author: Bird, J.

text:
    PEOPLE, for use of SAUER, v. CONNELL.
    1. Schools and School Districts — Public Works — Contracts— Subcontractors.
    Where plaintiffs agreed to and did manufacture the interior finish for a school house in conformity with the plans and specifications of the architects, they were subcontractors.
    2. Same — Public Works — Bonds — Notice — Sufficiency — Statutes.
    In a suit upon a bond given by. a contractor to a school board for the protéction of subcontractors and laborers upon a school house under the provisions of section 2, Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14827), where plaintiffs, subcontractors,' notified the school board by letter that they had contracted to furnish certain material, part of which had been delivered, stating the amount due them, said notice was a -sufficient compliance with the act, in view of the fact that the contract had been so modified that payment could be made by the school board direct to the materialmen and laborers; ‘ and. it was unnecessary for plaintiffs to notify the board that they relied on the bond, or to notify the principal contractor that this notice had been given to the board, as required by the act, since these requirements were to enable the officials to withhold funds sufficient to pay the subcontractor and to give notice thereof to the contractor so that he would not attempt to overdraw his account.

    Error to Wayne; Davis, J., presiding.
    Submitted June 16, 1916.
    (Docket No. 108.)
    Decided March 29, 1917.
    Assumpsit by Charles A. Sauer and Adam Sauer, copartners as C. A. Sauer & Company, in the name of the people of the State of Michigan, against Edward A. Connell, principal, and the Massachusetts Bonding & Insurance Company, surety, on a surety bond. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Monaghan & Monaghan, for appellants.

      Henry B. Graves, for appellees.

       On right of subcontractor, materialman, or laborer to maintain action on bond taken for benefit of public, see note in 49 L. R. A. (N. S.) 1175.

   Bird, J.

Defendant Edward A. Connell entered into a contract with the board of education of the city of Detroit on the 6th day of November, 1911, to construct a school building to be known as the “Caroline Cross-man School,” for the consideration of $77,281. The building was to be erected in accordance with the plans and specifications drawn by Malcomson & Higginbotham, architects. At the time the contract was executed, the board demanded and received from Connell a bond in compliance with Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14827). The bond was in the penal sum of $77,281, with defendant Massachusetts Bonding & Insurance Company as surety. After this contract had been executed, and on the 24th day of January, 1912, defendant Connell entered into a contract with plaintiffs to furnish certain interior finish, which Connell was obliged to furnish under his contract, for the consideration of $4,958. Connell proceeded with the work until November 14, 1912, when the contract was modified by consent of all parties, including the surety, so that payment could be made by the board of education direct to the materialmen and laborers. At the date of modification, Connell was indebted to the plaintiffs in the sum of $1,000, and Connell had received on his contract $31,-585.28. After the modification, the board paid out directly to materialmen and laborers $47,429.43. A settlement of the original contract took place between the board and Connell on January 22, 1914, and it was found that the board had paid out $847.71 in excess of the contract price. Later and in the year 1915, Connell was allowed a bill for extras of $4,-633.74. After deducting the previous overpayment and certain other amounts on account of unfinished work, he was paid the sum of $3,043.53. The $1,000 which was owing to plaintiffs prior to the modification of the contract being still unpaid, this suit was brought to recover the amount together with the interest thereon. The defendants offered no testimony, but requested a directed verdict. This request was denied, and a verdict was directed in accordance with plaintiffs,’ demand. Defendant surety company alone has appealed. Its counsel argue two questions:

(1) That the trial court was right in holding that plaintiffs were subcontractors.
(2) That the trial court was in error in holding that any recovery could be had because plaintiffs neglected to give the notice required by section 2 of said act.

The rule which appears to have been laid down by this court to determine in any given case whether one is a subcontractor or-a materialman is as, follows:

"Has he. agreed that the original contract shall be the standard by which the performance of his contract shall be judged?” People v. Campfield, 150 Mich. 675 (114 N. W. 659).

The entire agreement between plaintiffs and Connell does not appear in the record, due probably to the fact that Chas. A. Sauer died a few days before the trial; but we think a fair inference may be drawn from the testimony that plaintiffs agreed to and did manufacture the interior finish in conformity with the plans and specifications of the architects. We therefore conclude that the trial court was right in holding that the plaintiffs were “subcontractors.”

Counsel’s second and principal contention is that no recovery can be had against the defendant surety company because section 2 of Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14828), was not complied with in giving the notice therein required. The material portion of the section provides that:

“In the case of a subcontractor, he shall give notice in writing before payment is made for the work or materials furnished by him, to the said board of officers or agents, that he is a subcontractor for the doing of some part of such work which he shall specify in his notice and that he relies upon the security of the bond by this act required to be given by the principal contractor, and that in the case of the giving of such notice to the said board of officers or agents said subcontractor shall also notify the - principal contractor that he has. done so, and whenever this shall have been done, the said subcontractor shall be entitled, subject to the rights of the persons with whom he has contracted for labor and materials, to the benefit of the security given by the principal contractor.”

The essentials of this section are:

(а) That the subcontractor shall give notice to the officials, that he has entered into a contract with the principal contractor to do some part of the work.
(б) That he shall give such notice in writing before the principal contractor shall be paid for the work and materials so furnished by him.
(c) That he relies upon the security of the bond.
(d) That he shall notify the principal contractor that he has given this notice to the officials.

It is conceded that no formal notice embracing these essentials was given by the plaintiffs, but it is claimed that a letter written by them to the board of education in October, 1912, just prior to the modification of the contract, was a substantial compliance with this section. The letter follows:

“We beg to advise you that on January 25th, 12, we entered into a contract with Mr. ■ E. A. Connell, contractor for the Crossman School Bldg., to furnish material as enumerated on the enclosed copy of our contract. We have made delivery of upwards of $2,-000.00 of this material upon which we have received $1,000.00, leaving a balance of $1,000.00 due. We also have all material manufactured ready for shipment awaiting instructions. In the event that the contract for balance of work on this building is taken out of Mr. Connell’s control we would appreciate it very much to have you advise us. Thanking you for your consideration, we are, * *

We think the notice contained in this letter was a full compliance with essential “a” and a reasonable compliance with essential “6.” When the letter was written, less than half of the contract price had been paid to the contractor, and the major part of the interior finish had not yet been delivered to the contractor in Detroit. The letter does not, however, satisfy the essentials “c” and “cl.” So far as the reasons are apparent for inserting these requirements, they were to enable the officials to withhold funds sufficient to pay the subcontractor and to give notice thereof to the contractor so that he would not attempt to overdraw his account which should accrue from time to time upon estimates. If this be the proper view, we can see no reason for complying with essentials “c” and “d,” because the board had taken into .its own hands the whole matter of making disbursements to materialmen, laborers, and subcontractors.

Having in mind the very liberal construction which this court has given the statute (People v. Traves, 188 Mich. 415 [154 N. W. 120]), we are constrained to hold that this letter is a substantial compliance with section 2. The case of People v. Finn, 162 Mich. 481 (127 N. W. 704), is urged upon our attention as being opposed to this view; but we think the cases are distinguishable. In the Finn Case no notice at all was served. ■ In this case a somewhat belated notice was served; but defendant surety company has not made it appear that it has been injured thereby, consequently it has no ground for complaint. People v. Bowen, 187 Mich. 257 (158 N. W. 672); People v. Traves, 188 Mich. 345 (154 N. W. 130).

The judgment of the trial court will be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Kui-in, C. J.

license: Public Domain

text:
    HUMISTON, KEELING & CO. v. BRIDGMAN.
    1. Judgment — Parties — Garnishment — Equity — Bulk-Sales Law.
    That a defendant in garnishment proceedings, improperly joined with the present defendants, against whom the case never came to issue, had the judgment against him reversed, is no bar to a proceeding in equity to reach the assets of a debtor transferred to defendants in violation of the bulk-sales law (Act No. 223, Pub. Acts 1905, 2 Comp. Laws 1915, § 6346 et seq.), said defendant not being a party to the present proceedings.

    2. Same — Garnishment—Equity—Proceedings—Issues Framed.
    The doctrine of former adjudication in the garnishment proceedings does not apply where no summons to show cause was taken out against defendants, no declaration filed, and no issue formed or tried as to their liability; and the fact that their liability might have been determined is no bar to the present proceedings.
    3 Election oe Remedies — Judgment—Estoppel.
    The mere bringing of an action which has been dismissed before judgment, and in which no element of estoppel in pais has arisen, is not an election of remedies.

      i. Same — Alternative Remedies — Estoppel.
    Where remedies are not inconsistent, but are alternative, there is no election until one has been prosecuted to judgment, unless the plaintiff has gained an advantage or the defendant suffered a disadvantage; but where the demands are inconsistent the election of one right of action is an estoppel to the subsequent assertion of the other.
    5. Same — Plea in Abatement — Garnishment — Equity — Bulk-Sales Law — Estoppel.
    Garnishment proceedings are not inconsistent with proceedings in equity to reach the assets of a debtor transferred in violation of the bulk-sales law, and the mere commencement of a garnishment suit against the same defendants without bringing it to judgment was not an election of remedies constituting a bar to the present proceedings.
    Appeal from Berrien; Collingwood, J., presiding.
    Submitted January 8, 1917.
    (Docket No. 58.)
    Decided March 29, 1917.
    Bill by Humiston, Keeling & Company against George C. Bridgman and others to enforce the provisions of the “Sales in Bulk Law.” From an order overruling the pleas in abatement of defendants Bridgman and Yore, said defendants appeal.
    Affirmed.

      George M. Valentine, for appellant Bridgman.

      Gore & Harvey, for appellant Yore.

      Stratton & Evans, for appellee.

       As to remedy of creditors where sale is made in violation of bulk-sales law, see notes in 39 L. R. A. (N. S.) 374; L. R. A. 1916B, 974.

   Kui-in, C. J.

We have previously considered one feature of this litigation when the case was before us upon the question of the equity jurisdiction. It is reported in 181 Mich. 629 (148 N. W. 266), and the facts contained in the bill of complaint are quite fully set forth in the opinion reversing the order of the lower court sustaining a demurrer to the bill and the contention that the bill made a case for the appointment of a receiver. For a proper understanding of the case it is necessary to restate some of the material facts, which are taken from the previous opinion:

“The complainant, a wholesale druggist, between June 30 and December 16, 1906,' sold goods to the defendant John A. Inman, who was a retail druggist in Benton Harbor, amounting in value to $390.04, which have never been paid for. On or about December 17, 1906, Inman sold his entire stock of goods and fixtures,- of the actual value of $3,000, to the defendant Catherine Yore for the sum of $300, and she agreed that she would assume and agree to pay In-man’s debts in connection with the store, which she was informed amounted to $800 or more. Immediately after this sale Inman left for parts unknown, leaving no property in the county or State, and, although the complainant, through its agents, made a diligent search for him during the month of January, 1907, and tried to locate him, he has not been seen nor heard of. On December 23, 1906, Mrs. Yore sold the stock of goods and fixtures to the defendant George C. Bridgman, who gave her indemnity against any indebtedness of Inman which she might be compelled to pay on account of her purchase of the stock and fixtures. It is alleged that Mrs. Yore claimed that in the purchase of the stock she was acting only as agent for defendant Bridgman. Neither in the sale from In-man to Mrs. Yore nor in the sale from Mrs. Yore to Bridgman were the provisions of the bulk-sales law (Act No. 223, Pub. Acts 1905, 2 How. Stat. [2d Ed.] § 2612 et seq.) observed or followed.”

When the case came back to the circuit court, pleas in abatement were filed by the defendants Yore and Bridgman. The pleas alleged, in substance: That in January, 1907, the plaintiff commenced a suit against John A. Inman in the justice’s court, and that simultaneously suit was commenced against Patrick Yóre, Catherine Yore, and George C. Bridgman as garnishee defendants. That judgment was obtained against the principal defendant, which was not appealed from, and that garnishee defendant. Patrick Yore filed a disclosure, and judgment was obtained against him, from which judgment he appealed to the circuit court, where a judgment was given for him and against the plaintiff. That after disclosure the cause as to defendants Catherine Yore and George C. Bridgman was continued without day, and no show-cause summons was issued, nor any further proceedings taken against them. It is further alleged that all proceedings against the defendants named in the pleas were taken under Act No. 223, Pub. Acts 1905, known as the bulk-sales law (2 Comp. Laws 1915, § 6346).

The plaintiff noticed the pleas for argument, which, under the practice then in force, it was agreed by both sides, amounted to demurrers to the pleas. The pleas being overruled by the trial judge, the defendants appeal to this court.

It is the contention of counsel for appellants that the pleas should have been sustained on two grounds:

(1) That complainant, having á right to bring an action at law or a suit in chancery, brought its action at law, and thereby elected the remedy at law, and that complainant is bound by that election.
(2) That the matters here in suit have long ago been litigated and decided at law, and that the former adjudication is binding on complainants, and that the same cannot now be again litigated in chancery, especially in the absence of any showing in the bill that there were material facts not known to the complainant when it brought its suit at law.

It should be borne in mind that Patrick Yore is not a party to the present suit, and that therefore the obtaining of a judgment against him and his obtaining a reversal thereof on appeal does not, in our opinion, affect the question raised in this', litigation, as the plaintiff’s mistake in pursuing Patrick Yore as the purchaser from Inman does not bar it from pursuing the present defendants.

The question is: Does the doctrine of former adjudication apply to the defendants in this case, because of the action taken against them in the garnishment proceedings? It must be manifest that there could be no adjudication upon the merits of the question of the claimed liability of these two garnishee defendants until an issue has been tendered, joined, and determined. No summons to show cause was taken out against them within the time provided by the statute. Section 13412, 5 How. Stat. (2d Ed.) (3 Comp. Laws. 1915, § 14374). No declaration was filed, and no issue formed or tried, as to their liability, as it is clear that this could not be done without the issuance of summons to show cause. It is argued that plaintiff might have litigated the question of defendants’ liability in the garnishment proceedings; but the plaintiff, after obtaining full knowledge from the disclosure, did not see fit so to do.

The rule with reference to the election of remedies, which we think is applicable to. the existing situation, is thus stated in 9 R. C. L. p. 961:

“But the more reasonable rule is that the mere bringing of an action which has been dismissed before judgment, and in which no element of estoppel in pads has arisen — that is, where no advantage has been gained or no detriment has been occasioned — is not an election. Where the remedies are inconsistent, the failure to secure satisfaction by means of the remedy adopted does, not, it has been held, take the case out of the doctrine of election. * * * In that class of cases in which the remedies, are not inconsistent, but are alternative and concurrent, there is no election until one of them has been prosecuted to judgment, unless the plaintiff has gained an advantage or the defendant has suffered a disadvantage. In some of the cases in this class it has been determined that there is no estoppel until satisfaction has been obtained.”

The defendants make no showing that any advantage has been gained or disadvantage suffered because of the proceedings at law. In our previous opinion (181 Mich., at page 633 [148 N. W. 266]) we said:

“The status of neither of the defendants Mrs. Yore or Bridgman has changed, and the delay has not put them in a worse condition.”

In the case of Mintz v. Jacob, 163 Mich. 280, 283 (128 N. W. 211), this court said:

“It is the inconsistency of the demands which makes the election of one right of action an estoppel against the subsequent assertion of the other, and not the fact that the forms, of action are different.”

It is true that in the case at bar the forms of action are different, but there is no inconsistency in the demands, and in our opinion the mere commencing of an action, or resorting to one remedy, is no bar to the commencing of a different form of action, provided only that the remedial rights asserted in each instance 'are consistent. The theories of the two actions here in question seem to us to be entirely consistent. In the action at law the plaintiff relied' upon the defendants’ liability as garnishee defendants. In the present suit the plaintiff relies upon the defendants’ liability as trustees for the plaintiff and other creditors of the value and proceeds of the goods obtained by Inman from plaintiff.

The circuit court judge was clearly right in overruling the pleas in abatement, and his order in so doing is. therefore affirmed, with costs to the plaintiff.

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


author: Kuhn, C. J.

text:
    McKAY v. DETROIT UNITED RAILWAY.
    1. Carriers — Trial — Street Railways — Personal Injuries — Credibility of Witnesses.
    In an action against a street railway company for personal injuries received while alighting from defendant’s street car, where the testimony of plaintiff, who was 95 years old at the time of the accident, showed some lapse of memory, but on material facts was quite clear, and the testimony of defendant’s witnesses was contradictory, the credibility of the witnesses was a question for the jury, under proper instructions.
    2. Same — Trial—Weight of Evidence — New Trial.
    In such action, where the evidence was contradictory, and the issue was submitted to the jury under proper instructions, it was not error for the trial court to deny a motion for a new trial on the ground that the verdict was against the weight of the evidence.
    Error to Wayne; Murphy, J.
    Submitted January 28, 1917.
    (Docket No. 137.)
    Decided March 29, 1917.
    Case by John S. McKay against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody (Benj. S. Pagel, of counsel), for appellant.

      Schmalzriedt & Toms, for appellee.
   Kuhn, C. J.

The plaintiff recovered a judgment of $1,500 against the defendant because of injuries sustained while alighting from one of its cars on Monroe avenue near Woodward avenue in the city of Detroit. It was the claim of the plaintiff, who was 95 years old at the time of the accident, that after the car had come to a standstill several passengers got off ahead of him, and that when he got on the rear platform he attempted to alight by going down the steps in a backward position; that he took hold of both handles on the side of the car, and that while he was in the act of letting go with his right hand and was about to step to the ground, and before he was given a reasonable chance to get to a place of safety upon the pavement, the car was suddenly started forward, and his hand became caught in the handle, and he was dragged along with the car a considerable distance, approximately 100 feet, which resulted in his injuries. It is the claim of the defendant that the only motion of the car was caused by the release of the brakes, and, as soon as they were released and the car was found in motion, that the brakes were immediately reapplied, and that all that could be done was done by the motorman to prevent any further movement of the car; that the car did not move more than 2 or 4 feet; and that what did happen was simply an unavoidable accident.

These two theories were presented to the jury by the trial judge in a clear charge. A motion for a new trial was made based upon the ground that the verdict was against the weight of the evidence. The denial of this motion by the trial judge is the only question which is here to be reviewed.

It is urged that the testimony of the plaintiff shows that because of his advanced years it is not to be credited,- as it shows lapses of memory upon his part, and that the testimony of the motorman and conductor and a disinterested passenger who testified should be believed rather than that of the plaintiff. We have carefully examined the entire record, and, while it does appear that the plaintiff did not remember certain matters with reference to which he was interrogated, it also shows that as to the material facts involved in this controversy his testimony was quite’ clear. It likewise appears that the testimony of defendantfs. witnesses was not without contradictions. Both the motorman and- conductor testified that the car started with a jolt, while the testimony of the defendant’s other witness, who was on the car at the time, shows that he did not remember it starting with a jolt, but that it started “nice and easy.” The credibility of witnesses is to be determined by the jury and by the trial judge in determining the merits of the motion for a new trial. They have the benefit of seeing and hearing them on the witness stand. The evidence in this case was. clearly conflicting, and we are not prepared to say that the trial judge erred in denying the motion, for a new trial on the ground that the verdict was against the weight of the evidence.

Thé judgment is affirmed.

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


text:
    ZIELINSKI v. POTTER.
    1. Food — Sales—Warranty—Implied Warranty — Dealers— Caveat Emptor.
    In an action for the value of a heef “critter,” bought by plaintiff, a wholesale and retail meat dealer, which proved to be diseased and unfit for food, there was no implied warranty of fitness, and, in the absence of express warranty or fraud, plaintiff could not recover; the doctrine of caveat emptor being applicable.

    2. Same — Private Individual — Implied Warranty.
    Where a private individual buys food for his own use and consumption from a vendor who is a dealer in the business of handling such articles, there is an implied warranty as to fitness for the purpose for which it is sold.
    Error to Bay; Collins, J.
    Submitted January 3, 1917.
    (Docket No. 25.)
    Decided March 29, 1917.
    Assumpsit in justice’s court by William J. Zielinski against James Potter for the price of a cow. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Joslyn & Houghton, for appellant.

      Charles W. Hitchcock, for appellee.
    The plaintiff is a wholesale and retail meat dealer in the city of Bay City, and the defendant is a farmer and milk dealer living on the outskirts of that city. In the year 1914 the defendant entered into negotiations with one Mike Golombeck, who was in the employ of the plaintiff, for the exchange of a cow and calf belonging to the plaintiff for a beef “critter” belonging to the defendant. Golombeck took the cow and calf to the defendant’s farm, and an exchange was effected whereby the defendant took the cow and calf and gave Golombeck the beef “critter” and $7 in cash. The “critter” was thoroughly examined by Golombeck, who was an experienced buyer and butcher, and both parties were satisfied. Two days later the plaintiff sent the “critter” to a slaughterhouse to be butchered, and there the meat inspector examined it and rejected it as unfit for food and ordered the carcass destroyed. Certain specimens were removed from the darcass and sent to Ann Arbor, where they were examined under the microscope and repprted to be diseased with malignant lympho-sarcoma and to be unfit for food.
    It appeared that the “critter” had been a milch cow, but had been dry for about two months, and the defendant had fatted it for the purpose of selling it for beef. It further appeared that the cow had never been sick, had always eaten heartily, and had no external marks that indicated it was diseased.
    The plaintiff brought suit in the justice’s court to recover for the cow and calf sold by plaintiff to the defendant. Judgment was rendered for the plaintiff, and appeal was taken to the circuit court. On the trial there a verdict of no cause of action was rendered by the jury, and judgment entered thereon. The following special question was submitted to the jury and answered by them in the affirmative:
    “Was the meat in the cow in question fit for food and suitable for family consumption when the cow was butchered Monday morning?”
    In this court the following contentions are made by counsel for appellant in his brief:
    “(1) That the cow so diseased was of no value, and consequently no consideration passed to plaintiff for the cow and calf he sold to defendant.
    “(2) That the cow was sold by the producer and purchased by the plaintiff for family consumption, and consequently impliedly warranted fit for that purpose.
    “(3) That the findings of the meat inspector and board of health in this case, when made in good faith, are conclusive.”

       The question of implied warranty on sale of food is discussed in notes in 22 L. R. A. 195; 15 L. R. A. (N. S.) 884.

   Kuhn, C. J.

(after stating the facts). The learned trial judge submitted the case to the jury upon the theory that one who sells articles of food impliedly warrants such articles to be fit for the purpose for which they are sold, and, if it develops that such articles are not fit for food, the loss falls on the seller, and not on the purchaser.

An examination of the authorities shows that this doctrine of implied warranty does not apply to a situation such as is presented by this record. Where a purchaser by reason of his knowledge and occupation is in as good a position to judge as to the fitness of the article for food as the vendor is, the doctrine of caveat emptor applies. While it is true that, where a private individual buys for his own use and consumption from a vendor who is a dealer in the business of handling such articles, there is an implied warranty as to fitness for the purpose for which they are sold, nevertheless, where there are two dealers negotiating between themselves, each having an equal chance to inspect the article and each with equal knowledge, it does not apply

In this case it is shown that the purchaser was experienced in the business of buying cattle, and there is no claim that there was any express warranty, and no question of fraud is raised. In the recent case of Baker v. Kamantowsky, 188 Mich. 569 (155 N. W. 430), we had occasion to consider this question, and we there said:

“This would be a sale by one dealer to another, and not a sale to a consumer. Under such circumstances the rule of caveat emptor applies, if the purchaser had an opportunity to inspect the meat,- which he did in this case. Hoover v. Peters, 18 Mich. 51; Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690); Uniform Sales Law, § 15 (Act No. 100, Pub. Acts 1913).”

See, also, Hanson v. Hartse, 70 Minn. 282 (73 N. W. 163, 68 Am. St. Rep. 527); Howard v. Emerson, 110 Mass. 320 (14 Am. Rep. 608); Cotton v. Reed, 25 Misc. Rep. 380 (54 N. Y. Supp. 143); Warren v. Buck, 71 Vt. 44 (42 Atl. 979, 76 Am. St. Rep. 754).

We are of the opinion that the court should have directed a verdict for the defendant. As this conclusion results in sustaining the judgment entered in the court below, it is unnecessary to consider the other questions raised by appellant in his brief.

The judgment is affirmed.

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


text:
    WILSON v. JOHNSON.
    1. Automobiles — Highways and Streets — Negligence—Contributory Negligence — Directed Verdict.
    In an action under the survival act (3 Comp. Laws, § 10117, 3 Comp. Laws 1915, § 12383) for the wrongful killing of plaintiff’s decedent, a traffic officer, by being struck at a street intersection by an automobile driven by defendant when the latter attempted to cut the corner in violation of law, where defendant’s evidence that deceased, who was not on duty at the time of the accident, directed defendant in the course he took was contradicted, a directed verdict on the ground of contributory negligence was properly refused.

    2. Same — Law of Road — Cutting Cornee.
    The claimed signal by the deceased was no excuse for defendant’s cutting the corner, where he was already in the act of doing it, and on the wrong side of the highway.
    3. Same — Law of Road — Motor Vehicle Law — Passing Other Vehicle.
    Where defendant neglected to signal a wagon ahead of him of his desire to pass, in compliance with section 4815, 1 Comp. Laws 1915, when the wagon would turn to the right and allow him to pass on the left, there being ample roam for two vehicles to pass on the right side of the street, the court below was not in error in refusing to charge that it was defendant’s duty to pass to the left of the wagon.
    4. Same — Trial—Instructions—Appeal and Error — Negligence —Contributory Negligence.
    Where the general charge of the trial court on the law of defendant’s negligence and decedent’s contributory negligence was as favorable to defendant as he was entitled to, he could not complain because not given in the exact words of his request.
    5. Same — Highways and Streets — Rights of Pedestrians and Vehicles.
    Both the pedestrian and the driver of the automobile had a right to use the street, and their duty to exercise due care, such as ordinarily careful and prudent persons would, under like circumstances, was reciprocal; and each had the right to assume that the other would exercise due care and caution and obey the law. 8. Same — Negligence—Emergency—Mistake in Judgment — Request to Charge.
    Defendant’s request to charge that: “If the defendant made a mistake in judgment in such a great and sudden emergency as is disclosed in this case, what the defendant did could not be construed as negligence or carelessness,” was properly refused because the question of whether ,or not the emergency was caused by the negligence of defendant was not incorporated therein.
    7. Same — Negligence—Speed—Question for Jury.
    The question as to whether the speed of the automobile was in excess of 10 miles an hour, in violation of law, was properly submitted to the jury, where there was testimony that it was going 10 or 12 miles an hour, and that deceased was pushed approximately 50 feet after being struck, although the clutch was' out and the brakes were set; defendant testifying that with his car running 6 miles an hour he could have stopped it within 7 feet.
    8. New Trial — Newly Discovered Evidence — Discretion of Court — Probable Result.
    There was no abuse of the discretion of the trial court in denying a motion for a new trial on the ground of newly discovered evidence, where it was not made to appear that the evidence was more than cumulative or would produce a different result on a new trial.

      Error to Isabella; Chester, J., presiding.
    Submitted January 2,1917.
    (Docket No. 8.)
    Decided March 29, 1917.
    Case by Jessie Wilson, administratrix of the estate of James Wilson, deceased, against James Johnson for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      F. McNamara and F. H. Dodds, for appellant.

      F. W. De Foe, for appellee.
    Plaintiff’s intestate having lost his life by being struck by an automobile owned and operated by defendant, this action is brought under the “Survival Act” (3 Comp. Laws, § 10117 [3 Comp. Laws 1915, § 12383]) to recover damages because of the alleged negligence of the defendant.
    The accident occurred on November 2, 1913, at the intersection of Main- and Broadway streets, which are the two principal business streets, in the city of Mt. Pleasant in this State. Main street runs north and south, and at the intersection is 48 feet 9 inches wide. Broadway runs east and west, and is 50 feet 9 inches at the intersection. On the southwest corner is a store, on the northwest corner a hotel, on the northeast corner another store,- and on the southeast corner a bank. At. .the time of the accident the deceased was walking east on Broadway, and he was hit by the automobile after he had stepped off the curb and before he reached" the center of the street, and approximately on the crosswalk. The defendant was driving north on Main' street within 6 or 7 feet of the east or right-hand curb, and so continued until he had reached a point opposite the center of the bank building. Defendant then took a northwesterly direction, and by the time he reached the crosswalk he was between the center of the street and the west curb.
    It is the plaintiff’s claim that the deceased left the sidewalk walking east and with his head turned toward the east and north. Just before he was hit, he glanced to the south and saw the car, apparently for the first time, coming at the rate of 10 or 12 miles an hour, right upon him, and that he did not have time to step back and avoid it. Defendant’s witnesses stated that, upon seeing the car, he took two or three quick steps backward and was hit by the left-hand side of the car. All witnesses agree that he was struck by the left-hand side of the front end of the car; that he fell over onto the fender or mudguard and was carried for some distance, and then fell to the pavement and was shoved along ahead of the car until it came to a stop. The evidence as to how far he was carried on the front end of the car varies from 3 to 15 feet. As. to how far deceased was shoved the testimony also varies, ranging from about 15' feet from the north side of the square to the north sidewalk itself. The defendant and his wife both testified that, when the car had approached to within a couple of car lengths of the deceased, he looked at the car and nodded his head toward the west as if indicating that the car should go that way. The evidence further shows, that as the automobile came up Main street a wagon was standing about in the center of the street, either in the square or else just north of the north side of the square.
    The accident occurred about 4 in the afternoon and at 2 the following morning the deceased died, never having regained consciousness. The jury rendered a verdict for $1,268.40 in favor of the plaintiff. Thereafter defendant made a motion for a new trial, which was denied.

      On rules of road governing vehicles at intersection of streets and when turning across street, see note in 41 L. R. A. (N. S.) 3.46..

       On reciprocal duty of operator of automobile and pedestrian to use care, see notes in 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.

      The question of circumstances under which cumulative evidence has or has not been held to render a different outcome probable is discussed in notes in 46 L. R. A. (N. S.) 911; L. R. A. 1916C, 1162.

   Kuhn, C. J.

(after stating the facts). The first question counsel for appellant request us to consider is their claim that the court should have directed a verdict for the defendant because of the contributory negligence of the deceased. This is based on the testimony of the defendant and his wife that the plaintiff’s decedent, who was marshal of the city and had acted as traffic manager at the intersection square, directed the defendant in the course he took. The testimony is clear, however, that at the time of the accident the decedent was not acting as a traffic officer, and that he made no motion with his hands because these were in his pockets. The testimony of the defendant and his wife as to the nod of the head is contradicted by other evidence in the case, and clearly this question, under all the evidence, was for the jury and is not so free from doubt that it can be decided as a matter of law.

The only excuse given by the defendant for driving to the left of the intersection in violation of law was his claim that the wagon load of cement stood in the east side of the square. The claimed signal by the deceased was no excuse for his cutting the corner, because he was already in the act of doing it and on the wrong side of the highway when he claims the signal was given. As has been said, there is a hopeless conflict in the testimony of the witnesses as to the exact position of the wagon. Error is assigned because of the refusal of the court to charge that it was the defendant’s duty to pass to the left of this wagon. It is true that, ordinarily, it is the duty of one vehicle to pass to the left of another going in the same direction, but to do so and cut the corner would be a violation of another statute. There was ample room for two vehicles to pass on the right side of the street. The law is specific as to what shall be done under such circumstances. The driver of the overtaking vehicle shall express his desire to pass, and the vehicle overtaken shall turn to the right and give the other an opportunity to pass on the left. 1 Comp. Laws 1915, § 4815. It does not'appear that the defendant made any effort to comply with the statute. The adoption of the rule contended for by the defendant would result, especially in cities where traffic is heavy, necessitating delays at street intersections, in automobiles continually cutting the corners.

Certain requests to charge were preferred as to the negligence of the defendant and the contributory negligence of the plaintiff’s decedent. While they were not given in the exact language of the requests, the court in his general charge dwelled at length on the law of contributory negligence and, in our opinion, gave as favorable a charge with relation thereto as the defendant was entitled to.

In part, he said:

“The right to the use of the street lies in both parties, the pedestrian and the operator of the car; and their duty to exercise due care is reciprocal, whatever the character of the vehicle may be that was on the street, or the pedestrian on the street. The plaintiff’s intestate when attempting to cross this highway had a_ right to assume that all other persons using the highway, including defendant, would exercise due°care and that they would obey the law, and it was the duty of both the defendant and the decedent to exercise that care and caution that ordinarily careful and prudent persons would when moving along on this street. Let’s go back just a moment. It was the duty of both the defendant and the decedent to exercise that degree of care that the ordinarily careful and prudent person would when moving along on this street, for the purpose of determining whether any danger was liable to come to either by reason of their being on the crossing. And they both should exercise care according to the circumstances surrounding them, and are bound to the alert and watchful performance of the duty due from all travelers on all highways, and not walk nor drive blindly into positions that will endanger themselves or others. Of course, gentlemen, this does not go beyond the rule I have given you of ordinary care and prudence.
“If you find that the defendant in pursuing his course, or in changing his course, veered to the northwest by the direction of the deceased, conveyed to him by the nod of his head as claimed by the defendant, and the defendant then understanding that Mr. Wilson was the marshal of the city and that he had acted as a traffic officer on this particular intersection, then the defendant was not guilty of negligence in taking the course he took.”

Others embodied a request to charge:

“If the defendant made a mistake in judgment in such a great and sudden emergency as is disclosed in this case, what the defendant did could not be construed as negligence or carelessness.”

The question of whether or not the emergency was caused by the negligence of the defendant was not incorporated in this request, and this should have been done if it was desired to have this question submitted tq the jury.

The court submitted the case to the jury upon the theory that the defendant may have been operating his car at the time of the accident at a greater rate of speed than 10 miles an hour. Defendant’s counsel requested the court to charge the jury that there was no testimony in the case upon which such a theory could be based. Witness Newberry testified that the car was traveling 10 or 12 miles an hour. The defendant testified that with his car running 6 miles an hour he could have stopped it within 7 feet of the point when he realized deceased was in danger, that his brakes were in perfect working order, that his clutch was out and the car coasting as he struck deceased, that he never let the clutch in again after the collision, that he applied the brake at once, and did not release it again until after deceased had fallen. There is testimony to show that,, even though defendant applied the brakes as claimed, the car’s momentum after it hit the deceased carried it, most of the time shoving him before it on the pavement, a distance of approximately 50 feet. This, in our opinion, was proof sufficient to warrant the submission of the question with relation to the rate of speed to the jury.

It is also claimed that the court erred in overruling defendant’s motion for a new trial. It is said that the motion should have been granted because of the showing made as to newly discovered evidence, supported by tne affidavits of three persons who claimed to have seen the deceased nod to the defendant, as testified to by the defendant and his wife. In the recent case of Branch v. Klatt, 173 Mich. 31, at page 40 (138 N. W. 263, 266), this court said:

“Whether the newly discovered evidence is of such a character and a different conclusion ought to follow, or is probable on a retrial, is a question primarily and peculiarly addressed to the good judgment and discretion of the trial judge who heard and saw the witnesses and is familiar with the visual conditions of the case. That discretion will not, as a rule, be disturbed except in case of manifest abuse.” ■

The trial judge said:

“The court is not persuaded that the showing regarding claimed newly discovered evidence is sufficient or is'such as to justify the granting of a new trial.”

We are not satisfied that the trial judge abused his discretion in denying this motion, as in our opinion it was not made to appear that the evidence was not cumulative and it would produce a different result on a new trial. See Guerold v. Holtz, 103 Mich. 118 (61 N. W. 278); White v. Peabody, 106 Mich. 144 (64 N. W. 41); Morin v. Robarge, 132 Mich. 337 (93 N. W. 886.); Cummings v. Baker, 141 Mich. 536 (104 N. W. 979); Storch v. Rose, 152 Mich. 521 (116 N. W. 402); National Surety Co. v. Grant, 177 Mich. 348 (143 N. W. 5).

The judgment is affirmed.

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


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    TREAT v. PRYOR.
    Drains — Culverts—Railroads—Surface Drainage.
    Where a culvert or passageway for stock was constructed at the natural watershed under the tracks of a railroad company, in pursuance of an agreement with the grantor of the right of way, and same has been maintained for nearly 34 years, being the natural drainage outlet for surface water for land on one side of the track, the owner of same is entitled to have the culvert as originally constructed maintained for such purpose, although not entitled to use it as a passageway for stock; the land on the other side being owned by another.
    Appeal from Lenawee; Hart, J.
    Submitted January 11, 1917.
    (Docket No. 104.)
    Decided March 29, 1917.
    Bill by Horace T. Treat against Edward B. Pryor and Edward F. Kearney, receivers of the Wabash railroad, for an injunction restraining defendants from filling up a certain culvert. From a decree for plaintiff, defendants appeal.
    Affirmed.
    In the year 1880 David Chase, who was the owner of certain lands in the township of Raisin, Lenawee county, Mich., conveyed a strip 100 feet wide running in a northeasterly and southwesterly direction through his lands to the Detroit, Butler & St. Louis Railroad Company, since assigned to the Wabash Railroad Company, for a right of way. The deed contained the following clause:
    “This party of the second part, if grades will admit, to put in culvert or passageway for stock of party of first part underneath said railroad at the natural watershed on said lands east of the highway as now traveled.”
    In 1880 or 1881 the railroad company constructed a culvert or passageway, approximately 12 feet wide and 8 feet high, under its tracks, pursuant to the clause above quoted. The culvert was used by David Chase as a cattle pass until his death in 1886. In 1887 the heirs of David Chase divided the land between themselves, and since then there has been no unity-of ownership. The plaintiff, Horace Treat, became the owner of the land on the north side of the culvert, and one Allen became the owner of the land on the south side. In May, 1915, the defendants put an 18-inch pipe in the culvert in question for surface drainage, and an 8-inch pipe about 30 inches below the surface for subsurface drainage, and began to fill the culvert. Thereupon plaintiff filed his bill of complaint, asking for an injunction restraining defendants from filling up this passageway.
    It appears that this culvert was the natural drainage outlet for about 131 acres of land, and there is evidence to prove that during rains and heavy storms large quantities of water find outlet through it, and in times of unusual freshets back up onto the land of the appellee, and that since -the placing of the tubing in the culvert the water has backed up several times. The trial judge found that the plaintiff had no right to have this culvert maintained as a cattle pass, but that he did have a right to have it left in the same condition it had always been for the passage of water..
   Kuhn, C. J.

(after stating the facts). Irrespective of whether it should be said that the use of the culvert as a cattle pass can no longer be insisted upon, a reading of the record is convincing that the trial judge was right in holding that it should be maintained in the condition that it is as a waterway. The plaintiff has a right to have the water carried off from his land in the same way that it has. been carried off for 30 years or more, and the defendants have no right to retard the flow of the water by changing the conditions of the culvert or narrowing the same. We are satisfied from the evidence that the substitution of the 18-inch tubing will do this. Instances are shown when during the past 34 years the culvert was overtaxed in capacity and water backed up on the land of the plaintiff to the damage of the proprietor of the land. The civil engineers who testified — and it would not seem to need their testimony to prove — that the 18-inch tubing would not carry off the water that the pass would. Such culvert draining is generally based on maximum conditions, and not on ordinary conditions or rainfalls, and plaintiff is justified in claiming the right to have the culvert maintained as it has been for nearly 34 years, to take care, of the maximum conditions of the surface water as it has come down to the culvert during those years. Clearly the defendants. cannot adopt a new plan for carrying away the water which would set the water back upon the plaintiff’s land or retard the escape of the water therefrom. That such would result from the substitution of 18-inch tubing is, as has been said, in our opinion a legitimate conclusion from the evidence in this record.

The decree of the court below is therefore affirmed, with costs to plaintiff.

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


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    SMITH v. BAILEY.
    1. Bailments — Negligence — Automobiles — Garage Keepers — Bailee eor Hire.
    Where there is proof that an automobile was delivered to a garage keeper in good condition, and that he failed to produce it in condition similar to that in which he received it, a prima, facie case of negligence is made out.
    2. Same — Negligence—Bailee eor Hire — Question eor Jury.
    Where an automobile, left with a garage owner for repairs, was taken by his employee without his knowledge or consent, and while acting outside the scope of his employment, and damaged, the question as to whether the garage owner neglected to exercise ordinary care and diligence, rendering him liable for the loss or injury, was a question for the jury.

    Error to Wayne; Mandell, J.
    Submitted January 15, 1917.
    (Docket No. 131.)
    Decided March 29, 1917.
    Case by Theodore J. Smith against Harry H. Bailey and James W. Burridge, copartners as H. H. Bailey & Company, for damage done to plaintiff’s automobile. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Frederick E. McCain, for appellants.

      Millis, Griffin, Seely & Streeter, for appellee.

      On the duty and liability of garage keeper to owner of car, see notes in 45 L. R. A. (N. S.) 314; 48 L. R. A. (N. S.) 561.

   Kuhn, C. J.

We are asked to reverse a judgment for the plaintiff of $200 for damages done to his automobile through the alleged negligence of the defendants.

Defendants are in the business of dealing in certain automobile accessories, located in the city of Detroit, and they also have a repairing department in connection therewith. One Andrew McDonald was employed by them previous to June 24, 1914, and had charge of the repairing department and the work therein. McDonald was in the habit of opening this department for work each day and had a key to the garage for that purpose. On the day above mentioned, the plaintiff left his automobile, a Welch-Detroit car, at the defendants’ shop to have certain repairs made, inasmuch as he was contemplating a long trip out of the State and desired to have his car in good working order. In the afternoon of the 25th of June, he was informed that the repairs were completed with the exception of adjusting the magneto, and that this would be finished the next morning. Upon coming to the garage the next morning, he discovered the car jacked up with one wheel smashed and in more or less damaged condition. He was informed by McDonald that he had taken the car out to test it the evening before, and that at about 7 o’clock the car skidded into the curbing while driving down John R. street and was damaged. Plaintiff took the car away and had the, repairs in question made at another garage.

Upon the trial it appeared that in reality McDonald had not taken the car out to test it at the time of the accident, but that at about 7 o’clock he and one Atchison had taken it out of the garage without the permission of the garage owners. That a pleasure ride was indulged in that lasted until 2 o’clock in the morning, when, going up west Fort street, the car skidded into the curb on account of the slippery pavement and smashed the wheel. McDonald admitted on the stand that the first account he gave concerning the accident was untrue and that he told it because he feared the consequences.

Defendants made a motion for a directed verdict at the close of the plaintiffs case and again before the case was submitted to the jury. Both motions were denied. A motion for a new trial was made and also denied.

Defendants’ main contention is that when it is undisputed that the injury complained of or the damage in question is caused by an employee when acting outside the scope of his employment and against the express orders of his employer and without the knowledge or permission, either expressed or implied, of said employer, then the employer cannot be held responsible for the said damage or injury, no matter what the relations between him and the injured party may be. The plaintiff contends:

First. That the court, in taking the case from the jury on the theory of master and servant liability on the ground that the servant was acting outside of the scope of his employment, erred and unwarrantedly charged too favorably for the defendant.
Second. That this being a bailment for hire, the defendants owed the duty to use ordinary care to protect the automobile from use by parties other than the owner or persons authorized by him to use it, and that the burden is on the bailee to show that he has used that degree of care.

This being a bailment for hire, we must apply the general rules applicable thereto. The rule is thus stated in Babbit, The Law Applied to Motor Vehicles (1st Ed.), § 646:

“When there is proof that the property was delivered to the garage keeper in good condition, and that he failed to produce it in condition similar to that in which he received it, a prima, facie case of negligence is made out.”

See, also, Baehr v. Downey, 133 Mich. 163 (94 N. W. 750, 103 Am. St. Rep. 444).

Here the bailee seeks to excuse himself by showing that the damage was caused by an employee while acting outside of the scope of his employment ■ and without the knowledge or permission of his employers. But the plaintiff says and attempted to show that the bailee by exercising ordinary diligence might have avoided the loss or injury. The claims of the parties in this regard are thus summed up in the charge of the court which we think properly submitted the question to the jury:

“Now, the claim with regard to this lawsuit is this: That the defendant company failed in that regard and did not use ordinary care, but was guilty of negligence. Now, I am not going into detail with regard to the claim, because it has been ably argued by both sides. The plaintiff claims that there was lack of ordinary care, and therefore legal responsibility; but the defendant, on the other hand, claims that they used diligence and care and prudence, and that there was therefore the absence of negligence. That raises an issue of fact, and your duty will be to study the evidence carefully and see whether or not the defendant, in what it did in accepting the automobile for hire and placing the responsibility in the hands of this employee of its, did use ordinary diligence. The claim of the plaintiff is that they did not use ordinary diligence, that a man with unknown responsibility had been given means to do damage to the plaintiff’s and other. persons’ property, had been given a key, and by the use of this key he was given an opportunitjr to do damage to the plaintiff, and that damage actually came to him. The plaintiff therefore says that the bailee firm of H. H. Bailey & Co. was responsible for the damage subsequently following. So much for the plaintiff’s claim. The defendant, on the other hand, says in regard to that, that it, through the principal member of the company, has made inquiry concerning the character of this employee; that they had found him to be a careful, prudent, and good man, and that was all that was expected of him; and that the giving of the key was a necessity for the character of the business which required the shop to be open early in ¡the morning, earlier than some member of the firm .could be there; and that there was no act of negligence on their part in doing that. There are the claims of the parties in regard to the question of liability. * * * There cannot be any liability in this case unless the plaintiff has established by a fair preponderance of the evidence that there had been neglect of the duty that the defendant owed to him when the defendant became a bailee for hire.”

Being of the opinion that the amount of the verdict finds support in the evidence and that no prejudicial error is made to appear, the judgment is affirmed.

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


text:
    TOWNSHIP OF COLDSPRINGS v. BOARD OF SUPERVISORS OF KALKASKA COUNTY.
    1. Highways and Streets — County Road System — Refund Township Road Tan — Condition Precedent — Municipal Corporations — Notice.
    Where a township, embraced within a county operating under the county road system, issued bonds and built State reward roads in the year 1914, under the provisions of section 4372, 1 Comp. Laws 1915, and in 1915 filed the proper certificate with the county asking for a refund of its 1914 county road tax, compliance with section 4373, 1 Comp. Laws 1915, providing for notice to be given the county of the intention of the township to build such roads, held-, directory merely, and not condition precedent to the right of a refund. ..
    2. Mandamus — Certiorari — Refund County Road Tan — Highways and Streets.
    On certiorari to review a writ of mandamus requiring a county to refund to a township money paid as a county road tax which has already been legally expended by the county without any notice of the intention of the township to claim a refund, the order of the court requiring the county to refund is interpreted to mean that the board of supervisors take immediate steps by proper legal procedure to raise the money necessary to pay the refund.
    Certiorari to Kalkaska; Lamb, J.
    Submitted January 30, 1917.
    (Calendar No. 27,575.)
    Decided March 29, 1917.
    Mandamus by the township of Coldsprings against the board of supervisors of Kalkaska county to compel respondent to refund a certain tax. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Parm C. Gilbert, for relator.

      Ernest C. Smith, for respondent.
   Kuhn, C. J.

The relator is a township embraced within the county of Kalkaska, the respondent. This county has been under the county road system for the past 17 years, and during that time the township has paid into the county treasury an amount in excess of what the county has expended in said township for the building and repair of roads. Under the provisions of section 26 of chapter 4 of Act No. 283, Pub. Acts 1909, as amended by section 26 of chapter 4 of Act No. 355, Pub. Acts 1913 (1 Comp. Laws 1915, § 4372), the relator township issued bonds for $5,000 and expended the money in the building of State reward roads and filed the proper certificate with the respondent in October, 1915, asking for a refund to it of its county road tax for the year 1914, in amount $1,-096.69. The board of supervisors declined to make the refund, and mandamus proceedings were brought in the Kalkaska circuit court to compel the refund of the tax in question. An answer was filed, issues were framed, and, after a trial before the court, findings of fact were made and a decision had ordering the refund of the tax as prayed. The decision is reviewed here by certiorari, and the assignments of error allege two grounds, as follows:

“(a.) Because the court erred in holding that the provisions of section 27 of chapter 4, of Act No. 283, Pub. Acts 1909, are directory, whereas they should be construed as mandatory.
“(b) Because the court erred in holding that a writ of mandamus would lie to compel payment by the county of the 1914 tax back to the township, although no notice was ever given the county of such intention on the part of the township to claim such refund until October, 1915, at which time the 1914 county road tax had been expended in the regular channels of county road business.”

The question of whether or not section 27 of chapter 4 of Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4373), should be construed to be mandatory instead of directory is also raised in the case of Township of Clearwater v. Board of Supervisors, post 323 (162 N. W. 96), the opinion in which case is written by Mr. Justice Fellows. It is there held that the provisions in section 27 are not conditions precedent to the right of a refund under the provisions of section 26.

With reference to the second point raised, it is said that the board of supervisors legally expended the moneys paid by the township for road purposes without notice of the intention of the township to claim a refund, and is now unable to comply with the order of the court to pay the refund in question without any fault on its part, and that to hold that the county must refund under such circumstances is in effect saying that the acts of the county legal and regular when performed are rendered illegal and irregular by the mere fact of a later demand. We are of the opinion that the demand was made at a proper time under the law, and the order of the court requiring the respondent to pay the amount claimed as a refund must be-interpreted to mean that the board of supervisors take immediate steps by proper legal procedure to raise the money necessary to pay the refund in question.

The order of the circuit court is affirmed, with costs to the relator.

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


text:
    DRAGISICK v. JUDGE OF RECORDER’S COURT OF THE CITY OF DETROIT.
    Extradition — Sueeiciency oe Complaint — Federal Constitution.
    A complaint that may be held bad as a pleading if attacked in direct proceedings may yet be sufficient to charge a person with a crime within the meaning of the Federal Constitution, so where relator was charged with a crime under the laws of Missouri, held, sufficient for the purpose of extradition and not in conflict with paragraph 2, § 2, Art. 4, of the Constitution of the United States.
    Certiorari to recorder's court of the City of Detroit; Jeffries, J.
    Submitted January 11, 1917.
    (Docket No. 57.)
    Decided March 29, 1917.
    Petition for writ of habeas corpus by Max Dragisick. to secure the release of petitioner from the custody of the sheriff of Wayne county. From an order denying the petition, petitioner brings certiorari.
    Affirmed.

      Benjamin & Betzoldt, for petitioner.

      Alex. J. GroesbecJc, Attorney General, A. B. Dougherty, Deputy Attorney General, and Clare Retan, Assistant Attorney General, amici curise,
   Kuhn, C. J.

The relator seeks by this proceeding to review the decision of the judge of the recorder’s court for the city of Detroit, denying an application for his discharge from the custody of the sheriff of Wayne county, who holds him by virtue of a warrant issued by the governor of the State of Michigan upon a demand made by the governor of the State of Missouri. The demand is based upon a complaint charging relator with the crime of having obtained money under false pretenses in the State of Missouri. The, complaint and warrant set up that Max Dragisick and Steve Lance, on or about August 16, ■ 1915, at the county of Buchanan, State of Missouri, did falsely represent to one Mike Filkowich, that they were the owners of a general merchandise stock at 222 Cherokee street, St. Joseph, and that said merchandise and stock were free from all and any incumbrances, and that they had a right thereto, and could sell and give a good title to said general merchandise, stock, furniture, and fixtures used in connection with said merchandise stock; that said Filkowich, believing said representations and relying thereon, paid to said Lance and Dragisick the sum of $700, and concludes as follows :

“Whereas, in truth and in fact, the said Steve Lance and Max Dragisick did not have a title to the general merchandise, furniture, and fixtures free from incumbrances, and had no right to warrant the stock, furniture, and fixtures free from incumbrances, all of which they, the said Steve Lance and Max Drakisick, then and there well knew.”

On the day of his arrest, February 25, 1916, the relator applied for a writ of habeas corpus, which was granted by the respondent, and a hearing had the following day. The application was based upon the claim that the complaint and warrant forwarded by the governor of the State of Missouri and upon which the return of the relator was requested, set up no treason, felony, or other crime under the laws of the State of Missouri, as required by paragraph 2, § 2, art. 4, of the Constitution of the United States, which is as follows:

“2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.”

It was urged that the complaint and warrant were absolutely void and invalid, and that the relator should be discharged. It is the contention of counsel for the relator that the complaint and warrant do not set forth the nature or kind of merchandise, furniture, or fixtures which it is claimed the relator and Steve Lance sold to the complaining witness, Mike Filkowich, and, further, that the complaint and warrant are null and void because they do not state in full the nature of the incumbrance, and that therefore the accused is in no way apprised of the nature and cause of the accusation against him.

In support of these claims the cases of State v. Jones, 68 Mo. 197, and State v. Stowe, 132 Mo. 199 (33 S. W. 799), are relied upon. In both of these cases the validity of the complaint was attacked in a direct proceeding. Whether these complaints were sufficient to charge a crime within the meaning of the Federal Constitution for the purpose of extradition was not before the court in either of the cases cited. The rule has been laid down by the Supreme Court of the United States that, although a complaint may be had as a pleading and would be so held upon a motion to quash or other direct proceeding attacking the same, still it may be sufficient to charge a person with a crime within the meaning of the Federal Constitution. In the case of Pierce v. Creecy, 210 U. S. 387 (28 Sup. Ct. 714), the Supreme Court of the United States, speaking through Mr. Justice Moody, said:

“The counsel for the petitioner disclaim the purpose of attacking the indictment as a criminal pleading, appreciating correctly that the point here is not whether the indictment is good enough, over seasonable challenge, to bring the accused to the bar for trial. Counsel concede that they cannot successfully attack the indictment except by showing that it does not charge a crime. The distinction between these two kinds of attack, though narrow, is clear. But it will not do to disclaim the right to attack the indictment as a criminal pleading and then proceed to deny that it constitutes a charge of crime for reasons that are apt only to destroy its validity as a criminal pleading. There must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending. We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is' not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different States, there is nothing in principle or authority which supports it. Of course, such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the Constitution. In the Matter of Strauss, 197 U. S. 324 [25 Sup. Ct. 535]. The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the State from which he has fled. Roberts v. Reilly, 116 U. S. 80, 95 [6 Sup. Ct. 291]; Pearce v. Texas, 155 U. S. 311, 313 [15 Sup. Ct. 116]; Hyatt v. Corkran, 188 U. S. 691, 709 [23 Sup. Ct. 456]; Munsey v. Clough, 196 U. S. 364, 372 [25 Sup. Ct. 282]; Davis’ Case, 122 Mass. 324; State v. O’Connor, 38 Minn. 243 [36 N. W. 462]; State v. Goss, 66 Minn. 291 [68 N. W. 1089]; Matter of Voorhees, 32 N. J. Law, 141; Ex parte Pearce, 32 Tex. Cr. R. 301 [23 S. W. 15]; In re Van Sciever, 42 Neb. 772 [60 N. W. 1037, 47 Am. St. Rep. 730]; State v. Clough, 71 N. H. 594 [53 Atl. 1086, 67 L. R. A. 946].”

The statute under which the complaint was made, being section 4565 of the Revised Statutes of Missouri for 1909, provides as follows:

“Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument,' or obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, and every person who shall, with the intent to cheat and defraud another, agree or contract with such other person, or his agent, clerk or servant, for the purchase of any goods, wares, merchandise or other property whatsoever, to be paid for upon delivery, and shall in pursuance of such intent to cheat and defraud, after obtaining possession of any such property, sell, transfer, secrete or dispose of the same before paying or satisfying the owner or his agent, clerk or servant therefor, shall, upon conviction thereof, be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

Tested by the rule laid down by the Federal case above quoted and sustained by the authorities therein cited, that in this proceeding we should only consider whether it satisfactorily appears that the fugitive has been in fact, however inartificially, charged with crime in the State from which he has fled, we are of the opinion that the complaint is sufficient, and that the objections raised as to the validity of the complaint are all such defects as can only be taken advantage of in an attack upon the complaint as a pleading, and do not affect its sufficiency as charging a crime for the purpose of extradition.

The order of the lower court, refusing to discharge the relator from custody, is therefore affirmed.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.