text:
    SIMONS v. ROOD.
    1. Tax Titles — Acquisition by Contract Purchaser.
    A contract purchaser of land, taking subject to an existing mortgage, occupies the position of mortgagor as to the vendor and existing mortgagee, and cannot, as against them, acquire title by purchase at a tax sale, though for taxes that accrued before he received his contract.
    2. Same — Husband and Wife.
    A tax title acquired by a husband on land owned by his wife is void, not only as to the wife, but as to her grantees and mortgagees.
    Error to Mecosta; Palmer, J.
    Submitted December 11, 1901.
    Decided January 28, 1902.
    Ejectment by Laura S. Simons against Laura Rood and Dearborn Rood. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Edwin H. Lyon, for appellant.

      Frank Dumon, for appellees.
   Hooker, C. J.

The plaintiff brought ejectment, and was defeated, the judge filing a finding of fact and law, whereupon she removed' the cause to this court by writ of error. The finding shows that on October 28, 1890, the owner, Moore, gave two mortgages upon the premises,— a first mortgage of $800 and.a second of $24, — both to the same mortgagee, the Michigan Mortgage Company; the second being on its face made subject to the first. In April, 1891, the first mortgage was assigned to Seymour. On February 6, 1892, the Michigan Mortgage Company obtained a sheriff’s deed on foreclosure of the second mortgage, subject to the first mortgage. On October 20, 1893, the Michigan Mortgage Company sold the land upon contract to Laura Rood for $1,200, payment being deferred; promising upon performance by her to give to her a warranty deed of the premises, subject to the taxes to be assessed for and after the year 1893, and said first mortgage, and to give her immediate possession of the premises. On December 4, 1893, Dearborn Rood, the husband of Laura Rood, bought the premises at delinquent tax sale for the taxes of 1891. On February 9, 1894, the affairs of the Michigan Mortgage Company went into the hands of Vaughan, Fedewa, and Lyon, receivers. In April, 1894, the Roods moved upon the premises, and remained there until after November 21, 1894. In November, 1894, Dearborn Rood received a letter from the attorneys of Frances E. Seymour:

“Law Oeeice op Lyon & Dooling.
“St. Johns, Mich., Nov. 21, 1894.
“Dearborn Rood, Esq.,
“Blanchard, Mich.
Dear Sir: We are advised that you became the purchaser at a tax sale of the east half of the southeast quarter of section one, Tp. 13 north, of R. 8 W., in Michigan, —being known as the Moore 80 acres, — and which land we understand was sold to your wife by the Michigan Mortgage Company, Limited, of this place. We write you as attorneys for Mrs. F. E. Seymour, the owner of the mortgage upon that place. We want to know if you intend to insist upon your tax purchase as a title to the land adverse tó Mrs. Seymour. If you do, or if you do not, advise us of the same, because, if you do insist upon it as a claim adverse to Mrs. Seymour, we will redeem for her before the first of December. If you pursue that course, and insist upon your tax interest, we shall have Mrs. Seymour immediately commence foreclosure on her mortgage. An early reply will greatly oblige,
“Very truly yours,
“Lyon & Dooling.”

Upon the receipt of this letter dated November 21, 1894, and before December 3,1894, the Roods removed from the premises and abandoned the premises, taking up their residence in the adjoining township. This land was on the east side of section 1. On December 3, 1894, Dear-born Rood purchased the land at delinquent tax sale for the taxes of 1892. On January 15, 1895, Dearborn Rood obtained an auditor general’s deed of the premises for his purchase for the taxes of 1891. On April 25, 1895, the Roods moved back upon the premises, claiming to take possession under the tax title acquired by Dearborn Rood. On May 13, 1895, Seymour obtained a sheriff’s deed on foreclosure of her $800 mortgage. On May 31, 1895, Vaughan, Fedewa, and Lyon, as receivers, gave a receivers’ deed of the premises to Seymour. Dearborn Rood received auditor general’s deeds as follows: On January 25, 1896, for the tax of 1892; January 15, 1897, for the tax of 1893; April 25, 1898, for the tax of 1894. On May 30,1900, Seymour quitclaimed her interest to the plaintiff. No notice was given of such removal or return to the vendor.

By contract with ,the Michigan Mortgage Company, Mrs. Rood acquired an equitable title in these lands, and the vendor held the legal title in trust for her, but coupled with an interest by way of security. It was in effect a mortgage, and she mortgagor. See Bowen v. Lansing, ante, 117 (88 N. W. 384), and cases cited. As such mortgagor she could not acquire an adverse title, which should cut off her mortgagee, by acquiring an interest through a purchase of the lands at delinquent sale for unpaid taxes, whether the taxes accrued before or after the time that she made her contract.' The tax of 1891 was a lien upon the premises when she took them. In Lacey v. Davis, 4 Mich. 140 (66 Am. Dec. 524), this was held to preclude one taking title from asserting an adverse claim under a tax deed based on such a tax in any case; and while this rule is questioned, as too broad, in the case of Blackwood v. Van Vleit, 30 Mich. 118, that case seems to recognize the rule that one cannot assert such a title where it was his duty to the State to pay the tax, or where it would be inequitable as between him and the holder of the existing title. It is said in that case: '

“It was not claimed in this case, so far as the record shows, that there were contract or other relations between Blackwood and Van Vleit that would preclude the latter from buying the former’s land for delinquent taxes.”

In the case of Sands v. Davis, 40 Mich. 19, language is used which may seem to justify the conclusion that one may assert such a title, but it will be seen by an examination that it was put upon the ground that such vendee had no duties to perform towards the vendor, and certainly none as to the vendor’s co-tenants; and the writer of the opinion (Mr. J ustice Campbell) was careful to add:

“If Sands had gone into possession by the aid of the other tenants, or in recognition of their rights, he might in that way, perhaps, have incurred some duties towards them. But he went in as a stranger to their claims, under a claim which denied their existence or validity.”

In the present case the Roods not only took possession 'under a title they now attempt to deny, but under no other title; and, furthermore, they did so under a solemn contract that Mrs. Rood should pay $1,200, and that the vendor should hold the legal title in trust until it should be paid, and that such title should be subject to the outstanding $800 mortgage. In the case of Horton v. Ingersoll, 13 Mich. 409, it was held that a tax title obtained by a mortgagee could not be used to cut off the mortgagor’s title, or that of a prior mortgagee, because the taxes were as much a charge upon one interest as the other, and the purchase simply inured to the protection, and not the destruction, of the regular title. See Jeffery v. Hursh, 45 Mich. 59 (7 N. W. 221); Taylor v. Snyder, Walk. Ch. 490; Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113 (7 N. W. 707); Farmers', etc., Bank v. Bronson, 14 Mich. 361; Bertram v. Cook, 32 Mich. 518; Richards v. Richards, 75 Mich. 408 (42 N. W. 954); Wolf v. Holton, 92 Mich. 136 (52 N. W. 459); Fells v. Barbour, 58 Mich. 49 (24 N. W. 672); Watkins v. Green, 101 Mich. 493 (60 N. W. 44); Defreese v. Lake, 109 Mich. 428 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584).

There' are many cases which hold that a tenant in possession cannot assert a title under a tax deed without a surrender of the premises. That is recognized by counsel in this case, but he insists that there is no impediment here, because the defendants abandoned the premises, and the court so found. We doubt if the parties did in good faith abandon the premises; but, if they did, the rule applicable to this case is broader than that. It does not rest on the relation of landlord and tenant, but on privities of contract and title which have raised equities that forbid Mrs. Rood to acquire a tax title against any one who stands in the relation of mortgagee to her. In the case of Defreese v. Lake, supra, there is a discussion of this principle; and in Fells v. Barbour, supra, it was held that an execution purchaser’s grantee is in such privity with the defendant in the execution that he cannot assert a title by adverse possession against a mortgagee of the execution debtor based upon a tax title procured after his purchase; it being held that “the purchase of bids at a tax sale operates as a payment of the taxes, so far as a previous mortgagee of the land, or his assignee, is concerned.” Under this rule a purchase by Laura Rood would have inured as a payment, by reason of her contract relations, whether she was in or out of possession, and whether it was made before or after she took possession, inasmuch as it was after she made her contract of purchase. The thin disguise of having these purchases made and deeds taken in the name of her husband will not affect the matter. It is inequitable for a husband to acquire title to the wife’s premises by obtaining tax titles upon them. As to her, at least, they would be void. So, also, should they be as to her grantees or mortgagees, under circumstances like these. Ward v. Nestell, 113 Mich. 187 (71 N. W. 593); Hubbard v. Shepard, 117 Mich. 27 (75 N. W. 92, 72 Am. St. Rep. 548); Laton v. Balcom, 64 N. H. 95 (6 Atl. 37, 10 Am. St. Rep. 381). If there was not collusion between the Roods in acquiring the title, Dearborn Rood paid the taxes for her; and in such case, or if the purchase was collusive, it was a fraudulent taking color of title, merely.

The judgment is reversed, and a judgment will be entered here in favor of the appellant, with costs of both courts, and the case will be remanded for further proceedings.

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

        Sleight v. Roe, 125 Mich. 585 (85 N. W. 10), and Ream v. Robinson, 128 Mich. 92 (87 N. W. 115), are recent cases bearing on the rights and duties of co-tenants.

       See, also, Porter v. Corbin, 124 Mich. 201 (82 N. W. 818).


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    LINDSAY v. MORSE.
    1. Replevin — Bond — Title to Property — Pursuing Proceeds op Sale.
    The giving of the statutory bond by a plaintiff in replevin does not operate to pass the title to the property to him, but the defendant, if in fact the owner, may retake it, or, if it has been sold, may pursue the fund realized, if it can be identified.
    '2. Same — Subrogation to Rights op Surety.
    Defendant in replevin, on obtaining judgment, may be subrogated to the rights of the sureties on plaintiff’s bond in a fund given them as security by plaintiff.
    3. Same — Partnership.
    The fact that, while the undertaking of the sureties was individual, the fund so received by them went into their copartnership business, constitutes no obstacle to the pursuit of the fund.
    Appeal from Wayne; Rohnert, J.
    Submitted December 12, 1901.
    Decided January 28, 1902.
    Bill by Archibald G. Lindsay against George C. Morse, administrator of the estate of Patrick M. Gamble, deceased, for a partnership accounting: In the matter of the petition of William Ross and others for the payment of their claim from the partnership assets. From a decree for petitioners, defendant (Morse) appeals.
    Affirmed.

      John D. Conely, for petitioners.

      George W. Radford, for defendant.
   Montgomery, J.

In 1890 one Henry Gamble commenced an action of replevin against the petitioners in this case, and, upon the seizure of certain lumber under his writ, gave the statutory bond, with Patrick M. Gamble, whose estate is defendant in this suit, and Archibald G. Lindsay, complainant in this suit, as sureties. The lumber was sold for between five and six thousand dollars, and the proceeds turned over to said sureties, who for some years previous to this time were partners in the lumber business. The proceeds were deposited in the bank to the credit of the firm, and through the misunderstanding of the bookkeeper, as he testifies, were credited to Henry Gamble in his open account with the firm. The bookkeeper testifies that at a later date Patrick M. Gamble told him that “the money was paid to Lindsay & Gamble in trust, and although Henry Gamble had an interest in it, or might have, some one else claimed an interest in it, and it might not belong to Henry Gamble, and it might have to be paid to some other partythat the bookkeeper said that in that case he had better open up a separate account for it; and that Mr. Gamble replied, “Yes; do that.” The entry correcting the bookkeeper’s error and opening a new account, called, “Henry Gamble Replevin Account,’] was not made until, some time later, — several months after Patrick M. Gamble’s death. Mr. Lindsay’s testimony as to the understanding under which the money was received is as follows:

‘ ‘ Mr. Patrick M. Gamble came to me and told me that Henry Gamble wanted me and Patrick to sign the replevin bond, and stated there was no risk, because we should receive the property, or the proceeds of the property, as security against any liability that we might incur. On this fact I consented to sign the bonds with Patrick M. Gamble, and I received, not the lumber, but the proceeds of the lumber, in the sum of $5,000, or a little more. Lindsay & Gamble received it, but put it in their bank as security against any loss that might be sustained from the determination of the suit.”

Patrick M. Gamble died in February, 1891. In March, 1892, Mr. Lindsay filed the original bill in this case, asking for an accounting and winding up of the partnership business. In December, 1895, petitioners obtained judgment against Henry Gamble in the action of replevin for upwards of $7,000, having waived judgment for the return of the lumber. Execution against Henry Gamble was returned unsatisfied, and petitioners sued Mr. Lindsay on the bond and obtained judgment. Upon learning of the fund deposited with Lindsay & Gamble, they filed this petition to have it applied upon their judgment. Petitioners have never taken steps to obtain judgment on the bond against the estate of Patrick M. Gamble. The firm of Lindsay & Gamble is solvent, but Patrick M. Gamble’s estate is not.

It is claimed by counsel for the administrator that between the entry in November, 1890, and the second entry in August, 1891, “ the money had been applied to the payment of Henry Gamble’s paper, as far as it would go.” We are unable to find any testimony in the record to this effect, except what implication may arise from his having been credited with the money upon the books of the firm; and, as to that, it does not appear that the entry was acceded to by either of the sureties. It is true that the firm of Lindsay & Gamble paid out moneys on account of Henry Gamble, and Henry Gamble became their debtor; but the payments were made upon obligations previously incurred, and it does not appear that it was their intention to devote this particular fund to that purpose.

It was decided in Mannausau v. Wallace, 87 Mich. 543 (49 N. W. 1082), that the mere institution of an action of replevin and the giving of the bond by the plaintiff does not operate to pass title to the plaintiff; that the defendant may, notwithstanding, repossess himself of the property, if it is in fact his properly. It would seem to follow that, where he is able to identify the fund realized upon a sale of such property, he would be entitled to pursue that fund. On the other hand, if we assume that, upon taking judgment, the defendants in replevin became creditors of the plaintiff in replevin, Lindsay and Gamble were sureties, and we can see no reason why, as to a fund in the hands of Lindsay & Gamble, received as a security for these sureties, the principal creditors may not be subrogated. In fact, we think the case of Union Nat. Bank v. Rich, 106 Mich. 328 (64 N. W. 339), is ample authority for such substitution. It should be noted that it is the theory of the appellant that the undertaking of Lindsay and Gamble upon this bond was not a copartnership undertaking at all, and this is apparently correct. The proceeds of this lumber were paid to them, not for the purpose of liquidating a liability to the partnership, but as security. Evidently for convenience, the fund was deposited in the firm account of Lindsay & Gamble. The assets of the firm were increased by that amount. The firm is solvent. There is no equity in permitting this fund, now in the hands of the receiver, to be diverted to the individual creditors of either of the partners.

The learned circuit judge decreed a payment by the receiver to the petitioners of the proceeds of this lumber, together with the earnings of said fund while in the hands of the receiver. We think the petitioners were entitled to this order, and the same will be affirmed, with costs.

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


author: Moore, J.

text:
    UNITED STATES HEATER CO. v. IRON MOLDERS’ UNION OF NORTH AMERICA.
    1. Appeal — Injunction—Refusal to Dissolve.
    An order denying a motion to dissolve a preliminary injunction is not appealable.
    2. Voluntary Associations — Right to Sue —Validity of Statute.
    Act No. 25, Pub. Acts 1897 (3 Comp. Laws, §§ 10025, 10026), authorizing the maintenance of suits by or against unincorporated voluntary associations, clubs, or societies, is a legitimate exercise of legislative power.
    3. Same — Double Remedy.
    The fact that the right to proceed against the individual members of the association is in terms preserved does not render the act void as affording a double remedy for the same cause of action.
    4. Same — Class Legislation — Labor Organizations.
    Nor is the act void as class legislation, directed against organized labor; its scope being limited in no such manner.
    5. Same — Equity Jurisdiction.

      Hence: A bill in equity will lie, in a proper case, to enjoin an unincorporated labor organization from interfering with or intimidating complainant’s employéS.
    Appeal from Wayne; Hosmer, J.
    Submitted December 12, 1901.
    Decided January 28, 1902.
    Bill by the United States Heater Company against the Iron Holders’ Union of North America and others to enjoin interference with the conduct of complainant’s business. From an order refusing to dissolve a temporary injunction, and overruling a plea to the jurisdiction, defendants appeal.
    Affirmed as to the latter part of the order, and appeal dismissed as to the former.

      Bowen, Douglas & Whiting, for complainant.

      James TI. Pound, -for defendants.
   Moore, J.

The complainant filed a sworn bill. The material allegations of the bill, omitting the formal parts, are as follows:

First. Yonr orator is a corporation duly organized and existing under the laws of the State of Michigan, and having its principal office for the conduct of its business in the city of Detroit, in said county and State. It is engaged in the manufacture of boilers for heating purposes, and has a manufacturing plant in said city of Detroit, at No. 251 Campbell avenue; and said plant represents an investment of upwards of $50,000, and requires the use of upwards of $100,000 of working capital.. In the conduct of its said business it employs about 100 persons as molders, machinists, pattern makers, core makers, apprentices, and laborers.
“Second. Your orator further shows that prior to the 17th day of April, 1901, it had in its employ as molders and appi’entices some 25 to 30 men, among whom were the defendants Fritz Zampich, Edward Troeder, George Hoffman, Michael Schultz, Michael Murphy, Herman Karnarsky, and Henry Smithers; that, on said last-mentioned day, said last-named defendants were union men, and members of the defendant Iron Molders’ Union of North America, and the two local branches herein named, and the other 16 or 17 molders then in the employ- of your orator were nonunion men, or men not members of said defendant association, or either of its said branches.
‘ ‘ Third. Your orator further shows that it is advised and believes, and so charges the fact to be, that said defendant Iron Molders’ Union of North America is a voluntary association, and is generally known and spoken of as a ‘trade union,’ and the defendants Local Branch No. 31 of the Iron Molders’ Union of North America and Local Branch No. 244 of the Iron Molders’ Union of North America are branches of said Iron Molders’ Union of North America, which is in existence in the State of Michigan, and others of the United States. The names of the officers 'of said defendant Iron Molders’ Union of North America are, as your orator is advised and believes, Martin Fox, president; Joseph F. Valentine, first vice-president; M. J. Keogh, second vice-president; James E. Roach, third vice-president; and D. J. Denney, secretary. The officers of Local Union No. 244 of the Iron Molders’ Union of North America are, as your orator is advised and believes, William Randall, president; Alfred Ensor, financial secretary; and Henry Nex, recording secretary. And the officers of Local Union No. 31 of the Iron Holders’ Union of North America are, as your orator is advised and believes, George Robarge, president; John M. Sims, financial secretary; and Thomas O’Neil, recording secretary.
. “Fourth. Your orator further shows that on or about the 1st day of April, 1901, said James E. Roach, third vice-president of said defendant Iron Molders’ Union of North America, called on your orator at its place of business, and wanted your’ orator to ‘unionize’ its shop, or, in other words, to induce all the molders then in its employ to become members of said defendant Iron Molders’ Union of North America, and told your orator that by so doing your orator would avoid trouble; but your orator declined to accede to the request of said Roach.
‘Fifth. Your orator further shows that afterwards, and some time prior to the 17th day of April, 1901, your orator employed as a molder one-, a nonunion man, or aman who was not a member of said defendant associations, and said nonunion man at once entered the employ of your orator. Thereupon, and soon after his entering the employ of your orator, said defendants Fritz Zampich, Edward Troeder, • George Hoffman, Michael Schultz, Michael Murphy, Herman Karnarsby, and Henry Smithers requested your orator to discharge said man because he was a nonunion man and not a member of said defendant associations, and requested your orator to unionize its shop, or, in other words, wanted your orator to agree not to employ molders who were not members of said defendant associations, or someone of them, and threatened that, unless your orator did accede to their requests, your orator would have trouble with its molders. Your orator declined to grant said requests, or to accede thereto; and subsequently, and on or about the 17th day of April, 1901, said last-named defendants, and each and every one of them, went on strike, and left the employ of your orator. Shortly after-wards, Alfred Ensor, financial secretary, and Henry Nex, recording secretary, of said Local Union No. 244 -of the Iron Molders’ Union of North America, called upon your orator at your orator’s place of business for the purpose, as they said, of adjusting the trouble between your orator and said striking molders, or molders who had as aforesaid left the employ of your orator on said 17th day of April, 1901, and urged that the difficulties between your orator and said last-named defendants might be settled, and your orator agree to unionize its said shop, and to agree not to employ as molders any person or persons who were not members of said defendant Iron Molders’ Union of North America; but this your orator declined to do.
“Sixth. Your orator further shows that thereupon said defendants did unlawfully and illegally combine and conspire to force your orator to unionize its said shop, and to employ as molders no person or persons who were not members of said defendants, and, for the purpose of forcing or compelling your orator to so unionize its said shop, said defendants, with the illegal intent and unlawful purpose of compelling your orator so to do, and in furtherance of said unlawful and illegal combination and conspiracy, did for a long time, to wit, for a period of two months, daily picket the premises of your orator, and linger and loiter about, on, and in the neighborhood of the premises of your orator, and did unlawfully and illegally threaten and intimidate the molders then in the employ of your orator, and did threaten them with violence unless they left the employ of your orator and refused to work longer for your orator,, and did threaten with violence and intimidate other molders who were seeking employment with your orator; and this to the detriment and loss of your orator, and contrary to its rights to the lawful use and enjoyment of its property.
“Seventh. Your orator further shows that for from about April 1?, 1901, to June 18, 1901, and because and by reason of said unlawful acts on the part of said defendants, and because of the unlawful and illegal threats and intimidations used by said defendants, and the unlawful and illegal assaults of said defendants, or some of them, upon the molders then in the employ of your orator, it became and was necessary for your orator to convey the molders then in its employ to and from their homes, and to and from the premises of your orator, in covered vans or wagons, and at various intervals during said last-mentioned period of time it became and was necessary for your orator to seek the assistance and aid of the police of said city of Detroit for the purpose of protecting the molders in its employ from the unlawful and illegal threats and intimidations and assaults of said defendants, or of some of them.
“Eighth. Your orator further shows that from about the 18th day of June, 1901, until the 20th of July, 1901, there was comparative peace and quiet about the premises of your orator, and your orator and the molders in its employ were free from the threats and intimidations and assaults of the nature hereinbefore set forth; that at about 6:30 o’clock in the morning of the 20th day of July, 1901, said defendants and members of said defendant Iron Holders’ Union of North America, Local Union No. 31 of the Iron Molders’ Union of North America, and Local Union No. 244 of the Iron Molders’ Union of North America, as your orator is advised and believes, and so charges the fact to be, to the number of frpm 150 to 200, and in two separate bodies of 75 to 100, did approach the premises of your orator, and did station themselves in the path of the molders then in the employ of your orator, and who were then on their way to commence their day’s work in the shops of your orator, and did then and there, and in pursuance of said illegal combination and conspiracy to force your orator to unionize its shop, or to employ no molders who were not members of said defendant associations, or of some one of them, throw bricks and stones at the molders then in the employ of your orator, and did threaten them with violence, and did threaten to beat, kill, smash, and otherwise injure the molders then in the employ of your orator, should they (the said molders) continue to work for your orator, and did threaten to ‘get at them’in their homes if they should continue to work for your orator and continue in its employ, and thereby did unlawfully and illegally force and compel the molders then in the employ of your orator to cease and refrain to work for it and to leave its employ, and to break the contracts then and theretofore existing between them and your orator.
“Ninth. And your orator further shows that about 25 of the molders in its employ on said 20th day of July, 1901, were, as your orator is advised and believes, and so charges the fact to be, forced and compelled by said threats and intimidations, and through fear of violence at the hands of said defendants and the members of said unions, to refuse to work longer for your orator, and to break the contracts then existing between them and your orator; and thus, as your orator is advised and believes, it was illegally and unlawfully deprived by said defendants of its just rights in the premises.
Tenth. And your orator further shows that it is advised and believes, and so charges the fact to be, that by reason of said threats and intimidations, and by reason of fear of violence that said defendants and the members of said unions may do any person or persons seeking employment as molders with your orator, your orator will be unable to obtain molders, and will be thereby unlawfully and illegally damaged by the said actions of said defendants and the members of said unions.
“Eleventh. And your orator further shows that many of the molders who were so prevented from returning to the employ of your orator are desirous of working for and continuing in the employ of your orator, and your orator is desirous of having them work for and again enter its employ; but your orator shows that they will, not enter its employ and continue to work for it unless said defendants and the members of said unions are enjoined or restrained from threatening them with violence, or otherwise unlawfully and illegally interfering with them, should they enter or attempt to enter the employ of your orator, or work or attempt to work for your orator; and your orator shows that it is advised and believes that this is an unlawful and illegal interference with, and contrary to, the just rights of your orator.
Twelfth. And your orator further shows that because of said unlawful and illegal combination and conspiracy and said illegal acts on the part of these defendants and the members of'said unions, and all of which, your orator shows, have been done in pursuance of said unlawful and illegal combination and conspiracy to oblige or force your orator to unionize its shop, or to employ no molders who were not members of said defendant unions, your orator has suffered great financial loss, of upwards of $100, but the exact amount of which it is difficult for your orator to estimate, and further shows that if said defendants are permitted to continue such acts, or acts of a similar nature, great and irreparable injury and damage will be done to the business of your orator. * * *
“ Wherefore your orator prays:
“ (a) That the Iron Molders’ Union of North America, and its officers and members, Local Union No. 31 of the Iron Molders’ Union of North America, and its officers and members, Local Union No. 244 of the Iron Molders’ Union of North America, and its officers and members, Fritz Zampich, . Edward Troeder, George Hoffman, Michael Schultz, Michael Murphy, Herman Karnarsky, and Henry Smithers, may answer this bill, but not under oath; answer under oath being hereby expressly waived.
“ (6) That the combination or conspiracy of said defendants, or any or either of them, for the purpose of compelling, by threat, intimidation, or force, your orator to accede to the demands of said defendants, and to harass and intimidate the employes of your orator, and to interfere with the free employment and free services of employes of your orator, and to impede, obstruct, interfere with, or destroy the regular operation and conduct of the business of your orator, and to deprive your orator of free use of its property, may be decreed to be in violation of the rights of your orator, and against the law of the land, and that the said defendants, and each of them, may be perpetually restrained from doing any act or thing in furtherance of said combination for such purposes.”

And then came a prayer for a writ of injunction.

A preliminary writ of injunction was issued against all the defendants; the language used in the injunction following that used in the case of Beck v. Protective Union, 118 Mich. 497 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421). A reference to that case will make it unnecessary to set out more of the injunction here.

Certain of the defendants interposed a plea, the essential parts of which are as follows:

“ The plea of the Iron Molders’ Union of North America, an unincorporated society, and its officers and members, Local Union No. 31 of the Iron Molders’ Union of North America, and its officers and members, Local Union No. 244 of the Iron Molders’ Union of North America, and its officers and members, a part of the above-named defendants, to the bill of complaint of the United States Heater Company, a Michigan corporation:
“These defendants, and each of them, specially appear in this court, and file this their joint and several plea to the bill of complaint filed in this cause, and * * * say that they, nor either of them, are a legal body capable of suing or being sued by the laws of the State of Michigan, nor of any other State or country in this world, and therefore not capable of being subjected to this suit by law in any but tbeir individual members’ names. The complainant having- averred that these pleading defendants are but a voluntary association of citizens throughout the United States and the Dominion of Canada, and therefore not subject to suit, therefore these so-called defendants, who have no legal form, shape, or substance, and who are not, as voluntary, unincorporated societies, subject to be sued as a single individual, do plead their said want of legal capacity in bar to complainant’s bill of complaint. ”

The other defendants interposed an answer, in which they admitted some of the paragraphs of the bill. They neither admitted nor denied other paragraphs. They denied the truth of paragraphs 7, 8, 11, 12, and 13. A motion was then made on the part of Mr. Hoffman, one of the defendants, for a dissolution of the preliminary injunction. Before the motion for a dissolution of the injunction was heard, it was stipulated—

“That this motion shall extend to, and be agreed to be upon the behalf of, all the defendants, and to be based upon all the pleadings and affidavits on file to this date in this cause, and that the case may be now heard so far as the plea is concerned; whereupon, on hearing said counsel, it is ordered that said motion be denied in all its parts, and the plea filed in this cause be overruled, with permission hereby given the pleading defendants to answer the bill of complaint filed in this case within 30 days, if they so desire.”

From this order the case is brought here by appeal.

It will be observed from the statement of the proceedings that no replication has been filed, no proofs taken, and no hearing had upon the merits. The first question which confronts us is whether the order is a final decree, from which an appeal will lie. So far. as that part of the order is concerned which overrules the motion to dissolve the injunction, we have no hesitancy in saying it is not a final decree, and is not appealable. The question is not a new one in this State. It was raised as early as Wing v. Warner, 2 Doug. 288. In that case there is a very full and able discussion of the question involved, and it is unnecessary to repeat what was so ably written in that opinion. We shall content ourselves with a brief quotation:

“Orders granting, modifying, continuing, or dissolving such injunctions are interlocutory orders. Upon the final hearing the chancellor may dissolve such an injunction, or make it perpetual, or otherwise by the decree dispose of the subject of it as the equity of the case, as then presented, may require; and until then there is no decree which, under the statute, can'be appealed from.”

This eai'ly ruling of the court has never been changed. See, also, 2 High, Inj. (3d Ed.) § 1693; 2 Cycl. Law & Proc. 587.

We now come to the question, Was the court right in overruling the plea? Section 1 of Act No. 25 of the Public Acts of 1897 reads as follows:

“Section 1. The People of the State of Michigan enact, That whenever any unincorporated voluntary association, club, or society shall be formed in this State, composed of five members or more, having some distinguishing name, actions at law or in chancery may be brought by or against such association, club, or society by the name by which it is known: Provided, that this act shall not take away the right of the litigant to proceed against all the members of such association, club, or society, if such litigant shall so elect to proceed.”

This provision of the statute would seem to answer the question in the affirmative. Counsel says the legislature had no right to pass such a law. His position stated in the brief is:

“Now, this raises the question, flatly put, of the ability of the lawmaking power to authorize suits to be maintained against nothing. Second, if it may, has the law been complied with in this case ? And, first, am I not correct in' assuming that there must be a person or thing about which a suit is to be maintained ? Would a law authorizing suits to be maintained against the air, the sun, moon, or stars, be effective ? This law does not give these associations, clubs, or societies any legal standing, nor make them persons or legal entities. They cannot bring suit in the club, association, or society name. When they sue they must sue as a copartnership, under well-recognized legal rules. The person who seeks to deal with them can, by the provisions of this act, still hold them as copartners, and therefore would seem to have two remedies, while the club, society, or association has only one. The only object of this law is to hold by injunctions men who may or may not be citizens of this State. It is very clever in the use to which it is put. In other words, no matter what the original object o£ the act, it can only be effectively used against what is known as ‘organized labor.’ ”

We do not see the same difficulties in the law or its provisions which are seen by counsel. The law deals with conditions as they exist. It recognized that there may be unincorporated voluntary associations, clubs, and societies in this State which do or may do things which make it desirable for them to have the right to bring actions at law or .in chancery, and also that it may be necessary or desirable to make them defendants in an action at law or proceeding in chancery. If the allegations contained in the bill of complaint in this case are true, the wisdom of such legislation is made apparent.

There is nothing in the provisions of the law which indicates it is aimed at organized labor. There is hardly a town, village, or city, or a college or university, in this State, which has not its voluntary associations, clubs, or societies, to which the provisions of the law would apply.

It is for the legislature to determine who may sue and be sued, so long as it does not interfere with vested rights or deny any remedy.

“As a general rule, every State has complete control over the remedies which it offers to suitors in its courts. It may abolish one class of courts, and create another. It may give a new and additional remedy for a right or equity already in existence. And it may abolish old remedies and substitute new. * * * And any rule or regulation in regard to the remedy which does not, under pretense of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.” Cooley, Const. Lim. (6th Ed.) 443.

The appeal is dismissed as to that part of the order refusing to dissolve the injunction. As to that part of the order overruling the plea, the action of the court below is affirmed.

Hookeb, C. J., Gbant and Montgomeby, JJ., concurred. Long, J., did not sit.


author: Grant, J.

text:
    ATHERTON v. DEFREEZE.
    1. Evidence — Conversations— Admissibility.
    In an action of replevin, a witness for plaintiff testified to a conversation with defendant in which the latter made statements tending to rebut his claim of title to the property in controversy. On cross-examination the witness testified that defendant also said that he was so blind he could not see, and that, if he should lose the suit, he would go to the poor-house. Held, that the last-mentioned testimony was inadmissible, though relating to the. same conversation, since it had no connection with the issue involved.
    2. Trial — Misconduct oe Counsel.
    Where defendant’s attorney paid no attention to the rulings of the court, repeated questions that had been ruled out as improper, made unwarranted statements reflecting on the character of plaintiff’s witness, tried to make himself a witness by remarks not justified by the evidence, and appealed to the jury for mercy, addressing them as “boys,” a judgment for defendant should be reversed.
    Error to Shiawassee; Smith, J.
    Submitted January 7, 1902.
    Decided January 28, 1902.
    Replevin by John J. Atherton against Aaron Defreeze. From a judgment for defendant, plaintiff brings error.
    Reversed.

      A. J. Kellogg (John T. McCurdy, of counsel), for appellant.

      Martin V. B. Wixom, for appellee.
   Grant, J.

This is an action of replevin for two horses, and originated in justice’s court. Plaintiff derived his title from one Susan Whitman by a bill of sale. Defendant owned a farm and was unmarried. Mrs. Whitman, who was married, lived with defendant as his housekeeper. She testified that she was employed at $2 per week, and he testified that the arrangement between them was: “ Mrs. Whitman and I agreed to live together as long as we lived, and after I was dead she was to have what we had left.”

The title to the horses was the issue, and upon this the testimony was conflicting. There are 66 assignments of error, nearly all of which pertain to the rulings of the court in admitting and rejecting testimony. The comments made in Boydan v. Haberstumpf, ante, 137 (88 N. W. 386), apply with equal force in this case. The proceedings from the beginning to the end of the trial constitute a “ comedy of errors,” rather than the orderly trial of a lawsuit. To the rulings of the court the attorney for the defendant seemed to pay no attention, as the following instance will illustrate: Upon the cross-examination of Mrs. Whitman the same question was repeated to her three times, notwithstanding the court each time ruled the question as incompetent, and the ruling was correct. The sole purpose of the question was to prejudice the jury. A severe reprimand, if nothing more severe, should have been administered. The same witness was asked if defendant’s farm was not sold before she went to New York State. Objection to the question as incompetent and immaterial was sustained, whereupon the defendant’s attorney said: “It is important, as I stated to the jury. She stayed with him until the farm was gone, and then abandoned him.” There was no foundation for this remark. The rule for impeaching a witness by proving contradictory statements was wholly ignored, within the rule of People v. Riede, 121 Mich. 700 (80 N. W. 796), and many other cases.

One Miller, who formerly owned the horses, testified that he sold them to Mrs. Whitman, and that, after the suit was brought, he had a conversation with defendant; that defendant asked him what he knew about the case; that witness told him that, at the time of the sale, defendant said that the cows, for which he exchanged the horses, belonged to Mrs. Whitman; and that defendant said it looked as though he would get beaten. On cross-examination by the defendant’s attorney, the witness, in reply to the question, “What else did he say?”.said: “He said he was so blind he couldn’t see; and I asked him about how much the colts were worth, and he said about $300, and, if he didn’t get them, he would go to the poorhouse.” Plaintiff’s attorney moved to strike out the answer as incompetent, immaterial, and not relative to the issue. The court denied the motion; holding the answer “competent as testing the recollection of the witness, and as a conversation between him and the defendant.” The motion should have been granted. A witness’ recollection cannot be tested by introducing irrelevant and immaterial matters. Parts of a conversation, having no reference whatever to the issue upon trial, are not admissible under the rule that a party is entitled to the entire conversation. The rule means only that he is entitled to the entire conversation bearing upon the subject in controversy. Ten subjects may be talked about in one conversation. When one of the ten is the subject of litigation, it is not competent to put in evidence the conversation about the other nine. Defendant’s blindness and poverty had nothing to do with the title to the property. The case of Lichtenberg v. Mair, 43 Mich. 387 (5 N. W. 455), cited and relied upon by defendant to support the ruling, well illustrates the rule; The cross-examination was directed to what was said in regard to the subject which the witness had testified to on his direct examination, and which was material.

Some of the remarks of the attorney for the defendant were wholly unjustified. Mrs. Whitman had been to California with her brother, who paid her fare. She lived there about seven months, and brought back $70 or $80. The attorney said to the jury: “What old heart do you think it is aching in California ? ” There was nothing in the record to justify this remark.

It appeared in evidence that Mrs. Whitman had at one time consulted the attorney for the defendant in regard to her ownership of the horses, and had corresponded with him about it. Two of his letters were produced. The attorney, in his address to the jury, read them, and said:

“ That is just such a letter as any lawyer on the face of the earth would write, not knowing anything about the circumstances. Here is another letter, in which I told her it might be necessary to give a bond or execute a bill of sale. Now, it appears there must be some reason why I dropped that case right there. * * * I don’t remember what that woman wrote to me. I haven’t any more idea about it than anything in the world.”

He was not a witness, but endeavored in this manner to make himself one. In concluding his address he said:

“I have done my duty by the old man, and I am going to turn him over to you now. I will just say to you right now that this is an important matter to that man. He may be like an old horse turned out into the street. Your verdict may save him. Give him an opportunity of earning an honest livelihood.”

Again:

“Now, let me ask you, boys, mercy.
“Mr. McCurdy: I take an exception to the remark.
The Court: Don’t address the jury as ‘boys.’ ”

As long as attorneys will resort to such methods, unjustifiable either in law or ethics, courts have no alternative but to set the verdicts aside.

Judgment reversed, and new trial ordered.

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


author: Hooker, O. J.

text:
    WEAVER v. IRONS.
    Garnishment — Disclosure — Checks — Blank Indorsement — Ownership.
    The disclosure of a garnishee stated that the principal defendant gave him a bank check payable to, and indorsed in blank by, a third person, and requested him to see if it was good; that he inclosed it in a letter to the bank, and thereafter received a draft from the bank, payable to himself, which draft was in his possession when the garnishee process was served on him, but was afterwards returned by him to the bank. Held, that, in the absence of any evidence to show that the check did not belong to defendant, a judgment against the garnishee was proper.
    Error to Ogemaw; Sharpe, J.
    Submitted January 9, 1902.
    Decided January 28, 1902.
    Garnishment proceedings by Henry Weaver against Archie 0. Irons, as garnishee of Robert Jackman. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. L. Snodgrass, for appellant.

      Boss & Harris, for appellee.
   Hooker, O. J.

Irons was garnished at the suit of Weaver, who had brought assumpsit against Jackman, in justice’s court. Irons made a disclosure. A judgment was rendered in justice’s court in favor of the plaintiff for $69 damages and $10 costs in the principal action. The record shows that a judgment was rendered by the justice in the garnishment suit after a supplemental disclosure was filed, and the matter was brought to trial before the circuit court on appeal. The judge filed a written finding of facts and law, and rendered a judgment in favor of the plaintiff, upon which the defendant has brought error.

The finding shows, in brief, that the disclosure stated that a short time before June 1, 1901, Jackman handed Irons, in West Branch,, a check for $150 drawn on a bank in Bay City, payable to a Mr. McDole, and indorsed by him in blank, and asked Irons to see if it was good, and said he would pay him for his trouble. Irons wrote a letter to the bank, and inclosed the check, and gave them to Jackman. Soon after, he received by mail a letter from the bank, inclosing a draft for $149.75, payable to the order of Irons; and this was in his possession when the garnishee summons was served upon him, but was afterwards returned by him to the bank. From this showing the court found that the draft was the property of Jackman, although he might have had the right to demand the check from the bank in place of the draft, and that the plaintiff was entitled to a judgment against Irons. The court refused to amend his findings in accordance with proposed findings filed, and defendant has excepted. These proposed findings we need not discuss, further than to say that the substance of them is inferable from the findings filed.

Counsel insists that the court could not lawfully presume that the check was the property pf Jackman, or that he had any interest in the draft; that neither was money; and thát he erred in his conclusions of law. The learned circuit judge treated the disclosure as prima facie proof that Jackman, having a check indorsed in blank, was its owner. The draft was payable to Irons, and placed within his control the check, or the money represented by either. If neither Irons nor Jackman chose to contradict the prima facie case by testifying what the transaction really was, and who owned the check, the court could do no less than to render the judgment which was rendered.

The judgment is affirmed.

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


text:
    JACKSON SLEIGH CO. v. HOLMES.
    1. Sale — Breach of Warranty — Damages.
    The measure of damages for a breach of warranty on the sale of a chattel is ordinarily the difference between the value of the article contracted for and that of the article furnished.
    2. Same — Action for Price — Recoupment—Evidence.
    In an action against a retail dealer for the price of certain goods, where defendant claimed recoupment for defects therein, evidence that such defects became generally known, and injured his business, was properly excluded, as the damages sought to be shown were not sufficiently certain to permit a recovery therefor.
    3. Same — Cross-Examination.
    In an action against a retailer for the price of certain buggies, where defendant claimed that the buggies were defective, and practically worthless, and had testified on direct examination to the profit usually obtained on buggies, cross-examination as to the price for which the buggies in controversy were sold was proper.
    4. Same — Instructions.
    In an action for the price of certain buggies, where defendant sought recoupment for defects therein, and plaintiff’s testimony tended to show that, on complaint by defendant as to such defects, plaintiff furnished repairs which defendant agreed to accept as satisfaction, an instruction that, if the jury should find that such agreement was made, it displaced the original agreement, and plaintiff was entitled to recover, did not erroneously inject a new issue into the case.
    Error to Washtenaw; Kinne, J.
    Submitted January 9, 1902.
    Decided January 28, 1902.

      Assumpsit by the Jackson Sleigh Company against William J. Holmes for goods sold and delivered. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. F. & F. If. Freeman, for appellant.

      Forrest G. Baclgley, for appellee.
   Montgomery, J.

This action was brought on the common counts to recover a balance due on account for buggies and sleighs sold by the plaintiff to the defendant in the year 1898. Defense, recoupment for defects in the buggies furnished. Plaintiff recovered, and the defendant brings error.

Three grounds for reversal are urged in this court: First, that the court erred in excluding proof of injury to the defendant’s business, as furnishing a basis for a measure of damages; second, that the court erred in permitting plaintiff’s counsel to show by defendant what the buggies purchased by him were resold for; and, third, that the court injected a new issue into the case in his charge to the jury.

Defendant introduced evidence tending to show that the buggies furnished by plaintiff to defendant were defective, —particularly that the wheels were of very poor quality; that sales were made in the regular course of his business,' with warranties, and that many of these buggies were, returned, and new wheels demanded and furnished; and, in addition to this, sought to show that the fact became noised abroad that the buggies which he had sold were defective, and that it damaged his business. We think, in any view of the case, that the testimony was properly excluded. The damages sought to be shown were not sufficiently certain to have warranted the court in permitting a recovery upon other than the usual basis of the difference between the value of the article furnished and that which was contracted. McKinnon v. McEwan, 48 Mich. 106 (11 N. W. 828, 42 Am. Rep. 458). If we were more in doubt as to the sufficiency of the showing in this regard, an answer to the defendant’s contention would be that, after the complaints began to come in, and knowing of the defects in these buggies, he continued to sell them upon the same warranty as before, evidently relying upon the plaintiff’s promise to replace the parts.

As to the second question, the testimony as to the price at which these buggies were sold was elicited from the witnesses of the defendant by plaintiff’s counsel on cross-examination. On the direct examination of defendant this subject was opened up by defendant’s counsel. Witness stated, on direct examination:

“We generally calculate to sell a buggy that we purchase for $40 at wholesale at a profit of from $15 to $20. That is the general profit made by dealers. We generally calculate about $15 for selling a buggy. We don’t always get it, but we try.”

On cross-examination the witness was asked at what price he sold the buggies in question, and it appears that he sold them all at the price of $60 each. It is clear that, in view of his claim that the buggies were practically worthless, this was proper and legitimate cross-examination, and a proper subject of comment to the jury.

The question as to whether a new issue was injected into the case arose in this manner: The plaintiff offered testimony in rebuttal tending to show that the warranty, when made, was a warranty coupled with an agreement to replace. This testimony was coupled with other testimony tending .to show that, after the buggies were all shipped, and after the complaints had come in, defendant visited the plaintiff’s place of business at Jackson, and it was then talked over and agreed as to what repairs would be necessary in order to make the transaction satisfactory to him. Plaintiff’s testimony also tended to show that it was agreed that, if four sets of wheels and two sets of side curtains were sent him, it would be all right, and be entirely satisfactory; that these repairs were shipped him, and that no further complaint was made. Defendant’s testimony upon this subject, upon cross-examination, was as follows:

“Yes, they asked me how many wheels I wanted to take the place of those that were defective, and I think I told him that I wanted four sets and some side curtains, and that that was all that was needed, so far as I knew at that time, to make the buggies good. I don’t think I told them that, if they furnished those wheels and side curtains, it would make the matter entirely satisfactory. I don’t remember what I did tell them. Yes, it made it satisfactory at that time; but it ran along, and later on some more of the wheels gave out. I wrote them for four sets more, and I told them what I wanted them for, and got them. Yes, they made the buggies all right then. No, that did not make them satisfactory to my customers. There has never been a man satisfied with the buggies yet. Yes, there is trouble with the second wheels that were put on. They are all going to pieces. Some were used only a little while before they went down. I don’t remember whether I ever called the attention of the sleigh company to that matter or not.”

The testimony on the part of the plaintiff was distinctly that its attention had never been called to any imperfections in the wheels and repairs sent as substitutes for the parts which had proven defective in the original shipment. The charge of the court complained of was as follows:

“The plaintiff claims that a new arrangement was made by it with the defendant on January 2, 1899, by which the question of defendant’s damages was settled and adjusted; that, by the terms of this agreement, the plaintiff was to furnish certain new parts to take the place of the defective ones, and that it did furnish such parts. If you find that such new agreement was made, then, as a matter of law, I instruct you that it was founded upon a sufficient consideration, and would be binding upon the parties; and, if such agreement was carried out, and the parts furnished, the defendant thereby waived any claim which he had for damages at that time, and no part of such claim could be allowed at this time. If a new agreement was made January 2, 1899, as claimed by the plaintiff, the original agreement must not be considered by you; and, if such new agreement was kept and performed by the plaintiff, your verdict must be for the plaintiff for the amount of its claim.”

We think that this was not injecting a new issue into the record. The defendant set up recoupment. The plaintiff, to meet this, showed that the alleged breach of warranty had been adjusted between the parties, and that the terms agreed upon had been complied with. If this were so, it was not a new issue. It was a very proper way of meeting the defense urged. The jury could not have misunderstood this instruction, and the testimony tended very strongly to support the conclusion reached by the jury. It appears pretty clearly that no complaint was made from the 2d of January, 1899, after these repairs were shipped to the defendant, till about the time of the institution of the suit, on the 2d of August of that year.

But one other point is made in the brief of counsel for defendant, and, as counsel concede that this point, standing alone, would not be sufficient for a reversal of the case, it is unnecessary for us to discuss it.

The judgment will be affirmed.

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


text:
    NORTON v. HAYDEN.
    Partnership — Dissolution—Arbitration—Failure to Agree— Accounting.
    Where, with a view to an amicable dissolution of a partnership, one partner gave the other a bill of sale of his interest in the Hrm property under an agreement that the amount to be paid therefor should be determined by arbitrators on a submission of all partnership matters, and the arbitration failed, not through the fault of either of the parties, but because the arbitrators could not agree, the partner executing such bill of sale could maintain a bill for an accounting.
    Appeal from Jackson; Peck, J.
    Submitted January 9, 1902.
    Decided January 28, 1902.
    Bill by Ernest V. Norton against Henry Hayden for a partnership accounting. Prom an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      Thomas E. Barkivorth and Charles A. Blair, for complainant.

      Wilson & Cobb, for defendant.
   Montgomery, J.

The transaction between these parties is set forth in the statement of facts.in a case between the same parties, reported in 109 Mich., at page 682 (67 N. W. 909). Since the decision of that case the complainant has filed a bill of complaint, setting up the transaction there described, and asking for an accounting with the defendant as to the partnership transactions. To this the defendant has demurred, assigning numerous grounds of demurrer, and from the order overruling the demurrer has appealed to this court.

Briefly stated, the facts are that complainant and defendant were partners in the hotel business. The business was not profitable. They desired to effect an amicable dissolution. They agreed to submit all matters connected with their partnership affairs to two arbitrators, who were authorized to name a third. In the meantime a bill of sale was made by complainant to defendant of his interest in the property, but it was agreed that this should in no wise affect or prejudice the rights of either party under the agreement for submission, and that the consideration to' be paid by defendant for complainant’s interest in the property should be fixed by the arbitration. The arbitrators met, but failed to agree. They selected a third arbitrator, but no two of them could agree, and the attempted arbitration proved abortive. On the hearing of the former case it was said by Mr. Justice Grant :

“Neither party is responsible for the failure of the arbitration. Both parties acted in good faith in their attempt to secure an award. The failure of the arbitrators to agree was probably not contemplated, and the parties, in their contract, made no provision for such a contingency. The effect, therefore, was to place them in statu quo, and to leave them in the same position as they were before the contract was made. Both parties appear to have treated their action as a dissolution of the partnership. It is elementary that in such cases the sole and appropriate remedy is by a bill in equity for an accounting.”

This decision is decisive of complainant’s right to an accounting, unless we are prepared to depart from our former holding. We see no good reason for doing so. In the action at law we held that, as the parties had agreed that the purchase price should be fixed in a certain way, 'there could be no recovery at law until the price was so fixed. It was said: “Mr. Hayden did not agree to buy Mr. Norton’s interest, and to pay what a jury or court might find that he ought to pay, or what his interest might be worth.” It would seem to follow either that the defendant acquired this property for nothing, or that the parties must be placed in the same position as before the contract was made. It cannot be contended that, where the scheme for determining the consideration failed through no fault of either party, the complainant is wholly without remedy, with any more plausibility than it could be claimed in such case that the consideration might be left to the determination of a court or a jury. The complainant is entitled to an accounting, and, if the defendant has had and used the property formerly belonging to the firm, he is chargeable with its reasonable value on such accounting.

The order overruling the demurrer will be affirmed, with costs of both courts, and the case remanded for further proceedings.

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


text:
    CITY SAVINGS BANK OF DETROIT v. BROWN.
    Assignments for Benefit of Creditors — Preferences—Mortgages — Unseoured Creditors — Garnishment.
    A corporation conveyed all of its property in trust for the payment of certain indebtedness secured by mortgage thereon, and also for the payment of certain sums to the trustees and to M. There was in fact .no pre-existing indebtedness to M. and the trustees, but they advanced money and supplies in the conduct of the business up to the amounts specified in the deed, and were repaid therefor out of the trust estate. Held, in garnishment proceedings against the trustees by an unsecured creditor, prosecuted on the theory that the trust deed was void as an assignment with preferences, that, no misconduct of the business being shown, the trustees and M. were “entitled to reimbursement, and that, the remaining assets not exceeding the secured indebtedness, which was admittedly valid, plaintiff had no cause for complaint.
    Error to Kent; Wolcott, J.
    Submitted January 10, 1902.
    Decided January 28, 1902.
    Garnishment proceedings by the City Savings Bank of Detroit against Charles Brown and Milton P. Anderson, as garnishees of the Cleveland Woodenware Company and William B. Remington. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Gordon & Kimmis, for appellants.

      Clapperton & Owen and Arthur G.. Denison, for appellee.
   Montgomery, J.

This proceeding against the garnishee defendants comes before us upon a special finding of facts for review. The plaintiff had judgment for $1,118.50 and costs, and the garnishee defendants bring error.

The facts not in controversy are that on the 28th of September, 1894, the Cleveland Woodenware Company was indebted to the State Bank of Midland, the Midland County-Savings Bank, and Filer & Sons in the aggregate amount of $25,587.36. On that date they gave real-estate and chattel mortgages covering substantially all their property, running to the two banks, and to Milton P. Anderson, as trustee for Filer & Sons, as security for the amount of these claims. On the 22d of December of the same year, the Cleveland Woodenware Company executed two instruments, one in the form of a trust deed, and the other in the form of a bill of sale, running to Charles Brown and Milton P. Anderson, the garnishee defendants herein, as trustees. These conveyances recognized the indebtedness secured by the mortgages of September 28th, provided for the payment of this indebtedness out of the property transferred, and also for the payment to Anderson and Brown of the sum of $5,000, the payment to Frank Mack of the sum of $4,000, and the payment to Henry P. Whipple of the sum of $4,000, and also any indebtedness of the Cleveland Woodenware Company to William D. Gordon, its attorney. It is the claim of the plaintiff, and the circuit judge so found, that these instruments in fact amounted to a common-law assignment for the benefit of creditors, and were open to attack by creditors as providing for unlawful preferences, and also as authorizing the trustees to conduct the business as it had been theretofore conducted by the company. On the trial of the case the circuit judge found that the indebtedness to the banks and Filer & Sons, was bona fidej that the mortgages were given and received in good faith, and were valid. The court further found that on the 22d of December the company was insolvent; that Brown and Anderson had on hand, at the time of the service of the process, $18,627 worth of property of the estate; that they owed debts, incurred in the conduct of the estate, $3,618.06, and owed the banks $19,044.66; and also found that the value of the property which the garnishee defendants held at the time of the service of the writ exceeded the amount of the indebtedness secured by the September mortgages in a sum equal to the judgment entered in this case.

The first question to be considered is whether the evidence supports this finding of fact, as, if it shall appear that nothing has come into the hands of the trustees in excess of the amount secured by the September mortgages, it would seem unimportant to inquire as to the validity of the instruments of transfer; for creditors occupying the position of plaintiff can have lost nothing by such transfer. The learned circuit judge, in determining the amount due upon these mortgages, found that Brown and Anderson paid themselves $5,000 out of the estate; that they had paid to Mack $4,000; and that they had paid to Brown, for his services, $2,500. This sum, apparently, was added to the amount on hand, $18,627, thus showing that defendants had realized a sum largely in excess of the debts remaining unpaid. It is argued here, as it evidently was in the court below, that the provision for payment to Brown and Anderson of the sum of $5,000, and for the payment to Mack of the sum of $4,000, and to Whipple of a like sum, constituted unlawful preferences, and that the payment by the trustees to these parties was unlawful, and should not be credited to them on an accounting.

We do not take this view of the transaction. It is true that the instruments of December 22d recite an indebtedness to Brown and Anderson of $5,000, and provide for their payment out of the proceeds of the property. They also provide for the payment to Mack of $4,000, and to Whipple of a like sum. The evidence on the trial discloses this state of facts: It appears that, at the time the property was taken over by Brown and Anderson, Whipple, Mack & Co. were engaged in business, and had supplies and property which it evidently was thought were of value in conducting the business. It also appears that Brown and Anderson thought it necessary to advance the sum of $5,000 for the conduct of the business. There was no pre-existing indebtedness, either to Brown and Anderson or to Whipple, Mack & Co. The indebtedness then and thereafter incurred in each instance was for property which went into the hands of the trustees, and helped to swell the total received by them in the transaction of the business, presumably by an amount equal to the sum advanced. If there has been no mismanagement of the estate (and none is shown), it would appear, then, that the property owned by the Cleveland Woodenware Company at the date this transfer was made was less than sufficient to pay the indebtedness secured by the mortgages by a considerable sum; and this is the testimony of the only witness sworn upon the subject, Mr. Brown, who says that, in his judgment, the property would not have brought to exceed $20,000 at the time the' trustees took possession. It is true, an inventory is referred to, showing the property at very much greater value; but the inaccuracy of this inventory is shown by the testimony of the trustee, Mr. Brown, which is. undisputed, that after they took possession of the property they found that the president of the woodenware company had no title to timber claimed to have been purchased from Hubbard & Dingwall, and by the fact that at this date, so far as the inventory showed, the City Savings Bank, the present plaintiff, was a debtor upon the books of the concern, rather than a creditor. We think the court was in error in his conclusion of law that, as against this plaintiff, the payment to Brown and Anderson of $5,000, and to Mack of $4,000, was unlawful. If these payments should not have been made, certainly the trustees should not be treated as having received into their possession the property for which these payments were made. The plaintiff in this case is in no position to complain of a transfer of property which had no equity in favor of unsecured creditors.

We think the judgment should be reversed, and judgment entered here for the garnishee defendants.

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


text:
    LYON v. CLARK.
    1. Bankruptcy — Fraudulent Conveyances — Preferences — Knowledge of Purchaser.
    The knowledge of a purchaser of a stock of goods from a partnership that the partners have personal liabilities, and that the firin'is indebted, without knowledge that the partnership debts exceed its assets, is not sufficient, as a matter of law, to' charge the purchaser with knowledge of the intention of the partners to make an unlawful preference within the bankruptcy act.
    2. Same — Remedy of Trustee — Trover.
    Under section 67e of the bankruptcy act, avoiding all transfers of property made by a bankrupt within four months prior to the filing of the petition in bankruptcy, with intent to defraud his creditors; and section 70, vesting the title to such property in the trustee as of the date of the adjudication in bankruptcy, — the trustee may maintain trover for property so transferred, where the transferee refuses to surrender it on demand.
    3. Same — Assumpsit.
    But assumpsit will not lie in such case, unless the [property has been converted into money or money’s worth.
    Error to Clinton; Stone, J.
    Submitted January 9, 1902.
    Decided January 28, 1902.

      Assumpsit by Willard C. Lyon, trustee of the estate of Ered E. Hazle and Frank B. Clark, bankrupts, against Nathaniel J. Clark, to recover the value of goods alleged to have been fraudulently conveyed. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      High & Everett (Spaulding, Norton & Looting, of counsel), for appellant.

      Almond G. Shepard and Edwin H. Lyon, for appellee.
   Montgomery, J.

Plaintiff is the trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, and brings this action in assumpsit to recover the value of a stock of goods alleged to have been transferred by the bankrupts to defendant within four months prior to the institution of the proceedings in bankruptcy. The circuit judge directed a verdict in favor of the plaintiff for the value of the goods. The defendant brings error. Two important questions are presented: First, whether the case was a proper one to withdraw from the jury; and, second, whether assumpsit would lie for the goods, under the circumstances of this case.

1. It cannot be denied that the circumstances made a very strong prima facie case in favor of the plaintiff. It appears that Hazle and Clark embarked in business in 1894; that the defendant is the father of Frank B. Clark; and that he advanced him $1,500 to put into the business, which was known by defendant to be all the capital which Frank B. Clark contributed to the firm. It also appears that Hazle borrowed his capital, and that Mr! Clark, the defendant, understood that fact. It appears that the parties continued in business until September 6, 1898, when, after taking an inventory, they approached defendant, and proposed to sell to him their stock; that defendant examined the inventory, which footed up something like $7,000, and made them an offer of $5,000; that, after very little delay or bargaining, this offer was accepted, and the transfer was made by bill of sale, running, not to defendant, but to his brother-in-law, Winslow M. Lamb, a gentleman residing in New Haven, Conn., and who had no previous knowledge whatever of the proposed transfer, although defendant contends that he had general authority to buy property in Mr. Lamb’s behalf. It further appears, very satisfactorily, that Hazle & Clark, at the time of making this transfer, had the purpose in mind of paying the local debts of the firm — that is, debts owing to residents of Ovid — in full, and of applying the balance in paying their remaining creditors pro rata. It also appears that defendant had his office in the store building of Hazle & ■Clark, and there was testimony which strongly tended to show that the defendant, Clark, knew of the purpose of Hazle & Clark to prefer certain of the creditors at the time he made the purchase.

The learned circuit judge evidently took the view that there was sufficient to put defendant upon inquiry as to the purpose of Hazle & Clark in making the sale. If such were the undisputed fact, we think the defendant could not maintain his claim of being a good-faith purchaser. See Hough v. Dickinson, 58 Mich. 89 (24 N. W. 809); Bedford v. Penny, 58 Mich. 424 (25 N. W. 381). It may be stated, further, that, if we were to decide this as a question of fact, we should hesitate to disturb the judgment. But a careful examination of the record, and of the testimony of Mr. Clark, the defendant, does not convince us that his testimony can be construed as admitting knowledge of any purpose to evade the law. On the contrary, his testimony tends to show that he did not know that the indebtedness of Hazle & Clark was in excess of the firm’s assets. It is true that he knew that the members of the firm had personal liabilities, and this was a circumstance bearing upon the bona fides of the transaction. But had his understanding been that, although the members of the firm may have had personal liabilities, yet they intended to sell the firm assets and devote them to the proper purpose of paying the firm debts, we think that he would not have been chargeable with knowledge of any purpose to create an unlawful preference. Without reviewing at length the testimony, we feel constrained to say that there was a question for the jury.

2. Another question arises on the pleadings. Section 67e of the bankruptcy law of 1898 (55th Cong., sess. 2, chap. 541) provides as follows:

“All conveyances, transfers, assignments, or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act, and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or incumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt, and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same, by legal proceedings or otherwise, for the benefit of the creditors.”

Section 70 provides that the trustee of the bankrupt shall be vested, upon his appointment and qualification, by operation of law, with the title of the bankrupt, as of the date when he was adjudged a bankrupt, to all property transferred by him in fraud of his creditors.

It is the contention of the defendant that, under these sections of the statute, trover could not be maintained by the plaintiff, for the reason that title had not vested in him at the time of the transfer. We do not think this position tenable. Under section 67e, the transfer was, in itself, null and void. Under section 70, title vested in the trustee, and, upon refusal to deliver up the property on demand, we think trover could be maintained.

But the present action is assumpsit, and it is further urged that, even though trover might have been proper, assumpsit will not lie to recover the value of property wrongfully converted, and which the tort feasor still retains in his possession. The rule in this State is well settled that, to entitle one to maintain assumpsit against a tort feasor who converts personal property to his own use, it must appear that the property has been converted into money or money’s worth. This is upon the ground that the owner of the property has the right, at his election, to treat the tort feasor as his agent in making the sale, and to affirm the contract as made on his behalf, and sue for the proceeds as money had and received for the plaintiff’s use. See Watson v. Stever, 25 Mich. 386. The only class of cases in which the remedy has been extended is where the remedy has been extended by statute, as in case of trespasses on real property (3 Comp. Laws, § 11207), and in cases where the property of plaintiff has passed into possession of defendant by virtue of some contract relation between plaintiff and defendant. This case does not come within either of the last-named classes, and it would follow that, as to the property not transferred, the action of assumpsit is not the proper remedy.

For the errors pointed out, the judgment must be reversed, and a new trial ordered.

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


author: Moore, J. Grant, J.

text:
    McINTYRE v. DETROIT SAFE CO.
    1. Negligence — Dangerous Premises — Platform Scale — Inspection — Question for Jury.
    Plaintiff, pursuant to his employer’s undertaking with defendant, was engaged in hauling steel from a depot to defendant’s premises, on which was a platform scale which defendant was accustomed to use. Plaintiff drove on the scale to have the steel weighed, as he had previously done, when the platform gave way, and he was injured. There was testimony tending to show that the timbers supporting the scale were rotten; and, while it appeared that the condition of the timbers could only be ascertained by taking the scale apart, defendant’s contention that this had been done, and the timbers renewed, within such time as experience had shown it to be necessary, was disputed. Held, that the question of defendant’s negligence was for the jury.
    2. Same — Overloading Scale.
    Whether plaintiff overloaded the scale was also a question for the jury, the evidence being conflicting.
    Error to Wayne; Donovan, J.
    Submitted November 22, 1901.
    Decided February 11, 1902.

      Case by John McIntyre against the Detroit Safe Company and the Pfaudler Vacuum Fermentation Company for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.
    Tarsney, Hayes, Lawson & Fitzpatrick, for appellant.

      Gray & Gray (Edwin E. Conely, of counsel), for appellees.
   Moore, J.

This action is for the recovery of damages alleged to have been sustained by the plaintiff as the result of an injury suffered on the 14th of January, 1898. The defendants are corporations doing business in the city of Detroit. For many years before 1890, the Detroit Safe Company operated a large plant between Antoine and Beaubien streets. In 1896 the Pfaudler Company commenced to do business for themselves in Detroit. The buildings of the plant occupied by the defendants were separated by a private alley about 12 feet in width. Situated in this private alley, and near the Fort-street entrance thereof, was a large, 10-ton platform Fairbanks scale, which was used originally by the defendant safe company in its business, and latterly by both defendants. The platform of the scale was 16 feet long and about 9 feet wide. After the Pfaudler Company located in Detroit, it occupied that part of the old safe company’s plant lying to the east of the private alley, the safe company continuing to keep that part lying to the west side of the alley. The scales were erected in 1889 or 1890. The beam of the scale is inside that part of the plant occupied by the safe company. At the time of the accident, the Pfaudler Company was the owner of the land upon which the entire plant was built. It is claimed by the defendant Pfaudler Company that, on the purchase of that part of the safe company’s plant used in their business, they bought everything in the way of machinery in the building, tools, etc., but that they did not buy the scales. The scales do not appear to have been excepted from the terms of the transfer. Mr. Paige, the treasurer of the safe works and manager of the Pfaudler works, says that the Pfaudler Company did not purchase the scales, “simply because they belonged to the safe company, and the beam was in their office, and nothing was said about the scales at all.” The Pfaudler Company had the use of the scales, and they were used by it to weigh what was sought to be weighed in this case, the safe company consenting to the use of the scales by the codefendant.

On the morning of January 14, 1898, the plaintiff and one George Morton, teamsters in the employ of the Shed-den Cartage Company, hauled a load of steel from the Lake Shore depot to the plant of the Pfaudler Company. The load consisted of 20 sheets of pressed steel 23 feet 9-]- inches long, and with a combined weight of 14,000 pounds. The truck and equipage weighed, one witness says, about 4,000 to 5,000 pounds, while a witness for plaintiff says it weighed 2,200 or 2,300 pounds. Plaintiff had hauled similar material to the premises of the Pfaudler Company before this time, where it was weighed upon the same scales. He drove his load upon the scales. The scales, gave way at the southwest corner, causing the sheets of steel to slide from their places, and the plaintiff was caught between the steel and the building of the safe company, and was severely injured. It is claimed on the part of the plaintiff that the timbers used in the construction of the scales had rotted, allowing one of the bolts which sustained the platform of the scales to pull through; and that defendants, by a proper inspection, would have learned of the defect, and it was negligent in them to allow plaintiff to drive on the scale under the circumstances disclosed by the record. It was the claim of the defendants that, if there was any defect, it was a hidden one. It is also claimed the scales were overloaded; that the load was not properly placed on the scales. The circuit judge directed a verdict in favor of the defendants. The plaintiff has brought the case here by writ of error.

The plaintiff insists that, as he was engaged upon the premises at the invitation of the defendants, for the purpose of weighing steel belonging to the Pfaudler Vacuum Fermentation Company, it was the duty of the defendants to see that the premises and appliances used were in a reasonably safe condition. The defendants admit that ordinarily, if there was a known defect, the defendants would be liable, unless the plaintiff was warned of the danger; but they insist there was no defect known to the defendants, and none they had reason to anticipate.

The testimony was conflicting. The witnesses for plaintiff testified that the timbers of the scale were rotten, and because of this the bolt head pulled down into the timber. The testimony on the other side tended to show there was no decay in the timber. The evidence discloses these scales were set in a pit dug in the ground. In the four sides of the pit was built a stone wall, with pockets in it, into which the ends of the levers which supported the platform could be passed and attached to bolts, which ran up through heavy timbers, which were placed on top of the wall. On the top of the timbers was a heavy planking, and upon the top of the platform there was also heavy planking, the top of the scales coming a little above the surface of the ground. This structure was exposed to the weather and to the influence of the earth coming against the sides of the timbers. It is evident the timbers were subjected to more or less moisture, which would have a tendency to cause decay.

In Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111), it is said:

“The rule may now be considered settled in this State, as well as in most of the States, not only that a master is bound to use all reasonable care in providing safe tools and appliances for the use of workmen in his employ, but that this is a duty which cannot be delegated to another so as to relieve him from personal responsibility. Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496). The duty of the master to his employé in this respect is clearly and well stated by Mr. Justice Morse in Van Dusen v. Letellier, just cited, at page 502:
“ ‘It is well settled by all the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work, and it is his duty to keep such machinery and appliances in good repair. If he cannot do this himself personally, he must provide some other person to take his place in this respect; and the person to whom the master’s duty is thus delegated — no matter what his rank or grade; no matter by what name he may be designated — cannot be a servant in the sense or under the rule applicable to injuries occasioned by fellow-servants. Such person is an agent, and the rules of law applicable to principal and agent must apply.’
“ This doctrine is also clearly stated by Justice Field in Northern Pacific R. Co. v. Herbert, 116 U. S. 650 (6 Sup. Ct. 590), where the whole question is carefully discussed, and numerous authorities in New York, Massachusetts, Maine, and other’States to the same effect discussed and approved. Four of the judges dissented from his opinion upon the ground that the case was governed by a special statute in Dakota, but expressed no opinion as to the common-law liability of the defendant under the circumstances of that case.
“In 1 Shear. & R. Neg. (4th Ed.) §§ 194, 204, this question is discussed and stated as follows:
“ ‘Seo. 194. The master also personally owes to his servants the duty of using ordinary care and diligence to provide for their use in his service sound and safe materials, instruments, and accommodations, and such appliances as are reasonably calculated to insure their safety. He is also personally bound to inspect and examine all these things from time to time, and to use ordinary care and skill to discover and repair defects in them.’
“‘Seo. 204. None of the duties which have been previously stated as devolving upon the master personally can be by him delegated to any agent so as to relieve him from personal responsibility. He may, and often must, delegate the performance of such duties to subordinates; but he remains responsible to all his servants for the acts of these subordinates in that particular capacity to the same extent as if those acts were literally his own.’”

See, also, Tangney v. J. B. Wilson & Co., 87 Mich. 453 (49 N. W. 666).

It is urged on the part of defendants that:

“ Inasmuch as plaintiff came upon the scales by the invitation of the Pfaudler Company, and simply by the license of the safe company, the plaintiff was a mere licensee. A mere licensee takes property in its existing condition, and the owner is not required to exercise that care which is demanded in the case of those who come upon the premises by invitation, expressed or implied. To the trespasser the owner owes no duty whatsoever, and the latter, who comes upon the premises in bad faith, has no relief against injury from a spring gun, trap, or other concealed danger. A licensee, who comes upon the premises with the permission of the owner, is entitled only to this additional protection: That he shall be warned of any positive danger from things which have been placed on the property by the owner; but thd owner does not owe him any duty to keep his premises, or any part of it, in good repair.”

The record does not show in a very satisfactory way just what the respective rights of the two defendants were in the scales, and the j udge did not permit that phase of the case to go to the jury, so that we are without aid from them as to how they viewed the question of fact relating to ownership. It is quite clear from the testimony that at least one of the defendants invited the cartage company, for whom the plaintiff was at work, to do the weighing of the steel upon the scales. Certainly the duty of inspection and repairing was not upon the Shedden Cartage Company. The principle involved is so fully discussed in Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298), it is not necessary to repeat the discussion here. See same case, 82 Mich. 453 (46 N. W. 733); Piette v. Brewing Co., 91 Mich. 605 (52 N. W. 152).

The question as to whether the scales were overloaded or improperly loaded was for the jury.

Judgment is reversed, and new trial ordered.

Montgomery, J., concurred with Moore, J.

Grant, J.

(concurring). The principles of law in this case are not much in dispute. The duty of an employer, or of a person inviting others upon his premises to perform labor, to properly inspect the machinery and appliances, and to provide a reasonably safe place for such work, is admitted. If the premises assumed by the circuit judge in his instruction to the jury in directing a verdict were true, his conclusion that there was no liability on the part of the defendants, or either of them, would have been correct. He assumed that the scales were repaired and new beams put in only four years before the accident, and that, four years, under the evidence, was not sufficient to work a change in the timber, and render it dangerous. Under his assumption and statement of facts the case would fall clearly within Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240). An inspection could not be made without removing the platform and taking the scales entirely apart. This the defendants would not be required to do within such a time as experience had shown that timbers could reasonably be expected to last without decay so as to become dangerous. In other words, the law requires no inspection where common experience has shown that there is no occasion to inspect. In Quincy Mining Co. v. Kitts it was established beyond controversy that the timber was sound when put in, and that, according to experience, it should have lasted several years longer than it did.

The difficulty with the instruction of the judge is in assuming that the testimony conclusively established that the timber had been in only four years. The testimony on the part of the defendants alone is not sufficient to establish that fact. The testimony on which defendants rely is that of Mr. Marschner:

“Q. When did you first do any work on the platform scales in their present position ?
“A. I think it was in 1894, — something like that. I really could not say.”

Such testimony could not be held to conclusively establish the fact that the repairs were made in 1894. Besides, one witness testified that he thought the scales had been in use 12 of 15 years without anything being done to them. If, upon the trial, it should be conclusively established that the defective timber which caused the accident was put in new in 1894, was then apparently sound, and should, according to experience, have lasted, without danger, longer than four years, the defendants would have established a complete defense. This was the pivotal question in the case, and the one upon which the judge decided it. For these reasons I concur in the reversal of the judgment.

Hooker, C. J., concurred with Grant, J.

Long, J., took no part in the decision.