text:
    GARDINER v. COURTRIGHT.
    1. Contracts — Work and Labor — Master and Servant — Compensation.
    In an action for services renderéd by claimant to defendant under an alleged arrangement, denied by defendant, that they should work together in his hotel, and divide the profits, and in case of his death he would give plaintiff all the property that he should accumulate after the execution of the agreement, a verdict for the value of plaintiff’s services on the theory that the contract which she claimed to have made was void under the statute of frauds, was not against the overwhelming weight of the evidence, notwithstanding testimony produced by defendant as to contradictory admissions of plaintiff.
    2. Appeal and Error — New Trial — Weight of Evidence.
    The court, on writ of error, will only reverse a judgment as against the weight of the evidence when the verdict is against the overwhelming weight thereof.
    3. Evidence — Admissions—Impeachment.
    Alleged contradictory statements of a party, both in and out of court, are for the consideration of the jury.
    Error to Newaygo; Sessions, J., presiding.
    Submitted February 8, 1911.
    (Docket No. 137.)
    Decided March 13, 1911.
    Assumpsit by Minnie Gardiner against William Court-right for services performed. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George Luton (Dunham & Phelps, of counsel), for appellant.

      Crane & Norris and Myron H. Walker, for appellee.
   Stone, J.

This is an action of assumpsit in which the plaintiff seeks to recover for services performed by her for the defendant during a period of a little more than 25 years, from November, 1883, to March 8, 1909.

It is not disputed that the plaintiff worked for, and was in the employ of, and performed services for, the defendant during the period above stated, and that said services were not gratuitous; or, in other words, it is conceded that they were performed under an agreement and understanding that she should be compensated therefor

It was the claim of the plaintiff at the trial, and she testified, that, when she was about 18 years of age, she entered the employment of the defendant, at the time above stated, and that at the time of her employment, or soon thereafter, there was a distinct understanding and agreement between herself and the defendant as to the terms upon which she should be employed; that it was then agreed between them that she should not work for wages, or upon a salary, but that the defendant and herself would work together, and they would divide equally between them whatever profits should accrue to the defendant, either in money or property; and that if anything should happen to the defendant, meaning thereby that in case of his death while she was employed by him in that way, she should have the whole of the accumulation of his property, excluding the amount of property that he had at that time. She further claimed and testified that it was then agreed between them that she should have an allowance at first of whatever sum of money might be necessary for her clothing and other personal needs and expenses, and later on that the amount of that allowance became fixed by them^by agreement. She further claimed and testified that there was an express agreement between the defendant and herself that the amount of her allowance should not be considered as a salary, or as wages, but that such amount should be paid to her purely as an allowance for her personal expenses, and as “pin money,” as she claims the parties themselves termed it; that the services which she performed after that time for the defendant were performed under and in accordance with that agreement; that she at no time worked for the defendant under any agreement for wages or salary at a fixed or definite amount; that the defendant himself acted under that agreement so made by them; and that during the first years of her service there was no agreement as to any fixed amount of her allowance, or the “ pin money ” that should be paid to her; but that she drew from time to time such an amount as was necessary to pay for her clothing and other personal expenses ; that about January 1, 1887, in order to avoid the annoyance of asking the defendant for small amounts of money, they agreed that the amount of her pin money ” allowance should be fixed at $12.50 per month; and that at that time it was agreed that such amount should not be considered as wages or a salary, but should be considered as an allowance for her personal expenses — that is to say, an amount which she was permitted to draw out of the business in order to clothe herself and to pay other personal expenses; that later on the amount of her allowance was increased by agreement, first to the sum of $15 per month, which continued for about two months, and then to the sum of $20 per month until 1903, when the amount of her allowance for her personal expenses was fixed by agreement at $50 per month, and continued at that sum down to the time when the employment ceased.

It is also the claim of plaintiff, and she so testified, that, acting under and in accordance with the agreement made with the defendant, she performed various services for him; that she worked in the kitchen washing dishes; that she worked in the dining room as dining room girl in the Courtright Hotel; that she acted as chambermaid; that she became the housekeeper for the hotel; that she became the clerk and bookkeeper for the hotel, and for other business in which the defendant was interested; that she finally became the general manager of the hotel business, having it principally in charge. The plaintiff claimed also that she kept the books, drew the checks, looked after the depositing of money in the bank; that she also looked after the putting up of ice in the winter time; that she performed services in connection with the livery business which the defendant was at one or more times conducting; that she also performed services in connection with farms which the defendant owned, and in connection with some timbered lands in Mississippi which he owned; that she looked after the insurance; that she also performed services in connection with certain cottage property of defendant at Hess Lake. In short, it is the claim of the plaintiff that these services were all performed by her under and in accordance with the agreement which she claims that defendant and she entered into at about the time she commenced to work for him, and that she at no time was working for a fixed salary, or working for wages, other than would be implied by the terms of the agreement that she claims she made with the defendant.

On the other hand, the defendant denied at the trial that any such contract as claimed by the plaintiff was ever entered into between himself and the plaintiff. He denied that there was ever any agreement or understanding between himself and the plaintiff that she was to work for him other than for wages. He denied that there was any agreement by the terms of which they were to divide between them the profits of his business-. He denied that there was ever any agreement that in case of his death she should have all of. the property, provided she was then working for him, and continued to work for him up to that time. He denied that any such contract as claimed by the plaintiff was entered into between himself and the plaintiff. He claimed and testified that the plaintiff during the entire time that she worked for him was working for wages and for a salary, and that during that entire time the amount thereof was fixed and determined by agreement between them. It is his claim that, when she first went to work for him, it was agreed that she should have her board and clothing and such small amounts of money as were necessary for her personal needs, and that that arrangement continued up to the 1st of "January, 1887, when it was agreed that she should receive, in addition to her board, lodging, and laundry, the sum of $12.50 per month; that her wages were fixed at that amount by agreement between them; and that she worked for such wages for several years; that thereafter her wages were raised to the sum of $15 per month for two months, and then to $20 per month; that she continued to work for him for those wages until about January, 1903, at which time her wages were raised to the sum of $50 per month; and that' those were the wages which were agreed upon between them; that plaintiff never worked for him under, or in accordance with, any such contract as the plaintiff claims was made by them; and that the only contract was that she was to receive a definite and fixed amount as wages.

Upon the trial it was conceded by both parties that, at the rates claimed by the defendant to have been her wages, the amount of plaintiff’s wages during the entire time of her employment was $7,452.50, and that she was paid either as “pin money” or allowance as claimed by her, or as wages as claimed by the defendant, the sum of $5,404.43, and the jury were instructed that if they found that the contention of the defendant was correct, and that plaintiff was working for wages as stated by defendant, that there was a balance due plaintiff at the time of the commencement of the suit of $2,048.07, which with interest to the time of the trial amounted to $2,169.80, which amount the defendant conceded he owed the plaintiff.

The question of what the agreement was, was fairly and fully submitted to the jury, as were also the proper rules relating to the questions of the burden of proof, and preponderance of evidence. Upon the trial it was conceded by counsel for both parties that the contract which the plaintiff claimed was made, being oral, would be void under the statute of frauds, and the jury were so instructed ; but they were advised that, if they found that such a contract was actually made ,by the parties and acted upon, then the plaintiff would be entitled to recover the reasonable value of her services rendered to the defendant, and that, in determining what the reasonable value of her services was, the jury would have a right to take into consideration the terms of the contract, if found to exist, together with other evidence in the case. There was testimony pro and con as to the reasonable value of the plaintiff’s services. The jury found a verdict for the plaintiff in the sum of $11,765.57. The defendant has brought error.

The only errors assigned relate to the refusal of the circuit judge to set aside the verdict and grant a new trial. The grounds for the motion covered by the assignments of error are:

(1) Because the verdict was manifestly and strongly against the weight of the evidence.

• (2) Because the verdict was against the great preponderance of the evidence.

(3) Because the verdict was not supported by the preponderance of the evidence.

(4) Because the jury was influenced by passion, sympathy, and prejudice.

' (5). Because the verdict was excessive.

And, finally, that the court erred in the reasons assigned for refusing a new trial.

In view of the assignments of error, it has been necessary for us to read and consider the entire testimony. This we have done. It is too voluminous to refer to at length. The vital question in the case was as to the contract be- . tween the parties. Nobody else heard it made. They, and they alone, knew its terms.

Both upon the argument upon the motion for a new trial, and in the oral argument of counsel for appellant at the hearing here, the first three grounds were limited to a discussion of what the contract of hiring was, and it was not denied that the plaintiff’s testimony was sufficient - to sustain the verdict upon the question of hiring, provided her testimony was worthy of belief. It was, however, claimed that the plaintiff’s testimony had been contradicted by a large number of witnesses, who testified to certain admissions claimed to have been made by the plaintiff to third persons. Upon this subject the circuit judge, in stating his reasons for denying the motion, said:

“ Some of these third persons were interested because of relationship. The testimony of these witnesses is unsatisfactory, and must have been considered so by the jury. Therefore, so far as the oral testimony in regard to the contract of employment is concerned, it practically rests between the plaintiff and defendant. The counsel for the defendant claimed that the contract of hiring, which the plaintiff claims she made with the defendant, was improbable and unbusinesslike, and that the defendant as a business man would not have made such an unusual and extraordinary contract. It is sufficient to say that the testimony conclusively shows that the relations between these parties were of extraordinary character and unusual. The plaintiff’s account on the hotel books under her explanation is not conclusive against her right to recover. These were questions for the jury to determine. It is a very significant fact that, while the plaintiff was in the employ of the defendant, for the‘last 21 years of her employment she did not at any time draw the entire amount of her wages, if the amounts with which she was credited were to be considered as wages, and, at the time when she was discharged by the defendant, he concedes that he was owing her something over $2,000, which had been accumulated during the last 21 years of her employment. The plaintiff did not draw the amount that was coming to her according to the books. She simply used the amount that was necessary to pay her personal expenses. There was another significant fact which the jury had a right to take into consideration. At the end of each month during the plaintiff’s employment a profit and loss statement was made and a balance was struck. That profit and loss statement showed not only the amount of the defendant’s property, but also the amount of his indebtedness. In none of these monthly profit and loss statements is there an item of any indebtedness of the defendant to the plaintiff, which for the last 21 years of her employment, if his theory is correct, he was owing to the plaintiff in some .amount, which was constantly increasing. The counsel for the defendant, on the argument of the motion, narrowed the first ground of the motion to the contention that the weight of the evidence was in favor of the defendant’s version of the contract of hiring and against the plaintiff’s version of the contract of hiring. The testimony of the plaintiff and the defendant were in direct conflict in respect to the contract of employment. There was thus presented to the jury a question of fact upon conflicting evidence, and that question was for the jury. If the testimony of the plaintiff was believed, and the jury had a right to believe it, the contract of employment according to the plaintiff’s version was made out. The jury found that the plaintiff’s version of the contract was true, and found against the defendant’s version of that contract. The verdict was not against the weight of the evidence in the case. The matter was for them to determine, and I see no occasion to interfere with their conclusion in the matter.”

Upon the ground of alleged passion, sympathy, and prejudice, the circuit judge found that the jury were intelligent and gave careful attention to the trial of the case; that he saw no indication on their part that they were influenced either by passion, sympathy, or prejudice, or that they arrived at their verdict for any of these reasons; and that there was no basis for setting aside the verdict upon this ground.

Upon the ground of excessive verdict it was conceded by counsel for appellant that there was sufficient evidence to sustain the verdict as to its amount, if there was evidence to sustain the finding of the jury that the contract of hiring was as claimed by the plaintiff. So we are brought back to the question whether or not the verdict was against the weight of evidence. Upon this subject counsel for appellant lays great stress upon .the number of witnesses, as to the claimed admissions of the plaintiff. This court has spoken so often upon the subject of preponderance of evidence, and the convincing weight of evidence being generally a question for the jury, that we do not need to do more than refer to some of the cases. Strand v. Railway Co., 67 Mich. 380 (34 N. W. 712); McIntosh v. McIntosh, 79 Mich. 198 (44 N. W. 592); Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231); Dupuis v. Traction Co., 146 Mich. 151 (109 N. W. 413).

The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial. This rule has been repeatedly stated by us. Wheeler v. Jenison, 120 Mich. 422 (79 N. W. 643); Brennan v. O’Brien, 121 Mich. 491 (80 N. W. 249); Stevens v. Soap Works, 134 Mich. 350 (96 N. W. 435); Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634); Saginaw Milling Co. v. Mower, 154 Mich. 620 (118 N. W. 622); Malinowski v. Railway, 154 Mich. 104 (117 N. W. 565); Muir v. Corset Co., 155 Mich. 624 (119 N. W. 1079); Jackson v. Railway Co., 161 Mich. 163 (125 N. W. 763); Matla v. Vehicle Co., 160 Mich. 639 (125 N. W. 708); In re Parr’s Estate, 161 Mich. 244 (126 N. W. 197); Spray v. Ayotte, 161 Mich. 593 (126 N. W. 630); In re Hoyles’ Estate, 162 Mich. 275 (127 N. W. 284).

There was a sharp issue between the parties as to the contract. The circuit judge saw and heard these witnesses testify, and had an excellent opportunity to judge of their truthfulness. If the testimony of the plaintiff was believed by the jury — and they had the right to believe it —the contract as claimed by her was proved.

We are of opinion that the circuit judge did not abuse his discretion in refusing a new trial upon the ground that the verdict was against the weight of the evidence.

The claimed contradictory statements of the plaintiff, both in and out of court, were for the consideration of the jury. King v. Lumber Co., 93 Mich. 172 (53 N. W. 10); Pelton v. Schmidt, 104 Mich. 345 (62 N. W. 552, 53 Am. St. Rep. 462). A jury has the right to consider the reasonableness of testimony. Zart v. Sewing Machine Co., 162 Mich. 387 (127 N. W. 272). The defendant claimed that the plaintiff had been hired like an ordinary servant. In view of the long term of service of the plaintiff, the nature of the employment, the confidence reposed in her by the defendant, as admitted by him, and the fact that he had made substantial provisions for her in his wills, it is not strange that both the jury and the circuit judge should be led to the conclusion that “ the relations between these parties were of extraordinary character, and unusual.”

We find no error in the record, and the judgment of the circuit court is affirmed.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ,, concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
      In re MYRON’S ESTATE.
    1. Estates of Decedents — Executors and Administrators — Claims — Parent and Child.
    For services rendered by a son in caring for his mother and managing decedent’s farm, after his father’s death, no recovery can be had. from his father’s estate, unless deceased agreed to pay for such services.
    2. Same — Evidence.
    An express contract to pay for the same is not inferable because claimant returned home, lived with his father and performed services for him for several years before his death, or because olaimant continued to perform services, and make improvements on the farm after the father’s death.
    Error to Kalamazoo; Knappen, J.
    Submitted February 20, 1911.
    (Docket No. 172.)
    Decided March 13, 1911.
    Frank Myron presented a claim against the estate of John Myron, deceased, which was allowed by the commissioners on claims. On appeal to the circuit court, judgment was rendered for claimant. Defendant brings error.
    Reversed.

      Jackson & Fitzgerald, for appellant.

      Frost & Farrell, for appellee.
   Hooker, J.

The claimant is a son of the intestate. At 22 years of age he left his father’s home and worked for others in the city of Kalamazoo for about three months, when he was taken sick. He then returned to his father’s home, and lived there until his father died about three years later. The family consisted of his father, mother, and the claimant, and he and his father both worked on the farm. After his father’s death claimant remained there, practically taking charge of and running the place until his mother died. The mother died in June, 1909, having been blind and helpless after 1903, and confined to her bed. Claimant provided and cared for her, and managed, kept up, and improved the place; his brother and sister acquiescing and in no way contributing to the burden. After the death of the mother, and in 1910, a grandson of the intestate, being the son of intestate’s daughter, who died some years before, applied for administration of his grandfather’s estate, and one Andrew H. Campbell was appointed administrator and qualified. Claimant turned over to him personal property and money which had accumulated since his father’s death, said to have amounted to about $1,000. He then presented a claim for 216 months’ service performed on the homstead, at $12.50 per month, amounting to $2,700, less a credit for cash of $770, leaving a balance of $1,930, and this was allowed by commissioners. The administrator declined to appeal, and the appeal to the circuit court was taken by the grandson. A verdict for claimant for $755.62 was returned, judgment followed, and a writ of error has issued on behalf of the estate.

We are impressed that this is a hard case upon the claimant, and are confirmed in this impression by the evident unwillingness of his brother to deny his claim. We have scanned the evidence closely to ascertain whether the evidence warranted the submission of the case to the jury. The time covered by the claimant s residence upon the farm may be divided into two periods, the first ending at the death of his father; the second covering the time between the death of his father and that of his mother. The bill of particulars mentions a period of 216 months, which is exactly the time that his mother lived after the death of his father. In his testimony claimant said that the claim filed was “for his services from the time his father died until his mother died.” It is obvious that at the time his father died the title to his estate passed to his heirs, subject to his debts and contract obligations, and that services rendered thereafter in working the farm or caring for the widow would not be claims against the estate of the father, unless rendered in performance of a valid pre-existing contract to do these things. We find no evidence that the father made such a contract, nor can one be inferred from the fact that claimant returned and lived and worked with his father for about three years before he died. It is also clear that claimant’s subsequent conduct cannot be used as evidence to establish a contract between himself and his father. We have critically examined the cases relied on by claimant’s counsel, and are constrained to say that none of them will justify the conclusion that such a contract was made.' A verdict for defendant should have been directed.

The judgment is reversed, and a new trial ordered.

Bird, Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    BENNETT v. WALLACE.
    Trial — Cross-Examination — Inconsistent Statements — Impeachment oe Witnesses.
    It was error, oil cross-examination of a plaintiff whose testimony on material issues was disputed, to exclude questions asked for the purpose of showing that he had made conflicting statements of his claim in conversations and in his testimony on a former trial in justice’s court.
    Error to Wayne; Donovan, J.
    Submitted February 24, 1911.
    (Docket No. 40.)
    Decided March 13, 1911.
    Assumpsit in justice’s court by Wilbur W. Bennett against James H. Wallace. Plaintiff appealed to the circuit court from a judgment for defendant. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Thomas A. Conlon, for appellant.

      N. Calvin Bigelow, for appellee.
   Moore, J.

This action arose out of a real estate transaction and building contract. The testimony of the opposing parties is conflicting in many particulars. A verdict was reached and judgment rendered in the sum of $269.62 in favor of the plaintiff. The case is removed here by writ of error.

More than 30 assignments of error are presented. They nearly all grow out of the conduct of the trial court and his rulings in relation to the admission of testimony. One cannot read the record without coming to the conclusion that a degree of impatience with counsel was reached upon the part of the court early in the proceedings which was not calculated to keep the trial free from error. We shall not discuss all of the assignments of error. Counsel should have been allowed to show that plaintiff testified differently at a former trial from what he testified upon this trial. Counsel should have been allowed to show that plaintiff made a different statement of his claim to Mr. Johnson. We also think the testimony offered of Mr. Parsons should have been permitted as to the conversation he heard between plaintiff and defendant. The other assignments of error will doubtless take care of themselves upon a new trial.

Judgment is reversed, and a new trial granted.

Bird, Brooke, and Stone, JJ., concurred. Hooker, J.,.concurred in the result.


text:
    GRAND UNION TEA CO. v. CITY OF IONIA.
    Municipal Corporations — License Fee — Peddlers—Interstate Commerce — Duress.
    An agent of plaintiff, engaged in selling teas by sample, was arrested for violation of a city ordinance requiring the payment of a license. Plaintiff was a foreign corporation, and claimed to be doing an interstate business. Pending the determination of the prosecution, the agent paid the required weekly fees under protest in writing, claiming that the ordinance was void as an interference with interstate commerce, that the fee required was exorbitant, and that the corporation would demand repayment of the fees which it stated were paid to avoid arrest, in case the courts should hold that the fee was exacted without authority of law. The validity of the ordinance was sustained, on appeal from the conviction of the agent, who thereafter left the employ of defendant. Held, that the written protest, without an assignment to plaintiff of the agent’s claim, was insufficient to authorize a recovery, and that the evidence did not show payment under duress.

      Error to Ionia; Davis, J.
    Submitted February 20, 1911.
    (Docket No. 172.)
    Decided March 13, 1911.
    Assumpsit by the Grand Union Tea Company against the city of Ionia to recover back license fees paid under protest. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      George E. Nichols and W. W. Wicker, for appellant.

      Laurence W. Smith, for appellee.
   Moore, J.

It will simplify the consideration of this case to refer to the opinion in People v. Smith, 147 Mich. 391 (110 N. W. 1102). Mr. Smith was the agent of the plaintiff in this suit which is brought to recover money paid by Mr. Smith for a peddler’s license, pending the litigation of People v. Smith, supra. The statement in People v. Smith discloses fully the method of doing business, and that method remained substantially the same during the period for which the sums of money sought to be recovered here were paid, except that for a part of the time Mr. Smith procured his supplies at the branch store at Grand Rapids, instead of sending his orders to Toledo. During the pendency of the case of People v. Smith, where it was decided that Mr. Smith was a peddler, and the ordinance requiring a fee of $5 was sustained, the ordinance was amended so as to require a weekly payment of $10. Each time Mr. Smith paid the license fee he filed with the clerk a writing which recited his relations with the plaintiff company, and the manner of doing the business, and ending as follows:

(4) That section 5 of ordinance 38 of the city of Ionia under which you claim and demand a license fee is void as to said Grand Union Tea Company and its method of doing business, and is in violation of the interstate commerce law' and the Constitution of the United States as an interference with the interstate commerce.
(5) That said section of said ordinance 38 under which you claim and demand a license fee is void, invalid and of no effect for the reason that it is prohibitive, excessive, exorbitant and discriminative and was intended so to be, and is in violation of law and of the interstate commerce law and the Constitution of the United States as a discrimination between the citizens of the different States as well as an interference with interstate commerce.
“(6) That for the foregoing reasons you have no right to demand of the Grand Union Tea Company, or of me as its agent, any license fee whatever for carrying on the business of said company as carried on as above described, and to avoid repeated arrests, and inasmuch as said question is now in the courts in behalf of said Grand Union Tea Company and for the purpose of preserving its business this payment is made with the distinct understanding that in case the courts shall hold, that such license has been exacted without authority of law, that the said Grand Union Tea Company will demand and recover of the city of Ionia the amount of money so paid under this protest, together with costs of suit.
“ Grand Union Tea Company,
“By I. J. Smith, its Agent.”

We may as well state here that the claim that the ordinance is in violation of the interstate commerce law was decided adversely to the claim of the plaintiff in People v. Smith, supra, and need not be referred to any further. The case was tried before the circuit judge who made .findings of fact and conclusions of law. Among the findings of fact was the following:

“ Isaac J. Smith as the agent of plaintiff never assigned to the plaintiff any claims against the city of Ionia for money paid under such protests.”

The conclusions of law are as follows:

“ (1) That the amendment of section 5 of ordinance No. 38, approved by the common council of the city of Ionia on the twenty-fifth day of September, A. D. 1905, was a legal exercise of the legislative power of said common council.
“(2) That there was no duress exercised upon plaintiff in the making of said payments.
“(3) That there was no duress exercised upon the said Isaac J. Smith in the making of said payments.
"(4) That the payment and all payments made as herein set forth were voluntary.
“(5) That the conditions of said protest in which notice was given that the money so paid would be recovered have not occurred, inasmuch as the courts did not hold that said license fee had been exacted without authority of law.
“(6) That the amendment of section 5, ordinance No. 38, aforesaid, was neither prohibitive, excessive nor discriminative as against said plaintiff or said Smith or intended so to be or in violation of the laws or Constitution of this State or of the United States.
“(7) It follows, therefore, as a matter of law, that the defendant is not liable to the plaintiff for any sum or for the sum claimed in this suit.”

The counsel for appellant contend, we quote from the brief:

“In the discussion of the proposition involved in this case, we probably can dispose of them with as much brevity as in any other way by taking up the finding of law which raises the following questions:
“ (1) The validity, under the facts, of section 5, ordinance No. 38, as amended September 25, 1905, as to the plaintiff.
“ (2) The right of the city to enforce this ordinance against plaintiff, even if valid.
“(3) Having paid the license fee, under protest, the right to recover it back, provided the ordinance is void or not enforceable against plaintiff.”

Counsel for the appellee adds to these propositions the following:

“(4) The right existing in defendant to retain the payment of license fees, even if the ordinance is void or unenforceable as to plaintiff.”

In our view of the case, a disposition of proposition 4 will make it unnecessary to discuss the other propositions. The section of the ordinance as amended which is material reads:

“Peddlers or persons going about the city with a wagon or vehicle, drawn by any horse, mule or ox or any team of either of the same, carrying goods, wares, supplies, property, samples of the same, selling or offering for sale by sample or otherwise shall pay for each weekly license the sum of ten dollars.”

The peddler who paid the money for licenses was Mr. Smith. The licenses were issued to him. The only testimony that the payment was not voluntary is such inference as may be drawn from the statement in the written protest:

“(6) That for the foregoing reasons you have no right to demand of the Grand Union Tea Company or of me as its agent, any license fee whatever for carrying on the business of said company as carried on as above described and to avoid repeated arrests, and inasmuch as said question is now in the courts in behalf of said Grand Union Tea Company, and for the purpose of preserving its business this payment is made with the distinct understanding that in case the courts shall hold that such license fee has been exacted without authority of law, that the said Grand Union Tea Company will demand and recover of the city of Ionia, the amount of money so paid under this protest, together with costs of suit.”

This part of the protest indicates that the Grand Union Tea Company desired to be in a position to continue its business and recover back the money paid “in case the courts shall hold that such license fee has been exacted without authority of law. ” The courts did not so hold, and that part of the written protest availed the plaintiff in this case nothing. The part of the protest reading “ and to avoid repeated arrests” must refer to Mr. Smith. He was the only one who had been arrested, and whose case was pending in the courts when the protest was made. He was the one who was doing the peddling. He was the one who was licensed to peddle. The record is barren of any testimony from which the inference could be drawn that any one else was threatened with arrest. He had left the service of the plaintiff at the time of the trial. The court found he had not assigned his claim, if he had any, to the plaintiff. The language of the court in Noyes v. State, 46 Wis. 250 (1 N. W. 1, 32 Am. Rep. 710), is suggestive:

“ The second count of the complaint seeks to recover several license fees exacted and paid under such void provisions by persons employed by the plaintiff’s firm as peddlers, to sell goods of the firm. So far as such payments may have been voluntary, they cannot be recovered back. Van Buren v. Downing, 41 Wis. 122. But so far as they were made under duress or menace equivalent to duress by public officers, they constitute a valid claim against the State. Matheson v. Town of Mazomanie, 20 Wis. 201; Kellogg v. Supervisors, 42 Wis. 97; Allen v. City of Burlington, 45 Vt. 202; Atwell v. Zeluff, 26 Mich. 118; Bank v. City of New York, 43 N. Y. 184; Bank v. City of New York, 51 N. Y. 638, reversing s. c. 51 Barb. (N. Y.) 159.
“Prima facie, the right of action to recover back each license fee under duress or menace would be in the peddler who paid it. Although the peddlers from whom the license fees set forth in the count were exacted, may have been employed by the plaintiff’s firm, yet in their relations to the State they were mere peddlers, each in his individual capacity and right. The license fee of each, by whomsoever actually paid, was necessarily paid in the name and .right of the peddler who took the license. And the duress or menace which could make the payment involuntary should apparently be of the peddler himself. It is not apparent how duress or menace of the plaintiff’s firm could affect the payment of the peddler.
“An assignment by the plaintiff’s partner is averred; but no assignments from the peddlers. The mere fact that the peddlers were employed by the plaintiff’s firm as averred, does not appear to vest the right of action in the plaintiff. And indeed there is such confusion and conflict of averment in the count, that it appears impossible to determine by whom the payments to the State were actually made, the peddlers or the plaintiff’s firm, or upon whom the duress or menace operated, the plaintiff’s firm or the peddlers. The uncertainty, or perhaps more properly the duplicity, of the count in this respect, is so great as to leave it without any certain and definite cause of action.”

This conclusion makes it unnecessary to discuss the other propositions of counsel.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    WOODS v. WHITE STAR LINE.
    1. Negligence — Carriers—Use of Pathway.
    On a second appeal of an action for negligent injuries sustained by plaintiff in falling over -an embankment in the dark, while attempting to reach defendant’s dock by a short cut and path over private property, not maintained or reeognized by defendant, the additional fact that the pathway could be seen from the street from which plaintiff attempted to cut across to the dock, would not justify a different ruling as to defendant’s nonliability.
    2. Appeal and Error — Judgment —Law op Case — Rehearing.
    Alleged errors of this court in determining questions on appeal should be raised by motion for rehearing, not by a second appeal.
    Error to St. Clair; Law, J.
    Submitted February 15, 1911.
    (Docket No. 20.)
    Decided March 13, 1911.
    Case by Rosetta Woods against the White Star Line for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Walsh & Walsh, C. L. Benedict, and Sanford W. Ladd, for appellant.

      P. H. Phillips (Gray & Gray, of counsel), for appellee.
   Brooke, J.

This case was before the court at the January, 1910, term, and will be found reported at 160 Mich. 540 (125 N. W. 396, 27 L. R. A. [N. S.] 992). Upon the second trial, counsel for plaintiff made an opening statement of the facts which he proposed to prove. Comparing that statement with the record and opinion upon the former trial, it appears that the only additional fact which plaintiff proposed to prove was that the path upon which she was injured could be seen from the foot of Conner street. We think that this fact could be plainly inferred from the testimony given upon the former trial; but, even if it could not, we fail to see how proof of that fact would strengthen plaintiff’s position or change the principles of law applicable to the case. At the close of plaintiff’s opening statement, defendant’s counsel made a motion for a directed verdict, which was granted. Error is assigned upon this action of the court below. Counsel for plaintiff in his brief has reargued the case upon the facts as presented at the first trial, and urges that upon those facts this court reached an erroneous conclusion.

This argument is predicated upon the same decisions cited upon the former hearing in this court. Those decisions were analyzed and distinguished in the opinion then handed down. If plaintiff believed that there was either manifest misapprehension of fact or misapplication of law, it was her duty seasonably to move for a rehearing.

The court was clearly right in directing a verdict in accordance with the principles announced in our former opinion.

The judgment is affirmed.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


text:
    EBERT v. CULLEN.
    Statute of Frauds — Specific Performance — Memorandum of Sale of Real Property.
    A memorandum of a sale of real estate showing the receipt of money on the purchase price of a description therein named, but not stating the time or times of payment upon the sum remaining due, is an insufficient compliance with the statute of frauds to support a bill for specific performance.
    Appeal from Wayne; Rohnert, J.
    Submitted February 15, 1911.
    (Docket No. 143.)
    Decided March 13, 1911.
    Bill by Edmund L. Ebert against James H. Cullen for specific performance of an agreement' to convey real estate. From a decree sustaining a demurrer to the bill of complaint, complainant appeals.
    Affirmed.

      Denton Guinness, for complainant.

      Cullen, Casgrain & Hanley, for defendant.
   Brooke, J.

Complainant filed his bill of complaint to enforce specific performance of an agreement to sell certain lands. The agreement is as follows:

“ Detroit, Mich., March 14, 1910.
“Received of E. L. Ebert twenty-five dollars on sale to him or principal of the 20 feet N. E. cor. Trowbridge and John R., price five hundred dollars.
[Signed] “ Jas. H. Cullen.”

Defendant interposed a demurrer upon the following grounds:

“(1) Because the alleged contract to sell, set up in complainant’s bill, is not sufficient, under the statutes of the State of Michigan, to bind defendant to make the sale.
“(2) Because said bill of complaint is brought against James H. Cullen, trustee, and the alleged contract of sale therein contained is signed by James H. Cullen.
“(3) Because the said bill does not show that the complainant has any interest in the subject-matter thereof.”

From an order sustaining the demurrer, and dismissing the bill, complainant appeals.

Defendant urged in the lower court, and insists in this court, that this case is ruled by the decision in Gault v. Stormont, 51 Mich. 636 (17 N. W. 214). The alleged contract there considered was nearly identical with the one in the case at bar. It read:

“Wyandotte, April 26, 1881.
“Received from George Stormont the sum of seventy - five dollars as part of the principal of ten hundred and fifty dollars on sale of my house and two lots on corner of Superior and Second streets in this city.
“David Gault.
“Witness: C. W. Thomas.”

Commenting upon this agreement, Mr. Justice Cooley, speaking for the court, said:

“There was no written evidence of the sale of the lots, except the receipt, which was given for the $75, and that was insufficient to answer the requirements of the statute of frauds; for, though it specified the purchase price, it failed to express the time or times of payment, and there is no known and recognized custom to fix what is thus left undetermined. A memorandum, to be sufficient under the statute, must be complete in itself, and leave nothing to rest in parol ” — citing cases.

This case was cited and approved in Webster v. Brown, 67 Mich. 328 (34 N. W. 676), and in Dayton v. Stone, 111 Mich. 196 (69 N. W. 515), and was examined and distinguished without criticism in Ryan v. United States, 136 U. S. 68 (10 Sup. Ct. 913).

Complainant contends, in effect, that we should overrule Gault v. Stormont. It is not apparent why this should be done. The cases of Munro v. Edwards, 86 Mich. 91 (48 N. W. 689), Proctor v. Plumer, 112 Mich. 393 (70 N. W. 1028), Campbell v. Manufacturing Co., 126 Mich. 468 (85 N. W. 1093), Mull v. Smith, 132 Mich. 618 (94 N. W. 183), and Miller v. Smith, 140 Mich. 524 (103 N. W. 872), cited and relied upon by complainant, have been examined. They do not, in our opinion, modify or cast any doubt upon the correctness of the rule laid down in Gault v. Stormont.

The decree is affirmed.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


text:
    DE VOS v. CAPLAN.
    1. False Imprisonment — Evidence—Materiality.
    In an action for false imprisonment for arresting plaintiff without a warrant, on the charge of breaking into a barn, of which defendant had taken possession, the jury finding that plaintiff had committed no offense, no prejudicial error was committed in admitting evidence that plaintiff’s employer, whose tenancy had been terminated and who directed plaintiff to break in and remove his hay from the premises, subsequently sent the landlord a check for a half month’s rent covering the period of time when the arrest took place.
    2. Appeal and Error — Weight of Evidence — New Trial.
    On error, the objection that a new trial should have been granted, because the verdict was against the weight of the evidence, will not be considered if the court filed no reasons in writing for denying the motion.
    3. False Imprisonment — Felony.
    Plaintiff’s claim, supported by testimony, that he took only property that belonged to his employer when he broke into the barn of which defendant was tenant, required the submission of the case to the jury on that point.

      Error to Kent; McDonald, J.
    Submitted February 14, 1911.
    (Docket No. 159.)
    Decided March 13, 1911.
    Case by Cornelius A. De Vos by Herman Arnstein, his nest friend, against Solomon Caplan for false imprisonment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Benn M. Corwin, for appellant.

      Lombard & Hext, for appellee.
   Moore, J.

This is an action for false imprisonment. The case was tried before a jury. From a judgment of $200 in favor of the plaintiff, the case is brought here by defendant by writ of error.

The defendant maintains, we quote from the brief :

“ That the judgment should be reversed for the following reasons:
“First. That there was error in admitting evidence of a transaction which took place between two persons, neither of whom were parties to this suit, of matters which transpired after the commencement of this suit, which tended to mislead the jury as to the real issue.
“Second. That the judgment is against the great weight of the evidence.
“Third. That the trial judge should have directed a verdict for defendant on plaintiff’s admissions.”

The record shows that plaintiff in June and July of 1909 was at work for Herman Arnstein. He was then past 19 years of age. Mr. Arnstein was in possession of a barn which he had rented from one Crawford, who was himself a tenant. The board of health made an order in relation to the condition of the premises. A dispute arose as to whether it was the duty of the tenant, Crawford, or the subtenant, Arnstein, to comply with the order, and Arnstein refused to pay more rent until Crawford complied with the order. Thereupon Crawford without notice to Arnstein entered upon the premises. He was a witness for defendant and testified among other things:

“ I do not own the barn. I rent it from the owner and re-rented it to Mr. Arnstein. He had been in the barn five or six months. He was paying five dollars per month for it. I received a notice from the board of health to clean up that barnyard. I turned it over to Mr. Arnstein. I don’t remember how it read. Mr. Arnstein did not have any talk with me about moving. I did not give him written notice to vacate. I went there and simply put his stuff out when he would not pay rent. I saw this young man there — his driver; I threatened to hit him if he did not attend to his own business. I insisted they must get out of the barn. I took the harness and other things and put it all outdoors there in a pile. After I had done that on the 23d day of July I wrote him a notice, asking for a month’s rent. I did it because I was entitled to it even though I had put him out of the barn.
"Q. You had already rented it to this other man ?
“A. After he had it about a half a month, before I rented it to this man.
"Q. This says to the 22d of June.
“A. Well, that is all right. According to law, as I understand it, if you stay overtime in a place and your rent is not paid, you are entitled to draw a month’s rent. I wanted him to pay a full month’s rent, although I had rented it to another man, from the 2d of July. I asked him for it, but I did not get it. I got a check from him some date for $2.50; I did not pay any attention to what was written on it. I just saw there was $2.50, and I took it down to the bank and got the money. I don’t know how much hay there was upstairs at that time. I knew it belonged to Arnstein when I locked up that barn. There was no straw there under the stairs to my knowledge. I never saw any there downstairs; there was a little upstairs under the hay. I don’t know what they were using it for.”

Crawford rented the premises to defendant who is in the same business as Arnstein, and Mr. Caplan caused his horses and vehicles to be put in the barn, and endeavored to keep the lower part locked.

It is the claim of plaintiff that by direction of his employer, another employé, himself, and a drayman went to the barn, the other employe drew the staple and they proceeded to get a load of hay from upstairs, but the dray would not carry it all. The defendant who is a witness on his own behalf as to this occasion, on the cross-examination, testified in part of follows:

“ I know there is a stairway that goes up into the loft. I first went up that stairway on Monday morning about 9:30, there was no one there, but when I came to the barn, as I approached near the barn I saw De Vos and another man with a load of hay, and as they saw me I guess I frightened them, they got on their wagon and went away. I did not say anything. He jumped out from the door on the hay and they went away, and I went into the barn and went upstairs. That hay belonged to Mr. Arnstein.
“Q. And he had a right to go there and get it ?
“A. Yes; but he had a right to get scared when he saw me, didn’t he ?
“Q. Why would he get scared when he saw you F Is there anything about you that would frighten anybody ?
“A. No, I don’t think that from me. I thought they were frightened because they broke in without asking me for the key — to get in there to remove the hay. They pushed the door open on Monday. I went up there to examine it. They already had their hay out. There was no lock on there; it was nailed on the inside, I saw the nails.
“Q. Do you mean to say they broke open that barn on Monday ?
“A. They pushed that door open on Monday.”

He further testified that he nailed the door. The plaintiff, the other employé, and the drayman came back the next day by direction of his employer, and the door to the upstairs was pried open, and the plaintiff claims that nothing was taken out of the barn except what belonged to Mr. Arnstein. The defendant claims that some of his straw and oats were taken on this occasion. Both visits to the barn by plaintiff were made-in the daytime. The defendant called up the police department and informed them his barn had been burglarized. One of the policemen was detailed to work on the case. He testified that he learned that a larry, as he called it, with two or more men had taken the things away from the barn. He soon found De Vos who he says, after some hesitation, admitted he was one of the persons who broke into the barn. The officer testified in part as follows:

“I was directed to go from police headquarters and make the investigation. I went to Mr. Caplan’s place of business on South Division street and he informed me where the barn was on the alley off Sheldon street. He advised me that his barn had been broken open and some of his hay stolen, and I went up and looked into the matter. I inquired around in the neighborhood and found that a larry had been there and got a' load of hay. I did not get any of that information from Caplan. I went up to the barn on Waverly place and found young De Vos there. He was just taking care of his horse. I had a talk with him.
“ Q. What did you ask him at that time ?
“A. I asked him in regard to this barn being broken open on the alley on Sheldon street; also as to the taking of the hay and feed from the barn.'
“ Q. What did he say to you then ?
“A. Well, after some hesitation he told me that he went to the barn, and, as I said before, I learned that there was a dray of some kind, and he told me there was another party with him, but said he didn’t know who it was, and that he went there, broke into the barn and got the stuff.
“Q. He told you that he got the hay ?
“A. Yes, sir.
“Q. Did you know or have any idea at that time that there • was anything else involved except the hay ?
“A. Well, as I was told by Mr. Caplan, that his feed was gone also.
“Q. Was there anything said by Mr. De Vos about any feed, except about the hay ?
“A. Well, I don’t think— I would not say positively as to whether I was specific in mentioning any oats, corn, or grain.
“Q. You were simply interested in finding out if he was the man that had been up there ?'
“A. Yes; and took the stuff.
“ Q. And he said he was ?
“A. Yes, sir.
“Q. Then what did you do with him ?
“A. Well, we walked down State street; walked Jefferson avenue. I glanced around and seen Mr. Arnstein and a party of friends coming out of the boarding house, and De Vos had told me previous to this time that Arnstein sent him up there to get the stuff, and that is why he broke into the barn, and I thought—
"Q. Just a moment. He told you then that this hay belqnged to Arnstein ?
“A. Yes.
“Q. Then from there you took De Vos down to Caplan’s ?
“A. Yes.
"Q. Now, did you have a talk down át Caplan’s with Caplan about it ?
“A. Yes.
“Q. What did Caplan tell you to do with him ?
“A. Of course it is my asking questions that caused him to tell him. Now, I, of course, told Mr. Caplan the circumstances as I had found them with the young man; he had admitted having broken into the barn, and having broken the door off upstairs and taken the stuff.
“Q. Then did you ask Caplan what you should do with him?
“A. Yes; I asked Mr. Caplan — told him the circumstances, and asked him if he would make complaint. He said he would. He said to look him up, and he would make complaint. * * * I took the young man to police headquarters. I think I called the wagon right from the store there, or the dyehouse, I am not positive, but I think I did. He was put in the wagon out on Division street. I do not remember whether there was a crowd or not, it is just a common occurrence, I didn’t think anything about it. I got in the wagon with him and went to headquarters. He was not taken to any officer. I did the business with him myself, all that was done at that time. I told him to go home and come back in the morning. It was about half past 6 in the evening that this took place. I think I called Mr. Caplan up and told him he could get the warrant out without the young man being locked up, because his people living here, and his being at that age, I did not think it was necessary he should be locked up overnight. I did not appear in the morning. That terminated my connection with the case.”

It was the claim of defendant that in his notification to the police department, and in his direction to the policeman, he acted in the utmost good faith.

With this general statement, we may take up the first proposition of counsel. Did.the court err in admitting the evidence in relation to a notice sent by Mr. Crawford to Mr. Arnstein, and the sending of a check of $2.50 from Mr. Arnstein to Mr. Crawford which was receipted, both of which were sent after this suit was commenced ? The court was of the opinion that this testimony was of very little importance. When Mr. Crawford was on the stand he was cross-examined upon the subject without objection, and his cross-examination, some of which we have quoted, showed the same state of facts as disclosed by the notice and check. Indeed there was no serious dispute about how Mr. Crawford got possession of the barn and to whom and how he gave possession, nor was there any serious dispute about how plaintiff, the other employe, and the drayman got into the barn to get the hay. The serious dispute was whether only Arnstein’s things were taken or whether some of defendant’s straw, oats, and feed were taken as claimed by defendant. The judge charged the jury that it was admitted the barn was broken open. The judge charged the jury in part as follows:

“The law guards the rights of citizens from unlawful arrest and permits it only upon warrant, or without a warrant by an officer when a breach of the peace has been committed in the presence of the officer, or by an officer in cases of probable cause to believe a felony has been committed. Of course, the private individual has no such authority as an officer, but a private individual can arrest or cause the arrest of the person if a felony is committed and he has reasonable cause to believe that that person committed the felony.
“ So that, in this case, the fact that the defendant caused the plaintiff’s arrest being undisputed, it is simply left for you to determine, first, was a felony committed ? and, second, did the defendant have probable cause to believe that the plaintiff committed it ?
“Taking up these questions in their order, you will first consider, Was a felony committed ? Our statute provides :
“ ‘ That every person who shall break and enter in the daytime any barn, with intent to commit the crime of larceny, shall be punished by imprisonment in the State’s prison not more than five years,’etc.
“Another section of our statute says that the term ' felony ’ shall' be considered to mean an offense for which the offender, upon conviction, shall be liable by law to be punished by death or by imprisonment in the State’s prison; and by the terms of these statutes it would be a felony for one to break and enter in the daytime any barn with intent to commit the crime of larceny. In this case, it being admitted that the barn was broken and entered in the daytime, if the defendant’s property, or any par,t of it, were stolen, then I instruct you that a felony was in fact committed. It is immaterial whether or not • it was committed by the plaintiff; it is sufficient for the purpose of this case if a felony was actually committed.
“To constitute larceny, there must be a taking of the goods of another out of that other’s possession and against his will or consent. It is the wrongful taking and carrying away of the goods of another, with a feloninous intent to convert them to the use of the offender. So, in this case, the barn having been broken into, if it was done with an intent to steal, or if any of the defendant’s property was taken by any one under such circumstances as would make the taking larceny, then a felony was in fact committed. As I said, it makes no difference whether the plaintiff or some other person took the goods; the question is, Was a felony committed by any one ? and you will determine this question under the rules and definitions that I have given you and from all of the evidence in the case. If a felony was in fact committed, whether by the plaintiff or some other person, and the defendant had probable cause to believe, that the plaintiff was the party who committed it, he would have a right, as I said, to cause his arrest. If you find that a felony was not committed, your verdict should be for the plaintiff. If a felony was committed, the next question for our determination is, Did the defendant have probable cause to believe that the plaintiff committed it ? Probable cause ’ is defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense of which he is charged. On this subject of probable cause the question is not whether the plaintiff was or was not guilty of a felony, but what did Caplan actually believe, and have reason to believe, at the time he told the officer to arrest him.
“ Under the circumstances of the case, it is unnecessary that I should further define or explain to you what would constitute probable cause, because there is no dispute about the information upon which the defendant acted at the time he directed the plaintiff’s arrest. The information came from the plaintiff himself, and I think the witnesses substantially agree upon what was said at that time in the defendant’s presence. That evidence being undisputed, it becomes a question of law for the court as to whether or not the defendant had probable cause to believe that the plaintiff committed a felony, or if one was committed; so I instruct you,- as a matter of law, in view of the undisputed testimony, that the defendant did have probable cause, and that leaves for your determination simply the question as to whether or not a felony w,as in fact committed. If you find that a felony was committed, the plaintiff cannot recover, and your verdict should be for the defendant, no cause of action. If, on the other hand, you find that a felony was not committed, the plaintiff can recover, and, if you so find, you will then proceed to determine the plaintiff’s damages.”

Second. Was the judgment against the great weight of evidence ? A motion was made for a new trial, chiefly upon the ground that the verdict was against the weight of evidence. The record is that “ said motion was denied without filing any reasons.” Under our practice we will not consider that branch of the case further.

Third. Should the trial judge have directed a verdict for defendant on plaintiff’s admissions ? We quote from the brief of counsel:

“Every fact necessary to authorize an arrest by a private citizen, and which would constitute a complete defense to this action was admitted on the trial by plaintiff and corroborated by the great weight of evidence. Plaintiff admitted breaking into the barn or that he was present when it was done and went in, and that it was in the daytime. He also admitted having taken away defendant’s straw. Upon these admissions the court should have directed a verdict. There was no question to submit to the jury. On cross-examination plaintiff testified as follows:
‘“Q. Didn’t you see them take away some baled hay or some oats that day ?
‘A. Took away a little straw.
‘Mr. Lombard: A little of the straw ?
‘A. Yes, sir.’
“ On rebuttal he testified as follows:
‘“The barn was swept out on Friday, when Mr. Crawford put me out.
‘Q. Now, on Monday when you got this load of hay, was the straw then — some of your straw — still there in this stable, part of the barn, or where you kept it ?
‘“A. I did not see.
‘Q. Did you take any of it away on Monday, on that load of hay ?
‘A. No, sir.
‘Q. Or on Tuesday ?
‘A. I took a little of it on Tuesday.
‘Q. And where did you get it from ?
‘“A. I got it under the stairway.
‘Q. So it was still there on Tuesday ?
‘A. Yes, sir; some of Mr. Caplan’s with it.’
“ The admission of plaintiff that he broke into the barn in the daytime and took away defendant’s straw is, in itself, enough to require the court to direct a verdict for the defendant. He took what he claimed to be Mr. Arnstein’s straw and ‘some of Mr. Caplan’s with it.’ A felony had been committed, and defendant had probable cause to believe the plaintiff committed it.”

An examination of the record shows beyond any possible question that plaintiff denied taking any straw except the straw belonging to Mr. Arnstein. Indeed his claim all the way through was that he went to the barn by the direction of Ms employer with the sole and only purpose of getting things which belonged to his employer, and that no other things were taken.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Blair, JJ., concurred.


text:
    SARGENT MANUFACTURING CO. v. TRAVELERS’ INSURANCE CO.
    Insurance — Employers’ Liability — Personal Injuries — Estoppel.
    Defendant insured plaintiff against accidents to employes. An injured employé brought suit, alleging failure to warn him of dangers of certain machinery, and charging liability under the common law. Later he amended the declaration so as to set up violation of the statutory duty not to employ plaintiff who was under 16 years of age, at hazardous employment. The insurance company notified insured of the amendment and of the fact that the insurer repudiated liability for casualties caused by violation of the law. Defendant’s counsel with the aid of plaintiff’s attorney defended the case. By the verdict it wasspecifically determined that the insured violated the statute. Thereafter defendant wrote that it would conduct the appeal, but without prejudice to its rights under the provisions of the policy excepting such injuries. Held, that defendant could not have safely refused to conduct the cause in view of the averments of the declaration setting up a common law liability, and that by reason of plaintiff’s . silence and acquiescence in defendant’s contention, and participation of plaintiff’s counsel in the case, plaintiff could not - hold defendant on its policy of insurance upon the ground _ that the insurer was estopped by defending and controlling the litigation.

      Error to Muskegon; Sessions, J.
    Submitted February 21, 1911.
    (Docket No. 54.)
    Decided March 13, 1911.
    Assumpsit by the Sargent Manufacturing Company against the Travelers’ Insurance Company on a policy indemnifying plaintiff against accidents to employés. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed and no new trial ordered.

      Fred L. Vandeveer, for appellant.

      Nims, Erwin, Vanderwerp & Foote, for appellee.
    Complainant was the holder of an employer’s liability insurance policy in defendant company when, on August 14, 1906, one Sofus Lund, an employé 15 years of age, was injured while performing the duties of tailer on a planer. Notice of the injury was at once given defendant, as required by the terms of the policy, and a representative of the defendant interviewed a representative of plaintiff and was given information relative to the accident. Lund brought suit against plaintiff on September 25, 1907. In his original declaration, he charged defendant (plaintiff herein) with the following acts of negligence:
    (1) Failure to warn and instruct plaintiff of the dangerous character of the machine.
    (2) The danger of attempting to remove obstructions from the machine or knives in the space wherein they revolved.
    (3) The violation of common law in hiring plaintiff of unsuitable and tender age and inexperience in a hazardous and dangerous occupation.
    (4) Failure to point out to plaintiff specifically the particular dangers.
    This declaration was turned over to the defendant insurance company, and an appearance was duly entered on behalf of the plaintiff herein by the attorney for the insurance company. An amended declaration was later filed by Lund, in which he charged defendant with a violation of the statutory duty imposed by section 3 of Act No. 113 of the Public Acts of 1901.
    Upon receipt of the amended declaration by defendant, It caused to be written to plaintiff herein the following letter:
    “Sargent Mfg. Co.,
    “Mr. C. W. Cunningham, Manager,
    “Muskegon, Mich.

      “ Dear Sir:

    .“You will find herewith inclosed a copy of an amendment which plaintiff has proposed to his' declaration. He charges you with the hiring of the boy illegally and contrary to the statute. Beg to advise you that if the plaintiff proves this allegation at the trial of the cause, we cannot pay the judgment, as we can do nothing to uphold or encourage a person in the violation of the law, and for the further reason that we expressly stipulate in our policy that we will not cover you in illegal employment cases.”
    Signed by “Fred L. Yandeveer, Attorney.”
    This letter is written on the stationery of the Travelers’ Insurance Company and bears date December 30, 190?. Plaintiff herein seems to have made no reply to this communication. When the case came on.to be tried, Mr. Fred L. Yandeveer appeared on behalf of the defendant and was assisted in the defense by Mr. Foote, counsel for plaintiff.
    Upon this trial the court charged the jury, in part, as follows:
    “At the time the plaintiff received the injury in question, there was a statute in this State which provided that no child under the age of 16 years should be employed by any person, firm, or corporation conducting any manufacturing establishment in this State at employment whereby .its life or limb is endangered. In the language of another instruction requested by defendant, plaintiff bases his claim for recovery on the theory that he was employed contrary to law, which prohibits the employment of minors under the age of 16 at work dangerous to life and limb, and I charge you that you can return no verdict in favor of the plaintiff on any other theory, because the evidence discloses that plaintiff would be barred from recovery on any common-law allegation of negligence. To entitle plaintiff to recover in this case he must have established, by a fair preponderance of the evidence in the case, first, that at the time of his employment by .the defendant he was under the age of 16 years; second, that the employment was such as to endanger his life or limb; third, that he was injured while in that employment; fourth, that he was not guilty of negligence himself which contributed to his injury; and, fifth, such facts as will enable you to determine and fix the amount of his damages.”
    The following special question was submitted to, and answered by, the jury:
    “ In event of your finding a verdict for the plaintiff, do you base that verdict upon the negligence of the defendant in employing the plaintiff in violation of the statute, which provides that no child under the age of 16 years shall be employed at employment whereby its life or limb is endangered.”
    And the same was answered, “Yes.”
    The jury found a general verdict against defendant (plaintiff herein) in the sum of $2,947.60, and judgment was entered thereon. Thereafter the attorney for the insurance company wrote the following letter to Mr. Foote, attorney for plaintiff herein:
    “ Lund v. Sargent Mfg. Co.,
    “ Feb. 2, 1909.
    “Mr. Wallace Foote,
    “Attorney at Law, Muskegon, Mich.

      “Dear Sir:

    “In view of the fact that our motion for a new trial is to be simply formal, it would be appreciated if you would draft the same and present it to the judge on motion day for his consideration. Under our practice, the Supreme Court has held, as you undoubtedly know, that when the motion is overruled, Judge Sessions ought to file a written opinion, and if he omits to do so, we ought to make a demand upon him in writing and save exceptions to his refusal to grant a new trial, or for his failure to assign reasons for his refusal to file a written, opinion. If the motion for a new trial is denied, will you request the reporter to prepare a transcript of the testimony, and I will proceed to perfect an appeal to the Supreme Court ?
    “ I presume that you will see to the execution and filing of the $3,500 bond demanded by the court within the proper time.
    “If Mr. C. W. Cunningham will send me an itemized statement of witness Fred Cunningham’s expenses, I will approve the same and have a draft issued to his order in payment of it.
    “ Our policy limit is but $1,500, and even if we were absolutely liable to our policy holder in this case, our liability would be to that extent only. However, we do not believe that this is a case properly upon us for attention, asdt does not come within the terms of the policy, but we do not want to make any ex parte ruling at this time and are going to do everything possible to successfully handle the litigation for the Sargent Manufacturing Co., but I again want to reiterate that everything that we are doing is without prejudice to the rights of our insured or ourself.
    “Very truly yours,
    Signed by “ Fred L. Vandeveer.”
    The judgment in favor of Lund was affirmed in this court (158 Mich. 3 [122 N. W. 372]), and thereafter, defendant refusing to recognize a liability under its policy, suit was commenced by plaintiff to recover the sum of $1,500, the limit of defendant’s individual liability thereunder. Under the plea of the general issue, defendant set out clause B, section B, of the policy contract, as follows :
    “This policy does not cover loss from liability on account of such injuries (including death) caused or suffered by * * * (b) any person employed in violation of law as to age or under the age of fourteen years, where there is no legal age limit.”
    The court, in directing a verdict for plaintiff for the amount claimed, said in part:
    “The plaintiff claims that it is entitled to recover in this case, notwithstanding that provision in the policy, for the reason that under other provisions of the policy the insurance company assumed the defense and took charge of the defense, and agreed that it would defend against the suit of Sofus Lund, and that by so doing it has rendered itself liable where it might not otherwise be liable. In other words the contention of the plaintiff is that it could not affirm the contract in part — that is, the contract in the policy of insurance — and repudiate it in other parts; and, as I say, it is unnecessary to review before you my findings in that regard, but I hold that the contention of counsel for plaintiff is the correct contention, and that this defendant having been fully advised of the facts pertaining to this injury and of the employment of Sofus Lund, and having agreed thereafter to defend, having actually defended and taken charge of that case and conducted it, cannot now be heard to say that it is not liable for the amount of the policy under which it was acting.”
    Judgment having been entered upon the directed verdict, defendant brings the case to this court for review, by writ of error.
   Brooke, J.

{after stating the facts). It will be noted that the learned circuit judge directed a verdict against defendant, upon the ground that, being fully advised of the facts as to the employment and injury of Lund, it elected to assume the defense of the action, instead of repudiating its liability. This direction assumes, first, that the duty of election rested upon defendant, and, secondly, that, in participating in the defense, it indicated an election to be bound, despite the limitations of its liability, under its contract with plaintiff. That contract provided, among other things, that if thereafter any suit, even if groundless, should be brought against the assured to recover damages on account of such injuries as are covered by the policy, the company would, at its own cost, defend against such suit in the name and on behalf of the assured.

It is clear, therefore, that it was the duty of defendant to appear for the insured and undertake the defense of the case in the first instance. Had a judgment been rendered under the original declaration, defendant’s liability under its policy would have been certain. As soon as tbe amendment to the declaration which charged the breach of a statutory duty, not covered by the policy, was received by defendant, it at once notified plaintiff of the situation and called attention to the fact that, if the assured should be held liable upon that ground, it would not pay the judgment. Plaintiff must be held to have acted thereafter with- full knowledge of defendant’s attitude as to liability. By its silence and subsequent participation, through its counsel, in defense of the action, it acquiesced therein. It is quite clear that defendant could not, with safety to itself, have repudiated liability under the policy. If Lund succeeded in recovering under his allegations of common-law liability, defendant was liable.

Under the amendment, defendant could not, as a matter of law, determine for itself whether or not the assured-had employed Lund at labor dangerous to life and limb, in violation of the statute. That contention raised a question of fact for the determination of the jury, as we have repeatedly held. Sterling v. Carbide Co., 142 Mich. 284 (105 N. W. 755); Braasch v. Stove Co., 147 Mich. 676 (111 N. W. 197); Dalm v. Paper Co., 157 Mich. 550 (122. N. W. 257).

The case here considered is readily distinguishable from the case of Tozer v. Guarantee Corporation, Ltd., 94 Minn. 478 (103 N. W. 509); cited and relied upon by plaintiff. In that case, after investigation, the insurance company advised the assured he was not liable and itself—

“Accepted the control and defense of the action in the full belief on the part of both respondent and appellant that the claim so made against respondent was a loss within terms of the policy; that with full knowledge of the nature and character of the claim, appellant assumed the defense of the action, and employed an attorney who conducted the defense in the name of plaintiff, as provided by the contract. * * * Relying upon such course of conduct, respondent changed his attitude in respect to the case, and, instead, of reserving to himself the right to select his own counsel, conduct a trial, or make settlement, he turned over to appellant the entire matter.”

It was properly held that the insurance company, by its conduct, had estopped itself from denying liability. No such situation is presented by the case at bar. Plaintiff herein was seasonably advised of the position of the insurer upon the question of liability. It was not misled by any act of the insurer into surrendering control of the litigation or refusing to make a settlement of the claim. It had ample opportunity to do either after receipt of defendant’s letter defining its position. Moreover, it did not surrender the defense of the action to the insurance company. It retained its personal counsel to appear and assist in it3 defense at the trial.

The other cases cited by plaintiff, viz., Royle Mining Co. v. Casualty Co., 126 Mo. App. 104 (103 S. W. 1098), Globe Navigation Co., Ltd. v. Casualty Co., 39 Wash. 299 (81 Pac. 826), and Glens Falls, etc., Cement Co. v. Insurance Co., 11 N. Y. App. Div. 411 (42 N. Y. Supp. 285), have been examined, but, in our opinion, are not applicable to the facts as they exist in the instant case.

The case of Frank Unnewehr Co. v. Accident Ins. Co., 176 Fed. 16 (99 C. C. A. 490), is, as to the facts, very similar to the case at bar. There the defense to the suit brought by the boy was conducted jointly by the attorneys of plaintiff and defendant, but without prejudice to the rights of either. A judgment was recovered by the boy, which the plaintiff paid, and the defendant refused to reimburse plaintiff. It is urged by plaintiff herein that the case is to be distinguished from the case at bar, because there was an express agreement—

“ That the defense to the suit brought by the boy was conducted jointly by the attorneys of plaintiff and defendant, but without prejudice to the rights of either.”

We are unable to make the distinction. By its silence on receipt of the letter and its subsequent action in assisting in the defense, it must be held to have accepted the terms proposed by the defendant in its letter of notification.

The judgment is reversed, and, inasmuch as there is no disputed question of fact, there will be no new trial.

Bird, Hooker, Moore, and Stone, JJ., concurred.


text:
    BUSSE v. DOUGLAS.
    Fraud — Building Contracts — Evidence—Mechanics’ Lien.
    In a suit to enforce a mechanics’ lien for extra work done under an agreement supplemental to the original construction contract, plaintiff’s claim that he was defrauded by a false estimate of cost made by the contractor, is held, not be sustained by the proofs.
    Appeal from Wayne; Hosmer, J.
    Submitted February 23, 1911.
    (Docket No. 169.)
    Decided March 13, 1911.
    Bill by William F. Busse against Charles L. Douglas and the Wayne County Savings Bank to enforce a mechanics’ lien. From a decree for complainant, defendant Douglas appeals.
    Affirmed.

      Louis C. Wurzer, for complainant.

      Devine & Snyder, for defendant Douglas.
   Brooke, J.

The bill of complaint in this cause is filed for the purpose of enforcing a mechanic’s lien. It is conceded by defendants that all the proceedings are regular, but it is claimed by defendant Douglas that the amount of the lien as decreed by the court ($871.69) is too great by about $500.

The original contract was for $3,861, and covered the erection of a two-family apartment house, a building consisting of two full stories and half a third story. The specifications provided:

“Should the proprietor and the architect desire at any time during the progress of the work to make any alterations, additions or omissions in the work, as drawn and specified, the same shall be acceded to by the contractor and carried into effect, without violation of the contract, and the value of such changes shall be agreed upon between the owner and the contractor before the work is done, all additions or reductions being in proportion with the cost of the work and materials embodied in the contract.”

During the progress of the work, defendant Douglas determined to fully complete the third story of the building, and asked complainant to estimate the cost of such addition. Complainant made two bids, one for $1,348, which covered the cost of fully completing and finishing the third story, and the other for $496, for “ roughing in ” the full third story. The parties met in the architect’s office and discussed both bids. On cross-examination, defendant Douglas testified:

“ Q. Weren’t you taking up the $1,348 figure ?
“A. Yes, sir; we were $40 apart on that, which Busse offered to split, each to stand §30. Mr. Busse asked me what I was going to do, and I told him to go ahead and rough it in according to the estimate which he had given me. I made no complaint to him at that time that it was too much.
“Q. But you left him with the impression that he was to go ahead at that figure of $496 and do the work, and get paid for it according to that figure — that is the impression ?
“A. Yes, sir.
“Q. And there was not until after this work was completed that you made any objection whatever to the estimate of $496 ?
“A. I did not know the difference.
“Q. No, no; I am asking you.
“A. Yes; that is right.
“Q. That is right?
“A. Yes, sir.
“Q. And he was permitted-to complete the job with the understanding from you that he was to get $496 from you?
“A. He had the job completed in about 10 days.
“Q. I say he was permitted to do that, wasn’t he?
“A. Yes, sir.”

, After the job was completed and defendant had taken possession, he refused to pay the balance due complainant; it being claimed by him that complainant had fraudulently estimated the cost of the addition at too high a figure, and that such estimate was not “in proportion with the cost of the work and materials embodied in the contract.” The learned circuit judge found that no fraud had been practiced by complainant upon defendant Douglas, and that defendant was bound by his contract to pay the agreed amount for the extra work. He, however, reduced the amount of complainant’s lien by the sum of $50 because of defective work. . A careful perusal of the record convinces us that the conclusions reached were correct.

The decree is affirmed, with costs. .

Bird, Moore, Blair, and Stone. JJ., concurred.