text:
    REYNOLDS v. REYNOLDS.
    1. Decrees — Alimony—Revision and Alteration.
    3 How. Stat. § 6348, providing that the circuit court may revise and alter decrees for "alimony on petition of either of the parties, is applicable only where new facts transpire after the original decree which make such change necessary, and does not authorize the subsequent insertion in the decree of a provision which might have been embodied therein originally, declaring the amount awarded as alimony to be a lien upon land alleged to have been fraudulently conveyed.
    3. Same — Amendments—Bill of Review.
    Nor can such an alteration, made after the close of the term at which the original decree was rendered, and after the expiration of the time for appeal, be justified as an amendment; the appropriate remedy under such circumstances, and the only one where the decree has been enrolled, being by bill of review.
    3. Same — Collateral Attack.
    But the action of the court in making such alteration, while irregular, is not void for want of jurisdiction, and it cannot be attacked collaterally.
    4. Same — Execution—Authority for Issuance.
    Where the original decree rendered in a cause authorized the issuance of execution, express authority was unnecessary in an amended decree in the same cause, the former being, of necessity, a part of the latter.
    Appeal from Van Burén; Buck, J.
    Submitted October 13, 1897.
    Decided December 21, 1897.

      Bill in aid of execution by Mary A. Reynolds against Ansel E. Reynolds, Davis Olney, and Lodema O. Good-enough. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles E. Sweet (Howell & Carr, of counsel), for complainant.

      Lester A. Tabor, for defendants.
   Hooker, J.

The complainant obtained a decree of divorce from Ansel E. Reynolds, one of the defendants, which was affirmed by this court (see 92 Mich. 104), except as to alimony, and the case was remanded for an inquiry in relation thereto. On July 7, 1893, the circuit court for the county of Cass in chancery decreed that the “defendant pay to the complainant, Mary A. Reynolds, as permanent alimony, the sum of $1,000, and that she have execution therefor against his lands, goods and chattels, moneys and effects.” It was further ordered that she have her costs to be taxed, and that she have execution therefor. Execution issued, whereupon it appears to have been ascertained that the defendant had conveyed his real estate; and a suit at law was commenced, and garnishee process issued against the purchasers. Subsequently this proceeding was discontinued by a rule entered in the Common Order Book on July 20, 1894. On December 18, 1893, the court attempted to amend the decree of July 7th by adjudging the amount of her alimony and costs to be a lien upon the lands mentioned. Execution was issued on the first decree, and returned unsatisfied September 19, 1893; and on January 21, 1895, an execution was issued in said cause, reciting the decree of December 18, 1893, but making no allusion to the decree of July 7, 1893. This execution was in the usual form, and was levied on the lands in controversy; and on February 18, 1895, this bill was filed in aid of -execution against the defendant Reynolds and the alleged purchasers of the land. The defendants appeal from a decree against them.

Upon the general question of fraud, we are of the opinion that the evidence justified the decree, which must stand, unless some legal question forbids. The amended decree was based upon a petition alleging the fraudulent conveyance of the lands to defendant Olney, and praying that the amount be declared a lien upon the land. The original decree might have contained such a provision, and therefore 2 How. Stat. § 6248, providing for the alteration of decrees, is not applicable, under the rule laid down in Perkins v. Perkins, 12 Mich. 456, and Chandler v. Chandler, 24 Mich. 176, that such action is permitted only upon new facts transpiring after the original decree. Unless, therefore, we can say that it was valid as an amendment, this decree of December 18th would constitute no authority for the issue of execution. This amendment was asked for and made after the close of the term at which the original decree was- made, and, under the great weight of authority, should not have been permitted. See 5 Enc. Pl. & Prac. 1049 et seq.; Brooks v. Railroad Co., 102 U. S. 107; Bronson v. Schulten, 104 U. S. 410; Overton v. Bigelow’s Adm’r, 10 Yerg. 48; Bradford v. Patterson, 1 A. K. Marsh. 464; Thompson v. Goulding, 5 Allen, 81. Clerical errors and cases of irregular or void decrees may be exceptions to this rule, but we have not such a case before us. Not only had the term passed, and the time for appeal expired, but the cause was enrolled, and the only remedy was by bill of review. Maynard v. Pereault, 30 Mich. 160; Mickle v. Maxfield, 42 Mich. 309; Barnes v. Kent Circuit Judge, 97 Mich. 214.

While this proceeding was unwarranted, we are not cited to any case which holds it void upon the ground that the court had no jurisdiction. We have seen that in certain classes of cases the court may make changes, as when the decree entered is irregular, or where the errors are clerical. Another class of cases in which amendments after term have been permitted, and, indeed, after enrollment, are those where the relief would have been a matter of course had it been asked for when the decree was rendered, and where the omission was an inadvertence. 5 Enc. PI. & Prac. 1053, and cases cited. Again, it may be done by consent. Id. 1058. The court must at least have the power to determine whether the case is one in which the relief can be granted or not, which would seem to be inconsistent with an utter want of jurisdiction. The authorities treat such action as an irregularity, to be corrected on appeal or by bill of review. Id. 1059. But it cannot be attacked collaterally. If the defendants had notice of this amendment, they might have taken meas-’ ures to overturn it. They had such notice when the bill in this cause was filed, if not before, but have taken no such steps. They have undertaken to make the irregularity a ground for defense, which cannot be done, as the decree is valid until reversed. It therefore supports the execution, which, in turn, is a sufficient foundation for a bill of this character, if it was properly issued.

It is urged that it was issued without authority, and that an order of court was necessary. We understand that the original decree, which is, of necessity, a part of the amended decree, authorized the issue of execution, and that the writ was properly issued at once. Our statute (2 How. Stat. § 6653) authorizes execution against property upon decree, following that of New York. 2 Rev. Stat. p. 183, § 104. In treating of this subject, Mr. Bar bour says:

“In some decrees the sum of money adjudged due is to be paid, or the duty is to be performed, within a time specified therein. In others it is decreed to he paid or done generally, without fixing a time. In either case a clause is inserted that the party have execution to enforce the decree. Whether a time is fixed or not, an execution may he taken out at once, as soon as the decree is enrolled, in the same manner as it is issued upon a judgment at lato ivhen docketed.” 1 Barb. Oh. Prac. 442; 2 Hoff. Ch. Prac. 92.

If it be said that this language does not show that execution can be issued without an order of -the court, it may be answered that in the case before us this order was plainly intended to be a part of the original decree, as it is clearly expressed. In Taylor v. Gladwin, 40 Mich. 235, it was held that an order for execution was not invalid because made before enrollment. We see no impediment to the application of this rule to an order incorporated in the decree, as well as to one made later, where, as is this case, the order is clearly made.

Other questions are raised, but we think it unnecessary to discuss them or the evidence. It is enough to say that the conclusions of the circuit judge meet our approval.

The decree is affirmed, with costs.

• The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    JOHN DAVIS & COMPANY v. INSURANCE COMPANY OF NORTH AMERICA.
    1. Fire Insurance — Liability of Company — Limitations — Ex- , plosions and Falling Walls.
    A fire-insurance policy upon a stock of goods provided that the company should not be liable for loss caused " by invasion, * * * or (unless fire ensues, and in that event for the damage by fire only) by explosion of any kind.” By a subsequent clause it was provided that ‘ ‘ if a building, or any part thereof; fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.” Held, that the latter clause did not preclude a recovery upon the policy for damages to the stock by fire ensuing upon an explosion which caused the store building to collapse.
    2. Same — Standard Policy — Judicial Interpretation.
    The terms of the standard policy of fire insurance are to be construed as employed in the sense in which they were used and interpreted by the courts before that form of policy was adopted.

      3. Same — Loss by Fire and Water.
    Insurance covering “damage by fire” extends to loss occasioned by water used in case of fire to prevent the destruction of the insmed property.
    4. Same — Rules oe Construction.
    As to how far the rule that insurance contracts are to be construed most favorably to the insured is modified where the form of policy is prescribed by statute, — qucere.
    5. Same — Damages—Burden oe Proof.
    Plaintiff in an action on a fire-insurance policy has the burden of showing that the loss was occasioned by the peril insured against.
    Error to Wayne; McMahon, J., presiding.
    Submitted October 13, 1897.
    Decided December 21, 1897.

      Assumpsit by John Davis & Company against the Insurance Company of North America on a fire-insurance policy. From the judgment rendered, both parties bring error.
    Affirmed.

      De Forest Paine, for plaintiff.

      Brennan, Donnelly & Van De Mark and Bernard B. Selling, for defendant.
   Montgomery, J.

This is an action on a fire-insurance policy. The plaintiff, a corporation, was a dealer in grocers’ supplies at 45 Larned street, Detroit, occupying a brick building, and held a policy issued by the defendant, covering the stock in trade, in the sum of $2,000. There was $6,000 concurrent insurance. On the 6th day of November, 1895, a boiler exploded in the basement of an adjoining building, occupied by the Detroit Journal, and both buildings fell in. A fire ensued in No. 47, but none df the goods in No. 45 were actually consumed by fire. There were saved from the wreck goods which in their perfect state were worth $996. It was shown that goods were damaged by water poured upon them for the purpose of extinguishing fire. At the close of the testimony, the circuit judge held that there was no tangible testimony tending to show any loss, or, at the best, tending to show the extent of loss, by fire or wáter, aside from what had been saved from the wreck. The evidence shows that these goods had been damaged to the extent of 50 per cent, of their original value, and the circuit judge directed a verdict for the plaintiff for the proportion of the damages which the insurance in the defendant company bore to the whole amount of insurance, viz., $126.50, and declined to submit the case to the jury to find further damages by fire. Both parties have brought error, the plaintiff contending that there was evidence from which the jury would have been justified in finding a greater loss by fire, and defendant contending that there was no liability whatever.

The clauses of the policy under which the questions presented arise are as follows:

‘ ‘ This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises, or (unless fire ensues, and in that event for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.
“Tf a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.”

It is contended by the defendant that the policy terminated immediately upon the fall of the building. It may be conceded that, if the last clause above quoted stood alone, such would be its effect. Huck v. Insurance Co., 127 Mass. 306 (34 Am. Rep. 373). But this clause is preceded by a specific clause which governs in case of explosion-The case is directly ruled by Dows v. Insurance Co., 127 Mass. 346 (34 Am. Rep. 384). The policy in that case contained substantially the same provisions as in the present. Referring to the last-quoted provision, the court said:

“It appears to us to have had in view the case of a building falling by reason of inherent defects, or by the withdrawal of the necessary support, as by digging away the underlying or adjacent soil. It might perhaps include the case of a building thrown down by a storm or flood or earthquake; but it would be construing this provision too liberally in favor of the insurers to hold it to include the case of the destruction of a building by an explosion within the building itself, and of a fire immediately ensuing upon and connected with such an explosion, the measure of the liability for which has been carefully and precisely defined in the previous provision of the policy.”

We do not overlook the claim of defendant’s counsel that the standard policy is in a form prescribed by State authority, and should no longer be subject to the rule that such contracts are to be construed most favorably to the insured. We need not determine how far this rule of construction should be held modified by the conditions stated. The terms employed in this policy had been in previous use in insurance contracts, and, as we have seen, had had a judicial construction. It is to be assumed that these terms were used in this policy in the sense, in which they were previously used and defined. The same consideration answers defendant’s suggestion that the words “damage by fire ” should be limited to loss by actual burning. It is conceded that, in general, the words “loss by fire” include loss by water thrown upon the property, to prevent its destruction by fire; and it is but fair to assume that the language was employed in the statutory policy in view of its previously-accepted interpretation.

On the plaintiff’s appeal the questions presented are mainly questions of fact, depending upon a construction of the testimony. It was not shown by the testimony what portion of the loss of the goods not recovered was caused by the explosion, and what portion' by fire, or water used to extinguish fire. There was also another element entering into the destruction of the goods for which defendant is not liable, which was a flooding by water caused by a break in pipes resulting from the explosion. Mr. Davis, plaintiff’s manager, testified: “I could not pass any judgment as to what portion of our stock was destroyed by the fall of the building; only judge from what we recovered;” and in another place: “It was impossible for me to tell what portion of the goods not recovered were destroyed by water or injured by water other than what I saw from the goods that we did recover.” The burden of proof was with the plaintiff to • show a case within the terms of the policy. It failed to show any data whatever upon which a conclusion could be based which would not rest upon the merest guesswork. We think, therefore, that the circuit judge did not err in refusing to submit the question to the jury.

The judgment will be affirmed. Neither party will recover costs in this court.

The other Justices concurred.


text:
    RANDALL v. SCHWEIKART.
    Municipal Corporations — Mayor’s Appointments — Consent or Council.
    Section 114 of the Detroit charter, providing that all appointments to office by the common council shall be made by a majority vote of the members-elect, does not, in view of the history of that provision, apply to appointments which, under the charter, are tobe made by the mayor “with the consent” of the council, and a confirmation of such an appointment by a majority of a quorum of the council is sufficient.

      Certiorari to Wayne; Lillibridge, J.
    Submitted October 12, 1897.
    Decided December 21, 1897.

      Mandamus by James A. Randall to compel Carl Schweikart and Arthur S. Parker, members of the board of park and boulevard commissioners of Detroit, to recognize relator as a member of said board. From an order denying the writ, relator brings certiorari.

    Affirmed.

      John J. Speed, for relator.

      Charles Flowers (Alfred Lucking, of counsel), for respondents.
   Montgomery, J.

The relator applied to the circuit court for a. mandamus to compel the respondents, who are two of the members of the board of park and boulevard commissioners of Detroit, to recognize relator as a member of that board. The circuit court refused the writ, and the case is before us for review on certiorari.

The relator was an incumbent of the office. The term for which he was appointed expired. He was - entitled to hold over until his successor should be appointed. The mayor named Dr. B. R. Hoyt for the office, and his appointment was confirmed by a majority of a quorum of the common council, but not by a majority of the members-elect. The sole question requiring our consideration is whether the vote required for the confirmation of an appointment to this office is the vote of a majority of the members-elect, or whether the vote of a majority of a quorum is sufficient. It is conceded that a majority of a quorum is, by the charter, authorized to transact ordinary business, but it is contended by the relator that the confirmation of the mayor’s appointments comes under special provisions. Section 114 of the charter provides:

“All appointments to office by the board of aldermen shall be made by a majority vote of all the aldermen elected, and removals from office shall be made by a majority vote of all the members of the common council elected, except in cases where by this act a different vote may be required.”

This provision was, in its present form, incorporated into the charter in 1883. Previously- the provision had been identical with the present except the words “ by the board of aldermen ” had not been included in the section. The inquiry naturally arises, Why were these words interpolated ? The answer is made obvious by a history of the changes in the charter. In 1881 there was instituted for Detroit an upper house, called the “Board of Councilmen,” and in the creation of the upper house it was provided that all nominations by the mayor or other officer or board should be made to and confirmed by the board of councilmen; all appointments not on the nomination of the mayor or other officer or board should continue to be made by the board of aldermen. Section 114 was thereupon amended, requiring all appointments by the board of aldermen to be made by a vote of a majority of all the aldermen-elect. It will be seen that no such provision was adopted relative to appointments to be confirmed by the upper house, or board of councilmen.

It is the contention of the respondents’ counsel that this provision means now what it did at the time it was adopted, and is limited to appointments which the board itself makes, while, on the other hand, relator’s counsel maintains that it should be construed to cover all nominations on which the common council, as now constituted, is required to vote. This question must be determined by ascertaining, if we may, the legislative intent by subsequent amendments. In 1887 the charter was amended. The board of councilmen was abolished, and all the powers and duties of the councilmen were conferred upon the common council. It was provided that the “board of aldermen” was to be taken to mean the “common council ” whenever it occurred in the charter. . The title of the amendatory act gives no indication of an intention to amend section 114, nor was the section, as amended, reproduced. See Const. Mich. art. 4, §§ 20, 25. The provision conferring upon the common council powers and duties previously exercised by the board of councilmen should not be construed as enlarging those duties. The general rule is that a statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendments had always been a part of the statute. End. Interp. Stat. § 294. But an equally well understood rule of construction is that which requires that the language of a statute be construed in the sense which it imported at the time of its adoption (End. Interp. Stat. § 85; Darmstaetter v. Moloney, 45 Mich. 621); and, while this latter rule must give way to the former when the language is clear and without ambiguity, we think this is not such a case.

There was no amendment, in terms, to section 114. The appointments which the previous charter provided should be made by a board of aldermen continued to be made by the same body, and under the amended charter there is still room to apply the terms of section 114 to such appointments. The relator’s counsel has argued at length that the mayor’s appointments are not effective without the concurrence of the common council; that, therefore, the appointment is made by the common council, within the meaning of section 114. We do not think the deduction necessarily follows from the premises. As we have seen, such was not the intention when section Í14 was adopted, and, in our opinion, the language of that section does not imperatively call for that construction now. An appointment to office by the common council on the nomination of the mayor, or the confirmation by the council of the mayor’s appointment to office, would not, ordinarily, be referred to as an appointment by the board of councilmen or by the comm on council. Strictly, it is not that. More appropriately it would be called an appointment by the mayor and common council. The act relating to the board of park and boulevard commissioners provides that commissioners shall be appointed by the mayor, with the consent of the common council. This appointment, so made, is not, we think, an appointment by the common council, within the meaning of section 114.

The order of the circuit judge is affirmed.

The other Justices concurred.


author: Grant, J. Moore, J.

text:
    RABIDON v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    1. Railroad Companies — Fences—Yard Limits.
    A portion of a railroad right of way lying about a mile distant from freight and passenger depots in a thickly-settled locality is not too remote to come within the rule relieving railroad companies from the duty of fencing their “yard limits” or “depot grounds,” if such portion is in fact within the yard limits as fixed by the company, and is used for switching purposes, so that the erection of a fence along the right of way, with the incident cattle-guards and wing fences, would render the place dangerous to employés.
    2. Same — Evidence.
    The opinion of a former railroad employé that a specified point in the right of way in a city is not a part of the depot and station grounds, such as the company is relieved from fencing, is insufficient to raise a question for the jury, where the positive testimony adduced by the company shows that such point is within the yard limits as it has defined them, that switching is done , there, and that the erection of the statutory fences would endanger employés.
    3. Same.
    Whether a portion of the right of way of a railroad company is or is not within the “yard limits” depends upon whether it is reasonably necessary for switching purposes, or liable to become so; and the determination of the question does not necessarily depend upon distance from depots, or the frequency with which switching is done at the time of the inquiry.
    Moore, J., dissenting.
    Error to Muskegon; Russell, J.
    Submitted October 14, 1897.
    Decided December 21, 1897.
    Case by Louis Rabidon, an infant, against tbe Chicago & West Michigan Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frank H. Smith, for appellant.

      Macdonald & Marr, for appellee.
   Grant, J.

Plaintiff, who was five years old, passed from the- highway opposite his father’s house onto the railroad right of way, which was unfenced, caught hold of one of the box cars of a train, and was drawn under the cars and injured. Plaintiff, at the conclusion of the evidence, withdrew from the consideration of the jury all grounds of negligence except the failure to fence the right of way as provided by the statute. The defendant insisted that the portion of its right of way where the plaintiff was injured was within its station grounds or yard limits, which the law did not require it to fence. This presents the sole controversy. The court below left it to the jury to determine whether this was a necessary part of its station grounds or yard limits, and therefore exempt from the statutory duty to fence.

That portion of the city of Muskegon is fairly well settled. It is laid out in streets and blocks, the distance between Hamburg and Israella streets being 264 feet. Defendant’s road runs north and south, parallel to and adjoining Ambrosia street. Plaintiff lived on the northwest lot of the ""block, on the east side of the street. Directly opposite his residence was a cooper shop, with a side track running to it; the switch being in close proximity to Israella street. Directly south of Israella street is a large manufacturing establishment. There are three side tracks, — two upon the east and one upon the west side of the main track. The main switch to these side tracks is located in close proximity to Israella street. The following facts are established :

1. The right of way. at this point is within the yard limits, as fixed by the defendant.

2. To inclose the right of way with wing fences and cattle-guards on both sides of each street would render switching and the management of trains at this point dangerous to employés.

3. Plaintiff’s own expert witness shows that “yard limits are the space within which yard engines may work without receiving orders, as against other trains.”

4. The right of way at the point of the accident was within the yard limits, as thus defined.

The father of the plaintiff testified:

‘ ‘ The switch engine runs up there frequently, and draws freight cars to the Monroe Manufacturing Company. It goes at irregular intervals; is likely to run up almost any time.”

The chief engineer of the defendant testified as follows:

‘ ‘ It becomes necessary, in handling trains with a switching crew, to protect that crew against trains on the main line, other than the ordinary way of protecting a train on a main line outside; and a yard-limit sign is placed at a proper distance outside of the extreme limit to which the switch engines go. And the men are notified, also, of the point of the yard limit, which is at a sufficient distance outside of where switch engines have to go in doing their switching to protect them against main-line trains. That sign which indicates the yard limits is a notice to incoming trains that they are likely to meet switching engines any time after passing that limit. Switching engines are allowed to work over the track, within the yard limits, without special orders, and without the precaution o’f flagging. * * * Men have to couple and uncouple cars at those points, pass back and forth from the train to the switch; and they are quite liable to be caught in anything of the nature of a cattle-guard, and thrown down and injured, especially in the darkness.”

This evidence is uncontradicted. It is clear that defendant’s employes who do the switching would be compelled to cross over these cattle-guards. Plaintiff’s counsel appear to recognize this fact, and advance the proposition that fencing does not necessarily mean wing fences and cattle-guards at highway crossings. To meet the case made by the defendant in regard to switching, and the danger from inclosing its right of way with fences and cattle-guards, they introduced one witness who had been a railroad employé; and he testified that, in his opinion, “the spot where the cooper shop is, is not a part of the depot and station grounds.”

It appears that the depots — passenger and freight — were nearly a mile distant. Distance from depots is not the controlling consideration in determining “depot grounds” or “yard limits,” which are synonymous terms. It is well known that in large cities these grounds extend for several miles. Neither does the question of frequent or infrequent use for switching purposes control. The question is, Are they reasonably necessary for that purpose, or liable to become so ? It is not necessary to go outside our own decisions, in determining this question. It was settled in McGrath v. Railroad Co., 57 Mich. 555. In that case the opinion was delivered by Mr. Justice Sherwood, and concurred in by the entire court. It was there said:

“The existence or extent of these*grounds is-not to be determined by the continued actual use of any part thereof. When station grounds are laid out, their contemplated future use is not unfrequently of more consideration than the actual demands at the time in determining their shape and extent. The construction and operation of a new line of railroad always tends to the development of the resources of the section through which it passes, and is followed by increased population and business. This is a matter of such common observation that ordinary prudence and foresight determines such an appropriation for station purposes as shall be commensurate with such reasonably anticipated growth. When these grounds are appropriated and set apart by the company, it would be neither safe nor wise to allow their limits to be curtailed or extended by a jury in a proceeding where they collaterally come in question, as in this case, upon the mere showing that any part of the same was not in actual use at any particular time.”

This was followed and approved in Grondin v. Railway Co., 100 Mich. 598; Wilder v. Railway Co., 70 Mich. 382; Rinear v. Railroad Co., Id. 620; Schneekloth v. Railway Co., 108 Mich. 1. Moreover, switch grounds, as well as stations and freight depots, are exempt from constructing fences. 3 Elliott, Railroads, § 1194. It is there said:

“ The exemption of switch grounds is founded on the danger to employés which would necessarily result were the tracks fenced. The safety of the employés at points where they almost cpntinually pass up and down the track in the performance of their duties is far more important than would be the safety afforded to animals and property from the erection of fences at such tracks. ”

See, also, Flint, etc., R. Co. v. Lull, 28 Mich. 510.

The opinion of plaintiff’s witness was of no value. The question was confined to the spot where the cooper shop is. It did not meet or contradict the defendants evidence that switching was done there; that it was part of the yard limits, as defined by the same witness; and that fencing with wing fences and cattle-guards would be extremely dangerous. In fact, both counsel and the witness appear to have recognized the danger in thus fencing; for the attention of the witness is immediately drawn to the construction of the fence on the east side of the right of way along Ambrosia street, and particularly where the cooper shop is, and he said:

“In my opinion, it would not interfere with railroad operations at all to maintain a fence on the east side of the railway right of way, and particularly where the cooper shop is. ”

The proposition is seriously made that the defendant was required to construct a fence along the east side of its right of way, in front of plaintiff’s house, without wing fences or cattle-guards, as a protection to children living on the east side of the highway. The position is untenable. The statute requires no such fence. The common law imposes no duty to fence. Justice Cooley said in Maroott v. Railroad Co., 49 Mich. 99, “We have no statute requiring fences for protection against personal injuries.” If, however, such protection were contemplated, the statutory fence must be constructed, that is, one with Cattle-guards and wing fences. If a fence had been maintained along the street which would serve to keep a boy out, a few steps would have taken him around the end of the fence, to the right of way. It is absurd to say that such a fence would serve as a protection. Under this record, the defendant had conclusively established that this was a part of its yard limits, and that it was exempt from fencing. We do not intend to express any opinion upon the question whether the failure to erect and maintain such a fence as the statute requires is a negligent act, as against persons who enter upon the right of way and are injured. That question is not raised by defendant, and is not before us.

Judgment reversed, and new trial ordered.

Long, C. J., Montgomery and Hooker, JJ., concurred with Grant, J.

Moore, J.

(dissenting). In September, 1895, the

plaintiff, a boy about five years old, was living with his father on the east side of Ambrosia street, in Muskegon. North of his father’s residence, Hamburg street crossed Ambrosia street at right angles. Israella street was the next street south of Hamburg street. West of Ambrosia street, and parallel to it, was the main track of defendant company. West of the track was a cooper shop fronting on Hamburg street, with a side door near the rear end of the shop, opening upon defendant’s right of way. A short distance from the shop, coming from the south, ran a side track to the cooper shop. This siding would hold two or three freight cars, and freight could be passed through the side door to and from the shop, to and from the freight cars, by using a gang-plank. The residence of Mr. Rabidon fronted on Ambrosia street. There was no fence between Ambrosia street and the main line of defendant company, and no cattle-guards on Hamburg or Israella streets. The cooper shop is something more than a mile from the freight house of defendant company, and still farther from its passenger station. South of the cooper shop, something more than a block, was the Monroe manufacturing plant, running to which were several side tracks from the main line. This portion of Muskegon was quite thickly settled.

On the day in question, the plaintiff passed from Ambrosia street upon the right of way of defendant company, with two boys older than himself, and was lifted by one of them to a seat upon the door sill of the cooper shop. This door was from two to four feet above the ground. A freight train came slowly along, and, after the engine had passed, the plaintiff ran and caught upon some projection from one of the cars, for the purpose of riding, and was carried forward, towards the switch, until he finally fell and received severe injuries. It is claimed on the part of the plaintiff that the injury to the child was the result of the neglect of the company to build a fence on the westerly line of Ambrosia street, from Hamburg to Israella street. It is the claim of the defendant that it is under no obligation to build a fence on Ambrosia street, and cattle-guards on Hamburg and Israella streets, for the reason that the convenience of the public and the safety of the employés of the company require that these spaces should be uninclosed. Each of the witnesses who so stated testified on the cross-examination that the construction of a fence on Ambrosia street would not interfere with the convenience of the public, the operation of the trains, or the safety of the employés, unless there were wing fences and cattle-guards on Hamburg and Israella streets. It was claimed that cattle-guards at those streets would make the work of the employés of the company more hazardous, and the reason assigned was that it was necessary to pass over the street crossings, in coupling and uncoupling cars, to reach the sidings at the cooper shop and at the Monroe manufacturing plant.

It was also claimed by the railroad that this ground was in the yard limits of the road; the witness so testifying explaining that yard limits were those portions of the road where the switching engine and crew might work without special orders, and without the precaution of flagging. This witness claimed that the entire road of the company in Muskegon was within the yard limits. Testimony was offered on the part of the plaintiff that it would not inconvenience the public, or interfere with the operation of defendant’s trains, or the safety. of its employés,' to have constructed a fence between Ambrosia street and defendant’s right of way. Plats and photographs of the premises were introduced in evidence. There was no testimony offered upon the part of the defendant showing how much the company used the siding at the cooper shop, or how frequently cars were coupled or uncoupled between Hamburg and Israella streets. The witness made the general statement that it was not practicable or safe to fence the road at this place. There was testimony on the part of the plaintiff tending to show that the cooper-shop switch was not used more than once a month, and that this portion of the road was no part of the depot and station grounds, and that the switching into the freight yards of the company, and the making up of its trains, was not done within a long distance of this locality.

The judge charged the jury, in part, as follows:

“It is the duty of the railroad company to maintain fences on each side of its railway track, and to maintain cattle-guards at highway crossings and street crossings. In other words, it is the duty of the railroad to inclose its tracks by fences on each side, and by guards where the streets and highways come, so that its track between those places would be inclosed. There are certain exceptions to that law, and one question is whether this particular place comes within that exception. It is claimed on the part of the plaintiff that it was the duty of the railroad company to establish a fence along the westerly line of this street, — a straight fence, 18 feet from the railroad track. Gentlemen, that would be no compliance with the statute at all. The statute provides, as I have said, that the railroad track should be inclosed. Now, was it proper to inclose this track ? I am going to submit that question to you.
“The evidence shows here that there is a switch between these two streets near the cooper shop, and a cooper shop, which is used sometimes, and sometimes it is unused. The first question for you to take into consideration is whether it would inconvenience the railroad company in the operation of its business, and the public, to go and inclose that switch, — the shops there, from street to street, —on each side. If you find that it would, the company is not required to furnish a fence at all. If you find that it would not, the next question that you may take into consideration is as to whether if a fence were maintained there on each side, and the proper guards put in to make an inclosure, whether it would be dangerous to the parties who are operating the railroad, — the men who are working on the trains. If you find that it would not be proper to put those things in there for the purpose of completing the fence, without being dangerous to the employés of the railroad company, so that it might be responsible for an injury to them if one occurred, then it would not be required to fence. In that case, plaintiff cannot recover at all. You will take these two propositions into consideration: First, would it inconvenience the railroad company in the operating of their trains and the switch there, and that factory, and the public, or either of them, so it would be inconvenient and improper for them to have that inclosed in a fence? If so, the plaintiff cannot recover at all, because they are not required to fence it. Next, if they did that, and put in the guards, as required by the statute, at the street crossings, would it be dangerous to the parties who are operating trains, in switching or otherwise, using that switch or the main track ? If so, they were not required to put it in, and not required to do the fencing. And upon either of those propositions, if you find that it would be improper to have it inclosed and have those guards in, plaintiff cannot recover. If you find that it would be proper, and would not inconvenience the railroad company or the public in the operating of this cooper shop, and their road in connection therewith, and the approaches,' etc., to it, to the cooper shop, by the public, and that it would be proper to have a guard in there, and would not be dangerous to those who are operating the train or doing the switching, then it was the duty of the railroad company to inclose this with a fence.
‘ ‘ The next question to be taken into consideration is as to whether the fact,' — if you find that it was the duty of the railroad company to maintain a fence there, — whether that fact alone was the cause of this child’s being injured. If it was not, then the plaintiff is not entitled to recover at all. He is not entitled to complain unless he was injured by reason of that; and, for the purpose of determining that question, you should take into consideration the age of this hoy, the kind of a fence that it is the duty of the railroad company to maintain (you have heard that section read, so that you know what kind of fence, — an ordinary board fence four feet and a half high); whether, if a fence had been there, that fact would have kept this boy off from the track. If you say that it would not, why, of course, that ends the case, so far as the plaintiff is concerned; he would not be entitled to recover. The boy would probably have climbed over the fence; if you are satisfied of that, or that it would not have stopped him, — he would have gone around the end, or got onto the track in some other way, — of course.he has no right to complain because there was no fence there. * * * If you find that the boy would probably have gotten over the fence and gone down on the track, then there are certain other things for you to take into consideration. It is conceded, so far as this case is concerned, that the railroad company were operating their trains just exactly as they had a right to operate them; that they were not running too fast; that they were keeping proper lookouts, and doing everything that was necessary for them to do to protect themselves, except for this fence. * * * If, after taking the age of the boy, and all the surroundings, and those remarks, into consideration, you are satisfied that the boy at that time knew that it was dangerous for him to get onto that train, why, he cannot recover at all. Because he ran into danger, he would be negligent himself. * * * And if you find that he knew, after making this talk there, notwithstanding the fence, — if he knew, after having this talk there, that it was dangerous for him to touch that train and do what he was going to do, — he cannot recover at all; he is not entitled to recover. Railroad companies are no insurers of parties, of boys, who are seeking injury to them, boys who are seeking to catch onto railroad trains, if they know better; and that is one of the questions in this case.”

The court was requested to instruct the jury that defendant was not obliged to fence its road at this point, and his refusal to do so is assigned as error. Where the material facts in a case are undisputed, and those facts show that the portion of the road unfenced is a part of the station or depot grounds, then it is undoubtedly the duty of the court to instruct the jury that the railroad is not obliged to fence. McGrath v. Railroad Co., 57 Mich. 555; Grondin v. Railway Co., 100 Mich. 598. I am unable to find a case, decided by this court, where, under the testimony shown, it was doubtful whether the place of the accident or the cause of the injury for which suit was brought was within the station or depot grounds, within the definition given by this court of what constitutes station and depot grounds. In Terre Haute, etc., R. Co. v. Schaefer, 5 Ind. App. 86, the railroad company claimed that its road could not properly be fenced, for the reason that to have fenced it there would have included the putting in of cattle-guards, which would have endangered the safety of its employés in the use of that part of the railroad in switching and making up trains; and it was held by the court that, as the evidence upon that question was conflicting, the verdict-of the jury would not be disturbed. In Cox v. Railroad Co., 128 Mo. 362, it was held that the burden of showing, as a reason for not fencing, that so doing would endanger the employés, was upon the defendant, and that, where the testimony was conflicting, it raised a question of fact, to be decided by the jury. See Toledo, etc., R. Co. v. Thompson, 48 Ill. App. 36; Indianapolis, etc., R. Co. v. Clay, 4 Ind. App. 282. In Brandenburg v. Railroad Co., 44 Mo. App. 224, it is held that when it is fairly debatable, under the evidence, whether it is necessary to leave unfenced a part of its road, to avoid danger to its employés, and for the safe and convenient transaction of its business with the public, it raises a question of fact, which should be submitted to the jury. See, also, Toledo, etc., R. Co. v. Woody, 5 Ind. App. 331.

In the recent case of Grosse v. Railway Co., 91 Wis. 482, it was said that:

“ No doubt, the question of what or how much ground at any particular station will be necessary for the convenience of business at that station must, in the first instance, be determined by the company itself; but that determination cannot, considering the nature of the interests involved, in all cases be conclusive. * * * Cases may arise in which it may properly be a question for the jury whether the place where the animals were injured was within the limits of grounds which were reasonably necessary for depot uses. ”

And in that case it was said that it was a question for the jury. The following cases are to the same effect: Dinwoodie v. Railway Co., 70 Wis. 160; McDonough v. Railroad Co., 73 Wis. 223.

In Flint, etc., R. Co. v. Lull, 28 Mich. 514, the court cited with approval-a case in which it was held that while the statute requiring fences has no application to points where it would be illegal or improper that roads should be fenced, such as the crossings of streets or alleys in a town, or at mills, etc., where public convenience requires the way to be left open, yet that this is the limit of the exception, and the track within the limits of a city or town, at points where no such reasons apply, is as much within the statute as a track elsewhere. And in the same case it is held that, if it is claimed that any reason of public or private convenience requires the right of way to be unfenced, it is for the railroad company to show it.

This accident occurred in a thickly-settled portion of the city, one mile from the freight station of the defendant company, near a short siding that was used to accommodate a cooper shop employing only from two to four men, and which furnished to defendant road but a small amount of freight, and the burden was upon defendant to show that it was not required to fence its road at-this point. The testimony was conflicting. Under such circumstances, a question of fact was raised, which was properly left to the jury. The jury found against the defendant, under a charge so favorable to the defendant that it has no right to complain of it.

I think the judgment should be affirmed.


author: Hooker, J.

text:
    ADAMS v. SEIBLY.
    1. Divorce — Alimony—Refusal to Allow — Judicial Discretion.
    Where a divorce was granted for desertion, reserving, without prejudice, the question of alimony, and the court to which application for alimony was subsequently made found, on additional testimony being taken, that the divorce was procured by deliberate deception on the part of the complainant, it was proper for the court, in exercising its discretion as to the award of alimony, to take into consideration the manner in which the divorce was obtained.
    2. Same — Evidence.
    But complainant’s admission that her husband went away in consequence of her refusal to live with him did not justify the denial of alimony altogether; it appearing that he was not free from fault, that he afforded complainant some ground for her refusal to cohabit with him, and that he gave her no assistance after the separation, but left her to support herself, notwithstanding he had ample means from which to provide for her' support.
    Appeal from Ingham; Person, J.
    Submitted October 14, 1897.
    Decided December 21, 1897.
    Petition by Elfina A. Adams against Ered M. Seibly, administrator with the will annexed of the estate of petitioner’s former husband, Edward J. Adams, deceased, and others, for an allowance of alimony. Prom a, decree dismissing the petition, petitioner appeals.
    Reversed.

      Q. A. Smith (M. V. Montgomery, of counsel), for petitioner.

      John I. Carpenter (Cahill & Ostrander, of counsel), for defendants.
   Hooker, J.

In the year 1889 a decree of divorce from the bonds of matrimony was granted to the complainant by the circuit court in chancery for the county of Ingham, Judge Peck presiding. The ground stated in the decree was desertion. The defendant allowed the bill to be taken as confessed, for failure to file an answer, though his appearance was duly entered by a solicitor, who Avas present’at the hearing, and cross-examined the complainant, who was called as a witness upon her own behalf. The underwriting upon the subpcena made no allusion to alimony. It was as follows:

“Underwriting. A personal decree is sought against the defendant, for divorce; and the bill is filed to reach interests in property, and not to obtain any further relief, against the remainder of the defendants.”

At the close of the testimony, the court announced that a decree might be taken upon the ground of desertion; and, to a request that alimony be granted, the court said:

“I think I will make no order for alimony. You may state in the decree that the question of alimony is reserved until we can get some personal service on him. The decree will be practically worthless, without personal service on him, with reference to that subject, and I hesitate to make any decree on the subject of alimony in his absence; but you may preserve your rights in that regard by stating in the decree that the entire subject, as to alimony, is reserved, and without prejudice to make any application you can when you get jurisdiction of the defendant. ”

Counsel pressed the matter, and the court replied:

“With reference to permanent alimony, I will let it stand. As I told you, I do not feel obliged to make an order for permanent alimony. ”

No further proceedings were had until June, 1895, when, the defendant being dead, a petition was filed for an adjudication of the question of alimony. Upon the hearing, the testimony which was before the court on the original hearing was introduced, and witnesses were sworn,— among them, the complainant, who, on cross-examination, gave testimony which, in the opinion of the present judge of said court, showed that the defendant did not desert the •complainant, but that she refused to live with him. In an opinion filed in the cause, he states that the testimony of the complainant, taken before him, shows that the decree was obtained by deliberate deception by the complainant, and he determined that, while he could not vacate the decree of divorce, he might properly refuse further relief, upon discovery of the fraud upon the court, and denied the prayer of the petitioner. The complainant has appealed.

Ordinarily the question whether or not permanent alimony shall be allowed is determined at the time the decree for divorce is announced (or, if not, it is later), by the same judge. He may withhold the decision of the alimony question for decision later, upon additional testimony, or upon the evidence produced at the hearing, if that subject has been gone into. In either case he may consider all of the evidence, and in the former he may consider any testimony which tends to show that it should or should not be allowed, or which has a bearing upon the question of amount. We think the question should not be concluded by the fact that a divorce had been granted, especially Where the judge is convinced that it was obtained by a suppression or perversion of facts by the complainant herself. If it should be conceded that the complainant, by virtue of her decree of divorce, became entitled to alimony, the amount would still be open; and we do not understand that the inquiry would thereafter be limited to the amount of property owned by the parties, and their conduct after the decree was granted. But the granting of a decree of divorce does not settle the right of the wife to permanent alimony, which is dependent upon the statute. Whether she shall have anything more than an immediate right to dower, under the statute, is a matter of judicial discretion, and her conduct has an important bearing upon it. We think that it was competent for the court to take into consideration the fact (if it were one), appearing then for the first time, that the wife deserted her husband, although he should also be of the opinion that a decree of divorce should not have been granted. If it were true that she had obtained a decree of divorce that she was not entitled to, it would not follow that, because she had succeeded in imposing upon the court so far as to unjustly obtain a modicum of the relief that it was in the power of the court to grant, the court thereby became bound, and not only could not retrace its steps and set aside the wrongful order, but must continue to grant further undeserved relief.

The question of alimony being here for review, we may consider the whole record, which satisfies us that the defendant was not free from fault in the transaction; and while the cross-examination of the complainant shows that she refused to live with him at the time of the separation, and that he thereupon went away, and they never lived together afterwards, and perhaps justifies the legal conclusion that there was not a technical desertion by the defendant, it also leads us to believe that he never provided well for his wife, but left her largely upon her own resources. The original testimony shows that she supported herself nearly all of the time, and that she had no assistance from him after the separation. We are not satisfied that her refusal to cohabit with him was entirely without cause, or justified his abandonment of or failure to provide for her. He had ample means, yet he failed to do so, and persisted in that course against the express order for temporary alimony, which he did not pay. It may be that these facts influenced Judge Peck in determining that she was entitled to a divorce, and substantial justice may have been done in granting the decree, to which the defendant practically confessed that she was entitled, by dedining to answer, and acquiescing in the result. If she is to be believed, she worked hard for years, and supported herself, thus indirectly contributing to his income, of which he had laid up several thousand dollars at the time of the divorce. Upon the whole, we think that she should have alimony. An order will be entered fixing the amonnt at $2,000, — the same being in full of all claims for temporary alimony and costs, and in lieu of any claim for dower,— and the case will be i’emanded for further proceedings.

Long, C. J., Grant and Moore, JJ., concurred. Montgomery, J., did not sit.


text:
    HUBBARD v. GARNER.
    1. Police Officers — Searching Prisoners — Retention of Money.
    Police officers have no right to take and retain money found upon a person arrested, except for the purpose of using it as evidence on the trial of the proceedings instituted by the arrest.
    2. Same — Garnishment.
    Moneys in the possession of a jailer, wrongfully taken from the person of a prisoner, are not subject to garnishment.
    3. ' Appeal — Assignments of Error — Bill of Exceptions.
    An objection that the assignments of error did not accompany the bill of exceptions is without force where the appellee stipulated to the settlement of the bill.
    4 Same — Exceptions to Findings.
    A case heard before the court without a jury cannot be considered on special assignments of error, where no exceptions were taken to the findings.
    5. Same — General Assignment.
    But a general assignment of error that the facts found do not support the judgment may be based upon the record, without any bill of exceptions.
    6. Same — Amendments in Supreme Court — Motion Pee.
    Assignments of error may, in a proper case, be amended jm appellant’s motion, so as to include a general assignment that the findings of the court below do not support the judgment, in which case the usual motion fee will be allowed to the appellee.
    Error to Genesee; Wisner, J.
    Submitted October 15, 1897.
    Decided December 21, 1897.
    Garnishment proceedings by George W. Hubbard against Bert M. Garner, as garnishee of John Chapman. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Black & Brown and Geer, Williams & Halpin, for appellant.

      Everett L. Bray, for appellee.
   Montgomery, J.

This action originated in justice’s court. It is sought to subject to process of garnishment money belonging to the principal defendant, John Chapman, which was at the time of the service of the process in the hands of the garnishee defendant, Garner. The facts, as found by the circuit judge, are that the defendant Chapman was arrested by the city marshal for a misdemeanor, and taken to the county jail for detention; that Garner was the jailer in charge; that Chapman was searched by the marshal in the presence of Garner, and $209.41 in money taken, and turned over to Garner for safe-keeping.

The court found that there was no bad faith on the part of Garner or the plaintiff, and found, as matter of law, that the money might be reached by this process. W e are unable to agree with this conclusion. It is not pretended that the money taken from Chapman by the officers constituted any evidence against him which could have been used on the trial of the criminal proceedings instituted by his arrest. Indeed, it is quite apparent that it could not have been so used. We think the officer had no authority to take and retain possession of the money. While he had the right to search the prisoner, to see that he had upon his person no instruments which might .aid to effect his escape, and also to retain in his custody any evidence which might be used on his trial, the right of seizure does not extend beyond this. 2 Am. & Eng. Enc. Law (2d Ed.), 860, and cases cited. This court has recently had occasion to pass upon the right of search and seizure, and we have held that such right ought not to be extended beyond the necessities of the case. Newberry v. Carpenter, 107 Mich. 567 (31 L. R. A. 163).

The seizure being wrongful, was the money in the hands of the officer subject to garnishment ? On the authority of Bailey v. Wright, 39 Mich. 96, it is clear that the money could not, after such unauthorized seizure, have been attached by the officer; and we think, on principle, that it should be held exempt from garnishee process. To sustain such proceedings would open the door to such invasions of the personal security of the individual as cannot receive the sanction of this court. It is true that there was no collusion shown in this case, but in all cases it might be difficult to show actual collusion; and we think the safe rule is that which excludes the possibility, and this rule is supported, as we conceive, by the best-reasoned cases. Robinson v. Howard, 7 Cush. 257; Dahms v. Sears, 13 Or. 47; Richardson v. Anderson, 4 Tex. App. Civ. Cas. 493; Connolly v. Thurber-Whyland Co., 92 Ga. 651; Commercial Exchange Bank v. McLeod, 65 Iowa, 665; Rood, Garnish. § 56; Hill v. Hatch, 99 Tenn. 39.

Plaintiff contends that the case is not presented in shape to admit of consideration of this question. It is true that the proper practice was not observed, as the assignments of error did not accompany the bill of exceptions. But the plaintiff stipulated to the settlement of the bill, and, as the defect is amendable, we do not deem it necessary to remand the record for this purpose. The appellant has also mistaken the practice in another respect. The assignments of error are special, and there were no exceptions to the findings in the court below. Under these circumstances, we cannot consider the case on special assignments of error directed to specific rulings on questions of law. Haines v. Saviers, 93 Mich. 440. We can, however, under an assignment of error alleging that the findings do not support the judgment, consider that question. Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795); Peck v. City Nat. Bank, 51 Mich. 354 (47 Am. Rep. 577). Such assignment may be based upon the record, without any bill of exceptions. Counsel for appellant ask leave to amend the assignments of error, and as we think no surprise will occur, or injustice be done to plaintiff, we will permit it. The appellee will be entitled to the usual motion fee, and the judgment will be reversed, and judgment entered in this court for defendant, with costs of both courts, less the motion fee taxed to appellee.

The other Justices concurred.


text:
    DUNN v. MICHIGAN CLUB.
    1. Chattel Mortgages — Book Accounts.
    The rule that book accounts are the subject of assignment and mortgage applies as well to future as to existing accounts.
    2. Same — Future Accounts — Failure to Make Entry Upon Books.
    A mortgage of all future book accounts covers an unpaid account subsequently accruing to the mortgagor, whether or not it is entered upon his books.

    Error to Wayne; Hosmer, J.
    Submitted October 15, 1897.
    Decided December 21, 1897.
    Garnishment proceedings by Edward J. Dunn against the Michigan Club, as garnishee of gliomas Swan and others. The Union Trust Company intervened as claimant of the fund. From a judgment in favor of claimant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William B. Jackson, for appellant.

      Russel & Campbell, for appellee Union Trust Co.

       The authorities respecting the mortgage or assignment of future accounts or earnings are collected in a note to Sandwich Manfg. Co. v. Robinson, (Iowa) 14 L. R. A. 126.

   Montgomery, J.

The plaintiff is a judgment creditor of the defendant Swan. On the 21st of February, 1896, he caused a writ of garnishment to issue, directed to the Michigan Club. The defendant Swan was engaged in the business of restaurant keeper and caterer. On the 1st day of May, 1893, he executed a mortgage, now vested in the Union Trust Company, by which he mortgaged all his stock in trade, and also mortgaged and assigned all book accounts, notes, etc., “owned by him, or appearing on the books of said business now being conducted by him at the place aforesaid, and all future book accounts representing proceeds of sales of goods in mortgagor’s stock, and all additions to the same.” Prior to the 21st of February, defendant Swan had made a contract with the Michigan Club to provide the annual dinner to be served on the 21st of February. On the day the dinner was served, and before the contract price of $600 was paid, or any bill rendered for the same, or any entry made of the same on the books of Mr. Swan, the writ in this case was served. The trust company has intervened, claiming the account as covered by the mortgage. The circuit judge sustained this claim, and the plaintiff brings error.

It is no longer an open, question in this State that accounts are the subject of assignment, and may be mortgaged, and this applies as well to future accounts as to existing accounts. Fuller v. Rhodes, 78 Mich. 36; Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364, 102 Mich. 462.

Plaintiff’s counsel,' however, contends that this account or claim against the Michigan Club was not a book account, within the meaning of the clause of the mortgage above quoted; but we think “book accounts, ” as used in this connection, must be construed to include all unpaid accounts which are the proper subject of a book entry, as this item certainly was until payment. The fact that the writ was served before the entry of the item on the books does not change its nature.

The judgment will be affirmed.

Long, C. J., Hooker and Moore, JJ.. concurred. Grant, J., did not sit.


text:
    SMITH v. KELLEY, MAUS & CO.
    1. Contracts — Letters—Offer and Acceptance — Variance.
    Defendant, by letter of August 19th, offered plaintiff a position as traveling salesman, “at the rate of §150 per month to January 1st.” The letter contained the assurance that plaintiff might continue in the employment as long as he could make his services valuable. Plaintiff, by letter of August 20th, accepted the proposition “to enter your employ for the next season.” Held, that the acceptance was not at variance with the offer, and that the correspondence showed a contract of employment to January 1st.
    2. Same — New Parol Agreement — Evidence.
    The parties, having made such a contract, were at liberty, by mutual consent, to abandon the arrangement, and enter into a different agreement by parol; a fact which either could show to defeat an action on the contract evidenced by the letters.
    Error to Kalamazoo; Buck, J.
    Submitted October 15, 1897.
    Decided December 21, 1897.

      Assumpsit by William Smith against Kelley, Maus & Company, a corporation, for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Howard, Roos & Howard, for appellant.

      Osborn, Mills & Master, for appellee.
   Hooker, J.

The plaintiff and defendant had negotiations regarding the employment of the former by the latter as a commercial traveler. The following letters show the correspondence upon which the plaintiff relies as a contract, and under which he claims that he went to work:

“Chicago, July 31, 1895.
“Will Smith, Esq.,
“523 W. 7th. St., Cincinnati, O.
Dear Sir: We are now ready to make arrangements with a good man for the road, to represent us in Michigan, Indiana, and part of Ohio. If you are open for an engagement, we think it would pay you to take a run up to Chicago, and see us, at once. Kindly write us when you will be up, and oblige,
“Yours,
“Fred K. Maus.
“If you cannot come, can you give us the names of one or two well-posted men in your line who could ?”
“Chicago, August 19, 1895.
"“Mr. Will Smith,
“523 W. 7th St., Cincinnati, O.
“Dear Sir: We will, start you out on the road at the rate of $150 per month to January 1, 1896. If, after that time, you are worth more money to us, we will be only too glad to pay you what you are worth to us; and you can continue right along with us after that, as long as you can make your services valuable to us, at a salary satisfactory to you and ourselves. We want you right away, and, if possible, come up this week; and it will take at least a week or 10 days to post you, and get samples ready. When will you be here ? Come at once, if possible. Address,
“F. K. Maus,
“Care Kelley, Maus & Co.”
“ Cincinnati, August 20, 1895.
“Fred K. Maus,
“Chicago, 111.
Dear Sir: Your proposition to enter your employ for the next season at hand, and I accept; and, as I told you in our interview, would come just as soon as possible. On account of the absence of my employers, I cannot give you date, but on their return, the last of the week, will notify you at once. I am,
“Yours truly,
“Will Smith.”

Upon the trial, counsel for the defendant contended that this correspondence did not constitute a contract, because the letter of August 20th was not -an acceptance of the proposition contained in the letter of August 19th, for the reason that it contained stipulations varying the proposition. They introduced a letter dated August 27th, which is claimed to show that defendant did not understand it as an acceptance. It is as follows:

“ Chicago, August 27, 1895.
“Mr. Will Smith,
“Care Rattarmann & Luth,
“Cincinnati, O.
Dear Sir: Your favor of the 20th received during the writer’s absence from the city. We would like to know when you will be here, as we desire to get the matter settled up at an early date. If we engage you, we wish to get you started out on the road. Please let us hear from you promptly, and oblige,
“ Yours truly,
“F. K. Maus.”

They also sought to show by the cross-examination of the plaintiff, and by the testimony of other witnesses, that the plaintiff did not go to work upon the terms stated in these letters, but that he visited Chicago, as requested, and a new contract was made there, differing from that contained in the letters, especially as to the period of his employment.

The letter of August 19th cannot be construed as unqualifiedly offering the plaintiff employment beyond January 1st. But it was an offer to the plaintiff to enter the defendant’s service, with an understanding that it might be for a longer period; and we think the reference to the ‘ ‘ next season, ” in his letter, is to be read in connection with that offer, and should not be considered a variance from the proposition in that respect. There was, however, nothing to prevent the parties from abandoning this arrangement, and, by mutual consent, making a new one, when the plaintiff visited Chicago. We think the defendant should have been permitted to show that such was the case, if it was able to do so. Seaman v. O’Hara, 29 Mich. 66; Westchester Fire Ins. Co. v. Earle, 33 Mich. 153; Roger Williams Ins. Co. v. Carrington, 43 Mich. 256; Barton v. Gray, 57 Mich. 622; Blagborne r. Hunger, 101 Mich. 375.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    WYCKOFF, SEAMANS & BENEDICT v. BISHOP.
    1. Sale — Agency—Set-off.
    A purchaser of typewriters at an agreed price, to be resold by him, cannot interpose by way of set-off, in an action on a bond given by him on appeal from a judgment against him for machines purchased, a claim for work performed in adjusting and aligning the machines, where there was no agree-" ment that he should be paid therefor, and the seller immediately repudiated any liability on being notified of the claim.
    2. Same — Exclusive Rights — Commissions.
    An agent for the sale of typewriters, who, under his contract, was to receive the benefit of all sales made in a given State, is not entitled to commissions on the sale of a machine by the maker to a purchaser in another State, merely because it is shipped by the purchaser to a branch office within the agent’s territory.
    Error to Wayne; Hosmer, J.
    Submitted October 15, 1897.
    Decided December 21, 1897.
    Debt by Wyckoff, Seamans & Benedict against A. Oushman Bishop, as principal, and Robert E. Hull and O. Edward Richmond, as sureties, upon an appeal bond. From a judgment awarding a set-off to defendant Bishop, plaintiff brings error.
    Reversed.

      O. M. Leonard (Julian G. Dickinson, of counsel), for appellant.
   Moore, J.

The plaintiff in this cause, a corporation, sued defendant Bishop upon a claim assigned to it by the firm of Wyckoff, Seamans & Benedict against Bishop, and obtained judgment. The case was appealed to the Supreme Court by Mr. Bishop, and the judgment of the court below was affirmed. Wyckoff, Seamans & Benedict v. Bishop, 98 Mich. 352. When Mr. Bishop appealed the case, he gave a bond signed by himself as principal and by Mr. Hull and Mr. Richmond as sureties, conditioned, among other things, to pay the judgment and costs if the judgment of the court below was affirmed. The judgment and costs have not been paid. Plaintiff brought this action upon the bond for the amount of the judgment and costs. Defendants Hull and Richmond interposed the plea of the general issue. Defendant Bishop pleaded the general issue, and gave notice of set-off. The items of set-off are as follows:

To adjusting and aligning 572 typewriting machines from time to time between May 1, 1889, to October 81, 1891............................. $572 00
To commission on typewriter sold G. & M. Transportation Co.................................... 84 00
To check......................................... 51 45
Interest on the above amounts from March 21, 1892.

The plaintiff asked the court to direct a verdict in its favor for the amount of the judgment and costs recovered in the case which was here. The court instructed the jury that they must find a verdict for the plaintiff for the amount of costs recovered in that case, but that they might set off against the judgment defendant Bishop’s claim of set-off, if they found he had established it by the proof. The jury returned a verdict for the plaintiff for the amount of costs, but wiped out the judgment recovered by it by allowing that as the amount of the set-off. Plaintiff appeals.

No argument or brief has been made or filed in this court on .the part of the appellee. The record discloses that prior to 1891 Mr. Bishop made an arrangement with the firm of Wyckoff, Seamans & Benedict to sell the Remington typewriting machines and supplies, he buying them outright at an agreed price £. o. b. The first item in the transaction litigated when the case was here before was a shipment made to him May 2, 1891. Monthly reports were made to him. The last shipment was made to him December 11, 1891, and the last remittance made by .him to them was $51:45, sent March 21, 1892. Wyckoff, Seamans & Benedict claimed there was due them at that date $320. This not being paid, suit was brought upon it, and it was for that claim that judgment was rendered in their favor in the suit which was appealed here.

As already stated, Mr. Bishop bought the machines at an agreed price. His item of set-off is a charge he now makes for work done on the machines to make them fit to put upon the market. The price made to him was for the machines in New York, and he paid the freight from there. The only proof in the case which has any bearing upon- his right to recover for the work done upon the machines is his testimony, as follows:

“ In 1890, at their office in New York, I had a conversation with them with regard to my claim against them for putting these machines in order. They brought-a machine out of the packing room, had it opened in my presence, and I called their attention to the defective manner in which they sent out their machines. The assistant foreman of that department of the factory was there. They were very glad of it, they said. I called the attention of Mr. Seamans more particularly to defects in the machines they were sending out, and illustrated it by this machine that was taken from their packing room. I said to them also, ‘ Gentlemen, you owe me over a year’s salary for the time I have already expended in putting your machines in order that they would satisfy customers.’ Mr. Seamans says: ‘A year’s salary; that is not much,— $250.’ ‘ Well,’ I said, ‘ I am not working for that sum at this time.’ The conversation went on, and he turned to the foreman, and said, ‘ If Mr. Bishop will draw upon us for his expenses in this trip to New York, we will honor the draft.’ ‘ No,’ I says, ‘ I will not do that, gentlemen. I will tell you what you do for me. You make and present me with one of those inlaid mother-of-pearl machines, and we will call this trip to New York square.’ They sent me such a machine, a machine which retailed at $125, for my trip to New York, and calling their attention to these, and said that they would see that the factory sent out the machines in better condition. No part of that $572 has been paid. ”

In response to the monthly statements of account sent him, he made no claim that he was entitled for aligning machines. He testified that he kept a tally of them upon the blotter, and that in March, 1892, he made a charge for aligning 572 machines, $286, and sent a statement of the amount to the firm. They at once repudiated any liability for this amount. Giving to this testimony the fullest weight possible in favor of Mr. Bishop, we do not think it establishes a claim against the firm that can be used by way of set-off in this proceeding. See Shipman v. Coryell, 105 Mich. 395.

As to the item of $34 for commission, it is Mr. Bishop’s claim that, because this ■ machine was sold, and was brought to Benton Harbor, in this State, and used, he is entitled to the commission. His testimony is:

“I was to have the State of Michigan as exclusive territory, and nobody to sell in my territory without my receiving a benefit. ” ‘ ‘ The thirty-four dollar item is a typewriter sold the Graham & Morton Transportation Company, and delivered at Chicago. Chicago was not in my territory, but the Graham & Morton Transportation Company had their office at Benton Harbor, in this State, and the machine went into that office. They had no right to sell in my territory. I got onto these facts at the time, and charged them my commission on .that machine, and insisted upon it. ”

As soon as any claim was made for this commission, the firm denied Mr. Bishop’s right to it, and in the letter sent by Mr. Bishop in which ha claims this commission he states that the Graham & Morton Transportation Company own a dock at Chicago, and have a freight and ticket office there. It is difficult to see upon what theory Mr. Bishop can claim he was entitled to a commission upon this machine. It was sold in Chicago, to a corporation having a freight and ticket office there; and by his own statement it was not such a sale as should inure to his benefit.

The item of $51.45 was allowed as á credit to Mr. Bishop in the other case, and manifestly he should not have credit for it twice.

It is not necessary to consider the other assignments of error. The trial court should have directed a verdict in favor of the plaintiff for the amount of the judgment and costs in the former case, with interest.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    REID, MURDOCK & CO. v. BENZIE CIRCUIT JUDGE.
    1. Pleading — Capias—Filing Declaration — Limit of Time.
    Plaintiff in a suit commenced by capias ad respondendum has until the end of the next term after the return of the writ in which to file his declaration; the statute (2 How. Stat. § 7312), and not the rules of court, controlling in such cases.
    2. Mandamus — Premature Default.

      Mandamus will lie to set aside a judgment by default which was prematurely entered.

      Mandamus by Reid, Murdock & Company to compel Fred H. Aldrich, circuit judge of Benzie county, to set aside a default entered against relator in a suit by it against Henry R. Grostein.
    Submitted November 3, 1897.
    Writ granted December 21, 1897.
    The following is a correct statement of this case, taken from relator’s brief:
    “Reid, Murdock & Co. sued Henry R. Grostein by capias; commencing its suit on the 8th day of November, 1895. Arrest was made, and defendant was released on appearance bail November 9, 1895, and defendant was never thereafter in custody. The writ was returnable December 10, 1895, and on the 30th of December, 1895, defendant filed special bail, but served no notice of his appearance. The writ was returned January 10, 1896. The next term of the Benzie circuit court, after the writ was returned, began April 19, 1896. Defendant entered a common order, defaulting plaintiff for not filing declaration, on the 23d day of January, 1896, and served no notice of the order. On the 25th day of January, 1896, defendant made the default absolute, and secured the entry of a judgment in favor of the defendant, without notice. On learning of the entry of the defaults and judgment, plaintiff moved to set the orders and judgment aside. The motion was heard during the April term, 1896; the court announcing an order, on the hearing of the motion, setting the defaults and judgment aside, the substance of which order was entered in the journal, whereupon plaintiff filed and served its declaration; such filing and service being made within the next term of court after the writ was returned. After the declaration had been filed and served, the court, at the instance of defendant, without notice to plaintiff, set aside the order vacating the defaults and judgment, and held the matter open for further argument, which was had by brief; and the court made no final order upon the motion until the 29th day of July, 1897, on which day the court denied the motion to set aside the defaults, and permitted them to stand. Thereupon plaintiff petitioned this court for a writ of mandamus, which is the subject of this application.”

      Bundy & Travis, for relator.
   Grant, J.

(after stating the facts). The proceedings in these cases are governed by the statute, and not by the rules of court. Fish v. Barbour, 43 Mich. 19. The entry of plaintiff’s default in not filing its declaration was premature. It was entitled to file a declaration at any time before the end of the next term after the return of the writ. 2 How. Stat. § 7312.

The writ will issue as prayed.

The other Justices concurred.


author: Long, C. J.

text:
    HUMPHREY v. EDDY TRANSPORTATION CO.
    1. Trial — Change op Theory.
    On the first trial of an action for commissions on the sale of a boat, counsel, on being ashed to elect between alleged inconsistent items of the bill of particulars, claiming commissions for finding a purchaser in the D. company, for making a sale to the D. company, and for finding a customer in- the S. company, respectively, stated that the items set out were all parts of one transaction; that plaintiff found a purchaser in the S. company, and made a sale to the D. company. He elected to recover upon finding a purchaser and making a sale to the D. company. Upon a second trial, counsel claimed on a transaction in which the D. company was the nominal, and the S. company the real, purchaser. Held, not a change of theory.
    2. Principal and Agent — Commissions.
    Where the general manager of a transportation company was authorized to arrange for the sale of its property, and to agree upon the commissions to be paid to the agent for bringing about the sale, the company cannot avoid paying the commissions on the ground that the agent was himself interested in the company to which the sale was made, and that a third company was contributing a bonus towards the purchase price, if knowledge of these facts was brought home to the general manager before the sale.
    Error to Wayne; Frazer, J.
    Submitted November 4, 1897.
    Decided December 21, 1897.

      Assumpsit by Moses W. Humphrey against the Eddy Transportation Company for á commission on the sale of boats. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      De Forest Paine (John D. Conely, of Counsel), for appellant.

      John H. Goff and John C. Shaw, for appellee.
   Long, C. J.

This case was in this court at the October term, 1895, and is reported in 107 Mich. 163. The facts as they appeared by that record are fully set out in that opinion, and need not be restated. It was held that the court should have directed a verdict in favor of the defendant. The judgment was reversed, and a new trial ordered. A new trial has been had, and the court below directed verdict in favor of defendant. Plaintiff now brings error.

It is contended by counsel for defendant that on the present trial the plaintiff changed his theory, and adopted a theory not set out or claimed under in the former trial, in that on the former trial plaintiff sought to recover on a sale to the Detroit Dry-Dock Company, while in the last trial it was contended that the Dry-Dock Company was only a nominal purchaser, and that the Sulphite Fibre Transportation Company was the real purchaser. It appears that on the former trial the court asked plaintiff to make an election, as the bill of particulars claimed;

(1) Commissions for finding a purchaser in the Detroit Dry-Dock Company for the boats specified-.......- §1,000
(2) Commissions upon the sale of the boats' to the Dry-Dock Company------------------------------ 1,000
(3; For finding a customer for the boats specified in the Sulphite Fibre Transportation Company---- 1,000
(4) Upon account stated............................ 1,000

Counsel at that time told the court that he saw nothing inconsistent in the bill of particulars, and stated:

I further claim that this is all part of one transaction. Your honor will notice that I charge, in one, I found a purchaser in the Sulphite Fibre Transportation Company, and made a sale to the Detroit Dry-Dock Company. ”

Being ordered by the court to elect, counsel then stated:

“I elect, first, to recover upon the account stated. I elect, second, to recover upon the item of finding a purchaser and making a sale to the Detroit Dry-Dock Company. ”

In the present trial, counsel replied, when called upon to state his theory of the plaintiff’s case, that he claimed upon a sale to the Sulphite Fibre Transportation Company, as the other sale to the Dry-Dock Company was not a real sale, but a nominal one. His claim was that it was a transaction wherein the Dry-Dock Company was the nominal purchaser, and the Sulphite Fibre Transportation Company was the real purchaser; and he stated:

“We are claiming only commissions on that transaction, in which one company was the nominal, and the other the real, purchaser.”

It is well settled that a plaintiff cannot maintain inconsistent positions; that is, he cannot commence and prosecute a suit upon one theory, and then abandon that theory, and adopt another entirely inconsistent with the first, when the assertion of the latter would positively negative the former. Hinchman v. Weeks, 85 Mich. 535; Hamilton v. Frothingham, 71 Mich. 616. But there was no such “change of front” in the present case. The statement and election on the former trial clearly disclosed that the plaintiff sought to recover for a sale of boats in which the Detroit Dry-Dock Company was not the real purchaser. The facts appearing upon the former trial clearly showed what the arrangement was, and the reason the Detroit Dry-Dock Company took the .bill of sale from the Eddy Transportation Company, and on the same day made the bill of sale to the Sulphite Fibre Transportation Company. The defendant could not have been taken by surprise on the last trial by the position now taken by the plaintiff. The bill of particulars sufficiently apprised the defendant of the claim made. The object of the rule that a party cannot proceed under one theory, then change that theory, and proceed under another entirely different from the first, is to prevent fraud. The contention of counsel cannot be sustained.

But counsel for defendant contend that it appears in the present case, as it did on the former trial:

1. That there was no full and open statement to the defendant by the plaintiff of the interest which the plaintiff had in the Sulphite Fibre Transportation Company.

2. That no notice or disclosure of any kind was made to the officers or agents of the defendant company that there was to be any bonus paid by the Detroit Dry-Dock Company.

When the case was here before, it was said:

“Plaintiff, as agent for defendant, for whom he was bound by law to obtain the best price possible, was in reality purchasing for himself. He therefore had a personal interest hostile to the interest of his principal. The law required him to disclose fully to his principal the actual situation, his own interest, and the circumstances of the deal between the Sulphite Company and the Dry-Dock Company; but he gave no testimony to show that he did so. The onus probcmdi was upon him.”

Upon the former trial, as set forth in the former opinion, the plaintiff testified that he informed his (the Sulphite) company that the boats were cheap at $120,000, and that early in the negotiations the Dry-Dock Company offered the Sulphite Company a bonus of $5,000 towards the purchase, which was subsequently reduced to $2,500. It also appeared in that record that none of these facts were communicated by the plaintiff to the defendant. In the present trial, the contention of counsel for plaintiff is that there is evidence given by the plaintiff showing that the defendant company, or its officers and agents, were fully informed of the interest which the plaintiff had in the Sulphite Company, and that the Dry-Dock Company was to pay this bonus.

It appears that Capt. Shaw was the general manager of the defendant company during the winter of 1891-92. Mr. Eddy, of the defendant company, who finally closed the deal, testified that Capt. Shaw notified him that the plaintiff was authorized to sell the boats on commission, and that he (Shaw) had agreed to pay him $1,000 if he sold them. When the transfers were made, on February 27, 1892, it appears that Mr. Eddy knew that the sale was being closed to the same parties to whom'Mr. Humphrey had been attempting to make the sale. He knew when he received the telegrams from Mr. McVittie, under date of February 25th, that Lindsay & Co. was the real purchaser. He had before that met Mr. Ortman and Mr. Paine, of the Sulphite Company, in the Hammond Block, and talked with them about the sale of the boats, but did not come to any terms. During his examination as a witness on the present trial, he was asked: “ Didn’t you know that Mr. McVittie, who signed this telegram [referring to telegram of February 25th], was telegraphing you about the same people you had met at the Hammond Building ? ” Answer: “I had no doubt about that.” This telegram stated: “I will close with Lindsay & Co. in the morning on the basis of your .splitting the difference,” etc. The other telegram also referred to Lindsay & Co. as the purchaser. From this it appears that Mr.' Eddy, at the time the contract of sale was closed and the transfer made, knew that the Dry-Dock Company was not the real, but the nominal, purchaser only, and that the telegrams had reference to parties with whom he had talked about making a sale before that time.

It also appears by the present record that Charles L. Ortman was called as a witness by the plaintiff. He was not sworn on the former trial. He testified that he was a member of the Sulphite Fibre Transportation Company, composed of Mr. Lindsay, Mr. Paine, Mr. Humphrey, and himself; that Mr. Paine, the plaintiff, and himself had several meetings with Capt. Shaw, who represented the defendant company, and in one of those talks Shaw was told by the plaintiff that the Dry-Dock Company would pay a bonus of $5,000; that later he had an interview with Mr. Eddy, in the presence of Capt. Shaw, in which Mr. Eddy was informed that the Dry-Dock Company would pay a bonus of $2,500 if Lindsay & Co. bought the boats; and that during this interview the plaintiff stated he was to have a commission of $1,000 for making the sale. Mr. Ortman further testified: “We told Mr. Shaw who composed the Sulphite Company,— that myself, Lindsay, Paine, and Humphrey were the parties;” that this conversation with Capt. Shaw was about the 18th of February.

The authority of Capt. Shaw to make the sale and pay the commission of $1,000 to the plaintiff is not denied. Under the arrangement made by plaintiff with Capt. Shaw, all that plaintiff was to do to earn his commissions was to bring the parties together. It is, however, contended by counsel for defendant that the sale talked about between Shaw and plaintiff was dropped, and a new arrangement made through McVittie. We think this cannot be said, under the testimony of Mr. Eddy himself (who was president of the defendant company); .for he understood, when the sale was finally closed, that it was to the same parties with whom he talked in the Hammond Block; that is, Ortman, Paine, and plaintiff. The plaintiff testified that the negotiations did not end, but that they merely rested; and there is nothing in the record showing that the agency of the plaintiff was ever revoked. It .is true that Mr. Eddy testified that he knew nothing of this bonus by the Dry-Dock Company, or the plaintiff’s connection with the Sulphite Company; but Ortman testified that Shaw was told of the bonus, so that question was one for the jury. We also think the question should have been submitted to the jury whether Mr. Shaw, the general manager of the company, was told on or about the 18th of February that the plaintiff was a member of the Sulphite Company. If Mr. Shaw knew this, it was the knowlédge of the company, and it could not now be heard to say that it was being deceived by the action of the plaintiff. This testimony of Mr. Ortman now raises questions of fact which were not presented on the former record; and the following requests to charge presented by counsel for plaintiff should have been given:

“1. The jury is instructed that if, at the office of Mr. Ortman and in the presence of Capt. Humphrey, a conversation was had in which Ortman, Humphrey, and Mr. Charles A. Eddy participated, and that Eddy was, during such conversation, informed either by Ortman in the presence of Humphrey, or by. Humphrey himself, that Humphrey was to receive a commission of $1,000 for making the sale, and that the Detroit Dry-Dock Company was to contribute the sum of $2,500 towards the price of the boats, then this is the same as if Humphrey himself stated these things to Mr. Charles A. Eddy.
“2. The jury is instructed that if, at the office of Mr. Ortman and in the presence of Capt. Humphrey, a conversation was had in which Ortman, Humphrey, and Capt. Shaw participated, and that Shaw was, during such conversation, informed either by Ortman in the presence of Humphrey, or by Humphrey himself, that Humphrey was to receive a commission of $1„000 for making the sale, and that the Detroit Dry-Dock Company was to contribute $2,500 towards the price of the boats, then this is the same as if Humphrey himself had stated these things to Capt. Shaw.
“3. The jury is instructed that if Mr. Ortman informed Capt. Shaw that Humphrey was to receive a commission of $1,000 for making the sale; and that the Detroit Dry-Dock Company was to contribute the sum of $2,500 towards the price, this is the same as if Capt. Humphrey himself told the same to Capt. Shaw.
“4. If the jury find that Charles A. Eddy, at the time of the transfer, knew from telegrams with the Detroit Dry-Dock Company, or from conversation with any one or more of the officers of the Sulphite Fibre Transportation Company, or from such telegrams and conversation combined, that the Detroit Dry-Dock Company was to contribute the sum of $2,500 towards the price of the boats, then such knowledge must be regarded as equivalent to a direct communication thereof by Humphrey to said Charles A. Eddy.
“5. If the jury find that all the facts and circumstances concerning the connection of Capt. Humphrey with the Sulphite Fibre Transportation Company, 'including the proposal of the Detroit Dry-Dock Company to contribute $2,500 towards the price, were known to Capt. Shaw or Mr. Eddy, then the jury is instructed to render a verdict for the plaintiff.”

These were refused.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.’