text:
    PRENDERGAST v. PRENDERGAST.
    1. Variance — Pleading—Claims—Recovery Authorized by Pleading — Secundum: Allegata et Probata.-
    While recovery can only be had upon proofs bringing plaintiff’s claim within the scope of his pleadings, it does not follow that he must prove every allegation and recover in full or not at all; the rule of secundum allegata et prodata meaning no more than that recovery cannot be had on a claim foreign to or not compassed by the pleadings.

      • 2. Specific Performance — Parol Contract to Convey Land — Proof — Equity.
    A parol contract for conveyance of real estate should be clearly established in its essentials by a convincing preponderance of the evidence to warrant a decree for specific performance by a court of equity.
    3. Same — Evidence—Sufficiency.
    On a bill for the specific performance of a contract to convey land by a father to a son in consideration of the son’s living at home, working the land, and making a home' for the father, executed upon the part of plaintiff, evidence held, sufficient to establish an agreement to convey to plaintiff the homestead of 40 acres.
    Appeal from Ottawa; Cross, J.
    Submitted January 24, 1919.
    (Docket No. 52.)
    Decided July 17, 1919.
    Bill by Edward Prendergast' against Richard J. Prendergast and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.
    Modified, and affirmed.

      Jacob Steketee (Charles E. Ward, of counsel), for plaintiff.

      Lillie, Lillie & Lillie, for defendants.
   Steere, J.

The parties to this suit are brothers and sisters, all of or past middle age. Their father, Michael Prendergast, died intestate September 9, 1915, aged about 85 years, at the home of his daughter Minnie Bresnahan, survived by the two sons and two daughters above named. His wife, and their mother, died in 1903. He survived a son Henry who died December 31, 1908, and daughter Etta who died in 1910, both unmarried. At the time of his death Richard, the oldest of his surviving children, was over 53 years of age, and Edward, the youngest, was 37. -At the time of his death Michael Prendergast had lived for over 60 years on a 40 acres of land, called “the home 40,” in Wright township, Ottawa county, where all his children were born and raised. He also had acquired, and owned, appurtenant to or near his home holding, 60 acres more of improved land, making a farm of 100 acres. This with an incidentally mentioned 40 acres of land some distance away, a lot in the small village of Berlin near by and some personal property, constituted his estate.

In February, 1916, plaintiff filed a bill of complaint against defendants in the circuit court of Ottawa county in chancery to enforce specific performance of an alleged oral contract between him and their father claimed to have been made in April, 1910, when the father was about 80 years of age, stated in the bill of compláint as follows:

“That the said Michael Prendergast thereupon urged your orator not to return to his employment in Milwaukee, but to give up his said employment and to remain with him on his farm and to care for him, and he thereupon offered and agreed with your orator that if your orator would remain on the farm with his said father and aid him in keeping the home intact and to furnish to him such aid as he needed and would care for him during the remainder of his life and operate the said 80-acre home and assist him in such other business matters as he might have, that he would deed and convey the said 80 acres to your orator and give the same to him, reserving a life estate only in the 40 acres formerly known as the homestead, to wit: The southeast quarter of the southeast quarter of section 33, in said township of Wright, and that your orator should also have what personal property there was on the farm, including the household effects. That he should operate said 80-acre farm and out of the income of all the real estate should pay the taxes and other general expenses, support and maintain his father and furnish him such moneys for his own personal use as his father might require, the over-plus to belong to your orator.”

All parties to this suit left the old home when young. The two sons, Richard and Edward, left to strike out for themselves and learn other callings than farming when about 17 years of age. Emma Dolan left home when able to earn her own living, worked and went to school, taught, engaged in the millinery business, married, had lived in Grand Rapids for between 25 and 28 years, and was over 45 years of age when her father died. Minnie Bresnahan, except for a short time while teaching school, lived at home until she was married some 27 years before her father’s death, and had since lived near by with her husband, who was a neighboring farmer. Richard, who was over 50 years old when his father died, had lived in Grand Rapids for many years where he had worked up to a responsible position in the wholesale grocery business. The two children who died before their father, Henry and Etta, spent their lives at home with their parents, of whom Henry was the mainstay during his life, working and managing his father’s farm of 40 acres and other land which he acquired. He appears to have been industrious and thrifty, to his own advantage and that of his parents. Before his death he owned 40 acres across the highway from the homestead, 20 of which his parents had previously acquired and deeded to him, he purchasing the other 20 acres. He also bought and paid for 20 acres of improved land a mile west of the homestead, had the place well equipped with farming implements and stocked with horses, cattle, hogs, etc. Upon his death all his property was inherited by his father, the mother being then deceased. While the parents and Henry were alive home-coming of absent members of the family was a frequent and welcome event, the home conditions apparently being pleasant and associations between members of the family congenial.

Edward’s home-leavings to care for himself in some independent calling were periodical and not permanently successful. His accounts of service in the various kinds of employment which he followed, from one to several months at a time, are punctuated by the recurrent statement that at their termination he went “back home.” He first left home to learn the harness making trade in December, 1895, when 17 years of age, going to the village of Berlin where he remained but a short time and then to Grand Rapids. He returned home the following August and so far as disclosed took no further interest in harness making. He thereafter left home from time to time, engaging for comparatively short periods in various callings in different localities, returning home between engagements. He worked one- season as a harvest hand- and thresher in the grain fields of Minnesota, fired engines at a roundhouse of the Grand' Rapids & Indiana Railway for a month, worked for some months at two different times on the Muskegon interurban, his last service being as a motorman, from which position he was soon discharged because he had a wreck; worked for a few months at concrete construction in Hastings in' the summer of 1907, went to Wisconsin that fall and worked for a construction company which was building an interurban road until February, 1908, after which he went back home and has since remained there or in that vicinity as a farmer. His periodical absences from home while employed in the various pursuits mentioned aggregate, as testified to by him, about three years. He had accumulated nothing up to the time of the alleged contract with his father in 1910 and testified that he then intended to go to Milwaukee “to my old job, to get a start, settle down, get married.” He was then working his father’s farm on shares.

While but remotely relevant, the persuasive tenor of the testimony upon that subject is convincing to the contrary of his claim and counsel’s contention that he had “helped him (his father) to accumulate what property he had and had never received any compensation for it.” If some of the testimony is to be, believed he had been a liability rather than an asset to his parents. He was the youngest child and welcomed home by the old folks whenever he saw fit to return from his periodical home-leavings to engage for himself in some chosen vocation, and welcome to remain home as long as he desired. He went and came as and when he cared to. How steadily or much he worked when home is a matter in dispute.. He testified that he did not feel like tying himself down, and received no regular wages, that his mother was the head of the family and handled the pocket-book, saying “whenever I wanted to go anywhere or wanted clothes, when mother was alive I asked her for money to go to a party or go to play ball. If I needed clothes she gave me money to get clothes.” While living at home he always had a horse and buggy of his own, was a devotee of the gun and the rod, fished and hunted around home and went to the north woods deer-hunting in the fall. While living at home in 1906, he rented an 80-acre farm near by for a year and longer at his option. He worked it one year and gave it up to go on one of his trips to start life in other fields of activity.

After his mother’s death he stayed at Bresnahan's much of the time when in that neighborhood and when Henry died went to the old home in January, 1909, under an oral agreement to work his father’s farm on shares for a year, as he claims, taking a lease of the land Henry had owned, for a year, from the administrator, pending settlement of the estate, which went to his father. This did not prove profitable to him, owing to failure of crops and heavy expenses in the home by reason of his sister’s sickness, as he complained, and he contemplated returning to the “old job” in Milwaukee, which he had abandoned some two years before in anticipation, as he presents the project, of getting a start, settling down and getting married, in none of which he had made any headway up to that time beyond courting the girl he subsequently married, on August 20, 1910, in part performance of the contract with his father which this bill is filed to enforce, the claimed proposition of the father which it is contended plaintiff accepted and fulfilled being “if Edward Prendergast will get married and give me a good home I will give him these two forties.” The Prendergast family was of the Catholic faith, its members belonging to and attending the St. Mary’s Catholic church in Berlin of which Father Henry Maus was then pastor. He officiated as the clergyman at plaintiff’s marriage and the testimony is undisputed that he urged and hastened its consummation at the solicitation of Michael Prendergast. The parties in interest were all of his congregation and well known to him. The daughter Etta had recently died, leaving plaintiff and his father as the only remaining members of the family at the old home. During his pastoral calls upon the old gentleman the latter solicited his intervention with plaintiff, who he stated was disposed to leave him for employment elsewhere, to stay at home, attend to the farm, get married and make a home for his father, in which case he should “get the homestead.” Believing such a course right and in the interest of all parties, Father Maus acted as an intermediary to that end, urging plaintiff it was his duty and to his interest to comply, with assurances as to what his father had promised and would do.

In this gratuitous service he favorably discussed the matter back and forth with the parties more than once, telling each what the other proposed and promised until the marriage took place, and thereafter made pastoral calls at the home where he found plaintiff and his wife settled and caring for the farm and household, the father expressing himself, in reply to the pastor’s inquiry, as contented and well pleased with the arrangement, saying his own daughter could do no better for him than plaintiff’s wife.

Upon hearing in the trial court plaintiff’s bill of complaint was dismissed without written opinion or oral intimation of the court’s theory of the case or views upon the evidence, so far as the record discloses. This issue is, however, for trial de novo in this court upon the law and facts, and this record contains, we think, certain undisputed evidence convincingly tending to show a distinct understanding or agreement between plaintiff and his' father for a course of conduct and service by the former founded on a promised consideration. Plaintiff’s claim is predicated upon an executed, not executory, contract on his part —a family arrangement between father and son — the father dying before performance on his part, presenting a case of that class in relation to which it Is said by Justice Campbell in Taft v. Taft, 73 Mich. 502:

_ “Under our statute concerning the acts and declarations of deceased persons, in suits against their estates, a great deal of testimony is shut out which would not be shut out between living parties. Family dealings between father and son must generally be beyond sight and hearing of third persons. Their mutual confidence precludes calling in witnesses, as it precluded here the execution of papers. If enough is shown by witnesses to make out all the elements of a contract, we must assume that much must have existed further which no third party knew.”

Here there is an apparently disinterested and truthful witness with personal knowledge of the occasion and circumstances of the arrangement who testifies to elements of a contract between the parties of the nature claimed by plaintiff, though it must be conceded not to the extent claimed. What actually passed between father and son, neither can disclose. One is precluded from testifying to it by death and the other by statute. Plaintiff’s proofs wholly fail to sustain the allegations of his bill that by their contract he was to have the personal property on the farm, or that the father reserved a life estate in one of the 40 acres, neither are we impressed that his evidence sustains by a fair preponderance his claim to the 40 acres of land across the highway from his father’s homestead, which belonged to Henry up to the time of his death.

Defendants’ contention is that no contract is established by a preponderance of evidence, and in any aspect of the case that there is no proof of the contract alleged in plaintiff’s pleadings. To this proposition their counsel say, “If there was no such contract as alleged in the bill of complaint, then it matters not what was done by the plaintiff after he got married,” and contending that the only proof which could be claimed to disclose the elements of a contract is that of Father Maus, urge that his testimony, considered in its most favorable light, does not make out the contract pleaded.

That recovery can only be had upon proofs bringing plaintiff’s claim within the scope of his pleadings cannot be questioned; but claiming too much does not necessarily preclude all recovery; it does not follow that he must prove every allegation and recover in full, or not at all. The rule of secundum, allegata et probata, means no more than that recovery cannot be had on a claim foreign to or not compassed by the pleadings; that recovery, whether in whole or part, must be according to that which is alleged and proved.

It would avail nothing and afford no useful information to follow counsel in their review and arguments over the range of family affairs and conflicting testimony contained in this ample record of over 500 pages. Items of evidence can be picked out and arguments made tending plausibly to sustain the contentions of either side; but a parol contract for conveyance of real estate should be clearly established in its essentials by a convincing preponderance of the evidence to warrant decree for specific performance by a court of equity, and as to all but the homestead 40 acres, we find no occasion to disturb the result reached by the trial court.

The old homestead, or home 40, was distinctive in that it was long so known and designated. It had been the home of Michael Prendergast and his family for 60 years. In all the proof by both sides as to what he asserted or promised or prophesied or denied in relation to his real estate, whether separately referred to or in connection with other land, in whatever form the testimony runs it shows a uniform expression of intent on his part that plaintiff should have the homestead 40, sometimes, as variously testified to, saying that Edward did own it and sometimes that he would get it. Of his six children raised in that home the three defendants in this suit had gone elsewhere early in life and long ago became established in homes of their own. Of the three who stayed with their parents as members of the family for most or all of their lives, with no other home, Henry and Etta were dead and Edward alone remained. He was the youngest child, at home working his father’s farm when Etta died. It would seem probable that the father desired to induce him to consummate his prospective marriage, settle down and make a permanent home for both at the old homestead. That plaintiff had other plans for his married life is not disputed. Father Maus had been their pastor for about 12 years, buried their dead and ministered to their spiritual wants. It was not unnatural that Michael should ask his assistanee or that he should approve and comply.* He had been transferred from that parish to Saginaw between 5 and 6 years before this case was tried and when the controversy arose was visited by plaintiff and his attorney to interview him on the subject. When they made known their mission and proceeded to talk of the case to him he checked them with the statement, as he testified, that he had rather write a letter giving his impressions, saying in part: “Leave me convey just my impressions there, I said excuse me,- gentlemen, I turned around to my typewriter and there is the result.” The letter is as follows:

“St. Andrew’s Church.
“Rev. H. P. Maus, Pastor.
“603 North Hamilton Street, Saginaw, W. S., Mich.
“Feb. 5, 1916.
“To Whom it May Concern:
“On the occasion of the marriage of Edward Prendergast to Elizabeth Burns, I recall distinctly that I urged and expedited the marriage at the request of Michael Prendergast, to afford him a home. While I cannot quote the exact words, it is my distinct recollection that Edward was to have the old homestead for the care of his father. In fact, I was much surprised to learn that the property had not been deeded over to him.
“I am pleased to state that Michael Prendergast repeatedly informed me that Edward and his wife made him a good home and were very kind to him.
“H. P. Maus, “Pastor.”

Following this interview Richard Prendergast visited Father Maus upon a like mission, who as with the others declined to discuss the subject at length and said to Richard, as the latter testified, “I am surprised that the matter has not been settled, you haven’t given the homestead to Edward as agreed by your father.”

Called as a witness in the case Father Maus was examined at length and in critical detail. Having been absent from that locality for several years, and no special reason to charge his mind with the subject, he frankly admitted his inability to remember exact dates, language used in most instances and many details proposed to him by suggestive questions, but his asserted remembrance and testimony were distinct and positive as to an agreement between father and son, in harmony with the letter quoted, to which he added remembered details, relating that in one interview, when he told Michael what Edward was willing to do, the old man said, “Well, Father, he is going to get the homestead here.” When asked in one part of his cross-examination, “You don’t know what land he referred to?” he answered, “In fairness I can’t say.” ■His testimony indicates fairness and cautious sincerity. He knew that he left Berlin in the fall of 1916, that Edward was married during the summer and at once settled with his wife at the old home, where he subsequently visited them and the father; that, there had been sickness and death in the family earlier in the year and he had visited there quite frequently; that he had participated as before related in bringing about this agreement and Edward’s marriage as a step in its performance, and that his participation began some months — from two or three to five months —-before Edward was married. He knew the Prendergast homestead well from the first year he went there, knew they had land elsewhere, and Henry owned some across the road from the homestead, but what their holdings amounted to he did not know; he could not swear the old gentleman ever spoke of the homestead as being 80 acres, although from some source he had believed it comprised an 80, and said in answer to the question,

“You believed?
“A. Well, built on my knowledge, the time, evidently it has been incorrect, well, it is a 40 instead of an 80, so they claim, I don’t know anything about it now except what I hear.”

He does, however, swear positively and convincingly to the essential elements of a valid contract by Michael for a consideration to give plaintiff the homestead, or the “homestead here,” well known to the contracting parties as the “home 40” and that the old man assured him “he was to transfer that property.” We are not impressed with the legal force or probative value of testimony relative to Michael’s not always consistent remarks on the subject by which it is sought to include the other 40 acres in this contract.

Specific performance will be awarded as to the old homestead 40 acres, and the decree, modified in harmony with this opinion, otherwise affirmed with costs of this court to plaintiff.

Bird, C. J., and Ostrander, Moore, Brooke, Pellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    CITY OF IRON MOUNTAIN v. IRON MOUNTAIN WATERWORKS.
    1. Equity — Jurisdiction — Accounting — Adequate Remedy at Law.
    In a suit by a bill in chancery by a city against a waterworks company for an accounting and to restrain an action at law, where the exact amounts claimed to have been illegally paid by plaintiff, when paid, and what for, are not in dispute, and the ultimate object of the suit is to recover from defendant said money, and defendant’s answer states distinctly that it has no claim against the city except certain itenjs for water furnished and a judgment obtained by it against plaintiff previously, there can be no occasion to invoke the jurisdiction of equity for an accounting.
    2. Municipal Corporations — Contracts—City Officials — Violation of Statute — Vitiating Contract.
    A contract lawfully entered into between a city and a waterworks company, by which the latter agreed to furnish the city with water upon agreed terms, could not be vitiated or changed by, on the one hand, having an officer of the city become a stockholder of said company, or, on the other, by an officer or stockholder of said company becoming a city official; neither party may escape its obligations under the contract by any unlawful and criminal conduct of its members in said particular.
    3. Equity — Jurisdiction—Construction of Contract.
    That the construction of a contract, or statute, or other serious questions of law or fact are involved, affords no ground for equitable interference.
    4. Same — Demand for Money Judgment — Adequate Remedy at Law.
    Where plaintiff’s suit by hill in chancery amounted to a demand for a money judgment, for which it has an adequate remedy at law, the decree entered will he set aside and the case remanded to the trial court for transfer to the law side of the court, under authority of 3 Comp. Laws 1915, § 12351.
    Appeal from Dickinson; O’Brien, J., presiding.
    Submitted January 9, 1919.
    (Docket No. 12.)
    Decided July 17, 1919.
    Bill by the city of Iron Mountain against the Iron Mountain Waterworks to enjoin an action at law and for an accounting. From the decree rendered, both parties appeal.
    Reversed, and case remanded under 3 Comp. Laws, § 12351.

      Doyle & Barstow, for plaintiff.

      H. M. Pelham, for defendant.
   Steere, J.

Plaintiff filed this bill of complaint to recover claimed items of overpayment alleged to have been unlawfully collected from it by defendant during a period of years beginning in 1901. Defendant is a waterworks company organized, incorporated and operating in the plaintiff city under the so-called “waterworks act” for which we are referred to chapter 84, 1 How. Stat. (1882), vide 3 Comp. Laws 1915, § 11282 et seq. Plaintiff is now a city of the fourth class under the general State law, without special charter, having been originally incorporated and its charter rights acquired, as we are advised, under chapter 80, 1 How Stat. (1882).

When either of these incorporations took place is not disclosed, but concededly some time before February 23, 1892, for on that date the city adopted a lengthy ordinance, called the waterworks franchise, accepting a waterworks plant of defendant then in operation as having been constructed within the requirements of said ordinance, which fixed the rates to be charged for water furnished by defendant for public and private use, provided amongst other things for a rental by the city for a period of years of 156 hydrants then in place, and for other hydrants which thereafter might from time to time be needed and placed, required that defendant should supply water to the city for certain public uses free of charge, prohibited water being taken from public hydrants or fountains for private consumption, provided for the extension of water mains thereafter by defendant, either voluntarily or as directed by the city authorities, required that connections between the water mains and consumer’s place of use should be made at the latter’s expense, that the consumer or company could at any time demand metered water and the party demanding the same should pay the cost of the meter, forbid defendant taking water from Lake Antoine into its mains and imposed forfeiture of hydrant rentals while so doing, with many other details too numerous to mention. This ordinance was accepted by the waterworks company which has furnished water to the city of Iron Mountain and its inhabitants since that time.

Plaintiff makes no complaint of its relations with defendant prior to 1901, its grievances, begun in that year and since continued as it complains, being chiefly predicated upon the claim that members of its council who were stockholders and officers of the waterworks company participated as city officials in the allowance and payment to defendant of its bills for service rendered and water furnished to the city, in violation of section 2993,1 Comp. Laws 1915, which provides that:

“No member of the council or any officer of the corporation shall be interested, directly or indirectly, in the profits of any contract, work or service (other than official services), to be performed for the corporation,” * * *

—and imposes upon any city officer convicted of offending against such inhibition punishment by fine and imprisonment. The bill prays for a construction of the waterworks ordinance, or franchise, for an accounting, a decree for repayment to the city of the moneys illegally paid by it to defendant and an injunction to restrain threatened action at law by defendant to collect bills claimed due it from the city.

Defendant answered issuably in denial and explanation, pleaded the statute of limitations as to any items paid to it by the city more than six years prior to commencement of suit and admitting certain of its stockholders were at different times members of the city council and its board of public works, alleges that all bills paid it by the city within that time were audited and allowed by not less than six aldermen of the city who were not stockholders, and who constituted a majority of the council. A hearing before the trial court resulted in a final decree in favor of plaintiff in the sum of $1,659.08 from which both parties have appealed.

Defendant first makes the contention that no equitable ground of relief is made out by the proofs, as plaintiff’s case resolves itself into an effort to recover a money judgment for bills claimed to have been unlawfully collected from it, the items and amounts of which are not in dispute- while its right to recover is contingent on issues of law involving no questions giving chancery jurisdiction, or equitable considerations; and that what plaintiff contends is the controlling legal question could be settled in an action at law by it, or by the action it alleged defendant was about to begin and asked the court to enjoin.

The action which defendant was about to commence involved three items for water furnished the city during a certain period as follows: "For its cemetery, $77.66; for its city building, $85.33; for its jail, $32.20. The ordinance required defendant to furnish free wafer to plaintiff for its public buildings used for city purposes and for certain public fountains, it being specified that no water should be taken -from such fountains for private use. It appeared that years previously the pipes to supply free water for city use in the above cases had been tapped, as defendant claims at the instance of the city under a mutual arrangement agreeable to all parties, to supply offices in the city building rented by plaintiff to private parties, and to water the' cemetery grounds beyond a public fountain, after which a certain agreed charge on an estimate of the respective uses was made and paid for the water metered into those pipes, until a proposition for separate meters and question as to whose duty it was under the ordinance to provide them arose, resulting in the city refusing further payment and threatened action by defendant to recover for the same, which plaintiff forestalled by this suit in chancery asking for an injunction, an accounting and a decree for several thousand dollars claimed to have been illegally paid by it in those and various other waterworks matters since 1892.

Having claimed the right to and asked for an accounting it is contended for plaintiff that equity assumes jurisdiction of the whole controversy until it is finally disposed of. The exact amount of the various items claimed, to have been illegally paid by plaintiff, when paid, and what for,, are not in dispute. The ultimate object of this suit is to recover from defendant the money so unlawfully had and received by it. Defendant states distinctly in its answer that it has no claim against the city except the items for water stated above and a judgment obtained by it against plaintiff in the Dickinson county circuit court on January 19, 1917. Under such a state of facts there can be no occasion to invoke the jurisdiction of a court of equity for an accounting. The validity of the waterworks ordinance, which early in the case plaintiff was inclined to question under the general law on several grounds, is- now conceded by both parties to be a valid and binding contract between them. No stockholder of defendant was a member of the council or officer of the city at the time of its adoption and acceptance in 1892 or for years thereafter. Iron Mountain was not then a city of the fourth class and it was expressly authorized by a special statute to enter into a 30 year contract with any waterworks company organized under the laws of this State for a supply of water for fire and other city purposes. Act No. 247, Local Acts 1891. This ordinance constituting the contract between these parties is a voluminous document defining their contractual rights and duties in great detail, apparently drawn with a studied effort to cover any probable contingencies which might arise in the business during the period covered by the ordinance. Neither party could vitiate or vary this contract or escape its obligations under it by, on the one hand, having an officer of plaintiff become a stockholder of defendant, or, on the other, by an officer or stockholder of defendant becoming a city official, and then criminally attempt in violation of the statute to change those contractual obligations of the two corporations.

At the time the contract was entered into defendant had 13 miles of mains in operation and 156 hydrants installed for. which the city agreed to pay a rental of $9,000 a year, and the water company agreed to supply water for fire protection and other public uses to the city, as specified, and to consumers within the city at stated prices for various purposes scheduled at much length with full details. Neither party in the final analysis can escape its obligations under this contract by any unlawful, and criminal, conduct of its members in the particular complained of.

It is also claimed by plaintiff services were rendered and things done by the waterworks company in its dealings with the city not comprehended by the ordinance, for which bills were rendered and unlawfully paid, involving determination of amount, prices, etc., in ordering which and auditing bills therefor the council necessarily contracted with defendant, directly or by implication, and in yiolation of the statute, whenever a stockholder of the latter was a member of the council. This would only raise other questions of law and fact, if the facts are disputed, which the law courts are fully empowered to deal with and dispose of.

The contention that plaintiff is entitled to invoke the aid of a chancery court for an accounting in relation to these matters because they involve relations between these parties in the nature of a trust is not tenable. As between the municipal corporation, or its officers, and its citizens something of that nature might possibly be discerned, but the parties to this suit bore no such relations to each other. They were dealing at arm’s length as contracting parties and only legally bound by their contract obligations, express .or implied. In this State, law and equity are separately administered. Asking an accounting in relation to undisputed amounts alleged to have been received from plaintiff in violation of statutory prohibition cannot change the form of action or confer jurisdiction upon the chancery court. The rights of these parties spring solely from legal duties and obligations. That the construction of a contract, or statute, or other serious questions of law or fact are involved, affords no ground for equitable interference. Plaintiff’s demand is for a money judgment, and on the issues presented it has a plain, complete'and adequate remedy at law.

This suit by bill in chancery was not commenced in the proper forum where rested complete jurisdiction to fully dispose of the controversy. It should have been brought and tried as an action on the law side of the court. The chancery decree appealed from will therefore be set aside, with costs to defendant, and the case remanded to the trial court for transfer to the proper side under authority of section 12351, 3 Comp. Laws 1915, if requested, with such further proceedings as parties may desire and the court determine.

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


author: Fellows, J.

text:
    BURGHARDT v. DETROIT UNITED RAILWAY.
    1. Negligence — Proof—Circumstantial Evidence — Prima Facie Case.
    While the happening of an accident alone is not evidence of negligence, it may he established by circumstantial evidence; and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made.
    2. Same — Street^ Railways — Personal Injuries.
    In an action against a street railway company for personal injuries to a pedestrian, caused by the trolley pole falling and striking him as he was passing the car, held, that the circumstances, surrounding the accident, unexplained, made a prima facie case for the jury.
    S. Appeal and Error — Directed Verdict.
    Upon a motion to direct a verdict, the evidence and legitimate inferences from the established facts most favorable to the other party must be accepted.
    4. Negligence — Prima Facie Case — Rebuttal — Inspection — Proof.
    To rebut the prima facie case made by plaintiff, it was necessary that defendant prove an inspection of the trolley pole in fact; evidence that a system of inspection was established being insufficient.
    Error to Wayne; Codd, J.
    Submitted April 11, 1919.
    (Docket No. 33.)
    Decided July 17, 1919.
    Case by Ernest C. Burghardt against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Dohany & Dohany, for appellant.

      Corliss, Leete & Moody (Clark C. Seely, of counsel), for appellee.
   Fellows, J.

On October 7, 1915, plaintiff while walking to a restaurant in the city of Detroit reached the corner of Gratiot and Farmer. He desired to cross Farmer but a car on the line of defendant was on that street and he waited for it to get by and then started across the street, passing to the rear of the car. The car track here curved both east and west. While passing the rear of the car, plaintiff was struck by the trolley pole which had become loosened in its socket and fell upon him causing injuries, claimed by him to be of a serious and permanent character. For the recovery of the damages thus occasioned he brought this action. At the close of plaintiff’s case the court denied defendant’s motion for a directed verdict, entertaining the view that the circumstances surrounding the accident were such that a jury might legitimately infer negligence on the part of the defendant and that therefore a prima facie case was made, but at the conclusion of the case directed a verdict for the defendant upon the theory that although plaintiff had made a prima facie case of negligence such case had been successfully rebutted by defendant’s testimony. To review the judgment entered upon the verdict so directed this writ of error was allowed.

To sustain this judgment defendant insists that there was no evidence in the case of negligence on its part; that the happening of the accident alone is not sufficient evidence of negligence to make a case for the jury; that to hold there was sufficient evidence to go to the jury would be to adopt the rule res ipsa loquitor; that the trial court was right in directing a. verdict for the defendant and should have done so at the close of plaintiff’s case.

This court has not adopted the rule res ipsa loquitor; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made. Alpern v. Churchill, 53 Mich. 607; Barnowsky v. Helson, 89 Mich. 523 (15 L. R. A. 33) ; La Fernier v. Wrecking Co., 129 Mich. 596; Stowell v. Standard Oil Co., 139 Mich. 18; Elsey v. J. L. Hudson Co., 189 Mich. 135 (L. R. A. 1916B, 1284) ; O’Donnell v. Lange, 162 Mich. 654; Harris v. Savings Bank, 187 Mich. 407; Sewell v. Railway, 158 Mich. 407; Gerstler v. Weinberg, 160 Mich. 267; Congdon v. Railway Co., 179 Mich. 175; Bayer v. Grocholski, 196 Mich. 325.

In Barnowski v. Helson, supra, it was said:

“In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of any injury does not impute negligence on the part of any one, but where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. * * *
“This roof not properly supported would fall as a. natural result of the laws of gravitation, but if properly braced there would be no reason for its falling, from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or' tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed.”

In Sewell v. Railway, supra, Mr. Justice Montgomery, speaking for the court, said:

“It is the settled rule of this State that negligence of the defendant must be proved, and that an inference of negligence is not to be drawn from the mere fact of an accident. But it has also been held in numerous cases that the circumstances attending an injury may be such as to justify an inference of negligence. As in the present case, if all that appeared had been that the plaintiff was riding in a car of the defendant under the control' of its servants, and the car in which plaintiff was riding continued its course until it collided with another car ahead of it standing still, with sufficient force to push the still car ahead 75 feet, the inference that some one had blundered prima facie would be the most natural one to be drawn, and that inference is so clear that it would not require further proof of negligence on the part of the defendant.”

We are impressed that under the authorities cited, the accident in the instant case with the circumstances surrounding it, unexplained, made a prima facie case for the jury. The trolley pole was a steel tube, 14 feet long, and rested in a socket. It was secured by being clamped into the socket with four bolts, two on either side. The clamps were about eight inches long and were bolted with half inch bolts. There was a nut on each bolt. It was patent that if the pole was properly secured it would not have fallen from the socket. It is equally patent that a proper inspection would readily disclose whether or not it was securely fastened. The defect, if one existed, was not a latent one.

Upon a motion to direct a verdict, the evidence and legitimate inferences from the established facts most favorable to the other party must be accepted. Under the circumstances disclosed by this record, a prima facie case was made for the jury to determine, from the unexplained falling of the trolley pole, which admittedly would not have fallen had it been properly secured, and where an inspection would readily have disclosed any defects in it, from the circumstances of the pole falling when the car was moving at a slow rate of speed, from all the surrounding circumstances, the question of negligence on the part of the defendant company, and that the court could not say as matter of law that the plaintiff’s proofs failed to make this question one of fact.

But defendant insists that it has established an inspection and that there being direct proof on the subject, the prima facie case, if one was made by the plaintiff, must fail. This was the view entertained by the learned trial judge. Our difficulty in agreeing with this conclusion lies in the fact that there is no competent evidence of an actual inspection of the car in question. The most that can be said of defendant’s proof is that it established a system of inspection, inferentially in consonance with good railroading. But the proof does not establish that an inspection was in fact made. Where the duty to inspect exists it is not discharged alone by the adoption of a system of inspection, or the promulgation of a set of rules. The system must be used; the rules must be enforced; the inspection must be made. It was competent for the defendant to show that it had adopted a system of inspection, what that system was, that it comported with the requirements of good railroading, and plaintiff’s objections to the introduction of such proof were properly overruled; but to overcome plaintiff’s prima facie case it was necessary that defendant prove an inspection in fact. This it failed to do. The court therefore was in error in directing a verdict.

The judgment must be reversed and a new trial granted, with costs to plaintiff.

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


author: Stone, J.

text:
    RIEDEN v. RIEDEN.
    1. Divorce — Cross-Bill—Evidence—Sufficiency.
    On appeal by a husband from a decree granting a divorce to the wife upon her cross-bill, evidence held, sufficient to entitle plaintiff to a decree on the grounds of extreme cruelty.
    2. Same — Alimony—Modification oí Decree.
    Where the court found that plaintiff’s property was worth about $14,000, an award to defendant of the homestead, worth about $4,500, together with the household furniture therein, and $5 a week for the support, maintenance, and education of a minor child until she attains the age of 14 years, will be affirmed; hut a further provision that plaintiff should furnish defendant an abstract of title of said homestead, or pay $50 in lieu thereof is eliminated from the decree.
    On relation-between one spouse and relatives of the other as affecting the question of cruelly, see notes in 13 L. R. A. (N. S.) 222; 34 L. R. A. (N. S.) 759; L. R. A. 1915E, 161.
    On profanity and obscenity as grounds for divorce, as cruel and inhuman treatment, see note in 12 L. R. A. (N. S.) 820.
    Appeal from Wayne; Perkins, J., presiding.
    Submitted April 10, 1919.
    (Docket No. 24.)
    Decided July 17, 1919.
    Bill by Edward Rieden against Loretta Rieden for a divorce. Defendant filed a cross-bill alleging extreme cruelty. From a decree for defendant, plaintiff appeals.
    Modified, and affirmed.

      James H. Pound, for plaintiff.

      Edward C. Moran, for defendant.
   Stone, J.

The bill of complaint herein for divorce was filed by the plaintiff in the Wayne circuit court, in chancery, on February 14, 1918. The parties were young people, having been acquainted with each other from childhood, and were both residents of the city of Detroit. They were married on June 16, 1915, and lived and cohabited together until about the 18th day of November, 1917, when it is claimed by the plaintiff that the defendant deliberately put his clothes out of the house, or home of the parties, while he was away at work earning a living for himself and family. One child was born, a girl, • Loretta M., on April 24, 1916. That child is living, and is with the defendant. The bill of complaint charges the defendant with numerous acts of extreme cruelty, personal violence, and an utter disregard of her marital obligations. Among other things it charges that the defendant was, during the period of the marriage, largely under the domination of her mother, and much of the trouble charged in the bill is traceable to the attitude of defendant’s parents toward the plaintiff. It is charged that they united with defendant in the use of many epithets, charging the plaintiff, among other things, with being a “dirty Dutch pup,” “a Dutch coward,” etc. The bill charges the defendant, at different times during June, 1917, with breaking dishes and utensils for housekeeping in her fits of anger. It appears from the bill and evidence that the plaintiff was a contractor and builder at the time of the marriage of the parties; and there seems to have been much difficulty in the conducting of his building business and the selling of lots by the refusal of the defendant to join him in making conveyances of such property. He finally changed his' business to that of keeping a barber shop and pool room.

The bill charges that about March 1, 1917, the defendant came to plaintiff’s place of business, walked behind the cigar case on the counter, opened a drawer of which she had knowledge, took from the drawer a loaded revolver and pointed it at the plaintiff, and threatened to shoot him unless he came home with her at once — this being in the evening; and it is charged that the defendant terrorized not only the plaintiff, but a number of persons present until she was disarmed by the plaintiff, when her attention was distracted by another person then present.

The answer of defendant is peculiar in that in its denials of the acts of cruelty charged, in nearly every instance it contains what may be termed a negative pregnant, a negative implying an affirmative; that is, while denying the allegations of the bill it generally does so in the exact language charged in the bill. For instance, in denying this allegation, defendant says in her answer:

“Defendant further answering denies that about March 1,1917, she entered plaintiffs place of business, walked behind the cigar case and opened a drawer of which she had knowledge, took a revolver and pointed it at plaintiff, threatened to shoot him unless he came with her at once, and denies that she terrorized the whole place until she was disarmed by your orator when her attention was distracted by another person then present.”

She testified, relating to this subject, that:

“Backing up to the cigar case where the revolver lay on the ledge I pulled it on him.
“Q. Then you had the room all to yourself, did you?
“A. Yes, sir.”

She further testified that the revolver was loaded, and also as follows:

“Q. Did you tell those four men that were there that you would shoot any one that made a step towards you?
“A. Yes.”

After denying the allegations of the bill in the manner indicated, the answer also contains, by way of cross-bill, many charges of cruelty on the part of the plaintiff, and a large amount of testimony was taken in the case, all of which has been examined. The court below granted a decree to the defendant upon her cross-bill. Plaintiff has appealed.

After reading the testimony of about 25 witnesses examined in the ease, we are impressed with the contradictory character of the testimony of the parties, and their immediate relatives; it being so contradictory that it is entitled to but slight consideration. In view, however, of the testimony of a number of disinterested witnesses, we are constrained to hold that the testimony on behalf of the plaintiff entitled him to a divorce against the defendant upon the grounds of extreme cruelty. The evidence tends clearly to show that the defendant is a woman of violent passion, and that she was guilty of many acts of personal violence and neglect of wifely duty in her conduct toward the plaintiff. There would be no profit in here setting forth that testimony. It is sufficient to say that it shows such a condition of ill-will, if not hatred, between the parties that there is no hope of reconciliation; and we agree with the conclusion reached by the circuit judge, that a decree of divorce should be granted in the case. As this court said in Utley v. Utley, 155 Mich, at page 259:

“We are impressed that the parties should be relieved of the relations entered upon with their marriage.”

We think this divorce should be granted to the plaintiff.

The custody of the little girl, now about three years old, was awarded to the defendant. This part of the decree, in our opinion, should not be disturbed. The care and education of this child is, in our opinion, the most important question to be disposed of. The circuit judge found that the property of the plaintiff, including the homestead, was about $14,000. We think this a pretty high figure from the testimony in the case. The homestead, described as No. 893 Green avenue, Detroit, was owned by the parties as tenants by the entireties, the title having been so placed in the lot soon after the marriage, which property seems to be worth, by the undisputed evidence, in the neighborhood of $4,500. The court below awarded this property to the defendant, together with the household furniture therein; and the decree further provided for the payment by the plaintiff to the defendant of the sum of $5 each and every week for the care, support, maintenance and education of the said minor child, Loretta M. Rieden, until she attains the age of 14 years, or until the further order of the court, and that the plaintiff should have the right to see and visit the child once each week if he so desired. It directed a conveyance of the interest of the plaintiff to the defendant in this property.

If this child is to have proper support, education and maintenance, it is desirable that the defendant shall have a home for the purpose of performing these duties to the child. We are not disposed to disturb this part of the decree. The court below, however, after directing a conveyance of plaintiff’s interest in this property to the defendant, provided that he should furnish her with an abstract of title of said premises within a limited period, and that in default thereof he should pay her $50 in lieu of said abstract. We think this provision should be eliminated from the decree. The decree properly provides that upon the performance of these conditions, all- right of dower which the defendant may have in and to any of the plaintiff’s property owned or hereafter acquired by him, should be barred forever. This, provision will be retained in the decree.

The record shows that there had been paid to the defendant as temporary alimony $10 per week pending the suit, and also $30 attorney’s fee. The final decree also awarded defendant’s attorney the sum of $150 as an attorney fee in the case. In this court, a petition for the allowance of expenses on account of the appeal having been filed, we made an order allowing the defendant $50 on account of expenses. The plaintiff has printed the record, and we think that, in view of the liberal award made in the court below as an attorney fee, and the order made in this court, and under the circumstances of the case, no additional award of costs should be made to the defendant.'

The decree below as thus modified will be affirmed, without further costs.

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


author: Kuhn, J.

text:
    OWEN & CO. v. KELLER.
    Sales — Conditional Sale — Reservation of Title — Chattel Mortgages.
    A contract for the sale of certain articles of furniture, in the form of a lease, containing none of the usual stipulations and agreements of a chattel mortgage, hut providing that the vendor will, when the terms have been fulfilled, “convey a free and clear .title of above articles to the lessee,” held, to he a conditional sale contract; the intent being clear that title should not pass to the purchaser until the purchase price was paid in full.
    Case-made from Wayne; Webster (Arthur), J.
    Submitted April 24, Í919.
    (Docket No. 101.)
    Decided July 17, 1919.
    Replevin in justice’s court by Owen & Company against Morris Keller for the possession of certain furniture. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff.
    Defendant appeals. Affirmed.

      Maurice D. Smilansky, for appellant.

      William Van Dyke, for appellee.
   Kuhn, J.

This is a case-made, and the following is the agreed statement of facts:

“It is hereby agreed between the parties to this cause by their respective attorneys, that the following are the facts in above cause and the ruling of the justice court upon trial of above cause.
“The plaintiff was the owner of the articles of furniture described in the writ of replevin in the files of this cause and on November 1, 1918, delivered the goods described in said writ of replevin to one Andrew Korshemoff at his place of residence, 736 Grandy avenue, Detroit, Michigan, in pursuance of the following instrument, which was on said date and prior to said delivery, signed and executed by the said Owen & Co., and said Andrew Korshemoff, the latter at the time of the execution of the said instrument paying to said Owen & Company the sum of twenty-five ($25.00) dollars.
“ ‘Leas®.
“‘Nov. 1, 1918.
4 Kit. chairs ... $7.00
1 table ......... 16.75
1 bed .......... 13.50
1 spring ....... 9.75
1 mattress ..... 7.50
1 pr. pillows ____ 5.00
1 dresser ....... 17.50
1 dresser ....... 15.75
1 Pluto hot blast 86.00
1 stove board____ 1.50
1 oil heater ____ 7.50
“ T, the lessee, hereby rent from Owen & Co. the above goods on the following terms of rental: $25.00 for the first payment and not less than $6.00 every 2 wks. until paid when this lease expires.
“ ‘I agree to keep said goods in first-class condition, surrender possession of the same at the expiration thereof, whenever I am in default of rent, or shall remove said goods from my present address or otherwise endanger the interests of lessors, and to pay all legal or other expenses which said lessors may necessarily incur in regaining their possession of said goods.
“T agree to pay rent to lessors at Gratiot and Brush or 25 cents for collection when overdue.
“ ‘We, the lessors, agree that if at the end of the term of this lease, lessee has fulfilled above covenants to convey a free and clear title of above articles to the lessee.
“ ‘Rentals accepted after the term of this lease shall be considered by both parties hereto as only payments of arrearage hereon, and possession of above goods shall thereafter be only at will and pleasure of lessor; ..........discount on advance rentals.
“ ‘Sgd. Andrew Korshemoee,
“ ‘736 Grandy Ave.
*“Sgd. Owen & Co.,
“ ‘Per Walter A. Smith, Secy.
“ ‘Date 11/1/18.’
. “That said goods described in the foregoing instrument are the same goods described in the bill of replevin in this cause and recovered by plaintiff upon said writ of replevin.
“That thereafter no further payments were made by said Andrew Korshemoff to the said Owen & Co.
“That thereafter, in the month of December, 1918, the said Korshemoff sold said goods .to the above defendant Morris Keller, a dealer in second-hand furniture, Detroit, Michigan, and said Korshemoff disappeared.
“That in January, 1919, said Owen & Company made due demand upon said Morris Keller for the said goods described in the foregoing instrument and in writ of replevin in this cause and said Morris Keller refused to give them up.
“That thereafter said Owen & Co., duly replevined said goods in justice court in the city of Detroit and the trial of the replevin cause came on before Theodore A. Richter, one of the justices of the peace thereof.
“That at the trial of the above, facts were duly proven and said justice of the peace thereupon rendered judgment in favor of the defendant and against the plaintiff for the return of the said goods to the defendant Morris Keller.
“That the sole ground upon which said justice of the peace rendered said judgment against the plaintiff in favor of the defendant was upon the authority of the case of Young v. Phillips, 202 Mich. 480, and the opinion on the rehearing thereof, 208 Mich. 566, said justice of the peace holding that the foregoing instrument was a chattel mortgage and not a conditional sale; that plaintiff had parted with title and could not recover the goods in the hands of an innocent third party, in the event of not having recorded foregoing instrument.
“That the foregoing instrument had never been recorded.
“Said writ of replevin was as aforesaid issued December 27, 1918, in said justice court, and said judgment was rendered January 25, 1919; and the appeal duly and regularly perfected to this court on the 29th day of January, 1919.
“It is further agreed between the parties to above cause that this case shall be submitted upon the foregoing statement of facts upon the files and records of this cause, to the circuit court for the county of Wayne, without a jury, in accordance with statute in such case made and' provided.”

Upon the trial in the circuit court, the trial judge made the following findings of law:

“I find that plaintiff Owen & Co. retained title to the goods described in the writ of replevin and in agreed statement of facts and that title was in Owen & Co. when it instituted this replevin action.
“I find that the instrument entitled ‘Lease,’ set forth on page 2 of the agreed statement of facts was a conditional sale contract in which Owen & Co. was the vendor and Andrew Korshemoff, the vendee, and that title in said contract was retained absolutely in the vendor and not simply for security or by way of pledge.”

Kuhn, J. (after stating the facts). The sole question before us on this review is whether or not the instrument set forth in the agreed statement of facts is a pure conditional sale contract reserving title in the vendor, or is it .an absolute sale reserving a lien by way of security, that is, a chattel mortgage? It is admitted on both sides that this transaction was not a lease. One paragraph of the instrument provides:

“We, the lessors, agree that if at the end of the term of this lease lessee has fulfilled above covenants, to convey a free and clear title of above articles to the lessee.”

This seems to clearly indicate an intent that the title shall not pass to the purchaser until the amount at which the articles were valued on the face of the instrument has been paid in full. The agreement also clearly indicates that the purchaser is to have possession of the goods in the first instance, but provides that the seller may retake same when payments are in default or goods have been removed from location to which delivered, without vendor’s consent, etc. None of the usual stipulations and agreements of a chattel mortgage are incorporated in the instrument. There is no stipulation that the vendor may sue for the amount due under the contract and yet retain title until the judgment is paid in full. If, instead of retaking the goods in case of default, the vendor elected to sue for the amount due under the contract, he would thereby, under the doctrine of Button v. Trader, 75 Mich. 295, vest the absolute title in the purchaser. In our opinion, there is nothing in the contract in question which, under the tests outlined, in Young v. Phillips, 202 Mich. 480, and 203 Mich. 566, would make it anything in effect but the simplest form of a conditional sale contract, complicated by no inconsistent provisions whatever.

The judgment of the circuit court is therefore affirmed.

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


text:
    DROPPERS v. MARSHALL.
    Frauds, Statute of — Contracts—Breach—Description of Land.
    A contract for the sale of land described as “All that certain piece or parcel of land situate in the township of Byron, in the county of Kent and State of Michigan, described as follows, viz.: The east half of the southeast quarter and the southeast quarter of the northeast quarter, less one acre (E. % S. E. U, and S. E. % of N. E. Ü, less 1 A) of township 5 north of range 12 west, containing 119 acres of land, more or less, according to the government survey thereof,” was defective under the statute of frauds (3 Comp. Laws 1915, § 11977) for omitting the section, and an action for the breach thereof could not be maintained.
    Error to Kent; McDonald, J.
    Submitted April 22, 1919.
    (Docket No. 82.)
    Decided July 17, 1919.
    Assumpsit by Anthony C. Droppers against Ernest W. Marshall for breach of a land contract. Judgment for plaintiff.- Defendant brings error.
    Reversed, and no new trial ordered.

      Hatch, McAllister & Raymond, for appellant.

      Herman & Johnson, for appellee.
   Kuhn, J.

This is an action brought to recover damages for the breach of a written contract. The case has been in this court before, and is reported in 203 Mich. 173. Upon being retried, a verdict was had in favor of the plaintiff and against the defendant in the sum of $1,343.19, upon which verdict judgment was duly entered. The description of the premises in the contract is as follows:

“All that certain piece or parcel of land situate in the township of Byron, in' the county of Kent and State of Michigan, described as follows, viz.: The east half of the southeast quarter and the southeast quarter of the northeast quarter, less one aere (E. % S. E. *4 and S. E. % of N. E. less 1 A) of township five north of range twelve west, containing one hundred nineteen acres of land, more or less, according to the government survey thereof; also personal property as follows: one team of mares, one bay and one roan, about eight and nine years old; one Corn King manure spreader, all straw to remain on the premises, manure carrier to be left on the tracks in the barn, also the large hay fork and ropes to remain on said premises, and the lighting system to remain in the house.”

When this contract was offered in evidence, it was objected to by defendant’s counsel on the ground that it was ambiguous, uncertain and indefinite, there being no land described in the contract, no section mentioned, and the location of the excepted acre was not specified. Objection was also made to the introduction of any evidence under the declaration, for the reason that it did not describe any land, as it follows the description in the contract and such description was uncertain, indefinite and ambiguous, and the contract void. These objections were overruled, and on application of plaintiff’s counsel, the court allowed an amendment to the declaration inserting “section 8” in the description. At the close of plaintiff’s testimony defendant’s counsel moved the court,—

“to direct a verdict in favor of the defendant on the ground that the contract is void under the statute of frauds for the reason that the description is ambiguous, uncertain and indefinite in two respects, first, there is no section mentioned; second, the location of the acre which is excepted is not mentioned.”

This motion was likewise overruled. On the trial the plaintiff testified that the bargain was made at the Byron Center Bank and on Mr. Marshall’s farm, and also that certain personal property mentioned in the contract was in Mr. Marshall’s (defendant’s) barn and that the barn was on section 8.

The question which is before us for solution is whether, under the description as presented by the contract, it was proper to resort to parol evidence in aid of the writing. It is the claim of the defendant and appellant that the description is not sufficient under the statute of frauds (3 Comp. Laws 1915, § 11977), and it is urged that in this class of cases, whether the description is general or specific, it must be complete, in itself and leave nothing to rest in parol, and that in the present case the description is clearly deficient, because in two particulars the indefiniteness of the description would have to be aided before the description could be applied to land, viz., the section would have to be supplied and the location of the excepted acre would have to be designated. An examination of the authorities and text books (see 2 Devlin on Real Estate [3d Ed.], §§ 1010-10133d) discloses that the decisions are not at all in harmony on this subject, which fact was early recognized by this court in the case of Eggleston, v. Wagner, 46 Mich. 610. But whatever the state of the law may have been, the question here involved, that is, whether the description was sufficient with the omission of the section number, was squarely passed upon by this court in the case of Miller v. Beardslee, 175 Mich. 414. In the deed there in question the premises were described as follows:

“All of certain pieces or parcels of land situate and being in the township of Oakland, county of Oakland and State of Michigan, and described as follows, to wit: The west half (%) of the northeast quarter (%,) ; also the east half (%') of the northwest quarter (%), except eighteen (18) acres off southwest corner. Also the northwest corner of the west half (%) of the southeast quarter (%) lying north of property of Michigan Central R. R. Co.”

Subsequently the following was added to the description :

“All of section twenty (20), town four (4) north, range eleven (11) east, Michigan.”

With reference to the sufficiency of this description, we in that opinion said:

“It is apparent that when the deed was executed and delivered by the grantor it contained no complete description of land. The words, ‘lying north of property of Michigan Central R. R. Co.,’ are the only words employed which can by any possibility aid the description. And these words, in the light of certain testimony which was admitted, are found to afford no real aid because the railroad company had at least a right of way in seven sections in Oakland township. Other testimony, admitted withoút objection, and not disputed, tended to prove that Alice Smith owned land, otherwise corresponding with the description in the deed, in section 20 in said township and owned no other land in the township. Defendants say that this testimony, having come in without objection, may be properly used to determine what land was intended to be conveyed and to sustain the deed. We think this is not so. The case for complainant, so far as it is now presented, is this: Complainant is heir at law of Alice Smith. Alice Smith died owner of certain land unless she had conveyed it in her lifetime. She had not conveyed it because her voluntary effort in that direction was imperfect. The instrument she executed requires correction to make it effective.
“The grantor being dead, a court of equity will not correct it. Redding v. Rozell, 59 Mich. 476 (26 N. W. 677); Shears v. Westover, 110 Mich. 505 (68 N. W. 266). See, also, Tuthill v. Katz, 174 Mich. 217 (140 N. W. 519). The conveyance therefore remains ineffective, and insufficient evidence of a transfer of the land by the owner thereof in her lifetime.”

We are of the opinion that this decision disposes of the question here involved in accordance with the claim of the defendant and appellant that the description is not sufficient under the statute of frauds. The circuit judge was in error in not so holding and in not directing a verdict in accordance with the motion made by the defendant. As this effectually disposes of plaintiff’s claim, the judgment is reversed and no new trial ordered, with costs to the appellant.

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


author: Ostrander, J. Kuhn, J.

text:
    STANDARD DRUG STORE v. A. E. WOOD & CO.
    Landlord and Tenant — Damage by Fire — Obligation to Pay Rent — Repairs.
    Damage to a building by fire will not relieve tbe lessee of part thereof from liability under bis contract to pay rent, in tbe absence of a stipulation for release or covenant for tbe landlord to repair, where tbe rooms may be restored to their former condition by tbe lessee without committing any trespass. Moore and Kuhn, JJ., dissenting.
    Error to Wayne; Codd, J.
    Submitted April 18, 1919.
    (Docket No. 1.)
    Decided July 17, 1919.
    Rehearing denied October 28, 1919.
    Assumpsit by the Standard Drug Store against A. E. Wood & Company for rent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Bishop & Kilpatrick, for appellant.

      Campbell, Dewey & Stanton, for appellee.

      Act No. 42, Public Acts of 1917, provides that when any leased or rented building is destroyed or is so injured by the elements, or in any other way, as to be untenantable or unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee, or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the building, and of the land so injured, destroyed, or rendered untenantable or unfit for occupancy; and such lessee or occupant shall not be liable to pay to the lessor or owner rent for the time subsequent to the surrender. This law is not invoiced in this case, and is referred to only to contrast this legislative declaration with the common-law rule and rules heretofore declared by this court.
    In Lieberthal v. Montgomery, 121 Mich. 369, it appeared that plaintiff leased from defendant the south store room on the ground floor of the two-story brick building situated on lot 10, block 11, Iron Mountain, and also the part of the lot back of the said building, the part of lot to be used by plaintiff in common with other tenants in the building. The building was damaged by fire without the fault of either party and the room occupied by plaintiff rendered untenantable. Walls, roof, and second story remained intact. There were no covenants of the lessor to repair, and the room was not repaired during the month of January, for which month rent had been paid. Plaintiff, the lessee, sued for the money paid in advance for the month of January. This court said:
    “The general rule is well settled that when the tenant covenants to pay rent, and does not provide against liability in case of destruction of the premises by fire or other casualty, he is bound, in the absence of statutory provisions or covenant on the part of the landlord to rebuild, to pay the rent. 12 Am. & Eng. Enc. Law (1st Ed.), 741, and cases cited in note 1; Porter v. Tull, 22 L. R. A. 613 (6 Wash. 408, 36 Am. St. Rep. 172), and note. There is an exception to this rule, however, where a room in a building is leased, and the whole building is destroyed by fire or other casualty, as the destruction of the building puts an end to the tenancy, and the tenant is not liable for rent accruing subsequent to such destruction. Counsel for plaintiff seek to bring the case within this exception. It appears, however, that the whole building was not destroyed, and there was no such destruction of the room as to deprive the tenant of the right of occupancy for the purpose of repairing the same so as to make it tenantable, if plaintiff elected to do so. There is no question of rebuilding the whole structure. It is simply a matter of internal repair. The lessor would have no right to enter to make such repairs without the consent of the lessee.
    “Another reason why the case does not come within the exception to the general rule is that the lease covered the use of the land in the rear of the building. There is no evidence in the case that the plaintiff surrendered the premises after the fire.”
    In Bowen v. Clemens, 161 Mich. 493 (137 Am. St. Rep. 521), the lot leased was larger than the building which burned, so that, without committing any trespass, the lessee could have rebuilt the store. The action was for rent, and plaintiff recovered. The case was ruled by Lieberthal v. Montgomery. It was also held that accidental injuries, from natural causes, which interfered with the lessee’s enjoyment of leased premises are not considered a breach of the lessor’s covenant for quiet enjoyment.
    In Minnis v. Newbro-Gallogly Co., 174 Mich. 635, the cause came here on demurrer to a bill filed for an injunction against breach of a lease. An order sustaining the demurrer was reversed. The defendant owned a four-story building, the second, third and fourth stories of which were leased for a period of years and occupied by the lessee. A fire, originating on the ground floor of the building, was communicated to the upper stories and rendered them untenantable. Plaintiff, the tenant, after the fire, paid, on demand, rent for one month (it was payable monthly) and stood ready to pay thereafter on performance of the contract of lease by the lessor. Demand upon the lessor was made to restore the premises — make them tenantable — and the demand was refused. Relief prayed for was that defendant, lessor, be compelled to make repairs rendered necessary by the fire; that an injunction issue restraining defendant from ejecting plaintiff and terminating his tenancy and from tearing down the building, and that defendant pay plaintiff damages by reason of its failure to perform the contract of lease on its part. Whether the lease operated to convey an interest in real estate was a question answered in the affirmative, and, therefore, there being no express covenant in the lease on the part of the landlord to repair, none could be implied. Defendant, the landlord, having threatened to tear down the building, eject plaintiff and terminate the tenancy, it was held it could be enjoined from so doing. Relief by way of damages for breach or for specific performance was refused.
    The case at bar is an action for rent. Developed facts admitted, or, for the purposes of the case, proven, áre: Defendant leased the second, third, fourth, fifth and sixth floors of a six-story building, except a space on the sixth floor which the landlord reserved for its own use, such reserved space being designated—
    “to be from the west wall of the building to the center of the building and in length from the back wall to the seventh pillar counting from the rear.”
    It is provided:
    “Party of the second part to have an entrance on the ground floor extending back from the lot line a distance of 7 feet and 2 inches and extending on the front from the wall a distance of 66 inches and at the base of the stairs a distance of 92 inches or in other words party of the second part is to have the space they are now occupying on the ground floor.”
    The lease contains the usual covenant of the lessee to repair “reasonable use and wear thereof and damage by the elements excepted.” The portion of the sixth story reserved by plaintiff was 14 feet wide and 90 feet long on the west side, measuring from the rear —about one-third of the sixth floor — and was separated from the remainder by a partition of matched lumber, which on the side did not run to the roof, but was four feet high and surmounted by a screen of chicken wire. This partition furnished no support for the roof. There was a flat door in the roof, fastened on the inside in defendant’s part, and used as a skylight. Plaintiff leased the ground floor to the Williams Company and, as stated, reserved for the storage of goods a part of the sixth story. There was a fire on the sixth floor, which practically destroyed the roof, but did not seriously burn the floor. The joists supporting the roof were mortised into the side walls. The fire cracked the front wall and destroyed the arches over the windows, and testimony tends to prove that the. front wall was in a dangerous condition after the fire, and that, to repair it, it would be necessary to take it down to the level of the sixth floor, and perhaps to strengthen it below that floor. It is not claimed that the fire originated through fault of the tenant, and no testimony was introduced tending to prove that it originated through fault of the landlord. Plaintiff sought, the co-operation of defendant in putting on a new roof and making other necessary repairs. Defendant denied any obligation to repair, the building was not repaired, and defendant removed from the building, and declined to pay the rent reserved in the lease. Plaintiff having rested his case, defendant moved for a directed verdict and one was directed of no cause of action.

      Defendant says there are two distinct grounds which warranted the directed verdict, one, the destruction by fire was such that the necessary repairs were plainly not internal; it would have been necessary for the tenant to trespass in order to restore the premises; the other, that where a building houses various tenants and the roof is not demised to any one of them, but remains in the control of the landlord, it must be kept in such condition by him that the tenants will have the beneficial use of the premises respectively demised to them.
    Plaintiff, appellant, on the other hand, contends that a lessee of premises accidentally destroyed by fire is not relieved against his covenant to pay rent unless he has stipulated for such release or the landlord has covenanted to rebuild; that where the demise is of a part of a building, or of rooms or apartments therein, the tenant takes only such an interest in the land as is necessary for the enjoyment of the demised premises and, therefore, when the demised premises are destroyed, the subject of demise is extinguished. This exception to, or modification of, the rule first stated does not mean that if the part or rooms or apartments are merely injured or damaged the subject of the démise is extinguished, for, if they remain in a damaged condition, the tenant may still occupy them, repair the damage and restore them to their former condition.
    The learned trial judge in his charge said, among other things, indicating the ground upon which the verdict was directed:
    “Gentlemen, it is my opinion that as a matter of law it was the duty of the plaintiff in this case, under the circumstances as detailed to you, and as you have heard from the testimony, to repair this building or this roof. Put a new roof upon the building. It had reserved a considerable portion, about one-third of the 6th floor anyway. I do not believe that the roof was demised or leased in this lease, to the defendant. In other words, I believe that at all times the plaintiff retained control of the roof, and in view of the fact that it did retain control of the roof, it was at all times its duty to maintain that roof, and, if through its fault or neglect or failure so to do, the roof was destroyed or was not fit for the protection of the tenants, obviously that part known as the sixth floor would not be suitable or tenantable for the purpose for which it was leased. Therefore, it is my judgment that during the period that this roof was off, for such time there would be no obligation or liability on the part of the defendant in this case to pay rent, because it did not have, during such time, peaceable, quiet possession, which the plaintiff covenanted to and with the defendant that the defendant should have, for which it was paying its rent. It is undisputed that during the entire eleven months this roof was not put upon the building. Therefore, during the entire time defendant was not getting what it bargained for. That is, peaceable, quiet enjoyment, including the sixth floor of such building. I do not think that there was any obligation on the part of the defendant, nor could the defendant have repaired the roof legally because it was a duty which was owing by the plaintiff to the defendant to do.”
   Ostrander, J.

{after stating the facts). The suit is brought upon the contract fo pay rent. Unless the contract was ended by the fire, the duty to pay the rent is clear. How did the fire affect the contract relations of thh parties? The leased premises were not destroyed. They were, a part of them, rendered untenantable until repaired. They can be repaired. No contract duty rests upon the landlord to repair them. No breach of any covenant in the lease by the landlord is made out. We are of opinion that upon the authority of our own.decisions, which have been referred to, the lease is in force.

It follows that the judgment is wrong and should be reversed and a new trial granted.

Bird, C. J., and Steere, Brooke, Fellows, and Stone, JJ., concurred with Ostrander, J.

Kuhn, J.

I am of the opinion that the trial judge correctly stated the- law with reference to the duty of the landlord. The case should be affirmed.

Moore, J., concurred with Kuhn, J.


author: Bird, C. J.

text:
    NEUSCHAFER v. ROCKWELL.
    •Sales — Failure to Consummate Sale — Down Payment — Right to Recover — Default.
    Where defendant, an agent for a motor truck, purchased a farm from plaintiff, -and was allowed a credit of $750 on the purchase price as the down payment on a truck purchased by plaintiff, defendant agreeing to accept plaintiff’s notes for the balance, but the sale of the truck was never consummated and it was never delivered for the reason that the manufacturer refused to accept plaintiff’s notes, and the $750 was never repaid, defendant was in default, and plaintiff, on a bill filed for that purpose, was entitled to a lien on the farm for the $750 and interest, in addition to the amount admitted to be owing.
    Appeal from Oakland; Rockwell, J.
    Submitted April 18, 1919.
    (Docket No. 72.)
    Decided July 17, 1919.
    Bill by Jacob R. Neuschafer and others against. David G. Rockwell and another to set aside a deed or to establish a lien. From the decree rendered, plaintiffs appeal.
    Modified and affirmed.

      Harvey S. Durand, for plaintiffs.

      Campbell, Dewey & Stanton, for defendants.
   Bird, C. J.

In the year 1916 plaintiffs resided on a small farm which they owned in Milford township, Oakland county. In August of that year plaintiff, William H. Neuschafer, purchased from defendant, David G. Rockwell, a Wilson motor truck for $2,600 upon the following terms: $750 down payment and the balance, $1,850, in 12 equal monthly installments, the same to be evidenced by promissory notes. William fell behind in his payments and defendant went to the farm to learn the cause of it. He found him willing but unable to pay. William offered to turn the truck back but defendant encouraged him to go forward with his payments. While there, defendant had some talk with plaintiffs about purchasing their farm, and the sale of another truck to Jacob. Following this, further negotiations were had and finally an oral agreement was reached, then a written agreement was made and subsequently this was twice amended so that when they had finished their negotiations they had an agreement, in substance as follows: Defendant was to purchase the farm and certain personal property thereon for a consideration of $5,125, subject to certain mortgages which he agreed to assume. From the balance of the consideration, after deducting the amount of the mortgages, the down payment of $750 on the motor truck to be delivered to Jacob was to be deducted, also any future payments which might be due and unpaid on either of the trucks. In pursuance of this agreement, and the request of defendant, the conveyance of the farm was made and delivered to Beatrice Rockwell, the wife of defendant. At the time of the transfer they found due plaintiffs the sum of $2,595. It was agreed this should be paid, $1,650 in cash, and a note for $945, payable in one year. The $1,650 to be'paid in cash was paid by crediting $750, the down payment on the motor truck to be delivered to Jacob; the cancellation of notes aggregating $400 owing by William on his motor truck, and a cash payment of $500. The cash payment was made but nothing further was paid. Neither was the motor truck delivered to Jacob, nor were the canceled notes of William returned to him. Being unable to reach an amicable adjustment, plaintiffs filed this bill praying that the conveyance of the farm and personal property be set aside until the consideration was paid in accordance with the agreement, or that a lien be declared thereon for the amount which the court should find due.

At the hearing counsel agreed upon $791.29 as the sum due plaintiffs. This did not include the $750 down payment on Jacob’s truck. The real and sole controversy was whether plaintiffs should recover the $750 which had been paid on Jacob’s motor truck. The chancellor was of the opinion that plaintiffs were not entitled to recover this item. A decree was made finding $735.04 due plaintiffs, and making the amount a lien on the farm and ordering a sale in default of payment within 10 days. The decree contained other provisions, but as they are not appealed from and are not material here, no mention need be made of them. From this decree plaintiffs have appealed.

Plaintiffs’ contention is that they allowed defendant a credit of $750 on the consideration of the farm for the down payment on the motor truck to be delivered to Jacob, and that he was to purchase it on the same terms that had been theretofore accorded to William. That Jacob repeatedly demanded the truck, but it was never delivered to him, and, therefore, the payment should be returned to them and added to the balance which the chancellor found due them in the decree. Defendant takes the position that Jacob never fixed the. time when he wished the truck delivered, and further that the Wilson Company, the manufacturers of the truck, would not accept Jacob’s notes for monthly payments because William had made a failure of his. deal, and inasmuch as Jacob could not pay the balance in cash the truck was never delivered to him. Contending that it was no fault of his that the truck was not delivered defendant claimed his commission thereon of $750.

We think the testimony establishes beyond question the fact that defendants sold a motor truck to Jacob for $2,600, with terms of payment the same as those in William’s agreement, namely, $750 down, the balance payable in 12 equal monthly payments. In pursuance of this agreement the $750 was paid by allowing defendant a credit therefor on the consideration of the farm. It is conceded that Jacob never got the truck. The testimony on the question as to whose fault it was that the truck was never delivered is very much in conflict.

After a careful reading of the testimony we have no difficulty in reaching the conclusion that it was not Jacob’s fault but was the defendant’s. Jacob had made the initial payment on the truck and had nothing more to pay until a month after delivery. He desired the truck tó enable him to earn a living, and no reason appears why he should refuse to accept it. But defendant says the Wilson Company would not accept Jacob’s notes, and as Jacob could not pay the balance of the purchase price in cash the truck could not be delivered. This is no legal excuse for defendant’s failure to deliver the truck. Plaintiffs were dealing with defendant and not with the Wilson Company. Defendant was dealing with plaintiffs on his own account, he had purchased a farm of them, and in so doing he agreed to furnish a motor truck to Jacob on the same terms as were given to William. The mood that the Wilson Company might be in as to the acceptance of Jacob’s notes had nothing to do with the matter. It was defendant’s agreement and not the Wilson Company’s agreement. If defendant promised to deliver something which he could not, or did not, deliver, he should not, in equity, receive a commission on his failure. We are impressed from the whole record that the real reason was that the Wilson Company. would not accept Jacob’s notes for the balance of the purchase price, nor would they accept defendant’s, and defendant did not have the money to pay it, therefore the truck was never delivered. It is somewhat significant in this connection that defendant severed his connection with the Wilson Company during the period that Jacob was endeavoring to get his truck. Again, If defendant had made a good-faith effort to get the truck he could have stated to the Wilson Company that he was indebted to Jacob and William on the farm and that he had an arrangement with them to deduct any payments on the trucks which might be in default and he could have assigned the security to the Wilson Company and obtained the truck.

We are not impressed that defendant’s dealings with plaintiffs were as fair and frank as they should have been. Plaintiffs are without education and are woefully ignorant of businéss or business methods. They had no counsel. Defendant was aided throughout by counsel. The testimony is persuasive that defendant was bent on getting his commission without earning it. This is shown by the refusal of defendant to sign a receipt that he had received $750 on the Wilson motor truck, so that Jacob could sell his right therein to some one whose notes were acceptable, or who had the cash.

Our conclusion is that plaintiffs should be reimbursed for the $750 paid on the truck, together with interest at 5% from the date of the credit, and that this amount should be added to the amount stipulated by the parties in the record as the amount due the plaintiffs, and this increased amount should be inserted in lieu of the $735.04 found to be due by the chancellor. The decree will be modified in this respect and affirmed. Plaintiffs will recover costs of both courts.

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