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    PRINE v. SINGER SEWING MACHINE CO.
    1. Forgery — Fraud—Malicious Prosecution.
    In the offenses of forgery or uttering forged instruments, a fraudulent intent is the gist of the crime.
    2. Malicious Prosecution — Forgery—Probable Cause.
    Testimony that plaintiff, in an action for malicious prosecution, took orders for sewing machines as agent for defendant, to be paid for in cash, and executed leases which he signed or caused to be signed in the name of the purchasers, and forwarded to defendant, plaintiff claiming that he followed a custom of the agency in so doing, for the purpose of keeping a record of the sale, and gained no profit by the transaction; presented a question of fact whether or i^ot defendant had probable cause to arrest plaintiff, for forgery.

      3. Same — Justification — Prosecuting Attorney — Advice- of Counsel as Protection.
    In order that the advice of the prosecuting attorney may constitute a defense to an action of malicious prosecution, it must be made to appear that full and fair statement of all the material facts was made to him by defendant: failure to state any material matters may raise an issue of fact, sufficiently justifying the court in leaving the issue to the jury.

    4. Trial — Conduct of Court — Argument.
    It is the duty of the trial judge to be present and hear the argument of counsel to the jury, and although his absence may not amount to reversible error, he should be present and afford an opportunity to counsel to make objections and obtain rulings during the course of the argument.
    5. Malicious Prosecution — Probable Cause — Evidence.
    Defendant was entitled to have given, as a part of the charge, a requested instruction that neither discontinuance of a prosecution nor discharge of the plaintiff on his examination established want of probable cause or plaintiff’s innocence; and a charge that such discontinuance and discharge prima facie established want of probable cause was prejudicial to defendant’s rights.
    Error to Saginaw; Gage, J.
    Submitted April 28, 1913.
    (Docket No. 12.)
    Decided July 9, 1913.
    Case by George W. Prine against the Singer Sewing Machine Company and others for malicious prosecution. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Weadock & Weadock, for appellants.

      Julius B. Kirby, for appellee.

       On the question of advice of counsel as defense to action for malicious prosecution, see note in 18 L. R. A. (N. S.) 49.

   Stone, J.

This is a suit to recover damages for alleged malicious prosecution growing out of prosecutions had upon two complaints made against the plaintiff in the police court in the city of Saginaw by defendant Everal O. Beach, charging him with forgery and uttering forged instruments. The first count of the declaration is for malicious prosecution on account of forging and uttering as forged a sewing machine lease purporting to have been signed by F. H. Beach. The second count charges a like prosecution growing out of the prosecution for forgery and uttering as forged á sewing machine lease purporting to have been signed by A. F. Burwitz.

The declaration alleges that'the prosecutions of plaintiff were instituted for the express purpose of compélling the payment of a claimed indebtedness to the defendant Singer Sewing Machine Company. This last-named defendant is a New Jersey corporation, organized on the 9th day of November, 1904, for the purpose of taking over from the Singer Manufacturing Company of New Jersey, and to conduct in that State and elsewhere, the business of selling and disposing of the sewing machines and other articles manufactured by the last-named company, and 'was duly licensed to carry on its business in this State. The Singer Manufacturing Company ceased to carry on business in this State on December 31, 1904.

Defendant Singer Sewing Machine Company from the time of its organization carried on its business in the State of Michigan and had a sales department or store in Saginaw, which was under the jurisdiction of Marshall M. Tatro, general agent, with an office in Chicago. This sales agency in Saginaw included the counties of Saginaw, Gratiot, Isabella, Tuscola, and Huron. Fred Schmidtill, supervising agent of said company for the lower peninsula of Michigan, had full charge of the Saginaw sales agency and had authority to discharge and did discharge the plaintiff as managing salesman on December 11, 1909. The plaintiff was employed on October 27, 1906, by writ-4 ten contract, as managing salesman for the said company at Saginaw, and in this capacity to sell and dispose of its sewing machines, parts and accessories, at its store at Saginaw and in the territory attached thereto. The contract provided that said company would, as it might deem best, furnish to said store its sewing machines, parts, etc., which were to be held as the property of the company, and sold or disposed of as such by the plaintiff' or those under his management, at prices established for the time being by the company for the said territory, either for cash or under agreements made upon the forms and blanks of the company. By the terms of that contract the company agreed to pay the plaintiff in full for all his services:

“A salary at the rate of $35 per week (lost time to- be deducted), which shall include the use, keeping, and maintenance of a horse and wagon to be used in the business.”

It was further agreed that the contract might be terminated at the pleasure of either party. A new contract was entered into on June 15, 1908. By the terms of this contract the company agreed to pay to the plaintiff in full for all his services the following compensation, subject to the limitations thereinafter expressed:

“(A) A salary at the rate of $15 per week (lost time to be deducted), which shall include the use, keeping, and maintenance of a horse and wagon, to be used in the business.”
“ (B) A commission of 15 per cent, of the value of each sale or lease of a machine made at said store (except on a sale or lease made by an assistant managing salesman, where such is employed) at retail list prices fixed by the company; said commission to be computed on the list price after deducting allowances (if any) for old machines taken in exchange and discounts. This commission shall be payable only as payments in cash are made on said sale or lease and paid over to the company, and shall be at the rate of 50 per cent, of such cash payments until the full amount of commissions shall have been paid.”
“(C) A remitting commission of 5 per cent, on the actual amount of money remitted from said store, said remittance to be made only from money remaining on hand after payment of the running expenses of said store and any advances from division headquarters, and is. payable one week from date of each weekly report.”

This contract contained the same clause as the first relating to the sale or disposal of machines at prices established for the time being by the company, either for cash or under agreements made upon the forms and blanks of the company. It also provided that the plaintiff would take proper care of and account for and deliver to the company or its authorized agent, on demand, all property of every description belonging to the company which might be intrusted to him or come into his possession or under his control. This last contract was in force at the time the plaintiff was discharged. Plaintiff gave a bond to the company, issued by the International Fidelity Insurance Company of New Jersey in the sum of $500, to secure the company against such direct pecuniary loss, not exceeding said sum, as it should have sustained of the employer’s money, funds, or other personal property stolen or embezzled by said employee during and while in the actual performance of the duties of his employment as managing salesman of said employer. The plaintiff was always under bond while in the employ of the company.

There was employed in the store one Ethel M. Secord, as bookkeeper for the company. Her contract, under date of October 14, 1907, described her duties as follows:

“To act as bookkeeper for the company at its shop at Saginaw and in the territory attached thereto, and in this capacity to faithfully perform all the duties assigned to her, and in all respects to faithfully carry out its instructions.”

Her stated compensation was $9 per week. This contract was signed by Miss Secord and the defendant Singer Sewing Machine Company, by the plaintiff, as managing salesman.

Sewing machines sent to the plaintiff at Saginaw were charged to that agency, and when sent out on sale- or trial a record was kept on what was known as a stock card, called “lease or note record,” on one side and “stock and trial record” on the other side. On the “stock and trial record” side of the card were noted the number of the order, the date received, the number of the machine, style of machine and woodwork, name of the salesman, the date sent out, and the name of the person with whom it was on trial. The lease or note record gave at the top the number of the lease, its date, name of lessee, name of salesman, commissions paid, the terms of the contract, the price, and the dates and amounts of payment pertaining to each machine. There was a cash book kept, but no ledger; the lease or note record taking the place of the ledger.

When a machine was sold for money paid to the store, it was the claim of the defendant that there should have been no lease made, but the money should have been remitted to the Chicago office. When sold on credit, then a lease should be made, signed by the lessee, accepted by the company, by some one of its agents, witnessed, and on the back were indorsed the name of the store, the number and date of the lease, the lessee’s name, the style of the machine and number, price and payments, and whom the lease was effected by, and whom examined by. That, when a machine was sold either for cash or on time, the agent making the sale made a weekly report to the Chicago office entitled: “Report of-, salesman and collector at Saginaw for week ending-.” In this report were written out the number of account or lease, the amount paid, amount selling commission retained, with other data, and said report was certified on the outside by the sales manager, giving a summary of the report and certifying that it showed all machines sold or leased, all cash collected or received by him since his last report; that the agent or managing salesman received full payment for all commission and expense item due to date; and that the cash drawn by him was in full of all demands, except commissions thereafter becoming due under the conditions of the contract of agency.

It was the claim of the plaintiff on the trial that machines put out on trial could not be left longer than one week, and that the manufacturing machines could not be left on trial at all, and the plaintiff testified that these instructions were given to him by the general agent of the Chicago office; that it was the practice of the Saginaw office, in certain instances, where machines were sold - and delivered to responsible parties, who had not, oh delivery, paid for the same (as was the case in both the Beach and Burwitz sales) or given a lease covering the machine, to place in the proper files “memoranda leases,” purporting to have been signed by such parties,receiving the machine; that the method pointed out above by defendant covers cash sales of machines at the time of delivery, machines placed out on trial, and lease sales, but does not cover a transaction where a responsible party would order a machine and have it delivered without paying for it at the time or giving a lease therefor; that the Saginaw office had made a practice of writing up leases and placing them in the files, to make a record of the disposition of particular machines, until settlement might be had, and in many instances parties purchasing machines would refuse to make and sign leases, and the bookkeeper would fill out these blanks, sign the name of the purchaser to the same, and file them in their proper places, to keep the record.

It appeared also that there was a cumulative report made which included all of the business for the year up to its date, and this was certified to and signed by the managing salesman and the bookkeeper. When the week-end or cumulative report was made up, the amount of money necessary to be remitted to the company would be known. The money coming to the agency at Saginaw was deposited in the Bank of Saginaw, in the name of the Singer Sewing Machine Company, generally by the bookkeeper. It was subject to check only by the plaintiff, as managing salesman, so that when the week-end report was completed, and the amount that had to be sent to the company ascertained, according to the report, if there was sufficient money in the bank, it was checked out by the plaintiff and a draft sent. If there was not sufficient money in the bank, plaintiff furnished the difference. The plaintiff testified that this did not happen often, but that it did happen, and the bookkeeper testified that that was the way in which the amounts were made up to go to the company; that in some instances, when there was not sufficient money in the bank, she was directed by the plaintiff to change the report to correspond with money on hand.

We quote the following from the direct examination of the plaintiff relating to the sales of machines to F. H. Beach and A. F. Burwitz on leases which were forwarded to the company:

“Q. Now this lease spoken of in Exhibit A, the complaint made by Beach, what was there to that within your personal knowledge?
“A. Mr. Beach ordered a sewing machine sent up to his factory, and he had bought seven or eight others previously; he ordered this in the same way— telephoned down for a sewing machine to be sent up there and said when he got around he would send a check for it. I can’t fix the date.
“Q. Well, the memorandum we have * * * was on November 28, 1907.
“A. Well, it was some time previous to that when the machine was delivered. [Paper is here marked Exhibit G for identification at request of plaintiff’s counsel.] ,
“Q. What is Exhibit G? .
“A. It is a lease. It says F. H. Beach here.
“Q. What, if anything, on that piece of paper, is your handwriting?
“A. The witness mark, my own name, and my own handwriting, ‘Geo. W. Prine.’ I did not write anything else on that piece of paper. That form of lease had been used by me for the company right along. Used at every sale. I did not write the name F. H. Beach on the bottom of the lease that I was accused of forging.
“Q. Do you know how that came in the file or the case of the company, the Singer Company, what use was made of it, and why was it put there?
“A. It was sent to the company, a report of the . sale of the machine to Mr. Beach.
“Q. And why?
“A. Why, to make up a certain number of sales each week that were held up for in the office, undoubtedly was reported for that purpose, as we—
“Q. Well, had the machine described there actually gone out of your stock?
“A. Yes, had previous to that, some time previous to that.
“Q. And at the time it went out did the cash come in to take its place?
“A. It did not.
“Q. And did the cash-come in later?
“A. In the form of a check. [Check produced by defendants’ counsel and marked Exhibit H for plaintiff.] Exhibit H is a check dated December 7, 1907. Is supposed to be a check as near as I can—
“Q. Well what— Is it a check for that machine of Mr. Beach’s?
“A. Yes, sir.
“Q. And what was done with the check which came to the office?
' “A. I gave it to Miss Secord and she indorsed it on the back and deposited it in the bank — credited to the Singer Sewing Machine Company.
“Q. And did you have any use or benefit whatever from that check?
“A. Never handled the check; never had it in my possession. [A contract or lease is here marked Exhibit I for identification. Check is here marked Exhibit J for identification.]
“A. Exhibit I is the Burwitz lease, on which I was arrested, in the second arrest. That is one of the leases that I am charged with forging. In the second case, the writing on the body of the lease is mine. Reads: ‘A. F. Burwitz, Saginaw, Michigan, West Side. Saginaw 15 — 2—20, 1912.’
“Q. And the bottom part, there there is a signature, ■did you write the signature?
“A. I did not.
“Q. Did you write anything more in the bottom of the paper than is explained?
“A. No, sir; the date on there I didn’t write— I didn’t write ‘19’ after ‘November, 1909.’
“Q. What became of that; that is whether it was put through the office or the company’s books or—
“A. I left it on the desk; I don’t know what became of it afterwards; probably sent; no way of finding out whether it was sent to the company.
“Q. State all you know about the history of the machine in that described.
“A. Mr. Howell, of Detroit, who has charge of the manufacturing department for the Singer Sewing Machine Company, sells the manufacturing machines to the different factories, to the stores here; we have no right to sell a manufacturing machine — that is, machines used in a factory. I sell those then that are used in the domestic; that is it. We sold several machines, but Mr. Burwitz, you understand, from the machines we have — Mr. Howell came to the store and handed me a slip of paper, and he said: ‘You deliver a machine over there to this man; he will send you a check for it.’ I did— I didn’t do it; I sent one of my men over with the machine. They delivered it at the office, and that is the last I ever saw of the machine. It ran along for some time and they sent a check for the machine. That machine was taken out of our stock.
“Q. And what took its place?
“A. That report of sale that is on this lease here. Mr. Howell brought the check into the office and handed it, I think, to Miss Secord; if he didn’t he handed it to me and I immediately handed it to Miss Secord. Exhibit J is the check to the best of my knowledge and is what was deposited in the Bank of Saginaw or the bank where they were doing business, by Miss Secord, to the credit of the Singer Company. The .other check that was spoken of in the Beach case was deposited to the credit of the Singer Sewing Ma-cine Company.
“Q. Did you ever get that back?
“A. No, sir; I don’t think I did; I don’t think I ever had it in my possession at any time after Mr. Howell handed it to Miss Secord.
“Q. Well, did you ever have any part of this check?
“A. Not one cent of it; no, sir.”

Upon the trial of the case it was the claim of the plaintiff, and he gave evidence tending to show, that for a number of years before his arrests here complained of he had been the managing salesman of the defendant company at Saginaw; that he had never before been suspected of having been guilty of any crime or been arrested; that the defendant company and the defendant Fred Schmidtill were responsible for the other defendant Everal O. Beach making the complaints against him; that in the first case the defendant Beach for and on behalf of himself and the other defendants, and without any probable or reasonable cause to believe that the plaintiff was guilty or had committed the offense charged, and because plaintiff would not turn over to the other defendants a certain sum of $247 which he had collected as a representative of the said company, and the further sum of $250, and because the defendants had malice and ill will towards plaintiff, on December 28, 1909, made the complaint in the police court aforesaid charging him with having on November 23, 1907, falsely and feloniously forged the instrument called the F. H. Beach lease, and also with having feloniously uttered and published as true said F. H. Beach lease with intent to defraud; that he was arrested and imprisoned on the warrant issued on said complaint, and that finally, upon the preliminary examination upon said charge, the case was dismissed on motion of the prosecuting attorney, and the prosecution ended; that a few days after plaintiff was so discharged the said defendant Everal O. Beach, acting for himself and under the authority of the other defendants, and actuated by the malice of himself and the other defendants, and without any reasonable or probable cause, made another complaint in said police court charging that on November 20, 1909, the plaintiff did forge and counterfeit a certain instrument, called in this case the A. F. Burwitz lease, and also with having feloniously uttered and published as true said Burwitz lease with intent to defraud; that upon the warrant issued on said last-named complaint he was arrested and taken before the magistrate, and upon the preliminary examination he was by the magistrate discharged from arrest, and the prosecution was ended.

It is the claim of the defendant Singer Sewing Machine Company that it did not authorize and was in no way connected with the prosecutions of the plaintiff; that whatever was done was under the direction of the International Fidelity Insurance Company and under the direction and supervision of the prosecuting attorney; and that it is not liable in any event. The defendants further claim under the evidence that the plaintiff was the managing salesman of defendant company during the years named; that his business was to oversee the affairs of said company; that he sold a machine to F. H. Beach in the year 1907 for the sum of $86.61, and delivered the same to him; that at the time of the sale and delivery there was no understanding or agreement with said Beach to enter into any written lease or agreement with reference to such purchase, and that thereafter and on or about November 23, 1907, the plaintiff, with intent to injure and defraud the company, directed and assisted in preparing a lease purporting to be signed by said Beach for the sale of the machine aforesaid; that therein the purchase price of the machine was increased, the time and amounts of payments and the amount of commissions to be paid altered; that said Beach paid for the machine in full; that plaintiff did not remit the full amount paid by Beach, but only payments thereon, and those payments neither as large nor as soon as provided for in the lease; that plaintiff well knew all these facts; and that by his connection with the preparation of the fictitious Beach lease, and forwarding the same to the company’s office in Chicago, he was guilty of committing the crime of forgery of said lease and uttering the same as a forged instrument. The defendants also claim that in tlie fall of 1909 the defendant company, through Mr. Howell, its agent from Detroit, sold a machine to A. F. Burwitz of Saginaw for the sum of $32.40, and that there was no contract, lease, or obligation to be made by said Burwitz for the machine, and that Burwitz paid for the machine in full on November 4, 1909; that on or about November 20, 1909, the plaintiff prepared a lease purporting to be signed by A. F. Burwitz, covering the sale of the machine to A. F. Burwitz; that this alleged lease was not signed by A. F. Burwitz or by his consent, knowledge, or ratification; that it changed the amount of the purchase price, the commission to be paid or earned, and the amount and time of payments on the sale; that said lease so prepared was forwarded to the office of the defendant company, to which the plaintiff had to account, as a valid lease; and that'plaintiff did not remit the amount paid by Burwitz but only a part thereof, and that this lease was forged by the plaintiff, with intent to injure and defraud, and that plaintiff was guilty of uttering the said lease as true with like intent.

The defendants claim that these facts did not come to their knowledge until the last of November or first of December, 1909; that upon the information coming to Mr. Schmidtill, from the said bookkeeper, he employed a competent person to examine the accounts in the office of the Saginaw agency and the sales of said machines to said Beach and Burwitz and found that the machines had been paid for and that no leases had ever been signed or authorized to be signed by either Beach or Burwitz and had never been ratified by either of them; that the plaintiff had admitted to Miss Secord, the bookkeeper, that he was short in his accounts with ■ the company, which shortage included the balances due on these two leases; that Schmidtill came to Saginaw and saw the plaintiff and attempted to make a settlement of the money affairs between the plaintiff and the company, which attempt was fruitless; that plaintiff made a claim of an indebtedness due him from the company; that thereafter the defendant company reported all of the facts to the International Fidelity Insurance Company, and said last-named company directed Schmidtill to submit all the facts coming to his knowledge with reference to the alleged forgeries of the Beach and Burwitz leases to some attorney, and thereafter submit the same to the prosecuting attorney, giving the latter all material facts, and submit to and be guided by the advice of the prosecuting attorney in the premises; that thereafter Schmidtill, as directed, fully, fairly, and in good faith'stated all of the material facts with reference to said two leases to the prosecuting attorney of Saginaw county, and after such statement that officer determined that complaint should be made against the plaintiff, charging him with forging and uttering as forged the said Beach and Burwitz leases, and that upon the direction of the prosecuting attorney the complaint against the plaintiff in both cases was made by the defendant Everal O. Beach; that from the time of the statement to the prosecuting attorney, the making of the complaints, and the prosecution thereof, up to and including the final action in both of said cases, they were under the direction, advice, and control of the prosecuting attorney. The defendants further claim that the plaintiff was guilty of the offenses charged; that whatever was done by them, or either of them, was done after the material facts were fully and fairly stated to the prosecuting attorney, and without malice; and that in no event are they, or any of them, liable in this action.

The defendants made a motion for a directed verdict at the conclusion of the evidence on the grounds that plaintiff was guilty of the offense with which he was charged; that the criminal cases were commenced and conducted by the prosecuting attorney after a statement of all the material facts; that there was no evidence of malicious prosecution; and that there was no' evidence that defendant Singer Sewing Machine Company authorized or had anything to do with the prosecutions, which motion was overruled and exception taken.

The defendants requested the court, by their numerous requests, to direct a verdict in their favor, which requests were not given. The case was submitted to the jury, and plaintiff had verdict in the sum of $5,783 against all of the defendants.

The defendants made a motion for a new trial on the grounds:

(1) That the court erred in overruling the motion for the defendants for a directed verdict.

(2) - That the court erred in its charge to the jury.

(3) That the verdict was against the weight of the evidence.

The court denied the motion, giving reasons therefor, to which exception was duly taken. The defendants have brought the case here upon writ of error, and there are 72 assignments of error in the record. Appellants’ counsel state that the law questions arise:

(a) Upon the rejection and striking out of evidence.

(b) The action of the court in denying the motion at the conclusion of the evidence for a directed verdict.

(c) Error in the argument of plaintiff’s counsel.

(d) The refusal of the court to charge as requested.

(e) The charge as given.

(f) Refusal of the court to grant a new trial.

(a) A careful examination of this record has not disclosed to us any prejudicial error of the trial court in the rejection or striking out of evidence upon the trial or in the rulings relating to the admission of testimony. Counsel have not dwelt upon this branch of the case either in their briefs or oral arguments.

(b) This brings us to one of the important questions in the ease. It is the claim of appellants’ counsel that the court should have directed a verdict in favor of defendants upon numerous grounds. First they say that it appears by undisputed evidence that the plaintiff was guilty of both offenses of forgery and uttering forged instruments with which he was charged, and that therefore there can be no question that there was probable cause to justify prosecution in both cases. We are not prepared to say that upon this point the evidence was such as would have warranted the court in charging the jury, as matter of law, that the plaintiff was guilty of either of the offenses charged.

The intent to defraud is the gist of the offenses of forgery and uttering forged instruments as true, knowing them to be forged; and we cannot say, in the light of this record, as matter of law, that the plaintiff was guilty of either of these offenses. We think it was a question for the jury whether, under the evidence, there was probable cause to justify the prosecutions of plaintiff.

The most serious question is whether the evidence shows conclusively that the prosecutions of the plaintiff were under the direction of the prosecuting attorney, after the statement of all the material facts within the knowledge of the defendant Schmidtill. The circuit judge himself, as shown by this record, expressed doubt upon the question when the motion was made for a directed verdict upon this ground but refused to grant the motion. Our first impression was one of doubt as to the correctness of the ruling of the learned trial judge upon this question; but a more careful examination of the record has led us to the conclusion that the court did not err in denying the motion and in submitting the case to the jury upon this point.

Counsel for plaintiff, in their brief, have pointed out some 13 reasons why the statement made by defendant Schmidtill to the prosecuting attorney did not disclose all the facts. We are unable to agree with plaintiff’s counsel in all of these claims, but we think there is force in the following: It appears thát Mr. Schmidtill did not ádvise the prosecuting attorney that the plaintiff did not write the name of F. H. Beach upon the Beach lease, upon which the charge of forgery was based. We think it appears from the testimony that the claim was made to the prosecuting attorney that the plaintiff wrote the name of Beach, purporting to be the signature of the latter upon the lease. It turned out upon the trial that this was not true,. but it was claimed by defendants’ witnesses that the plaintiff directed the sighing of this name, which was as earnestly denied by the plaintiff in his testimony. The prosecuting attorney substantially stated in his testimony that he was led to- believe and relied upon the statement that the plaintiff had signed the name of Beach to this lease, and that the prosecution was dismissed because the contrary appeared. It further appears that Mr. Schmidtill failed to disclose to the prosecuting attorney that in his interview with the plaintiff there had been an attempted settlement or that he had threatened the arrest of the plaintiff if he did not come to a settlement with the company. It was denied by Schmidtill that he made such threat, but the same was testified to by plaintiff, and Schmidtill testified that, had the plaintiff settled, no complaint would have been made to the prosecuting attorney; and the disclosure should have been very full upon this subject. Neither did Mr. Schmidtill advise the prosecuting attorney that there had been a practice at the agency of making what might be termed “memoranda leases,” as it is claimed by plaintiff was done in this instance to keep the record in proper condition. We deem this a very material fact and one which should have been ascertained and disclosed by Mr. Schmidtill in order that the prosecuting attorney might be possessed of the facts in the case. This applies especially to the Beach case. Neither does it appear that it was disclosed to the prosecuting attorney that when the Beach sale and lease were made the plaintiff was working under a contract in which he received no commissions but a straight salary of $35 per week. This was important as bearing upon the question of intent or motive of the plaintiff.

It is urged that it is difficult to see how in any way the plaintiff would be benefited by making such a lease, as a genuine instrument, stating a larger sum than the machine was sold for, when he would be required eventually to account for the larger sum. The condition of the two leases, when shown to the prosecuting attorney, is in dispute. It is difficult to glean from the testimony just what the witnesses mean when they testify that certain erasures were made upon these leases at or about the time they were submitted to the prosecuting attorney. It appears that subsequent to the discharge of the plaintiff these leases had been balanced so that it appeared that the whole amount due the company thereon had been paid. Just when these last entries were erased, whether before or after they were shown to the prosecuting attorney, is a subject that even counsel are not agreed upon. The presenting of those leases to the prosecuting attorney, showing that they had been balanced and nothing was due upon them, might have been a material fact, and certainly he was entitled to know all the facts relating thereto; and, if erasures had been made thereon, he was entitled to an explanation of such erasures and why made. If it should turn out that there was no probable cause for making the complaint in the Beach case, and that the same was made to force the collection of a claim, and was made maliciously, there might be foundation for this suit even if in the Burwitz case there was probable cause and the complaint properly made. These are some of the reasons that have led us to the conclusion that the court did not err in not taking the case from the jury upon that ground.

(c) Complaint is made of the argument of plaintiff’s counsel before the jury, and the question raised presents a peculiar condition. The arguments complained of seem to have been objected and excepted to by appellants’ counsel at the time, but the trial judge states in his charge that he was not present and did not hear these arguments, because he was otherwise engaged. A memorandum of the objections appears to have been made by appellants’ counsel, and the court’s attention called to the objectionable matter later, at the time of the charge, and the court instructed the jury upon the subject. We have ruled that the circuit judge should have his attention called to objections, and he should be given an opportunity to pass upon objections to improper arguments when made; but what should be done when the circuit judge is not present to make rulings? This presents a new question which we do not find it necessary here to pass upon, for the reason that the case must be reversed upon another ground. But we do think we should say that in our opinion it is the duty of the trial judge to be present and in attendance and to hear the arguments of counsel to the jury, and be in a position to rule upon objections when they are made to any part of the argument. This question will not probably arise upon a new trial.

(d), (e), and (f) may be considered together. We have examined the charge in this case with great care, and in the main it seems to have presented the case very fully and fairly to the jury.

By the thirty-sixth assignment of error complaint is made because of the refusal of the court to give defendants’ twenty-fifth written request, which is as follows:

“I charge you, as matter of law, that neither discontinuance of the Beaeh Case or the discharge of plaintiff on his examination on each of these complaints does not show want of probable cause, or that plaintiff was innocent of the offense with which he was charged.”

One of the assignments of error is based on the charge of the court as given, as follows:

“Now, while it devolves upon the plaintiff to establish want of probable cause, I instruct you that, when the records were introduced here showing that he had been discharged on each of the complaints in question, that prima facie established a want of probable cause on the part of the man prosecuting.”

This was one of the errors urged upon the court in the motion for a new trial. Referring to the same, the learned circuit judge, in his reasons for denying the motion, said:

“This matter was brought up on the trial of the case on the motion to direct a verdict, and at that time plaintiff produced authorities from the second edition of Judge Cooley’s work on Torts sustaining his position, and also some other cases which indicated that that was the rule of law. The court expressed his surprise that such could be the law and stated that it was contrary to his understanding, but, as counsel for the defendant did not produce authority to the contrary, when the court came to instruct the jury he assumed that this was the law and gave the instructions at the request of the plaintiff. A subsequent investigation satisfied the court that this was not the law in this State, and that this instruction was an error; but in view of the very full instruction given to the jury in the charge, in reference to what constituted probable cause, the court is satisfied that it was error without prejudice to the defendants.”

The sixty-ninth assignment of error is based upon the refusal of the court to grant a new trial on this ground.

In Davis v. McMillan, 142 Mich. 391 (105 N. W. 862, 3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585, 7 Am. & Eng. Ann. Cas. 854), this court held that the discharge of one accused of crime has not, of itself, any tendency to show want of probable cause for instituting the prosecution. The opinion in that case was written by the late Justice Hooker. He said among other things:

“It has been frequently held that an acquittal does not necessarily show want of probable cause. It is doubtful if the converse has ever been held; for, if it were, it would seldom be safe to institute criminal proceedings, as conviction must always be an uncertainty under the rule of reasonable doubt, and the proceeding, being for the avowed purpose of ascertaining whether a person is guilty or not, necessarily implies a degree of uncertainty in the institution of the proceedings. In 19 Am. & Eng. Enc. Law (2d Ed.), p. 665, the author of the subject states that some cases hold that acquittal is not alone prima facie or per se sufficient evidence of want of probable cause, and expresses the opinion that the better doctrine is that it is (alone) no evidence whatever of the want of probable cause. * * * We think it can safely be said that the weight of authority denies the rule that discharge by a magistrate upon request of the prosecuting attorney is prima facie evidence of want of probable cause. * * * We feel warranted in saying that the discharge of the defendant in this case has not in itself any tendency to show a want of probable cause.”

We think that the doctrine of this case should be adhered to.

In the instant case it will be borne in mind that on the Beach complaint the prosecution was dismissed upon the request of the prosecuting attorney. Notwithstanding the very full instruction given to the jury in the charge in reference to what constituted probable cause, we are constrained to hold that the error of the trial judge in the instance pointed out was prejudicial error and was not cured by the remainder of the charge, and that it is our duty to reverse the case for that reason.

We do not think the court erred in submitting the case to the jury as to all of the defendants. We think it was a fair question for the jury whether the witness Schmidtill was acting solely for the insurance company or whether he was acting also as supervising agent of the defendant company. Nor can we say that the action of Mr. Tatro, the general agent, in sending the witness from Chicago and furnishing the documents and information from the general office was wholly in the interest of the insurance company. He had plenary power in the case. That he had such power is not denied. Zart v. Sewing Machine Co., 162 Mich. 387 (127 N. W. 272).

We are not prepared to say that the court erred upon that portion of its charge relating to the measure of damages or that there was any reversible error other than has been pointed out.

For the error indicated, the judgment of the circuit court is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    RICE v. KALAMAZOO CIRCUIT JUDGE.
    Process — Affidavits—Capias ad Respondendum — Knowledge of Affiant — Motion to Quash.
    On motion to quash a writ of capias ad respondendum, issued on plaintiffs’ affidavit that they were induced to take defendant's note for a balance due, in an exchange of property, by false' representations of defendant, who stated that he owned several houses- and lots, and that a surety on the note owned certain property; that affiants had ascertained that defendant did not own the houses as represented, and the surety did not possess the prop- - erty stated, the writ should have been quashed, for the reason that affiants could not have personal knowledge as to the ownership of the property, and the affidavit was insufficient.
    Mandamus by Eugene W. Rice against Frank E, Knappen, Kalamazoo circuit judge, to compel respondent to quash a writ of capias ad respondendum.

    Submitted May 6, 1913.
    (Calendar No. 25,572.)
    Writ granted July 9, 1913.

      Titus & Titus, for relator.

      Fred A. Mills (Frank F. Ford, of counsel), for respondent.
   Ostrander, J.

A motion to quash a writ of capias ad respondendum, upon which relator had been arrested, was overruled, and relator asks for the writ of mandamus to compel the. granting of the motion. The only question presented is whether the affidavit attached to the writ warranted the indorsement of an order to hold to bail.

The affidavit advises the court that in a trade of property, real and personal, owned by the plaintiffs, for land owned by relator, a difference of $300 was agreed to be paid by relator. 'For this difference relator induced plaintiffs to take his note, with a signer. The original bargain is not repudiated. The note has not been paid, and it is the claim of the plaintiffs that they were induced to accept the note and to complete the trade, which had been arranged by fraudulent representations of relator respecting his own financial responsibility and that of the person who signed the note with him. It is claimed, also, that the arrangement was that this note was to be signed by relator’s wife, and was not, and the fact that she had not signed it was discovered after the note had been accepted and the papers exchanged. In the affidavit for the writ it is stated that deponents finally agreed to accept a note for $300 if defendant (relator) “would have his wife sign it and also get a good, responsible signer besides.” The representations of financial responsibility which it is alleged were relied upon are, as to the surety, that he owned three or four houses and lots that he rented, besides the one he lived in, and owned a one-half interest in a brickyard in the north part of the city of Kalamazoo, and as to the financial condition of relator they were that he owned in his own name eight houses and lots that he rented, two of which were on Gull street, and that he was financially responsible and perfectly good for the amount of said note, and that the same would be paid when the said note became due. As to the representations alleged to have been made by relator concerning his own responsibility, affiants state that relator after the note became due told them he owned nothing, but would procure for them, in exchange for the note and some other property, and convey to them, a small piece of land and house, and if the proposition was not accepted, he would go into bankruptcy, that they have ascertained that relator did not own eight dwelling houses and lots that he rented as he represented he did, and that his representations in that regard were wholly untrue. Affiants say further they have looked up the financial standing of the said surety and have ascertained that at the time he signed the note he did not own three or four houses besides the one he lived in, and did not own a one-half interest in a brickyard in the north part of the city of Kalamazoo, and have ascertained that he does not own any houses and lots, and did not at the time the note was given, and never owned an interest in said brickyard. Affiants state, as of their own knowledge, that the surety was living in a rented house when the note was executed and when it was delivered to affiants.

The affidavit is criticised because it lacks necessary precision of statement, and because material statements therein are apparently made upon information and belief. Affiants have, they say, ascertained that the maker of the note and his surety did not own property as represented. How have they ascertained it? We think it is apparent that they would not be permitted to testify that the debtor, or his surety, did not own the property, unless the affiants themselves owned it. If affiants owned it, then, of course, the alleged representations were not relied upon. The maker of the note admitted that he had nothing, but the alleged admission does not refer to the time when the note was made and delivered. Affiants would know what representations were made to them. It is not apparent that they would now have personal knowledge that they were false. The point is ruled by Gardiner v. Wayne Circuit Judge, 155 Mich. 414 (119 N. W. 432), in which case it was said:

“The statement that affiant had learned that Gardiner was not the owner of the land in fee simple is not a statement of personal knowledge. It was incumbent upon affiant to show the source of his information, and to attach the affidavit of the person who had the requisite knowledge. The affidavit does not state that he has made an examination of the record, or that Gardiner admitted that he had not the title. * *

The writ will issue.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, and Bird, JJ., concurred. Kuhn, J., did not sit.


author: Steere, C. J.

text:
    PALMER-STEVENSON CONSTRUCTION CO. v. MASON CIRCUIT JUDGE.
    1. Notice — Practice—Service by Mail — Court Rules — Notice of Trial.
    The right to serve notice of trial or other papers, by mail, under Circuit Court Rule 28e, on an attorney living in the same town, is not dependent on any contingency such as the attempt to first obtain service by other customary methods, and a party may resort to service by mail in the first instance, although the effect may be to cut short the time specified by rule or statute.
    2. Mandamus — Useless Orders — Discretionary Nature of Remedy.
    Mandamus, being a discretionary writ, will not issue to compel a circuit court to restore a case to the calendar, from which it was stricken, and proceed with the trial, after the term has passed.
    Mandamus by the Palmer-Stevenson Construction Company against Charles A. Withey, Mason circuit judge, to require respondent to vacate an order striking a cause from the calendar and to proceed with the trial.
    Submitted May 28, 1913.
    (Calendar No. 25,671.)
    Writ denied July 9, 1913.

      A. A. Keiser, for relator.
   Steere, C. J.

The object of this proceeding is to obtain a construction of subdivision “e” of Circuit Court Rule 28, relative to service of papers by mail.

The material and undisputed facts which present the question are, briefly, as follows: An action was pending and at issue in the circuit court of Mason county between A. E. Cartier Sons Company, plaintiff, and Palmer-Stevenson Construction Company, defendant; A. A. Keiser being attorney of record for defendant and Robert J. Quail attorney of record for plaintiff. The residence and business address of each was Ludington, Mich. Plaintiff had noticed the case for trial at the January, 1913, term of said court, but defendant had not done so. Plaintiff countermanded its notice before the commencement of the term, and the case was, on motion, stricken from the calendar. The first day of the succeeding term of court in Mason county was April 1, 1913. Each noticed the case for that term. Plaintiff’s notice was countermanded. Defendant’s notice was served by mail. Proof of this service was duly filed in the case, and shows that a notice, the form of which is not questioned, was served on the 15th day of March, 1913, upon the attorney of record for plaintiff—

“By depositing the same in the post office in the city of Ludington in an envelope securely sealed and plainly addressed to said Robert J. Quail, at Ludington, Mich., and that the postage thereon was fully prepaid to the place of destination.”

The case was duly placed on the calendar of the April term of said court, and upon the first day of said term plaintiff’s attorney moved the court to strike the cause from the calendar for the reason that no legal notice of trial had been served upon him, filing an affidavit stating that he first received the notice in question by taking it from his box in the post office on the morning of March 18, 1913; also stating that his office was open with a clerk in charge from 9 a. m. until 5 p. m. March 15th and 17th, and that he was personally present in his office a large portion of March 15th until 6 p. m. The court, after hearing arguments of counsel for the respective parties, struck the case from the calendar, for the reason that the same had not been properly noticed for trial.

In answer to an alternative writ of mandamus issued from this court, respondent states that the case was stricken from the calendar because in the opinion of the court service under subdivision “e” of Rule 28 is permissible only in case personal service is not feasible; that an effort should be made to make personal service before resorting to the other modes specified in the rule; that no additional time is provided for in case of service by mail, and, if the con-, struction contended for by relator is adopted, it legalizes, in effect, shortening the time of service of notice one day, which can always be accomplished by mailing the notice after business hours of the last day. Rule 28 provides:

“When the attorney for the adverse party resides or has his office in the same city, village or township as the attorney making the service, papers shall be served as follows:

“(a) By delivering the same to the attorney personally.
“(b) Or, by leaving the same in his office with his clerk, or with a person having charge thereof.
“(e) Or, when no person is to be found in his office, by leaving the same, between the hours of six in the morning and nine in the evening, in some suitable and conspicuous place in such office.
“(d) Or, if the office be not open, so as to admit of service therein, then by leaving the same at the residence of the attorney with some person of suitable age and discretion.
“(e) Or, by depositing the same in the post office of the city, village or township, inclosed in an envelope, plainly addressed to such attorney, with postage fully prepaid.”

This rule is a substitute for former Circuit Court Rule 7, which made no provision for service by mail when the attorneys resided or had their place of business in the same city, village, or township. It is a rule of general application for service of papers between members of the bar of the same locality in matters wherein they represent opposing parties in the circuit court. The saving of time, convenience, and general desirability of service by mail was recognized by adding subdivision “e” when the rules were revised in 1899, and to the same purpose it was required by other rules then adopted that counsel in beginning suit or giving notice of appearance should furnish their business address. Attorneys who preferred for any reason to follow the former methods were authorized to do so. They could search out opposing counsel, wherever he might be, and deliver the paper to him personally, or, at their option, go to his office, and leave it with some one in charge. Failing in finding any one present, and only on condition no one was present, the paper could be left in the office in a suitable place during business hours, if the office was open. If it was closed, then, and only then, if the residence of the attorney was known or could be found, by going there and leaving it with some person regarded as of suitable age and discretion.

No such conditions precedent are imposed on serving by mail. There is nothing in subdivision “e,” or the rule in its entirety, to suggest that previously provided methods must be exhausted before mailing is resorted to. With improved and perfected mail facilities, attended by prompt distribution or prompt delivery, service by mail can now well be recognized as reasonably safe and satisfactory, when the message is plainly addressed and postage prepaid. The use of the disjunctive conjunction “or” in that connection naturally indicates an alternative, implying discretion, giving a choice between delivery to the attorney personally, delivery to a clerk or person in charge of his office, and mailing to his address with the postage prepaid; those three authorized methods of service being specified in the rule without any restrictive contingencies. To make service by mail contingent upon inability to make service by the preceding specified methods would nullify subdivision “e,” for the possibility of service by those methods exists, and resort to them cannot be held to have failed, until and when the time within which service may be made has expired. Service by mail is usually more convenient and expeditious, is reasonably safe and certain, simplifies and facilitates the transaction of legal business between attorneys, and it does no violence to the language of the rule to interpret it as authorizing that method of service at will. We think such is the manifest purpose and intent of said subdivision “e.” It is true no additional time for service by mail is required under this rule, as in cases where the attorneys reside, or have their office, at some other city, village, or township, and it may be possible, as pointed out, to take advantage of this to curtail, in effect, the specified time of service by part or all of a day, but this, if a defect, may and should be remedied by an amendment of the rule, rather than by a forced or restrictive construction which tends to defeat its usefulness.

At the time of respondent’s return to the alternative writ issued herein, and final submission of the proceedings in this court, the circuit court term, at which the order striking the case from the calendar was made, had passed. To now make the alternative order peremptory would be ineffectual and a vain thing. Respondent’s return was in good faith, and, as we are advised, chiefly to obtain an authoritative construction of the rule in question. The proceeding legitimately raises that question, and we have accordingly considered and decided it. Mandamus is a discretionary writ and will not issue in all cases, even where a prima facie right to it may be shown.

At this time, and for the reason stated, the alternative writ will not be made peremptory. No costs are allowed to either party.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Brooke, J.

text:
    AUSTIN v. HAYDEN.
    1. Evidence — Books oe' Account — Accounting—Tort-Feasors.
    Books of account of an insolvent brokerage firm, showing the balances due to certain customers or creditors, were admissible in evidence, on an accounting, in which a correspondent firm is held to have been a joint tort-feasor with the insolvent in dealing with or converting securities entrusted by customers to the insolvent brokers.
    2. Insolvency — Marshaling Assets — Brokers—Receivers.
    In determining priorities among claimants from assets of an insolvent firm of brokers, defendant brokerage firm, which was held to have notice of the equities of claimants after a date fixed by the decree of the court, was correctly required to account to customers of the insolvent who had cash balances to their credit on the day stated: their accounts were not blended so as to deprive them of this right by purchasing or dealing in securities subsequent to that date.
    3. Same.
    Also, claimants, who on the date in question owned securities on margins in possession of the insolvent and were entitled to a considerable credit balance at that time, although they thereafter continued trading, were rightly allowed to trace their stock into the hands of the defendant correspondent as preferred claims.
    Appeal from Wayne; Mandell, 3.

    Submitted June 3, 1913.
    (Docket No. 1.)
    Decided July 9, 1913.
    Bill by Fred G.. Austin as receiver of Cameron Currie & Company, a copartnership, against Charles Hayden and others, copartners as Hayen, Stone & Company, for accounting and other equitable relief. Numerous intervening claimants presented claims for adjudication. Upon an appeal previously taken, a restatement of account was ordered by this court. From the final order entered, defendants Hayden, Stone & Company appeal.
    Affirmed.

      Angell, Boynton, McMillan, Bodman & Turner, for complainant.

      Alex J. Groesbeck and Guy A. Miller, for intervener Miller.

      Miller, Smith, Paddock & Perry, for intervener Hager.

      Stevenson, Carpenter & Butzel (Henry W. Beal, of counsel), for defendants.
   Brooke, J.

This case is now in this court a second time upon appeal. The opinion rendered in the earlier appeal will be found reported in 171 Mich. 38 (137 N. W. 317). The decree entered in this court in accordance with that opinion directed a recasting of the account by the court below and the making of a new classification. The decree provides:

“In such reclassification ‘all claims arising on and after June 23, 1908, out of transactions, whether on margins or otherwise, in which defendants participated and ownership in property is satisfactorily traced shall constitute a new class to be collected in full from defendants/ and such claims when collected shall, in the final distribution of the fund in complainant’s hands, be paid in full, less their proper proportion of the expenses of the receiver. Where identification of ownership cannot be determined by the court, claimants shall not participate in said new class, though shown to have dealt with Cameron Currie & Co. on and after said June 23d; but where ownership is satisfactorily traced by an intervener in dealings participated in by Hayden, Stone & Co. after that date their liability shall be determined irrespective of whether or not they yet held the securities so traced to them, on July 18, 1908. No distinctive benefit shall accrue to any intervener from the blending of his accounts in transactions with Currie & Co. before and after said June 23d, but his claim or claims shall be individually determined as in case of separate person or persons, in one or more classifications, according to the facts found and as his relative right of participation may appear. _ In such readjustment, defendants shall not be required to account twice for any stocks or securities traced as belonging to individual owners, and in balancing defendants’ liability and lien in relation to the total sum paid and to be paid complainant by defendants from the proceeds of sales of all stocks and securities heretofore held by them and disposed of by order of the court, due allowance shall be made for any stocks or securities, or the proceeds thereof, so traced, which are shown to have already come into the possession of complainant in such manner that further decree for their value would impose upon defendants double payment therefor.”

Obeying this mandate, the Wayne circuit court recast the account, with the result that defendants’ liability was increased by the sum of $142,649.56. Defendants have again appealed, claiming that, through an erroneous application of the language of the decree to the facts relating to certain claims of interveners, the above-mentioned sum is too large by $18,969.46. Defendants have classified the questioned items under three heads “A,” “B,” and “C,” and we will follow this classification in discussing the matters in dispute.

Under class A there are four accounts, as follows:

A. B. Anthony .............................. $280 63
A. A. Bleasby .............................. 733 28
Harry Myers .............................. 67 08
John M. Cook .............................. 1,081 71
Total.................................. $2,162 70

As we understand defendants’ contention with relation to these items, they object to their allowance upon the sole ground that the interveners named did not appear in court personally and give evidence as to their claims. The accounts were proven by the evidence of Mr. McPherson, the expert accountant who appears to have made a very thorough and painstaking examination of the books of Currie & Co. at the instance of the trustee. Under our former holding that on and after June 23d defendants were joint tort-feasors with Currie & Co., the books of Currie & Co. were competent evidence against defendants. Aside from this, defendants do not claim nor intimate that the items questioned are in any particular incorrect. We think they were properly allowed.

In class B there are six items, as follows:

Moses Blumrosen .......................... $2,806 31
L. A. Clapp .............•................... 536 43
Arthur Deyoe .............................. 411 99
William A. Peters .......................... 268 33
Julius Hager .............................. 3,823 35
S. E. Smith ................................ 4,682 32
Total...................................$12,528 73

With reference to these six interveners it is the claim of defendants that their right to be included in the classification AA and receive from defendants compensation in full is based on a blending of each of their several accounts before and after June 23d, which is forbidden by the decree.

An examination of the accounts of the first four above-named interveners shows that in each case the intervener had on June 23d a cash credit balance upon the books of Currie & Co. with no stock transactions then outstanding or incomplete. Thereafter and before July 18th, in each instance this balance was in whole or in part converted by the intervener into certain stock which has been satisfactorily traced to defendants under the terms of the decree. Defendants contend that this transaction constituted a blending of accounts within the meaning of the decree because the purchases were made on the strength of credit balances existing on or prior to June 23d.

We do not agree with this contention. The record shows that Currie & Co. paid money demands freely up to the date of their suspension. It is fair to presume, therefore, that had these interveners demanded their money they would have received it. They would then have handed it back to Currie & Co.* with instructions to purchase. Had they followed this course, defendants would not claim that they were not entitled to the classification they have received under the new decree. The fact that they did not go through this useless proceeding should not, in our opinion, be permitted to affect their rights.

As to the interveners Hager and Smith: These two accounts are different in form, though perhaps not in principle. On June 23d each of these men had an account with Currie & Co. which had been running for some time. They were each carrying a considerable number of shares of stock upon margin. Currie & Co. held the stock as security for the unpaid balance. Had they closed their accounts with Currie & Co. on June 23d, each would have had a cash credit balance of several thousand dollars. Instead of doing this, they continued trading, with the result that on July 18th defendants had in their possession certain stocks which the interveners could clearly trace and in which they held a considerable margin interest. We have concluded, though with some hesitation, that the lower court was correct in including these two accounts in the preferential class AA, and that the transactions out of which this result flows do not constitute such a blending of accounts as is forbidden by the terms of the decree.

In class C there are three items:

Lydia Carleton ............................ $247 18
Carrie Hudnut ............................. 423 65
M. P. Scott ................................ 3,749 21

These three interveners all dealt with Currie & Co. after June 23d, and, so far as appears by the record, had not dealt with them before that date. They therefore are clearly entitled, under the terms of our former decree, to the classification given them.

Defendants do not controvert this position, but urge that in accounting directly to these three interveners they are compelled to account twice for the same stock, which is in terms forbidden by the decree of this court.

It is clear that in paying directly to these interveners through the receiver defendants account once for the stock, and thus discharge their entire liability touching the same. In the general accounting between the defendants and the receiver, therefore, the transactions out of which these three balances grow must be entirely eliminated and the account stated as though they had not taken place.

With reference to the claim of intervener Guy A. Miller, it appears that he was classified in AA for the sum of $4,891.57 upon the theory that the 100 shares of stock purchased by him were fully paid for. As a matter of fact he paid thereon $500 in cash and gave a check to Currie & Co. for the balance. This check was deposited with the People’s State Bank, and Currie & Co. had credit therefor. Miller refused to pay the check, and suit was brought thereon by the bank. Defendants ask that Miller’s claim be reduced to $613.54, and that they be permitted to undertake his defense in the suit upon the check and save him harmless. To this course Miller now assents. The decree will be so modified.

Except in the particulars pointed out, the decree of the court below stands affirmed.

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


author: McAlvay, J.

text:
    PEOPLE v. DANENBERG.
    1. Criminal Law — Time—Evidence.
    The time of committing the alleged offense of taking property from a boat in the daytime was not a question to be determined by the court, under evidence that tended to support the information.
    2. Same — Trial—Cross-Examination—Extent.
    It was not erroneous to permit the prosecution to question respondent, who took the stand in his own behalf, concerning his character, associations, and offenses committed subsequent to the crime alleged.
    3. Appeal and Error — Saving . Questions for Review — Exceptions.
    In order to review alleged objectionable argument of the prosecuting attorney, in a criminal case, it is essential to make objection and obtain a ruling of the court.
    Error to Saginaw; Gage, J.
    Submitted June 13, 1913.
    (Docket No. 125.)
    Decided July 9, 1913.
    Joseph. Danenberg was convicted of larceny from a boat in the daytime.
    Affirmed.

      James P. Devereaux, Prosecuting Attorney, and B. J. Vincent, Assistant Prosecuting Attorney, for the people.

      Gallup, Rogner & Gallup, for respondent.
   McAlvay, J.

Respondent was convicted and sentenced in the circuit court for the county of Saginaw upon an information under section 11550, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14596), charging him with larceny of a spark coil from a boat in the daytime.

The record shows the following material facts: The boat containing the spark coil which is claimed to have been stolen was, on a certain Saturday afternoon in April, 1912, left by its owner in a boathouse on the Saginaw river in the city of Saginaw, which boathouse was securely locked and fastened, between the hours of 4 and 4:30 o’clock, while it was yet daylight. Upon the following morning the owner went to this boathouse between 8 and 8:30 and found the door on the land side broken open and the doors on the end toward the river, which had been securely fastened by a wooden bar, unfastened and wide open. The engine in the boat had been partially dismantled by the use of tools which were kept by the owner in a tool chest in the boathouse, and the spark coil, which was securely fastened by screws to the side of the boat, had been disconnected and taken away. Afterward this spark coil was found by the owner under a canvas in the boat of respondent in o'r near the same slip, and on-the other side of the property from the boathouse from which it was stolen. The owner called a policeman at once, and while they were .taking the property from respondent’s boat he appeared and after some conversation in regard to the spark coil he was arrested and taken to the police station where complaint was made in the case and a warrant was issued against him. The trial of respondent followed with the result already stated.

Upon a writ of error he brings the case to this court for review upon errors assigned, which he insists require a reversal. The errors assigned may be grouped and discussed under three heads:

(1) As to the time of the commission of the offense.

(2) As to the cross-examination of the defendant.

(3) As to the argument of prosecutor.

1. The first contention of respondent is that there was no evidence in the case to support the charge in the information that the spark coil was taken during the daytime. It will not be necessary to give an abstract of the testimony bearing upon this proposition. The question was submitted to the jury under a careful charge, and the jury found against the contention of respondent. It was a question of fact, and not one to be determined by the trial court as a question of law. The location of this boathouse appears from the record to have been some distance from houses which were occupied and all its doors were found open. This and other evidence in the record support the finding of the jury that the breaking in and stealing occurred during the period legally known as daytime. People v. Taylor, 93 Mich. 638 (53 N. W. 777); People v. Tracy, 121 Mich. 318 (80 N. W. 21); People v. Dupree, 98 Mich. 26 (56 N. W. 1046).

2. The respondent was sworn as a witness in his own behalf and upon cross-examination was questioned relative to his associations and character and also as to offenses committed after the offense charged. The rule that one who offers himself as a witness in his own behalf in a criminal case may, upon these matters, be cross-examined with the same latitude as other witnesses, within the discretion of the court, has been declared by this court. People v. Bryan, 170 Mich. 683 (136 N. W. 1120), and cases cited.

3. We have examined the assignments of error relative to the argument of the prosecutor, and find that the record does not show that the attention of the court was called to the objectionable argument, or that an opportunity was given the court to pass upon the objections made. We have repeatedly held in recent decisions that this must appear from the record. Therefore, in the instant case, the question is not before the court.

The conviction and judgment are affirmed.

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


text:
    KINNANE v. AUDITOR GENERAL.
    Mandamus — Industrial Accident Board — Statutes—Appropriations — Expenses.
    The appropriation of $25,000 for an industrial accident board, by Act No. 10, Extra Session 1912, was intended as a limitation upon the entire expenses of the department, including rent, stationery, printing, and salaries, and the auditor general will not be compelled, by mandamus, to charge to the general fund of the State expenses of equipment, rent, etc.: it was the clear purpose of the legislature to limit the expenditures of the board for legal purposes to the sum appropriated. Const, art. 10, §16.
    Mandamus by John E. Kinnane, James A. Kennedy, and Ora E. Reaves, members of the industrial accident board, to compel Oramel B. Fuller, auditor general, to allow and pay expenses of said board out of the general fund of the State, and to cease charging such expenses to the appropriation of $25,000 made by the legislature of 1912.
    Submitted June 18, 1913.
    (Calendar No. 25,749.)
    Writ denied July 9, 1913.

      John E. Kinnane, in pro. per., for relators.

      Grant Fellows, Attorney General, for respondent.
   Brooke, J.

This is an application by relators for a writ of mandamus against respondent—

“Directing and commanding him to remove the limitation of $25,000 aforesaid to the expenses and cost of maintenance and operation of the industrial accident department of the State of Michigan, and to charge such expenses to the general fund of the State; or, in case the court should find that such limitation was proper, commanding said auditor general to charge to the general fund of the State the_ cost and expense for the rent of the offices of said industrial accident board, the furnishing and equipping of same, and the supplies therefor, and to deduct said last mentioned items from the amounts now charged against said $25,000.”

The title of the act (Act No. 10, Pub. Acts 1912, Extra Session) under which the board, of which relators are members, was created, is as follows:

“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.”

Section 7, pt. 6, of the act provides:

“To carry out the provisions of this act there is hereby appropriated for the expenses of the industrial accident board for the fiscal year ending June thirtieth, nineteen hundred thirteen and annually thereafter, the sum of twenty-five thousand dollars. The auditor general shall add to and incorporate into the State tax the sum of twenty-five thousand dollars annually, which said sum shall be included in the State taxes apportioned by the auditor general on all taxable property of the State, to be levied, assessed and collected as other State taxes, and when so assessed and collected to be paid into the general fund to reimburse said fund for the appropriation made by this act.”

The act went into effect on September 1, 1912, so that relators- had under its terms the sum of $25,000 for the first 10 months of operation. The petition avers that early in September, 1912, it became apparent to relators that an expenditure beyond that sum would be necessary before July 1, 1913. There being no available offices in the capítol, rooms were rented in a nearby building. The lease was made by the board of State auditors, and the rooms were furnished upon requisition signed by relators or their secretary. The vouchers for these expenditures were duly audited and paid, but were by the respondent charged against the appropriation of $25,000 credited to relators as a board. It was early contended by relators that, in charging against the fund the cost of rent and furniture, respondent had not properly interpreted the law. Being dissatisfied, with respondent’s interpretation, relators sought, and on October 9, 1912, obtained, an opinion from the attorney general upon the question. That official held that all expenses of the board, including offices, office fixtures, stationery, and printing, were properly chargeable to the appropriation of $25,000.

The legislature met in regular session on January 1, 1913, and though the relators secured the passage of an amendment to the act whereby the annual appropriation was increased from $25,000 to $40,000, commencing July 1, 1913, no attempt seems to have been made to secure a deficiency appropriation to cover the first 10 months of operation, though, as set out in paragraph 6 of relators’ petition, it was in September, 1912, known to them that “it would not be possible to carry on the work of the board within the limits of $25,000 a year.”

Relators base their right to relief upon the language of section 2, pt. 3, of the act which follows:

“The board shall be provided with an office in the capítol, or in some other suitable building in the city of Lansing, in which its records shall be kept, and it shall also be provided with necessary office furniture, stationery and other supplies. It shall provide itself with a seal for the authentication of its orders, awards and proceedings, upon which shall be inscribed the words ‘Industrial Accident Board — Michigan—Seal.’ It shall employ such assistants and clerical help as it may deem necessary and fix the compensation of all persons so employed: Provided, that the average compensation paid to such employees shall not exceed one thousand dollars per annum for each person employed, and all such clerical assistants shall be subject to existing laws regulating the grading and compensation of department clerks. The members of the board and its assistants shall be entitled to receive from the State their actual and necessary expenses while traveling on the business of the board; but such expenses shall be sworn to by the person who incurred the same, and be approved by the chairman of the board before payment is made.
“All such salaries and expenses when audited and allowed by the board of State auditors, shall be paid by the State treasurer out of the general fund, upon warrant of the auditor general.”

It is their contention that by the use of the foregoing language the legislature intended to make and did make an appropriation covering the cost of rent, necessary office furniture, stationery, and other supplies, said appropriation being outside of and in addition to the $25,000 provided for in section 7, pt. 6, quoted supra. Such a construction is, in our opinion, clearly unwarranted. Relators’ petition shows that the rent for their offices amounts to $1,200 per annum, that they have expended for furniture some $3,000, and that the cost of stationery and printing is about $3,500 per annum. It is scarcely conceivable that the legislature intended to add to the sum specifically provided this additional amount, an amount more than 25 per cent, in excess of the appropriation itself.

The Constitution (article 10, § 16) provides:

“No money shall be paid out of the State treasury except in pursuance of appropriations made by law.”

It is undoubtedly true as stated by relators that no particular form of language is necessary to constitute an appropriation. The cases cited to this proposition by relators are doubtless good law, but they have no application to the case under consideration. Here the legislature has not spoken by indirection, but has very specifically defined the amount appropriated and the purposes to which the appropriation is to be devoted. The amount is $25,000 and the purpose is “to carry out the provisions of this act” If any doubt were possible, it is at once dispelled by reading the closing sentence of section 7, pt. 6:

“The auditor general shall add to and incorporate into the State tax the sum of twenty-five thousand dollars annually, which said sum shall be included in the State taxes apportioned by the auditor general on all taxable property of the State, to be levied, assessed and collected as other State taxes, and when so assessed and collected to be paid into the general fund to reimburse said fund for the appropriation made by this act.”

The act provides that all payments shall be made from the general fund, and that fund is to be reimbursed by the levy, collection, and payment into it of $25,000. To reimburse it for what? “For the appropriation made by this act.” If relators’ contention is sound, the tax levied and paid into the fund would only partially reimburse it. We think it entirely clear that the legislature sought to and by appropriate language did limit the expenditure which relators, as a board, could make for any legal purpose to the sum of $25,000.

The contention of relators that the sum appropriated was for “expenses” as distinguished from “salaries” is wholly untenable. While no particular words are essential in making an appropriation, the will of the law-makng body must be clear and apparent. Nothing should be taken by intendment when, as in the case at bar, the legislature has in apt terms covered the question.

The writ is denied.

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


text:
    KEEL v. WILSON FRUIT JUICE CO.
    1. Evidence — Officer of Corporation — Cross-Examination — Books of Account.
    In assumpsit for a balance of salary due, it was proper cross-examination to inquire of the president of defendant corporation concerning the correctness of defendant’s books, from which the witness had taken a statement used by him on the stand: plaintiff was entitled to a full cross-examination as to material matters. No error was committed in refusing to strike from the evidence the statement so used by the witness and his testimony relative to the balance shown by the books of defendant.
    2. Same — Books—Prejudicial Error.
    No prejudicial error was committed by introducing in evidence plaintiff’s book showing amounts received by him, admitted by defendant’s books to be correct, with the exception that a larger amount was credited by plaintiff to defendant than its own books disclosed; any possible error in the reception of this evidence favored rather than prejudiced defendant.
    3. Same — New Trial.

      Held, that the evidence was sufficient to sustain the verdict in plaintiff’s favor.
    Error to Van Buren; Des Voignes, J.
    Submitted June 11, 1913.
    (Docket No. 66.)
    Decided July 9, 1913.
    Assumpsit by Bert Keel against the Wilson Fruit Juice Company for services performed. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Boudeman, Adams & Weston, for appellant.

      Glenn E. Warner, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant to recover a balance claimed by him to be due for wages earned while in the employment of defendant at its plant at Lawton, Van Burén county, under a contract and agreement between the parties at a certain stated salary. He was employed as an experienced jelly and vinegar maker, and began work February 1, 1910. He recovered judgment on the verdict of the jury for $260.41, the amount claimed by him. Defendant upon a writ of error brings the case here for review.

The facts of the case are as follows: Plaintiff first entered this employment and worked under the superintendence of defendant’s manager from February 1, 1910, until January 31, 1911, upon a proposition submitted to him in writing by defendant’s president and accepted by plaintiff, at $125 per month, and continued under this contract until June 1, 1911, when another agreement was made between the parties, whereby plaintiff continued to work until February 20, 1912, at $15 per week. The foregoing facts are not in dispute.

Defendant, under its notice with the plea of the general issue, and upon the trial, claimed recoupment. On account of the careless, unskillful, and improper manner in which plaintiff performed his work in the manufacture of vinegar, it sustained damage on 67 barrels of vinegar at 18 cents a gallon and 12 cases of vinegar at 50 cents a gallon, making altogether $1,510.46. Upon this claim of recoupment the dispute in this case arose; Defendant upon the trial offered evidence claimed in support of its contention. The contention of plaintiff was that this vinegar for which defendant seeks damages was manufactured at this plant under and by the express orders, both written and oral, of the defendant through its president, out of a large quantity of old, stale, spoiled grape juice and other materials, which for a long time before plaintiff entered the employ of defendant had accumulated at said plant, and which was stored in numerous barrels and casks' in its cellars; that it was impossible to manufacture standard vinegar out of such materials, and that during the whole time such manufacture was under the control of the manager at Law-ton and the president and other officers of defendant in Chicago, and that the vinegar made from this material was sent to Chicago for chemical tests by defendant’s chemists and was so tested; that during the whole time plaintiff worked for defendant no complaint or charge was made to him or to his knowledge that his work was not properly and satisfactorily performed.

The errors assigned and relied upon by appellant are in relation to the admission of evidence and the refusal of the court to grant a new trial.

While the president of the defendant company was being examined on the part of plaintiff, under the statute, he produced and used a statement taken for him from defendant company’s books in Chicago. This was objected to by defendant, and a motion was made to strike out his entire testimony in regard to such balance, for the reason that it did not correspond with plaintiff’s bill of particulars. The court denied this motion, and error is assigned upon such denial. There is no difference between the accounts of these parties as to the balance which remained unpaid to plaintiff for his services, except that defendant’s statement was $20 greater than plaintiff claimed, which was accounted for by the fact that plaintiff had received several items which did not appear upon the books at the Chicago office. The plaintiff was entitled to cross-examine this witness at length as to all matters material to the issue. The witness testified that he had no reason to doubt the correctness of the books, and this statement, which was introduced in evidence by plaintiff, was material as showing an admission on the part of defendant. The court properly denied the motion.

The next error assigned relates to the testimony of plaintiff, who was examined relative to a book in which he had made entries, and who stated it was in his handwriting and a correct statement of the moneys received from defendant. Page 48 of this book was offered in evidence, showing this account. It was objected to as not properly identified as a book of account. Error is assigned upon its reception in evidence. It was of no prejudice to defendant, for the reason that all of these payments had been admitted, as appears from the statement of this account taken from defendant’s books already in evidence. It was corroboratory of what defendant admitted.

The fourth, fifth, and sixth assignments of error relate to the testimony of plaintiff in regard to his account as kept in his book. This examination was objected to on the same ground; that the book was not competent evidence. In this testimony and in this memorandum of account no claim was made by plaintiff for any credit which had not already appeared by the testimony furnished by defendant, and plaintiff’s account credited the defendant with $20 not charged against him. As already stated, this was not prejudicial to defendant, but on the contrary was in its favor.

Defendant’s motion for a new trial was based on the ground that the verdict was against the weight of the evidence. The record is a brief one, and our examination of it satisfies us that there is abundant evidence to support the verdict, and that the court was not in error in denying the motion. The case was submitted to the jury under a charge of which no complaint whatever is made by defendant, and the verdict of the jury, as already stated, was justified by the evidence.

We find no prejudicial error in the case.

The judgment of the circuit'court is affirmed.

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


author: Moore, J.

text:
    WOJNOWSKI v. COMMON COUNCIL OF CITY OF DETROIT.
    Intoxicating Liquors — Mandamus—Approval of License.
    Upon relator’s petition for mandamus to compel the Detroit common council to grant his application for a retail liquor license, without any showing as to the number of licenses which might be lawfully granted, or which had been issued, being also silent as to any vacancy in the number granted, the prayer of the petition, that asked for a peremptory writ without giving respondents a hearing, was properly denied.
    Certiorari to Wayne; Van Zile, J.
    Submitted June 10, 1913.
    (Calendar No. 25,731.)
    Writ denied July 9, 1913.
    Mandamus by Czeslaw Wojnowski against the common council of the city of Detroit to require respondents to approve an application for a retail liquor license. The circuit court denied the petition: relator brings certiorari.
    Affirmed.

      Proctor K. Owens, for relator.

      William E. Tarsney (Richard I. Lawson, of counsel), for respondents.
   Moore, J.

The relator filed his petition in the circuit court for the county of Wayne, praying a peremptory writ of mandamus to compel the respondents to reconvene and approve an application for a retail liquor license filed prior to the 15th day of April, A. D. 1913. The circuit court to whom the petition was presented declined to issue the writ. The relator petitioned this court for a writ of certiorari for the purpose of reviewing the action of the circuit court.

The circuit judge has filed his return, in which appears the following:

“(1) The petition of the relator herein was insufficient in my judgment to justify me in issuing a peremptory writ of mandamus as therein prayed, because said petition did not set up or allege the number of licenses that the common council of the city of Detroit were permitted to grant to applicants under Act No. 291 of the Public Acts of 1909, as amended.
“(2) Because said petition did not show that the maximum number of licenses which might be granted were not granted in accordance with Act No. 291 of the Public Acts of 1909, as amended.”
“(4) Because said petition of relator does not set up or allege that there is a vacancy in the maximum number of licenses that the common council is empowered to grant under Act No. 291 of the Public Acts of 1909, as amended.”
“(6) Because said relator’s petition, failing as it does to set forth or allege the matters specifically above enumerated, was not sufficient to confer jurisdiction upon the circuit court for the county of Wayne and to require it to issue the peremptory writ of mandamus as in the petition prayed. Therefore, in the exercise of my discretion, the application for a peremptory writ of mandamus was denied, inasmuch as the prayer of the petition required the court to issue a peremptory writ of mandamus without giving the respondents an opportunity to be heard.”

An examination of the petition shows these statements in the return are true.

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

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


text:
    PATOW v. VILLAGE OF OAKWOOD
    Municipal Corporations — Defective Streets — Negligence.
    A village is not liable for injuries caused plaintiff by driving across a filled trench, which had recently been opened to lay a water main, and which had been softened by a heavy rain, so that his vehicle sank down in crossing, being outside the 30-foot traveled roadbed and not at an intersection of a street, since reasonable safety for ordinary use is all that can be required of a municipal corporation in caring for the streets.

    Error to Wayne; Hally, J.
    Submitted June 16, 1913.
    (Docket No. 91.)
    Decided July 9, 1913.
    Case by William Patow against the village of Oak-wood and the board of water commissioners of the city of Detroit for personal injuries. Plaintiff discontinued as to the last named defendant. Judgment for defendant village of Oakwood on a directed verdict. Plaintiff brings error.
    Affirmed.

      Ignatius J. Salliotte, for appellant.

      Hearn, Sherman & Chapman, for appellee.

       The authorities on the general question of the liability of a municipal corporation for defects or obstructions in streets are discussed in an extensive note in 20 L. R. A. (N. S.) 513.

   Moore, J.

This is a personal injury case. It was voluntarily discontinued as against the board of water commissioners. From a directed verdict in favor of the other defendant, the case is brought here by writ of error.

The facts are not in dispute. The plaintiff is a market gardener about 50 years old. He had lived in Ecorse about 44 years. The village of Oakwood has about 1,000 people. The plaintiff was accustomed to going to the city of Detroit by way of a street in the village known as the Fort street boulevard. This was an unpaved street. On the 14th of August, 1911, he was returning from Detroit with a loaded wagon. We quote from the testimony of the plaintiff:

“I drove back home with this manure as far as Oak-wood and a shower caught me there. It looked bad and I thought I would drive in for shelter. It was about 2 o’clock in the afternoon. I drove under the covered scale of Rennie's coal yard. The roadbed there is about 33 feet in width.
“Q. Did you know that they had been laying water mains there?
“A. I seen that they laid water mains; that is, seen them digging the trench, but it was all filled up when I came along there, all smoothed over. There was no sign of there being danger there. Fort street boulevard runs east and west. The water main trench was located about 5 feet from the ditch. It was on the south side of the traveled highway.
“Q. Was the space that the trench occupied a part of the traveled highway?
“A. No, sir.
“Q. Question repeated.
“A. It was in the traveled highway. It was 5 feet from the ditch — the trench — in the highway, not the roadbed. The roadbed in that place is about 30 feet wide.”

It is shown that where he entered the coal yard cinders had been thrown into the trench to make it safe. The plaintiff testified:

“A. Yes. When I got up at this portion I kind of hurried up here and turned in something like that [illustrating] to go under the shed to get in out of the rain. It rained pretty hard. It poured a little while.
“Q. It was an extraordinarily heavy rain?
“A. Yes. I was in there from 25 to 30 minutes. The rain came down heavy. When the rain was over I drove on through the shed and around this way. I came right around the office, which was right in here.”

The plaintiff did not leave the coal yard the same way in which' he entered. He says it was not practicable for him to do so. He attempted to drive across the trench “a little kitty-cornered.” The hind feet of one of the horses sank into the trench, the team sprang forward, and as one, or perhaps both, of the front wheels dropped into the soft earth of the trench, the plaintiff was thrown from the spring seat on which he sat and was hurt.

We have, then, an unpaved street in a country village, with a roadway 30 or more feet wide, outside of which a water main had been recently laid. The earth had been returned by hand. Whether it had been tamped or not does not appear, but the trench had been filled so that it was rounded. This was followed by a heavy rain. The plaintiff saw the situation and attempted to cross the trench, not at a street intersection, with the result already indicated.

The language of McGrath, J., in Westfall v. Board of Water Com'rs, 93 Mich. 210 (53 N. W. 161), is applicable to this case. He said:

“A ridge near the traveled way can be no more dangerous than a ditch, or a barrier of the same height. * * * There are necessary uses to which highways are devoted other than travel. Water, gas, and other pipes are usually laid within the highway and between the curbs and ditches. * * * It is a matter of common knowledge that, in laying pipes in unpaved streets and highways, the filling is done just as it was done in this instance. The earth is rarely tramped down, except where the street is paved or the excavation crosses the street. To require it in every instance would add largely to the expense.
“Streets should be kept reasonably safe for ordinary uses, not absolutely safe against extraordinary contingencies. Some consideration must be had for the other necessary uses to which highways are devoted.”

See, also, O'Rourke v. City of Monroe, 98 Mich. 520 (57 N. W. 738).

Judgment is affirmed.

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