE. KLAPP v. PULSIPHER.
    1. Adoption — Right of Inheritance.
    An adopted child may inherit from both his natural and adoptive parents.
    2. Same — Right of Inheritance — Readoption—Effect
    Where a second adoption proceeding was signed and assented to by the parties and approved by the probate court, it ipso facto revoked or superseded the order made in the first proceeding and such original order, upon revocation, carried with it all reciprocal rights and duties which sprang into existence when the order, was made, including the right to inherit from the persons first adopting the child. Brooke, J., dissenting.
    Error to Van Burén; Des Voignes, J.
    Submitted April 13, 1917.
    (Docket No. 63.)
    Decided September 27, 1917.
    Cyrus Klapp and another appealed to the circuit court from a final order of distribution of the estate of Cyrus J. Klapp, deceased, awarding a portion of said estate to Harlan Austin, an adopted child who had prior to the death of Cyrus J. Klapp been legally readopted by Albert E. Pulsipher and wife. Judgment affirming the order of the probate court. Contestants bring error.
    Reversed.

      Clare E. Hoffman (Charles Tkew, of counsel), for appellants.

      Frank H. Williams and Wilkes & Stone, for appellee.
   Bird, J.

When Harlan Austin, of Van Burén county, was 3 years of age, both of his parents died and soon thereafter, in September, 1899, he was adopted by Cyrus J. Klapp and his wife, Esther; the child’s grandparents consenting thereto. When he was 7 years of age his adoptive mother, Mrs. Klapp, died, and he was then adopted by Albert E. and Eva E. Pulsipher; Cyrus J. Klapp consenting. Thereafter Harlan left the Klapp family and lived and was cared for in the home of Pulsipher. In 1908 Cyrus Klapp married the defendant Lottie, and in February, 1915, he died, leaving him surviving Lottie, his widow, his father, one brother, and four sisters. The estate of Cyrus J. Klapp was probated. The final order of distribution assigned to Lottie the widow, one-third of the real estate, and to the adopted boy, Harlan, two-thirds of it, whereupon an appeal was taken by the widow and father of the deceased to the circuit court, where the probate order was confirmed. They have again appealed, and we are asked to determine whether an adopted child loses his right to inherit from the parent who first adopted him, if he is thereafter adopted by another.

The rule appears to be pretty well settled by the adjudicated cases that an adopted child may inherit from both his natural and adoptive parents. 1 C. J. p. 1400, and cases cited. This rule, which appears to be conceded by both counsel, is the foundation for the trial court’s ruling and for the argument of appellee’s counsel. The argument is that, if the adopted child may inherit from his natural father after being adopted by a stranger, by analogy it should be held that the child, after being adopted a second time, and while living with his second adoptive father, may inherit from his first adoptive father. If this reasoning be sound, the question must again be determined in favor of the appellee. I am not persuaded, however, that such a conclusion necessarily follows, although one reported case is cited which sustains it. Patterson v. Browning, 146 Ind. 160 (44 N. E. 993). That part of the statute which fixes the status of the parent and adopted child provides that:

“Whereupon such child shall, in case of a change of name, thereafter be known and called by said new name, and the person or persons so adopting such child shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.” 3 Comp. Laws, § 8780 (3 Comp. Laws 1915, § 14142).

No question is raised as to the validity of either adoption proceedings. In fact, it is stated in the briefs that both proceedings are valid. Assuming that the second proceeding is valid, I am of the opinion that, when it was signed and assented to by the parties and approved by the probate court, it ipso facto had the effect of revoking or superseding the order made in the first proceeding. When the original order was revoked, it carried with it all the reciprocal rights and duties which sprang into existence when the order was made. Thereafter the first adoptive father was no longer entitled to the custody of the child; neither was he entitled to his services. He was no longer obligated to care for, educate, and support the child. If the new adoption destroyed these rights and obligations, why did it not destroy the child’s right to inherit, since that right was dependent for its existence upon the same assent, the same agreement, which created the other relations? When the reciprocal rights and duties and the right to inherit are all created by the same instrument, signed by the parties and approved by the probate court, by what process of reasoning can the conclusion be reached that a new and second order will put an end to all the rights, duties, and incidents of the contract except the right to inherit? Why should the child’s right to inherit remain when the adoptive father is no longer entitled to his custody, companionship, and services, the very things which induced him to make him an heir? If the right to inherit is the one incident of the agreement which survives the second order, then the statute may be used indirectly to create the relation of parent and child, with none of the incidents of that relation, except the right to inherit. The statute has not directly provided for the creation of any such relation.

But, it is argued, how can the child be relieved of its obligation^ to a natural parent and still retain its right to inherit? The reason therefor lies in the fact that at the moment of birth the child’s status is fixed by law; at birth the child becomes the issue of the parent, and is included within the provision of the statute which declares all issue shall inherit the property of their parents. In the case of the natural father, the question whether the child shall become his heir is not subject to his assent or contract, and therefore the child’s right to inherit from him is not subject to his election. The law irrevocably fixes his status in that respect the moment'he is bom. In the one case, by no act of the parent can he prevent the child becoming his heir. In the other case, the child cannot become his heir without his consent. One situation depends upon blood and birth; the other, upon consent and contract.

If, as counsel for appellee insist, the doctrine of "once in grace always in grace” controls, and "once adopted always adopted” is to be the rule, I think we should hold that under the statute there can be no legal readoption during the lives of the adoptive parents. This would be an unfortunate rule, and would doubtless work a hardship in many cases. I am of the opinion that Harlan Austin is not entitled to have assigned to him any portion of the estate of Cyrus J. Klapp.

The judgment is reversed, with costs of this court to appellants.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Fellows, JJ., concurred with Bird, J

Brooke, J.

(dissenting). The statute (3 Comp. Laws, § 8780, 3 Comp. Laws 1915, § 14Í42) provides that upon adoption:

“Such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”

The reasoning of my Brother Bird, it seems to me, quite overlooks the fact that the child, whose interests are always paramount, is in no sense a party to what he calls the contract of adoption. There is no contract between the foster parent and the adopted child. The law at the request of the adoptive parent or parents fixes the status of the adopted child, and makes it exactly the same as if the adopted child had been born of the bodies of its foster parents. It is conceded that an adopted child will inherit from its natural parents as well as from its foster parents. Nowhere in the statute is it provided that a second adoption destroys or nullifies the relation upon which heirship is dependent, created by the first adoption. As a natural, father cannot, by his consent to its adoption, deprive his offspring of his right to inherit, so, too, I think it should be held that an adoptive parent, who has voluntarily brought about the legal relationship of parent and child, may not, by his subsequent consent to his readoption, deprive such child of his right to inherit.

The judgment should be affirmed.


author: Moore, J.

text:
    BALCOM v. TRIBBETT.
    1. Sams — Contracts—Written Contracts — Evidence.
    Evidence held, to show that the parties to a written contract for the sale of a- store business which contained a provision for a formal contract subsequently agreed that the writing embodied their contract and that they proceeded under it.
    2. Same — Contracts—Breach op Contract — Damages.
    Evidence held, to show that the purchaser breached the contract to the seller’s damage.
    3. Damages — Contracts—Breach op Contract — Compensation.
    The underlying principle of the law of damages, where there is breach of a contract, is compensation.
    4. Same — Breach op Contract op Sale — Measure op Damages— Compensation — Rule.
    While the general rule is that where there is a sale and a refusal to take a stock of merchandise the measure of damages is the difference between the agreed price and the market value at the time of the breach, it does not follow that because a large stock of goods located in a country village cannot be sold in the market there can be no remedy.

      5. Sam®.
    It does not follow that because damages for the breach oí the contract by the purchaser cannot he fixed with reasonable certainty that none can be recovered.
    Appeal from St. Joseph; Knowles, J.
    Submitted April 9, 1917.
    (Docket No. 92.)
    Decided September 27, 1917.
    Bill by Lyle D. Balcom against Clark W. Tribbett for an accounting. Defendant filed an answer in the nature of a cross-bill claiming damages for breach of contract of sale. From a decree for defendant, plaintiff appeals.
    Affirmed.

      Jay J. Stanton, for plaintiff.

      L. F. Humphrey, for defendant.
   Moore, J.

In January, 1914, the plaintiff was in the retail dry goods business at Union City, Mich., and the defendant in the same line of business at Sturgis, Mich. A paper was drawn and signed by them, which reads:.

“This contract, made in duplicate, and entered into this 26th day of January, 1914, by and between Clark Tribbett, of the city of Sturgis, Mich., party of the first part, and Lyle Balcom of Union City, Mich., party of the second part, witnesseth: Whereas, said parties of both parts are desirous of entering into a contract of sale of the business and stock and fixtures of Clark Tribbett situated at No. 118 West Chicago street in the city of Sturgis, Mich.; whereas said party of the second part is in haste; and whereas both parties desire a full and complete contract of sale properly and clearly drawn; and whereas considerable time is necessary to draw same; whereas both said parties desire that a hurried contract of sale be drawn binding them to a further and more complete contract of sale; therefore this contract witnesseth: (1) That both said parties shall as soon as a full- and complete contract can be made enter into a full and complete contract of sale containing, among other things, agreements to the following effect: (2) the stock of goods of said first party are to be sold by him to said second party at the rate of ninety cents on the cost value thereof; (3) the fixtures of said first party are to be sold to said second party for $1,000 (one thousand dollars); (4) the desk and chair of said first party is not included in the fixtures, or stock of goods, and are to remain the property of the first party; (5) that a complete inventory shall be made of said stock and fixtures beginning February 2, 1914; (6) that on completion of said invoice said party of the second part shall pay to said party of the first part five hundred dollars ($500.-00) as the first payment on the purchase price; and the balance of the purchase price above stated shall be paid from the proceeds of the sales of stock to be made between the completion of said invoice and the 1st day of June, 1914, if such proceeds should amount to such balance, and if not then the balance of the purchase price remaining at that time unpaid shall be paid as the parties shall then agree upon; (7) that the said party of the second part is to maintain the expenses of the store, except the insurance, as though he were the complete legal and equitable owner thereof; (8) that the said second party shall pay the insurance policy thereon which was taken out on or about January 15, 1914, and shall pay one-half of the insurance policy taken out in December; and that said second party shall pay the insurance policies which are thereon and which shall after this date expire, and shall renew same at least for the same amount as they are now; (9) that Mr. Tribbett, party of the first part, shall remain in the store as clerk of said second party; that Ethel Tribbett shall remain in store as clerk of second party; that together they shall receive twenty dollars ($20) per week therefor, but that they shall remain only until June 1, 1914, unless said parties hereafter agree otherwise; (10) that the said stock shall remain the property of said first party until fully paid for; that said fixtures and good will shall remain the property of the said first party until fully paid for; (11) that said second party is not to put in his time in the' business, except as he sees fit, until June 1,1914; (12) that said second party may take over said business at ány time prior to June 1, 1914, that he pays for same as above stated; (13) that first party will continue to run said business as though it were entirely his own, devoting his entire time and energy thereto, keeping his customary force of clerks and exercising his same customs and methods; (14) that first party shall send to second party a weekly report of the sales and expenditures; (15) that first party is to pay, as they become due, the invoices contracted prior to February 1, 1914; (16) that the usual clause in restraint of trade shall be inserted in regard to the good will of the business, etc., to the effect that said first party will not engage in the sale of dry goods in the city of Sturgis and vicinity for the period of ten years; (17) that second party is to apply the proceeds of his business at Union City on the purchase price hereof, first paying all invoices heretofore contracted and one invoice of notions to about the extent of $150 to be hereafter' contracted.
“C. W. Tribbett.
“L. D. Balcom.
“L. Ethel Tribbett.”

It is the claim of deféndant that it was later agreed that this contract stated the bargain sufficiently, and that no other contract need be drawn. In any event none other was drawn and the parties proceeded under it. Mr. Balcom made the first payment, as provided in the contract, and later furnished some goods from his stock in Union City. Later differences arose between the parties and this proceeding was commenced for an accounting and to recover for the money paid and the goods furnished. The defendant filed an answer in the nature of a cross-bill in which he avers that plaintiff breached the contract to defendant’s damage, and praying, among other things, that his damages might be fixed in the decree. A hearing was had, and in an opinion filed by the trial judge occurs the following:

_ “The contract of sale executed by the parties recited that it was drafted in haste, and that a more full and complete contract should be drawn and substituted for it. It further provided that the 16 specific agreements which it set out should be embodied in the new draft. Subsequent to its execution but on the same day, the parties mutually agreed that the contract sufficiently embodied the entire agreement and that the proposed redraft was unnecessary. This agreement waived the provision as to redraft and left the contract (the redraft provisions being eliminated) as embodying every agreement of the parties. No change, addition or modification of such contract was ever made. No agreement, oral or written, was ever made by the parties, making it the duty of defendant to reduce the stock before June 1st by $4,000 or any other amount. In pursuance of the contract, complainant paid down to defendant $500 to apply upon the purchase price — $7,711.58.
“In pursuance of the contract, defendant conducted the business from February 1st to June 1st, in all respects as provided thereby. _ On June 1st, the maturity of the contract, complainant voluntarily repudiated the contract-and made default in the settlement of the unpaid purchase price then payable.
“During the four months in question defendant conducted the store with fidelity and according to the contract. He duly reported and accounted to complainant for all moneys received and disbursed. He repeatedly advised complainant of the necessity for additions of seasonable and necessary merchandise to the stock. Complainant failed to furnish such additions. In consequence trade fell off, the sales diminished materially, and the store suffered in reputation and became known as the ‘out’ store. Upon complainant’s default on June 1st, defendant had on his hands, a depreciated and unbalanced stock, a diminished trade and a store with an impaired reputation. The contract was- a title retaining one and contained no provisions in respect to damages, stipulated or otherwise. On June 1st, defendant began to conduct the business upon his own account and has since continued to do so. To rebuild the - lost trade and repair the impaired reputation of the store defendant was obliged to and did make additions to the stock to the extent of some $8,000, and was obliged to and did unusually advertise. In addition to making the payment of $500 complainant also put into the store sundry items of merchandise. He lists these items and they amount in value to $587.99. He also put in a check of $48.63. The sum of these contributions is $1,086.62*. Complainant claims (if the court finds him to have been in default and the court does so find) that he is entitled, notwithstanding such default, to recover back the amount of his said contribution, less such legal damages as defendant may have properly proved himself entitled to because of his [complainant’s] breach of contract. * * *
“Under the circumstances, I am of opinion that the case is one where in the nature of the case and the subject-matter actual damages are difficult to ascertain and compute by reference to any pecuniary standard. The damages here in my opinion cannot be estimated with certainty, and the only thing to do is to take all the facts and circumstances into consideration and make the most probable estimate which such circumstances will allow. After a careful reading of the record, I am of opinion that defendant should not receive any damages against complainant beyond the amount of money and property the latter has paid in to him. I feel that the complainant should receive frothing from defendant; that the amount which complainant put into the business in money, merchandise, or otherwise (which I have estimated at not to exceed $1,000), whether such amount aggregate $1,086 as claimed by complainant or less, is fair and sufficient amends in the way of damages because of his breach of contract. The defendant is entitled to retain all the property in question, including all stock and fixtures on hand at time of default, and including also all proceeds of sale during the period in question and all moneys put into the business by complainant, including said payment of $500, and all merchandise put into the business by complainant; that complainant be decreed to have no interest therein or claim to or lien upon the same; that upon an accounting nothing_is due complainant from defendant, and that complainant is not entitled to recover anything from defendant.”

A decree was made following the opinion. The case is brought here by appeal,

It is insisted by plaintiff that there was never a completed contract of sale, and that he should be entitled to the relief for which he prayed. After an examination of the record we agree with the trial judge that the parties agreed that the writing embodied their contract, and that they proceeded under it. We also agree with him that the plaintiff breached the contract to the damage of defendant.

Plaintiff makes the further claim that if a contract was made which has been breached, that the decree cannot be justified. We quote from the brief:

“The rule for such damages, as I understand it and as I get from the authorities, is as follows: Where both parties are at fault, no damages can be recovered. Cleary v. Folger, 84 Cal. 316 (24 Pac. 280, 18 Am. St. Rep. 187). If there is a breach on the part of one of the contracting parties, the measure of damages would be the difference between the agreed price to be paid for the goods and its market value at the time of the breach. Stewart v. McLaughlin’s Estate, 126 Mich. page 1 (85 N. W. 266, 87 N. W. 218), and rehearing of the same, beginning on page 6; Allen v. Mohn, 86 Mich. 328 (49 N. W. 52, 24 Am. St. Rep. 126); 29 Am. & Eng. Enc. Law (2d Ed.), p. 719. There is no testimony showing the market value of these goods. An offer on the part of some person for a stock of goods does not fix a market value. The market value is the price at which similar property is bought and sold in the- market. Boston Belting Co. v. City of Boston, 183 Mass. 254 (67 N. E. 428, 430). The question is what are the goods really worth upon the market. Brownlee v. Bolton, 44 Mich. 218, 220 (6 N. W. 657); Dana v. Fiedler, 12 N. Y. 40 (62 Am. Dec. 138).”

It may be said as to this claim that the r.ecord does not show that both parties were at fault, and therefore that no damages can be recovered. While the general rule is undoubtedly that where there is a sale and a refusal to take the goods the measure of damages is the difference between the agreed price and the market value at the time of the breach, it does not follow that because a large stock of goods located in a country village cannot be sold in the market, there can be no remedy. It has been said:

“The object of the law in awarding damages for the violation of a contract is to place the party injured pecuniarily in the same condition he would have been in had the contract been kept and performed. * * *
“The law of damages is not comprised in a set of arbitrary rules. The underlying principle is that where a contract has been broken compensation must be made.” 3 Sutherland on Damages (3d Ed.), p. 1865.

In the instant case we have the sale of a stock of goods made in January, which were left in the hands of defendant in June, a depleted, unseasonable stock. It does not follow that because damages cannot be fixed to a mathematical certainty that none can be recovered. Without considering the evidence in detail we think it may be said that the record abundantly justifies the decree. .

It is affirmed, with costs to defendant.

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


author: Moore, J. Ostrander, J. Fellows, J.

text:
    SCHEER v. HOLMES.
    Master and Servant — Workmen’s Compensation Act — Personal Injuries — Death—Evidence—Review oe Award.
    In proceedings under the workmen’s compensation act for compensation for the death of a previously healthy man claimed to have been due to the fall of a very heavy box on one of his legs, resulting in a split knee-cap and tearing of the muscles from the leg, death following seven weeks later, evidence Tield, not tending to show that death was caused by the injury so as to make the finding of the industrial accident board conclusive; and the award thereunder is reversed. Bird, Moore, and Fellows, JJ., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted April 11, 1917.
    (Docket No. 134.)
    Decided September 27, 1917.
    Emma Scheer presented her claim for compensation against Herbert R. Holmes for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Royal Indemnity Company, insurer, bring certiorari.
    Reversed, and award vacated.

      Frederick J. Ward, for appellants.

      Vincent M. Brennan, for appellee.

      Generally on construction and effect of workmen’s compensation acts, see notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

   Moore, J.

(dissenting). Herbert R. Holmes was engaged in the trucking business on March 2, 1915, and was operating under the workmen’s compensation act of the State of Michigan, with the Royal Indemnity Company as the insurer under said act. On that date Carl Scheer, an employee of said respondent, received an injury to his right leg, and on March 23, 1915, he and said* Eoyal Indemnity Company, as insurer, entered into an agreement regarding the payment of compensation, which compensation was paid to him as long as he lived.

On April 26, 1915, Mr. Scheer died, leaving the claimant, his widow, as the only dependent. Claim was made for compensation. The case was brought on for hearing before an arbitration committee who rejected the claim. The claimant appealed to the industrial accident board, and the same was set for a hearing. The respondents were not at the hearing because, it is said in the brief, the street car traffic broke down, and their representative was delayed, so that he did not get to Lansing from the city of Detroit until after the case had been heard by the industrial accident board. The industrial accident board awarded compensation to said claimant at the rate of $5.50 a week for 300 weeks. A motion for a rehearing was overruled by the industrial accident board.

This proceeding is to review the action of the industrial accident board in making its award. The determining question is: Was there evidence legally justifying the decision of the accident board that Mr. Scheer died as the result of an injury while in the employ of Mr. Holmes? It is not disputed that while so employed on March 2, 1915, while unloading a box of hardware weighing about 800 pounds, the box fell upon the right leg of Mr. Scheer, inflicting considerable injuries, but it is insisted there is no legal proof that these injuries caused the death of Mr. Scheer.

Section 12 of part 3 of Act No. 10, Extra Session of 1912 (2 Comp. Laws 1915, § 5465), makes findings of fact made by the accident board conclusive in the absence of fraud, if any competent legal evidence is produced to sustain the facts so found. This section has frequently been construed by this court. Some of the decisions are: Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22, Am. & Eng. Ann. Cas. 1916A, 386); Reck v. Whittlesberger, 181 Mich. 463 (148 N. W. 247, Am. & Eng. Ann.. Cas. 1916C, 77.1) ; Hills v. Blair, 182 Mich. 20 (148 N. W. 243); Estate of Beckwith v. Spooner, 183 Mich. 332 (149 N. W. 971, Am. & Eng. Ann. Cas. 1916E, 886); Redfield v. Insurance Co., 183 Mich. 638 (150 N. W. 362); Buhse v. Iron Works, 194 Mich. 413 (160 N. W. 557).

The record is. not as satisfactory as could be desired. Some of the witnesses were dull and made contradictory statements, possibly because they did not understand the questions put to them. The claimant testified that at the timé of the accident her husband was a strong* healthy man weighing about 160 pounds; that she met him at the door when he was brought home, and she and his boss helped him into the house; that his leg was swollen from the day he got hurt; that a doctor was called; that Mr. Scheer was confined to his bed, except as he supported himself on two crutches; that he did not improve, and another doctor was called, until six in all had been in attendance upon him, when he died.

“Q. Did Dr. De Witt ever tell you at that time that your husband would not live?
“A. Yes, he told me.
“Q. When was that, how long before his death?
“A. That was just before they operated on him. He said your husband is going to die. He heard him.
“Q. Was it spoken loud enough so he could hear?
“A. Yes; it was spoken loud enough. * * *
“Q. Do you remember the exact words Dr. De Witt used when he said your husband would not live?
“A. He said, ’Your husband is going to die.5 That is all I understand.
“Q. How long afterwards was it before he died?
“A. Why, I guess it was going on the second week, or third week; I don’t remember any more.”

The record does not disclose anything further about the operation. She testified on cross-examination:

That there were times during his illness as a result of the accident when Mr. Scheer was out of his mind.

“Q. When your husband came home Mr. Holmes was with him?
“A. Yes.
“Q. The injury was to his knee?
“A. His right leg.
“Q. Whereabouts; was there a bruise on his leg or foot?
“A. Yes; there was a couple of bruises on the middle part of his leg,
“Q. About halfway between the knee and the ankle?
“A. No. * * *
“Q. No. You say the leg was getting better; the swelling was going down; it was getting better wasn’t it?
“A. I don’t know; I didn’t have the feeling of it.
“Q. And you don’t know what caused the condition of your husband’s health do you?
“A. No.
“By Mr. MeCredie: Q. You say the swelling went up his hip and into his side?
“A. Yes.
“Q. You say in the first instance it was swollen from the knee down and then the swelling went up the leg?
“A. Yes.
“Q. Did the swelling go out of the leg or not?
“A. No.
“Q. Then it still continued and the side began to swell?
“A. Yes.
“Q. And could you say that he never after the accident stepped on his foot?
“A. No; he never. * * *
“By Arbitrator Baugh: Q. After the swelling started to go into his side was his leg swollen from the hip into the side?
“A. Yes.
“Q. It came up the right leg and was swollen up to the hip?
“A. Yes; the whole lower part of his body was swollen.
“Q. Was the right limb swollen?
“A. His hip was swollen.
“Q. Just his hip?
“A. More than his hip; the lower part of his body was all swollen.
“Q. Was the left leg swollen?
“A. As far as the hip.
“Q. After the swelling of the knee commenced to go down, did the other swelling go down?
“A. No.”

Another witness testified:

That he saw Mr. Scheer within three or four days of the accident and helped take care of him; that his leg was bruised and swollen, and that he could not use it; that he appeared to be suffering from pain; that there were times when he was unconscious.

“Q. Did he know you?
“A. He did when I came, but he got worse later on in the evening.
“Q. Lapsed into unconsciousness?
“A. Yes, sir.
“Q. Did you see his leg at that time?
“A. Yes, sir; I did.
“Q. What was its condition?
“A. Why it was swollen. I helped bandage it, and at that time it was swollen, and it seemed as though all the life was getting out of the foot.
“Q. Was it withering up?
“A. Yes; and he was kind of drying up, all the way through, the whole side. His other foot was getting smaller. You could see it was fading away then.
“Q. How much would you say that he would weigh, in your judgment, at that time?
“A. Oh, about 110 or 115 pounds.
“Q. And at the time that he was hurt you testified that he weighed upwards of 160?
“A. Well, 160 or 165, I should judge.
“Q. And in the space of about six weeks—
“A. 6 or 7 weeks, I guess.
“Q. —went to 110 pounds?
“A. 110 or 115 pounds. Oh, he was awful.”

On the cross-examination he testified in part:

“Q. Now, the last time you saw him, at least you said it was the last, well this last time you saw him prior to the night before he died, you said the time before that that the leg was swollen, and the other leg appeared to be drying up. Now you say the leg was swollen?
“A. Yes.
“Q. What caused that swelling, do you know?
“A. Well, I suppose from the injury.
“Q. You suppose?
“A. From the injury.
“Q. Do you know for sure?
“A. I don’t know.
“Q. When you say the leg was swollen up, you don’t know what the reason of the swelling was, do you?
“A. I suppose it was the injury, but I don’t know.
“Q. You don’t know positively?
“A. No.
“Q. What was the condition of the leg, what did it look like?
“A. Why it was—
“Q. Was it red, white, black, or blue?
“A. Well, it was not a regular color; it was a kind of a blue color like. * * *
“Q. And what did the laceration on the knee look like at that time?
“A. I didn’t see the knee.
“Q. Did you see the part below the knee?
“A. I seen the foot and the other leg.
“Q. Did you see the knee?
“A. The knee was bandaged.
“Q. Did you see the part of the leg that was injured?
“A. No; I didn’t. Below the bandage it was swollen.
“Q. You can’t say that that was from the accident?
“A. I presume it was.
“Q. Will you swear positively it was from the accident?
“A. I would so far as I know.
“Q. How do you know that?
“A. Well, there was nothing else that would cause it.
“Q. Assuming this man was suffering from some other disease that would cause swelling?
“A. Well, probably—
“Q. Would you have been able to tell whether that was from the disease or from the accident?
“A. Well, would it not be on the other leg; would not both legs be swollen?
“Q. You say on the night before he died he had aches and pains all over?
“A. Why, he was rolling his eyes, well, he was fading away.
“Q. Do you know what this man died from?
“A. From the injury of the leg, as far as I know.
“Q. How do you know that?
“A. Well, because he was laid up from the injury, and he never got out of the house after that.
“Q. Did you see the death certificate?
“A. No; I didn’t.
“Q. Well, you know, don’t you, that there is a death certificate filed showing the cause of death ?
“A. I suppose so.
“Q. When you say this man died from the injury, it is an opinion of yours, isn’t it?
“A. From my judgment of being with him; yes.
“Q. And you are not a doctor?
“A. No, sir.”

Another witness testified that he was sent from the factory at the time of the accident to take Mr. Scheer’s place.

“Q. What was his condition then?
“A. He lay down. He was sitting on a box with his legs laying down.
“Q. And how did you happen to see him there?
“A. I was called up to go and take Mr. Scheer’s place; he had been hurt.
“Q. Did you take his place?
. “A. Yes.
“Q. Did you see the box?
“A. Yes.
“Q. Where was the box?
. “A. Well the box stand on the ground.
“Q. How heavy was the box?
“A. It would weigh 700 or 800 pounds. * * *
“Q. How long did you see Mm sitting there on the box?
“A. About 10 or 15 minutes.
“Q. Then what happened?
“A. Then the boss was right after me, Holmes.
“Q. Did the boss take Mm home?
“A. Holmes was right after him, talked to him. I took his truck and drive away.
“Q. Did you see Mr. Scheer get off the box and walk?
“A. No.
“Q. When you went away he was still sitting on the box?
“A. Still sitting on the box.”

In the agreement in regard to compensation is the following:

“On or about March 2, 1915, while injured was at work at the Trio Manufacturing Company at Warren and Bellevue avenues, unloading a box of hardware, weight about 800 pounds, he slipped and lost his foothold, and box fell on his leg, splitting his kneecap and tearing the muscles from flesh.”

The case then shows an accident to a healthy man weighing nearly 160 pounds, resulting in a split kneecap and the tearing of the muscles from the flesh, followed immediately by a swelling of the knee and leg, and a condition that grew worse so that several doctors were called, and the victim of the accident, instead of improving “faded away,” as some of the witnesses expressed it, until he weighed but 110 or 115 pounds, and died less than seven weeks after he was hurt. We think the inference that the death was the result of the injury is not far-fetched.

The award should be affirmed, with costs to claimant.

Bird, J., concurred with Moore, J.

Ostrander, J.

There is in the record no testimony fairly tending to prove that the described injury was the cause of the death of claimant’s intestate. For this teason the award should be set aside.

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

Fellows, J.

(dissenting). After a careful examination of the record in this case, I find myself unable to agree either with Mr. Justice Moore, that “the inference that the death was the result of the injury is not far-fetched,” or with Mr. Justice Ostrander that there is no testimony to support the finding. I think the finding of the industrial accident board is farfetched, but that there was some proof which would authorize the board to make such finding if it was so disposed. The committee on arbitration who heard and saw the witnesses disallowed the claim. Six doctors attended the deceased during his illness. No one of these doctors was produced at the hearing, and the failure to produce them or any of them is unexplained. If it were within the province of this court upon certiorari to the board to correct errors of fact this case should be reversed. But under the act creating the industrial accident board the power of this court to reverse is limited to errors of law. Because of this want of power in this court to correct erroneous findings of fact by the board, I am constrained to be for affirmance.