text:
    ARDIS v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Contracts — Construction—Intent.
    A contract must be construed so as to effectuate tbe intent of the parties when it was made, therefore it should be construed in the light of the circumstances existing at the time it was made.
    2. Same — Construed Most Strongly Against Party Responsible for Language Used.
    A contract drawn by one of the parties is subject to the rule of construction that it is to be construed most strongly against the party who is responsible for the language used.
    3. Same — Contract—Intent.
    A party to a contract will be held to that meaning which he Anew the other party to the contract supposed the words to bear.

      4. Same — Accounting—Construction—Acceptance.
    In proceedings for an accounting under the. terms of a written contract whereby a lumber company advanced money to a railroad company for the construction of a spur track, which was to be returned to it from the earnings of such spur, heló, that if there was any ambiguity in the contract it was made clear by a letter written to plaintiff by defendant’s superintendent subsequent to the making of the contract accepting the construction placed upon it by plaintiff.
    5. Equity — Accounting—Jurisdiction.
    The proceeding, being for an accounting, was properly brought in equity.
    Appeal from Kent; Perkins, J.
    Submitted January 11, 1918.
    (Docket No. 42.)
    Decided March 27, 1918.
    Rehearing denied June 20, 1918.
    Bill by Samuel B. Ardis against the Grand Rapids & Indiana Railway Company.for an accounting. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Butterfield & Keeney, for plaintiff.

      James H. Campbell, for defendant.
   Stone, J.

This case is before this court upon appeal by the defendant from the decree of the circuit court of the (county of Kent, in chancery, in favor of the plaintiff for $4,000, and interest, being the full amount of his claim. The bill was filed for an accounting upon a contract between the copartnership, the Ardis Land & Lumber Company, and the defendant, and the case involves the construction of the written agreement of June 7, 1906, hereinafter set forth. The plaintiff has succeeded to all the rights of the copartnership lumber company.

In 1905, the Lake City branch of the defendant’s railroad extended from its main line to Mynnings. The lumber company owned about 2,800 acres of land east of Mynnings. It had built a sawmill for the manufacture of hardwood lumber at Ardis, a point about three miles east of Mynnings. The lumber company desired a railroad to be extended from Mynnings to its mill at Ardis. There was other timber situated still further east which would come out, most conveniently, over the same road.

It was doubtless considered for the mutual benefit of the parties to build the extension. Under these circumstances two contracts were made by the parties. The first contract bears date November 1, 1905, and was as follows:

“This agreement made and entered into this first day of November, A. D. 1905, between the Grand Rapids and Indiana Railway Company, called hereinafter the Railway Company, as first party, and the Ardis Land and Lumber Company, a copartnership composed of Samuel B. Ardis and William Keelean, called hereinafter the Lumber Company, as second party, witnesseth:
“Whereas, the second party is the owner of timbered lands located near the Widdicomb Spur of the Lake City branch of the Railway Company’s railroad, and is desirous of having the Railway Company construct a spur of about three miles in length to permit of the transportation of the timber cut from such lands, and from other lands which may be subsequently acquired, and
“Whereas, the Railway Company has agreed to construct such spur upon the terms and conditions hereinafter set forth,
“Now, therefore, in consideration of the premises, it is hereby covenanted and agreed:
_ “1. That the said spur will be constructed substantially upon the line indicated upon the blue print hereto attached and made a part hereof; the right of way therefor fifty feet in width, and such additional width as may be needed for the slopes of cuts and fills, and for side tracks and terminal facilities, to be acquired and furnished by said Lumber Company to the Railway Company free from all costs and expense, and the Lumber Company hereby agrees to convey the same to the Railway Company in fee at such time as it shall be requested to do so. The right of way and the track laid thereon, together with the appurtenances, shall be the property of the Railway Company, but the right of way shall revert to the Lumber Company, its successors or assigns, if at any time the Railway Company shall remove its track and cease to use the property for railroad purposes.
“2. The Lumber Company will grade the roadbed, making all necessary cuts and fills thereon, and place the same in condition to receive the ties, the same to be subject to the approval of the engineer of the Railway Company. The Lumber Company will also so furnish and distribute upon the roadbed in a manner satisfactory to the Railway Company, the ties which are to be of such description as shall be satisfactory to the Railway Company.
“3. The Railway Company will furnish the rails and other materials except the ties, and will construct and install the track upon the roadbed, putting in the necessary switches, and will maintain and keep the same in. repair during the continuance of this agreement.
“The line of such spur as indicated upon the blue print hereto attached, may, if deemed necessary by the engineer of the Railway Company for engineering reasons, be deviated from in such manner as he shall deem requisite, and the right of way therefor shall be furnished in the manner and subject to the conditions herein set forth.
“4. The Railway Company may remove its track from the said roadbed, and discontinue the use of the same at its option after the expiration of five years from the date hereof, or at such prior time as the said Lumber Company shall have completed its lumbering operations in the neighborhood of such spur, or at such other time as the business of the said Lumber Company and such other business as can be done thereon, does not, in the judgment of the Railway Company’s officers, warrant its further maintenance.
“5. The said Lumber Company, in consideration of the construction of such spur, agrees to furnish for out shipment over the said spur, and over the railroad of the Railway Company during a period of five years from the date of this instrument, not less than seventeen hundred (1700) cars of forest products. In case the Lumber Company shall not so furnish the specified number of cars for shipment, it shall pay to the Railway Company its damage resulting from such failure, which shall be limited to, and shall be the actual cost to the Railway Company of constructing the track, of maintaining and operating the same during the period when in operation, and the removing of material when abandoned, together with the depreciation in value upon the material furnished by it, and the interest on the amount invested therein by the Railway Company at the rate of five per cent (5%) per annum for the time invested, less the sum of four (4) dollars per loaded car for each car shipped over the spur.
“6. The Lumber Company agrees to comply with all laws with regard to fencing the right of way, and to provide and maintain suitable crossings, cattle guards and signs where required, and to save harmless the Railway Company from any damage or expense resulting from its failure so to do, or for deficiency therein. The Railway Company shall, however, have the right to furnish and maintain, or furnish or maintain such fences, cattle guards, crossings or signs at its option at the expense of the Lumber Company.
“7. The Railway Company may at its option, for the purpose of reaching business of any character located beyond the plant of the Lumber Company, extend the said spur and conduct over the same any business which may result from such extension. The said spur as originally constructed, or as subsequently extended, shall not be confined to carrying the business of the Lumber Company, but any loaded cars hauled for others than" the Lumber Company shall be included in the total of seventeen hundred (1700) cars to be furnished by the Lumber Company as provided in the preceding paragraph numbered five.
“8. The Railway Company constructs this spur in order to secure the freight shipped by or to the Lumber Company in connection with its lumbering business, and in consideration thereof, the Lumber Company agrees during the said period of five years to transport by the Railway Company’s lines the property received or sent away by the Lumber Company in the transportation of which the Railway Company’s lines can be used, and that all freight, the destination of which shall be over the lines operated by the Railway Company, shall, so far as the Lumber Company may be able to control the same, be so routed as to give the Railway Company the benefit of the longest possible haul over lines owned or operated by it.
“9. The Lumber Company assumes all risk of loss or injury by fire to its buildings or property situated upon, or adjacent to the said right of way.
“The Lumber Company assumes all risk of, and agrees to indemnify and save harmless the Railway Company against all loss or damage for injury by fire or in any other manner to persons or property whose presence near such railroad is caused by the business carried on by the Lumber Company, where such injury is not caused by the Railway Company’s negligence.
“10. After the Lumber Company shall have ended its operations in connection with which the said spur track is to be built, and shall have fully performed all its agreements and obligations under this contract up to that time, it shall be discharged from all further obligations under this contract.
“11. The burden of removing snow and ice from the tracks covered by this agreement, shall rest wholly upon the Lumber Company, but the Railway Company shall assist in the same with its flangers or snow plows when necessary, provided that the same can be done without interference with work on its main line.
“12. The terms and conditions of this agreement shall extend to and be binding upon the successors, heirs and assigns of the parties hereto respectively.
“In witness whereof, the parties hereto have caused this agreement to be executed by the proper officers in duplicate, the day and year first above written.
“The Grand Rapids & Indiana Railway Co.,
“By W. R. Shelby, Vice President.
“The Ardis Land & Lumber Company,
“By Samuel B. Ardis, William Keelean.”

The supplemental contract of June 7, 1906, was as follows:

“An agreement made the 7th day of_ June, A. D. 1906, between the Grand Rapids & Indiana Railway Company and the Ardis Land & Lumber Company, a copartnership composed of Samuel B. Ardis. and William Keelean, supplementary to an agreement between the parties above named, dated Nov. 1, 1905, relating to a spur track connecting with the Widdicomb spur of the Lake City Branch of the Railway Company’s railroad.'
“The said parties do now hereby agree as follows:
“The Lumber Company has secured the right of way and has graded and prepared the roadbed and has delivered the ties on the ground ready for use for said spur, all at the cost to the Lumber Company of $4,000. It is now agreed that until the said expense shall be fully repaid to the Lumber Company, the Railway Company shall collect from all shippers or consignees other than the Ardis Land & Lumber Co. in addition to all other charges upon all shipments received by the Railway Company or delivered to it upon the said spur to be built for th® Ardis Land & Lumber Co., $3.00 per car on all shipments in and out excepting wood, and upon wood $1.00 per car, such added charges not to be absorbed -by the Railway Company, but to be paid by that company to the Ardis Land & Lumber Co. until such payment shall amount to the sums of $4,000.
“The Grand Rapids & Indiana Railway Co.,
“By W. R. Shelby, Vice President.
“The Ardis Land & Lumber Company,
“By William Keelean, Samuel B. Ardis.”

The answer states that both of said contracts were executed at the same time, and in June or July, 1906. We think that the evidence shows that the first contract was prepared and approved in November, 1905, but probably was signed later, and after some work had been done by the Lumber Company thereunder. We deem the exact date of execution of the first contract unimportant. It is undisputed that the two contracts were executed, and they should be read together, and their true intent and meaning determined. The supplemental contract was transmitted in a letter dated June 11, 1906, to the lumber company, written by J. W. Hunter, the superintendent of the defendant. That letter was as follows:

“Grand Rapids, Mich., June 11, 1906.
“(In your reply refer to 8).
“Ardis Land & Lumber Co.,
“Lake City, Mich.
4 "Gentlemen: I enclose draft of additional stipulation, providing that until your company shall be repaid the sum of $4,000, the cost to it of the right of way, roadbed and ties, the Railway Company shall collect $3.00 per car on all shipments in or out, excepting wood, and $1.00 per car on wood from all shippers other than your company, and pay the same to you.
“If satisfactory, will you kindly execute upon the part of your company and return for execution by this company. *
“Yours truly,
“J. W. Hunter, Superintendent.”

Upon the hearing it was the claim of plaintiff that he, and Mr. Keelean, his partner, executed the contract of June 7, 1906, upon the understanding that the lumber company would be entitled to $3 per car on all shipments over the spur, excepting wood, and $1 per car on wood shipped over the spur, until they were reimbursed for their advances, to the extent of $4,000. The lumber company procured the right of way, graded the roadbed, furnished the ties and performed the stipulations of the contract by them agreed to be performed. In so doing it incurred an expense exceeding $4,000 and approximating $6,300; of which $4,000 had been spent as claimed by the plaintiff at the time the contract of June 7th was agreed upon.

At the hearing it was the claim of the plaintiff that the lumber company did more than under the contract it agreed to do in this: It obtained a right of way between Mynnings and Ardis 100 feet wide instead of 50 feet, as required in the contract. The deeds to the defendant from the landowners for rights of way were deeds in fee and contained no clause, as contemplated in the contract, to the effect that the right of way should revert to the lumber company, its successors or assigns, if at any time the defendant should remove its track and cease to use the property for railroad purposes. Also in the various deeds of the right of way as procured by the lumber company for the defendant, there was inserted at the request of the defendant, a clause, in substance, to the effect that the defendant should not be required to carry passengers upon such railroad, except at its election, and under such conditions as it might think proper, and that the defendant, its successors or assigns, should not be required to run passenger trains on said railroad, and that all rights, statutory or otherwise, to have passengers carried on said railroad, or to have passenger trains run thereon, were expressly waived by the grantors in said respective deeds, for themselves, their heirs, etc.

The rights of way so procured for the defendant cost the lumber company approximately $1,300, and in addition, the lumber company deeded pome of its own land, and had to buy one or more tracts to get the right of way.

The railroad track to Ardis was completed about September 1, 1906. About a year and a half later, the defendant extended its track to Michelson, a distance of 11% miles from the end of the Ardis spur— this extension was one complete operation — and the superintendent testified that it was first suggested in 1907.

Upon the extension from Ardis to Michelson, stations were established at Minthorn, 30 rods east of Ardis, Cummer & Diggins camp, at Merritt, at Carr & Barrett’s camp, at Reedsburg, and at Michelson. The schedule in evidence shows that considerable quantities of lumber and wood have been shipped from these stations over the Ardis extension. Said schedule does not include any shipments made from Min-/thorn, the point 30 rods east of Ardis, or any ship- / ments after the year 1911. It appears from the testimony of defendant’s rate clerk and auditor that the defendant has not charged $3 a car upon shipments other than wood to or from points on the extension east of Ardis, or a charge of $1 a car upon such ship-, ments of wood. However, by the same testimony it is undisputed -that the defendant obtained an amount approximately equivalent to $3 a car upon all such shipments. The method or manner by which this was done was as follows: The base rate for all shipments to central freight association territory was seven cents a hundred pounds from Mynnings, Ardis, Lake City, Cadillac, and all the adjacent territory. But, for shipments upon the 11-mile extension, between Ardis and Michelson, the rate of 7% cents a hundred pounds was charged; the 7% cent rate not applying to ship-. ments at Ardis, or originating on the 3-mile Ardis spur, but solely to shipments on the extension east of Ardis. It also appeared that the average car of lumber weighs somewhat in excess of 60,000 pounds, and often as much as 80,000 pounds. Taking the average at 60,000 pounds, it appears that on lumber shipments originating on the Michelson extension, $3 a' car was paid by the shipper, in addition to the rate charged to the plaintiff for shipments made at Ardis. By this means the defendant collected for itself approximately $3 a car,, but such added charges were absorbed by the defendant, and were not paid to the lumber company, as the plaintiff claims they should • have been. If these additional charges had been accounted for and paid to the lumber company, at the rate of $3 per car on all shipments except wood, and $1 per car on wood, they would, concededly, have been sufficient to repay to the lumber company the sum of $4,000. No part thereof has in fact been paid. The defendant has refused to pay these sums to plaintiff on the ground that practically all of the shipments originated not on the Ardis spur, but east of it. The position of the defendant is well expressed in its answer, wherein it states:

“The agreement dated June 7, 1906, was the carrying out of the suggestion made by the complainant orally to Mr. Hunter on or about September 1, 1905, as above stated, that his company should be paid something for cars loaded by others on the proposed extension, and later agreed to by the defendant. The agreement was as stated in the contract dated June 7, 1906, and was so perfectly and fully understood by both parties. The agreement of June 7,1906, correctly and fully expresses the agreement of the parties on the subject. The understanding, agreement and intent of the parties was that the $3.00 per car on shipments, except wood, and $1.00 per car on wood in addition to all other charges, should be collected by the defendant, only upon shipments originating upon the said extension — that is, upon cars loaded by others than the Ardis Land & Lumber Company on the extension, and within the limits of the same and shipped out therefrom, and on shipments delivered to others on said extension. The purpose of the complainant in asking for said agreement was not for the reimbursement of the Lumber Company for the expense to it of said extension, but to give the Lumber Company control of the timber on lands along and in the vicinity of said extension which could be manufactured at the mill, so far as the same could be done by imposing said additional charges of $3.00 and $1.00 per car upon all shipments originating and delivered to the defendant by others than the Ardis Land & Lumber Company on said extension. This defendant did collect said additional charges upon all shipments originating upon and delivered to the defendant upon said extension by others than the Ardis Land & Lumber Company since the said extension was built, and on all shipments delivered to others on said extension. The aggregate of said charges so collected was $117.”

The position of the plaintiff is:

First. That under the true interpretation of the contract of June 7, 1906, the lumber company is entitled to receive the stipulated sum per car, whether the shipment originated on the Ardis spur, or beyond it.

Second. If there were any ambiguity in the contract, it is made clear by Mr. Hunter’s letter of June 11, 1906, with which the contract was transmitted.

Third. That if the contract leaves the matter in doubt, it is a mistake against which equity will relieve, in order to effectuate the true intent and meaning of the parties.

The learned chancellor who heard the testimony, in a written opinion, agreed with the first two contentions of plaintiff, finding it unnecessary to consider the third. He specifically found “that the railway company later, on all shipments ‘in and out’ of the Ardis spur actually did charge shippers one-half cent additional per hundred pounds on lumber, which, under the proofs, would average $3 per car, as the agreement provided.”

It is elementary that a contract must be construed so as to' effectuate the intent of the parties when it was made; and to ascertain the intent of the parties, a contract should be construed in the light of the circumstances existing at the time it was made. Kunzie v. Nibbelink, 199 Mich. 308.

It is urged by the plaintiff that this contract is to be read in the light of the circumstances attending its execution, and quotations are made from the following cases: Ferris v. Wilcox, 51 Mich. 105; Uinta Tunnel, Mining & Trans. Co. v. Mining Co., 141 Fed. 563, 566; Kauffman v. Raeder, 108 Fed. 171, 175.

It is the claim of the plaintiff that under the true interpretation of the contract of June 7, 1906, the lumber company was entitled to receive the stipulated sum per car, whether the shipment originated on the Ardis spur, or beyond it. There are some conceded facts which are significant, and which should be borne in mind in considering the questions involved. At Mynnings and Ardis upon both sides of the spur track the timber had been taken off, and it was what is known as “cutover land.”- The amount of money that would be realized from a charge on the shipments made by others than the lumber company, and originating on this spur, would be so small, that it is inconceivable that the lumber company would have thought it worth while to enter into a contract concerning it. This has been demonstrated by the result of $117. It is reasonable to suppose that the parties had something else in mind. A careful reading of the testimony, and the documentary evidence, shows how the contract came to be made.

After the commencement of the construction of the Ardis spur, and after considerable money had been expended by the lumber company, the plaintiff and his partner learned that other parties intended to start lumbering operations east of their lands. There was no way in which this timber belonging to others could be drawn to market except over the Ardis extension or spur, then being constructed. It should be borne in mind that the original contract in its 7th paragraph contains the following language:

“The Railway Company may at its option, for the purpose of reaching business of any character located beyond the plant of the Lumber Company, extend the said spur, and conduct over the same any business which may result from such extension. The said spur as originally constructed, or as subsequently extended, shall not be confined to carrying the business of the Lumber Company,” etc.

It will be noted that there was no provision which in any way obligated other persons or parties so sharing the benefits of this spur to bear with plaintiff’s firm the burden of its. construction. Prior to June 7, 1906, it had become apparent that the railway company would, or at least might, be called upon to extend this spur to assist new enterprises, and that the owners of additional mills would enjoy the use of the road constructed at the expense of the lumber company.

Under these circumstances, the plaintiff and his partner met Mr. Hunter, and the matter was discussed. We-find no clear contradiction of the testimony of the plaintiff and Mr. Keelean upon this subject. They said to him that other lumbermen were buying timber beyond the easterly end of the Ardis spur as then projected. They named the lumbermen who were making such purchases of timber. They said that the timber which these men were buying would be drawn over the Ardis extension; that, under these circumstances, it was not fair that the lumber company should pay the expense of constructing the spur, and that others should get the benefit thereof; and that the cost of the spur ought to be refunded by the defendant to the lumber company. According to the testimony of the plaintiff and his partner, Mr. Hunter replied that the proposition was a fair one, and subsequently the contract of June 7, 1906, was drafted in order to carry this agreement into effect. We find no evidence of any talk between the parties that those sums would not be paid to the lumber company unless the freight originated on the Ardis extension. In fact the word “originated” does not appear in the contract. It was first used by Mr. Hunter in his letter of December 21, 1909. Both contracts were drawn by the defendant’s officials and counsel. This being so, the rule is that they must be most strongly construed against the party who prepared them, and who is responsible for the language used. Thomson Electric Welding Co. v. Fence Co., 190 Mich. 496.

In our opinion .the contract is capable of the construction contended for by the plaintiff and is not ambiguous, and we agree with the chancellor in that regard. If it can be said that there is any ambiguity in the contract of June 7th, it is made clear by Mr. Hunter’s accompanying letter. In it he said:

“The Railway Company shall collect $3 per car, on all shipments in or out excepting wood, and $1 per car on wood, from all shippers other than your company, and pay the same to you.”

Under such circumstances it has been held that a party will be held to that meaning which he knew the other party to the contract supposed the words to bear. San Jacinto Oil Co. v. Power Co., 41 Tex. Civ. App. 293.

In Tallcot v. Arnold, 61 N. Y. 616, it was said:

“The promise must be interpreted in the sense in which the promisee knew or had reason to know that the promisor understood it.”

Many other authorities might be cited to- the same effect.

One cannot examine the record without being satisfied that on reading Mr. Hunter’s letter, plaintiff and his partner understood that the contract meant just what the letter said it did. They were, we think, entitled to rest upon the interpretation placed upon the contract by the defendant’s superintendent. Snead & Co. Iron Works v. Trust Co., 225 Ill. 442.

In our opinion the suit was properly brought in equity for an accounting. Warren v. Holbrook, 95 Mich. 185, 189.

We think the chancellor reached the correct conclusion, and the decree below is affirmed, with costs to plaintiff.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BUGAJSKI v. SIWKA.
    1. Vendor and Purchaser — Time of Performance — Extension—Forfeiture — Waiver.
    The parties to a land contract may by oral agreement extend the time originally stipulated for the payment thereunder, and such agreement operates as a waiver of the vendor of the right to rescind or forfeit for failure of the vendee to comply strictly with its provisions providing for payment.
    2. Same — Failure of Vendor’s Titee — Rights of Vendee — Forfeiture.
    Where the vendor’s title to premises agreed to be conveyed by a land contract was decreed to be void in' a chancery case, the vendees had the right to make terms with the holder of the legal title without forfeiting their right to recover damages for the breach of the contract to convey.
    3. Same — Breach of Contract — Payment—Tender.
    Where the vendor’s power to perform was rendered impossible by reason of a decree in chancery extinguishing his title, the vendees were excused from tendering payment.
    4. Same — Breach of Contract — Measure of Damages.
    In an action by the vendees for damages for the breach of a land contract, where the vendor never had any title to the premises he agreed to convey and was unable to perform, the measure of damages is the difference between the actual value of the premises at the time of the breach and the sum agreed to be paid by the terms of the contract.
    Error to Wayne; Mandell, J.
    Submitted January 24, 1918.
    (Docket No. 190.)
    Decided March 27, 1918.
    Assumpsit by John Bugajski and another against John Siwka for breach of a land contract. Judgment for plaintiff on a directed verdict for less than the amount claimed. Plaintiffs bring error.
    Reversed.

      E. A. Fink and B. F. Mostowski, for appellants.

      John Kaminski (August Cyrowski, of counsel), for appellee.
   Stone, J.

Action of assumpsit to recover damages for nonperformance by the defendant, the vendor, of a written land, contract. The parties are all Polish people. On or about February 1, 1910, the plaintiffs, husband and wife, being desirous of purchasing a home for themselves, went to the defendant, who claimed to be the owner of a house and lot known as No. 1271 Chene street in the city of Detroit. After an examination of the premises a written contract was entered into by the parties, béaring date February 1, 1910. By the terms of the contract the defendant (party of the first part) in consideration of the sum of $8,000 to be to him duly paid, agreed to sell to the plaintiffs (parties of the second part) the premises, describing them, for the said sum, which the plaintiffs agreed to pay as follows: $300 at the date thereof, and the remaining $2,700 to be paid in instalments of $50, or more, each and every 6 months thereafter, with the agreement that the total amount due under the contract was to be paid within 3 years from the date thereof, with interest on all sums at any time unpaid thereon at the rate of 6 per cent, per annum till paid, payable semi-annually from the date thereof. Plaintiffs also agreed to pay all taxes and assessments that should be taxed or assessed on said premises. Also insurance upon the building, in manner and amount approved by the defendant.

It was further provided in said contract, that on receiving the said payments in full, the defendant should, at his own proper cost and expense, execute and deliver to the plaintiffs, or to their assigns, a good and sufficient conveyance, in fee simple, of said described premises, free and clear of, and from, all liens and incumbrances. The plaintiffs were to have possession of the premises on and after the date of the contract, while they should not be in default on their part in carrying out the terms thereof.

The initial payment made was $350 instead of $300. The indorsements on the contract in evidence show that payments were regularly made of $50 and interest every 6 months for 3 years to February, 1913, after which date only interest payments were made every 6 months, for 2years longer. During all of the time plaintiffs also paid insurance and taxes, and kept up the property, and made some improvements thereon.

After going into possession, the plaintiffs heard some rumor respecting defendant’s title to the property. They went to defendant about it, and he told them he was the owner.

On June 13, 1912, One Victor Jaekiewicz filed a bill in the Wayne circuit court, in chancery, against John Siwka, the defendant, making these plaintiffs also defendants, claiming title to the property. The decree in that case (affirmed on appeal in this court in 187 Mich. 165) confirmed title to the property in question in said Jaekiewicz, and was to the effect that defendant had no title, and hence that the plaintiffs in the instant case had no rights in the property .under their said contract of purchase. Pursuant to such decree, Jaekiewicz obtained a writ of assistance and dispossessed plaintiffs; or rather, compelled .them to pay him rent, as his tenants, beginning September 1, 1915.

During the pendency of the chancery case, plaintiffs herein remained in possession of the premises, paying the taxes, insurance, and other charges upon the property, and defendant regularly collected from them the payments provided for in the land contract, except that after the regular payment of February 1, 1913, he told plaintiffs they need pay nothing further on the principal until the chancery case was decided.

Thereafter they paid defendant only the interest on the contract balance every 6 months up to August 1, 1915. After September 1, 1915, the plaintiffs were obliged to either surrender possession or pay rent to Jackiewicz, and they accordingly paid him rent thereafter. All rights in the property were lost to the plaintiffs. They went to the defendant about it. At first he told them he would settle the matter with them in some way, but he never did, and finally said to them: “We can’t settle it. The court will settle the matter for us.”

About six months later, being unable to bring defendant to any settlement, plaintiffs brought this suit, claiming damages for the difference between what they still owed defendant, under their contract, and the value of the property at the time of their dispossession of it. There were two special counts and also the common counts in the declaration. In the first count, after setting forth the contract, it was alleged that the representations of the defendant that he was the owner of the premises were not true, and were fraudulently made by him, knowing them to be false; and that the plaintiffs, by reason of the misrepresentations and frauds so practiced upon them by the said defendant, have lost all of the money which they paid to the said defendant under said contract, as well as all improvements made upon the premises, and also the increase in value of the said premises over and above the price which they agreed to pay therefor, etc.

The second count, although charging no misrepresentations or fraud alleges that the title of said defendant to said premises had wholly failed, and that Victor Jackiewicz had established a superior and paramount title, by virtue of which plaintiffs had been divested of their' right of possession, and that defendant had been rendered unable to perform his said agreement, claiming damages, as in the first count stated.

Upon the trial, plaintiffs offered evidence of the value of the premises, and tending to show that the property had greatly increased in value between the date of the contract and the time the plaintiffs had been dispossessed; claiming upwards of $5,000 damages, and that the property had actually been sold for $7,000.

At the conclusion of the testimony, the trial court, in effect, held that plaintiffs were not entitled to recover any of said alleged damages, but could recover only the money they had paid, less the benefits received by the use of the property, because, before the commencement of their suit, they did not tender to defendant, the full amount, or balance, then due and unpaid under the contract, and directed a verdict and judgment in favor of the plaintiffs for $547.96 only.

The plaintiffs have brought error, and this action of the trial court in denying to plaintiffs recovery of their damages, and limiting them in their recovery to the money they had paid, less their benefits, constitutes the principal error assigned and relied upon.

It was competent for the parties by oral agreement to extend the time originally stipulated in the contract for the payment of the instalment of principal thereof, and this agreement operated as a waiver of the vendor of the right to rescind, or forfeit the contract for the failure of the purchaser to comply strictly with the terms thereof, relating to payments. 39 Cyc. p. 1393, and cases cited in note, including Ortmann v. National Bank, 49 Mich. 56.

When defendant’s title had become extinguished, plaintiffs had the right to make terms with the holder of the legal title, for possession of the premises. Harrington v. Sheldon, 196 Mich. 388.

By virtue of the decree in the chancery case the defendant’s title was extinguished, and it was not in his power to perform his contract, and the plaintiffs were excused from tendering payment. Morange v. Morris, 3 Keyes (N. Y.), 48; Lowe v. Harwood, 139 Mass. 133.

The purchase money need not be tendered by the vendee, when the vendor is unable to convey the land. 28 Am. & Eng. Enc. Law (2d Ed.), p. 9, and cases cited in note.

“The fact that the vendor has no title to the land, or is for any reason unable to perform, will relieve the purchaser from his obligation to pay, or tender the purchase-money, but it will not exempt the vendor from his obligation to convey or tender a conveyance, or discharge him from liability to an action for damages for breach of contract, unless he is excused under thé terms of his contract. Therefore, if one contracting to sell land to which he has no title at the time of the contract is unable to procure title from the owner, so that he cannot comply with his contract to convey, this does not excuse his default, and he will be liable to a suit on the contract, unless he protects himself by the terms of the contract.” 39 Cyc. p. 1544, and cases cited in note, including Miller v. Smith, 140 Mich. 524.

It would have been entirely useless to make the tender, and demand a deed. The law will not indulge in idle formalities.

There was evidence tending to show a wilful breach on the part of the defendant. He never had title to the premises.

We are of the opinion that under our own cases, the plaintiffs were entitled to maintain this action, and that their measure of damages is the difference between the actual value of the premises at the time of the breach, and the sum agreed to be paid by the terms of the contract. Allen v. Atkinson, 21 Mich. 351; Way v. Root, 174 Mich. 418.

The judgment of the circuit court is reversed, with costs to appellants, and a new trial is granted.

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


text:
    FRIEDRICH MUSIC HOUSE v. HARRIS.
    1. Innkeepers — Lien—Statutes—Construction—Intent.
    Section 6947, 2 Comp. Laws 1915, giving the keeper of a hotel, inn, or boarding or lodging house a lien on the baggage and effects of a guest or boarder for food and lodging, held, from the association of the words “hotel or inn or boarding or lodging house” that the legislature had in mind business of a kindred and public nature.
    2. Replevin — Liens—Innkeepers—Conditional Sale.
    Where the evidence showed that defendant in replevin proceedings kept one or two steady boarders in her family, but without any pretense or claim of running a boarding house, she was not the keeper of a boarding house within the meaning of section 6947, 2 Cpmp Laws 1915, giving the keeper of a boarding house a lien on the baggage and effects of a guest or boarder for food and lodging, and she was not entitled to hold the effects of a boarder as against the vendor who had retained title to the same.
    Error to Kent; Brown, J.
    Submitted January 30, 1918.
    (Docket No. 83.)
    Decided March 27, 1918.
    Replevin by the Friedrich Music House against Mrs. William Harris for the possession of a piano. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. H. Gleason (Gleason & Lee, of counsel), for appellant.

      Maynard, Freeland & Munshaw, for appellee.
   Stone, J.

This is an action of replevin commenced in justice’s court in the city of Grand Rapids for the alleged unlawful detention of one Hoffman piano, stool and scarf, and one talking machine with horn, also a quantity of phonograph records. The goods were taken on the writ. Defendant pleaded the general issue and gave notice of a lien on the property for the board of two ladies who were the owners of the property. Defendant had judgment for a return of the property before the justice, and the plaintiff took an appeal to the circuit court, and there, upon a trial before the court, without a jury, had judgment for the goods, and for six cents damages and costs. The defendant brings the case to this court by writ of error.

It appeared in evidence upon the trial in the circuit court that Julius A. J. Friedrich was a music dealer in the city of Grand Rapids. He sold one “Hoffman piano, stool and scarf,” being a part of the property in question to Mrs. Belle Ely, December 26, 1913, for $165, on a down payment of $25, and then $5 per month. For this sum Mrs. Ely gave her promissory note, and at the same time signed a contract with Mr. Friedrich, by which he retained title until the property was paid for. This contract described Mrs. Ely’s residence as “corner of Benjamin and Dunham,” she agreeing not to permit the property to be “removed from said residence without the written consent” of the seller.

On April 13, 1914, said Friedrich sold to Jeannette Ely, daughter of Mrs. Belle Ely, who was living with her mother, one “Victor No. 31 Wood Horn.” The purchaser made a down payment, and gave a promissory note for the balance of $78.75 payable in monthly instalments of $5 each. This note retained title to the horn until fully paid for, and provided that the property should not “be removed from Grand Rapids, Mich., without the written consent” of said Friedrich. These notes, when this suit was begun, belonged to the plaintiff herein, and it demanded possession of the property replevined before suit was brought. At the time suit was brought, there was no default in the payments due on either of said notes, and there was no breach of any of the terms of either contract, except in the case of Mrs. Ely, who had removed the piano, stool, and scarf from her residence without written consent of Mr. Friedrich. About June 1, 1914, Mrs. Ely and her said daughter went to board with the defendant at her home, 922 Prince street, in said city, and took their things there with them, including all of the property replevined. They both lived and boarded with defendant for upwards of five weeks, when they left defendant’s house in her absence therefrom, and without her knowledge or consent took the greater portion of their things with them, but did not take any of the property described in the writ of replevin. They were at that time owing defendant $40 for board. For this sum defendant claimed a lien on the said property, as the keeper of a boarding house, and refused to deliver it to the plaintiff, until the board bill was paid.

It also appeared upon the trial that this suit was brought by plaintiff by authority of Mrs. Ely, who wanted plaintiff to get the property for herself and daughter in order that defendant’s claimed lien thereon for their board might be defeated.

Upon the trial defendant testified:

“I have kept boarders for twelve years. During the year preceding this, Mr. Frank was with me; he was there one and one-half years. Mr. and Mrs. Jacobs were there more than, a year. They were not friends of mine, just simply wanted a private boarding house. Mr. and Mrs. Danforth boarded with me over a year. This was prior to the last year. Miss Ocbbock also boarded with me the past year. She is no relation to me, came a perfect stranger. She boarded with me nearly two years. Pete Franken boarded with me eight months two years ago. I can accommodate only one or two at a time. I keep a boarding house for people that will pay their board. My mother-in-law boarded with me, also. Transients do not come there. I don’t run an open house like that. I only have a few regular boarders. I don’t hold myself out as keeping a public boarding house. I knew Mrs. Ely only three or four days before she came to board with me. She stayed there five weeks and three days.”'

Defendant’s daughter, Amy Harris, testified:

“I ami daughter of defendant and lived with ’her when Mrs. Ely boarded there. She and her daughter boarded there about five weeks, and owed mother $40 for board when they left, which they have never paid. My mother keeps a private boarding house, has kept one about twelve years, and has two boarders now, and when the Elys boarded there my grandmother also boarded there.”

The above was all the testimony on the subject. Upon this testimony the trial court found as matter of law that defendant was not, during the time the Elys boarded with her, a boarding house keeper within the meaning of section 5817, 2 Comp. Laws (§ 6947, 2 Comp. Laws 1915).

Defendant proposed amendments to the findings which were refused, and «.exceptions were duly taken to such refusal.

The assignments of error allege error in the several findings both of fact and of law, and, further, that the findings of fact do not sustain the conclusions of law, and that each finding was against the clear weight of the evidence.

Under the undisputed evidence in the case, in fact upon defendant’s own testimony, we are of opinion that she was not a boarding house keeper within the purview of our statute. The statute provides:

“That whenever the keeper of any hotel, or inn, or boarding, or lodging house, shall receive into his hotel, or inn or boarding, or lodging house, any person as a guest or boarder or lodger, he shall have a lien upon, and a right to detain the baggage and effects of such guest or boarder, or lodger, to secure and compel payment of his customary charges for the food and lodging furnished such guest, or boarder, or lodger, and such lien may be enforced in the manner hereinafter prescribed.”

A “boarding house,” within the meaning of this statute, was well defined in Cady v. McDowell, 1 Lans. (N. Y.) 484, from which we quote as follows:

“A boarding house is not, in common parlance or in legal meaning, every private house where one or more boarders are kept occasionally only, and upon special considerations. But it is a quasi public house, where boarders are generally and habitually kept, and which is held out and well known as a place of entertainment of that kind. * * * A boarding house is as well known and as distinguishable from other houses, in every city and village in the country, as an inn or a tavern. It is a house where the business of keeping boarders generally, is carried on, and which is held out by the owner as a place where boarders are kept.”

See, also, 8 C. J. p. 1132, and cases cited in notes.

See note to Nance v. Piano Co., 128 Tenn. 1, as reported in Am. & Eng. Ann. Cas. 1914D, 839, Black’s Law Dictionary, title, “Boarding House,” 1 Words & Phrases, p. 815.

Although defendant claimed to have kept a boarding house 12 years, upon being interrogated she named only 10 persons who had boarded with her during that time, including Mrs. Ely and daughter, and her own mother-in-law; and she testified that she only accommodated one or two at a time.

We think from this record it appears that Mrs. Harris and her family were living on Prince street, during the period named and were doing what , many other families are doing, in cities and towns, keeping one or two steady boarders; but without any pretense or claim of running a boarding house. The statute should be given a fair construction. The association of the words “hotel or inn or boarding or lodging house,” shows that the legislature had in mind business of a kindred and public nature. The use of the words “customary charges,” in the statute, implies an habitual and customary business.

It appears to us, therefore, that there is an insuperable reason why the defendant cannot prevail in the instant case. She was a stranger to the property in question, and the plaintiff, the bailor of the property, had, under the evidence, as to her, the right to the possession of the property.

The judgment of the circuit court is therefore affirmed.

Bird,- Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


author: Stone, j.

text:
    LEE v. HEDENSKOOG.
    1. Equity — Jurisdiction—Money Decree — Adequate Remedy at Law.
    On a bill by tbe heirs of a deceased partner against the surviving partner praying for an accounting, that a certain contract to purchase plaintiffs’ interest be decreed to be a valid and binding obligation upon defendant, and for the appointment of a receiver, where, from counsel's statement at the hearing, it was made clear that all that plaintiffs sought was a money decree, the court of equity had no jurisdiction, and plaintiffs should have been remitted to their action at law.
    2. Contracts — Partnership — Meeting op Minds — Conditional Acceptance.
    Where an offer by the heirs of a deceased partner to sell deceased’s interest in the partnership business to the surviving partner was accepted conditional upon defendant’s verifying certain figures, and nothing further was done, the minds of the parties never met, and no valid, binding contract was made.
    Appeal from Muskegon; Sullivan, 3.

    Submitted January 17, 1918.
    (Docket No. 108.)
    Decided March 27, 1918.
    Bill by Charles H. H. Lee and another against Ernest Hedenskoog for an accounting ahd for other relief. From a decree for plaintiffs, defendant appeals.
    Reversed, and remanded for an accounting.

      Clink & Farmer, for plaintiffs.

      Carpenter & Jackson (Charles B. Cross, of counsel), for defendant.
   Stone, j.

The plaintiffs are the children, and only heirs at law, of Kittie M. Lee, deceased, formerly of Muskegon, Michigan, and are the owners of her entire interest in the property of the firm called the “Occidental Club.” Mrs. Lee, in her lifetime, and the defendant were partners under the firm name and style of the Occidental Club, their business being the conducting of billiard rooms and bowling alleys in the city of Muskegon. The agreement under which they operated is as follows:

“Whereas, a contract has this day been entered into between Ernest Hedenskoog, as first party, and Kittie M. Lee, as second party, covering the business to be known as the Occidental Club. This contract to cover a period of ten years unless otherwise mutually agreed.
“Whereas, Kittie M. Lee, party of the second part, is to furnish Ernest Hedenskoog, party of the first part, five thousand ($5,000) dollars, more or less,
“Now, therefore, it is agreed, between said Ernest Hedenskoog, party of the first part, and Kittie M. Lee, party of the second part, .as follows:
“First. Second party will advance to said first party such sums as may be required to commence and conduct said business, the sum not to exceed five thousand ($5,000) dollars.
“Second. First party, in consideration of said second party’s advancing said sum of money agrees that said second party shall be reimbursed the money advanced by her, together with interest at six per cent per annum on such investments, all to be paid out of the earnings of said business and said second party is also to receive in addition thereto one-half of the net profits of said business after said first and second parties have been repaid the amounts advanced by them respectively.
“Third. In case said business is to be sold at any time both first and second parties must be agreeable to the transaction and each party must receive all moneys advanced, interests accrued and one-half of the profits up to date of transfer.
“In case such business is not operated at a profit and there should be a loss, each first and second party is to stand one-half the loss.
“Fourth. It is mutually agreed between Ernest Hedenskoog, party of the first part, and Kittie M. Lee, party of the second part, of the within contract that in case of the death of either party the survivor shall have full power to continue the business without interference from the heirs of the deceased. All contracts and rights which the two now hold individually shall be vested in the survivor.
“Fifth. In case the death of the party of the first part should occur before the party of the second part, I, Ernest Hedenskoog, assign to Kittie M. Lee, party of the second (part,) the contract between the Occidental Hotel Company and myself (Ernest Hedenskoog) , with all the rights I now possess.
“Sixth. All debts must be paid out of the earnings of the Occidental Club before any division can be made of the earnings, after which both first and second parties or their heirs shall receive equal amounts share and share alike. These payments to be made in cash the first of every month, leaving cash at the bank to cover incidental expenses until more is earned.
“Seventh. This contract is to date back to March 24,1913, in lieu of one given at that date and be operative from that date.
“Muskegon, Michigan, April 11, 1914.
“Ernest Hedenskoog,
“Kittie M. Lee.
“Witness:
“Sarah Vanorman.”

Mrs, Lee died on June 24, 1915. On the 12th day of November, 1915, the plaintiffs and defendant made the following instruments, which were signed as indicated below:

“Muskegon, Mich., Noyember 12, 1915.
“An audit of the Occidental Club books, shows that Mrs. Kittie M. Lee has an interest in the club amounting to $6,555.50.
“Now, therefore, if upon examination I can prove these figures to be correct, I hereby offer to pay for her interest the sum of $5,000. If her interest is found to be more than $6,555.50 then my offer shall increase proportionately. If her interest is found to be less than $6,555.50, then my offer shall decrease proportionately.
(Signed) “Ernest Hedenskoog.
“Witness: . Milton C. Nellis.”

Upon the back of this paper appears the following:

“The proposition herein made is accepted — bill of sale to be made November 16, 1915, cash payment $3,000 — balance to be arranged by two 6 months’ 6% notes, satisfactorily endorsed.
(Signed) “Kate B. Nellis,
“Charles H. H. Lee.
“Witness:
“Milton C. Nellis.”

The undisputed evidence shows that these two instruments were made and signed by the respective parties at the same time.

Defendant claimed, immediately after these papers were signed, as above indicated, that what he had obtained was a mere option to purchase this property. That was denied by the plaintiffs. At all events the matter was never closed, and the business continued to drift along after the making of these papers, as it had before.

On the 28th day of December, 1916, the plaintiffs filed their bill of complaint, setting forth substantially the instruments appearing above, claiming that the last papers operated as a valid contract to sell on the part of the plaintiffs, and to buy on the part of the defendant, the interest -which Mrs. Lee’s estate had in the Occidental Club. The bill alleged misconduct and mismanagement of the business on the part of the defendant; that he was financially irresponsible, and asked to have a receiver appointed. The bill prayed:

(a) That said defendant should come to a full, fair and just accounting with plaintiffs .in respect to the business of said Occidental Club.

(b) That said contract to purchase from plaintiffs their interest in the business of the said club by the said defendant be decreed by the court to be a valid and binding obligation upon said defendant, and in full force and effect.

It prayed for the appointment of a receiver, and for general relief.

Upon the filing of the bill, an order to show cause why a receiver should not be appointed was made, to be heard on December 30, 1916, at 9 o’clock a. m. At that hearing it appears that the answer of the defendant was filed, in which it was admitted that Kittie M. Lee had paid into this business, as alleged in the bill, substantially the sum of $6,555.50, or thereabouts.

The defendant denied the validity of the alleged contract and that he had ever agreed to purchase the interest of the plaintiffs in the business, and set up the circumstances which he claimed constituted the said instrument, signed by the parties, to be an option to purchase, only. He admitted that he had continued to operate and conduct the business since the death of Mrs. Lee; denied all misconduct and mismanagement in the same; alleged that he had kept proper books of account, or had arranged for their keeping; denied that he was financially irresponsible, and described somewhat in detail the amount of property which he had, and claimed the benefit of a demurrer upon the ground that the plaintiffs had no standing in equity, and that their remedy, if any, was in a court of law, and that they had a complete and adequate remedy at law. This answer was supported by numerous affidavits, and upon the hearing on the order to show cause the circuit judge refused to appoint a receiver.

The case came on for hearing upon the pleadings and proofs in July, 1917, and counsel for the plaintiffs made an opening statement of the plaintiffs’ claims, and referred to the copartnership existing between Mrs. Lee and the defendant, to the admission of the amount of money which she had paid in, and the heir-ship of the plaintiffs, and to their coming together and signing the papers of November 12, 1915, which we have set forth above. The statement of counsel continued as follows:

“Our position is that that madé a complete contract, and they ought to be required to keep that contract. That is all that we claim in' this matter at this time.
“The Court: Is that a fair statement of the issue?
“Defendant’s Counsel: It is if they are waiving all the other portions of the bill of complaint.
“The Court: Go ahead. See if I got this right. All you really claim now is judgment for the sum of $5,-000, with interest from that time to this time?
“Plaintiffs’ Counsel: That is what our claim is, that a decree of this court should hold that that is a valid, binding contract, and that it is his duty to carry it out, and that a decree should pass against him for that amount.
“The Court: And in relation to the property itself?
“Plaintiffs’ Counsel: The property itself should be held subject to that payment.”

Whereupon the case proceeded, and a decree was entered in favor of the plaintiffs holding the alleged contract to be valid, and for $4,828, with interest at 5 per cent, per annum to be computed from the 16th day of November, 1915, giving defendant a credit of $189.90, the amount of a certain check received by one of the plaintiffs, making a total decree of $5,053.24. This decree gave an equitable lien on the physical property of the Occidental Club for the amount of the plaintiffs’ claim, and ordered a sale of the same at public auction, with a decree for any deficiency there might be, as in the case of a foreclosure of a real estate mortgage. The defendant has appealed from that decree, and it is claimed by his counsel in this court, among other things, that there was involved at the hearing at most only the right of the plaintiffs to recover a money decree for the amount, if any, payable upon the so-called contract, and that the case stood at the time of the trial, exactly as if that were all there was in the bill; that a court of law was as competent as a court of equity to determine whether the contract was valid or not; and, if so, to construe the same and give it effect; that the plaintiffs had a full, complete and adequate remedy at law; that the only thing sought by the plaintiffs in their bill as the case finally went to hearing, and as announced by counsel in court, was a money judgment; and that under those circuirn stances and the rulings of this court the plaintiffs should have been remitted to their action at law. Citing Bennett v. Nichols, 12 Mich. 21; Bay City Bridge Co. v. Etten, 36 Mich. 210; Prescott v. Pfeiffer, 57 Mich. 21; Mack v. Village of Frankfort, 123 Mich. 421; Detroit Trust Co. v. National Bank, 155 Mich. 61; Laubengayer v. Rohde, 167 Mich. 605; Lannin v. Lynn, 184 Mich. 325.

The second claim of the defendant in this court was that there never was a completed contract between the parties by which the defendant agreed to purchase, and the plaintiffs to sell, to him, the interest owned by Kittie M. Lee in the Occidental Club for a sum agreed upon; that the contract, as claimed, consisted of two parts; a proposition signed by the defendant, and a qualified acceptance signed by the plaintiffs; that the proposition stated a conditional amount to be paid, without stating the time or method of payment; that the so-called acceptance stated a time, to wit: November 16, 1915, and payment to be made by cash $3,000, and by two 6 months’ notes with interest at 6 per cent., to be satisfactorily indorsed. It was urged that the so-calléd acceptance was therefore not an unconditional acceptance, but a qualified acceptance which called for further action on the part of the defendant thereto, before any contract could be made; that it was in effect a new proposition for a different contract. The following cases were cited by defendant’s counsel in support of the claim that no contract resulted, it being the claim of the plaintiffs that the question of contract or no contract must rest upon these two papers, and upon them alone: Johnson v. Stephenson, 26 Mich. 63; Bowen v. McCarthy, 85 Mich. 26; Wardell v. Williams, 62 Mich. 50; Wilkin Manfg. Co. v. Lumber Co., 94 Mich. 158; United States Heater Co. v. Applebaum, 126 Mich. 296, and cases there cited; Travis v. Watson, 134 Mich. 249.

1. From the statement made by plaintiffs’ counsel upon the hearing it is made very clear, that all that the plaintiffs sought was a money decree. While the plaintiffs had by their bill of complaint prayed for an accounting, yet at the hearing no accounting was claimed, or had, on the partnership affairs. It is very apparent that a court of law was just as competent, as was a court of equity, to award a money judgment, and that plaintiffs could not use the chancery forum for the purpose, simply, of obtaining a money decree. We think the court of equity had no jurisdiction, and that the plaintiffs should have been sent to a court of law, if there was a valid and completed contract, existing between the parties.

2. But it appears to us that the court was in error in holding that any contract was made by the parties, or that the minds of the parties ever met by what was done on November 12, 1915. The instrument signed by the plaintiffs was not an unqualified acceptance of the proposition of the defendant. The language used by the defendant was significant:

“Now, therefore, if upon examination I can prove these figures to be correct, I hereby offer to pay for her interest the sum of $5,000.”

It is very clear to us that, by this offer the defendant expected to have time, and opportunity, to make such examination in order to prove the correct amount of the interest of Mrs. Lee in the Occidental Club property; and if her interest was found to be more than the sum stated, the offer would be increased proportionately; and if found to be less, then his offer was to decrease proportionately.

Upon the hearing of the case the defendant’s position was that, in any event, the amount proved against him was much less than $3,000. The so-called acceptance demanded the payment of $3,000 absolutely, and the balance to be arranged by two 6 months’ notes, bearing interest at 6 per cent., to be satisfactorily indorsed. What indorsers would be satisfactory was left at large. A bill of sale was to be made on the 16th day of November, four days hence, whereas an examination of the books might necessitate a much longer time. No bill of sale was ever tendered by plaintiffs. That the instrument signed by the plaintiffs was not an .unconditional acceptance of defendant’s offer is manifest upon the reading of same.

In Wilkin Manfg. Co. v. Lumber Co., supra, this court quoted, with approval, the following language from Bishop on Contracts, §§ 322, 323:

“If one makes to another an offer, verbal or written, * * * of a sort implying nothing to be done except to accept or decline, and the latter accepts it, adding no qualification, there is thus constituted a mutual consent to the same thing at the same time; in other words, a contract. And the question of the sufficiency of the transaction to work this result is of law for the court. On the other hand, though there is an acceptance, if it is not to the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, in time, or otherwise, no contract is made. It is so, for example, where new terms are introduced; they constitute an offer on the other side, and leave the question open.”

In a note to Eskridge v. Glover, 26 Am. Dec. 349 (5 Stewart & Porter [Ala.], 264), it is said:

“If the acceptance do attach any new condition or fall short of the terms proposed, it is not only insuflficient as an acceptance, but is also a rejection of the proposal, and a termination of the liability of the proposer, to be bound by a subsequent acceptance conforming to the terms of his proposal.”

These rules have been frequently applied in this court. We are of the opinion that no valid contract was made on November 12, 1915, and the theory of the bill failed.

There seems to have been nothing in the pleadings or evidence that .warranted the court in making the decree a lien upon the entire property of the Occidental Club. The decree below must be reversed, but the case will be remanded to the lower court to enable the plaintiffs to proceed, if they desire, for an accounting to wind up the copartnership that existed between Mrs. Lee and the defendant. The plaintiffs, as Mrs. Lee’s sole heirs at law, have a right to such accounting. That court will be able to make any amendments of the bill of complaint that may be necessary for that purpose. The appellant will recover his costs to be taxed.

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


text:
    WABASH RAILWAY CO. v. OTTGEN.
    1. Drains — Establishment—Conclusiveness—Fraud.
    The finding of special commissioners of the necessity of • establishing a drain upon private property, and the compensation therefor, under section 4883, 1 Comp. Laws 1915, Is final, in the absence of fraud.
    2. Same — Injunction.
    Where, on appeal from a decree dismissing plaintiff’s bill to enjoin the establishment of a drain along plaintiff’s right of way, under section 4894, 1 Comp. -Laws 1915, the evidence shows that a drain had previously been maintained on plaintiff’s right of way, and to place it elsewhere would be more expensive, and there is no evidence of fraud, either actual or constructive, on the part of the special commissioners, the decree below will be affirmed.
    Appeal from Lenawee; Hart, J.
    Submitted January 11, 1918.
    (Docket No. 54.)
    Decided March 27, 1918.
    Bill by the Wabash Railway Company against Conrad Ottgen, drain commissioner of Lenawee county, to enjoin the construction of a drain. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Baldwin, Alexander & Bussell, for plaintiff.

      Leland F. Bean, for defendant.
   Stone, J.

This is an appeal from a decree in the circuit court for the county of Lenawee, in chancery, dismissing plaintiff’s bill of complaint.

The proceedings which plaintiff seeks to enjoin contemplate the construction of a tile drain two and one-half feet below, and in the bottom of another county drain already established and existing on plaintiff’s right of way. Upon a proper application, defendant determined that the proposed drain was necessary and practical, and in his order of determination set forth the route of the drain. The route as surveyed is upon the right of way of the plaintiff for a distance of about 875 feet as indicated by the accompanying plat, which was attached as exhibit “A” to the bill of complaint.

The plaintiff was requested to release the right of way for the drain as proposed, which it refused to do, whereupon special commissioners were appointed by the probate court to determine the necessity for said drain, and for the taking of private property for the use and benefit of the public for the purpose thereof, and to determine the just compensation to be made therefor, in accordance with the provisions of section 4883, 1 Comp. Laws 1915.

Special commissioners met and viewed the route of the drain, and more especially where it was upon plaintiffs right of way, and made a determination and finding that it was necessary to lay said drain upon the right of way of plaintiff, as proposed, for a distance of about 875 feet, and that it was necessary to take a strip of land 50 feet in width on each side of the line of the proposed drain for the purposes thereof, along the right of way of the plaintiff, and fixed the compensation to the plaintiff at the sum of one dollar; and that the drain was to be a tile drain on the right of way of the plaintiff, and an open drain from the point where it leaves the plaintiffs right of way at the westerly end.

The right of way of plaintiff, at the point where it is proposed to construct the tile drain in question, is 100 feet wide, and there are now upon it at this point the main and side tracks of the Detroit, Toledo & Ironton Railroad Company, in addition to plaintiff’s main track, and its track connecting plaintiff’s main track with the main track of the Detroit, Toledo & Ironton Railroad Company. There is at the present time an open ditch known as the “Savage drain,” on plaintiff’s right of way on the northerly and westerly side of its main and connecting tracks, and the northerly or westerly slope of the track embankment makes the southerly or easterly slope of said ditch, the right of way of which open drain has heretofore been secured from the. plaintiff. The drain as proposed on plaintiff’s right of way follows the course of the present open ditch, and it is proposed to lower the grade of the present ditch about 2% feet and put in tile.

The land lying north and west of plaintiff’s right of way is farm land, owned by private parties, and on a straight line between point marked “A” and point marked “C” on exhibit “A”; it is practically of the same level as the natural level of the lands on plaintiff’s right of way, where the tile drain is proposed to be located. There is a tile drain ending at point “A”; also a .tile drain known as the “Waltermire drain,” which passes under the plaintiff’s tracks and has its outlet near the point marked “C,” and empties into the present open drain.

By the bill of complaint, the regularity of the proceedings is not questioned; and the sole ground for relief is alleged to be that the special' commissioners acted fraudulently in determining that it was necessary to take plaintiff’s right of way for the purpose of the drain, and in not finding that the same could equally well be laid upon private lands.'

The defendant by his answer denied all fraudulent and illegal action charged in the bill, and stated that there is at present, along the right of way. of said railroad, on the line of said proposed drain, an open ditch, heretofore established as a county drain, and that said ditch is approximately 15 feet in width at the top, and between five and seven feet deep, varying in places, according to the bank; that the specifications of said proposed drain on plaintiff’s right of way, require a tile drain to be placed in the bottom of said open drain already existing, and that excavating in the bottom of said existing drain will not exceed 2% feet, and only so much as is necessary to lay the tile required by said specifications, the same being 20-inch tile.

At the hearing it was claimed by the plaintiff that the construction of -the drain upon its right of way would injure it for railroad purposes, and that it could equally well be laid upon private lands, and there was testimony tending to support said claim; and it is urged that these facts must have been apparent to the commissioners when they viewed the premises, and that it was the duty of the commissioners to so find, and that their action in not so finding constituted fraud.

The statute relied upon by the plaintiff is section 4894, 1 Comp. Laws 1915, which provides:

“Drains may be laid along the line of any railroad within its right of way: Provided, Such drain shall not be to the injury of the road bed. Whenever it is proposed to construct a drain along the line, and within the right of way of any railroad, and the company owning or operating such road shall refuse or neglect to permit such drain to be constructed, or release the right of way therefor within the time prescribed in section four of chapter three, such release shall be obtained in the same manner as is provided in this act for obtaining private lands: Provided, That no drain shall be constructed along the line of any railroad-without the consent of the company owning or operating such road, if it shall appear to the special commissioners or jury that such drain can equally well be laid on private lands.”

An examination of the evidence shows that there was no insuperable reason why the drain could not have been constructed upon private lands. There was evidence tending to show that such construction would have been more expensive. It is conceded that the decision of the commissioners, in the absence of fraud, is final.

It is claimed by plaintiff that the case is ruled by the recent case of Toledo, etc., R. Co. v. Shafer, 190 Mich. 89. That case was before us upon demurrer to the bill, and we held that the bill stated a case for equitable relief. Justice Kuhn, the writer of the opinion, said:

“Proper proceedings were taken to lay out the drain in question, as provided for by the drain law, and no appeal was taken as “provided therein, and no attempt was made to review the proceedings by the writ of certiorari. An examination of the drain law clearly discloses that it was the intention of the legislature to have all matters pertaining to the locating and constructing of a drain, in the absence of fraud, tried out, determined, and forever settled in the direct proceedings to establish the drain, or on certiorari, as provided for in the statuteand many of our cases were cited.

The same doctrine was stated by us in Troost v. Fellows, 169 Mich. 66, at page 70. The legislature had the undoubted power to commit to these statutory officers the determination of the question whether “such drain can equally well be laid on private lands”; and it is well settled that the decisions of such officers within their jurisdiction are not open to collateral attack, and if not corrected by some of the modes pointed out by the statute, they are conclusive, in the absence of fraud.

In our opinion the sole question here presented is whether or not there was fraud, either actual or constructive, on the part of the special commissioners. We are unable to point out any fraud in this record. We think that the commissioners had the right to consider the matter of expense of construction, and of existing conditions, in reaching their determination. The following facts appeared upon the hearing, and they no doubt influenced the learned circuit judge in refusing relief:

“The Court: This old drain which is known as the ‘Savage drain,’ the open ditch, that right of way has once been secured from the Wabash?
“A. Yes, sir.
“The Court: Now this right of way you condemned, is taking 2% feet deeper than the old right of way, and does it take any wider?
“A. It doesn’t take as wide.”

These facts were known to the commissioners, and we think that they had the right to consider them. It also appeared that if the new ditch were dug as asked for by plaintiff the Waltermire tile drain would have to be extended about ten rods.

Unless, because the determination of the special commissioners did not accord with the claim of the plaintiff, it must be held that they acted fraudulently, the decree dismissing the bill should be affirmed. The. circuit judge, after hearing the evidence, reached the following conclusion:

“I think that if this was a new drain here to be constructed with a new situation here, and there were no other drains around here, that this bill would lie under this statute; but I think, that under the particular facts here, as shown, that the court cannot find that there was any fraud on the part of the commissioners. I think I will have to dismiss the bill.”

We agree with that conclusion.

The decree below is affirmed, with costs to the appellee.

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


text:
    YERKES v. ANTRIM CIRCUIT JUDGE.
    1. Mandamus — Practice—Pleading—-Return—Conclusiveness.
    Where no plea has been filed to the answer and return in mandamus proceedings, according to well settled practice and under section 4, chap. 36 of the judicature act (3 Comp. Laws 1915, § 13440), all material facts stated in said return must be taken to be admitted as true.
    2. Exceptions, Bill of — Practice—Jurisdiction.
    An order of the Supreme Court extending the return day of 'the writ of error, is no authority for the circuit judge to disregard the correct practice pursuant to section 62, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12634), and Circuit Court Rule No. 66, in settling a hill of exceptions after expiration of the time limited in the statute.
    3. Same — Time for Settling — Discretion—Jurisdiction—Statutes — Court Rules.
    Where the practice as prescribed in section 62, chap. 18, of the judicature act, and Circuit Court Rule No. 66, has not been followed, the circuit judge is without jurisdiction to settle a bill of exceptions, after expiration of the time limited in the statute, since he may exercise discretion only within the statutory limitations.
    4. Judgment — Non Obstante Veredicto — Motions.
    Where judgment had already been entered, a motion to enter judgment non obstante veredicto was unavailing. Wulff v. Bossier, 199 Mich. 70.
    5. Exceptions, Bill of — Time for Settling — Motion for New Trial — Extension of Time.
    A motion to enter judgment non obstante veredicto, if treated as a motion for a new trial, must conform to the practice prescribed in the statute (section 62, chap. 18) and Circuit Court Rule No. 48, in order to entitle plaintiff to extension of time to settle a bill of exceptions.
    6. Same — Extension of Time — Practice — Statutes — Court Rules.
    Because a writ of error may issue any time within one year after the entry of judgment, it does not follow that a bill of exceptions can likewise be settled as a matter of right within that time, unless the statute and rules providing for extending the time for settling such bill shall have been complied with. 3 Comp. Laws 1915, § 12634; Circuit Court Rule No. 66.
    Mandamus by Lewis N. Yerkes to compel Frederick W. Mayne, circuit judge of Antrim county, to sign and settle a bill of exceptions.
    Submitted January 29, 1918.
    (Calendar No. 28,143.)
    Writ denied March 27, 1918.

      Malcolm C. Yerhes, for plaintiff.

      Clinic & Williams and Ivin E. Kerr, for defendant.
   Stone, J.

Upon petition of plaintiff, on September 28, 1917, an order was made by this court directing the respondent circuit judge to settle and sign plaintiff’s bill of exceptions in a case then pending before him in the circuit court for the county of Antrim, wherein Lewis N.-Yerkes was plaintiff, and Inez Leszynski and Ira A. Adams, administrator of the estate of Edward G. Leszynski, deceased, were defendants; and further, that he set aside his order of July 29, 1917, and enter an order granting plaintiff’s motion, or that he show cause why a peremptory mandamus should not issue to compel him to sign and settle the said bill of exceptions.

The respondent has made answer and return to said petition and order. No plea has been filed to said return. Not only is the practice well settled that where no issue is joined in such proceedings, the answer of respondent is conclusive as to the facts, but section 4 of chapter 36 of the judicature act (3 Comp. Laws 1915, '§ 13440) provides:

“That all material facts stated in said return that are not specifically denied by plea, shall be taken as admitted to be true.”

The following chronological history of the various steps taken in said case is submitted by the respondent in his return:

“July 1,1915, suit commenced.
“December 1-4, 1915, trial at Bellaire, resulting in a verdict of $3,000 against defendant Adams, and of no' cause of action as to the defendant Inez Leszynski.
“December 4,1915, motion for directed verdict made • by defendant Adams on the grounds that the circuit court had no jurisdiction, but the probate court had original, exclusive jurisdiction; motion denied.
“December. 4, 1915, request to charge that the circuit court had no jurisdiction, and the probate court had original, exclusive jurisdiction and to render verdict of no cause of actiqn as to defendant Adams; submitted and refused.
“December 4, 1915, judgment entered.
“January 12, 1916, motion by defendant Adams to vacate judgment as to him filed.
“July 27, 1916, above motion granted.
“September 16, 1916, plaintiff filed motion to set aside verdict as to Inez Leszynski, and enter judgment, notwithstanding the verdict.
“October 9, 1916, hearing on above motion held in open court.
“December 5, 1916, plaintiff filed notice to settle proposed bill of exceptions at Detroit, December 16, i9i6;
“December 8, 1916, plaintiff, without countermanding above notice, noticed settlement of a proposed bill of exceptions at Traverse City for December 18, 1916.
“December 13, 1916, plaintiff filed motion to extend time within which to settle bill of exceptions to December 23,1916, and noticed hearing at Traverse City, December 18, 1916.
“December 19, 1916, hearing in open court on both of last above motions. Bill of exceptions withdrawn by plaintiff’s attorney; motion to extend time within which to settle proposed bill of exceptions denied.
“January 3, 1917, plaintiff filed ex parte amendment to motion of September 16, 1916, adding thereto ‘and a new trial granted.’
“February 28, 1917, plaintiff’s motion to set aside verdict as to Inez Leszynski and enter judgment notwithstanding verdict, denied.
“February 28,1917, order denying last above motion filed.
“March 3, 1917, notice to settle bill of exceptions at Traverse City on March 9, 1917, filed by plaintiff.
“March 9,1917, hearing had in open court on above motion; taken under advisement by me.
“March 19, 1917, order entered by me refusing to sign and settle plaintiff’s proposed bill of exceptions.
“April 9, 1917, petition for an order to show cause why mandamus should not issue to compel me to set aside my order of March 19th and settle bill of exceptions filed in Supreme Court by plaintiff.
“April 19, 1917, application for mandamus denied by Supreme Court.
“June 13, 1917, plaintiff noticed settlement of bill of exceptions at Detroit, June 20, 1917.
“June 28, 1917, settlement of bill of exceptions denied on hearing in open court.
“June 28,1917, plaintiff filed motion to vacate above order; denied.
“July 3, 1917, plaintiff noticed settlement of bill of exceptions at Bellaire, Michigan, July 11, 1917.
“July 11, 1917, defendants’ attorneys appeared; plaintiff did not appear; I was not present because I knew nothing about it.
“July 12, 1917, plaintiff noticed settlement of proposed bill of exceptions at Charlevoix, Michigan, July 20, 1917.
“July 20, 1917, hearing on said notice in open court with all parties represented.
“July 20, 1917, order entered by me denying above motion.
“July 20, 1917, plaintiff moved to set aside above order; denied.”

•The answer of respondent also contains the following:

“Answering paragraph 21, respondent shows that on July 20, 1917, settlement of a proposed bill of exceptions came on for hearing; that the attorneys for both defendants made and filed written objections thereto, copies of which are hereto attached and marked exhibits 16 and 17. Among the objections urged was the one that no extension of time in which to settle a bill of exceptions had ever been granted and none asked for, except the one in December, 1916, which was then denied, and that the time for settling a bill of exceptions had expired. This cause was tried in the Antrim county circuit court at Bellaire, Michigan, on December 1-4, 1915. On July 27, 1916, an order was made by me setting aside the verdict and judgment against defendant Adams. Since that time I have had four regular terms and three special terms of court at Bellaire, at all of which I was present and presided and attended to the business of the court, on to-wit, August 14 and 15, 1916; September 14, 1916; October 9, 10, 11, 12 and 13, 1916. February 26, 27 and 28, 1917; March 19,1917; May 7,1917, and July 16, 1917, and no application or motion for an extension of time in which to settle a bill of exceptions was filed in said cause or made and presented to me, and no order was made extending the time in which to settle the same. That I thereupon, on July 20th, entered an order denying plaintiff’s application and refusing to settle and sign plaintiff’s bill of exceptions for the reason, among others, that, ‘upon the record and under the rules and practice provided by the court rules and statutes, this court is without authority to settle the proposed bill of exceptions at this time. The decision of the motion in this case presents no opportunity for the exercise of judicial discretion.’ * * *
“Answering paragraph 24, respondent shows that on • the hearing of said motion, I was of the opinion that I had no discretionary right or power in this matter; that I was precluded by the statute and decisions and the rules and practice of this Honorable. Court from settling said bill of exceptions, and for this reason said motion was denied. That the reasons given by the Honorable Supreme Court in previous decisions denying the right to settle a bill of exceptions, apply with special force to the instant case.”

It further appears that on May 3, 1917, plaintiff filed in this court a motion to extend the time for settling his proposed bill of exceptions based upon certain affidavits filed in said cause. Counsel for defendants filed objections thereto, and on June 6, 1917, this court denied the petition and motion, but ordered that the return day of the writ of error theretofore issued in said cause, be extended to the 27th day of July, 1917.

.Plaintiff, in his brief, in what he terms his assignments of error, urges that the orders of June 23, 1917, and July 20, 1917, should be vacated and set aside; and that the Antrim circuit judge disregarded the order of this court of June 6, 1917, extending the return day of the writ of error; and that the circuit judge erred in holding that he had no authority or jurisdiction to settle plaintiff’s bill of exceptions.

In our opinion the attorney for plaintiff has misapprehended the correct practice in settling a bill of exceptions, as the same has recently been stated in the case of Boyne City Hardware Co. v. Charlevoix Circuit Judge, 197 Mich. 374. It is one thing under the practice to obtain an order extending the time for a return of a writ of error, and quite another thing to make application upon proper showing to the circuit judge for an extension of time in which to settle a bill of exceptions. We need only refer to section 62 of chapter 18 of the judicature act (3 Comp. Laws 1915, § 12634) and Circuit Court Rule No. 66, to show what the correct practice now is.

In the case above cited Justice Brooke, in a unanimous opinion, said:

“It is quite clear that the discretion of the circuit judge may be exercised only within the limits fixed by the statute and the rule. * * * The purpose of the statutory provision under consideration is to hasten, so far as possible, the final determination of the litigated question. Parties desiring to review judgment must act seasonably, and the court may exercise discretion only within the statutory limitations.”

See, also, Lake Shore, etc., R. ( o. v. Branch Circuit Judge, 116 Mich. 399.

As already appears, the judgment in said case was entered on December 4, 1915, in favor of the plaintiff, and against the defendant Adams, as administrator; and of no cause of action as to the defendant Inez Leszynski, which judgment as to defendant Adams, only, was set aside by the order of July 27, 1916. No stay of proceedings was asked by or granted the plaintiff in which to move for a new trial or settle a bill of exceptions. No further steps were taken by plaintiff until some 50 days after the order of July 27, 1916, setting aside the judgment as to defendant Adams, then a motion was made by plaintiff, addressed to the attorneys for the defendant Inez Leszynski, to set aside the verdict of no cause of action as to defendant Inez Leszynski, and enter judgment for the plaintiff notwithstanding the verdict. The motion was, by ex parte amendment, sought to be changed into a motion for a new trial, some five months after the order of July 27, 1916. The record shows, also, that after the final order of July 27, 1916, and between that time and the time the plaintiff made the motion of September 16, 1916, a regular term of court was held in the county of Antrim on August 14 and 15, 1916, and that there was a session -of said court on September 14, 1916, at which the respondent circuit judge was present and presiding. It also appears that between September 16, 1916, and the day of filing the amendment to said motion, a regular term of court was held in Antrim county on October 9, 10, 11, 12 and 13, 1916, at which the respondent was present and presiding.

It may not be important to here determine whether the motion made by plaintiff’s attorney was a motion •simply to enter judgment notwithstanding the verdict, or for a new trial. It appearing that judgment had already been entered upon the verdict, under the authority of Wulff v. Bossler, 199 Mich. 70, the motion to enter judgment for the plaintiff notwithstanding the verdict, was unavailing. Treating the motion as one for a new trial, the practice was irregular under the statute cited and Circuit Court Rule No. 48. No steps were taken by the plaintiff towards settling a bill of exceptions until December 5, 1916, when he noticed a settlement of a proposed bill of exceptions at Detroit, on December 16, 1916. On December. 8, 1916, without countermanding that notice, he again noticed a settlement of the proposed bill of exceptions at Traverse City oh December 18, 1916. On December 13, 1916, he filed a notice for hearing a motion to extend the time within which to settle a bill of exceptions to December 23, 1916, and noticed the same for hearing at Traverse City on December 18, 1916. It appears, by respondent’s answer, that on December 19, 1916, said hearing was had; the proposed bill of exceptions was withdrawn from the consideration of the court by the plaintiff; the motion to extend the time within which to settle the bill of exceptions was then denied. On February 28, 1917, an order was made denying plaintiff’s motion to set aside the verdict as to defendant Inez Leszynski -and enter judgment notwithstanding the verdict. On March 3, 1917, plaintiff noticed another proposed bill -of exceptions for settlement at Traverse City on March 9, 1917, at which time a hearing was had; the parties were represented, and objections interposed by counsel for defendants .upon the grounds, among others, that no extension of time had been granted within which to settle a bill of exceptions; that no motion for a new trial had been made within the time allowed by rule or statute, or leave of court; and that the court was without jurisdiction to settle a bill of exceptions at that time; also that a complete transcript of the testimony had not been furnished as provided by law. An order was entered on March 19, 1917, denying the right of plaintiff to settle a bill of exceptions. Application was then made to this court for an order to show cause why the order of March 19th should not be set aside, and the bill of exceptions settled, which was denied by this court on April 19, 1917. Later, the plaintiff moved this court for an order extending the time within which to settle the bill of exceptions, which was denied June 6, 1917.

It is probably unnecessary to repeat all these various steps, but it should be noted that during all this time, and down to July 20, 1917, no order had been made or entered extending the time within which to settle a bill of exceptions; and that the only application for such order was made December 13, 1916, to extend the time to December 23,1916, and was denied by the circuit judge, and no stipulation or waiver of their rights has been made, entered into, or signed by the attorneys for the defendants.

It seems to us very clear that, inasmuch as it was one year, lacking seven days, between what is termed the final order of July'27, 1916, and July 20, 1917, the date on which the proposed bill of exceptions in question was noticed for settlement, and that during that period no extension of time was granted within which to settle a bill of exceptions, and no cause was shown by affidavit, or any special motion made by plaintiff for, or written stipulation of the parties made or filed, extending such time, and the time allowed by statute and rules of court within which plaintiff could settle a bill of exceptions having been allowed to expire by him, without taking any steps to extend the same, the respondent was without jurisdiction on July 20, 1917, to settle the proposed bill of exceptions.

Were it to be held that the time to settle a bill of exceptions commenced to run from February 28, 1917, the date of the denial of plaintiff’s motion, it was 142 days from that date to July 20, 1917, during which time no special motion was made to, or order granted by, respondent, or stipulation signed by the parties, extending the time in which to settle a bill of exceptions ; the time allowed plaintiff by the rules and statute had expired, and respondent was without authority to settle the bill of exceptions. Unless we are to abrogate the.statute and rules, and reverse our previous holdings, the plaintiff has no standing in his present application, and the writ of mandamus should be denied.

We have examined with care the authorities cited by counsel for the' plaintiff, and are of the opinion that they are not applicable to the question here involved. They relate mainly to writs of error and chancery appeals under former statutes and rules. Because a writ of error may issue any time within one year after the entry of judgment, it does not follow that a bill of exceptions can likewise be settled as a matter of right within that time, unless the statute and rules providing for extending the time for settling such bill have been complied with.

The Writ of mandamus will be denied, with costs against the plaintiff.

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