text:
    McCALL v. COWHEY.
    Evidence — Correspondence—Admissibility—Harmless Error.
    In an action for an advance payment of rent upon a lease which plaintiff canceled because certain repairs had not been completed and the premises ready for occupancy by the agreed date, the defense being an extension of time for 15 days in which to finish the work which plaintiff denied, the admission in evidence of a contract and letter between defendant and his grantor, offered for the purpose . of showing that defendant had another reason for not having the premises ready on time and discrediting his defense, and limited by the trial court to such purpose, although not very material to the issue, held, not reversible error.
    Error to Wayne; McDonald (John S.), J., presiding.
    Submitted June 15, 1920.
    (Docket No. 5.)
    Decided July 20, 1920.
    Assumpsit by Herbert H. McCall against Thomas F. Cowhey for breach of a contract of leasing. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Guy A. Miller, for appellant.

      Henry S. Slyfeld, for appellee.
   Bird, J.

Plaintiff secured from defendant, on March 23, 1917, a written lease of residence property known as 481 East Jefferson avenue, in the city of Detroit, for a period of three years from and after the first day of May, 1917, and made an advance payment on the rent of $705. The lease provided that defendant should put the premises in good order. Certain interior repairs were under way at the date of leasing. The repairs were unfinished on May 1st and defendant was unable to deliver possession to plaintiff. By reason of this plaintiff cancelled the lease and demanded a return of the advance payment. The demand was refused by defendant. His refusal was based upon the claim that plaintiff had consented to ■an extension of the date for possession to May 15th in consideration of his agreeing to make additional repairs and changes. Plaintiff denied that he agreed to an extension and denied that any repairs were made save those contemplated and under way when he leased it. In the suit brought' by plaintiff to recover the payment the issue was whether plaintiff had agreed to an extension of time for possession to May 15th. Upon this issue the jury found with the plaintiff and rendered a verdict in his behalf for the payment and interest.

The errors which defendant assigns relate wholly to the admission and rejection of testimony.

It appears from the testimony that defendant had .purchased the premises on contract from one Clark. In April following the leasing defendant wrote Clark that “he was sick of the whole mess,” and would be glad to arrange a settlement and turn the property back and forget the matter. This led to negotiations which resulted, on May 2d, in a written agreement by which Clark agreed to take a reconveyance of the property and return to defendant the amount paid on the contract plus what he had contracted to pay for the repairs. The letter and agreement were offered in evidence by plaintiff on the theory that they had some bearing on the issue as to whether plaintiff agreed to an extension of time for possession. Their admission over.defendant’s objection is made the basis for an assignment of error.

The materiality of the contract and letter is not very apparent. Their admission is defended by plaintiff on the ground that it supported his theory that defendant had become dissatisfied with his purchase of the premises before May 1st, and that he purposely permitted the work of repairing to drag so that the premises would not be ready for occupancy on May 1st, hoping that for this reason plaintiff would cancel the lease and thereby enable him to turn the property back to Clark without incumbrance. The contract and letter may have been admissible on this theory. They were at least close enough to the line to come within the class of testimony which the trial court. might either admit or reject without committing reversible error. The trial court guarded the use which should be made of the exhibits by cautioning the jury not to use the contract and letter for any purpose save upon the issue as to whether plaintiff had agreed to an extension of time. Even if it could be said that the trial court was in error in admitting the exhibits, it was not such error as would justify us in reversing the case. And we think the same can be said of the refusal of the court to admit evidence of the negotiations between defendant and Clark. While it is difficult to discover the bearing of this testimony on the material issue of the ease, we are unable to see how the rulings were prejudicial to defendant. In view of this the judgment must be affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    WAYNE WOODS LAND CO. v. BEEMAN.
    1. Specific Performance — Options—Fraud.
    In proceedings by tbe vendee’s assignee for the specific enforcement of an option on land, testimony held,, insufficient to justify setting aside the contract on the ground of fraud in obtaining defendants’ signatures thereto.
    2. Same — Contracts—Consideration—Sufficiency.
    Evidence that the consideration of one dollar, recited therein, was either paid to defendants or left on the table for them, held, sufficient to satisfy the question of consideration.
    3. Same — Option Signed by Joint Tenant Valid. .
    That an option on land held by three sisters in joint tenancy with the incident of survivorship was signed by only two of them would not render it void nor necessarily unenforceable as against the signers to the extent of their interest.
    4. Same — Overreaching—Fraud.
    Where plaintiff’s assignor, a keen, shrewd business man and lawyer, took an option on land to convey by warranty deed, signed by only two of three sisters owning the land by joint tenancy, without explaining to them the real situation and that they would be unable to fulfill their contract without their sister’s signature, who, to his knowledge, refused to sign, he was guilty of such overreaching in the procurement of said option, although it did not amount to actual fraud, that a court of equity will refuse to specifically enforce the same.
    5. Same — Joint Tenancy — Options—Enforceability.
    Where the sister who refused to sign has since died and defendants have succeeded to her interest, the court will refuse to compel them to convey the entire estate, which plaintiff is asking, since this is more than its option called for and more than it would have been entitled to had she survived.
    Appeal from Wayne; Brown (William B.), J., presiding.
    Submitted June 16, 1920.
    (Docket No. 18.)
    Decided July 20, 1920.
    Bill by the Wayne Woods Land Company against Sarah Beeman and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      J. O. Murfin, for plaintiff.

      Barbour, Field & Martin, for defendants.
   Bird, J.

Defendants are three elderly ladies who, in September, 1916, resided on a farm of 75 acres one mile from the village of Wayne. On September 26, 1916, Mr. Carlton A. Beardsley, a lawyer and real estate dealer, who resided in Detroit, called upon them at their home and inquired of Sarah and Caroline if they desired to sell their farm. They indicated they might be induced to do so. Considerable talk ensued about thé price, after which Mr. Beardsley drew up an option, giving to himself the right to purchase the premises at any time within three months from that date for a consideration of $11,500, and reciting the terms of payment. Upon acceptance and compliance with said option it provided for a warranty deed of and a merchantable title to the premises. After reading the option over to them some assurances were made to them as to its binding effect. The understanding which they got therefrom was that it did not bind either party. But the option was signed by Caroline and Sarah and was taken into an adjoining room, in which Jane lay ill, for her signature. Sarah returned after a time and announced that Jane refused to sign it. Mr. Beardsley then went away taking the option with him. On December 18th lie ac- , cepted the option and made a tender of the payments in compliance therewith, but neither Sarah nor Caroline would accept it. They announced to him, he says, that they had concluded they would not sell. Subsequently Mr. Beardsley assigned the contract to plaintiff and this bill was filed to enforce the contract specifically.

The defenses were:

(1) That their signatures were procured by fraud.

(2) That there' was no consideration for the option.

(3) That the option does not affect the right of survivorship and is unenforceable and void.

At the conclusion of the hearing the chancellor announced that, in his opinion, the contract was invalid and for that reason refused to enforce it.

We are not impressed by a perusal of the record that the testimony establishes such a case of fraud, with respect to obtaining their signatures, as would justify setting aside the contract. It fairly appears that Sarah and Caroline were desirous of selling their interest in the premises, and the only question between them was one of price, and this appears to have been satisfactory to them at the time. In view of this the claimed statements of Mr. Beardsley with reference, to the extent to which the option would bind them is not very important.

The consideration for the option was recited therein as one dollar. It appears that this was paid to them, or, at least, left on their table for them. We think this satisfied the question of consideration. See Wilcox v. Cline, 70 Mich. 517; Mier v. Hadden, 148 Mich. 488 (12 Ann. Cas. 88).

The option, when accepted, was not void and was not necessarily unenforceable as against Sarah and Caroline by reason of the fact thát the lands were held' by the three sisters in joint tenancy with the incident of survivorship.

“It is well settled, however, that a joint tenant may alienate or convey to a stranger his part or interest .in the joint property, in which the grantee becomes a tenant in common with the other co-tenants, but they as to each other remain joint tenants.” 23 Cyc. p. 495.

We do not think this objection furnishes any legal reason for refusing specific enforcement.

We are of the opinion, however, that enforcement of the contract should be denied upon another phase of the case. The title was held by the three sisters in joint tenancy. Mr. Beardsley had notice of the status of the title, as he' was informed by one of the defendants when he secured the option. He was advised that Jane, one of the joint tenants, would not sign the option, and she did not sign it. Notwithstanding this information, he took an option from Caroline and Sarah, obligating them to furnish, upon compliance with its terms, a warranty deed of the premises, or of their interest therein, and such a title as was merchantable. Being a lawyer he doubtless knew that Sarah and Caroline could not convey by warranty deed without making themselves liable on the covenant, that their interests were free from incumbrances. He knew that they could not deliver to him a merchantablé title while Jane lived, because their warranty deeds would be subject to Jane’s rights of survivorship.

Mr. Beardsley was a keén, shrewd business man and lawyer, who had dealt much in real estate. Defendants were old ladies. They had always lived there upon the farm and they were all nearly 70 years of age. They had had very little business experience. Knowing this Mr. Beardsley should have been frank and advised them of the situation they would be placed in if the option were accepted, or he should have .substituted the word “quitclaim” in place of “warranty” in the option. His failure to do so probably did not amount to an actual fraud because he stood in no fiduciary relation to them, but his failure to so advise them, under the circumstances, shows a disposition on his part to overreach in the transaction and take advantage of the fact that they did not know nor appreciate the situation they were being placed in if the deal were consummated. This failure upon his part does not entitle him to favorable consideration in a court of equity.

The attitude of the courts in such cases has been stated as follows:

“Where a contract has been procured by overreaching on the plaintiff’s part, or if it had been artfully contrived as- a snare to bind the defendant in a manner which he did not comprehend at the time he became a party to it, the agreement will not be enforced by a court of equity. Thus, if one party to a contract is ignorant and illiterate, and has been overreached and improperly persuaded to execute it, specific performance of the agreement will not, as a rule, be decreed against him.” 25 R. C. L. p. 240.

See, also, Gibb v. Mintline, 175 Mich. 626; Van Norsdall v. Smith, 141 Mich. 355; Van Deusen v. Brown, 167 Mich. 49; Banaghan v. Malaney, 200 Mass. 46 (85 N. E. 839, 19 L. R. A. [N. S.] 871).

It is held in Cuff v. Dorland, 50 Barb. (N. Y.) 438, that a court of equity will not decree specific performance of a contract in favor of a party merely because he is not guilty of sufficient fraud or deceit to constitute a legal defense to the contract.

Another reason occurs to us why the prayer of the bill should be denied. When Mr. Beardsley accepted the option without the signature of Jane he did not contemplate that he was getting anything more than a two-thirds interest in the premises. Now, because'' Jane is deceased since the filing of the bill, and Sarah and Caroline have succeeded to her interest, we are asked to compel them to convey the entire estate. This is something which they never agreed to do, something which Beardsley could not have secured if Jane had lived, and something which Mr. Beardsley did not understand at the time he had acquired.

For the reasons indicated the relief sought will be denied. The decree is affirmed, with costs to the defendants.

Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Moore, C. J., did not sit.


author: Fellows, J.

text:
    TAYLOR v. CARTER.
    Mortgages — Foreclosure—-Release Upon Partial Payment.
    A provision in a mortgage upon 40,000 acres of land that upon payment to the mortgagee of the sum of .$1 per acre he would release same, and that the covenants therein contained should extend to and he binding upon the heirs, administrators, and assigns of the parties, is binding upon the holder of the mortgage by descent, and the holder of a second mortgage upon a portion of said mortgaged lands, upon tender of the sum of ?1 per acre, was entitled to have same released, although said tender was not made until after commencement of foreclosure proceedings.
    Appeal from Roscommon; Smith (Guy E.), J.
    Submitted June 16, 1920.
    (Docket No. 69.)
    Decided July 20, 1920.
    Bill by Jane E. Taylor against John Carter, Sara Craig Buckley and others for the foreclosure of a mortgage. Defendant Buckley filed a cross-bill to obtain a release of certain land from said mortgage lien. From a decree for plaintiff and dismissing the cross-bill, defendant Buckley appeals.
    Reversed, and decree entered.

      Hiram R. Smith (William T. Yeo, of counsel), for plaintiff.

      Edward S. Clark (Frank S. Pratt, of counsel), for appellant.
    September 5, 1902, John Carter and wife executed to Charles R. Taylor a mortgage upon some 40,000 acres of land located in Roscommon county to secure the payment of $20,000 which was part of the purchase price of the lands. The mortgage contained the following provisions:
    “It is furthermore expressly understood and agreed that the mortgagee shall release any part of said lands upon the payment to him by the said mortgagor or his assigns, of the sum of one dollar per acre upon the lands so released. * * *
    “It is further understood and agreed that all of the covenants herein contained shall extend to and be binding upon the heirs, administrators and assigns of the parties hereto.”
    Shortly after the execution of this mortgage the premises were conveyed to the St. Helen Development Company. From time to time partial releases were executed by'the mortgagee until in the aggregate something over 26,000 acres had been released from the lien of the mortgage. The full sum of one dollar per acre had not always been paid to the mortgagee upon, the execution of these partial releases.
    July 28, 1911, the St. Helen Development Company executed to defendant Sara Craig Buckley a mortgage to secure the payment of the sum of $6,918.89 upon a portion of the lands described in the mortgage to Taylor, being section 22, town 23 north, range 1 west. This is a fractional section' containing 463 55/100 acres, 120 of which has been released from the Taylor mortgage.
    Plaintiff acquired the Taylor mortgage by descent and files this bill for its foreclosure. Defendant by way of cross-bill in her answer sets up that she has tendered and offered to pay the sum of oné dollar per acre on the lands covered by her mortgage which have not heretofore been released, sets up the refusal of plaintiff to accept such sum, continues her offer and prays that she may be permitted to pay that sum, and upon such payment being made that the lands covered by her mortgage be released from the lien of the Taylor mortgage. Upon the hearing it appeared that there was approximately $20,000 due to plaintiff including about $7,000 paid for taxes, but that none of the taxes paid were upon lands covered by defendants’ mortgage. The trial judge at the earnest insistence of defendants’ counsel heard the matters set up in defendants’ cross-bill prior to the hearing of the case itself. Upon such hearing a decree was entered dismissing defendants’ cross-bill on the merits, and from this decree defendant appeals.
   Fellows, J.

(after stating the facts). The procedure here indulged in at defendants’ insistence, of disposing of defendants’ interest in the case separate and apart from the case itself is not to be commended. Inasmuch as a final decree was. entered dismissing her cross-bill on its merits and the case so far as she is concerned has been fully presented, we will consider the questions on this appeal on their merits.

The covenants of the mortgage by its terms extended tó the assigns of the parties; this included defendant. Erichsen v. Tapert, 172 Mich. 457. In Vawter v. Crafts, 41 Minn. 14 (42 N. W. 483), a case cited with approval by this court in Commercial Bank v. Hiller, 106 Mich. 118, it was held that covenants such as we have under consideration run with the land. We therefore come directly to the main question in the case.

Authority will be found holding- that the mortgagor who has not performed his covenants may not .insist on his right to a partial release given him by the covenants and terms of the mortgage; and authority will also be found that such right may not be exercised after foreclosure proceedings have been instituted. If the question was a new one a more extended consideration of such authorities would be necessary. But the question is foreclosed by the former decisions of this court. In Nims v. Vaughn, 40 Mich. 356, a mortgage had been given containing a covenant to release a portion of the security. Proceedings had been instituted to foreclose the mortgage, decree had been entered and affirmed by this court on appeal. An independent suit was then instituted for the specific performance of the agreement for the partial release; the relief was granted by the trial court, and the decree affirmed by this court. It was there said:

“The real case .in controversy seems to be this: A mortgagee has taken security upon several lots of land which apparently are more than sufficient to protect him, but has agreed with the mortgagor, as a. part of the transaction, that the latter may withdraw from the lien the first three of the lots he may have an opportunity to dispose of. Afterwards the mortgagee refuses to perform his agreement, insisting upon its invalidity, and upon various excuses, none of which has force. We see no alternative but to hold him to his agreement.”

The case of Commercial Bank v. Hiller, supra, was a foreclosure suit. The mortgage contained a covenant to release one-fifth of the lots when sold. The decree of the trial court had sustained the rights of the mortgagor to the enforcement of this covenant. Affirming that part of the decree it was said by this court x

“We think the conclusion of the learned circuit judge that, under the first stipulation above quoted, the mortgagor had the right to have one-fifth of the lots covered by the mortgage released when sold or contracted to be sold, upon making demand therefor at any time,, is fully sustained by authority, and is correct in principle. The undertaking is absolute, and not limited as to time, but, on the contrary, the contract is to release at such time or times as the mortgagor or his assigns or grantees may request.”

And in Vawter v. Crafts, supra, where a similar question was quite fully considered, and which case was approved in the Hiller Case, it was said:

“Construing this covenant in connection with the other provisions of the mortgage, and in the light of the manifest purpose which it was designed to sub-serve, we are of the opinion that the right to a partial release upon the stipulated terms continues until the mortgagee has fully executed the power by sale of the mortgaged premises.”

In the partial releases language was quite uniformly used preserving the mortgagee’s lien upon the remaining land, and plaintiff urges that such language should be construed to relieve her from the covenant under consideration. But it must be borne in mind that the mortgage lien thus preserved was subject to the covenant we have quoted. While the mortgage still existed as a lien on the remaining lands it was a mortgage containing an agreement to release on the payment of one dollar per acre. We find nothing in the language of any of the releases or of the mortgage itself which in any way tends to modify this agreement. It may be unfortunate for this plaintiff that her ancestor executed many of these partial releases without receiving the full sum of a dollar per acre for the land released, and it may also be unfortunate that her ancestor entered into this agreement; but courts cannot make contracts for parties; they can only enforce them as made. By the terms of the mortgage plaintiff’s ancestor agreed that he would release “any part of said lands upon the payment to him by the said mortgagor or his assigns of the sum of one dollar per acre.” By this provision plaintiff is bounds This court cannot do otherwise than to enforce the agreement.

It' follows that the decree appealed .from must be reversed and one here entered in conformity with this opinion. As we understand this record defendant did not make her tender until after this suit was brought. She should pay the costs of the circuit court and will recover her costs in this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, and Bird, JJ., concurred. Sharpe, J., did not sit.


text:
      In re COCHRANE’S ESTATE. COCHRANE v. KING.
    1. Trial — Weight or Evidence — Directed Verdict.
    A trial judge may not direct a verdict on the ground that the weight of the evidence greatly or clearly preponderates in favor of one side or the other.
    2. Wills — Mental Incompetency — Temporary Condition — Evidence — Soteicienoy—Directed Verdict.
    Where contestant’s claim that testator was mentally incompetent to make a will was based upon the facts that he suffered from paroxysms of pain and the administration to him of opiates, a temporary condition, but not only was there no testimony that such condition prevailed at
    On sufficiency of- evidence to repel presumption of undue influence for circumstances that one benefited by will was draftsman thereof or benefited by procuring its execution, see note in 28 L. R. A. (N. S.) 288.
    On the general rule for determining capacity to make a will, see notes in 27 L. R. A. (N. S.) 2; L. R. A. Í915A, 444. the time the will was made, but the testimony was all to the contrary, the trial judge was correct in holding that there was no testimony of mental incapacity to go to the jury.
    3. Same — Undue Influence.
    Undue influence cannot be predicated upon opportunity alone.
    4. Same — Presumption—Rebuttal—Evidence—Directed Verdict.
    If a presumption of undue influence arose from the fact that a beneficiary, at testator’s request, made a memorandum of the will and toot it to the attorney to have it drawn, such presumption was rebuttable, and was overcome by the denial of undue influence by direct, positive and credible testimony, which was undisputed by any evidence, direct or circumstantial, and the trial judge correctly held that there was no question for the jury.
    Error to Lapeer; Williams (William B.), J.
    Submitted June 15, 1920.
    (Docket No. 46.)
    Decided July 20, 1920.
    David Cochrane and others presented for probate the last will of William Cochrane, deceased. The will was disallowed in the probate court, and proponents appealed to the circuit court. Judgment for proponents on a directed verdict. William King, contestant, brings error.
    Affirmed.

      William T. Hosner and Theo. D. Hatpin, for appellant.

      John H. Patterson, Joseph Walsh and B. F. Reed, for appellees.
   Fellows, J.

William Cochrane was a resident of Lapeer county all his life. He had been married but his wife died some two dr three years after their marriage, leaving no children. He lived oh, and worked his father’s farm where he was born, about two and one-half miles from Almont, until his father’s death when he bought out the other heirs and continued on the place. He was a successful farmer, a director in the bank at Almont, had accumulated considerable personal property in addition to his real estate, and left an estate of upwards of $52,000. He was 68 years old when he died. He had been ailing for some months and on May 28, 1918, he entered the hospital of Dr. Burley at Almont. Dr. Burley became satisfied after he had been there a short time that Mr. Cochrane was afflicted with cancer of the bowels and could not be expected to live long. About June 12th, he so informed Mr. Cochrane in reply to his inquiry and told him if he had any business affairs he had better straighten them up. In the forenoon of June 14th Mr. Cochrane informed his brother David that he wanted to make his will and requested him to get Frank Andrus, an attorney of many years’ experience at Almont and a director in the same bank Mr. Cochrane was interested in, to draw it. David replied that he would go and get Mr. Andrus but Mr. Cochrane requested him'to wait until he told him how he wanted it so the attorney could make it out. David got a piece of paper and wrote down his instructions. Under these instructions Mr. Cochrane’s property was to be willed as follows: To Mrs. Jennie St. John, who was housekeeper for both his father and himself, $1,500; to William King (contestant), who was a son of his deceased sister, $1,500; to Edwin King, his brother-in-law, and the father of William, $1,000; to Halfred Eraidwood, $500, and the balance to his four brothers and two sisters. David took the memorandum to Mr. Andrus’ office and Mr. Andrus drew the will, leaving the name of the executor blank. After it was prepared he took it over to the hospital and read it over to Mr. Cochrane who pronounced it as he wanted it, and requested that David’s name be inserted as executor; this was done and the will was duly executed in the presence of Mr. Andrus and Dr. Burley, who signed as witnesses. Mr. Cochrane died June 19th, and the nephew, William King, contests the will on the usual grounds of mental incapacity and undue influence. From a judgment entered upon a directed verdict sustaining the will, he brings the case here.

Defendant’s counsel are correct in their contention that a trial judge may not direct a verdict on the ground that the weight of the evidence greatly or clearly preponderates in favor of one side or the other. But we do not understand the trial judge to have directed the verdict in this case for such reason. While he did state to the jury that if the jury were to find that Mr. Cochrane was incompetent he would feel obliged to set such verdict aside on his own motion, he unequivocally held that there was no evidence justifying him in submitting the case to the jury and for that reason he directed a verdict sustaining the will. With this conclusion we are in entire accord.

Mental Incompetency. There is no claim in the case that deceased had by reason of old age or other infirmities broken down mentally. The undisputed testimony discloses him to have been a man of vigorous mentality and strong will power, a thrifty successful farmer and business man. What is claimed is that the cancerous growth caused him to suffer great pain, to relieve which opiates were administered and that lie was not competent when suffering from such pain or when under the influence of the opiates or for some time thereafter. There was testimony that in the afternoon and evening of the day before the will was executed he suffered considerable pain, that he was irritated, used profanity, and complained of the treatment or want of it by the nurse and physician, and one witness who saw him at this time expressed the opinion that he was not competent to transact business. The trial judge in his charge thus expressed himself as to the effect of this testimony:

“The fact that he may have been incompetent on the afternoon of the 13th would throw no light on his condition on the morning of the 14th unless his condition on the morning of the 14th was the same or approximately as they were on the afternoon of the 13th. It appears that when he was in a paroxysm of pain that he may and probably was not competent to execute a will, but it was because of the effect that the paroxysms of pain would have on him at that time.”

Deceased at times suffered considerably from pain. But these paroxysms of pain were temporary. In the case of Pierce v. Pierce, 38 Mich. 412, this court had under consideration the question of intoxication of the testator and it was there said:

“And we are further of opinion that inasmuch as it is a temporary condition, the testimony must be confined to the time involved in the transaction in controversy. If Pierce was not overcome by drunkenness when he made his will, it is not important what his condition was on other occasions.”

See, also, the recent case of In re Weber’s Estate, 201 Mich. 477.

H. M. C. tablets consist of 1/100 of a grain of hyoscin, % of a grain of morphin and 67/100 of a grain of cactin. They are administered hypodermically to relieve pain. One witness called by defendant, one of the nurses who assisted in caring for deceased, testified that it makes the patient “do funny things” and that it so affected deceased. At-first this witness testified that she at one time administered H. M. C. to deceased in the morning and he did not fully recover from the effects until after supper; but she later, and after consulting the chart she kept, admit-ed that she was mistaken and that she never administered this treatment to him in the morning. The medical testimony which is undisputed is that the effect of H. M. C. wears, off in three or four hours. The night of the day that contestant’s witness saw him when he was suffering great pain there was administered to deceased at 8, 10 and 2 o’clock a half or “children’s dose,” as expressed by the doctor, of H. M. C. and he slept until 7 o’clock in the morning. As he expressed it to his brother David', he had “a fairly good night’s rest.” Every witness who saw him this forenoon which was the day the will was executed, and there were several of them, testifies that he was perfectly competent to transact business and there is no evidence that he then had paroxysms of pain, was under the influence of the opiate or in any other than a normal condition. When Mr. Andrus came over after preparing the will Mr. Cochrane was in a chair and while Mr. Andrus was there Mr. Cochrane got up and walked about the room. The testimony was undisputed and unequivocal that he understood everything he was doing, said the will was as he wanted it, that he was mentally competent, and that the will was his deliberate and intelligent act. This will contest differs from the general run of will contests in that it is usually claimed that there has been a mental breakdown covering a considerable period and where evidence of acts indicating mental incapacity at times not too remote are receivable in evidence and bear on the condition of mind at the time the will is executed; but in the instant case the mental incapacity is claimed to be due to temporary causes, i. e., paroxysms of pain and the administration of opiates. The burden being on the contestant to show mental incapacity (In re Curtis’ Estate, 197 Mich. 473), it is incumbent upon him to show that the temporary causes are operating at the time the will is made. In the instant case not only is there an absence of such proof but the testimony in the case and all of it on the subject shows that such causes were not operating and that testator was perfectly competent when the will was executed. The trial judge was correct in holding that there was no testimony of mental incapacity to go to the-jury.

Undue Influence. Contestant called at the hospital while his. uncle was there and on several occasions was permitted to see and visit with him. There were three occasions, he says when he was not admitted to the sick room. But the doctor in charge explains the reason for not admitting him on these occasions. Friends were also admitted. Testator’s brothers and sisters also called to see him, some more frequently than others. But undue influence cannot be predicated upon opportunity alone. The fact that one has the opportunity to exercise undue influence is not evidence that it is exercised. Severance v. Severance, 90 Mich. 417; Blackman v. Andrews, 150 Mich. 322; Noble v. Hunter, 195 Mich. 713. But contestant’s counsel say that the brother David made the memorandum and took it to the attorney and had the will drawn, and they argue that this is the equivalent of, drawing the will himself; they therefore say that a presumption arises that there was. undue influence. We need not determine whether the facts of the instant case bring it' within that line of cases where a beneficiary draws the will and where a presumption of undue influence arises because if such presumption exists it is a rebuttable one. Bush v. Delano, 113 Mich. 321; In re Bailey’s Estate, 186 Mich. 677; and in the instant case the denial of undue influence is direct, positive and credible and is undisputed by any evidence, direct or circumstantial. In the recent case of Gillett v. Traction Co., 205 Mich. 410, Mr. Justice KUHN, who wrote for the court, fully discussed the question of the effect to be given a presumption where it is rebutted by the proofs.. It was there said:

“It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima, facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.”

Applying this rule to the instant case the presumption which we are asked to indulge in falls before the direct, positive and credible testimony given in the case. The presumption, if one exists, was all that contestant had to make even a prima facie case. There was no evidence, circumstantial or otherwise, which made a case of undue influence. When this prima facie case, this presumption, was met and challenged by the rebutting evidence, the presumption failed and could not be weighed against the evidence. The contestant’s case being then stripped of the presumption, there was nothing left of it for the jury to consider. The trial judge correctly held that contestant was not entitled to take the verdict of the jury on the question of undue influence.

A proper disposition of the case was had in the trial court. See Severance v. Severance, supra; Blackman v. Andrews, supra; In re Ganun’s Estate, 174 Mich. 286; In re Williams’ Estate, 185 Mich. 97; In re Ferris’ Estate, 191 Mich. 140; In re Wynn’s Estate, 193 Mich. 223; In re Weber’s Estate, supra.

The judgment is affirmed.

Brooke, Stone, Clark, and Sharpe, JJ., concurred.

Steers and Bird, JJ., concurred in the result.

Moore, C. J., did not sit.


text:
    JACKSON v. CONTINENTAL INSURANCE CO.
    1. Appeal and Error — Trial by Court Without a Jury — Exceptions to Findings — Amendments—Review.
    Where the case was tried in the court below without a jury, and the only findings of fact and law were in a Written opinion in which judgment was rendered for defendant, • and no attempt was made by plaintiff to follow the provisions of Circuit Court Rule No. 45 or 3 Comp. Laws 1915, §§ 12586, 12587, and the only exception filed was that the evidence did not support the findings of fact or the judgment, the Supreme Court, in reviewing same, will give the record the most liberal construction possible and treat the opinion as a finding of fact and law duly excepted’ to, and consider whether the evidence supports the judgment.
    2. Same — Finding Supported by Evidence — Insurance — Insurable Interest.
    In an action on an insurance policy for the value of hay destroyed by fire, the finding of the court below that title to the hay by sale had passed from plaintiff to third parties, before the fire, and therefore plaintiff could not recover, held, supported by the evidence..
    Error to Clare; Hart (Ray), J.
    Submitted June 10, 1920.
    (Docket No. 48.)
    Decided July 20, 1920.
    Assumpsit by John Jackson, Jr., against the Continental Insurance Company on a policy of insurance. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Joseph F. Bowler and C. W. Perry, for appellant.

      Walters & Hicks, for appellee.
   Fellows, J.

In 1916 plaintiff and one Jay Wyman entered into an arrangement whereby plaintiff was to furnish the money and Wyman was to buy hay at Clare, the profits to be divided. Under this arrangement plaintiff furnished some $3,500 which Wyman used in buying hay. The hay was stored in three buildings, one being in Clare and the other two in the country. On December 22d defendant issued to plaintiff its policy of insurance for $1,000 on the hay in the Clare warehouse for a period of one year. In the summer of 1917 plaintiff became insistent that the hay should be sold; he had been offered at one time $15 per ton which had not been accepted. Mr. Wyman was the agent of Chatterton & Son of Mt. Pleasant and was also buying hay for them. He was then using the Clare warehouse to store hay purchased for that company. Some time prior to August 22d plaintiff came to an agreement with Wyman whereby he was to have $12.50 per ton net to him for the hay, Chatterton & Son to- take the hay and Wyman to secure his compensation and profits from that company. A considerable portion of the hay was shipped and paid for by Chatterton & Son. On August 22d the warehouse and hay were destroyed by fire and this action is brought on the policy of insurance. The case was tried by the court without a jury. After considering the matter for some time he filed a written opinion in which he reviewed the testimony at some length and under the statement “conclusions of law,” held that the title to the hay passed to Chatterton & Son and rendered a judgment for the defendant.

While it is quite possible that we would agree with all that was said by the trial judge in his opinion if we measured and weighed the evidence and considered the law applicable thereto, we cannot upon the state of this record pursue our inquiry to the extent we are here asked. There has been no attempt.made to follow the provisions of Circuit Court Rule No. 45 or section 12586, 3 Comp. Laws 1915. No points of law were presented to the trial judge; there was no request before judgment or at any other time for the filing of findings of fact or conclusions of law; there were no amendments proposed to any part of the opinion and the only exception filed was that the evidence-did not support the findings of fact or the judgment. There was no attempt to take advantage of the provisions of the judicature act permitting the presentation in this court of the question of whether the findings were against the clear weight of the evidence (section 12587, 3 Comp. Laws 1915), nor is there any such assignment of error. We have had occasion to consider the effect of the failure to follow these provisions many times. Among the numerous cases see Messer v. Dornbos, 210 Mich. 46; Marshall & Ilsley’s Bank v. Mooney, 205 Mich. 518; Engel v. Tate, 203 Mich. 679; Cascarelli v. Railroad Co., 202 Mich. 304; Federal Audit Co. v. Sawyer, 196 Mich. 566; Walker v. Village of Brooklyn, 184 Mich. 520; Moore v. Supply Co., 171 Mich. 400.

But we are inclined to give this record the most liberal construction possible. Treating the opinion as a finding of fact and law duly excepted to we may consider whether the evidence supports the judgment. Oscar Daniels Co. v. City of Sault Ste. Marie, 208 Mich. 363. Turning to the testimony of the plaintiff [and that of Mr. Wyman we find an abundance of evidence to sustain the finding. We quote a few excerpts-from that given by plaintiff:

“I had never taken up the matter of a settlement with Wyman at the time of the fire. I will tell you that during all the time — I kept urging all the time. You see,*• the hay was sold — there was no question about that — the hay was sold and the only thing that I kept pushing him on, was getting it out, getting the hay shipped. I wanted it shipped out and the money got in so that we might have a settlement. * * *
“They paid me for all the stuff shipped out. I did not write to Chatterton & Son in connection with the deal. I went over there and talked with them personally once or twice, because here was the idea with me: — I had sold it and the sooner I got my money out of it, the better it was for me, because I could use the money.
“Q. The terms of your deal with them were such that you sold them the hay as it rested in your warehouse?
“A. Yes. * * * I have never asked Chatterton & Son since the fire to pay me for the hay which they bought of me. I made delivery to them of the hay just as it stood in the Clare warehouse and the other warehouses and it was up> to them to do what they wanted' with it. They were in control of the hay through their Mr. Wyman. * * *
“Q. Why did you wait — if you had sold all this hay to Chatterton & Son, why did you wait until they shipped it out until you got your pay?
“A. I tried to get my pay, but I couldn’t get nothing. I tried to get them to make a settlement as to the full amount of it and. get it cleaned up.
“Q. You felt they owed you for the full amount whether they shipped it out or whether they didn’t?
“A. Yes, I feel that way.
“Mr. Lacy: Q. If they owe you that amount, John, what would they owe that to you for?
“A. What would they owe that to me for? For the hay; they wouldn’t pay for it only as they shipped it out.
“Q. Then their hay, and you had some money coming from it?
“A. That is the way I felt all the time.”

We also quote a couple of excerpts from the testimony given by Mr. Wyman:

“Q. They bought it all but they would only pay for it as it was loaded out of the building? •
“A. Yes. * * *
“Q. You understood it to be an out and out sale to Chatterton & Son — with the exception that they would not pay for it until it was actually loaded on the cars?
“A. Yes.”

There is testimony which may be said to shade and vary the effect of these excerpts. We have not quoted it as we are not passing on the weight of the evidence, but the tendency of all the testimony given by plaintiff and Mr. Wyman is that the sale of the hay to Chatterton & Son was a complete sale, that the title had passed on to them, that Chatterton &'Son owed plaintiff for all the hay bought including that destroyed by the fire; in short, that it was the hay of Chatterton & Son that was destroyed by fire and not that of the plaintiff. Instead of there being no evidence to support the conclusion of the trial judge, there is an abundance of it.

The judgment must be affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit.


text:
    BURTON v. LADD.
    1. Landlord and Tenant — Expiration of Lease — Holding Over —Acquiescence—Tenant at Will.
    Where defendant’s lease expired August 1st and plaintiffs, without further negotiations, on August 19th began summary proceedings to recover possession, TielcL, that plaintiffs .had not by this short delay acquiesced in such holding over so as to make defendant a tenant at will entitled under 3 Comp. Laws 1915, § 11812, to three months’ notice to quit, or waived their right to treat such holding over as an unlawful one and 'maintain proceedings without notice to quit.
    2. Contracts — Offer and Acceptance — Reasonable? Time.
    Where an offer is made and no time fixed for its expiration, it expires at the end of a reasonable time; what is a
    Holding over after expiration of lease with option for extension or renewal without formerly exercising option, see notes in 29 L. R. A. (N. S.) 174; L. R. A. 1916E, 1232. reasonable time depending upon the facts of the particular case, and where, the facts are not in dispute it should be determined as a matter of law.
    3. Same — Withdrawal Unnecessary After Expiration of-Reasonable Time.
    Since an offer expires at the end of a reasonable time, it is not necessary that it be formally withdrawn.
    4. Landlord and Tenant — Offer of Renewal of Lease — Unreasonable Delay in Accepting.
    Where, in summary proceedings, it was undisputed that defendant’s acceptance of plaintiffs’ offer of a renewal of a lease was delayed for over 50 days and until three days before the expiration of the lease, such delay, held, clearly unreasonable and justified the direction of a verdict for plaintiffs.
    5. Appeal and Error — Question Raised for First Time in Appellate Court.
    Where both parties in the court below treated the case as presenting questions of law solely, and both ashed for directed verdict, it is too late in this court to raise the question for the first time that the case should have gone to the jury.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted June 11, 1920.
    (Docket No. 78.)
    Decided July 20, 1920.
    Summary proceedings by Charles W. Burton and another against Edward R. Ladd for the possession of leased premises. There was judgment of ouster before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs on a directed verdict. Defendant brings error.
    Affirmed.

      McKee Robison, for appellant.

      Percy M. Lovett (Race, Haas & Allen, of counsel), for appellees.
    Plaintiffs are the owners of a garage located in the rear of 173 West Canfield avenue, Detroit, which they leased to one Hennessy in 1916 for a period of two years terminating August 1, 1918. This lease was assigned to defendant and at its expiration was renewed for one year. The rental was $75 per'month. On June 4th defendant wrote Mrl Burton, who had charge of the property, asking upon what terms a renewal might be had. On June 7th Mr. Burton replied offering to give, defendant a lease for two years at $90 per month. No reply was received by Mr. Burton to this letter for 52 days, or until two days before the lease expired. While defendant claims to have- written Mr. Burton about July 1st no such letter was received by Mr. Burton, no copy was produced, there was no testimony as to contents and it is not claimed that Mr. Burton’s offer was accepted or attempted to be accepted by him or until a letter mailed July 28th to which we shall presently refer. During this period Mr. Burton repeatedly attempted to get into communication with defendant by telephone but was unable to do so. On July 28th Mr. Burton wrote defendant saying that his offer of June 7th was withdrawn but offering to permit defendant to remain in possession on a month to month basis at $90 per month. Mr. Burton requested a reply by return mail and also stated if he did not hear immediately he would consider defendant’s right to possession terminated August 1st. On the same day this letter was mailed defendant caused a letter to be sent Mr. Burton, the postmark on the envelope showing it was received at the postoffice at 10 p. m. of that day, accepting the offer of June 7th. Defendant about August 1st sent to Mr. Burton a check for $90 but it was made payable to C. M. Burton; it appears either to have been unaccompanied by any letter or if one was sent it was not produced or its contents established. On August 2d Mr. Burton returned the check calling attention to the mistake in the name and saying that if defendant desired to continue in possession on the month to month basis to make the check payable to Charles W. Burton and to advise by return mail, “otherwise I shall be forced to take measures to dispossess you.” To this letter no reply was received and no check was sent for the rent. This proceeding was instituted on August 19th before a circuit court commissioner to recover possession of the premises. It is stated that it was preceded by a defective proceeding commenced August 7th, but we do not regard this fact as important. Plaintiffs had judgment before the commissioner and upon the appeal the trial judge directed a verdict for the plaintiffs, both parties having moved for a directed verdict.
   Fellows, J.

(after stating the facts). Defendant moved for a directed verdict based on his claim that he was a tenant at will and entitled to three months’ notice to quit under section 11812, 3 Comp. Laws 1915. In the early case of Benfey v. Congdon, 40 Mich. 283, it was said:

“* * * but we do not think a tenant who wrongfully holds over for a short time becomes immediately entitled to such notice, or that any short delay in commencing proceedings against him can confer the right. The statute evidently intends a case of a holding where the occupant has some equities which would render it unjust that he be required to surrender immediate possession ; but he cannot acquire such equities by a mere wrongful holding over, which is neither assented to nor acquiesced in.”

This rule is in consonance with the holdings in other States and has been strictly adhered to by this court. In the instant ease there is no testimony .tending to show assent or acquiescence in such holding over, nor' is there testimony justifying the claim of defendant that during his unlawful holding there were negotiations pending or “dickerings” as they are termed by his counsel. On June 28th and before the tenancy had expired Mr. Burton wrote defendant that he might remain from month to month at $90 per month. August. 1st defendant sent him a check for a month’s rent but it was not payable to the right Mr. Burton. It does not appear what, if any, letter accompanied the check or if one was sent that it was one of explanation or attempted negotiations. Mr. Burton, replied by calling-attention to the mistake in the check, returned it, and informed defendant if he desired to remain under the terms of his letter to correct and return the check. Defendant made no reply and sent ho check. He neither negotiated nor attempted to negotiate, but remained silent. Within a few days these proceedings were instituted. Plaintiffs had not by this short delay acquiesced in such holding over so as to make defendant a tenant at will or waived their right to treat such holding over as an unlawful one and to maintain these proceedings without notice to quit. The trial court correctly overruled defendant’s motion for a directed verdict.

The trial judge directed a verdict for the plaintiffs, on two grounds, but one of which will be considered. He held that by reason of defendant’s unreasonable delay in accepting plaintiffs’ offer of June 7th, such, offer had lapsed on July 28th, when defendant attempted to accept it by his letter of that date and which letter was received by Mr. Burton the following day. The rule is thus announced in Cyc. (9 Cyc. p. 291) :

“An offer comes to an end at the expiration of the-time given for its acceptance; a limitation of time within which an offer is to run being equivalent to-the withdrawal of the offer at the end of the time named. Where no time is fixed in the offer it expires at the end of a reasonable time.”

Where the'facts are not in dispute what is a reasonable time must be determined as matter of law. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74. As a general rule what is a reasonable time depends upon the facts of the particular, case. There are some authorities which hold that where an offer is made by mail the offeree must accept it by return post or not later than the next day. But we do not find it necessary to lay down so hard and fast a rule in the instant case as we are of opinion that the delay of over 50 days and until three days before the lease would expire was so clearly unreasonable as to remove all doubt as to the correctness of the ruling of the trial judge. Defendant regarded it of importance that he should know some time in advance whether he could continue as tenant for another term and nearly two months before his lease expired opened negotiations for a renewal of the lease. If it was important that he should know two months before his lease expired whether he was to continue as tenant in his then location, it was equally important that plaintiffs then know, whether they were to have a tenant after the lease had terminated, at least it was important that they should, know before two days only were left to them in which to procure another tenant. Defendant was in no way bound, and could not be held before he accepted the offer. To hold that plaintiffs were bound and that their offer continued practically to the very time the lease would expire without giving them an opportunity to procure another tenant would be to extend the term “reasonable time” to an unreasonable degree.

As has been indicated the offer lapsed at the expiration of a reasonable time. When that reasonable time had expired the offer was at an end. It was not necessary that plaintiffs formally withdraw it. In the case of Bowen v. McCarthy, 85 Mich. 26, where the delay was less than in the instant case, it was said:

“It is next insisted that defendant did not withdraw hi? offer before the final and’ full tender was made. No legal obligation rested upon him to withdraw the offer after the expiration of the reasonable time within which complainant should have accepted. It is not disputed but that such reasonable time had expired at the time of the tender.”

In the court below both parties treated the case as presenting questions of law solely. Both asked for a directed verdict. Defendant’s counsel made no suggestion that the case should be submitted to the jury. In this court it is suggested by him, however, that the case should have gone to the jury. It is now too late to insist that the case should have gone to the jury or that the questions were not questions of law only. St. Mary's Power Co. v. Water-Power Co., 133 Mich. 470; Wolverine Farms Co. v. De Young, 182 Mich. 200.

The judgment is affirmed.

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


text:
      In re UNIVERSAL DRAIN. ROETHKE v. BAUER.
    1. Drains — Board of Supervisors — Consent of Township Boards —Statutes—Repeal by Implication.
    Act No. 91, Pub. Acts 1901, amending tbe drain law, and authorizing tbe board of supervisors of Saginaw county by resolution to fix and determine “such further conditions than those herein set forth to be complied with” before any contract should be entered into for the construction, improvement, or clearing out of any drain as to such board should seem necessary and proper to protect persons and townships affected thereby, held, not repealed by implication by Act No. 118, Pub. Acts 1909, because it provided for action by township boards as to the necessity of proposed drains.
    2. Same — Conetjct of Laws — Statutes.
    Where, by Act No. 118, Pub. Acts 1909, the legislature assumed to legislate on the subject of notice to and consent of township boards in respect to the construction of drains, it operated to deprive the board of supervisors of the right, granted by Act No. 91, Pub. Acts 1901, to impose, by resolution, the condition that the consent of the majority of township boards should be obtained as a prerequisite to the construction of a drain, since there would be a conflict of authority.
    3. Same — Consent of Township Boards.
    In proceedings to determine the necessity of a drain and award just compensation to landowners for right of way, an objection by defendants that the proceedings were defective because not in compliance with a resolution of the board of supervisors authorized by Act No. 91, Pub. Acts 1901, cannot be sustained where the subject-matter of the resolution was superseded by legislation in Act No. 118, Pub. Acts 1909; and the fact that the provisions in the latter act were dropped out of the law in 1915, and again reinstated in the laws of 1917, after the proceedings in the present case were under way, would not avail defendants anything, unless the resolution was again passed by the board of supervisors, of which there is no claim made.
    Error to Saginaw; Brown (Clarence M.), J.
    Submitted June 15, 1920.
    (Docket No. 8.)
    Decided August 14, 1920.
    Petition by Emil Roethke, drain commissioner of Saginaw county, against Henry H. Bauer and another for the establishment of a drain. The proceedings were sustained in the probate court, and defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.
    Reversed.

      E. L. Beach, for appellant.

      Frank A. Rockwith, for appellees.
   Bird, J.

Plaintiff, in pursuance of a petition duly signed and filed with him, located a* drain, to be known as the “Universal Drain,” in the townships of Zilwaukee, Carrollton, arid Saginaw, in the county of Saginaw. It was laid out through lands owned by defendants. They refused to release the right of way. Their retusal made it necessary for plaintiff to petition the probate court to appoint special commissioners to determine the necessity of the drain and award just compensation to defendants for their damages. This was done and a hearing ordered. At the hearing defendants appeared by counsel and filed objections to the proceedings on several grounds, the principal one, and the only one which we need consider, was that plaintiff had not complied with a certain resolution of the board of supervisors, which forbade the construction of drains until approved by a majority of the township board. This resolution was based upon an amendment to the drain law at the legislative session of 1901. The material, part of the resolution was as follows:

“Resolved, that pursuant to said act the county drain commissioner of Saginaw county shall not act upon any petition or enter into any contract for, or make any expenditure or take any action whatever upon a petition for the original construction of any drain, or for the improvement or cleaning out of any drain, without having first obtained consent in writing to that effect, signed at least by a majority of the members of the township board, or boards, in which it is proposed to construct, improve, or clean out such drain.”

The amendment upon which this resolution ^ was based provides that:

“The board of supervisors of Saginaw county at any session thereof, may, from time to time, by resolution, fix and determine such further conditions than those herein set forth to be complied with before all or any contract shall be made or entered into, for the construction, improvement or clearing out of any drain as hereinbefore provided, as to such board shall seem necessary and proper to protect all persons and townships that may be affected by the proceedings, and no contract or expenditure shall be made or entered into by the drain commissioner or his deputy without first complying with such condition.” * * - * Act No. 91, Pub. Acts 1901.

In order to meet and overcome the force of this objection, plaintiff’s counsel contended:

(а) That the amendment of 1901 had been repealed by subsequent legislation.
(б) That the act amending the drain law was unconstitutional, because of defective title.

The probate court overruled defendants’ objections and sustained the drain proceedings. The defendants, thereupon, appealed to the circuit court. After considering the respective contentions the circuit court overruled all of defendants’ objections save the fourth one to which reference has been made. It was the ■ opinion of the court that that objection was well taken and accordingly it dismissed the proceedings. The proceedings are now before us on the sole question as to whether plaintiff should have complied with the resolution of the board before proceeding with the drain.

(a.) In 1908 the validity of the resolution was before this court in Chandler v. Heisler, 153 Mich. 1. Its validity was then questioned on the ground that it was an unauthorized delegation of power by the board of supervisors to the township boards, but this contention was overruled.

In 1909 the legislature amended the drain law and included therein provisions governing the subject-' matter that is covered by the resolution. This act provides that:

“Upon the filing of such application, the county drain commissioner authorized to act thereon shall, as soon as practicable thereafter, notify the township clerk or clerks of the township or townships through which the proposed drain passes, of the filing of such petition, giving a copy or copies thereof. Upon the receipt of such notice or notices it shall be the duty of the clerk or clerks so notified to call a meeting or joint meeting of the township board or boards, as the case may be, giving notice of the time and place of such meeting, and cansing a notice of such meeting to be published for not less than one week in a newspaper published and in general circulation in the county. At the time and place fixed in said notice the township board or boards shall meet, and if .more than one township be affected, then the board shall meet in joint session to determine the necessity of said drain and whether the same is necessary and conducive to public health, convenience and welfare. At such meeting all persons owning lands liable to assessments for benefits, or whose lands would be crossed by said drain, may appear for or against said drain proceedings. After hearing the evidence so offered as herein provided by all persons appearing for or against said drain proceeding, the board or boards, as the case may be, shall make their determination upon the necessity of said drain and whether the same is necessary and conducive to public health, convenience and welfare. If the board or boards shall find by a majority vote that the said drain is not necessary or conducive to the public health, convenience and welfare, they shall dismiss the petition and no further petition for said drain shall be_ legal if made within one year after such determination. If said board or boards by a majority vote shall find said drain so proposed to be necessary and conducive to the public health, convenience and welfare, they shall make their order to that effect and file the same with the said county drain commissioner.” * * * Act No. 118, Pub. Acts 1909,

It is urged that this act, by implication, repealed the amendment of 1901, upon which the resolution rests. We are unable to see how the amendment of 1909 took away the authority conferred on the board by the amendment of 1901. It quite likely affected the resolution which it had adopted in the exercise of that power because it covered the field which the resolution covered, but this did not affect the general power delegated to the board of supervisors. It will be recalled that the power therein conferred was that the board—

“may, from time to time, by resolution, fix and determine such further conditions than those herein set forth, to be complied with before,” etc.

Even though the amendment of 1909 invalidated the condition which the board had imposed in the resolution, the power remained in the board to impose other conditions not in conflict with and not covered by the general act. It would, therefore, follow that the amendment of 1909 did not repeal by implication the amendment of 1901.

We are of the opinion, however, that when the amendment of 1909 went into effect it superseded the condition imposed in the resolution, for the reason that the legislature then undertook to, and did, provide for notice to and consent of the township boards. The power conferred on the board was to “prescribe further conditions than those contained in the general law.” At the time the resolution was passed the condition imposed by the board that consent of the township boards should be first obtained, was valid, because the general law contained’ no conditions in that regard. When, however, the legislature assumed to legislate on that subject and imposed conditions, including notice to and consent of the township board, it deprived the board of supervisors of the right to impose the condition that the consent of the majority of township boards should be obtained as a prerequisite to the construction of a drain. Had the general law contained the amendment of 1909 when the resolution of the board was passed it is clear that the condition imposed by the resolution would have been of no force because it imposed conditions in conflict with those contained in the general law, and because after the 1909 amendment the condition imposed in .the resolution was not “a further condition than those contained in the general law.” '

It may be well to mention the fact that the provisions incorporated in the 1909 law were dropped out of the law at the session of 1915 (1 Comp. Laws 1915, § 4881), and again reinstated in the laws of 1917 (Act No. 316, Pub. Acts 1917), but not until after the proceedings of this drain were well under way. We are not ■ of the opinion, however, that these subsequent changes would avail defendants anything, unless the resolution was again passed by the board of supervisors after the amendment of 1915 went into effect. There is no claim that this was done.

It follows from what has been said that the condition embodied in the resolution was not in force when plaintiff took steps, in April, 1917, to lay out the Universal Drain. The order of the circuit court is set aside and the order of the probate court affirmed. Plaintiff will recover his costs in this court and in the circuit court.

Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Moore, C. J., did not sit.


author: Per Curiam.

text:
    HARRINGTON v. SECRETARY OF STATE.
    Elections — Primary Law — Constitutional Law — Candidates— Oath.
    Section 30a, Act No. 400, Pub. Acts 1919, amending tbe primary election law by requiring that before the name of any candidate for any office shall be printed on the primary election ballot such candidate shall file an affidavit with the proper official stating that he is a member of a certain political party, and that he will support the principles of that party if nominated and elected violates section 2, Art. 16, of the State Constitution which prescribes an official oath and provides that “no other oath, declaration, or test shall be required as a qualification for any office or public trust.”
    Mandamus by William A. Harrington to compel Coleman C. Vaughan, secretary of State, to certify the candidacy of plaintiff for a public office.
    Submitted August 7, 1920.
    (Calendar No. 29,346.)
    Writ granted August 12, 1920.

      Alex. J. Groesbeck, Attorney General, Samuel D. Pepper, Assistant Attorney General, and William A. Harrington, for plaintiff.

      Oliver Spaulding, for defendant.
   Per Curiam.

An amendment to the primary election law, section 30a, enacted in 1919 (Act No. 400), reads as follows:

“The name of no candidate for any office shall be printed on any primary election ballot, unless there shall be filed with the official with whom such petition is filed, an affidavit properly executed by such candidate, stating that he is a member of a certain political party, naming it, and that he will support the principles of that political party of which he is a member, if nominated and elected; that he is not, and will not become a candidate for the same or any other office on any other party ticket at said primary election. His name shall be printed only on the party ballot of which he is a member as shown by his affidavit.”

Plaintiff has filed with defendant a petition as a democratic candidate for circuit judge of the 34th judicial circuit. It complies with the other provisions of the statute, but he declines to attach thereto the affidavit required by the above amendment. Defendant has refused to certify his candidacy without such affidavit and mandamus is sought to compel him to do so. The necessity for an immediate decision prompts us to state the conclusion we have reached without extended discussion!

The attorney general had given an opinion that this amendment was invalid, and has filed a brief supporting such opinion. The brief filed on behalf of the defendant by an attorney connected with his office force very ably presents the claim that such legislation was within the legislative power, it being an attempt on the part of the legislature to preserve the purity of elections and guard against abuses of the elective franchise.

Section 2 of article 16 of our present Constitution prescribes an official oath which shall be taken and subscribed by all officers except those specially exempted therefrom. The concluding sentence of the section reads:

“No other oath, declaration or test shall be required as a qualification for any office or public trust.”

This provision appeared in our former Constitution as section 1 of article 18.

The attorney general in his brief makes the following point which we think has great force:

“The form prescribed in section 30a. constitutes both a declaration and a test for office, since it looks beyond the mere nomination and covers the entire term of office to be held after election. The words ‘if nominated and elected’ occurring in the body of section 30a, and again in the form of oath prescribed therein can have no other meaning or effect than that such oath should be deemed binding upon the candidate after his election to office and so' long as he remains in such office. Thus a candidate, after election, will be bound by an oath and test other than his constitutional oath of office. On this phase of the matter we think the decision of this court in Dapper v. Smith, 138 Mich, page 104, is absolutely controlling.”

Where is the logic of saying that when elected the officer cannot be subjected to any test oath other than the constitutional oath of office, but before he can be a candidate he must subject himself to a different test oath or he cannot be a candidate, and is therefore in practical effect barred from holding the office?

It may be well to inquire in what way it will be practicable for a judicial officer to discharge the duties of his office according to the principles of the political party with which he is affiliated. Is it not one’s duty as a judicial officer when litigation is before him to know no political party but to conduct the litigation without taking into consideration partisan politics?

There are other considerations that should have weight. It is within the recollection of older men when the office sometimes sought the man instead of the man seeking the office. It often occurred that as a result most capable men were available as candidates and made most excellent officers. If the present provision of the law is to be given effect no one who is not a partisan candidate has any possibility of being elected even to a judicial office. The language used in Dapper v. Smith, supra, is exceedingly germane here, and we quote some of it:

“This provision is not one designed for the benefit of the aspirant for public station alone; it is in the interest of the electorate as well. The provision of this law which requires that, before the name of any candidate shall be placed upon the ballot at the primary election, such candidate shall on oath declare his purpose to become such, excludes the right of the electorate of the party to vote for the nomination of any man who is not sufficiently anxious to fill public station to make such a declaration. The man who may be willing to consent to serve his State or his community in answer to the call of duty when chosen by his fellow citizens to do so is excluded, and' the electorate has no opportunity to cast their votes for him. It is not an answer to this reasoning to say that the electors may still vote for such a man by using ‘pasters.’ We cannot ignore the fact that parties have become an important and well recognized factor in government. Certain it is that this law fully recognizes the potency of parties, and provides for party action as a step toward the choice of an officer at the election. The authority of the legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy, or seriously impede the enjoyment- of the elective franchise. Attorney General v. Detroit Common Council, 58 Mich. 213 (55 Am. Rep. 675).
“We cannot escape the conclusion that the provision in question does most seriously impede the electors in the choice of candidates for office, and that it is in conflict with the provisions of section 1 of article 18 of the Constitution.”

In the brief filed on behalf of defendant it is said Dapper v. Smith, supra, should .be overruled and that it was in effect overruled by Brown v. Kent County Election Com’rs, 174 Mich. 477. It may be noticed that the opinion in that case was signed by but four justices, while two of them dissented, and two, who are at present members of this court, did not sit in the case. The result reached in Dapper v. Smith, supra, was also reached in State, ex rel. McCue, v. Blaisdell, 18 N. Dak. 55 (118 N. W. 141, 24 L. R. A. [N. S.] 465); McCamont v. Olcott, 80 Or. 246 (156 Pac. 1034, L. R. A. 1916 E, 706, and note).

We feel constrained to follow the holding in Dapper v. Smith, and conclude that the amendment contravenes the constitutional provision above quoted.

It follows that the writ must issue as prayed. As the defendant in his refusal was but following the plain direction of the statute, no costs will be allowed.

Sharpe, J., did not sit.


text:
    SCHNEIDER v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Parks and Boulevards — Right to Maintain Outside Three-Mile Limit — Evidence—Sufficiency.
    In view of section 22, Art. 8, State Constitution, authorizing cities to establish and maintain parks and boulevards either within or without the city limits, and section 4, title 10, of the charter of the city of Grand Rapids, empowering the city commission to adopt a plan of streets and alleys within the city limits and for a distance of not more than three miles beyond its limits, in proceedings to enjoin the city of Grand Rapids from accepting from a voluntary association a donation of land for park and boulevard purposes outside • the city limits, the Supreme Court will decline to determine the right of the city to acquire lands for such purposes more than three miles beyond its limit in the absence of affirmative testimony that the land in question is beyond the three-mile limit.
    2. Same — Statutes—Validity—Right of Taxpayer to Attack.
    Plaintiff, a taxpayer of the city of Grand Rapids, has no such interest as authorizes him to attack the constitutionality of the law (2 Comp. Laws 1915, § 10130 et seq.) under which defendant voluntary association is incorporated.

      3. Same — Parks and Boulevards — Reservations in Deeds fob Purposes of.

      Held, that the reservations in the deeds of conveyance are not of such character as will hamper the city in the use of the lands for park and boulevard purposes, nor do they impose an unlawful burden on the taxpayers of the city.
    4. Same — Trusts—Conveyances—Validity.
    The contention of plaintiff that the conveyance is illegal because the city of Grand Rapids is both trustee and cestui que trust is untenable, since the city is not named in the deed as trustee, but even if it were it would take as trustee for the people of the city of Grand Rapids.
    5. Appeal and Error — Municipal Corporations — Questions Not Properly Presented Not Considered..
    Questions not properly presented by the record; although mentioned in a brief filed by the village of East Grand Rapids showing it to be interested, will not be considered by this court.
    Appeal from superior court of Grand Rapids; Dun-ham (Major L.), J.
    Submitted October 14, 1919.
    (Docket No. 43.)
    Decided September 30, 1920.
    Bill by C. Fred Schneider against the city of Grand Rapids and another to enjoin the conveyance of certain land to defendant city. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      C. Roy Hallen, for plaintiff.

      Ganson Taggart, for defendants.

      Emil B. Gansser, for village of East Grand Rapids.
   Fellows, J.

Defendant the Grand Rapids Park and Boulevard Association is organized under Act No. 161 of the Public Acts of 1911 (2 Comp. Laws 1915, § 10130 et seq.). From a former voluntary association and by donations and purchase it has acquired through some 24 deeds lands suitable and desirable for park and boulevard purposes of the value of $130,000. It made a deed of those lands to the defendant city of Grand Rapids which it offered to deliver to the city and which the city is desirous of accepting. Plaintiff, a taxpayer of the city, files this bill to restrain the city from accepting such conveyance.

. 1. Section 22, Art. 8, of the State Constitution, provides :

“Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses, and all works which involve the public health and safety.”

In the charter of the city of Grand Rapids will be found the following (section 4, title 10):

“The city commission shall have and it is hereby given the power to adopt a plan of streets and alleys within the city limits and for a distance of not more than three miles beyond its limits as may be hereafter authorized by law.”

We are asked in this proceeding to determine the right of the city of Grand Rapids to acquire lands for park and boulevard purposes outside the three-mile limit found in the charter. This we must decline to do upon this record. The only testimony before us as to , the location of the lands conveyed by the deed is as follows:

“Q. What if any portion of those properties are beyond the three-mile radius, beyond the city limits?
“A. None of them, unless it is the extreme end of Grandville Drive. They are practically within the limit of three miles from the city, at present some of them are within the city limits. Richmond Hills, Burton Woods, and part of the Grandville Drive are inside the city. The Ilodenpyl Woods and Bonnell Park are outside but within three miles.”

This testimony falls far short of• affirmatively establishing that any of the lands are beyond the three-mile limit. It is not claimed that the city has not the power to acquire lands within that limit.

Plaintiff insists that the act under which the defendant association is incorporated is invalid in that it infringes the right of home rule. We fail to perceive any interest in plaintiff which authorizes him to invoke a decision of this court upon that question.

“Before a law can be attacked by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights.” 6 R. C. L. p. §9.

The defendant association is making no claim to, and is asserting no rights in, the streets, parks or boulevards of the city of which plaintiff is a taxpayer. It is at least a de facto association, and has acquired title to some $130,000 worth of real estate suitable and available for park and boulevard purposes which it offers to donate to the city. Under the Constitution and under the charter the city is authorized to acquire' lands for such purposes. That it could purchase them for such purposes is not denied. We do not perceive how plaintiff, a taxpayer of the municipality, is harmed by their donation. True, the city will be to expense in their maintenance but this would likewise be true if they were purchased. It will be time enough to determine the validity of this statute when a conflict arises between a municipality and an association organized under the act over the right to exercise control of streets or other public places, or the State by appropriate proceedings questions the right of the association to function.

Some of the grantors imposed conditions and reservations in their deeds of conveyance to the association which were likewise imposed upon the city in the deed from the association to it. Without detailing all of them it will suffice to say that we find none of them to be of a character which will hamper the city in the use of the lands for the purposes for which they are deeded to it or which are inappropriate to the purposes of the grant or which impose an unlawful burden on the taxpayers of the city. Some of the grantors reserved the right to maintain sewers, gas, and water facilities in the streets, but this is a recognized use of the streets of a city; others who donated lands guarded against expense and inconvenience to themselves by reason of their gift by requiring fences, gates, etc., and ingress and egress to their remaining property; while others required the use of the property for the purposes for which it was donated and in a manner to carry out such purpose.

Finally, it is urged that .under the conveyance tendered this property is deeded to the city as trustee and that it is both trustee and cestui que trust, which it is insisted is not allowable. This contention we think misconceives the grant and its purpose. The deed runs to the city, a municipal corporation. It is not named as trustee. But if we assume that under the statute and the language employed in the deed the city takes as trustee, it takes as trustee for the people of Grand Rapids, who are really the cestuis que trustent. These parks and boulevards donated to the city of Grand Rapids are for the use and benefit of the public and the city as trustee can take the title for the use and benefit of its citizens.

The village of East Grand Rapids was permitted to file a brief. The clerk has been advised by one of the counsel that questions between defendant city and the village have been adjusted, but no stipulation has been filed to that effect, although we have withheld opinion in the case awaiting the same. We. have, however, concluded that we should not settle any questions between the two municipalities upon this record. While there are statements in the. brief of the village which show it to be interested, the record is not made up so as to present such questions, in an intelligent manner. There is no testimony in the record showing what, if any, of the property covered by the deed is in East Grand Rapids, or if any there be in the village, what its character is. Under these circumstances we do not consider the questions raised in the brief of the village of East Grand Rapids.

It follows from what we have said that plaintiff’s case is without equity and the decree dismissing his bill will be affirmed, with costs to the defendants.

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


text:
    KELLEY v. KELLER.
    1. Negligence — Death — Contributory Negligence — Evidence— Question fob Jury.
    In an action for the negligent killing of plaintiff’s decedent, • a boy 14 years of age who, while riding a bicycle, was struck by defendants’ truck at a street intersection and instantly killed, where the testimony was conflicting as to the failure of deceased to observe the truck, it cannot be said, as a matter of law, that he was guilty of such contributory negligence as to bar recovery.
    2. Same — Contributory Negligence — Gross Negligence.
    The contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows or ought, by the exercise of the most ordinary care, to know,
    On the question of reciprocal duty of driver of automobile and child riding bicycle In street, see note in L. R. A. 1913A, 255. of the precedent negligence Of the plaintiff, by Ms subsequent negligence does plaintiff an injury.
    S. Same — Gross Negligence — Evidence—Sueekjiency.
    Testimony held, sufficient from which the jury might infer that the driver of the truck did not use ordinary care to discover the peril of deceased nor to avoid the collision after he became aware of it.

      4. Same — Pleading—Variance.
    Allegations in the declaration that it was the duty of the driver of the truck to be alert and careful, and at street intersections to have his vehicle under control and operated at such speed as is reasonable and proper, having regard to the traffic then upon such street and the safety of the public, and to keep a lookout for plaintiff’s decedent and to see that deceased was in a place of peril, and to discover Mm in time to avert Ms injury by proper and careful action on the part of said driver, followed by an allegation of omission of this duty, held, sufficient to admit proof of the driver’s failure to discover the presence and peril of deceased. Brooke J., dissenting.
    5. Same — Gross Negligence — Precedent Negligence — Requests to Charge.
    Defendants’ requested instruction that, upon the question of gross or after-discovered negligence, it is immaterial whether or not defendant driver was negligent in driving and using an automobile which was not adequately equipped with brakes, since such negligence would be antecedent and not after-discovered negligence, held, proper, and that it should have been given by the trial judge.
    6. Same — Appeal and Error — Failure to Charge — Trial.
    Failure of the trial judge to give said requested instruction, held, not reversible error in view of the fact that the question of gross negligence was fully explained to the jury.
    Error to Kalamazoo; Weimer (George V.), J.
    Submitted April 23, 1920.
    (Docket No. 64.)
    Decided September 30, 1920.
    Case by George A. Kelley, administrator of the estate of George Kirby Kelley, deceased, against Louis F. Keller and another for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Jackson, Fitzgerald & Dalm and Mason & Sharpe, for appellants.

      Harry C. Howard, for appellee.
   Bird, J.

Plaintiff recovered judgment, under the death act, against defendants for the negligent killing of his intestate. The accident occurred on Main street in the city of Kalamazoo. Main street extends in an easterly and westerly direction. Portage street leaves the south side of Main street at a slight angle, and extends in a southeasterly direction. On the day of the accident plaintiff’s intestate, a boy aged 14 years and 8 months, was returning from school riding his bicycle on the south side of Main street, approaching the intersection from the west. At the same moment defendant Argylian was driving defendant Keller’s auto truck on the north side of Main street and approaching the intersection from the east. Argylian obtained from the traffic officer the signal to go around into Portage street. When he reached the middle of the street both he and the boy were about the same distance from the entrance into Portage street. Argylian saw the boy, but the boy evidently did not see the truck. Some effort was made by Argylian to avoid a collision but without avail, and they collided near the entrance into Portage street, with the result that the boy was forced against an iron lighting pole with such force that he was instantly killed.

Negligence of defendants. The allegations of negligence against both defendants are numerous. Complaint is made against the owner because he permitted the truck to be operated on the streets with brakes, steering apparatus and horn out of repair. The principal charges against the driver are that he was not a registered chauffeur, that he failed to give the signals required by the statute, and that he operated the truck in violation of the statutes and ordinances. We are not called upon to discuss the question as to whether these allegations are sustained by the proofs, as it is practically conceded by the defendants that the question of their negligence was one for the jury.

Contributory negligence of the boy. This is the principal question discussed in the briefs. It is contended that the court should have directed a verdict for defendants on this ground.. Considerable testimony was taken bearing, on the question of his negligence. All of the eyewitnesses agree that the boy was riding his wheel close to the curb on the south, side of Main street, and all agree that he gave no indication that he was aware of the approaching truck. Some of thé witnesses say he was looking over his shoulder back of him. Others say he was looking over his shoulder to the south. Some of the plaintiff’s witnesses say he was looking straight ahead, and one witness said he appeared to be looking down Portage street, as though he were about to enter it. He was described as leisurely coasting on his. bicycle, about four miles an hour, watching a candy store at his right, and whistling as he passed along.

The testimony appears to make it reasonably certain that the boy did not see the truck or he would have manifested some concern over its approach and made, some effort to avoid it. If he were intending to go to his home by way of Portage street, as he sometimes did, he may have been concerned with the traffic on the south side of Main street which might obstruct his passage into Portage street. It is suggested that he may have seen the truck earlier and supposed it had passed on west in view of the wide circle it made to the west in going around the station of the traffic officer. It is also quite probable that the boy relied to some degree upon the fact that vehicles rarely ever traveled as close to the curb as he was then going unless they intended to park. The testimony as to the failure of the boy to observe the truck was very much ih conflict, and there are so many plausible theories for his failure to observe it that we do not think we should say, as a matter of law, that he was guilty of such negligence as would bar a recovery.

Gross negligence of defendants. Counsel contend that the court was in error in submitting the case upon the theory of gross negligence. They argue that there was no room in the facts for a finding of gross negligence. If the facts in the case were open to a finding of gross negligence it must be because of what Argylian did, or neglected to do, after he discovered, or by the exercise of ordinary care ought to have discovered, the peril the boy was in. In discussing this subject it was said in Labarge v. Railroad Co., 134 Mich. 139, that:

“It may be conceded that, where one wilfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to wilfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances.”

The case of Montgomery v. Railway Co., 103 Mich. 46 (29 L. R. A. 287), is a good example of the application of this doctrine. This court has held on more than one occasion that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought, by the exercise of the most ordinary care, to know of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Richter v. Harper, 95 Mich. 225; Labarge v. Railroad Co., 134 Mich. 139; Calvert v. Railway, 202 Mich. 311.

The driver’s own testimony indicates that when he was ten feet distant from the intersection he realized decedent’s danger and that a collision was likely to occur. It was, therefore, his duty to use ordinary care to avoid the collision. A very easy and simple way of doing so would have been to attract the boy’s attention by sounding his horn, but he did not do this. He says he attracted the attention of the traffic officer with it. If the horn were working well enough to attract his attention, no reason appears why it would not have attracted the attention of the boy had it been sounded. Again, the driver testified that he could stop the truck in five feet at the rate he was traveling. If this were true, it becomes a serious question as to whether he ought not to have stopped before he reached the boy. One witness gave it as his judgment that if the driver had kept on the circle which he was making instead of turning to the right just before he reached the curb, he would have avoided the boy. We think there was ample testimony from which the jury could infer that the driver did not use ordinary care to discover the peril of the boy nor to avoid the collision after he became aware of it.

A further reason urged by counsel why the submission of gross negligence was error is that it was not charged in the declaration. An examination of the declaration discloses that one of the duties alleged is:

“That it became and was the duty of defendant, Argylian, in the operation of said motor vehicle, to at all times be alert and careful, and at street intersections to have his motor vehicle under control and operated at such speed as is reasonable and proper, having regard to the traffic then upon such street .and the safety of the public, and to have kept a lookout for the plaintiff’s intestate, George Kirby Kelley, and to see that he, the said George Kirby Kelley, was in a place of peril, and to discover him in time to avert his injury by proper and careful action on the part of said Julius R. Argylian.”

Following this allegation was an allegation of omission on the part of Argylian to observe the duty. These allegations were sufficient to admit proof of Argylian’s failure to discover the presence and peril of the boy.

Requests to charge. Defendants requested the court to instruct the jury that:

“Upon the question of gross or after-discovered negligence, it is immaterial whether or not defendant was negligent in driving and using an automobile which was not adequately equipped with brakes, for the reason that such negligence would be antecedent negligence on the part of the defendant, and not after-discovered negligence.”

We think the request was a proper one. The driving of the truck upon a public highway with defective brakes, if such were the case, was clearly antecedent negligence on the part of the defendant, and could not be used as a basis for subsequent negligence, as is clearly pointed out by the case of Fike v. Railroad Co., 174 Mich. 167.

The court, however, did charge upon the question of gross negligence with considerable detail. Among other things in this connection the jury were instructed as follows:

“In other words, gentlemen, if you find the plaintiff was guilty of contributory negligence ás I have heretofore defined it to you, — that is, find that plaintiff’s ¡ decedent was guilty of contributory negligence as I have heretofore defined it to you, then — he cannot recover in this case unless the defendant, Argylian, failed to do something which he could have done to avoid the collision after he discovered the position of peril of plaintiff’s decedent, or by the exercise of due care and caution on his part might or should have discovered such condition of peril on the part of the plaintiffs decedent.”

While we are of the opinion that the request was a proper one, we are also of the opinion that the question o*f gross negligence was so fully explained to the jury that we ought not to reverse the case because this instruction was not given.

The remaining questions raised by appellants have been considered by us, but we find nothing in them which requires a reversal of the case.

The judgment will be affirmed.

Moore, C. J., and Steere, Fellows, Stone, and Clark, JJ., concurred with Bird, J.

Brooke, J. In my opinion the declaration does not charge gross negligence and as recovery was had. upon that theory the judgment should be reversed.

Sharpe, J., did not sit.