text:
    ACORN REFINING CO. v. KNOWLSON.
    1. Principal and Agent — Sales—Authority op Agent.
    In an action for goods sold and delivered, where the bargain was made, and the goods received, during defendant’s absence, by an agent who had authority to buy some goods, the. question whether the agent was acting within his authority was for the jury.
    2. Same — Ratification.
    Where the agent informed defendant that the goods were consigned upon special agreement, but the order signed was unconditional, and the agent, with defendant’s consent, paid out defendant’s money for apparatus the agent claimed plaintiff was to furnish, the question whether defendant ratified his agent’s action was for the jury.
    3. Same — Agent’s Authority.
    A party dealing with an agent is bound to inquire into the extent of his authority, ignorance of which is no excuse, but, having ascertained the general character or scope of the agency, he is authorized to rely upon- the agent’s having such powers as naturally and properly belong to such character, and, in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitations of the apparent powers of the agent.

      4. Same — Instructions—Agent’s Authority.
    Instructions to the jury so confusing and misleading as to leave .in doubt the rule to be applied in determining the agent’s authority to bind defendant, held to be erroneous.
    5. Same — Holding Out by Principal — Agent’s Authority — Evidence.
    Where there is no testimony that plaintiff or its salesman had any knowledge concerning the apparent authority of defendant’s agent beyond the agent’s own action and statements, and the salesman did not ascertain or inquire about the general character or scope of the agency, but acted upon the assumption that because he was willing' to do business he had authority to do it, plaintiff was in no position to rely upon any holding out of the agent by defendant, since one is not affected by facts of which he has no knowledge.
    6. Same.
    However, it was proper for plaintiff to prove the scope of the agent’s authority, and to show that it extended far enough to authorize him to purchase a line of goods not before carried by defendant.
    7. Same — Trial—Speculation by Jury — Instructions.
    Where the agent was not left in full charge of the business it was erroneous for the court to allow the jury to speculate upon the question whether the particular goods, a new line, “would be handled by that kind of a concern,” “whether it was a kindred business” such as defendant would expect an agent to take on, and whether “he would have authority to use his best judgment” in taking it on, in the face of undisputed testimony stating the limits of the agent’s general authority.’
    8. Same — Ratification—Instructions—Trial—Sales.
    Where defendant’s agent informed him that the sale was conditional, and plaintiff claimed that it was absolute, knowledge of correspondence between the parties in which the respective claims were made, and failure to immediately repudiate the transaction would not amount to ratification, as defendant might be excused for assuming that the dispute would be settled agreeably with the agent’s contention.'
    9. Same.
    Instructions by the court that notice to the agent was notice to tbe principal, and that the correspondence, being carried on by express authority of defendant, -would be such notice as to amount to ratification if he received the benefits of an unauthorized agreement, was erroneous, as defendant might have been willing to ratify a conditional sale but not an unconditional one.
    10. Same — Constructive Notice — Unauthorized Acts.
    A principal is not chargeable with constructive notice of unauthorized acts of his agent.
    Error to Kent; Brown, J.
    Submitted June 9, 1915.
    (Docket No. 23.)
    Decided September 28, 1915.
    Assumpsit in justice’s court by the Acorn Refining Company against Abram B. Knowlson for goods sold and delivered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Holmes & Holmes and Don E. Minor, for appellant.

      Hatch, McAllister & Raymond, for appellee.
   Ostrander, J.

The action is brought to recover the price and value of goods sold and delivered. The principal issues made were, first, whether defendant’s agent, between whom and an agent of plaintiff the bargain was made, was acting within his authority; second, whether the defendant, whatever his agent’s authority may have been, ratified the agent’s action and agreement. A third issue was tendered by defendant, which was that defendant’s agent was by fraud, practiced by plaintiff’s agent, induced to make a bargain. Suit was begun in justice’s court, where the pleadings were oral, and plaintiff recovered.

Whatever the bargain was, it was made and the goods were received during a period when for several weeks defendant was absent. During his absence his business went on. Mr. Abram B. Horner, an employee, attended to the correspondence, and had authority to buy some goods. Defendant returned the last of June, and was informed by Horner about the particular transaction; but defendant says his agent told him the goods were consigned upon a special agreement, the terms of which he stated.

The order for the goods, dated May 19, 1911, signed “A. B. Knowlson, per A. B. Horner,” is unconditional. The invoice indicated an unconditional sale. Correspondence followed the receipt of the goods conducted for defendant by Horner. Horner paid out some of der fendant’s money to supply apparatus which he claimed plaintiff was to furnish, which purchases for its account plaintiff, in a letter, approved. It was when plaintiff demanded pay that Horner, using defendant’s name, wrote it that the goods were consigned, to be paid for when sold and money for sales collected.

The controlling issues are really very narrow. The order for the goods, upon which plaintiff acted, contains the following:

“This order is placed with the understanding that it is positive, and not subject to change or countermand unless so specified hereon. Any agreement not stated on this order will not be recognized.”

If defendant had given it, and had thereafter received and accepted the goods, there would be no question about his liability to pay for them. Plaintiff had notice that defendant’s agent gave the order. If the agent had authority to purchase the goods, if he was held out by his principal as having such authority, or if the principal, the defendant, ratified his action, defendant’s liability would be clear. Plaintiff undertook to prove both authority and ratification. Upon neither point is the testimony conclusive; but there is sufficient, in my opinion, to warrant submitting these questions to a jury. This the court did, but in a manner criticized by defendant’s counsel. Rulings admitting and rejecting testimony are also complained about, and it is assigned as error that the court withdrew from the jury the question of fraud in procuring the contract.

We said, through Mr. Justice Blair:

“Defendant’s counsel contends that a party dealing with an agent is bound to inquire into the extent of his authority, ignorance of which is no excuse. This is undoubtedly a correct statement of a general principle of the law of agency,- but this rule is not to be applied without qualifications and under all circumstances. It is equally well settled that, having ascertained the general character or scope of the agency, the party is authorized to rely upon the agent’s having such powers as naturally and properly belong to such character, and, in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitations of the apparent powers of the agent.” Grand Rapids Elec. Co. v. Manfg. Co., 142 Mich. 4, 9 (105 N. W. 1), citing Inglish v. Ayer, 79 Mich. 516 (44 N. W. 942) ; Allis v. Voigt, 90 Mich. 125 (51 N. W. 190) ; Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50, 34 Am. St. Rep. 350).

The errors assigned upon the charge are best understood by setting out some parts of it:

“A good deal has been said in this case on the subject of the authority of an agent, the subject of apparent authority and real authority. You will find in some instances that the court holds, and it is the law as pertaining to the facts in this case, that apparent authority, that which seems to be obvious or evident from the relation of the clerk to the business of the principal, that if he holds himself out and seems to be in a position of having apparent authority to do what he is trying to do and does do, that the principal is bound by that authority. On the other hand, you will find decisions that hold that a person dealing with an agent does so at his peril and that he must inquire and must learn the extent of the agency, and the right of the agent to make the purchase in order to bind the defendant.
“Now under proper circumstances the apparent authority binds the principal under some conditions. On the other hand, there are cases that the deal is absolutely at the peril of the person negotiating the deal with the agent, and it 'is the facts and circumstances in the case that give application to those rules of law. And in this case, when you are determining the question of agency of Mr. Horner, you will consider the nature of the business, you will consider his agency there, and take all the testimony in the case, that of Mr. Knowlson, whatever you find that he did from the testimony here, whatever admissions he may have made; and on that subject the statements or claims of Mr. Horner as to what his authority was, of course, are not admissible, because the agent cannot by his declaration bind his principal, but the fact of his occupancy there, his labor there, what he had to do there, from the nature of his employment there, all those things may be taken into consideration by you as to whether or not he had the authority to negotiate this deal. The apparent authority, the fact that the defendant in this case had gone away for some considerable length of time and left this man there in charge of the business, with authority to buy certain kinds of goods, the fact as to whether or not these goods bought were goods that came in in the regular course of business and would be handled in that kind of a concern, whether it was a kindred business, such a business as Mr. Knowlson himself would expect an agent to take on, and there would be an implied understanding between them, if not an express understanding, that in anything like this he would have authority to use his best judgment in indorsing it and taking it on. All the facts and circumstances in this case you will consider as bearing on the agency or the right of Horner to make this contract in the name of this defendant, so as to bind him, and that, of course, that agency or that right, must appear from the testimony which preponderates in favor of the plaintiff, as I have stated on opening this case to you.”

The jury was further instructed:

“In this case the plaintiff claims to have entered into the agreement with the defendant through one Mr. Horner, acting for and in behalf of the defendant. Upon this point I charge you that one claiming to deal ■with and through an agent is bound to ascertain the authority of the agent to bind his principal in any given transaction. In other words, he deals with the agent at his peril, and the burden rests with the plaintiff to show that the agent had authority to bind his principal in the matter. And, applied in this case, I charge you that the burden is upon the plaintiff to show by a preponderance of the evidence that Mr. Horner, with whom the contract was negotiated, had authority from the defendant, Mr. Knowlson, to enter into such a contract as plaintiff claims was entered into in this case for and in behalf of the defendant. * * *
“Upon the question of the authority of an agent in the given case, I charge you that agents may have as much or as little power as their principals see fit to give them, and one dealing with an agent is bound to inquire into the extent of his authority, and a person who deals with another supposing him to be the agent is not protected by the other’s assumption to act.
“I further charge you that the statement of conclusions of the agent that he has the authority to act in a given case are not sufficient to prove authority, and such declaration is not binding upon his principal. *
“A definition as to the agency of one person by another may be stated as follows: It is a contract, either expressed or implied, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, by which the other assumes to do the business and surrender an account of the business done. And on the question of agency it is said that where a person is sought to be charged for the acts of another, and there is evidence of an apparent authority, the question to be determined is, not what power was intended to be given to the agent, but what power a third person dealing with him had the right to infer from his own acts and those of his principal that he possessed.”

Before these instructions were given, the court had advised the jury upon the same general subject in the following language:

“On the question of implied authority I charge you as a matter of law that the authority of an agent need not be expressly conferred, but may exist by implication from the general aúthority conferred by the principal, and I charge you that, if it appears from the evidence in this case that Mr. Horner had such general authority during the absence of Mr. Knowlson as would reasonably include such a purchase as has been made in this case, then Mr. Knowlson cannot deny the agency, and is bound by the acts of Mr. Horner. In other words, the relation of principal and agent does not entirely depend upon the express appointment ; but it may be implied from the works and conduct of the parties under the circumstances in the case. You will therefore take into consideration all the facts and circumstances in this case, and if you find that from the express authority conferred upon Mr. Horner by Mr. Knowlson an implied authority to purchase the goods in question could reasonably be inferred, then your verdict should be for the plaintiff. It is an established rule that, when a principal by any such acts or conduct has knowingly caused or permitted another to appear to be his agent, either generally or for a particular purpose, he will be estopped to deny such agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence dealt with the agent on the faith of such appearance. This rule is particularly true if the principal has by act and conduct recognized such agency through a long course of dealings, or through many transactions. It is also stated in the decision of our Supreme Court, 142 Mich. 9 [105 N. W. 1], that it is equally well settled that having dealing, the general character or scope of the agency, the party is authorized to rely upon the agent having such powers as naturally and properly belong to such character, and in the absence of circumstances putting him upon inquiry he is not bound to inquire for secret qualifications or limitations of the apparent powers of the agent. It is the law that, even where there is no agency, either expressed or implied of an agency by reason of apparent authority, holding out, or estoppel, still the principal may be bound by the acts of his agent by virtue of subsequent ratification of the agent’s unauthorized acts. The authority pf the agent on this branch of the matter is not dependent upon any authority, express or implied, conferred by the principal, but depends upon the knowledge and acts of the principal subsequent to the acts of the agent.”

While the range which the testimony was permitted to take and the contentions of counsel may have been in part responsible for the form of the charge, I am impressed that, as is claimed by appellant, it was confusing and probably misleading. Reading it leaves one in doubt about the rule given for determining whether defendant was to be held bound by his agent’s act.

There is no testimony tending to prove that plaintiff or its agent and salesman had any knowledge or information concerning the apparent authority of defendant’s agent Horner before making the bargain, beyond the immediate action and statements of Horner himself at the time the sale is claimed to have been made. In his deposition the salesman says he called at defendant’s place of business and met and talked with Mr. Horner, “who is buyer for Mr. Knowlson,, relative to the purchase of paint from my employers.”' It does not appear that he knew that Knowlson was absent, that he had ever done any business with Horner' before, that he knew that Horner ever purchased goods for defendant, or that he made aiiy inquiry concerning the authority he possessed. He did not ascertain or inquire about the general character or scope of Horner’s agency. He acted, apparently, wholly upon the assumption that, because he was willing to do business with him, he had authority to do it. This being so, plaintiff was in no position to rely upon any holding out of Horner by defendant as his agent for the purpose of buying goods, since one is not affected by facts of which he has no knowledge. It was, of course, proper for plaintiff to prove the scope of Horner’s agency, and, if he could do so, to show that it extended so far as to authorize him to purchase, as in this case, a line of goods not before carried by defendant.

It is undisputed that Horner was not left in full charge of the business; the bookkeeping and financial part of it being in charge of another. But to leave it to a jury to speculate upon the question of whether the particular goods “would’ be handled in that kind of a concern, whether it was a kindred business, such a business as Mr. Knowlson himself would expect an agent to take on, and there would be an implied understanding between them, if not an express understanding, that in anything like this he would have authority to use his best judgment in indorsing it and taking it •on,” is rather dangerous, in the face of undisputed testimony stating the limits of the agent’s actual authority.

Again, upon the subject of ratification by defendant of what Horner had done, the court said:

“While it is true that in the present case Mr. Knowlson claims that he had no knowledge of the correspondence had between the plaintiff and himself until a week or two after October 1, 1911, yet it is the law that notice to the agent is notice to the principal, and inasmuch as it appears from the undisputed evidence in the case that Mr. Horner was carrying on the correspondence in question under the express authority and direction of Mr. Knowlson, Mr. Knowlson would be chargeable with notice of all the facts and circumstances contained in the correspondence.
“In other words, it is the law that, where such constructive notice exists, the party who receives such notice is held to have ratified the acts of the assumed agent. I will repeat that. In other words, it is the law that such notice constitutes _ constructive notice to him, and where such constructive notice exists the party who receives such notice is held to have ratified the acts of an assumed agent. You are instructed that a principal who, with full knowledge of all the material facts affecting his rights, received the benefit of an unauthorized agreement made by one purporting to be his agent, is precluded thereby from questioning the agent’s authority in the transaction.”

If the jury believed defendant, who testified as a witness, they would have found that he (defendant) was informed by his agent (Horner) that the goods had been sold to him conditionally, the conditions being stated, and did not know that Horner had assumed to buy them, or to give, in his name, or otherwise, an unconditional order for them. It appears that Horner was claiming in the correspondence with plaintiff upon the subject that such was the arrangement. Assuming that defendant was chargeable with notice of plaintiff’s claim in that behalf, as shown by the correspondence, and with notice that his agent (Horner) was disputing the claim, he might be excused for assuming that the dispute would be settled agreeably with his agent’s contention. He might be excused from immediately saying, in effect:

“If you claim it was a sale, my agent had no authority to purchase.”

Believing this testimony, they could not have properly found that he ratified an unconditional purchase of the goods. He might have been willing to ratify a conditional purchase, made by Horner in excess of his authority, and unwilling to ratify an unconditional purchase. In any view of the matter, it is not apparent in what manner the charge last above referred to could have aided the jury. If by it was meant that a principal is chargeable with constructive notice of the unauthorized acts of his agent, it was erroneous. If that was the law, it would be impossible for a principal to escape responsibility for any unauthorized act of his agent.

The question of fraud was properly withdrawn from the jury. Defendant’s agent did, or did not, with authority, purchase the goods unconditionally. If he had authority, express or implied, that is sufficient, and the case is as if defendant had himself given the order. If he had no authority to make the purchase, defendant, with knowledge of the actual transaction, did, or did not, ratify the transaction.

These were the issues properly raised by the testimony and they were not, in my judgment, submitted to the jury with proper instructions. It does not seem likely that the questions raised upon rulings admitting and rejecting testimony will be troublesome upon a new trial of the actual issues. It is clear, however, that such sales of the goods as were made according to the theory and belief that they were consigned for sale, and such, if any, as were made by agreement of counsel, do not tend to prove ratification by defendant of an unconditional purchase by defendant’s agent.

The judgment we feel compelled to reverse, and order a new trial. .

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    BOTTOMLEY v. BROWN.
    1. Contracts — Construction—Elevators—Agreement Not to Reengage in Business.
    Where defendant sold his elevator and warehouse and agreed not to “huild any elevator nor directly or indirectly engage in the elevator or grain business, except for the purpose of buying grain to be ground at his mill,” his subsequent action in installing machinery in his mill for the purpose of cleaning and handling beans, and engaging in the business of buying beans, was in violation of his contract not to engage in the elevator business, although previous to the sale he had not engaged in buying and selling beans.
    2. Same — Restraint of Trade — Pubuc Poucy — Fraud.
    In the absence of fraud, such agreement to refrain from re-engaging in the elevator business in a little community where one elevator was useful and two could not.probably survive, although the contract did not refer to the sale of the good will of the business, is not void as against public interest.
    3. Names — Fictitious Names — Statutes — Compliance with Statute — Contracts.
    Act No. 164, Pub. Acts 1913, cannot be so construed as to impair the right of a promisee in respect to a promise made before its passage, and although complainants had not complied with its provisions requiring such copartnerships to file a verified certificate with the county clerk, they were not barred from enforcing a contract made before the enactment of the statute.
    Appeal from St. Clair; Tucker, J.
    Submitted June 8, 1915.
    (Docket No. 4.)
    Decided September 28, 1915.
    Bill by William C. Bottomley and Henry E. Dryer, copartners as Bottomley & Dryer, against Allen Brown for an injunction restraining defendant from engaging in the grain and elevator business at Berville, Michigan. From a decree for defendant, complainants appeal.
    Reversed.

      Burt D. Cady, for complainants.

      Moore & Wilson, for defendant.
    In the year 1905'defendant sold and transferred to complainants, who are personally named in the instrument evidencing the sale and are described therein as a partnership under the name Bottomley & Dryer, an elevator and warehouse, built on railroad land at Berville, Mich., and all machinery, engines, scales, and apparatus of every kind connected or used in the operation of said elevator. The instrument contained also the following promissory agreement:
    “The said Allen Brown agrees that he will not build any elevator nor directly or indirectly engage in the elevator or grain business at or near Berville, Michigan, except for purpose of buying grain to be ground at his mill.”
    The purchase price was $2,500. Complainants, the vendees, took possession of the property, and have been since engaged in the elevator and grain business. In 1905 few beans were grown in the immediate vicinity of Berville, and defendant, the vendor, had not engaged in buying and selling beans. He had, however, operated the elevator, and had also a flour mill at Berville. Later more beans were grown in the vicinity, and the bean business is now the most considerable part of that carried on at the elevator. Complainants installed machinery for cleaning and handling beans in 1906 or 1907. In 1914 defendant ceased to operate his plant as a flour mill, and himself installed in it machinery for cleaning and handling beans, and engaged in the business of buying beans from the farmers. There are and have been no other elevators at Berville, which is a small community, and it does not appear that any other persons are there engaged in the elevator or grain business.
    In this action complainants, relying upon defendant’s promise, seek to restrain him from continuing to buy and handle beans at Berville. The trial court was of opinion that neither the promisor nor promisees had in mind, when the contract was made, the buying and selling of beans as a part of defendant’s business, and that, construing the contract in the light of their actual understanding — not stretching it to cover anything not plainly and clearly within its intent and meaning at the time of its execution — defendant had not violated his agreement.

      Defendant presents some further contentions, one of which is that complainants had not complied with Act No. 164, Pub. Acts 1913, when the suit was begun, and therefore cannot maintain the action. Another contention is that the defendant’s promise is of no legal effect, because it is the settled policy in this State to refuse to give such promises effect unless necessary to give effect to the transfer of the good will of a business which is sold, citing Hubbard v. Miller, 27 Mich. 15 (15 Am. Rep. 153). Still a further contention is that beans are not grain, and one buying and selling them is not in the grain business.
   Ostrander, J.

(after stating the facts). The trial judge was wrong, in my opinion, in giving too narrow a meaning to defendant’s promise. Clearly, defendant is in the elevator business, whether strictly in the grain business or not. The testimony supports the conclusion that he has introduced into his mill, as apparatus for conducting his business, machinery for cleaning and elevating beans, machinery similar in purpose and operation to that installed by complainants in their elevator. It is the most common of common knowledge that elevators built along railroad tracks as convenient facilities for receiving, storing and shipping produce handle such products as the immediately surrounding country produces. They are constructed and maintained for the purpose of handling products, the surplus of which must be finally disposed of in some other market. An elevator in a community where little except wheat is grown handles, principally, wheat. If, suddenly, all neighborhood farmers ceased to grow wheat and planted only corn, or rye, or beans, still the elevator would be the convenient facility for receiving, storing and shipping the surplus crop. It is an elevator, and the business connected with it is the elevator business. The installation of new apparatus might be necessary, but the elevator business, as it is generally conducted, could not be carried on except by taking whatever surplus crop the community desired to dispose of. Defendant promised that he would not build an elevator nor directly or indirectly engage in the elevator business. The testimony is conclusive that he has directly engaged in the elevator business; has opened in the community an elevator where none before existed.

Is defendant’s promise one which he may be compelled to observe? The headnote to Hubbard v. Miller, supra, which fairly states the meat of the opinion upon the point, is as follows:

“Contracts in restraint of trade, which, considered with reference to the situation, business and object of the parties, and in the light of all the surrounding circumstances, appear to have been made for a just and honest purpose and for the protection of legitimate interests, and are reasonable as between the parties, and not specially injurious to the public, will be upheld; and the weight or effect to be given to the surrounding circumstances is not affected by any presumption for or against the validity of the restriction.”

In the case at bar the written instrument in question does not in terms refer to the sale of a business or of the good will of a business. In the light of surrounding circumstances, as shown by the record, it is apparent that one elevator in the little community was useful, and that two could not, probably, survive. Defendant had conducted the business in the elevator he sold with the apparatus he sold. Necessarily, the new owners bought the business, and, to leave the matter in no doubt, they eliminated the former owner by the promise which they now rely upon. There was no fraud — nothing unreasonable in the transaction. There was only the recognition by both parties of controlling circumstances. It does not appear that the public was injuriously affected by the transaction.

May complainants enforce the promise? It was made long before the legislature required that such copartnerships as theirs should make and file a certain written and verified certificate with the county clerk. It happens that complainants do business in both Ma-comb and St. Clair counties. Before this suit was begun they made or caused to be made the certificate required by the act of 1913 (Act No. 164, Pub. Acts 1913), which has been referred to. For some reason, not perhaps fully explained, it seems that a certificate was not actually filed in St. Clair county until after this suit was begun. It is to be inferred that the one intended for filing lacked verification, and was returned by the clerk, was corrected, and filed after suit was begun. It was correct in form, and contained all the information which it was designed to afford.

It appears, then, that the agreement of the parties was not made while any disability of complainants existed; that the contract was, and is, a lawful one; and that the precise question which appellee’s contention presents is whether, until they have complied with the statute, complainants must be denied the right to enforce the contract in the courts.

In Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697), and in Pontiac Savings Bank v. Pipe Co., 178 Mich. 261 (144 N. W. 486), it is pointed out that the disability imposed by the statute is of the offending partners, who are not permitted to enforce a contract made while the disability continues. In a sense, the complainants, in seeking to enforce the contract in question, are carrying on their business as copartners. Their business is affected by the violation of the contract, and its enforcement will benefit their business. In the same way they would be benefited if they were to bring suit upon a promissory note, in which the partnership was named as payee, the note having been made years before the statute was enacted, but falling due after it became law. The statute was plainly not aimed at such affairs. Although it is a police measure, it should not be so construed as to impair the right of a promisee in respect to a promise made before the statute was passed. It is contracts made in the course of carrying on a business unlawfully which are affected, as to their enforcement, by the disability of the offending parties, while the disability continues.

The decree of the court below will be set aside, and one will be entered here granting the relief prayed for, including a permanent injunction, with costs of both courts to complainants.

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

The late Justice McAlvay took no part in this decision.


text:
    LA TOUR v. HIBBLER.
    1. Contracts — Building Contract — Default — Injunction —■ Issues.
    A contractor, who Is wrongfully excluded from the building by the owner, Is entitled to recover any sum due him under the contract, if the issue is properly presented, in injunction proceedings by the owner to restrain him from interfering with her possession.
    2. Same — Assignments — Conditional Judgment — Practice — Judgment.
    But where the contractor failed to answer complainant’s bill, and was defaulted, and defendant intervened as assign.ee of only a portion of the contractor’s rights, and was awarded a decree under his cross-bill, the decree will he affirmed only on condition that complainant is released; from all claims under the contract.
    Appeal from Wayne; Mandell, J.
    Submitted June 14, 1915.
    (Docket No. 33.)
    Decided September 28, 1915.
    Bill by Elizabeth. La Tour against William H. Hibbler and another. William R. Greig intervened as assignee of defendants. Complainant died and suit was revived in the name of Lenore La Tour as administratrix. From a decree for defendant intervener, complainant appeals.
    Affirmed conditionally.

      Goodenough & Long, for complainant.
    L. C. Stanley (Jerome Probst, of counsel), for intervener Greig.
    In the original bill complainant charged that she entered into a contract with William H. Hibbler, who agreed to furnish all of the materials and perform all of the labor for the construction of a double-veneer store and fíats upon her premises and complete the same by August 15, 1910. If said Hibbler should at any time refuse or neglect to supply enough workmen and materials, or fail to prosecute the work promptly and diligently, or fail in performing any of the agreements, the owner (complainant) might, after three days’ written notice to said Hibbler, provide such labor or materials and deduct the cost from any money due or to become due under the contract, and should be at liberty to terminate the employment of said contractor, enter upon the premises, take possession thereof for the purpose of completing the work, employ workmen, and furnish required materials. In such case said Hibbler was not entitled to receive further payment until the work was finished, and then only so much as remained of the contract price after deducting the expense of completing the work. If such expense exceeded the unpaid portion of the contract price, then the contractor should pay the difference to the owner. Hibbler defaulted, was notified, and at the expiration of the period of notice, he still being in default, the complainant terminated the employment, took possession, and provided materials and workmen to finish the work, pursuant to the contract. Said Hibbler and Nicholas De Winter, a subcontractor under Hibbler, have combined and confederated to prevent complainant from finishing the work, have come upon the premises and ordered men employed by complainant to leave, locked doors and removed the keys, caused trouble and annoyance. She has ordered them to leave the premises and desist from intimidating her workmen, but they refuse, and threaten to continue their unlawful conduct. Complainant is erecting the store and building largely for the purpose of furnishing a store for her daughter in which to carry on the millinery business. She is prevented by its being' incomplete, and she is fearful that said Hibbler and De Winter, who are insolvent, will prevent its completion and do injury to the premises unless restrained. A temporary and permanent injunction are prayed for. It is a sworn bill, filed September 27,. 1910. A temporary injunction was granted and issued. Hibbler entered his appearance, but did not answer, and as to him the bill is taken as confessed. William R. Greig petitions the court for leave to intervene in the cause as a defendant, setting up that on or about August 30, 1910, he purchased from De Winter “all and singular the money due and to grow due upon the construction contract mentioned in said bill [being the contract of complainant and Hibbler] and to balance due to said De Winter on said La Tour job or construction, after the payment of labor and materials entering into said defendant De Winter’s work.” He gave notice of the said assignment to complainant on or about August 30.1910. He has by virtue of said assignment “a valid and subsisting claim and interest in and to the moneys due upon said construction contract either to said De Winter directly or to said Hibbler for his benefit.” •He has also by said assignment acquired the right of De Winter to receive pay for certain extras due to said De Winter. This petition was filed November 4, 1910. The order asked for was granted November 5, 1910. De Winter answered the bill November 22, 1910, and in his answer says he has assigned to Greig “all the balance whatever due or to grow due to this defendant on his said subcontract with the said Hibbler.” He traverses material charges in the bill, saying that complainant was not justified in terminating the employment of Hibbler and in entering upon the premises. Denies confederating with Hibbler. Claiming the benefit of a cross-bill, he says that when the writ of injunction issued he had upon the premises certain property, which he describes and values at about $117. He asks for a decree for its value. For breach of the contract by complainant he asks a decree for damages, to be ascertained.
    Answering the cross-bill, complainant says she, upon learning that defendant De Winter claimed to have left chattels and effects upon the premises, repeatedly requested him to get them and take them away, denies any breach of contract upon her part, and denies that she owes De Winter anything or ever had contractual relations with him. This answer was filed November 25, 1910. Greig filed an answer and cross-bill on May 23.1911. He reaffirms the answer and cross-bill of De' Winter, and alleges that when restrained by the order of the court De Winter had performed work and labor and furnished materials in and about the erection of the said building of the reasonable value of $757.39, no part of which had ever been paid to him, under a contract made by him with said Hibbler, had performed certain extra work and labor, and furnished material at the express request of complainant of the value of $115. Said claims had been assigned to him by De Winter. Defendant had caused to be duly filed his lien as such assignee against the premises, claiming $882.39. In his cross-bill he states that from the facts “hereinbefore stated, and now reaffirmed, in this cross-bill,” he is entitled to recover from complainant $757.39 and $125 for extras, and asks for a decree for these sums. He also prays that the court will allow him a lien upon the premises, sustaining this suit as a proceeding in chancery to enforce his lien under the statute. To this cross-bill complainant demurred, and an amended answer and cross-bill was filed by Greig. This on June 22, 1911. Demurrer appears to have been overruled, and the complainant answered the said cross-bill; her answer being verified and filed October 9, ‘1911. Later defendant Greig petitioned for leave to file a supplemental cross-bill, and this was granted with an order that the order pro confesso taken against said Hibbler be amended so as to exclude from its operation and effect the rights mentioned in an assignment executed by Hibbler to Greig, dated November 14, 1911. In the supplemental cross-bill Greig sets up that since the commencement of the suit said Hibbler has assigned to him “all claim and right of action against said complainant” based on the labor and material performed in connection with the masonry contract pertaining to the land and building mentioned in the original bill. As to his asserted mechanic’s lien he states that the statement was filed in the office of the register of deeds November 8, 1910, and a copy served on the daughter and agent of the complainant, then and there living on the premises, November 18, 1910, and proof filed. He prays for a decree that complainant pay him the sum due De Winter as asserted for a lien upon the premises “under the statutes of the State of Michigan in that behalf.” To this supplemental cross-bill a demurrer was interposed by complainant. Later, the supplemental cross-bill was answered by complainant. The complainant died January 20, 1913, and Lenore La Tour, her daughter and administratrix with the will annexed, was substituted as complainant. At the October, 1913, term of the court the cause came on for hearing in open court, and a decree was entered awarding the intervener $487.50. The issues (1) the right of complainant to an injunction and (2) the validity of intervener’s lien, were determined against the intervener. The third issue, namely, the right of intervener to have a personal decree against complainant on account of the claim assigned to him by Hibbler, was determined as is above stated. The temporary injunction was continued and was made permanent by the final decree. The cross-bill of Greig, as assignee of De Winter, praying for a foreclosure of his alleged lien, was dismissed, the lien held to be invalid, and discharged. Complainant has appealed, and in this court contends that Greig should not have been permitted to intervene; -that the supplemental cross-bill was not germane to the bill of complaint and should have been dismissed; that the assignment from Hibbler to Greig purports to assign only the amount to come due for the masonry portion of the contract, an amount not susceptible of determination, hence no recovery can be had upon it. It is contended, too, that in fact the complainant’s loss through faulty workmanship and materials more than offsets the balance claimed by intervener.
   Ostrander, J.

(after stating the facts). If Hibbler had answered the original bill so as to present the issues, first, that complainant had wrongfully interfered with his performance of the contract, and her conduct was responsible for his apparent default, second, that he had filed a mechanic’s lien, and that it ought to be enforced in this proceeding, and, third, that the job was nearly completed when he was excluded and when completed by complainant it would appear that there was a balance due to him, and the court had decided these issues, excepting only the last, adversely to him, and the last in his favor, there could be, I think, no .question about the propriety of awarding him a judgment for any sum found due to him. Hibbler did not answer, and Greig, his assignee, was admitted to answer for him. If his answer had presented the issues above indicated, then, even assuming there is grave question about his right to intervene, the decree would not be reversed. All interested parties would be concluded. As mere matter of administration of the law, the decree in this court would be affirmed, unless, as. is claimed, it is too large. The trouble is that Greig represents the right of Hibbler with respect only to the masonry contract — the De Winter subcontract. He has from Hibbler an assignment only of his claim, demand, and right of action “so far as pertains to labor and material to be supplied by me for the masonry portion of my contract,” and the extras. There was no masonry portion of his contract. His contract is single. The structure is to be erected for a certain sum of money.

Counsel for appellee say:

“Hibbler and De Winter were parties defendant to complainant’s bill of complaint, and both testified in the case on behalf of cross-complainant. Neither of these persons is making any claim to any part of this money or against complainant for any money whatever. They both concede that the money has been assigned to Greig and should be paid to him, as decreed by the court.”

The place where this concession may be found is not indicated, and I have not found it. What appears is that upon complainant’s showing there remained unexpended of the contract price, when the building was completed, the sum of $609.76. Greig’s demand exceeded this sum. The court rendered a decree in his favor for $487.50. Why for this sum does not appear. Complainant claims ,that the work of Hibbler was inferior, and not according to the contract. Testimony introduced by her is to the effect that to make the building conform to specifications will cost more than $1,200. What the court found with regard to the claim for extras does not appear.

The reasons which would support affirmance of the decree, if it appeared that Kibbler’s entire demand was involved, are reasons for reversing it and dismissing the cross-bill of Greig if it is not involved and settled, and all parties in interest concluded, by the decree. The record does not furnish to complainant a sufficient release of Hibbler’s possible demands, nor afford her security from possible further litigation.

If Hibbler is of the disposition indicated in the brief for appellee, and will either give satisfactory assurances to appellant, or will, giving notice, make and file with the clerk of this court a release and satisfaction of all demands and claims whatever growing out of the contract and its performance, the decree may be affirmed. In such event the appellant will recover from Greig, appellee, the costs of this appeal. If no release is given within 20 days after the entry of decree in this court, the decree below will be reversed, and the cross-bill of Greig dismissed, with costs of both courts to appellant.

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

The late Justice McAlvay took no part in this decision.


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    KIMMERLE v. BONINE.
    Trial — Variance — Pleading — Opening Statement — Directed Verdict.
    Although plaintiffs counsel, in his opening statement, used language that was ambiguous and somewhat at variance with the declaration, it was erroneous for the trial court to direct a verdict for defendant, where part of the opening statement was conformable to the declaration, and there was testimony tending to support it.

    Error to Cass; Des Voignes, J.
    Submitted June 21, 1915.
    (Docket No. 77.)
    Decided September 28, 1915.
    Assumpsit by Grover Kimmerle and another, co-partners, doing business as Kimmerle & Sears, against J. Gordon Bonine for goods sold and delivered. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Beversed.

      Clyde W. Ketcham (W. J. Barnard, of counsel), for appellants.

      C. M. Lyle and M. L. Howell, for appellee.

      As to right to direct verdict or enter nonsuit on opening statement of counsel, see note in 29 L. R. A. (N. S.) 218.

   Ostrander, J.

Plaintiffs declared for the price and value of a Ford touring car and a Ford roadster, the coverings, platings, extras, and accessories, sold and delivered to defendant. Their bill of particulars calls for the sum of $1,202. Defendant pleaded the general issue, with notice that he would prove that the automobiles and equipment mentioned in the bill of particulars were exchanged by plaintiffs with defendant for two automobiles owned by defendant and by him delivered to plaintiffs and $140, difference in value, which he duly paid to plaintiffs, $100 in cash, and a check for $40; that he also duly tendered them the sum of $40. The cause coming on to be tried by the court and a jury, plaintiff’s attorney made to the jury a statement of the facts he expected to prove, and called defendant as the first witness. The witness testified, among other things, that according to the agreement of the parties he traded plaintiffs a Stanley steamer car and an old Ford runabout, and paid $140 for the property mentioned in the bill of particulars. Both of the plaintiffs and the wife of plaintiff Kimmerle were then called as witnesses, and they gave testimony tending to prove the allegations of the declaration and that defendant purchased the goods mentioned in the bill of particulars, agreed to pay for them, and did pay on account the sum of $100; that he owed the remainder of the purchase price; that there was no exchange of property, but that they (the plaintiffs) were to help defendant sell his second-hand cars. Defendant offered no testimony. The court directed a verdict for defendant, saying:

“The court bases one of the reasons for a directed verdict, which I shall call upon you to make, that this contract as it now stands is executory in its character as testified to, or as claimed, rather by the counsel in his opening statement, to wit, that is, that Grover and Mr. Sears were to take these two cars for the doctor and sell them as best they could, and apply whatever they were able to get out of them on the purchase price of the new cars, and then the doctor was to pay the balance; in other.words, the status of the case was not such that suit could be predicated at this time. These two cars had not been sold. There was no way of determining; in fact, those proceedings could not be brought until there had been a sale made of these cars. Therefore the suit was prematurely brought. And for other reasons which appear here, and which the court had made a matter of record, you will return a verdict in this case of no cause of action.”

Defendant’s counsel moved for the peremptory instruction, saying:

“Now at this point, then, if your honor please, I now make two motions in the case, and I make the two together for convenience. The first is a renewal of the motion made a while ago to strike from the evidence the testimony of Grover Kimmerle to the effect, and all of the testiniony of his to the effect, that the sale was an outright sale and different from the sale stated and described in the opening statement of his counsel. Second, that a verdict then be directed for the defendant on the ground that there is no evidence supporting the declaration.”

Thereupon the following occurred:

“The Court: In other words, that you claim under the declaration that they declare upon an executed contract ?
“Mr. Howell: Yes, your honor.
“The Court: And that the proof shows that it is executory?
“Mr. Howell: After the striking out of the other testimony, then, that is what remains, and nothing else, and that is the testimony, from the testimony of Mr. Sears and the testimony of Dr. Bonine.
“The Court: Now, gentlemen, I have listened to you patiently on some of these questions, before the noon recess and since, and as is well known to you gentlemen, an opening statement is the basis upon which the action must be predicated; and if during the course of the trial a different claim is made and a different theory produced upon the trial, and that occurs, the seat of the action must necessarily fail. That is elementary; we know that. Now, the question for our discussion is this: What was that statement, and is there a variance in that respect? Counsel for the plaintiffs in his opening statement, after making a page or two of comments in relation to them as to what they claim, said:
‘“Finally, gentlemen, this arrangement was made, in effect, in substance: That Grover and Mr. Sears were to take these two cars for the doctor and sell them as best they could, and apply whatever they were able to get out of them on the purchase price of the new cars, and then the doctor was to pay the balance.’
“Now, gentlemen, that, of course, in substance, must have been the claim and the theory upon which the plaintiffs would seek to recover in this case. True, there were other things said by counsel, but they were explanatory. Why? Explanatory of this very proposition which he said was, in effect, the agreement which I have just read. Now, when the motion was made before to direct a verdict, it seemed to me that the court should not entertain the motion at the time, but listen and see what, if anything, was offered on the part of the plaintiffs further on in relation to this case. Now, the partner of Mr. Kimmerle, Mr. Sears, takes the witness stand, and this is his testimony:
‘“Isn’t it a fact that Grover had told you substantially what Mr. Ketcham said in his opening statement?
‘A. Well, I don’t recollect of what Mr. Ketcham said.
‘Q. Why, that the cars, the old cars, were to he sold, and the amount credited on the purchase price of the new one?
‘A. Grover didn’t tell me that at this time.
‘Q. When did he tell you that?
‘A. After the cars had been nickeled and the seat covers had been put on.’
“Now, gentlemen, there is no difference between that statement of Mr. Sears as to what Grover told him finally, as to what the arrangement was, than what was stated by the counsel in the opening statement. I am satisfied, gentlemen, that from the testimony of the plaintiff while upon the witness stand that no recovery can be had in this case in any court, especially under the pleadings in this case.”

Plaintiffs were offered, but declined, the right to submit to a nonsuit. The ruling and direction of the court is assigned as error.

We were impressed at the hearing, and examination of the record and briefs has only deepened the impression, that there had been a mistrial. Why counsel for plaintiffs, in his opening, traveled as far as he did, we are not now concerned about. It is true that in the course of the opening the attorney for plaintiffs, in stating the bargain he expected to prove, used language referred to by the court — a somewhat ambiguous statement, especially when read with the entire opening. Counsel for plaintiffs also said:

“Gentlemen of the jury, it will appear, I think, to your entire satisfaction, so that you will be moved by the force of the evidence to render a verdict for the plaintiff for the full amount which is asked, that the contract which is claimed by Dr. Bonine was never made. Not only will that appear to you, gentlemen of the jury, from the oral testimony which the plaintiff will introduce, but from the sheer weight of all human probability that it never was consummated, that the doctor had agreed, as we claim, to purchase two cars for a certain price and pay for them in money, that Mr. Kimmerle was only acting as the agent for Dr. Bonine, for his accommodation, and to make a satisfied and a happy customer for his garage, as an accommodation to the doctor, seeking to sell these cars and get out of them what he could to apply it upon the purchase price, and that this other claim of the doctor is a wicked claim, unfounded in fact and untrue, and, gentlemen of the jury, when we are through, we shall ask for a verdict for the plaintiff.”

In view of the testimony the court might have as well accepted this portion of the opening as the portion made the basis of the refusal to try the issue made by the pleadings and the testimony.

But beyond this there is fundamental error in the theory relied upon to support the ruling complained about. No objection was made after the opening statement was concluded that counsel had failed to state a case within the pleadings. Such an objection might have resulted in making certain what, at the most, can be only called uncertain. The verdict was not directed upon the ground that counsel in opening had not stated a case. While there is some ambiguity in the language used by the court, it would seem that the verdict was directed upon the ground stated by counsel for defendant in his motion, namely, that such testimony as was not conformable to the opening of counsel for plaintiffs should be stricken out, and that what was left made no case within the pleadings.

When the motion to direct a verdict was made, the question for the court to consider was whether there was any testimony which tended to support the allegations of the declaration. That there was such testimony is clear. It is quite probable that a precisely similar case has not before arisen, a case in which an alleged erroneous opening and some testimony tending to support it was contrasted with testimony supporting the declaration, and it was held, as a matter of law, that the opening and a part of the testimony required the rejection of the remainder and a nonsuit or a verdict for defendant. In Meade v. Bowles, 123 Mich. 696 (82 N. W. 658), the opening statement of counsel was that the agreement was to pay a reasonable fee for legal services. The testimony tended to prove an agreement to pay $10 a day. It was held that the proof was within the declaration and admissible.

We, of course, express no opinion concerning the merits.

The judgment is reversed, with costs to appellants, and a new trial granted, costs of'the trial to abide the result.

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

The late Justice McAlvay took no part in this decision.


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    HYNES v. BARRETT.
    Drains — Lands Benefited — Injunction — Taxation — Naturae Water Course.
    Where the drain traversing complainant’s land requires a new outlet, which will he furnished by a proposed improvement of a natural water course in another county, complainant’s contention, in injunction proceedings to restrain defendant from assessing his land for said improvement, that his land will not be benefited because it is higher than said water course and already sufficiently drained, cannot be sustained.

    Appeal from Gratiot; Searl, J.
    Submitted June 22, 1915.
    (Docket No. 112.)
    Decided September 28, 1915.
    Bill by Charles F. Hynes against James Barrett and others, as drain commissioners, for an injunction to restrain defendants from assessing complainant’s lands for a proposed drain improvement. From a decree for defendants, complainant appeals.
    Modified and affirmed.

      Stone & Smith, for complainant.

      J. P. Devereaux, for defendants.

      As to basis of liability for assessment for drains, see note in 58 L. R. A. 353.

   Ostrander, J.

What is set up in the bill of complaint is restated as follows:. Complainant owns land in section 16 in the township of Wheeler, Gratiot county, Mich., worth several thousands of dollars, in which land is a drain, laid more than 20 years ago, known as Weeks drain — a drain constructed in Saginaw and Gratiot counties by the joint action of the then drain commissioners. The outlet was near the southwest corner of section 5, Richland township, Saginaw county, in a natural water course, which conducted the water in an easterly direction into Swan creek. About two years after the said drain was constructed, a petition was presented to the drain commissioner of the county of Saginaw, praying for an extension of said drain to Swan creek. Whereupon the drain commissioner for Saginaw county notified the drain commissioners of Gratiot and of Midland counties to meet with him to take joint proceedings in the premises. It was determined at the meeting which was held that the drain commissioner of Gratiot county was not a necessary or proper party to the proceeding, and the drain commissioners of Midland and Saginaw took some proceedings, the exact nature and extent of them being unknown to complainant; action resulting in constructing Weeks extension drain from the point on section 5, Richland township, towards Swan creek, to section 34, Midland county. In the year 1911 joint proceedings were taken by the drain commissioners of Saginaw, Midland, and Gratiot counties to clean out, widen, and deepen Weeks drain and Weeks extension drain, and to extend the drain from its terminal on section 34 aforesaid to Swan creek. A final order of determination was made, and an assessment of benefits, and a day appointed for letting contracts for the work. In the said assessment complainant’s north 40 acres was included, the assessment being .35 of 1 per cent, and the south 40 acres, with an assessment of .3 of 1 per cent, of the entire cost of constructing said improvement. Before contracts were let or the assessments reviewed, and in May, 1912, the circuit court in chancery, for Saginaw county, enjoined the making of the improvement, and the defendants in said suit, said drain commissioners, were enjoined from making the said improvement until Swan creek was deepened, widened and cleaned out, from its mouth in Shiawassee river to the north line of section 16, Thomas township, Saginaw county; the decree providing that defendants might, however, proceed to improve Weeks drain, but not so as to discharge any additional water into Swan creek, until said creek had been first widened, deepened, and cleaned out. From the decree no appeal was taken.

Swan creek is a natural water course, a part of it in Midland county, and it .flows east and easterly, southeasterly and southeast, to Shiawassee river, in Saginaw county; its course in that county being 15 miles long. No part of it is in Gratiot county; it being at its nearest point 11 miles from the meridian line which bounds Gratiot county on the east and Saginaw county on the west.

In July, 1911, a petition was presented to the drain commissioner of Saginaw county to clean out, widen, and deepen Swan creek from its outlet to a point in section 16 in the township of Thomas in said county. Before the entry of the final decree above referred to, proceedings had been taken under said petition ordering a survey of the proposed improvement. After the entry of said decree, the drain commissioners of Saginaw, Midland, and Gratiot counties took some further joint proceedings to improve Swan creek, making a final order of determination, which required the dredging of Swan creek for a distance of nearly 12 miles, the cut to be 40 feet wide; the depth varying from 3.1 feet to 19.7 feet, with an average of about 9 feet. With the erection of bridges, which will be necessary, the said improvement will cost $75,000. The drain commissioners were unable to agree upon the percentage of said cost which should be borne by each of the three counties, and called in the State highway commissioner, who decided that Saginaw county should bear 70 per cent., Midland county 23 per cent., and Gratiot county 7 per cent. They are (August 19, 1914) about to go on and make a final order of determination, let contracts, and assess 7 per cent, of the cost of said Swan creek improvement upon lands in Gratiot county, and the drain commissioner of Gratiot county has said that, if he is required to assess 7 per cent, of the cost upon lands in Gratiot county, he will lay it upon the lands assessed for improving the Weeks drain, upon the same basis as to benefits as was used in that proceeding. There are no other drains in Gratiot county which discharge any water into Swan creek, and no watershed other than that drained by the Weeks drain which discharges water into Swan creek. The original assessment for constructing Weeks drain was laid upon the basis of 40 per cent, upon lands benefited lying in Gratiot county and the remainder upon lands in Saginaw county, and complainant’s said lands were assessed one-tenth of the entire cost. In the proceeding which was enjoined, 35 per cent, of the cost was apportioned to be paid by Gratiot county. It is believed that 24 per cent, of Weeks drain is in Gratiot county, the remainder being in Saginaw county. The threatened assessment for the Swan creek improvement, if laid, will tax the lands of complainant $100. Complainant concludes that all the proceedings taken by the three drain commissioners and the State highway commissioner to improve Swan creek are illegal and void as to complainant, and as to any lands lying within the county of Gratiot. An injunction is prayed, restraining action which will subject Gratiot county lands, including those owned by complainant, to any part of the cost of improving Swan creek.

To the bill the drain commissioner of Saginaw county, one of the defendants, demurred. He says the legality of the steps taken to establish the Swan creek drain can be raised only by certiorari; that the determination of what lands shall be included in the special assessment district to bear the cost of constructing said drain is committed by statute to certain officers, whose decision is final, and the chancery court has no jurisdiction; that it is not charged in the bill that complainant has been notified that his. land is to be included in the said special assessment district, nor that there is any trespass or threatened trespass upon his property; that the question whether complainant has the right to use Swan creek in its natural state, regardless of the effect upon the lower proprietor, is res adjudieata, as is also the question of the legality of the proceeding to establish Swan creek drain; no case for equitable interference is stated in the bill.

The cause coming on to be heard on bill and demurrer, the demurrer was sustained and bill dismissed. Complainant, appellant, statés the question involved in this way:

“Have the drain commissioners of two or more counties jurisdiction or authority under our statute, in the improvement of a natural water course, increasing its. capacity, to assess lands therefor in counties not traversed by such water course, and which lands are on such elevation above the point in the water course where the improvement is made that it is a physical impossibility for such lands to be benefited or affected in any manner by the improvement, and the only reason for the assessment being that the sprface water from such lands flows in the direction of the water course, and naturally finds its way over the surface to the natural water course which constitutes their natural outlet to the Great Lakes?”

I quote further from the brief:

“This question has never been before this court, and is of great importance, and the decision of this court is likely to be of far-reaching consequences to the whole State. As the country becomes improved by the removal of timber and the putting in of large drainage systems, both surface and under drains, the water finds its way into the streams so quickly that floods, more or less disastrous, are of annual occurence. Each year it becomes more apparent that the only way to obviate or relieve this difficulty is to increase the capacity of these streams which are the outlets for the water. It is our contention that our statute does not confer jurisdiction to do what is attempted in the instant case. No question is made in regard to the regularity or sufficiency of the petition or of the subsequent proceedings, if they had been taken in a case coming within the statute; but we contend there is an entire lack of jurisdiction to make the assessment upon lands in Gratiot county. We also call attention to the fact that we are not attempting to enjoin the proceedings to make the improvement in question, but only attempting to prevent the reporting of an assessment upon lands in Gratiot county therefor.”

It is charged in the bill that, as shown by the surveys and levels made in said proceedings, there is a natural fall from the meridian line to the southwest corner of section 5, in Richland township, of more than 42 feet, a natural fall from the point near the southwest corner of said section 5 to the south quarter post of section 34, in the township of Ingersoll, of more than 15 feet, and from the last-mentioned point to the surveyed point in Swan creek a natural fall of more than 13 feet, and a considerable fall from the last-mentioned point to the north section line in said Thomas township. Stated in a few words, what is set up in the bill, with the necessary inferences, amounts to this: Complainant owns land which is traversed by Weeks drain. An outlet is desired for Weeks drain into Swan creek, a natural water course. Such an outlet has been refused by a court until the capacity of Swan creek is increased. A proceeding is pending, the purpose of which is to increase the capacity of Swan creek. The cost of the necessary work is to be borne by three counties, and some of it will be levied upon complainant’s land. Complainant’s land cannot be benefited by the work on Swan creek, because it and the surrounding land have an altitude much higher than that of the land in which the creek runs, an altitude which, secures, naturally, drainage of the said land, which natural drainage is matter of right. The question whether, if benefited by the improvement of Swan creek, the fact that it is in Saginaw county, and complainant’s land in Gratiot county, would preclude the levying of a tax for benefits, is not debated.

The bill cannot be read in such a way as to sustain complainant’s theory. It must be assumed that his lands are benefited by the Weeks drain; that the Weeks drain needs a new outlet; that the new outlet should be in Swan creek. It may be assumed that, if the outlet is established, Swan creek, in its present state, although a water course, cannot receive the water. Therefore it must be enlarged. In this way a connection is established between a benefit to complainant’s land and the enlargement of Swan creek. It may be admitted that lands which are not benefited by a public improvement, like a drain, cannot be specially taxed to pay for the improvement. We need not consider whether, if it was admitted that complainant’s land was not benefited by the improvement of Swan creek, the bill would lie. There is no such admission. It may occur that, having exhausted all statute remedies to which he may be entitled, complainant may later require the assistance of a court of equity.

We therefore modify the decree, so as to dismiss the bill without prejudice to any further proceeding complainant may be advised to take. The appellees will recover costs of this appeal.

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

The late Justice McAlvay took no part in this decision.


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    GOGARN v. CONNORS.
    Mortgages — Deeds—Construction of Deed.
    The conveyance of land in consideration of a certain sum of money and an agreement by the vendee to reconvey within three years if the vendor should so elect and tender the money, must be treated as an absolute conveyance of the 'land with an option to repurchase, and not as a mortgage.
    Appeal from Marquette; Flannigan, J.
    Submitted June 22, 1915.
    (Docket No. 91.)
    Decided September 28, 1915.
    Rehearing denied April 21, 1916.
    Bill by Charles A. Gogarn and another against Thomas Connors for an accounting and to redeem from a deed absolute on its face, but alleged to have been given as security only. From a decree for defendant, complainants appeal.
    Affirmed.

      J. L. Heffernan, for complainants.

      Frank A. Bell, for defendant.
    Complainant Gogarn in 1908 was in debt to defendant and wanted an advancement of money. Complainant owned 40 acres of land, described in the pleadings. Defendant furnished the money asked for, and complainant deeded him the land by warranty deed. As a part of the transaction they executed a written agreement, which recited the debt and the conveyance of the land, that the complainant desired to redeem the land, “if able, within the time limited,” and provided that, in case the complainant should pay defendant $500, and all other sums of money he might be owing him, within three years, the land should be reconveyed. During the three-year period some correspondence took place between the parties, in the course of which defendant furnished a statement of the amount of the indebtedness. In 1904 complainant Gogarn gave defendant a mortgage for $400, conveying the land. The debt was never paid. In October, 1913, complainant, having attempted to transfer to complainant Foard an interest in his rights, joined with him in filing in this cause the bill to redeem. The cause being at issue and heard in open court, the bill was dismissed.
   Ostrander, J.

(after stating the facts). The decree must be affirmed. The transaction — the deed and agreement — did not constitute a mortgage. Complainant had the right of election to pay or not to pay the debt, to refund or to keep the money. The remedies of the parties, were not mutual or reciprocal. The transaction must be treated as an absolute conveyance of the land with an option to- repurchase. Swetland v. Swetland, 3 Mich. 482; Emerson v. Atwater, 7 Mich. 12; Cornell v. Hall, 22 Mich. 377; Stahl v. Dehn, 72 Mich. 645 (40 N. W. 922) ; Reed v. Bond, 96 Mich. 134 (55 N. W. 619) ; Blumberg v. Beekman, 121 Mich. 647 (80 N. W. 710) ; Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689). The unmistakable intent of the parties is recited in the agreement for a reconveyance.

Defendant will recover costs.

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

The late Justice McAlvay took no part in this decision.


text:
    ROBBINS v. TREBILCOCK.
    Master and Servant — Death—Negligence—Saee Place — Obvious Danger.
    Id. an action for the death of plaintiff’s decedent, who was killed by the falling upon him of an overhanging bank while he, was engaged in shoveling earth below, where defendants never assumed the duty of advising the men that it was not safe to work under an overhanging bank or that it was necessary to break down an overhang, and no assurance was given that the apparent condition of the bank was not the real condition, and the danger was too obvious to demand warning or inspection, defendants were not guilty of any negligence entitling plaintiff to recover.
      Livingstone v. Plate Glass Co., 146 Mich. 236.
    Error to Marquette; O’Brien, J., presiding.
    Submitted June 24, 1915.
    (Docket No. 40.)
    Decided September 28, 1915.
    Case by Winifred Robbins, administratrix of the estate of William Robbins, deceased, against William Trebilcock and another, copartners, doing business under the name of Trebilcock Brothers, for the wrongful death of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.
    Reversed and no new trial granted.

      William P. Belden and Thomas Clancey, for appellants.

      Le Gendre & Driscoll, for appellee.

      On responsibility of master for safe place to work where conditions are changing, see notes in 19 L. R. A. (N. S.) 340, 28 L. R. A. (N. S.) 1267.

   Ostrander, J.

Defendants were constructing a concrete dam, in doing which they used earth and gravel taken from an open pit in the immediate vicinity of the dam, which was loaded upon wagons and drawn by horses to the dam. They employed between 40 and 50 men, among them two teamsters and several gangs of shovelers. The pit was in level ground, was opened in a northerly and southerly direction, was entered at the south, and was about 50 feet wide and 100 feet long. The breast of the pit, against which the men were working, was on the east side, where, upon the particular occasion, and at the particular point of interest here, the wall was about 8 or 9 feet high. The soil was sod at the top, clay, sand, and gravel, the top crust frozen to a depth of 6 to 10 inches. To remove the earth the men used picks and shovels in the bank, undermining the top and permitting it to fall, did some blasting, drilling the holes for dynamite with a steel bar, by hand, and were obliged sometimes to go upon the top and break or bar down portions which did not fall. Working hours were from 7 o’clock in the morning until 5 o’clock in the evening; the time used being 45 minutes faster than standard time. Plaintiff’s decedent, a sober, steady workman, 25 years old, was hired as a shoveler, and began work at 7 o’clock on the morning of December 2, 1911. He had previously worked in iron mines and in excavating earth for basements, or cellars, in Ishpeming. Working in the gang with him were three other shovelers. At some point in the east wall they began work after some discussion respecting the character of the bank, deciding to drill and blast it down. After firing the blast, they began loading the earth, and continued to do so until near quitting time at night, when a wagon was brought in for the last load. At the place they had been working the loose earth had been removed, and the teamster spotted the wagon at a point some 25 feet away, where considerable loose earth had dropped and was lying on the floor of the pit. At this point no work had been done for two days. There' was an overhanging bank there. The wagon was placed 6 or 8 feet from the bank and where it was from 8 to 9 feet high. Plaintiff’s decedent was working between the rear end of the wagon and the bank, when the overhanging “chunk” of earth fell, pinning him against the wheel and fatally injuring him.

From this statement it would appear that the men, including plaintiff’s decedent, were engaged in the most common labor in the face of a possible and obvious, but not probable, danger — a danger as well to be appreciated by one man as by another. But counsel for plaintiff in the brief and argument asserted two principal propositions from which the responsibility of the employers for the event is deduced. He contends: First, that the alleged dangerous situation was created before plaintiff’s decedent’s employment began; and, second, that the employers assumed and performed in the course of the work the duty of barring down overhanging banks. The last proposition stated involves in argument, if the duty existed, the duty to keep watch of the banks, to inspect the pit, to warn if the duty had not been performed. The duty of the employers to maintain a reasonably safe place for the men to work is, in short, the general duty asserted, and the jury was instructed that such a duty existed.

There is testimony supporting the conclusion that the employers were solicitous for the safety of the men working in the pit, cautioning them, commanding them, not to work under an overhanging bank, keeping a general oversight of the work. It does not appear that plaintiff’s decedent heard any such commands or was himself warned of danger. There is the following testimony to which we are referred by the brief:

“It was the custom there for Trebilcock and Carlyon to do the inspecting. They were supposed to inspect the place before they sent men or allowed men to go in. That had been customary all the time I was there.
“Q. In other words, they made the men shovel dirt and keep at that and did the inspecting' and watching the place?
“A. Yes; they had to keep their shovels going.
“Q. And thé boss and Carlyon watched after the safety of the place?
“A. Of course, they had two or three places to watch besides this one. They would go around and watch the different places and keep the men working.
“Q. In other words, the men didn’t inspect the place. Carlyon and Trebilcock inspected the place, and the men shoveled the dirt?
“A. Yes; that is the way it was. always done.”

It is the contention of defendants, appellants, first, that the testimony fails to establish — does not tend to establish — negligence of the defendants. There are other contentions, but the case must be disposed of upon this one. We find no testimony tending to prove failure of defendants to perform a duty owing to plaintiff’s decedent; we find none supporting the proposition that defendants ever assumed, or performed, the duty of barring down the overhanging banks. On the contrary, the men uniformly did such work. Day by day the men working on the floor of this pit were digging into the bank, breaking it down, and putting the earth into wagons. If, after being undermined, the bank did not come down, it was picked or barred down. With seven or eight gangs of shovelers, four men in each, the work of breaking down the bank in some part of the pit must have been practically continuous. The testimony upon which plaintiff relied, and relies, must be read with the remainder of the testimony of the witness and other witnesses. So read, it is made entirely evident that while the employers overlooked the work, brought their experience and “safety first” ideas into operation, they never assumed, and the men never assumed, that it was a part of their duty to advise them that it was not safe to work under an overhanging bank, or that it was necessary to break down an overhang which otherwise would not or did not fall. The work was too simple and such danger as existed was too obvious to demand warning or inspection as a duty.

The case at bar and Livingstone v. Plate Glass Co., 146 Mich. 286 (109 N. W. 431), cannot be distinguished by the fact that plaintiff’s decedent had not done work at the particular place in the pit — was not one of the men who left the particular overhanging bank in position. All the men employed there were taking down the bank. The work was in all stages, from hour to hour and day to day. As the bank was left at night, so it might or might not be found upon beginning work in the morning. As men moved from point to point along the bank, they were necessarily confronted with the results of the last operation of fellow workmen, and perhaps also the results of the operation of the law of gravity. There was, in the nature of things, and could be, no guaranty that any particular set of men had left any particular part of the bank a safe place to work under or near. Plaintiff’s decedent was not, in fact, relying upon the opinion or any undertaking of his employers.

For the reason that the case is, in principle, ruled by the one last above cited, it is unlike Livingway v. Railway Co., 145 Mich. 86 (108 N. W. 662) ; Druck v. Lime Co., 167 Mich. 154 (132 N. W. 492) ; Lewis v. Brick Co., 164 Mich. 489 (129 N. W. 726) ; Simone v. Kirk, 173 N. Y. 7 (65 N. E. 739); and similar cases. No portion of the bank of this pit was expressly or impliedly tendered to plaintiff’s decedent as permanent, or as safe, no such representations were made to him, no assurance was given by custom or otherwise that the apparent condition of the bank was or was not the real condition. The open pit, away from the walls, was safe. But if the defendants had neglected a duty to bar down the particular overhang of the bank, the fact was apparent. There was the overhang ■ — a slight one to be sure, but visible, and as ominous to plaintiff’s decedent as to any one else. However slight the peril may have seemed to be, it was not removed or avoided. The result was most unfortunate, but cannot be attributed to defendants.

The judgment is reversed, and no reason appears for granting a new trial.

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

The late Justice McAlvay took no part in this decision.