author: Grant, J. Hooker, J.

text:
    GILDERSLEEVE V. HAMMOND.
    1. Lateral Support—Excavations—Necessary Precautions.
    A landowner has the right to excavate close to his boundary line, but must take reasonable precautions to prevent the soil of the adjoining owner from falling.
    3. Same—Absolute' Right to Support oe Soil.
    A landowner who takes such reasonable precautions is. yet liable for injury to the land of the adjoining owner, if the soil falls from its own pressure, and not from the pressure of a superstructure.
    8. Same—Injury to Superstructure.
    If the fall is caused by the pressure of a superstructure, reasonable precautions having been taken to protect the soil. the landowner making the excavation is not liable foT injury to either.

    4. Same.
    But a failure of the landowner to take such reasonable precautions to protect the soil in making the excavation renders him liable for the injury to both the land and the superstructure, if the soil falls solely by reason of. such failure.
    5. Same—Contributory Negligence—Estoppel.
    One who knowingly, intentionally, and willfully removes the natural support to a building belonging to another, situated 4J feet from the boundary line, by excavating upon his own land, and allowing the soil, from its own pressure, to cave in and undermine the foundation of the building, is not relieved from liability for the resulting damage by the fact that the owner of the building saw the danger, and failed to shore up the property, especially where such owner was informed by the party excavating that he would protect the building.
    Error to Calhoun; Smith, J.
    Submitted January 16, 1896.
    Decided May 26, 1896.
    Case by Mary I. Gildersleeve against Julia Hammond and another to recover damages for the undermining of a building. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    Plaintiff and defendants were the owners of adjoining lots in Battle Creek, situated in the business part of the city. Plaintiff had, several years ago, erected a building upon her lot, the lower part of which was occupied as a store by a tenant, and the upper portion by other tenants. Plaintiff had no cellar underneath her building, and it stood upon a stone wall sunk into the earth to a depth of from 20 to 24 inches, and from 12 to 18 inches above the surface, and built sufficiently strong to support the structure above it, which was a balloon frame veneered with brick. It had stood there in safety for several years. It was built 4£ feet from the division line between their lots. Defendants’ lot was at that time vacant. In 1893 the ■defendants, desiring to erect a building upon their lot, with a cellar underneath, proceeded to excavate for that purpose to the depth of between 7 and 8 feet, close to the line. The soil was sandy and gravelly, with little adhesive power, and, as the excavation went down, plaintiff’s soil caved into the excavation. Defendants took no steps to prevent the soil from caving in, or to protect plaintiff’!: building. They excavated the whole length of the building, permitting the soil to cave in, according to its natural tendency. It had fallen away from underneath the foundation wall. In consequence of this the foundation! under plaintiff’s building was undermined, and a portion! of the side of the building fell out, causing considerable damage. The defendants were cognizant of the danger. So, also, was the plaintiff, whose evidence supported the ■claim that defendants promised to protect her building. This is an action upon the case, to recover damages for “the injury. The declaration alleges that—
    “It was the duty of the defendants to use due and reasonable care and dilligence, and to excavate on their said premises in a careful, skillful, and prudent manner, and to use all proper means, and to take and exercise ■all reasonable precautions, to keep the soil from caving .away and from sliding from the plaintiff’s said premises into such excavation, and to avoid weakening or undermining the foundations of said building, and from injuring her said lands, and from destroying the walls, and from injuring the buildings aforesaid thereupon situate, and to prevent all avoidable interference with the use and occupation thereof, and to save the plaintiff from loss and permanent injury to the premises.”
    Verdict and judgment were for the plaintiff.

      Hulbert & Mechem, for appellants.

      L. E. Clawson and Fred M. Wadleigh (John C. Patterson, of counsel), for appellee.

       The cases respecting the right by prescription to lateral support for buildings are found in a note to Sullivan v. Zeiner, (Cal.) 20 L. R. A. 730.

   Grant, J.

{after stating the facts). The precise questions involved appear not to have been decided by this court. The questions are:

1. What rights does a landowner possess, in excavating close to his neighbor’s line?

2. What duty does he owe to his .neighbor, and what means, if any, must he take to protect the soil of his neighbor and prevent it from caving in?

3. Under what circumstances, if any, is such landowner responsible for damages to the superstructure erected on his neighbor’s lot?

The defendants’ positions are thus summarized:

(1) Plaintiff’s building was in a business part of the city. She was therefore bound to know that improvements would be made upon the adjoining vacant lot, and was bound, in law, to so construct her building as to allow such improvements to be made in the ordinary way.

(2) They admit that plaintiff was entitled to the natural right of lateral support for her'land from the adjoining land, and, if her land fell in consequence of such excavation, she had an action against the defendants, although the excavating was not done carelessly or unskillfully.

(3) This natural right does not extend to the artificial structures placed upon the land, and, if the plaintiff erected her house on or near the verge of her land, she had no natural right of lateral support for the building.

Plaintiff bases her claim upon the familiar legal maxim, “ Sic utere tuo ut alienum non Icedas,” insisting that this maxim applies to the case where one may, by the exercise of ordinary care and prudence, so use his own as not to cause injury to another.

The court instructed the jury as follows:

“The adjacent owner may excavate his own land for Such lawful purposes as he sees fit, provided he digs with ordinary care; and if in so doing the earth gives way, and a house upon the adjacent earth falls by reason of the additional weight placed upon the natural soil, he is without remedy, provided the adjacent owner used reasonable skill, care, and diligence in digging the excavation, and has used reasonable means to protect the adjacent lands and buildings from falling into the excavation.”

This was the groundwork of the charge, and we need not state it more fully.

The defendants’ first proposition is undoubtedly a correct statement of the law. Chancellor Wallworth, in Lasala v. Holbrook, 4 Paige, 169, thus states the rule:

“I cannot deprive him [my neighbor] of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his previous right to improve his own lot.”

Non sequitur that the excavator may dig his pit so close to his neighbor’s line that his adjacent land will fall into it, and, as it falls, draw it away, and continue this process until several feet in width have caved off, and undermined a building several feet from the line. Clearly it was not, in this case, the pressure of the building upon the adjacent land that caused the soil to cave. The soil] would have caved in, had there been no building. The caving process began almost simultaneously with the digging. Had the soil been sufficiently adhesive to leave a perpendicular surface as the excavation was made, the building would not have caused it to fall. At least, there is no evidence that it would. Therefore, the pressure of the building did not cause the soil to cave in, but the removal of the plaintiff’s soil, between the division line and her foundation ■ wall, caused the building to fall. The distinction between the two cases, and the principles governing them, is apparent.

The defendants’ second position is conceded to be the law. It is also the well-established rule that a superstructure is not entitled to the lateral support of the adjoining land, and that a landowner may remove such support for all legitimate purposes. The authorities cited by the defendants fully support this position. 2 Washb. Real Prop. 380 (*74); Lasala v. Holbrook, 4 Paige, 169 (25 Am. Dec. 524); Dorrity v. Rapp, 72 N. Y. 307; Ketcham v. Newman, 141 N. Y. 205; Gilmore v. Driscoll, 122 Mass. 199 (23 Am. Rep. 312); Schultz v. Byers, 53 N. J. Law, 442; Charless v. Rankin, 22 Mo. 566; Eads v. Gains, 58 Mo. App. 586; Larson v. Railway Co., 110 Mo. 234 (33 Am. St. Rep. 439). In order to maintain an action for injury to the adjoining land in consequence of an excavation made by the adjacent owner, no negligence is necessary. Every man is entitled to the enjoyment of his land in its natural state, and any removal of it by excavating the adjoining land is a wrong, per se, for which the law gives damages. It would seem to follow naturally that, in such excavations, the landowner is bound to the exercise of some degree of care to prevent the soil from caving in. If the soil is adhesive, so that it will remain in its natural position with the lateral support removed, obviously the excavator may excavate as deep as he pleases,—even close to the boundary line. If, in such case, his neighbor’s land caves in by reason of the pressure of the superstructure upon it, it is damnum absque injuria. But is this true of a sandy, gravelly soil ? Most of the authorities above cited recognize the duty of the excavator to use reasonable care in the performance of his work. Washburn says, at the page above cited, “Such adjacent owner may excavate his own land for such purposes as he sees fit, provided he does not dig carelessly or recklessly.” In Dorrity v. Rapp, supra, it is said:

“The owner of land, in making an excavation on his own premises which may endanger a building on his neighbor’s land, is bound to use reasonable care in the prosecution of the work, and is liable for injuries to his neighbor’s property resulting from his negligence.”

Similar expressions are found in nearly all the authorities cited; and in Eads v. Gains, supra, the court say, “The law is universal that, for the injury caused to a building by an excavation performed without ordinary care, the excavator is responsible.” See, also, City of Quincy v. Jones, 76 Ill. 231 (20 Am. Rep. 243), in which, at page 241, the court lays down the law as follows:

“ If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but, if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned.”

So, in Washb. Easm. (4th Ed.), at page 582, the editor thus states the principle:

“If the owner of the adjoining land takes away the natural support, it does not matter whether he acts with due care and is guilty of no negligence. On the other hand, this natural right of support does not extend to buildings or other additional weights superimposed upon the land, unless, either by express grant or by their existence on the land for a prescriptive period, they have gained an easement of support from the adjacent land. Until they have so acquired that right, the owner of the adjoining land may cut or dig it away as he chooses, provided he does not carelessly or wantonly deprive his neighbor of the support to his buildings; or, in other words, if the owner of the adjoining land makes excavations of such a nature that by it the adjoining land would, in its natural state, be caused to fall, without the additional weight of buildings upon it, he is liable, whether negligent or not. If the excavation is such that the adjoining soil would not have fallen, had it not been weighted by the buildings upon it, he is not liable, unless he made the excavation carelessly, negligently, or wantonly.”

Undoubtedly the courts often find difficulty in determining whether the superstructure did or did not cause the soil to cave in, but in this case we think there is no such difficulty. Plaintiff had erected a lawful building. She had placed the foundation wall 4=¶ feet from the line. It is. established by the evidence, and is also a matter of common knowledge, that the caving of the soil might have been avoided by either excavating and building the wall in sections, or by planking to keep the soil in place, as is usually done in excavating to put in sewers and water pipes in similar soil. The evidence on the part of the plaintiff further shows that, in excavations like the one now under consideration, it is common to use one of these two methods, and as the witness Sleeper, a builder of experience, aptly expresses it: “ It is a custom of common sense. It is a general custom.” Where the fact is in dispute, it must be determined by the jury; and the court in this case left it to them, although we think that he might with propriety have instructed them that there was no evidence that the building caused plaintiff’s earth to fall away. Broadly and fairly stated, the defendants’ contention is this: They had the right to excavate to the depth of 7 or 8 feet in this sandy and gravelly soil, the entire 55 feet, without any effort to prevent the plaintiff’s soil from caving in, to draw it away as it fell until it had fallen to a distance of from 4£ to 5 feet from the boundary line and reached directly under her foundation wall, and that this was an excavation in the usual manner, and with ordinary care. The proposition does not commend itself to our judgment, nor does it seem to us to be based upon sound reason, common sense, and common honesty, which are the foundation of the common law. Nor do we think that the authorities sustain the proposition. On the contrary, we think that such conduct is negligence per se, bordering upon recklessness. It is established by the evidence that the caving of the soil could have been prevented by the defendants at an expense of from $15 to $25. In Larson v. Railway Co., supra, the excavator had notified his neighbor that he should excavate and build his wall in sections. Instead of doing this, he excavated nearly the entire distance in a soil similar to that of the plaintiff, and was held responsible for injury to the building.

Our conclusion as to the law of this and similar cases is:

1. While a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor’s soil from falling.

Ü. If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructure. ,

3. If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure.

4. If he fails to take such reasonable precautions to protect his neighbor’s soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions.

It is, however, insisted by the defendants that the plaintiff was guilty of contributory negligence, in not shoring up and protecting her- own property when she saw the imminent danger. Under her evidence, the defendants informed her that they would protect her building, and this would relieve her from any further responsibility. This evidence was objected to upon the ground that it tended to prove a different cause of action from that set up in the declaration; namely, a liability arising from contract. This clearly cannot be so. It was not introduced or used for that purpose. It was competent evidence to relieve the plaintiff from the charge of contributory negligence. Larson v. Railway Co., supra. Aside from this, however, this is not a case for the application of the doctrine of contributory negligence. The defendants knowingly, intentionally, and willfully removed the natural support to the plaintiff’s building, by the removal of her own soil. The building fell while the work was going on. They knew the consequences that must inevitably follow their wrongful acts. One may not deliberately undermine my building, and then avoid the consequences by saying to me, “You might have protected it.” The rule in Richards v. Peter, 70 Mich. 290; Talley v. Courier, 93 Mich. 473; Wilson v. Railroad Co., 94 Mich. 25; and Richter v. Harper, 95 Mich. 228,—does not apply to the facts in this case. The record does not show any neglect of duty by plaintiff.

The judgment is affirmed.

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

Hooker, J.

(dissenting). In this cause it is admitted that the defendants did not take adequate means to prevent the soil from falling, and it must be conceded that whatever injuries were done to the soil that were due to that failure may be recovered for; but that is the extent of a possible recovery based upon the proposition that it was their duty to furnish adequate support for the soil in its natural state, unless it is to be also said that “ordinary skill and care” means “adequate precaution,” which can hardly be contended. If they do not mean the same thing, as,applied to such a case as this, we must conclude that the ordinary skill and care meant is such as is usual to protect the bank in its natural state, or such as is usual to protect the bank with the added weight of the superstructure, and that the test is in neither case adequacy, and that, when the ordinary care required is shown to have been exercised, the loss, so far as the building is concerned, must be borne by the owner, though he may recover for the injury to the land, if its fall was not due to the added weight. Hence it becomes important to determine the degree of ordinary skill and care mentioned, it being obvious that skin and care calculated to prevent the fall of the land and building would be greater -than that necessary to support the soil only. It is probable that where the ground is unincumbered by structures or improvements a very slight degree of care and skill is usually exercised, as the injury from a slide is generally slight in such cases, and the facility with which the ground can be restored, and the slight damage resulting, make it unusual to go to large expense in preventing it.

It is believed that the confusion arising from the decisions upon this subject is traceable to different interpretations of this rule requiring ordinary care. In the earlier cases we find nothing of this rule, the defendants being held strictly to their duty of lateral support as far as the land was concerned, and absolved from all liability for injuries to the building that fell with the soil. Peyton v. Mayor, etc., of London, 9 Barn. & C. 725; Wyatt v. Harrison, 3 Barn. & Adol. 871. But in the case of Dodd v. Holme, 1 Adol. & E. 495, the trial judge said to the jury, “ If I have a building on my own land, which I leave in the same state, and my neighbor digs in his land adjacent, so as to pull down my wall, he is liable to an action.” And he stated the question for the jury to he whether the fall was occasioned by the defendant’s negligence, in which case the verdict should be for the plaintiff. The case was disposed of in the appellate court by saying that it turned upon the defendant’s negligence, and so it sustained the proposition that a defendant may be liable for negligently causing a wall to fall, but it does not discuss the character of the negligence required to make him liable. It is noticeable, also, that this was an old house, which, under some authorities, and notably the English cases, gave the plaintiff prescriptive rights to increased lateral support. The case of Trower v. Chadwick, 3 Bing. N. O. 349, overruled a demurrer to a declaration which charged negligence in the removal of a vault, whereby another vault fell; but the declaration alleged a right to enjoy the support, and the demurrer admitted it. But, if it can he said to have turned upon the question of negligence, it does not decide what degree of care and skill was required. This case was subsequently before the exchequer chamber, where the count was held bad upon the ground that the defendant was under no obligation to give notice of the intended removal of his vault, or to shore up the plaintiff’s vault. In Bradbee v. Gov ernors of Christ’s Hospital, 4 Man. & G. 758, the case last mentioned was discussed, and distinguished from that before the court, which was for negligently permitting brick and mortar to fall through the plaintiff’s skylight, etc., and the court said: “The plaintiff, therefore, complains, not of some mere omission on the part of the defendants, but of their doing certain acts in so negligent a manner that by those very acts the plaintiff’s house was injured;” adding, “The present case is therefore very like that of Dodd v. Holme,” 1 Adol. & E. 493. These cases contain a plain intimation of a distinction between negligence in performing a lawful act, and a duty to forego a legal right, or submit to increased expense and inconvenience to protect the plaintiff’s building. See, also, Massey v. Goyder, 4 Car. & P. 165. In the case of Brown v. Robins, 4 Hurl. & N. 162, the recovery of damages resulting from plaintiff’s house falling into a mine by the wrongful undermining of the land was sustained upon the ground that the sinking of the land was in no way caused by the toeight of the house, thus impliedly recognizing the proposition that the mine owner was only obliged to protect the soil. See opinion of Pollock, C. B., page 192. See, also, discussion of English authorities in Gilmore v. Driscoll, 122 Mass. 205 (23 Am. Rep. 312).

In this country the leading case is found in Massachu- ' setts, in the case of Thurston v. Hancock, 12 Mass. 220 (7 Am. Dec. 57), decided -in 1815, which went the length of holding that 'where a house was built within two feet of the boundary, and an excavation by an adjoining proprietor made it necessary to take it down, the owner’s damages were limited to the falling of his natural soil into the pit. A more recent decision in the same State (Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 771) impliedly recognizes the doctrine under discussion, saying:

“But it was erroneous, in the absence of any proof of carelessness, negligence, or unskillfulness in the execution of the work, to add that they [the jury] might take into consideration, as an element of damage for which compensation could be recovered, the fact that the foundation of his house had been made to crack and settle.”

This subject was again before the supreme court of Massachusetts in the case of Gilmore v. Driscoll, 122 Mass. 199 (23 Am. Rep. 312), where recovery was limited. to the injury to the soil. That case, like that of Foley v. Wyeth, contains language that implies that proof of actual negligence upon the part of the defendant in the excavation of his cellar might sustain a judgment for injury to the building of his neighbor. But neither case decides the question, or intimates that the doctrine goes so far as to require a landowner to protect his neighbor’s building at his own expense.

In New York the subject was discussed in Panton v. Holland, 17 Johns. 92 (8 Am. Dec. 369), decided in 1819. In that case the court announced the doctrine that a man might be liable for doing a lawful act in the exercise of a lawful right, where it was done maliciously, although he should take care that there be no ground for the charge of negligence or nnskillfulness. But this was obiter, as that question was not in the case, which was reversed because the •court did not leave to the jury the question of negligence in the matter of taking all reasonable care to prevent the injury. The trial court had directed a verdict for the plaintiff for the value of the house. Therefore the case •can hardly be called an authority in support of the doctrine requiring ordinary skill and care beyond that necessary to adequately support the ground. See, also, Tremain v. Cohoes Co., 2 N. Y. 163 (51 Am. Dec. 284), and Radcliff’s Fx’rs v. Mayor, etc., of Brooklyn, 4 N. Y. 200 (53 Am. Dec. 357). The later cases of Dorrity v. Rapp, 72 N. Y. 307, and Ketcham v. Newman, 141 N. Y. 210, recognize the common-law doctrine, but turn on a statute covering such cases. They throw no light upon this question of negligence.

In Pennsylvania the case of Richart v. Scott, 7 Watts, 460 (32 Am. Dec. 779), holds that—

“The first builder is bound to use suitable materials, and build them skillfully; for if, upon the excavation for and construction of a house upon an adjoining lot, notwithstanding the use of proper and ordinary care and diligence, the first walls should fall in consequence of their defects, it must be regarded as damnum sine injuria.”

A judgment for the defendant was affirmed. While the court held that a charge which left the jury to consider the question of negligence did not injure the plaintiff, it used the following significant language:

“It is obvious, therefore, that in such cases the first builder, and indeed every builder, ought, in putting up his house, to do it in such a manner as to impose no unnecessary expense or burthen thereafter upon the owner of the adjacent lot when he shall come to build upon it, or to alter and remodel that which he may have put on it previously. If this rule, however, be disregarded by any one to whom a loss accrues in consequence thereof by the falling of his wall or of his house when the owner of the adjoining lot comes to build thereon, and he comes into court claiming to make the latter answerable for it, it cannot be that he is entitled to recover.”

See, also, O’Connor v. Pittsburgh, 18 Pa. St. 187. That the general doctrine obtains in Vermont, see Richardson v. Railroad Co., 25 Vt. 465 (60 Am. Dec. 283).

In City of Quincy v. Jones, 76 Ill. 241 (20 Am. Rep. 243), it is said:

“If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring' soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery ; but, if injury is done, the building by thp careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent' of the injury thus occasioned.”

In Shrieve v. Stokes, 8 B. Mon. 458 (48 Am. Dec. 401), the adjoining proprietor is said to comply with the law when he “removes his own with reasonable and ordinary care,” and that, “if he had a right to dig his cellar .to a proper and convenient 'depth, he cannot be responsible, except for the consequences of neglect in digging. ” See McGuire v. Grant, 25 N. J. Law, 356 (67 Am. Dec. 49).

In Charless v. Rankin, 22 Mo. 566 (66 Am. Dec. 642), it was held that—

“While an owner would he responsible for all damage caused by reason of an excavation having been negligently made, the instruction that he was bound to use such care and caution as a prudent man, experienced in such work, would have exercised if he had been himself the owner of the building, Ayas erroneous, and tended to mislead, as one who is proprietor of both contiguous lots might prudently subject himself to expense and inconvenience for the protection of his building that could not be justly imposed upon one making excavations upon an adjoining lot.”

It was added “that the decisive question is whether there was actual negligence in making the excavations.”

In Larson v. Railway Co., 110 Mo. 234 (33 Am. St. Hep. 439), the court held that—

“The fact that the removal of earth in sections for the foundation of a building involves some additional expense, and lessens in some slight degree the strength of the foundation wall, but not to such an extent as to impair its utility, does not excuse the failure to remove the earth in this manner, where it is necessary for the safety of an adjoining building.”

Here is the first instance found where it is held that additional expense may be required, and it is noticeable that the opinion says “that question was immaterial in viqw of other evidence,” viz., that the plaintiff had been promised that the excavation should be made in the more expensive method, upon which he was relying. It was therefore negligent to remove the support without correcting plaintiff’s understanding, and giving him an opportunity to protect his building.

In Schultz v. Byers, 53 N. J. Law, 442 (26 Am. St. Rep. 435), the supreme court of New Jersey held that failure to give notice of an intention to excavate was evidence of want of care. Here, also, a strong dissent is found, in which the authorities are reviewed.

We have before us an interesting example of the origin and growth of a rule, from repeated statements of the converse, to a point where it impinges another rule that is as well supported as any known to the law, viz., that the burden of lateral support cannot be increased to the detriment of the adjoining proprietor. It is a significant fact that, in this long array of cases, few if any grant relief upon the ground of negligence where the only negligence shown is a failure to incur expense, or build a less substantial edifice, that the previously erected building of the adjoining proprietor do not suffer injury. The Missouri case comes the nearest, but it does not unqualifiedly assert the doctrine, while the case of Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 N. Y. 200 (53 Am. Dec. 357), shows a reasonable limit to the rule. Bronson,, C. J., speaking for the court, says:

“But a man may do many things under a lawful authority, or in his own land, which may result in an injury to the property of others, without being answerable for the consequences. Indeed, an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences, may follow. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part. In the cases already put, where an action will lie, the party either went beyond the enjoyment of his own property, and entered or cast something on the l&nd of his neighbor, or he diverted a stream of water from the land of his neighbor, without having a title to anything more than the usufruct, or else he used his own property in such a negligent and improper manner as to cause an injury to another.”

The negligence dwelt upon here is that the wall was not built in sections, and that the bank was not supported, and there is testimony tending to show that either would have increased the expense to the defendants. The evidence conclusively shows that this soil was such that it would have caved, if not supported, although no building had been erected upon it. It is just as clear—because a self-evident proposition—that a stronger support would have been required to keep the bank up, with the added weight of a two-story building, than would have been necessary for the protection of the mere soil. All of this both parties knew. It was not the duty of the plaintiff to support the bank, and she might have recovered slight damage for its disturbance. It was her duty to protect her building, if it was necessary, and she had no right to require the defendants to do it, because of their duty to support the soil. It would cost her no more to protect herself, as was her duty, than it would cost the defendants to protect her; and she should not be allowed to mulct the defendants in damages for not building a support for the soil, if it is apparent that the only one that it was their duty to build (viz., one sufficient to support the soil merely) would have been inadequate, and would not have prevented the destruction. If the excavation for this wall, for its full length and depth, without protection to the bank or building, would have been followed by the fall of the building, and a support for the soil merely would not have prevented it, without materially increased expense, and the plaintiff did nothing to protect herself, though fully aware of the danger, but chose to stand upon the supposed duty of the defendants, and permit the building to fall, she could not lawfully recover for the injury to the building, unless the testimony warranted the jury in finding that the defendants, without impairing the wall, or increasing its expense materially, could have avoided the dangerous excavations in some way (e. g., by building a course of the wall from one end to the other, following closely upon the final excavation, thereby supporting the bank where fully excavated), and could also find that ordinary care and skill would prompt some such measure, and that it would have been efficacious. Whether that should have beta done or not was a question of fact, which should have been submitted to the jury. The court was not warranted in saying to the jury that :

“If you find by a preponderance of the evidence in this case that the plaintiff’s soil caved into defendants’ cellar as their excavation proceeded, and that the danger of injury to plaintiff’s building was clearly apparent, and that the defendants, or either of them, had notice of such apparent danger, it was the duty of the defendants to provide proper artificial supports to prevent the falling of plaintiff’s soil and buildings, and thereby to protect her property. And, if you find they failed to do so, the plaintiff is entitled to recover in this suit, and her damages caused thereby.”

And he thereby made the case turn upon that one proposition,—that the defendants were required by law to support that bank and building when danger threatened, at all hazards, regardless of expense. As I have attempted to show, that was requiring more than ordinary care and skill in excavating the cellar, within the meaning of the law.

I am of the opinion that the judgment should be reversed, and a new trial ordered.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WILSON v. CROSBY.
    1. Principal and Agent—Advancements—Novation.
    A collecting agent -who advances money to his principal for the debtor, under such circumstances that the latter becomes hable to the agent, rather than to the principal, cannot retain the amount of such advances from moneys subsequently collected.
    -2. Same—Application op Payments—Instructions. ,.
    An instruction, in an action against a collection agent, from which the jury would be justified in charging the defendant with payments admitted to have been made for the purpose of taking up certain notes of the debtor, which had been discounted by the defendant, and the proceeds remitted to the plaintiff, is reversible error.
    Error to Kent; Adsit, J.
    Submitted April 23, 1896.
    Decided May 26, 1896.
    Denis Clancy presented a claim against the estate of Moreau S. Crosby, deceased, for money collected by the latter as claimant’s agent. Pending an appeal from the decision of the, commissioners ' disallowing the claim, the claimant died, and the proceeding was revived in .the name of his administrator, George S. Wilson. There was a judgment, for'claimant, and Mary E. Crosby and James M. Crosby, executors of the defendant estate, bring error.
    Reversed.

      Butterfield & Keeney, for appellants.

      John S. McDonald and Charles A. Watt (M ff. Griffin, of counsel), for appellee.
   Hooker, J.

Crosby was a tenant of Clancy, and ■acted for him in the collection of rents from tenants who occupied a building owned by Clancy, in which Crosby had an office. Among others, a firm—Westlake & McIntyre—were in the habit of paying rent through Crosby upon a store which they held under a lease from Clancy at a rental of $100 per month. Previous to January 1, 1889, McIntyre went out of the firm, leaving Westlake in the store, who continued to carry on business in the firm name until August, when a firm named West & Co. purchased the business and leased the store. Westlake appears to have been liable for the rent to some time in August, and it seems to be conceded that for the latter part of the time he did not pay the rent, amounting to $133.34, which claimant claims West assumed and paid to Crosby, and that he did not pay the same to Clancy. The claimant also claims that Crosby wrongfully deducted $325 from rents received, upon the .representation that it was advanced by him, though never received from Westlake. Counsel for the defendants say that Westlake, being unable to pay the rent at times, made his promissory note, payable to Crosby, who indorsed and negotiated it at the Old National Bank, thereby obtaining the money, for which he gave Clancy credit; that afterwards he made statements to Clancy,, in which he claimed credit for such advancements to the amount of $325, and that no objection was made to them until after Crosby died, when Clancy refused to recognize such credits, and filed this claim in the Crosby estate, which was disallowed by commissioners. Subsequently Clancy died, and his representative appealed.

Several statements of account in Crosby’s writing were introduced. One dated April 6, 1889, credited Clancy with the rent of the Westlake store for the months of January and February, and other items. There were also debits, including a check, to balance the credits. A similar account, dated May 13,1889, contained credits for the rent for March and April, with similar items of debit, balancing credits. On July 3, 1889, Clancy was furnished a statement in which he was credited with rent for May and June, which, also was accompanied with check to balance. On August 10, 1889, Crosby rendered an account of $104.25 credits to Clancy, in which Clancy was charged with “Rent advanced for June for Westlake, and not paid us, $100; 5 per cent, commission on $85, $4.25,”—which just balanced the credits. The account was a part of a letter containing the following:

“The balance due us we will charge up in next account. There is due you on the old lease to August 10:
Rent for June_____________________________________________$100 00
“ “ July_____________________________________________ 100 00
“ “ one-third Aug____________________________________, 33 34
$333 34
“From August 10th to 15th, store was in possession of Hazeltine, Perkins & Co. under attachment, and they are good for the five days’ time. From August 15th, new occupants, J. C. West & Co., are responsible, and will pay.
“We shall collect, if possible, from Westlake, the $233.34 due, but lease, we think, is good as against Westlake & McIntyre for said balance. However, before asking McIntyre to pay, we would advise waiting a little for other party, as he should pay it. We had advanced quite a little more to you for Westlake, but succeeded in reducing down to amount as stated, and consider it fortunate we did so. Think you will agree with us that we did the best thing possible, and purely did as we would with our own property.
“Truly yours,
“ J. S. Crosby & Co.”

This letter was followed by a statement of September 25, 1889, as follows:

Grand Rapids, Mich., Sep. 25, 1889.
J. S. C. & CO. Cr.
By balance in full.advanced by J. S. O. & Co. for West-lake & McIntyre, not paid ($325 all told)...........- $225 00
By bal. due J. S. C. & Co. (as per Aug. statement)------- 14 25
By paid D. G. Henry & Co. for painting (per bill) ...... 14 11
By 5 per cent. com. on $226.67................-........... 11 33
$264 69
Dr.
Aug. To rent from Hazeltine, Perkins & Co____________.. §16 67
“ To rent from Williams____________________ 10 00
“ “ “ “ J. C. West & Co__________ 100 00
Sep. “ “ “ “ “ “ ________________100 00
“ “ 5 per cent. com. for Westlake, $225.00____________ 11 25
§237 92
Bal. due J. S. C. & Co____________________________________ 26 77
§264 69
Bal. in full and due from Westlake & McIntyre_________ j ^35 00
§458 34
To Aug. 10, 1889:
RENTS DUE AND UNPAID.
Westlake & McIntyre____________________________________§458 34
L. Quinsey Williams_____________________________________ 10 00
§468 34
W. & Mol., advanced by Crosby, but not paid............ §325 00
By W. & Mcl., July rent_________________________________ 100 00
Aug. rent------------------------------------------------ 33 34
$458 34.

From this it appears that Crosby was then claiming that there was due to Clancy from Westlake & McIntyre $458.34, made up as follows: $133.34 for July and August, unpaid to Crosby & Co.; $325, advanced by Crosby & Co., which they had not received,—-and this $325 they took credit for in the adjustment of the account. The parties continued to do business, and no complaint appears to have been made.

At the time that Westlake sold to West & Co., a portion of the money paid by the latter was used to take up three notes, of the character mentioned, aggregating, with interest, $320.37. It does not appear what months’ rent they were given for, but the claimant’s contention seems to be that those notes represent the $325 which Crosby took credit for, and retained by his account of September 25, 1889; and that, inasmuch as they were paid by Westlake, thus relieving Crosby from liability upon his indorsement, he was not entitled to such credit. On the other hand, counsel for defendants say that such notes did not represent such $325, but other advancements, for which Crosby was not reimbursed. Westlake was sworn, but he does not testify positively, or give the amount of advancements made by Crosby, or the items. The record shows that the deal between West-lake and West & Co. depended upon a new lease which West & Co. wanted, but which Clancy was unwilling to give without full payment to date, by West-lake, of rent. He declined to release Westlake & McIntyre from their lease unless they paid'up. Westlake testified that Crosby consented to release him, and have Clancy give the new lease, if Westlake would pay $300 on notes already given, or pay up such notes, which, when he did, were found to amount to $320.37. He stated also that he owed a balance, covering the period not covered by the notes up to the time West & Co. took possession,—August 10th. In short, there is room for the argument from his testimony that all he owed upon the lease in addition to the notes was $133.34, as claimant contends. On the other hand, there is clear evidence that these notes were all given previous to June 9th, and some of them were renewals, and the statement of September 25th was over a month after the payment of the notes at the bank by Westlake; and the subsequent dealings permit the inference that Clancy knew and was satisfied with the credit of $325 claimed by Crosby. ■ Hence we think that the case presented a question of fact in relation to this item of $325, which belonged to the jury, and the court did not err in so holding.

As to the item of $133.34, there seems to be no evidence that justifies the claim that Crosby assumed or should pay it. It is clear that it never was paid to Crosby, and the claim has no foundation to rest upon except the fact that it was included in the statement of August 10th as a debit, which was accompanied by a full explanation that it was not paid. Counsel for the claimant ask us to find that this amount was not included in the verdict, for the reason that the two items, without interest, would fall short of the verdict, while the $325 item, with interest, would approximate it closely. The record shows thi§ to be true, and, as the j ury evidently found that the claimant was entitled to a verdict for $325, the verdict was not excessive, as it fell $2 short of the amount of such sum and lawful interest. "We think there is force in the suggestion that this item probably did not constitute a part of the verdict, but it was left to the jury, and, in view of the charge, may have been injurious. We do not find it necessary that the case should turn on this question, however.

Several errors are assigned upon the charge. The court left to the jury the question whether Crosby had advanced amounts to Clancy for Westlake under circumstances which made Westlake his debtor, instead of Clancy’s, and directed them to find a verdict for the claimant if they found such to be the case. He further said to the jury that, if so, Crosby had no right to reimburse himself for such advancements out of other rents subsequently collected. All of this was proper, and the court was careful to say that this depended upon whether or not Crosby had advanced money under circumstances which made Westlake Crosby’s debtor, instead of Clancy’s. The next paragraph of the charge was as follows:

“If you find that, when West & Co. bought the West-lake stock, a certain sum was paid upon Westlake’s rent, then such payment should be applied upon Clancy’s rent, and not upon the indebtedness, if any such existed, due, as agent, Mr. Crosby, from Westlake. That covers it, I believe.”

It is beyond controversy that the money was paid upon the notes in question. Claimant’s theory was that the fact that such money was applied upon said notes precluded Crosby from recovering back the money advanced for the rent represented by said notes. This was upon the very theory that he had been made whole by the payment of said notes, or, in other words, by the application of such payment to the indebtedness due from Westlake to him, represented by said notes. But it must be remembered that Crosby did not admit that the .$325 which he retained was to reimburse him for the amount of rent represented by the notes, but for other rent advanced by him, and, if the jury so found, they were told that this money so paid must apply upon the rent due Clancy, and not upon Crosby’s indebtedness. If it be contended that they should not have so understood it under a literal interpretation of this charge, because the court made such instruction depend upon their ability to find that the money was paid upon Westlake’s rent, which, technically speaking, would not be so if it were intended to pay such notes, it may be answered that there was no propriety in leaving such question to the jury, for there was no opportunity, under the evidence, to find an intention on the part of any one that the money should be applied upon any claim except the notes in bank. It seems to us that there was no occasion for this instruction, and that, if the jury found that the money retained by Crosby was not covered by the notes, the question of payment had nothing to do with it. It placed the defendants in the position of being held liable for the money received upon said notes, and advanced, because Westlake became indebted to Crosby, and of having the money paid into bank upon the notes applied for the benefit of the claimant upon any other advancement made by Crosby, because the jury were directed to apply it to rent due Clancy, and not to the _ payment of Westlake’s obligation to Crosby. It permitted the payment to do double duty. If the jury found that the rent represented by the notes was the only money advanced, no harm resulted from this instraction; but of this we cannot be sure. Perhaps the uourt took the view that this must be found the only money advanced; but we have said that, in our opinion, this was a question for the jury.

We therefore feel constrained to hold that the judgment should be reversed, and a new trial directed. Ordered accordingly.

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


author: Long, O. J.

text:
    MASON v. CITY OF MUSKEGON.
    1. Action against Municipality—Jurisdiction.
    Under 2 How. Stat. § 6861, providing that all actions against corporations, “except municipal corporations,” may he brought before a justice of the peace in cases where they might be so brought against an individual, an action against a city must be brought in the circuit court.
    2. Same—Costs—Nominal Damages.
    A prevailing plaintiff in an action brought in the circuit court is entitled to costs, regardless of the amount of the judgment, if that court had exclusive jurisdiction of the cause of action. 2 How. Stat. § 8964, subd. 4.
    Error to Muskegon; Russell, J.
    Submitted April 22, 1896.
    Decided May 26, 1896.

      Assumpsit by Lyman G. Mason against the city of Muskegon to recover damages for a trespass upon lands. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      H. J. Hoyt, for appellant.

      H L. Delano, for appellee.
   Long, O. J.

Plaintiff is the owner of certain lots of land in the city of Muskegon. In 1893 the city, by its authorized agents, took possession of the lots in question,' and laid a sewer -lengthwise through them, claiming that the portions of the lots occupied by the sewer had been dedicated by the plaintiff as a public highway. The plaintiff commenced his action in the circuit court to recover damages for the alleged trespass, insisting that there never had been a dedication of the lots, nor any portion of them, as a public highway. The action was commenced under section 8024, 2 How. Stat., which provides that in actions of trespass the party having the right of action may waive the tort, and sue in assumpsit. Upon a trial in the circuit court upon the merits, the plaintiff had verdict and judgment for 6 cents damages and costs of suit.' The defendant appeals, and assigns as error the ruling of the court in awarding to the plaintiff his costs, upon the ground that a verdict of 6 cents would not carry costs in favor of the plaintiff. That is the only question upon which error is assigned.

Section 6861, 2 How. Stat.’, provides:

“All actions against corporations, except municipal corporations, shall be cognizable before a justice of the peace in like manner, and with the like restrictions, as the same are or may be by law before a justice of the peace when brought against an individual.”

Under this statute, the plaintiff was compelled to commence his suit in the circuit court, and is therefore entitled to recover his costs. Gurney v. Mayor, etc., of City of St. Clair, 11 Mich. 202.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    COOPER v. SMITH.
    Election of Remedies—Assumpsit—Replevin.
    By bringing assumpsit for the valúe of chattels in the possession of the defendant under an option to purchase from the plaintiff, the latter elects his remedy, and cannot thereafter maintain replevin for the property, although the suit in assumpsit has in the meantime been discontinued.
    Error to Chippewa; Steere, J.
    Submitted April 9, 1896.
    Decided May 26, 1896.
    Replevin by Ered Cooper against William S. Smith. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Holden &. Steinleih and McDonald & Chapman, for appellant.

      John W. Shine, for appellee.
   Moore, J.

Plaintiff sued defendant in justice’s court in replevin for an omnibus and one set of hub runners, valued at $40, his declaration being in the usual form. Defendant pleaded the general issue, and gave notice that he had bought the property for $40, and that he was the owner of it; that in January, 1895, the plaintiff had sued him in assumpsit for the purchase price of the omnibus, in which -suit a bill of particulars was filed, claiming pay for the omnibus, $40; that issue was joined in that case January 19, 1895, and thé cause adjourned until February 6, 1895, at which time plaintiff discontinued his suit and commenced this one; that on January 25, 1895, one Campbell sued Cooper in assumpsit as principal defendant, and garnished defendant, Smith; that, February 4, 1895, the case between Campbell and Cooper was tried, and judgment rendered in favor of Campbell for $26.80 and costs; that on January 25, 1895, a garnishee summons was issued in the above suit against defendant, Smith, and on February 26, 1895, a trial was had therein, and a judgment rendered against Smith, garnishee defendant, for $29.65 and costs, $4.15; that no appeal was taken from either of these cases.

The justice tried the case without a jury. The case was then appealed to the circuit court, where it was tried by the circuit judge without a jury. The records introduced before the circuit judge showed that proceedings had been had in justice’s court as stated in the notice attached to defendant’s plea. The circuit judge rendered judgment in favor of the defendant for the reason that Cooper, plaintiff, in suing defendant, Smith, in assumpsit, in the same matter for which he now brings replevin, had elected his remedy, and .that his election bars him in this proceeding. Plaintiff brings the case here, assigning various errors in the introduction of testimony, none of which, we think, are well taken.

If the trial judge was right in holding that, when Cooper sued in assumpsit for the same subject-matter involved in the replevin case, he elected his remedy, that should dispose of this controversy. Smith claimed that, in the spring of 1893, he bought the property of Fred Cooper, who represented that he was acting for ^Mrs. Bichley, and that the title passed to him. Cooper claimed the sale was not absolute, but that the property was stored with Smith, who was to decide later if he needed it, and, if he did, was to buy it, and pay for it, and that the title should not pass until paid for; that about July 14, 1893, Smith told him he could have neither the property nor the money. The property passed into the possession of Smith about April, 1893, and was in his possession when Cooper sued in assumpsit, declaring on all the common counts in assumpsit, and especially for one omnibus of the value of $40, and filing a written bill of particulars in which he recites that his demand is for one street bus of the value of $40. The case comes clearly within the ruling of Thomas v. Watt, 104 Mich. 201, and cases cited in the opinion therein, written by Mr. Justice Long.

The judgment is affirmed, with costs.

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


text:
    SWEET v. ELLIS.
    Statute op Limitations—Part Payment—Authority op Agent.
    The running of the statute of limitations is not arrested by a payment made by an agent of the debtor a year and a half after receiving the money from the latter with instructions to make the payment.
    Error to Van Burén; Buck, J.
    Submitted April 21, 1896.
    Decided May 26, 1896.

      Assumpsit by Martin L. Sweet, survivor of the firm of M. L. Sweet & Company, against William S. Ellis and Charles E. Knapp, for a balance due on account. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      L. A. Tabor, for -appellant.

      Titus & McNeil, for defendant Knapp.
   Moore, J.

Plaintiff sued the defendants, seeking to recover the sum of $336.14 and interest. The declaration was on the common counts in assumpsit. The defendant Charles E. Knapp pleaded the general issue, and gave notice under his plea of the running of the statute of limitations.

It was the claim of the plaintiff that, in 1886, Sweet & Co. were engaged in buying and selling grain at Grand Rapids; that defendants were partners, doing business at Coopersville; that plaintiff received a letter reading as follows:

“ Office of Ellis & Knapp,
“Proprietors of Union Roller Mills, and Dealers in Flour, Feed, and Grain.
“Coopersville, Mich., Nov. 9, 1886. “M. L. Sweet & Co.,
“Grand Rapids.
‘ ‘ Gents: Mr. Hermanee said you would deposit
money for us to purchase wheat with, with Mr. Rice. I saw Mr. Rice last evening, and made arrangements. I bought some wheat yesterday, and got the money from Mr. Rice. Please send money today. Hoping we can please you, we remain,
““Yours, etc.,
“Ellis & Knapp.
“ If you have any pointers, please let us hear from you. Also please have Mr. Flynn send us market reports.
“W. S. Ellis.
“P. S. You can send check, and Mr. Rice will cashit.”

He further claims that, after this letter was received, Sweet & Co. from time to time sent on money to Rice for defendants, amounting in the aggregate to over $3,000, and that from time to time they received wheat from the defendants; that on April 13, 1887, they received at the hands of Rice, from defendants, wheat and oats of the value of $157.33. He claims that on September 13, 1888, they received at the hands of Rice, from defendants, $29.68, leaving a balance due at that time of $336.14. The declaration was filed August 2, 1894. It is further claimed by plaintiff that the payment of $29.68 prevented the running of the statute of limitations.

It was the claim of the defendant Charles E. Knapp, and he so swore, that Ellis and he were partners simply to run a custom mill; that he never had any understanding or agreement that Ellis & Knapp were to engage in the business of buying wheat on the outside; and that he was never a partner of Ellis in buying wheat, and had no knowledge that Ellis & Knapp were buying wheat, and no knowledge of any cash being in Rice’s hands when Ellis left the mill; and denied ever making any arrangement in Rice’s store to buy grain for plaintiff. Knapp also claims that the partnership was dissolved in Decern-' ber, 1886, and that his brother, E. J. Knapp, took his place. He further claims that Ellis quit the mill in April, 1887, and that, at that time, Ellis turned over to Rice, for Sweet & Co., all of the wheat and oats on hand, and the $29.68 remaining.

Testimony was introduced tending to show the claims of the respective parties. So much of this testimony as is necessary to understand the issues raised in the case is as follows: Mr. Sweet testified that after his firm received the letter of November 9, 1886,' the firm furnished to the defendants money. He testified that he had a talk with Charles E. Knapp in July, 1894, at which time Knapp told him he was a partner with Ellis; that he borrowed the money to put into the concern. Sweet told Knapp he had come to settle, and was told by Knapp that he had not the money to pay it. He also testified that Knapp told him that Ellis and Knapp were partners in buying wheat and milling, and had not settled up their matters.

Mr. Rice testified that he knew Charles E. Knapp, and that Knapp and Ellis were engaged.in the business of general milling and buying grain; that they were in the habit of giving orders on his store; that they bought wheat for Sweet & Co.; that the business was done through Rice, or Rice & Lilley; that the checks were turned over to Ellis & Knapp; that—

“ Mr. Ellis and Mr. Knapp both came over to my store one evening, to see what arrangement they could make with me regarding money deposited with me by M. L. Sweet & Co. for them to buy wheat with. I entered into a sort of friendly arrangement and agreement with them that, if M. L. Sweet & Co. wanted to send me money, I would put it in my safe, and, when they bought any grain, they might give a little check on me, the same as they would on any bank, and, when Mr. Sweet didn’t have any money there, I would pay it out of my own, because I knew Mr. Sweet well. So we entered into a sort of a family, friendly affair, and that is the way I did business with them. * * * The money was paid out for wheat to different customers, as they came with the check of Ellis & Knapp, and called for it. * * * I think it was discovered about that time [April, 1887] that there was a shortage, or going to be a shortage, of wheat enough to pay M. L. Sweet & Co. for the amount of money that had been deposited or drawn from me by them, from me really, or from M. L. Sweet & Co. It is my impression that Mr. Ellis came to me, and asked me to come over to the mill, and weigh up what grain there was on hand, and figure it up, and then take the value there, and then the balance of the money I had in my hands, and figure up, and see how much shortage there would be, and then instructed me to turn over this stuff to M. L. Sweet & Co., with what money I had in my hands for them.
“Q. Did you do so?
“A. I did, or turned it over to somebody else with instructions from Mr. Sweet. I think I turned it over— the property in the mill—to Mr. Hermanee, the owner of the mill.
“Q. And did you return the money in your hands to M. L. Sweet & Co. ?
“A. I did.”

Rice also testified that this money was about $30, and was the last transaction of which he had any record. His further testimony in relation to the $30 was that eventually he turned it over to Sweet & Co; that it might have been a year later when he turned the money over; that it stood on his books in the name of Ellis & Knapp, as money belonging to them; that Ellis & Knapp left it with him in the spring of 1887, directing him to turn it over to Sweet & Co.; that the money was sent by him to Sweet & Co., and that he held it for Ellis & Knapp; that he never knew of any change in the partnership. It was shown by plaintiff’s bookkeeper that the money was in fact turned over September 13, 1888, and that Ellis & Knapp were at that time credited with it. E. J. Knapp gave testimony tending to show that he succeeded his brother as a partner in the firm of Ellis & Knapp, in December, 1886, and that the firm of Ellis & Knapp quit doing business in April, 1887.

After hearing counsel for plaintiff, the court, on its own motion, charged the jury as follows:

Gentlemen of the Jury: The plaintiff brings this action against the defendants, claiming to recover upon an open account for moneys advanced for the purchase of wheat by the defendants. Under the undisputed testimony in the case, all these moneys were advanced more than six years before the beginning of this suit. The plaintiff, however, seeks to avoid the effect of this fact by showing that a certain credit was given to defendants by the plaintiff for moneys paid over in September, 1888. It is, however, shown by the testimony, and there is no dispute upon that fact, that at the time these moneys were paid over, and at the time they were directed to be paid over, the defendant Charles E. Knapp was not a member of the firm of Ellis & Knapp at all, so that this could not properly be a credit to that firm. This action was brought against both Ellis and Knapp, but the files of the case show that there was no service upon any one except the defendant Knapp, so that, if the action fails as to him, it must fail as to both; and, the plaintiff not having made out a case of any promise within the last six years, the defendant’s notice under his plea that there was no promise within six years must prevail, and your verdict should be for the defendant.”

Enough of the testimony has been cited to show that it was a disputed fact as to whether the partnership had ended when the payment of $29.68 was made; it being the claim of the plaintiff that as late as July, 1894, defendant Knapp admitted the partnership to be yet in existence. It does, however, appear, beyond any controversy, that no wheat was bought or milling done by the firm of Ellis & Knapp after April, 1887, and that on that date they turned over to Rice for Sweet & Co. all the ■oats and wheat on hand, and the money, amounting to #29.68, still in his hands, with directions to deliver it all to Sweet & Co.' Rice did deliver the wheat and oats to Hermanee for Sweet & Co., April 13, 1887; and on that ■date Ellis & Knapp were credited with the value of the wheat and oats. Rice did not turn over the money until September 13, 1888, when Ellis & Knapp received a •credit for it. There is nothing in the record to show that defendants expected Rice to retain this money, and the sole question is whether this payment by Rice, a year after the-money was turned over to him, made without the knowledge of the defendants, will prevent the running of the statute of limitations.

Statutes of limitation are now generally considered to he statutes of repose, and any act or declaration which is to postpone their effect is closely scrutinized. 13 Am. & Eng. Enc. Law, 750; Ten Eyck v. Wing, 1 Mich. 40. In the Case of Ten Eyck there is a full discussion of the law as it existed in the State as long ago as in 1848. It was then said “that, whenever a new promise is set up to remove the bar of the statute, it ought to be proved in a clear and explicit manner, either expressly or by such an unqualified acknowledgment as authorizes its implication.” An acknowledgment, or a payment which is to operate as -an acknowledgment, must be made by the debtor or his authorized agent. 13 Am. & Eng. Enc. Law, 760, and a large number of cases there cited. If Rice is regarded as the agent of Sweet & Co., then the payment was made in April, 1887, more than six years before the statute was to run. If he is regarded as the agent of Ellis & Knapp, then he was bound to turn in the property as directed. He did turn over the oats and wheat in April, 1887. 'There is nothing in the record from which an inference can be drawn that he was authorized by defendants to hold the money a year and a half, and then make a payment that would prevent the statute of limitations running in their favor.

“The rule is well settled that part payment is but evidence of an admission of an indebtedness; but an admission of an indebtedness, to take the case out of the statute, must be such as reasonably leads to the inference that the debtor intended to renew his promise to pay.” Lester v. Thompson, 91 Mich. 254.

Authority given in April, 1887, to turn over money then in hand, would not authorize the making of a payment in September, 1888, that would take the claim out of the statute of limitations. No injustice was done the plaintiff by the circuit judge in taking the case from the jury.

The judgment is affirmed.

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


text:
    KREMENTZ v. HOWARD.
    1. Garnishment — Possession op Mortgaged Property—Evidence.
    In garnishment proceedings against a chattel mortgagee, declarations made in his absence by those in apparent possession of the goods, tending to show that the' garnishee was then in possession, are not admissible.
    3. Same.
    In such case, as bearing upon the issue whether the garnishee was in possession at the time of the service of the writ, evidence that, on the day after such service, he made a written demand for the possession of the goods, and that the board of directors of the mortgagor, a corporation, formally acted upon such demand, and turned the goods over to him, is admissible.

      3. Assignment por Benefit op Creditors—Parties —Res Judicata.
    Whether a decree affirming the validity of a chattel mortgage, in a suit wherein the general assignee of the mortgagor is a party, is conclusive upon an unsecured creditor of the latter, who had instituted proceedings to test the validity of the mortgage prior to the assignment,—queere.

    4. Fraudulent Conveyances — Mortgage Securing Several Debts.
    That one of the debts secured by a. chattel mortgage is fraudulent does not invalidate the mortgage as to the other creditors named therein.
    5. Same—Trusts—Rights op General Creditors.
    An unsecured creditor cannot complain that moneys in the hands of a trustee for preferred creditors were applied to the payment of a fraudulent claim, where the total amount coming to the possession of the trustee was insufficient to pay the valid claims so secured.
    Error to Wayne; Donovan, J.
    Submitted April 22, 1896.
    Decided May 26, 1896.
    Garnishment proceedings by George Krementz and another against Robert R. Howard, as garnishee of E. G. Smith, Sons & Company. Erom a judgment for the garnishee defendant, plaintiffs bring error.
    Affirmed.

      Julian G. Dickinson, for appellants.

      Wells, Angell, Boynton & McMillan, for appellee.
   Moore, J.

This action was begun by writ of garnishment in the usual form, dated March 16, 1894. The writ was served on the defendant the same day it was issued. April 3, 1894, the garnishee defendant filed his disclosure, denying the possession of any property-belonging to E. G. Smith, Sons & Co., or any indebtedness to them. April 9, 1894, plaintiffs demanded an oral examination of the garnishee defendant before a circuit court commissioner. This was had, and reported - by him. Afterwards 'a statutory issue was framed and tried, and a verdict returned by the jury in favor of defendant.

On the trial of that issue, a chattel mortgage dated November 20, 1893, made by F. G. Smith, Sons & Co. to Robert R. Howard, as trustee for certain creditors, was received in evidence. A list of the creditors for whom Howard was acting as trustee was given in the mortgage. The debts thus secured amounted to upwards ■of $78,000. The mortgage contained the following language:

“To Mira J. Smith, of said Detroit, upon a promissory note made by the party of the first part, dated January 8, 1892, payable six months from date, in the amount of $6,000, bearing interest at the rate of 7 per cent, per annum, upon which interest is due from its date at said rate. * * * It is believed by the party of the first part that the parties above mentioned are the present Folders of tFe said promissory notes; but it is declared Fy tFe party of the first part to be its intention by this instrument to secure the payment of said notes, by whomsoever held at this time or at any time hereafter, and also to secure any and every other or different indebtedness existing on its part to any of the parties hereinbefore named. ”

After the chattel mortgage was given, it was filed, and. the mortgagors remained in possession for a time, and .made sales, turning over about $41,000 to the trustee, who applied it pro rata among the creditors listed in the chattel mortgage,' including Mira J. Smith, the wife of F. G. Smith, Sr.

Mr. Howard, the trustee and mortgagee, claimed upon the trial in the court below that he did not take possession of the mortgaged property until March 17, 1894. It was claimed by the plaintiffs that he took possession before then, and was in possession when the writ of garnishment was served upon him, March 16th, and to support their claim they sought to show statements made by F. G. Smith, Sr., and others, in the absence of Mr. Howard, mortgagee, as to who was in possession. This testimony was excluded, and its exclusion is assigned as error. I have examined with care all of the cases cited by appellants’ counsel. I do not think that any of them sustain the contention that this testimony was admissible. It is evident that unless the garnishee defendant had property in his possession, or under his control, belonging to F: G-. Smith, Sons & Co., or was indebted to them, when he was garnished, he would not be liable in this proceeding. We do not think his liability, growing out of the possession of the stock, can be created by statements made in his absence -by persons then in possession, simply because they seemed to be in possession. Before he could be bound by their statements, it must be shown either that their possession was his possession, or that they were authorized to speak for him; and that was the very controversy at issue. It is suggested that the statements of co-conspirators are always admissible against all of the conspirators. That is true, but there is nothing in the record indicating any conspiracy on the part of Mr. Howard.

Howard was allowed to show that on March 17th he made a written demand for the possession of the stock, and that the board of directors formally acted upon that demand, and turned over the stock to him. This is urged as error, but we think it was proper to show in just what way, and when, Mr. Howard took possession of the stock.

On March 19, 1894, F. G. Smith, Sons & Co. made a common-law assignment to Herbert E. Boynton, assignee, for the benefit of creditors. Boynton accepted the position as assignee, and filed a bond in the sum of $250,000. March 14th Howard filed a bill to foreclose the chattel mortgage. March 19th F. G. Smith, Sons & Co. filed an answer. A replication was filed March 20th, and an order was entered referring the matter to a circuit court commissioner to determine the amount due. March 23d Mr. Boynton, assignee, filed a petition setting forth the assignment to him, and praying to be made a party defendant in the cause. The solicitors for the complainant assented, and an order was entered making him a party defendant. On March 27th the commissioner made his report of the amount due on the chattel mortgage to be $38,420, including the debt of Mira J. Smith, and $3,000 for the services of the trustee and his solicitors’ fees. A decree was entered for that amount. The sale was made to Frank Gf. Smith for $45,625. The commissioner’s report of the sale was filed April 9th, and confirmed. The assignee afterwards paid from the proceeds of this sale to the plaintiffs in this proceeding $137.38, and took their receipt therefor.

In the trial of the cause the circuit judge charged the jury that' the only question for them was whether the garnishee defendant, Robert R. Howard, was in the possession and control of the property described in the mortgage when the garnishment was served upon him, March 16, 1894; that the claim of Mira J. Smith must be treated as res adjudicaba, inasmuch as it had been passed upon in the chancery proceeding to foreclose the chattel mortgage. The trial judge refused to submit the question as to whether the claim of Mira J. Smith was a fraudulent one, or whether it was sufficiently described in the chattel mortgage to authorize the trustee, Mr. Howard, to pay it. The charge as given, and his refusal to charge as Stated, is alleged to be error.

The chattel mortgage, after naming the creditors who were intended to be secured by it, and the amount of their indebtedness, made this provision

“It is believed by the party of the first part that the parties above mentioned are the present holders of the said promissory notes; but it is declared by the party of the first part to be its intention by this instrument to secure the payment of said notes, by whomsoever held at this time or at any time hereafter, and also to secure any and every other or different indebtedness existing on its part to any of the parties hereinbefore named. ”

This clearly indicates an intention to ■ secure the payment of the indebtedness to Mrs. Smith. Mrs. Smith had a right to have this debt secured. Sweetzer v. Higby, 68 Mich. 22, and cases there cited; Root v. Potter, 59 Mich. 506. And we think it was the duty of the trustee, under the facts shown in the record, to pay her, the same as the other named creditors.

As to the question of res adjudicata, and the charge of the court in relation thereto, it was held in Sweetzer v. Higby, supra, 'that the assignee is the trustee of all the creditors. In Kennedy v. Dawson, 96 Mich. 79, it is held that he is a representative of all the creditors. Should this view be accepted, his appearance in the chancery case would be their appearance. We, however, do not deem it necessary to determine that question. It is well settled that fraud is not to be lightly presumed. Circumstances of mere suspicion are not sufficient to warrant the conclusion of fraud. Buck v. Sherman, 2 Doug. (Mich.) 182; Fraser v. Passage, 63 Mich. 555. There is nothing in the record from which can fairly be drawn an inference that the debt of Mrs. Smith was a fraudulent one, or that the insertion of her name in the chattel mortgage was fraudulent. Should it be conceded that the debt of Mrs. Smith was fraudulent, it would not invalidate the chattel mortgage as to the other creditors named therein. As no claim is made that these were not valid debts, the mortgage would be good as to them. Adams v. Niemann, 46 Mich. 135; Walker v. White, 60 Mich. 428; Warner v. Littlefield, 89 Mich. 337; Jones, Chat. Mortg. § 336. If Mrs. Smith’s debt were left out of consideration, Mr. Howard did not have in his hands, at the time the granishee writ was served on him, enough money, by over $30,000, to pay the other creditors named in the mortgage. If he paid any money to Mrs. Smith, it was money that came to him as trustee, and was held in that capacity. The creditors named in the chattel mortgage were entitled to it, if Mrs. Smith was not. So that, in any view of the case, the only question for the jury was whethér Mr. Howard was in possession of the mortgaged property at the date of the serving upon him of the writ of garnishment.

The judgment is affirmed.

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


author: Hooker, J. Per Curiam.

text:
    AUDITOR GENERAL v. GURNEY.
    1. Taxes—Invalid Equalization—Reassessment.
    A judicial determination that certain taxes are invalid for want of a lawful equalization does not preclude a reassessment against the same land, in accordance with section 96, Act No. 206, Pub. Acts 1893, for such taxes as are not dependent for their validity upon the equalization.
    2. Same.
    A reassessment against the land for the entire amount of the taxes so rejected will be held illegal only as to those taxes which are so dependent upon the equalization.
    Appeal from Oceana; Russell, J.
    Submitted April 10, 1896.
    Decided May 26, 1896.
    Rehearing denied July 8, 1896.
    Petition by Stanley W. Turner, Auditor General, for the sale of lands delinquent for the taxes of 1893. From a decree setting aside certain taxes, reassessed with the taxes of 1893 for the taxes of 1890, upon objections filed by Theron S. Gurney, petitioner appeals.
    Modified and affirmed.

      L. M. Hartwick, for petitioner.

      Bundy & Travis, for defendant.
   Hooker, J.

Certain taxes levied upon defendant’s land for the year 1890 were held to be illegal for want of a lawful equalization, and the court so decreed upon petition filed by the auditor general. This decree was rendered in the spring of 1893, and these taxes were included in the statement of rejected taxes forwarded by the auditor general. At its following October session the board of supervisors adopted the following report of its committee to which the statement was referred:

“To the Hon. Board of Supervisors of Oceana Co., Mich.
“ Gentlemen: Your committee on rejected taxes respectfully report and recommend that the following amounts be reassessed on the same description in the several townships as set forth in the statement hereto attached and made a part of this report. All of which we respectfully submit.
“Charles W. Brown,
“R. B. Artlip,
“E. L. Benton,
“ Committee.”

On petition filed by the auditor general for an adjudication upon delinquent taxes of 1893, the court decreed the new levy to be illegal, because of the former adjudication, as to the tax of 1890, and rendered a decree for the regular tax of 1893 only.

The invalid equalization of 1890 rendered so much of the tax for that year illegal as was affected by or dependent upon the equalization. The amounts of county and State taxes were so dependent. On the other hand, township, school, and other local taxes, and levies wherein the rate is definitely fixed by law, would not be; and as to such as were not, the court might have rendered a decree in favor of the State. Apparently, however, the entire tax was held invalid, and the board seems to have reassessed all. The record states that such decree was based upon an invalid equalization, and, if this is true, it is plain that some of such taxes were absolutely void, while the remainder were as plainly valid. The former could not lawfully be reassessed against the same land, for there is no method for supplying the necessary equalization. On the other hand, there is nothing to prevent such reassessment of the latter, unless the decree must be held to be an adjudication that they are absolutely void, or the statute permitting such reassessment cannot be held applicable to taxes rejected by the court, because intended only to reach rejections by the auditor general.

The law makes it the duty of the auditor general to make a statement of rejected taxes, which are withheld from sale, and forward the same to the county treasurers, the amounts being charged back to the county. Pub. Acts 1893, p. 398, §§ 95, 96. If they have not been paid, and are taxes which were lawfully ordered, they may be reassessed, either upon the identical lands or the township at large. Id.; Pub. Acts 1889, p. 260, §§ 80-82; Pub. Acts 1891, p. 312, § 70. It is manifest that rejected taxes, whether rejected because of irregularities discovered by the auditor general, or those which come to his notice by adjudication, must be charged back to the counties, inasmuch as the counties have previously received credit for them when they were returned; and they must all be reassessed in one form or another in order to make the county whole. Where the decree upon its face conclusively shows that the sale was denied upon a ground which should not preclude reassessment upon the land previously assessed, no good reason occurs to us why we should say that the owner should be relieved at the expense of the township. In this case it does so appear, and we think that the decree appealed from was erroneous in holding the tax of 1890 illegal as to the township, highway, school, library, and mill taxes. Chamberlain v. City of St. Ignace, 92 Mich. 332; Shelden v. Toionship of Marion, 101 Mich. 256. To that extent it should be modified, and in other respects affirmed.

Ordered accordingly.

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

ON APPLICATION FOR REHEARING.

Per Curiam.

Counsel for the appellee apply for rehearing on the ground that “the court has either misapprehended the facts or established an erroneous rule of law.” In other words, we understand that the motion is based upon the proposition that the rule laid down can only be sustained by showing that the facts are as stated by the court, as we can hardly believe that counsel intended to be understood that, if the court was wrong about the facts, it was wrong in its legal conclusion, but that, if not wrong about the facts, it was, nevertheless, wrong in its legal conclusion. The alleged error of fact is that the record states that the decree against the tax of 1890 was upon an invalid equalization.

A re-examination of the case shows the following: Appellant’s brief (page 1) asserts that—

“Said taxes of 1890 were rejected by the circuit judge on hearing of petition at the March term of court, 1893, on the ground that there had been no valid equalization by the board of supervisors.”

The brief for the appellee (page 1) says:

“A hearing was had on the merits before the circuit court for the county of Oceana, in chancery, and a decree rendered in favor of the defendant against the auditor general, holding these taxes to be illegal, because there was no valid equalization by the board of supervisors of Oceana county for that year.”

The appellee’s answer in this proceeding, as shown on pages 3 and 4 of the record, contains the following state- • ment, viz.:

“And said Gurney objects to said amounts aforesaid, for the said pretended taxes of 1890, for the reason that no sufficient notice by publication as to such taxes has been given, and because said former decree on said taxes is a valid and binding adjudication that said taxes were and are illegal, and, having been adjudged to be illegal, and rejected in such proceeding, cannot be decreed to be a valid or legal claim against said lands, and because there was no valid and sufficient equalization of the taxable property in said county in the year 1890 as required by law.”

From the foregoing we may fairly conclude that the decree in the original case, interpreted by the record, denied an order of sale as to the lands in controversy upon the ground that there was no proper equalization, as admitted in the brief of counsel.

A rehearing will be denied.


author: Montgomery, J.

text:
    HARRISON v. HOWE.
    1. Slander of Title—Landlord and Tenant—Malice.
    The false statement of a lessor that his lessee has no right to sublet for saloon purposes is not actionable if made without malice, although an opportunity to sublet is thereby lost to the lessee.
    2. Same—Evidence—Question for Jury.
    Where it appears in an action upon such statement that the lease authorized the plaintiff to sublet for business purposes, and that he himself had, to the lessor’s knowledge, sold liquors while occupying under, such lease, the question of malice is for the jury.
    8. Written Contract—Parol Evidence—Terms of Lease.
    In an action between the parties to a lease for slander of title, parol evidence is inadmissible to show that contemporaneously with the execution of the lease, providing in terms that the lessee might sublet for “business purposes,” there was a verbal agreement that he should not sublet for a saloon.
    4. Trial—Court Rules—Arguments or Counsel.
    Circuit Court Rule No. 63 provides that “not less than one hour on each side shall be allowed to counsel, if desired, in summing up a causeand a trial judge is therefore in error in limiting arguments to 10 minutes on a side. *
    Error to Bay; Maxwell, J.
    Submitted April 21, 1896.
    Decided May 26, 1896.
    Case by George Harrison against Moses Howe for slander of title. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lee E. Joslyn, for appellant.

      G. H. Francis and Lyon & Pierce, for appellee.
   Montgomery, J.

This is an action on the case, brought by the plaintiff to recover damages for an alleged statement made by defendant as to the plaintiff’s right to lease a certain piece of property on Midland street, West Bay City. Plaintiff was defendant’s tenant, and held by virtue of a 12-year lease executed in March, 1886. Plaintiff built a building on the land, and rented it for an hotel, in which liquors were sold. Subsequently the hotel burned, and the building was rebuilt one story, .and since that time has been used for various purposes. The building has two parts, each with a rental value of about $12 per month. Plaintiff, through his son as agent, sought to sublet one of these departments to one Fournier, to be used for saloon purposes. Plaintiff’s testimony tended to show that Harrison and Fournier had completed arrangements for the lease at a monthly rental of $12, when the latter had a conversation with the defendant, Howe, and was told by him that Mr. Harrison could not rent the building, according to the contract, for saloon purposes. Fournier also testified that Howe objected to having a saloon on the premises, and because of said objections, and Howe’s statement concerning plaintiff’s right to lease, he refused to rent the premises. Plaintiff claims that through Fournier’s refusal to take the place it was without a tenant for five months. Plaintiff brought suit, and recovered judgment in both the justice’s and the circuit courts for the sum of $52.40.

Defendant, on the trial, offered testimony tending to show that, at the time the lease was made, plaintiff had orally agreed not to sublet the premises for a saloon. It also appears that the plaintiff, on learning of defendant’s statement to Fournier, showed defendant the lease, and called attention to the clause which gave him the right to sublet for “business purposes,” and the defendant then stated that he did not know that the clause was in the lease, and went with him to Fournier, and told him that he could go in, but Fournier had then rented another place.

The defendant’s counsel asked the court to charge the jury that this claim was not actionable, even if the defendant had failed to prove that what he said as to his claim of title was true, unless the jury should find that the defendant used the words and said what he did with express malice. The circuit judge refused this request, and charged the jury as follows:

“ If the landlord interferes with the possession, or by his own conduct prevents the tenant from the enjoyment of the property to the full extent of the lease, he is liable in an action on the .case for the damages which ensue, and it is not necessary that there should be any malice about it. Everybody is liable for the effect of his conduct.”

This is not a case of manual interference with the tenant’s possession. The plaintiff’s right of recovery, if any, rests upon a false statement of defendant affecting plaintiff’s right in the property; in other words, a slander of title. The fact that plaintiff derived his title from defendant does not determine the question, except as the defendant’s knowledge of the plaintiff’s rights bears upon the question of motive or want of good faith in the claim. One of the leading cases of slander of title (Smith v. Spooner, 3 Taunt. 246) was a case where the relation of tenant and landlord existed between the parties, and it was held that an assertion of title by the defendant .was not actionable unless malicious. In this case the defendant had title to the fee. He was interested in the character of the occupancy, and his assertion related to the rights of the plaintiff in this regard; in other words, affected the title of the plaintiff. Now, if this assertion was untrue and malicious, the plaintiff can maintain an action, but the action does not lie in the absence of malice. Walkley v. Bostwick, 49 Mich. 374. The rule is correctly stated in Newell on Defamation, 206:

“The mere fact that a person asserts a claim- to the property which is unfounded does not warrant a presumption of malice. Malice must be proved as a substantive fact. * * * So it is not actionable for any man to assert his own rights at any time; and, even where the defendant fails to prove such right on investigation, still if, at the time he spoke, he supposed in good faith such right to exist, no action lies. Hence, whenever a man claims a right or title in himself, in possession or in remainder, it is not enough for the plaintiff to prove that he had no such right; he must also give evidence of express malice; that is, he must also attempt to show that the defendant could not honestly have believed in the existence of the right he claimed, or at least that he had no reasonable or probable cause for so believing. _ If there appear no reasonable' or probable cause for his claim of title, still the jury are not bound to find malice. The defendant may have acted stupidly, yet from an innocent motive.” See, also, 13 Am, & Eng. Enc. Law, 368.

It is true that in this' case there was evidence which would have fully justified the jury in reaching a conclusion that there was malice in fact, consisting of the evidence that the lease to plaintiff actually authorized him to sublet for business purposes, and of the further fact that the plaintiff himself had, while occupying under the lease, used the premises for an hotel in which liquors were sold. But the question whether there was malice in-fact was for the jury. As was said by Mr. Justice Champlin in Bacon v. Railroad Co., 66 Mich. 173:

“The effect of showing that the communication was made upon a privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact; that is, that the defendant was actuated by ill will in what he did and said, with a design to causelessly or wantonly injure the plaintiff; and this malice in fact, resting as it must upon the libelous matter itself and the surrounding circumstances tending to prove fact and motive, is a question for the determination of the jury.”

If, however, the defendant, at the time he spoke the words, knew what he said was false, and the statement was one calculated to result in the injury of another in his character or property rights, the jury should certainly find malice. Newell, Defam. 207, 322. And if the evidence conclusively established that the defendant in this case, at the time of the statement to Fournier, knew and had in mind the facts as to the stipulation in this lease, and their legal effect, we might be able to say that the plaintiff was entitled to a direction. But the malice in fact must exist at the time the words are spoken, and it follows from this that it would be competent for the defendant to show that he was mistaken as to the facts, or that he had forgotten facts previously known to him.

We do not think that it was competent for the defendant to show that, previously to or contemporaneously with the execution of the lease, there was a parol agreement not to sublet for a saloon. The action is between the parties to the lease, and they are conclusively presumed to have reduced this agreement to writing. 1 Greenl. Ev. § 281, and cases cited in note.

The court was in error in limiting the argument to 10 minutes on a side. Cir. Ct. Rule No. 63.

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

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