author: .Carpenter, J.

text:
    LEWIS v. BOARD OF EDUCATION OF CITY OF DETROIT.
    i. Certiorari — Practice—Questions Considered.
    On certiorari to review the action of the lower court this court can reverse only for objections presented by the record to the court below and assigned by the petition for the writ.
    3. Mandamus — Practice—Issues—Pleadings — Replication and Rejoinder.
    The only pleadings contemplated by our mandamus practice are the petition and answer, replication and rejoinder being unauthorized.
    3. Same — Determination of Issues.
    Where no issues are framed, mandamus proceedings are disposed of on the issue raised by the petition and answer, it being assumed that all averments of fact in the answer and all material allegations in the petition, not specifically answered by the respondent, are true as alleged. Circuit Court Rule 46 c.

      4. Municipal Corporations — Public Improvements — Contracts —Union Labor Clause.
    The board of education of the city of Detroit has no power to require contractors constructing public buildings to employ union labor exclusively.
    Certiorari to Wayne; Hosmer, Donovan, Frazer, and Rohnert, JJ.
    Submitted February 7, 1905.
    (Calendar No. 20,752.)
    Decided March 7, 1905.
    Mandamus by Henry B. Lewis to compel the board of education of the city of Detroit to award a contract to relator. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      George F. Monaghan, for relator.

      James H. Pound, for respondent.
   .Carpenter, J.

Certiorari to review mandamus proceedings. Relator was the lowest bidder — he was, in fact, the only bidder — for the steelwork of a school building which respondent had decided to erect. Later respondent adopted the recommendation of a committee that the contract be awarded to relator. Still later respondent passed the following resolution:

“Resolved, that all contracts for the erection of the Goldberg school [the school for which relator had made his bid] be awarded to the lowest bidders for the several classes of work: Provided, they agree to insert in their contracts an agreement to employ union labor exclusively, and that where the lowest bidder refuses to insert such clause in his contract, the contract be awarded to the next higher bidder who will agree to insert such clause in his contract.”

Relator formally offered, and respondent formally refused to sign, the contract according to his proposal, with the union labor clause stricken out. Relator thereupon commenced these proceedings in the Wayne circuit court. A hearing was had before Judges Hosmer, Donovan, Frazer, and Rohnert, who granted a mandamus directing said respondent to execute said contract with the union labor clause omitted. Those proceedings are brought to this court for review.

We must determine at the outset precisely what objections are open to our consideration. It is quite clear that we are not at liberty to look through this record for the purpose of ascertaining what, if any, valid objections might be made to the order of the trial court. We have a right to reverse such order only for objections presented by the record to the court below, and objections assigned by respondent’s counsel when he obtained the writ of certiorari. See City of Monroe v. Board of Sup'rs of Monroe Co., 137 Mich. 638. The petition upon which the writ of certiorari was granted assigns no error but this: ‘ ‘ They do not believe the decision of the circuit court in this case to be according to law, and they pray * * * that the decision * * * may be reversed, vacated, and set aside.” Under these circumstances, it is no injustice to the respondent if we look at the brief accompanying said petition, to ascertain its objections. In that brief it is said :

“Really, there are but these two points to decide in this case: First. Has the board of education of the city of Detroit the discretionary power to authorize it to segregate the labor it wishes to buy, so that it may buy a standard kind or class; not, however, presuming to dictate as to individuals ? Second. EveD if the respondent was wrong, upon the facts shown, of but a single bid, should not the order of the circuit court to the board of education have been to readvertise for proposals to be made in the open market, without any limitations thereon whatsoever ? ”

Under the rules applicable to certiorari proceedings, we can reverse the order of the lower court only on one of these two grounds.

Turning now to the record in the court below, we find in respondent’s answer that only the first of these grounds is urged as a reason why the writ should not issue. It is true, other reasons are stated in a rejoinder of respondent to a replication of relator, but neither this replication nor this rejoinder was authorized by proper practice. See Circuit Court Rule 46c; Supreme Court Rule 13; Just v. Township of Wise, 47 Mich. 511. To make this clear, we undertake to state the practice to be pursued in mandamus proceedings: Our practice in these proceedings was designed to be simple and expeditious. The only pleadings contemplated are relator’s petition and respondent’s answer or return. If relator desires to controvert the facts stated in the answer, issues may be framed under the direction of the trial court. While, for the purpose of framing these issues, the trial court may permit relator to file a replication (see Wagner v. Gladwin Circuit Judge, 131 Mich. 129), the more common and expeditious practice is to-dispense with the replication altogether and to state such issues in the form of questions on the coming in of the answer. See Just v. Township of Wise, supra. If no issues are framed — and none were in this case — the proceeding is disposed of on the issue raised by the petition and answer. In determining this issue, it is assumed that all averments of fact in the answer (see Loomis v. Rogers Township Board, 53 Mich. 135), and “ all material allegations of the petition * * * not specifically answered by the respondent,” are “ true as alleged.” See Circuit Court Rule 46, subd. c. It follows that the trial court in this case was not called upon to examine respondent’s rejoinder, and it is not to be presumed that it did examine it, for the purpose of finding issues not made by the petition and answer.

We conclude, therefore, that the only ground upon which we may reverse the order of the lower court is that respondent had discretionary power to insert the union labor clause in relator’s contract. Had it ? It is respondent’s purpose, as shown by the resolution heretofore quoted, to have its work performed by union labor, even though it increased the cost to the taxpayers. We are all of the opinion that it cannot effect this purpose, and that it has no power to require contractors constructing public buildings to employ union labor exclusively. The reasons for this conclusion are so clearly stated in a similar case by the supreme court of Illinois, in Adams v. Brenan, 177 Ill. 194 (42 L. R. A. 718), that we content ourselves with quoting from that opinion:

“ The contract tends to create a monopoly, and to restrict competition in bidding for work. The board of education may stipulate for the quality of material to be furnished, and the degree of skill required in workmanship ; but a provision that the work shall only be done by certain persons or classes of persons, members of certain' societies, necessarily creates a monopoly in their favor. The effect of the provision is to limit competition by preventing contractors from employing any except certain persons, and by excluding therefrom all others engaged in the same work, and such a provision is illegal and void. * * * No question concerning the merits of labor or trades unions is in any way involved in this case. The right of organization for mutual benefit in all lawful ways is not denied. The question is whether the board of education has a right to enter into a combination with such an organization for the expenditure of the taxpayers’ money for the benefit of members of the organization, and to exclude any portion of the citizens following lawful trades and occupations from the right to labor. It has no such right.”

See, also, Holden v. City of Alton, 179 Ill. 318; Fiske v. People, ex rel. Raymond, 188 Ill. 206 (52 L. R. A. 291); Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495. It follows that we cannot reverse the order of the circuit court.

This case should not be regarded as authority for the proposition .that mandamus is a proper remedy in a case of this nature. For the reasons heretofore stated, we are not at liberty to consider that question, and therefore we do not consider it.

The decision is affirmed, with costs to relator.

Moore, C. J., and McAlvay, Grant, and Blair, JJ.,, concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    TROMBLY v. KLERSY.
    Appeals — Chancery—Payment of Pee — Dismissal.
    The payment, within 30 days, of the statutory register’s fee by a chancery appellant is mandatory, and an appellee who has done nothing to waive the right is entitled to a dismissal of the appeal after the statutory period. Section 552,1 Comp. Laws.
    Motion by Robert Trombly, guardian of Joseph Buhler, an incompetent, against Andrew Klersy to dismiss an appeal.
    Submitted February 27, 1905.
    (Calendar No. 20,981.)
    Motion granted March 7, 1905.

      De Forest Paine, for the motion.

      William Look, contra.
   Per Curiam.

Defendant sought to appeal from an order of the circuit court in chancery appointing a receiver of the defendant’s property. Complainant moves to dismiss the appeal because the defendant failed to pay the fee within 30 days, as provided by section 552, 1 Comp. Laws. The payment of this fee is mandatory. Bennett v. Hickey, 110 Mich. 628. The complainant has done nothing to waive the appeal. The motion is therefore granted.


author: Moore, C. J.

text:
    PEOPLE, for Use of COOK, v. COLE.
    1. Appeal and Error — Review—Questions Considered.
    Only such points as counsel make and rely upon for reversal in their original brief will be considered by this court in disposing of a case.
    2. Notaries — Bonds — Liability — Negligence — Taking Acknowledgment op Impostor.
    In an action on a notarial bond for damages resulting from the notary’s taking the acknowledgment of an impostor to a real-estate mortgage, evidence examined, and held, that the direction of a verdict for plaintiff was properly refused.
    Error to Sanilac; Beach, J.
    Submitted January 5, 1905.
    (Docket No. 12.)
    Decided March 14, 1905.
    Debt by the People of the State of Michigan, for the use and benefit of William W. Cook, against Sidney S. Cole, principal, and John H. Earley, surety, upon a notary’s bond. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      C. F. Gates (Wilford Macklem and S. L. Kilbourne, of counsel), for appellant.

      William H. Aitkin, for appellees.
   Moore, C. J.

This is an action brought by the plaintiff upon the notarial bond given by defendant Sidney S. Cole, as principal, and the defendant John H. Farley, as surety.

The condition of the bond is “that if the said Sidney S. Cole shall duly and faithfully discharge the duties of his said office, without fraud, then this obligation to be void, otherwise to be and remain in full force and virtue.”

The breach charged is for taking the acknowledgment of a mortgage signed by one Paul Davis under the name of Peter M. Carroll, which reads:

“State oe Michigan, ) County of Sanilac. [
“Before me, the subscriber, Sidney S. Cole, a notary public in and for said county, this 15th day of May, A. D. 1897,- personally appeared Peter M. Garroll, to me known -to be the same person described in and who executed the above mortgage and who acknowledged the same to be his free act and deed.
- “ Sidney S. Cole,
“Notary Public.”

Mr. Cook is a farmer living a few miles out from Croswell, who sometimes loaned money through Mr. Cole, who was a lawyer and notary public living in 1897 at Croswell. The acquaintance between Mr. Cook and Mr. Cole ran through a series of years. It. is the claim of Mr. Cook that on the evening of May 14th a man who was a stranger to him presented to him- a note in the handwriting of Mr. Cole. He testified the note was lost, and he and his wife were permitted to give oral testimony of its contents, and claimed it read as follows:

Will, this is Peter M. Carroll, of Detroit, is up wishing to make a loan on his farm northwest of Peck. If you have the money come up in the morning as Mr. Carroll wants to go away on the morning train. I have examined the abstract and find it O. K. See Thomas Dumphey as to value of the farm.
“S. S. Cole.”

Mr. Cook testified that, supposing the man was Mr. Carroll, he agreed to make him a loan if the title was all right; that the next morning he went to the office of Mr. Cook, and found the man he supposed to be Mr. Carroll there; that a mortgage was made out and acknowledged beforeMr. Cole; and that, relying upon the truth of the statement in the acknowledgment, he let the mortgagor have the money. Later it turned out that the man was not Mr. Carroll, but one Davis, who was later convicted of forgery and sent to State prison.

Upon the trial of this case it was claimed that Mr. Cole did not, on the morning when the mortgage was drawn, introduce Mr. Dumphey, who was in the office, to the man who claimed to be Carroll, for the reason that Dumphey knew Carroll. It was' also claimed that Cole sent Dumphey out of the office to see Cook, so that Cole, Cook, Dumphey, and the man claiming to be Carroll, should not all be together. Mrs. Malaney was also sworn on the part of the plaintiff to show that Cole had known Davis for years at the time this mortgage was drawn.

A further claim of plaintiff may be drawn from the first request to charge, which reads as follows :

“ The undisputed evidence in this case and the admission of the defendant shows that Sidney S. Cole was guilty of gross negligence in the taking of the acknowledgment of Paul Davis to the mortgage in question, and your verdict must be for the plaintiff.”

The claim of defendant is stated in the brief, as follows:

“ Cook was a farmer and dealer in mortgage loans. Cole was a country lawyer and notary public. Davis was an impostor. Davis, representing himself to be Carroll, called upon Cole; talked about loans; represented that he had an abstract of his farm at the bank, sent there by the abstractors to collect a balance due. Davis left the balance due on abstract with Cole to enable him to obtain and examine same. As a lawyer, Mr Cole examined abstracts and made out papers for parties who loaned money in that vicinity, and gave Davis the names of some of these parties, and among them Cook, whom Davis claimed to know, and showed a general acquaintance in the neighborhood. Cole did not introduce Davis to Cook, nor to any of the money loaners he mentioned. This question was submitted to the jury by the court in his instructions, as follows:
“ ‘ One principal question litigated in the testimony was as to whether Mr. Cole sent Mr. Davis to Mr. Cook with the letter. That is an important matter in this case. On the part of Mr. Cook and his wife, they claim that the letter was sent, and give what they claim to be the substance of the contents. On the part of Mr. Cole, he denies knowledge of sending such letter, and that he did not directly send Davis to Mr. Cook. You will determine that question for yourselves.’
“Cook bargained with Davis at his home, and in the absence of Cole, and agreed to loan the money when he was satisfied that the security was ample, and that the abstract showed title in Carroll. This appears also by Mr. Cook’s testimony:
“ ‘ Q. Then the only thing that occurred to your mind at that time was this: That, if you were satisfied as to the valuation of the land, you would make the loan. Is that correct ?
‘A. Yes.
“ ‘ Q. And when you went to Croswell you satisfied yourself as to that, did you not — as to the value of the land ?
‘A. Yes.
‘Q. Which was the only thing left undetermined ?
“‘A. Yes.
“ ‘Q. And when you did, you concluded to make the loan, didn’t you ?
‘A. I accepted the loan when it was made.
‘Q. After you satisfied yourself as to the valuation? That is true, isn’t it ?
“‘A. Yes; I accepted it.
‘Q. And the individual, or his identity, or whether he was impersonating some one else, never occurred to your' mind, at any stage of the game, did it ?
‘A. No, sir.
‘Q. That is correct, now, is it ? •
‘A. No; I never wanted to investigate; never had a doubt.
lQ. Do you know how Mr." Cole came to draw the mortgage exactly as you wanted it ?
‘A. Mr. Cole knew that if he loaned any money for me it was eight per cent., and not less than five years, generally.
“ ‘Q. How did he know about this particular transaction?
‘A. I can’t say.
‘“Q. You don’t know ?
‘A. Unless it was that it was the Mr. Davis told him.
‘Q. The only way that you know is that Davis came back and told him what you had agreed on ?
‘A. Yes.
‘Q. And the mortgage was drawn according to your agreement at the house ?
“‘A. That is right. ’
“ Cole did not know until the morning that the mortgage was executed that Cook would make the loan, and did not complete the execution of the mortgage until told to do so by Mr. Cook. Cook relied upon Mr. Cole’s judgment as an attorney as to whether the- title shown by the abstract was in Carroll. And he relied upon his own judgment as to all other matters connected with the loan. This is true as to all other loans made by Cook, as clearly shown by Cole’s and Cook’s testimony.”

It is their claim that:

‘ ‘ The situation is no different than if Mr. Cook and Mr. Carroll together had called at the office of Mr. Cole for the first time, and Mr. Cook saying:
“ ‘ Mr. Cole, Mr. Carroll and I have agreed upon a loan, and I am going to let him have $550 for two years if you find the abstract comes down to Peter M. Carroll.’
“Would Mr. Cole under such circumstances be liable, should it turn out that this man was an impostor ? If so, the practical result of everyday life will be that a notary public and his sureties will be guarantors of loans, in addition to the security agreed upon between the parties themselves. Mr. Cook did not rely on the certificate, but relied upon himself in everything except the question of abstract. Indeed, the bargain was made long before he saw Mr. Cole, or ever the certificate was executed.”

The plaintiff preferred eight requests to charge, six of which were requests for a directed verdict. The trial judge declined to direct a verdict, and the jury found in favor of defendant.

In the original brief of plaintiff it is said:

“As the testimony in the case shows that the defendant Cole used no caution whatever, made no inquiries, and was guilty of gross negligence, we contend that the first and third requests to charge should have been given; and, as this court has the exact figures of the amount of judgment that plaintiff is entitled to, that the case should be reversed, and a judgment entered here for the plaintiff for $779.01, and the additional interest running to the time of judgment here, with cost of both courts.”

Each of requests 1 and 3 directed a verdict in favor of plaintiff. In the supplemental brief of counsel some other questions are discussed. Supreme Court Rule 40 provides that the original brief shall contain a statement of the errors upon which counsel rely. It has been held that only such points as counsel make and rely upon for reversal in their original brief will be considered by the court in disposing of the case. Black v. Dawson, 82 Mich. 485; Shippy v. Village of Au Sable, 85 Mich. 280; Ashman v. Railroad Co., 90 Mich. 567; Lacas v. Railway Co., 92 Mich. 412; Hewitt v. Morley, 111 Mich. 187.

In Aldine Press v. Estes, 75 Mich. 100, it was held that, before a court should direct a verdict for a plaintiff, he must make a case that has no matter of fact left open. See, also, Hagan v. Railroad Co., 86 Mich. 615; McDonald v. Ortman, 88 Mich. 645. Under the testimony in this case, we do not think it would have been proper for the trial court to have directed a verdict in favor of plaintiff.

Judgment is affirmed.

McAlvay, Grant, Blair, and Hooker, JJ., concurred. a


author: McAlvay, J.

text:
    CASS FARM CO. v. CITY OF DETROIT.
    1. Adverse Possession — Tax Title — Claim of Municipality.
    Adverse possession may be invoked to cut off a tax title held by a city.
    2. Same — Knowledge of Outstanding Title.
    A subsequent purchaser may invoke title by possession adverse to an outstanding tax title without alleging knowledge, or want of knowledge, of such title at the time of purchase.
    Appeal from Wayne; Hosmer, J.
    Submitted February 8, 1905.
    (Docket No. 103.)
    Decided March 14, 1905.
    Bill by the Cass Farm Company, Limited, against the city of Detroit and another to quiet title. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Bussel & Campbell, for complainant.

      Timothy E. Tarsney and John W. McGrath, for defendants.
   McAlvay, J.

Complainant, a partnership association of Detroit, and owner in fee of certain real estate in said city, filed its bill of complaint against defendants to quiet title to said premises, alleging that it acquired title by warranty deed March 22, 1893, and that for more than 15 years prior to the filing of the bill of complaint, complainant and its grantor have been in open, notorious, adverse, and exclusive possession of said premises, and claimed title in fee simple to the same; that during all that time the city regularly levied its taxes and assessments upon said premises, which were paid; that on August 2, 1869, said premises, being lot 11 of block 65 of the subdivision of the Woodbridge farm, were sold to the city of Detroit for alleged default in payment of a special assessment for paving for the year 1868, and that defendant city treasurer has threatened to issue a tax title on the said property to some person to complainant unknown. The prayer of the bill is that complainant’s title be quieted, and the defendant city treasurer be restrained from issuing the tax title, as threatened.

To this bill defendants demurred upon the grounds:

1. That the assessment made and referred to in the bill was made for an improvement of the property, and that the sale of the property was because of the failure of the owner to pay the assessment, as was his duty; that the said assessment was a continuing lien upon said property, and complainant purchased the same subject to such lien and subject to the sale thereof for the nonpayment of the said assessment, and it became and was the duty of the successive owners of the said property to pay and discharge such lien.

2. That the bill of complaint contained no allegation that the fact of the nonpayment of the assessment and the sale of the land by reason thereof was not actually known to the complainant at the time of its purchase of said «property.

From an order overruling the demurrer, defendants have appealed.

It is claimed that this case is distinguished from Schneider v. City of Detroit, 135 Mich. 570, for the reason that it appeared in that case that complainant had no knowledge of defendant’s lien or title, and in the present case the bill of complaint contains no averment that such was the fact. Whether the claim of defendant was known to complainant or not can make no difference. Adverse possession, in order to be invoked as a basis of title, must necessarily be exclusive, and hostile as to all claimants, whether known or unknown. The cases are not distinguishable.

The order overruling the demurrer is affirmed, with costs. #

Moore, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


text:
    KENNEY v. APLEY.
    Landlord and Tenant — Tenancy or Cropper — Termination or Relation.
    Defendant worked complainant’s land for the year 1900 for a share of the crop, and during that year complainant seeded it to grass with the grain at his own expense. In 1901 defendant’s son, at his father’s request, made a new arrangement with complainant to harvest the hay. Held, that defendant was not a tenant at will; that his rights terminated when the 1901 crop was harvested, and that he was a trespasser in interfering with the harvesting of the crop of 1902.
    Appeal from St. Clair; Tappan and Law, JJ.
    Submitted February 9, 1905.
    (Docket No. 115.)
    Decided March 14, 1905.
    Bill by Bernard Kenney against Thomas Apley to restrain a trespass upon certain land. From a decree for complainant, defendant appeals.
    Affirmed.

      John B. Mollwdin, for complainant..

      Thomas Wellman, for defendant.
   McAlvay, J.

Complainant filed an injunction bill in ' St. Clair county against defendant “ to restrain and enjoin him from trespassing upon the premises described, and from going on the premises and cutting hay thereon, and from interfering with complainant and those claiming under him in the use and enjoyment of said property.”

Complainant owned 40 acres of land in Riley township, St. Clair county, with a crop of hay on it, about ready to cut, at the time the bill was filed. Defendant had for the year 1900, under a certain agreement, made late in 1899, worked the place on shares for two-thirds of the crops. It was seeded to grass that year by complainant under their arrangement. For the year 1901,complainant claims that under a new agreement defendant harvested the hay on shares for one-half the crop. For the work of 1902 complainant made arrangements for the season with one Blinn, when defendant interfered, ordered Blinn off, and insisted he would harvest the hay. Defendant, by his answer, claims that he is a tenant at will; that his tenancy has not been terminated; that, being in possession, he will cut the hay, and get his share, if permitted by the court. The allegations and admissions of the pleadings made it necessary to take but little testimony, the only question to determine being whether defendant was a tenant or a trespasser. Upon motion to dissolve the preliminary injunction the court ordered a hearing upon the pleadings and proofs. The case was heard before both judges of the circuit, and a decree granted according to the prayer of the bill of complaint.

We find that the action of the court was clearly justified by the proofs. Defendant never was a tenant at will of the premises. He worked the land for the first year on shares, furnishing two-thirds of the fertilizer and receiving two-thirds of the grain. The whole 40 acres, except barnyard, was seeded to grass with this crop of grain, by complainant, at his own expense, and defendant was to feed the straw on the premises. For the season of 1901 defendant’s son, at his father’s consent and request, went to complainant to make an agreement to cut the hay. This was an entirely new agreement. There was no other or further agreement or relation between these parties relative to this land after the hay crop for 1901 was harvested and sold. Complainant made some arrangement for 1902 with Blinn, when defendant interfered. The admissions of the answer and proofs clearly sustain the allegations of the bill.

The decree is affirmed, with costs of both courts.

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


text:
    SWEET v. WESTERN UNION TELEGRAPH CO.
    1. Trial — Instructions—Refusal—Harmless Error.
    The refusal of a proper request is not reversible error where its substance was given in others.
    2. Telegraph Companies — Delivery of Messages.
    Where a telegram is sent to one person in care of another, delivery to the latter is sufficient.
    3. Damages — Remoteness—Contingent Interest.
    Damages to an attorney for nondelivery of a telegram instructing him to attend a hearing on claims against an estate are too remote and speculative for recovery, where it appears that the hearing was adjourned and in the interim the claim was compromised, and that plaintiff’s interest in prosecuting it was contingent on success.
    Error to Cass; Carr, J.
    Submitted February 9, 1905.
    (Docket No. 124.)
    Decided March 14, 1905.
    Assumpsit by Charles E. Sweet and Clyde W. Ketcham, copartners as Sweet & Ketcham, against the Western Union Telegraph Company for an alleged failure to deliver a message. There was judgment for defendant, and plaintiffs bring error.
    Affirmed.

      Charles E. Sweet (James H. Kinnane, of counsel), for appellants.

      Gore & Harvey (C. A. Kent, of counsel), for appellee.
   Moore, C. J.

This case was brought in justice’s court to recover damages for the nondelivery of a telegram. The case was appealed to the circuit court, where it was tried by a jury, which returned a verdict in favor of the defendant. The case is brought here by writ of error. There are upwards of 20 assignments of error, many-of which it will not be necessary to discuss.

The record discloses that plaintiffs, who live at Dowagiac, are attorneys who were acting for Lucy Jarvis in a claim she had against the estate of Burton Jarvis. It was expected this claim and others would be heard before the commissioners on claims at Buchanan, and on the 24th of September, 1902, Mr. Ketcham went to Buchanan to look after it. He obtained information early in the day which led him to believe that because of the hearing of other claims the hearing of this claim would not be heard that day, and, after arranging with his client what to do in case the claim was reached, he went on before noon to Benton Harbor. It became evident to Miss Jarvis later that the case would be reached on the 25th, and she communicated that fact by telephone to Mr. Sweet, who sent the following:

“Dowagiac, September24, 1902.
“To Clyde W. Ketcham,
“ Care John Doelle,
“Benton Harbor, Mich.,
“ Principal of High School.
‘ ‘Attend Buchanan case tomorrow without fail; I can’t.
“C. E. Sweet.”

Mr. Sweet heard nothing further from the telegram that day, and at 6 o’clock went to Grand Rapids. The telegram was forwarded to Benton Harbor, given to the messenger, and taken to Mr. Doelle. What then occurred is the subject of conflicting testimony. Mr. Doelle’s version is as follows:

“ After dinner we [Mr. Ketcham and Mr. Doelle] went direct to the schoolhouse. He remained until the last bell began to ring; that was about 1:30. I knew where he was going when he left. He was going to Grand Rapids on the next train. I knew from what depot that train would go. The messenger of the Western Union came to me at the high school. I know I looked at my watch when he came, to see whether he had time to go to the train and get Mr. Ketcham before the train should leave. It was either 2 o’clock or ten minutes to 2. It was between those two. I told the messenger boy that Mr. Ketcham was going to Grand Rapids on the next train, and that I thought he would have time to reach him at the depot before the train should leave. There is but one depot at Benton Harbor from which you can go, by direct route, to Grand Rapids. The boy came back between 3 o’clock and 10 minutes to 4. Said he had not found Mr. Ketcham, and I told him to forward the message to Grand Rapids, care of the State convention. I paid him 25 cents to forward the message. I ascertained from the Western Union office that the telegram had arrived at 12.53.”

On cross-examination he testified:

Q. So the message was delivered to you at the schoolhouse ?
“A. Yes, sir.
Q. And I believe you receipted for it ?
“A. I did not receipt for it.
Q. You are positive of that ?
“A. Yes, I am as positive as I can be.
Q. But it was delivered to you ?
“A. It was delivered to me; yes, sir.
Q. About 2 o’clock or ten minutes to 2 ?
“A. About ten minutes to 2 or 2 o’clock; yes, sir.
Q. I wish you would look at this delivery sheet, and answer me if this is your signature, ‘ J. Doelle ? ’
“A. Why, that looks something like it. I don’t write like that very often. u
‘ ‘ Q. That is the way you would write in pencil, isn’t it ?
11 A. Perhaps it would be; yes, sir.
“ Q. Is that your signature ?
“A. It looks like it.
Q. Would you say that it is not ?
“A. I won’t say that it is not.
Q. What do you say whether or not that is your signature or not ?
“A. I may have receipted for it the second time when he came back and I paid him the quarter to forward it. As to that I am not clear.
“Mr. Gore: We offer the delivery sheet in evidence. (Paper referred to marked £ Exhibit B’).”

Redirect examination by Mr. Kinnane:

“When I say ‘delivered it’ I mean that they brought that message to the schoolhouse thinking I was the man who knew where Mr. Keteham was. I believe I didn’t have it in my hands. I may have taken it in my hands and looked at the address. I don’t know whether I did or not. I didn’t open it, nor see it opened in my presence, and did not retain it. I told the delivery boy that Mr. Keteham was going to Grand Rapids on the next train, and I thought he would have time to get there. That was the first time. ”

The messenger testified:

“I went to dinner that day at 12:30; returned at 1:30. There were three messages waiting for me. I left the office with them about 1:35.
Q. I hand you delivery sheet marked ‘Exhibit B,’ dated September 24, 1902, and ask you if you had that sheet in your possession that day ?
A. Yes, sir. I delivered the message to Squier at 1:40. I delivered a message to Mr. Squier and one to Mr. Walton before delivering the one to Mr. Doelle. I went straight to the schoolhouse, and found Mr. Doelle, and presented the message. I think he had it in his hands, but I think I took it back to the office. I am pretty sure he had it in his hands. I saw Mr. Doelle write his signature there, ‘ J. Doelle,’ under message No. 22. I am sure. I think he made the figures ‘ 2:06.’ I think I remember his taking out his watch and putting down the time. He said Mr. Keteham had left for Grand Rapids; to forward the message there. Mr. Doelle did not say anything tó me about Mr. Keteham being at any railway station. When I reported at the office they wanted an address at Grand Rapids. I went back to the high school for an address. I went back immediately. I saw Mr. Doelle on this second occasion, and asked him for an address. And he said he didn’t know where Mr. Keteham would be that day, but the next day he would be at the State convention there; a republican convention. I went back to the office, and told them what he said, and they wanted a guaranty before they could forward the message. They told me to go back to the high school for the guaranty. I did that. That was the third time. He said he would guarantee it, and I went back to the office, and they wanted a deposit. I went back, and he said he had no money, but to come up to his house at 5 o’clock, but to forward the message as soon I got back. I went to Mr. Doelle’s that evening, and got the money at 5 o’clock at his house. 'I returned the money to Mr. Doelle some time within the t next three days. Nothing was said during any of my interviews with Mr. Doelle about going to the railway station.
Q. Do I understand you to say that when you first went to Mr. Doelle with this message he told you that Mr. Eetcham had left for Grand Rapids ?
“A. Yes.
Q. "Was that the reason you didn’t go to the station ?
“A. Yes, sir.”

On cross-examination:

“Q. You are quite positive, are you, that Mr. Doelle took out his watch and looked at it, and then wrote these figures ?
“A. Yes, sir.
“Q. ‘3:06 ’ down there ?
“A. Yes, sir; I remember. * * * When I delivered this message to Mr. Doelle, he was at the schoolhouse, in the assembly hall. He looked at his watch. I think he said it was 3:06.
“Q. And then he said to you that Mr. Eetcham had gone to Grand Rapids ?
“A. Yes.
“Q. Had gone on the train ?
“A- He said he had left for Grand Rapids. I kept the message. I didn’t go to the depot. It would have been two blocks down there to the depot and two blocks back.”

The message was not forwarded to Grand Rapids, but was returned to Dowagiac after Mr. Sweet had taken a train to Grand Rapids. It was not until the morning of the 35th, when Mr. Sweet and Mr. Eetcham met in Grand Rapids, that the latter learned a telegram had been sent, and the former that Mr. Eetcham had not received it.

What occurred at Buchanan is shown by the testimony of Miss Jarvis, which will throw light upon several important features of the case. It is as follows:

“I live in Dowagiac, and have lived there all my life. Am one of the legatees of Burton Jarvis estate. I had a claim against this estate for $391. I placed it with Sweet & Ketcham for adjustment., On September 24, 1902, I went before the commissioners on a hearing on that claim. Mr. Ketcham went with me. He went to Buchanan, and found that my case would not be heard that day. Mr. Ketcham said he would go to Benton Harbor, as he had business there, and that, in case my case would be heard the next day, he would return. He told me for any information I wished to telephone Mr. Sweet. I telephoned Mr. Sweet, and told him that my case would not be heard that day, but perhaps it would be the next day. I heard, after Mr. Ketcham had left, that I was to have my witness there the next day, and I telephoned Mr. Sweet to see this witness, and have her come, which he did. I told him Mr. Ketcham had gone to Benton Harbor, and Mr. Sweet said he would recall him, and that he would be there the next day. Afterward I talked with Mr. Sweet again over the phone. He informed me that my attorney would be on hand the next day. My attorney was not there the next day. My witness came, and I asked Mr. Roe to represent me that day; to hear Miss Allen, my witness. The hearing was not finished, and it was adjourned until the 7th of October for hearing the witness that was to appear on the other side against me. It was adjourned on motion of the other side. I left, thinking that I would come back the 7th. Then I heard that my cousin had settled, and I was nervous. Well, I settled it also.
“ Q. If your attorneys had been there, I will ask you if you had entertained any such proposition ?
“A. No.
“ Mr. Gore: We object to it, your honor, as speculating. She cannot tell. (Objection sustained; to which ruling plaintiffs, by their counsel, duly excepted.)”

On cross-examination:

I settled for $68. I paid Sweet & Ketcham $8. This made a total of $132 that I received — $64 of Mr. Jarvis in his lifetime and $68 from his estate. I had an arrangement with Sweet & Ketcham. Was to pay them one-half of the claim if it was allowed. If it went to circuit court, they were to have whatever the fees were.
Q. So that their interest in this matter was dependent upon their success ?
“A. Yes, sir. I made my settlement with Mr. Worthington, the executor of the estate, and went before the commissioners and they O. K.’d the settlement.”

On redirect examination:

“If the claim was appealed, the pay of my attorneys would not depend upon whether they won the case or not. They were then to be paid for whatever they did.”

There was other testimony offered, some of which was received and some rejected, relating to other branches, to which we deem it unnecessary to refer.

The trial judge charged the jury, among other things, as follows:

“ This is an action by plaintiffs for damages they claim they suffered by the nondelivery of a telegram by the defendant. Coming right to the points in issue, it is the duty of the telegraph company to promptly deliver any message which is given to them for transmission and delivery, and a failure to deliver promptly makes them liable in damages, and it is a question for you to find, from the facts in this case, whether there was prompt delivery of the message in question. People send messages by telegram instead of by mail because they are in need of haste, and when a message is so sent and received it must be delivered with reasonable dispatch in all cases, and, if not, the company must pay damages for failure to so deliver. And it is for you to say whether, under all the circumstances of this case, there was such prompt delivery of the message as will relieve the defendant company from liability. The telegram in question demonstrated upon its face that it was an urgent message, and must be delivered with haste, and in such case a greater degree of diligence must be exercised than if no such urgency was expressed, and you will take this into consideration in considering the facts and making up your verdict. The telegraph is resorted to by the public to secure the speediest mode of communication, and the prompt delivery is of the very essence of the undertaking by the company. Hence a failure to make such prompt delivery, if shown in this case, requires a verdict at your hands- for the plaintiffs, as hereafter indicated. If you find from the evidence that the defendant sent the message in question with reasonable promptness, and delivered the same to Mr. Doelle with reasonable diligence, your verdict must be for the defendant. On the question of prompt delivery, you are to take into account the distance of the place of delivery from the defendant’s office, the distance from the office to the schoolhouse, and the necessary time it would take to get there. The burden is on the plaintiffs to show by the preponderance of the evidence that the allegations in the declaration are true, and, if the evidence on behalf of the plaintiffs fails to do this, or such evidence is fully met by evidence on behalf of the defendant, then I instruct you that the plaintiffs cannot recover. The plaintiffs cannot recover unless by the neglect of some duty the company owed them; and, if the message was delivered to Mr. Doelle with reasonable diligence, your verdict must be for the defendant. * * *
“ If you find that the company did not deliver this telegram, as I have indicated, with such promptness as was required under the circumstances, and are liable for a failure to so deliver, then you will find for the plaintiffs such an amount as will be reasonable under all the facts in the case. In other words, if you find for plaintiffs, your verdict will be for what the services of Mr. Ketcham would reasonably be worth before the commissioners, on trying the client’s case, at the rate per day as shown by. the evidence in this case.”

The plaintiffs preferred the following request, which was refused:

“ I charge you that if you find that the messenger boy did not give the message to Doelle the first time .he (the messenger boy) came to the schoolhouse; that the messenger boy kept the message in his hand, and that Doelle did not sign the delivery sheet the first time the messenger boy came, and that Doelle only directed the messenger boy to go on to the Pere Marquette station — then. I charge you that there was no delivery of the message at this time.”

Complaint is made of the failure to give this request. It might have been well to give it, but, when taken in connection with what was given, a failure to give it was not, we think, reversible error. There was no claim there was any delivery of the message, unless the proofs disclosed there was a delivery to Mr. Doelle. In relation to that there was a conflict of testimony. The jury were told if the defendant did not deliver the message with such promptness as was required under the circumstances, they should find for the plaintiff. This was stated in several ways, so that we do not think the jury misunderstood.

The conflicting testimony presented a question of fact as to whether there had been a delivery to Mr. Doelle, which was decided by the jury in favor of the contention of defendant.

In section 414, Croswell on Electricity, it is said:

“ Although the duty of the telegraph company is to deliver to a certain person, it may not always be bound to deliver to the person for whom the telegram is intended, for, if the telegram is addressed to X., ‘in care of’ Y., the telegraph company may deliver the telegram to Y. without being guilty of any negligence even if it fails to reach X.”

In section 748, Joyce on Electric Law, it is said:

“The same rule of diligence, the same requirement of prompt delivery, and the same obligation to find the person in whose care a message is addressed, undoubtedly applies as that which governs in the delivery of messages to the addressee himself.”

Section 750 reads:

“If a person in whose care a message is sent refuses to receive or accept it, the telegraph company has fulfilled its duty in tendering it to such person.”

Section 751 reads:

“ Whefe a telegram is sent to one person m care of another, delivery to the latter is, as a rule, sufficient.”

In Western Union Tel. Co. v. Young, 77 Tex. 245, the message was directed to “Mrs. N. Young, care W. R. Henry & Co., Fort Scott, Kansas.” The court say:

“ There was evidence to show that on the morning of the day it was received for transmission, it was delivered to W. R. Henry of the firm of W. R. Henry & Co. and that he declined to forward it and handed it back to the messenger. The court instructed the jury, in effect, that if the defendant’s agent at Fort Scott tendered the message to W. R. Henry, and he declined to receive it, and gave the messenger such directions as would have enabled him to find plaintiff’s wife by the exercise of reasonable diligence, then it was the duty of the agent to use such diligence to find and deliver the message to her. We think the court erred in giving this instruction. The liability of the company must be determined by the terms of its contract. Its obligation was not' to deliver to W. R. Henry & Co. and to Mrs. Young, but to deliver to them as her agents, properly addressed to her, to be dealt with by them as they deemed best. The direction to ‘ Mrs. N. Young, care of W. R. Henry & Co.,’ has the same meaning and legal effect as it would have had if the direction had been to ‘ W. R. Henry & Co., for Mrs. Young.’ The company contracted to deliver to W. R. Henry & Co. for the benefit of the plaintiff’s wife; and when they delivered to a member of that firm their liability was at an end. The court should have so charged the jury. ”

In Western Union Tel. Co. v. Elliott, 7 Tex. Civ. App. 482, the court said:

“It is equally well settled that a delivery of the message to the person in whose care the same is addressed is a full performance of the contract by the company, so far as delivery is concerned.”

In Lefler v. Telegraph Co., 131 N. C. 355 (59 L. R. A. 477), the court say:

“The message was delivered to Johnson [the agent of the party in whose care the message was sent] in proper time, and eliminates the discussion of any negligence there may have been in sending the message, as no negligence can avail the plaintiffs that did not cause the injury.”

The court further say:

“The court properly instructed the jury that Johnson was a proper agent of the Southern Railway Company, to whom a delivery of the message might be made, and a delivery to him was a delivery to the Southern Railway Company, and, as the message was directed to Price Lefler in care of the Southern Railway Company, the said company was made his agent, and a delivery to the agent discharged the defendant from further liability on account of the message. Western Union Tel. Co. v. Houghton, 82 Tex. 561 (15 L. R. A. 129); Western Union Tel. Co. v. Young, 77 Tex. 245. These cases were cited by the plaintiffs for the purpose of showing that, although the telegram was sent in care of the Southern Railway Company, it was still the duty of the defendant to make diligent inquiry for Price Lefler, which the plaintiffs allege was not done. But upon examination of the cases it will be seen that this is only necessary when the party in whose care the message is sent cannot be found. When he is found, and delivery made to him, the defendant has nothing further to do with the telegram.”

See, also, Western Union Tel. Co. v. Barefoot, 97 Tex. 159 (64 L. R. A. 491); Western Union Tel. Co. v. Mitchell, 91 Tex. 454 (40 L. R. A. 209).

We have not overlooked the cases cited on this point by plaintiffs. In Western Union Tel. Co. v. Cooper, 71 Tex. 507 (1 L. R. A. 728), the distinction from the case at bar may be noted. In that case the message was not sent in care of a third person, and was not delivered. The messenger went twice to the office of the physician, and, failing to find him, did not look further. The messenger personally knew the physician well, and it is held in this case that diligence required that the messenger should look for the physician upon the streets. In the case at bar the message, according to the finding of the jury, was delivered to the person in whose care it was sent. An examination of the other cases cited will show they are easily distinguishable.

There is another reason why the case should be affirmed. There is no dispute as to what the contract was between Miss Jarvis and the plaintiffs. Their compensation was to depend upon a contingency. No one can say she had a claim which could certainly be enforced. It is purely conjecture whether plaintiffs, had the litigation proceeded, would have been in a position to assert a claim against her. The damages claimed are too remote, uncertain, and speculative to entitle them to recover in this action. The plaintiffs, by their declaration, seek to recover in this action only for damages to business and reputation. No evidence of loss growing out of injury to reputation was given. The loss in the way of business which they seek to recover was their interest in the claim of Miss Jarvis against the estate of Burton Jarvis. What was that interest ? At this point we enter the realm of speculation. Miss Jarvis, though her case was adjourned at the request of the estate to October 7th, which would have given her ample opportunity to consult plaintiffs, * deemed it wise to settle the claim for $68. Suppose it had been litigated, instead of settled, who can say what the result would have been ? Upon this branch of the case we think the judge might very properly have directed a verdict in favor of defendant. 25 Am. & Eng. Enc. Law (1st Ed.), pp. 836-839, cases cited; Bodkin v. Telegraph Co., 31 Fed. 134; Baldwin w. Telegraph Co., 45 N..Y. 744; Chapman v. Telegraph Co., 90 Ky. 265; First National Bank of Barnesville v. Telegraph Co., 30 Ohio St. 555; Western Union Tel. Co. v. Graham, 1 Colo. 230; Hibbard v. Telegraph Co., 33 Wis. 558; Cahn v. Telegraph Co., 46 Fed. 40.

Judgment is affirmed.

Carpenter, McAlvay, Grant, and Hooker, JJ., concurred.


author: Grant, J.

text:
    SLOMAN v. WILLIAM D. C. MOEBS CO.
    1. Intoxicating Liquors — License—Interstate Commerce.
    Sales of liquor in original packages by a dealer whose place of business is in another State, from which the liquors are shipped, are interstate commerce and beyond local regulation, though both parties to the sale live in this'State and the sale is made here.'
    2. Same — Statutes—Constitutionality.
    Section 4018, 1 Comp. Laws, attempting to regulate wholesale sales of intoxicating liquors in this State by nonresidents, is unconstitutional. ■
    Error to Wayne; Brooke, J.
    Submitted February 9, 1905.
    (Docket No. 129.)
    Decided March 14, 1905.
    Assumpsit by Morris H. Sloman against William D. C. Moebs Company for breach of a contract to purchase certain intoxicating liquors. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    This case was heard by the court without a jury, and the facts and law found as follows:
    “Facts.
    “1. That on the 15th day of January, 1902, the said plaintiff and the said defendant entered into a certain contract, in words and figures as follows:
    “ ‘Detroit, Michigan, January 15, 1902.
    “ ‘ For and in consideration of the discharge of a certain mortgage made and executed the 17th day of June, 1901, by John Rivard, of the city of Detroit, to the Crown Distilling Company, and recorded in the office of the city clerk of the city of Detroit, on the 17th day of June, 1901, and known as file number 5475, we hereby agree to purchase from the Crown Distilling Company, four barrels of “400 Baltimore Rye” whisky within nine months from date, the same to be billed at the lowest market price, and to be paid for within four months from the date of shipment.
    “ ‘William D. C. Moebs Company.’

      “ 2, That during the year 1902 the said plaintiff was a resident of the city of Detroit, and had been such for a number of years.
    “3. That during that time the said plaintiff was engaged in the wholesale liquor business, doing business under the name of the Crown Distilling Company, with his place of business in the city of Cincinnati, Ohio, and that he shipped liquors from the city of Cincinnati, Ohio, into the State of Michigan and other States, direct to his customers in the original packages, and not otherwise, and has no place of business in the State of Michigan, and did not have at the time of the execution of this contract, except an office in which he kept a few samples.
    “4. That the said plaintiff personally sold whiskies throughout Michigan, Wisconsin, Ohio, and other States, and during the year 1902 sold in the State of Michigan about 100 barrels of whisky. '
    “5. That the said defendant company is a corporation operating in the State of Michigan, with its principal place of business in the city of Detroit, and made the contract for the purchase of said four barrels of whisky for use in a saloon on Woodward avenue, in said city of Detroit, to be shipped from Cincinnati in original packages.
    “6. That on the 8th day of July, 1902, the said defendant company notified the said plaintiff of their refusal to accept or pay for the four barrels of whisky mentioned in said contract.

      “7. That the said plaintiff paid no wholesale liquor tax in the State of Michigan for the year 1902, and did not have any wholesale license issued by the said State at the time the contract for the sale of the four barrels of whisky was made, or at the time when the defendant company refused to accept the same.
    “8. That the loss of profits to the plaintiff on the sale of the four barrels of whisky amounted to $216.
    “ Law.
    “1. That the said plaintiff is not a wholesale dealer in spirituous and intoxicating liquors under the laws of the State of Michigan, and therefore is not required to pay a wholesale liquor tax.
    “ 2. That the plaintiff was, at the time of the execution of this contract, engaged in interstate commerce within the meaning of the interstate commerce clause of the Consti-tution of the United States.

      “3. That the plaintiff, being so engaged in interstate commerce, was not required to comply with, the laws of the State of Michigan in regard to the sale of intoxicating liquors at wholesale within the State of Michigan.
    “4. That the contract sued on was and is a valid contract, and plaintiff is entitled to recover damages in the sum of $216, with interest thereon from July 8, 1903.”

      John E. Moloney, for appellant.

      Clark, Jones & Bryant, for appellee.
   Grant, J.

(after stating the facts). The sole objection to the defendant’s liability is that the contract is not a legal one, because the plaintiff had not complied either with section 5379, 2 Comp. Laws, or with section 4018, 1 Comp. Laws. Section 5379 provides for a tax of $500 upon the business of selling spirituous or intoxicating liquors at wholesale, as a condition precedent to the right to engage in the business. Similar cases have been in this court before, and also in the Supreme Court of the United States.

Under the contract the goods were to be shipped in the original package from the State of Ohio into the State of Michigan. They were so shipped and delivered to the defendant. The transaction was interstate commerce, under Lyng v. Michigan, 135 U. S. 161; Leisy v. Hardin, 135 U. S. 100; Scott v. Donald, 165 U. S. 58; Vance v. W. A. Vandercook Co., 170 U. S. 438. These and other cases are cited and discussed in the recent case of American Express Co. v. Iowa, 196 U. S. 133.

The fact that the plaintiff is a resident of Michigan, and that the contract was executed here, does not take the transaction out of interstate commerce and make it a State transaction. Plaintiff’s place of business is in another State. His products are there manufactured, and shipped to other States in the original packages. The Constitution of the United States gives him this right, regardless of bis residence. He is not engaged in selling the original packages after their arrival in the State, within the decision in Vance v. W. A. Vandercook Co., supra.

Act No. 217 of the Public Acts of 1885, being section • 4018, 1 Comp. Laws, has been declared unconstitutional and void by the Supreme Court of the United States. Walling v. Michigan, 116 U. S. 446. That decision is binding upon us.

Judgment affirmed.

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


text:
    CLUTE v. IONIA CIRCUIT JUDGE.
    1. Criminal Examination — Sufficiency.
    An examination on a complaint and warrant charging the larceny of a stick pin only is not a sufficient basis for an information charging the larceny of a stick pin and a sum of money.
    3. Mandamus — Discretion—Quashing Information.
    Where an information for larceny is quashed after trial and disagreement of the jury, mandamus to compel the judge to set aside the order of quashal will not be granted unless there is a showing that a different result would be reached on retrial.
    Mandamus by William K. Clute, acting prosecuting attorney of Ionia county, to compel Frank D. M. Davis, circuit judge of Ionia county, to vacate an order quashing an information.
    Submitted February 27, 1905.
    (Calendar No. 20,972.)
    Writ denied March 14, 1905.

      William M. Clute, in pro. per.

      James Scully, for respondent.
   Moore, C. J.

In May, 1904, a complaint was made before a justice of the peace, charging one Malone with larceny from the person of one McElroy of one gold stick pin, of the value of $75. A warrant was issued, in which the offense charged followed the statement made in the complaint. Malone was arrested and taken before the justice of the peace, and an examination was held, the result of which was that the justice of the peace held Malone for trial to the circuit court for the offense alleged in the complaint and warrant. In September an information was filed against Malone in the circuit court, in which the offense was stated as follows:

‘ ‘ That he did take, May 25,1904, at the city of Ionia, one gold stick pin of the value of $75 and $6 in money of the United States of America, of the goods, chattels, and money of one James C. McElroy, from the person of said James C. McElroy, and then and there did feloniously steal, take, and carry away. ”

When arraigned, and before having counsel, Malone pleaded not guilty. After he procured counsel, leave was given him to withdraw his plea of not guilty and file a motion to quash the information, for the reason that the respondent was not charged in the complaint and warrant and was not held to trial by the examining magistrate for stealing $6, but was charged with the offense of stealing a stick pin of the value of $75. This motion was overruled, and, Malone standing mute, the court entered a plea of not guilty. Thereupon a trial was had, and in his return to the motion made in this case the trial judge states that no evidence was produced on said trial that Malone had stolen a stick pin or $6 in money as charged, and the court directed a verdict of not guilty on the charge of stealing the stick pin, and submitted the charge to the jury of whether he had attempted to steal from the person of James C. McElroy $6, and that the jury disagreed.

At the February term it was conceded by the prosecuting attorney that Malone could not again be put on trial for the larceny of the stick pin, but claimed he might be tried for the attempt to steal $6 in money from McElroy, and that this trial might proceed under the original information. A motion was made that the circuit judge quash the information, for the reason that the charge of stealing $6 is a separate and distinct offense from the charge of stealing a stick pin, and because the examining magistrate did not find there was probable cause to find Malone guilty of the crime of stealing $6. This motion to quash was granted, and the prosecuting attorney asks here for the writ of mandamus to compel the circuit judge to set aside this order, and to proceed with the trial of Malone for the offense of attempting to steal $6 from the person of' McElroy.

In his return to the writ, the trial judge, in addition to what we have already stated, returned that he quashed the information for the reason that the charge of stealing $6, as set forth in said information, is a separate and distinct offense from the charge of stealing a stick pin as set forth in the complaint and warrant and the return of the examining magistrate, and that the said magistrate did not find or return that there was probable cause to believe said accused person to have been guilty of the crime of stealing f 6, and that said Bert Malone cannot be put on trial in the circuit court for a separate and distinct offense from that set forth in the complaint and warrant and return made by the examining magistrate.

Upon the examination of the complaining witness in the court below, he gave testimony tending to show that in the morning, when he dressed himself, he put the stick pin into his necktie, and when he returned to the hotel the latter part of the afternoon it was gone. His testimony also showed that he spent a good share of the afternoon in saloons, drinking, and that Malone was with him, and showed circumstances which, taken in connection with his testimony, might tend to show Malone took the stick pin.

In addition to that, he gave testimony tending to show that Malone stole from him $6, and it is insisted by the prosecuting attorney that, though he was not charged with the offense of stealing the |6, inasmuch as there is testimony given upon the examination tending to show he had done so, he might be charged with that offense in the information; citing Annis v. People, 13 Mich. 511, and quite a number of other cases. An examination of these cases convinces us that none of them go so-far as is contended here. Mr. Malone was not charged With the larceny of $6, but was charged with the larceny of a stick pin of the value of $75, and it is with reference to that offense that the examination was conducted.

The respondent was not called upon in the court below to meet any other charge. The examining magistrate did not undertake to inquire into any other charge. He did not find that any other offense had been committed, nor that there was probable cause to believe that Malone was guilty of the offense of stealing $6 from the person of Mr. McElroy, but did find there was probable cause to believe he stole from his person the stick pin. If any defense had been interposed as to the larceny of $6 in the justice’s court, it is quite possible that the examining magistrate might have found the offense was not proven; but no offense of that sort was charged, and it was not the subject of inquiry, except incidentally. We think the court was right in saying, as he did, that respondent could not be convicted of an offense with which he was not charged in the court below, and in relation to which no inquiry was entered upon by the examining magistrate. See People v. Jones, 24 Mich. 215; Yaner v. People, 34 Mich. 286; People v. Evans, 72 Mich. 387.

There is another reason why we should not set aside the order of the circuit judge. The writ of mandamus is a, discretionary writ. The return of the circuit judge shows that the evidence produced on said trial did not show that Malone had stolen $6 in money, as charged in the information, and, as to whether he had attempted to steal it or not, the jury were unable to agree. It is not made to appear in the petition that any different result would be reached if the order to quash the information was set aside, and another trial had.

The application for the writ of mandamus is denied.

Caepentee, McAlvay, Geant, and Blaie, JJ., concurred.


author: Montgomery, J.

text:
    BUXTON v. EMERY.
    1. Wills — Contest—Undue Influence.
    Evidence on a will contest examined, and held, sufficient to require submission of the question of undue influence to the jury.
    2. Same — Mental Capacity — Burden oe Proof.
    The burden of proving mental oapaoity to make a will is on the proponent, and it is error not to so charge.
    ’8. Same — Instructions.
    Instructions as to mental capacity examined, and held, erroneous as placing the burden of proving its lack on contestant.
    4. Same — Expert Evidence.
    Where, in a will contest, it is claimed that testatrix was a victim of the morphine habit, evidence that she exhibited symptoms indicating such habit is admissible to enable physicians to give expert evidence on the subject.
    5. Same — Instructions.
    Instructions on the use of expert testimony examined, and held, argumentative and open to criticism as containing a protest against established rules of evidence.
    Error to Wayne; Frazer, J.
    Submitted October 5, 1904.
    (Docket No. 4.)
    Decided March 21, 1905.
    Benjamin W. Buxton presented for probate the last “will and testament of Jennie E. Buxton, deceased. The will was allowed in the probate court, and Ralph Emery, .guardian of Robert T. Emery, appealed to the circuit court. There was judgment at the circuit for proponent, .and contestant brings error.
    Reversed.

      McDonald & Fowler, for contestant.

      Miller, Smith, Alexander & Paddock, for proponent!
   Montgomery, J.

This is a contest over the will of Jennie E. Buxton, deceased. From a verdict and judgment admitting the will to probate, the contestant, Emery, brings error.

The record is of great length, and contains 90 assignments of error. Many of these assignments must he passed upon without discussion, unless we start out to publish a volume for the report of this case. We are not possessed of this purpose, and will therefore confine our discussion to what we consider the salient features of the case.

The grounds of contest were the usual ones of mental incompetency and undue influence. The testator was a woman of refinement, but had in the later years of her life become a victim of the drinking habit. Without setting out at length the testimony, differing somewhat as to the extent of her drinking, it is enough to say that there is abundant proof from which the jury might have found that she drank whisky habitually, and often to excess, and that there. was testimony from experts tending to show that this habit had so affected her mentality as to render her incompetent. These deductions of the experts were, however, sharply controverted.

Mrs. Buxton’s immediate relatives were her son, the proponent, Benjamin W. Buxton, and the contestant’s ward, Robert T. Emery, a grandson of Mrs. Buxton, 10 years of age. Both were members of Mrs. Buxton’s household.. The son was married, and, with his wife, boarded with the mother. Robert’s mother had died shortly after his birth, and he had lived with his grandmother from his birth until after the will in question was made. She was very fond of him, as all the testimony-shows.

Benjamin W. Buxton had an estate from his father, although it was claimed on the trial that some portion thereof had not been paid over to him by his mother. Robert’s mother had a like estate, and at her death left an estate of something like $30,000, about $33,000 of which was by Ralph Emery allowed to pass into the hands of Robert’s guardian, as constituting Robert’s estate. There were no others who had a special claim upon the bounty of deceased.

The relations between Ralph Emery and deceased were not cordial. At the time of Mrs. Emery’s death, quite a large number of articles of jewelry, toilet articles, dresses, ornaments, etc., were left in Mrs. Buxton’s possession, and not inventoried by Robert’s guardian. In October, 1900, Mr. Pendleton, who had up to that date acted as Robert’s guardian, resigned, and Mr. Ralph Emery was appointed in his place. At this time, and for some time prior thereto, Mr. Alexander represented Mrs. Buxton as her attorney. Mr. Ralph Emery approached Mr. Alexander, presented a list of the articles belonging to the estate of his wife which had not been turned over to Robert’s guardian, and asked to have the list verified and the property accounted for. This demand came to Mrs. Buxton as a surprise, as we judge from the record. Mrs. Buxton is shown to have claimed that the property of right belonged to her. It is also shown that some of the property had been disposed of, and that she declined to account for it.

Mr. Ralph Emery testified that, after this claim had been made to him, Mrs. Buxton had an interview with him as follows:

“ She said she wanted to talk with me. After passing some general remarks, she said: ‘We have had our difficulties, and we have not been the best of friends, but I hope from now on we can be. You know I am getting old and feeble, and Robbie is about all I have in this world for comfort; and,’ she said, ‘for God’s sake, don’t take him away from me. He is everything to me, and when I die he shall have one-half of my property.’
Q. What did you reply to that statement ?
“A. I told her I didn’t have any intention at that time of taking him away. ”

Mrs. Buxton died March 16, 1902, leaving an estate of about' $50,000. The will in question was made on January 23,1902, and, by its terms, bequeathes the entire estate to her son, Benjamin, entirely excluding Robert Emery from any participation. Mrs. Buxton was about 70 years of age at the time of her death. At the conclusion of the testimony the circuit judge withdrew the question of undue influence from the jury. The question of mental competency was submitted to the jury under instructions to which reference will be made hereafter.

1. It is contended that the court was in error in withdrawing the question of undue influence from the jury. It is conceded that there is no direct evidence of any influence exerted by or on behalf of Benjamin, but the contention is that the circumstances tend to show that undue influence was exerted by Mr. Alexander. In counsel’s brief it is asserted that Mr. Alexander testified that he told Mrs. Buxton that Mr. Emery had threatened to drag her into court and to show that she was a drunkard; and, as Emery testified that he did not make this threat, it became a question for the jury as to whether this alleged untruthful statement to Mrs. Buxton was not made to cause or increase a prejudice against Ralph Emery, and thus indirectly prejudice her against the idea of leaving any sum to Robert. An examination of the record leaves some doubt as to whether the witness Alexander intended to be understood that the fact of this threat was communicated to Mrs. Buxton; but we are of the opinion that his testimony was susceptible to that construction by the jury, and that, if the fact should be so found, it would have some tendency to prove undue influence, when considered in connection with the fact that Mrs. Buxton assigned as one of her reasons for making the will in the terms which she adopted a want of confidence in Ralph Emery, and the further fact that no suggestion was made to her that the interests of Robert in any bequest might be protected against the imprudence or dishonesty of his father by the appointment of a trustee.

2. There was error in refusing contestant’s request to charge that the burden of proof on the question of mental capacity was with the proponent. Contestant was clearly entitled to such a charge, or its equivalent. Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494). It is contended by proponent’s counsel that the main charge of the court did, in effect, cast the burden of proof on the proponent, and that the jury must have so understood it. We do not so read the record. The court put the case to the jury as turning upon the question whether the testator was or was not of sufficient mental capacity to execute the will, and also charged as follows:

“ Bear in mind all the time, gentlemen of the jury, if the evidence in the case is satisfactory to you — to show you that there was lack of mental capacity to execute the paper at the time — then, whether the reasons are good or bad to you, the paper must fall for lack of this mental power. So you see, gentlemen of the jury, reason as you will, pursue whatever path you may see fit to follow, they all lead you back to this one, main, central proposition involved in this controversy — whether or not this testatrix, at the time this will was executed, had sufficient mind, under the rules that I have laid down to you, or, rather, sufficient mental capacity, to execute the paper presented here as her last will and testament.”

This instruction implies that the burden rests upon the contestant rather than upon proponent. It certainly does not effect the purpose aimed at by the request, and nowhere in the charge is the rule given to the jury.

3. The contestant sought to show that the testator was a victim of the morphine habit. No direct evidence was adduced to show the fact, but it was sought to show the main fact, as we gather from the record, by showing that the symptoms exhibited by Mrs. Buxton indicated this habit; and complaint is made of a remark or ruling of the court that “you cannot prove that the woman took morphine by somebody else’s opinion.” Without reviewing the specific rulings upon offers of testimony, we content ourselves with holding, in view of the necessity for a new trial, that it may become a matter for expert medical opinion as to whether the symptoms exhibited by one addicted to this habit are such as to enable a physician to judge of the fact. If they are, it follows that, as this habit is usually a secret one, such testimony might furnish the only means of proving the fact.

4. The circuit judge charged the jury upon the subject of expert testimony, and, after cautioning them as to the necessity of an opinion resting upon the foundation of fact, and illustrating his point by appropriate illustrations, added:

“I make these illustrations only for the purpose of showing the difficulties that surround people who are undertaking to give opinions upon what other people say, based upon a hypothetical question supposed to contain all the fa'cts that are germane to the issue. It is upon that uncertain foundation that all the experts in this case have been allowed to express their opinion. I permitted it in here. I permitted these people to give this testimony, and I want to say here, and say it frankly, not because I think I ought to have done it, but because the law compels me to do it— You can give it, on both sides of this case, just exactly such weight as you see fit to give it, and no more.- At best, the testimony of all these experts is but an opinion based upon supposed facts stated by witnesses, first filtered through the witness, then through the lawyer, then through the expert, and then through the jury; and that is the kind of evidence upon which decisions are based upon such kind of testimony. Now, wh'at the chances are of the conclusions drawn from that kind of testimony being correct, you can determine just as well as I can; but I submit this testimony to you, of these experts, telling you just exactly what it is, and how it is obtained, and what its strength is, and, without expressing any opinion as to whether they have formed correct opinions or not, I submit it to you, as the judges of the weight of this testimony, with these instructions, for your determination.”

This charge is argumentative, and is open to just criticism in so far as it contains a protest against established rules of evidence. We need not determine whether the later portion of the charge was calculated to correct the impressions given to the jury by the earlier, as- on a new trial the question is unlikely to arise in this form.

No other questions seem to call for special mention.

The judgment is reversed, and a new trial ordered.

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


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    VILLAGE OF PLYMOUTH v. PERE MARQUETTE RAILROAD CO.
    1. Eminent Domain — Railroads—Highways—Condemnation of Crossing — Damages .
    On condemnation of a highway across its tracks a railroad company is entitled to compensation for structural changes made necessary, and also for any direct expense made necessary by the fact of the street opening, as in maintaining a flagman, or gates, or cattle guards, but not for the observance of public regulations, such as cutting trains to avoid obstruction of the crossing.
    2. Damages — Instructions—Harmless Error.
    Error in the form of an instruction authorizing consideration of'an element of damages that should have been eliminated is not prejudicial to the party in whose favor it was given..
    Appeal from Wayne; Hosmer, J.
    Submitted October 7, 1904.
    (Docket No. 35.)
    Decided March 21, 1905.
    Proceedings by the village of Plymouth against the Pere Marquette Railroad Company to condemn a right of way for a street crossing. From an order confirming the award of the jury, respondent appeals.
    Affirmed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      Paul W. Voorhies (Harry Helfman, of counsel), for appellee.
   Montgomery, J.

This is a review of a proceeding taken by the petitioner to condemn a right of way for a street across the defendant’s track. The jury determined that the opening of the street was a necessary public improvement, and awarded the respondent damages to the amount of $382.64. The respondent brings the case here for review, contending that the circuit judge erred in his instructions to the jury as to the proper items to be considered in awarding damages.

It appears that at the point where the proposed street crosses the respondent’s tracks there are three tracks. The center track is the main track for trains between Toledo and Saginaw. The east track curves to the right, and connects the main track to Toledo with the main track to Detroit. The west track is known as the “south lead track,” and extends to the yard and the engine house. The testimony tended to show that the south lead track and the Detroit “ Y” are used for storing through trains while the locomotives are being supplied with coal and water and while the trainmen are waiting orders to proceed, and that upon the opening of this street, if the present method of operating trains continues, it will be necessary to open certain of defendant’s trains in order to avoid an obstruction of the new street for more than five minutes at a time, and that this will cause some delay and some additional expense in the operation of the road.

It is contended by the respondent:

First, that the damages caused by this delay and expense in opening trains is a proper item to be awarded to it in these proceedings; and, second, that, while the circuit judge was of this opinion, his charge was given in such form as to impress upon the jury his individual view that no tangible damages were shown, and that in this there was error.

The petitioner’s counsel take issue with the appellant on both propositions, and contend, first, that such damages as the respondent may sustain in the operation of its road by being required, in pursuance of police regulations, to open its trains to admit of teams passing across its tracks in the proposed street, are damnum absque injuria, and insist, second, that the circuit judge not only gave the rule contended for by respondent’s counsel, but that his charge is not subject to the criticism made.

Manifestly, the question of first importance is whether the railroad company is entitled to compensation for the inconvenience to which it will be put in operating its trains so as to admit of the use of the new street as a highway. This precise question has never been determined by this court. It is undoubted that in case of a condemnation of a right of way across a railroad the company is entitled to compensation for structural changes made necessary, and also for any direct expense made necessary by the fact of the street opening, as in maintaining a flagman, or gates, or cattle guards. City of Grand Rapids v. Railroad Co., 58 Mich. 641; Commissioners of Parks & Boulevards of Detroit v. Chicago, etc., R. Co., 91 Mich. 291; Same v. Michigan Central R. Co., 90 Mich. 385; City of Grand Rapids v. Bennett, 106 Mich. 528; Chicago, etc., R. Co. v. Hough, 61 Mich. 507.

On the other hand, it is well settled that compensation for the observance of public regulations cannot be demanded. 3 Elliott on Railroads, § 1103; Kansas City Suburban Belt R. Co. v. Kansas City, St. Louis & Chicago R. Co., 118 Mo. 599; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604; Chicago, etc., R. Co. v. Joliet, etc., R. Co., 105 Ill. 388; Peoria & Pekin Union R. Co. v. Peoria & Farmington R. Co., 105 Ill. 110; Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350.

The question is whether the inconvenience occasioned the respondent by opening the street in question falls within the first class or the latter. It is conceded by counsel for the respondent that, if the damage caused by cutting the trains arises out of a necessity to observe a mere police regulation, such damages are damnum absque injuria, but it is contended that the cutting of trains at this point is not only enjoined by a police regulation, but that any use of the street by the company which would unreasonably obstruct the same could, in the absence of any statute, be prevented, or the injury resulting therefrom could be redressed. It is true that any unreasonable obstruction of a street may constitute a nuisance, but we think it does not follow that statutory regulations of the joint use of streets by a railroad company and the public may not, in a sense, be treated as a police regulation.

In the present case the damages were sought to be measured by the loss of time and the increase of expense because the company would be precluded from occupying the street more than the time fixed by statute. The measure assumed was not what might, under any circumstances, be reasonable. We think the case ought not, in this respect, to be distinguished from Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350. In that case it was sought to recover damages which would result from being compelled to stop the trains of the respondent’s road before crossing the track of the petitioning road. The question was ably discussed in an elaborate opinion by Mr. Justice Champlin, and the conclusion was reached that such damages could not be recovered. It was held that the, company was not entitled to compensation for obeying a police regulation, and it was said:

“ These are police regulations, enacted by the legislature, designed to promote the public safety, and are as binding upon an existing road as one newly organized. They stand upon an equality before the law, and'neither can levy tribute upon the other as a compensation for obedience to its requirements. It is subject to amendment or repeal at any time the legislature may see fit, and for this reason, as well as for the absolute impossibility of determining in advance the number of trains which in the future operation of the road would be required to stop at such crossing, the damage arising therefrom is uncertain and conjectural. But, aside from this, any incovenience or annoyance or loss suffered in obeying the police regulations of the sovereign authority is damnum absque injuria.”

Much of this reasoning applies with peculiar force to the case before us. The legislature may repeal the statute fixing the five-minute rule at will, or may change that limit so as to remove any inconvenience to respondent, and to this extent that regulation is a police regulation.

We think this element of damages should have been eliminated from the case, and it follows that there was no error to the prejudice of respondent.

The order is affirmed, with costs.

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


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    EMPLOYERS’ LIABILITY ASSURANCE CORP. v. GRAND RAPIDS BRIDGE CO.
    1. Saving Questions for Review — Case Tried to Court — Request for Findings — Exceptions.
    Where, in a case tried to the court without a jury, defendant requests no finding of fact or law, and notes no exception to the decision of the judge on the main question in the case, that question is not open to review by defendant.
    2. Same.
    Where an insurance company claims that insured’s acceptance of the policy estops him from claiming that the application is a part of the contract, an exception to the introduction of the application in evidence fairly raises the question for review.
    3. Insurance — Application as Part of Contract — Acceptance of Policy — Waiver.
    The receipt by the insured of a policy, and filing it away without reading it, does not waive the right of the insured to insist that the application is a part of the contract, where the solicitor assured him, when taking it, that a copy of the application would be attached to the policy, and that it would not be necessary for him to preserve a copy.
    4. Costs on Error.
    Where both parties bring error, and the judgment remains undisturbed, no costs are awarded.
    Error to Kent; Perkins, J.
    Submitted October 20, 1904.
    (Docket No. 61.)
    Decided March 21, 1905.
    Assumpsit by the Employers’ Liability Assurance Corporation, Limited, against the Grand Rapids Bridge Company for a premium upon a policy of insurance. There was judgment for plaintiff for less than the amount claimed, and both parties bring error.
    Affirmed.

      John E. More, for plaintiff.

      Hatch & Wilson, for defendant.
   Montgomery, J.

On the 34th day of April, 1901, the plaintiff was engaged in the business of insuring employers against liability for damages on account of injuries suffered by an employe while engaged in the work of the employer. The different kinds of employment are classified, and insurance is written at different rates. In employers’ liability insurance the premium is determined by the gross amount of the pay roll and the rate. For the reason that the amount of the pay roll cannot be determined with certainty for the future period covered by the insurance, it is necessary to estimate the pay roll, and determine the premium by multiplying the amount of the estimated pay roll by the rate appropriate to the particular occupation. This estimated amount of pay roll may, at the end of the period covered by the policy, be found to be too great or too small, and it is customary to insert a provision in the policies of insurance of this sort that, if the actual amount paid exceeds the estimated amount mentioned in the policy, the assured shall pay the additional premium earned, and, if the amount actually paid is less than the estimated amount mentioned in the policy, the insurance company will return to the assured the unearned premium, pro rata, specifying a minimum premium which is to be retained by the insurance company in any event'.

The plaintiff had established an agency in Grand Rapids, under the management of Mr. Charles L. Grinnell. The defendant was engaged in the business of bridge building and structural work. Wilmer H. Heath was an insurance solicitor and agent for a bond company in the office of Mr. Grinnell. About the 31st of April, 1901, he went to the office of the defendant for the purpose of arranging with them for a bond to be given to the city on the East Bridge street culvert bridge. In the application for the bond, inquiry is made if the applicant carries liability insurance. Mr. Gaines, the manager of the defendant, said that they carried none, but were going to take out some. Heath told him that he wrote that kind of insurance, and would bring him up an application, He returned to Grinnell’s office, and told Grinnell that the bridge company wanted some employers’ liability insurance. He told Grinnell what the estimated pay roll was, and Grinnell entered upon a blank the particulars, viz., the period of the policy, the estimated amount of the pay roll, the rate, the amount of the premium, and the amount of the minimum premium. The estimated amount of the pay roll and the rate appeared in two places upon the application — in the upper right-hand corner,, where appeared also the amount of the premium, and in paragraph 12, where appeared the estimated amount of the pay roll, the rate, and the minimum premium. This was the first application for employers’ liability insurance that Heath had ever taken. Heath then took the application back to the bridge company, and showed it to Mr. Gaines, and filled out the remainder of the application from data furnished by Mr. Gaines. Heath explained to Gaines the method of arriving at the premium.

Before Gaines signed the application, he read it over very carefully, and figured out just what everything meant, and as to the pay roll they talked that, if there was anything over the $4,000, which had been fixed upon as the estimated pay roll, the bridge company was to pay 42 cents per hundred, and the minimum premium was to be $168. Heath made a copy of the application and gave it to Gaines. When Grinnell received this application, he sent it on to the insurance company, where it remained until the dispute arose which culminated in this suit.

The insurance company had issued a manual giving the classification of the different employments, and the rate appropriate to each. Mr. Grinnell had a copy of the mam ual, and upon examining it found the rate for bridge building to be $4.20 upon each $100 of the estimated pay roll. Upon filling the blanks in the application he computed the amount of the premium correctly at that rate, but in entering the rate of insurance he made the clerical error of

writing 42 cents instead of $4.20. He made the same mistake in paragraph 12, where the rate is also entered, and in that paragraph he also made the mistake of fixing the minimum premium at $168, which was the whole premium upon the estimated amount of the pay roll.

In due course the policy was delivered to the bridge company inclosed in an envelope, and was not examined by any of the officers of the company until the question arose which is to be determined in this suit. In the policy the rate is correctly stated to be $4.20 upon each $100 of wages, and the minimum premium is stated to be $25. The bridge company paid the premium of $168 shortly after the policy was delivered.

After the expiration of the policy Mr. Grinnell sent up to the office of the bridge company to ascertain the amount of the pay roll, so that settlement could be made, and, if the pay roll had exceeded the estimated amount of $4,000, he could collect the additional premium earned; if less than $4,000 had actually been paid for wages, he could return the unearned premium, pro rata, down to the minimum premium of $25. The amount actually paid for wages exceeded the sum of $4,000, and the insurance company demanded the premium upon the excess at the rate of $4.20 upon the $100. Mr. Gaines, the manager of the bridge company, produced his copy of the application, and claimed that the rate was 42 cents on the $100. The bridge company refused to pay, and this suit was commenced by summons in the justice’s court December 23, 1902.

On the return day — January 2, 1903 — the plaintiff filed its declaration in writing. The defendant pleaded orally the general issue. The case was tried before the court without a jury, and on February 10, 1903, judgment was rendered in favor of the insurance company, plaintiff, against the bridge company, for $203.99 damages, with costs of suit, taxed at $4.50. Defendant appealed the case to the circuit court, where the case was again tried before the court without a jury, and the court decided that the plaintiff was entitled to recover the premium upon the excess of wages paid beyond the estimated sum of $4,000, but only at the rate of 42 cents on the $100, which was computed at the sum of $21.71, and judgment was entered for plaintiff at that amount. Costs, however, were awarded to defendant bridge company, which were after-wards taxed at the sum of $32.40, and, setting off the judgment against the costs, it leaves a judgment in favor of defendant for $10.69. Neither party is satisfied with this result, and both ask this court to correct the errors made at the circuit.

There was no finding of facts or law called for, and no exception noted to the decision of the circuit judge on the main question by the defendant. The question is not, therefore, open to review by defendant under the repeated decisions of the court. Wertin v. Crocker, 47 Mich. 642; Irwin v. Sehlief, 48 Mich. 237; Haines v. Saviers, 93 Mich. 440; Gemberling v. Lazarus, 100 Mich. 324; Township of Cumming v. Shick, 94 Mich. 222. The plaintiff would be similarly handicapped were it not for its exception to the admission of the original proposal for insurance in evidence. This exception fairly raises the question in the case, which is this: Did the acceptance of this policy, under the circumstances shown, estop the defendant from asserting that the entire contract was embodied accurately in the policy ?

It is unquestioned law that the acceptance of a unilateral contract usually implies an assent to its terms. The question remains, however, as to whether the contract may be shown to have come into possession of the second party to it under circumstances showing that its terms were not assented to. It is to be noted in this case that there is no question of varying the terms of the contract by parol. The defendant’s proposal was in writing. Not only was this so, but the solicitor assured defendant that it was unnecessary to retain a copy of the proposal, as a copy would be attached to the policy. Had a copy of the proposal, as made, been attached, it is clear that this would have constituted a part of the contract. Plaintiff’s agents attached something different, and delivered it to the defendant. Defendant did notread it. Has plaintiff, by this means, foisted upon the defendant a contract differing essentially from that which it engaged to deliver ? There was no assent to this change. The question is ruled by Gristock v. Insurance Co., 87 Mich. 428; Hartford Steam Boiler Inspection & Ins. Co. v. Cartier, 89 Mich. 41; Dailey v. Accident Ass’n, 102 Mich. 289 (26 L. R. A. 171).

The language of the supreme court of Connecticut in ' Palmer v. Insurance Co., 54 Conn. 488, is so much in point, and so consonant with our view, that we quote:

“ If the underwriter solicits a person to purchase of him indemnity against loss by fire, and if they unite in making a written draft of all the terms, conditions, and stipulations which are to become a part of or in any way affect the contract, and if the underwriter promises to make and sign a copy thereof, and deliver it as the evidence of the terms of his undertaking, and if a material and variant condition is by mistake inserted, and the variant contract is delivered, and the stipulated premium is received and retained, the court will not hear the claim that he is entitled to the benefit of the variant condition, where the other party had either actual or imputed knowledge of the change. In his promise to make and deliver an accurate copy, there is justification before the law for the omission of the other party to examine the paper delivered, and for his assumption that there is no designed variance. A man is not for his pecuniary advantage to impute it to another as gross negligence that the other trusted to his fidelity to a promise of that character.”

The judgment is affirmed, but, as both parties appeal, and the judgment remains undisturbed, no costs will be awarded.

Moore, C. J., Carpenter, Grant, and Hooker, J.J., concurred.