text:
    PEOPLE v. SCHAFRAN.
    1. Intoxicating Liquors — License—Statutory Construction.
    The Warner-Cramton law (Act No. 291, Pub. Acts 1909), introduced into the liquor laws a new element establishing other requirements than the mere payment of a tax as a prerequisite to engaging in the business, and is therefore subject to the rules pertaining to a license law, as distinguished from a tax law.
    2. Same — Vested Interest — Police Power.
    Since it is not within the power of the legislature to make an irrepealable contract as to matters that affect the public health or morals so as to limit the exercise of the police power, the licensee has no vested property right in his license, which may be granted on such conditions as the State sees proper to impose.
    3. Same — Constitutional Law — Forfeiture of License.
    It was within the constitutional power of the legislature to provide that a retail liquor dealer’s license should be forfeited if he should be twice convicted of violating the provisions of the liquor law; and the condition is not so unreasonable or oppressive as to be invalid.

    4. Same — Revocation.
    The effect of two convictions is to forfeit the right of the licensee without further proceedings to revoke his rights.
    6. Same.
    The license is a mere privilege granted under the police power to carry on the business subject to the will of the grantor, and is not a contract or property interest protected by the Constitution.
    6. Same — Repayment—Statutes.
    No repayment of the license fee or any part thereof is contemplated by the statute as a limitation precedent to prosecution for selling without a license.
    7. Same.
    Nor, in the absence of statutory provision therefor, is the liquor dealer entitled to a rebate for the unexpired term.

      Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J.
    Submitted November If, 1911.
    (Docket No. 194.)
    Decided January 23, 1912.
    Frank Schafran was convicted of engaging in the business of selling intoxicating liquors without a license.
    Affirmed.

      Edward Minoclc, Daniel Minoclc, and Thomas Mulvihill, for appellant.

      Franz O. Kuhn, Attorney General, Hugh Shepard, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.

       Constitutionality of statute by which conviction of violation of liquor law entails revocation of license and prohibition of sale of liquor, see note in 30 L. R. A. (N. S.) 1004.

   Stone, J.

The respondent was convicted in the recorder’s court of the city of Detroit of having engaged in the business of selling and keeping for sale distilled, brewed, fermented, malt, mixed, spirituous, and intoxicating liquors on January 26, 1911, at No. 1,043 Russell street, in the city of Detroit, he not having had a valid license to engage in such business, as provided by Act No. 291, Pub. Acts 1909, commonly known as the Warner-Cramton Law.” It was also averred in the information that the license theretofore issued to respondent under said act had been revoked by reason of his violations of said act; that said respondent had been theretofore convicted in said recorder’s court, which is a court of record, on January 26, 1910, and again on May 10, 1910, of violations of the provisions of said act; and that by reason thereof his license became forfeited and null and void, and that he was precluded and debarred from continuing in the retail liquor business. Yet it w^is averred that respondent had continued to conduct said business, he not then and there being a druggist, etc. Under respondent’s plea of not guilty, the case was tried before a jury.

It was conceded on the trial of the case that the respondent had paid on May 1, 1910, #500 to the county treasurer, the amount required by said act, and had received a license in the usual form to carry on the retail liquor business, that his license was duly displayed in his place of business, and that he had the right under said license to continue in the business, unless that right was forfeited by his said two convictions on the charges of not closing his saloon on certain Sundays, in violation of said act. The facts are not in dispute. The people gave evidence tending to support the allegations of the information, and the respondent was convicted. The case has been brought here by respondent before sentence. It is the contention of respondent that so much of Act No. 291, Pub. Acts 1909, as forfeits the license of respondent, and debars him from continuing in the retail liquor business after having been twice convicted in a court of record of violations of said act, is unconstitutional and void-; and he further contends that convictions of violations of the provisions of the act do not per se cause a forfeiture of his license.

Counsel for respondent requested the court, in writing, to instruct the jury to render a verdict of not guilty for the following reasons:

(1) Because no mode of procedure is provided by the Warner-Cramton liquor law, so called, for the forfeiture of the liquor license.
(2) That the forfeiture clause contained in said act is so oppressive and unreasonable that in this particular the act is void.
(3) That, inasmuch as the act does not provide for the taking of any legal procedure to declare a forfeiture of the license, no proceedings can be taken for that purpose. The act is in derogation of the common law, and, being a criminal statute, must be strictly construed. The attempt here made to declare the respondent’s license forfeited is an assumption of power not authorized by the act.
(4) There can be no forfeiture of property unless the forfeiture is judicially determined, and the power so to determine must be provided by the act creating the forfeiture, and the court cannot assume power not granted by the act.
(5) There being no proof in the case of the tender or repayment to the respondent of the license fee paid by him to the county treasurer before the commencement of this suit, no proceedings are authorized to be taken for the foi’feiture of respondent’s license under this act, and the verdict of the jury should be not guilty.

Error is assigned upon the refusal of these requests.

It will be well for us at the outset to refer to certain provisions of the act in question. In section 4 of the act it is provided as follows:

“Every person intending to engage in any business named in section one of this act, and requiring the payment of any license fee mentioned in said section one shall, on or before the first day of May in each year, make and file with the clerk of the township, village or city in which it is proposed to carry on such business, an application for a license in writing and on oath, showing the name and residence of such person, the ward, village or township in which it is proposed to carry on such sale or manufacture, and the nature of the business which such person is intending to engage in, and stating whether or not such person is a citizen of the United States and the State of Michigan and whether such person has, since the taking effect of this act, been convicted of any violation of the liquor laws of this State or any other State, or of any other laws of this State, and the time, place and number of such convictions, and containing an agreement that in the event of the issuance of a license to such applicant upon such application, such license shall be revocable as provided in this act. * * * Said board shall not approve the application of any woman, nor of any one who is not a citizen of the State of Michigan and of the United States, nor of any person who has served time in any State prison or penitentiary of this or any other State, nor of any person who has subsequent to taking effect of this act, been twice convicted by a court of competent jurisdiction of any violation of the liquor laws of this State or any other State. Subject to the provisions of this act said board or council shall approve applications for licenses.”

Section 36 provides as follows:

“ No license shall be issued to any one to engage in the retail liquor business in this State who has been convicted two times in a court of record of a violation of the liquor laws of the State of Michigan or any other State after this act takes effect, nor to any one who is not a citizen of the United States of America and State of Michigan, and any license obtained by any such person shall be of no force or effect and no protection to the person who undertakes to engage in said business, and he will forfeit the amount paid to obtain said license. Every license issued under the provisions of this act shall be upon the express condition that in event of the licensee being convicted two times in a court of record of violating the provisions of this act after this amendment takes effect, such license shall be revoked, forfeited and become null and void, and the licensee shall be forthwith precluded and debarred from continuing in the retail liquor business.”

Section 7 of said act contains the following language:

“Any person or persons engaged in any business requiring the payment of a license fee under section one of this act, who, after paying the license fee so required, shall be a second time convicted of a violation of any of the provisions of this act, shall thereby forfeit entirely the privilege and rights conferred upon such person or persons by the license issued to such person or persons upon payment of the license fee herein required, and during the remainder of the period covered by such license such person or persons shall not carry on the business specified in said license at the place specified in said license.”

In the recent case of Fuchs v. Grass Lake Common Councils 166 Mich. 569 (132 N. W. 96), we had occasion to discuss somewhat the power of the State to control and regulate the traffic in intoxicating liquors as a proper exercise of the police power, and we there cited authorities in support of the constitutionality of such legislation. We do not deem it necessary to repeat those citations. Boston Beer Co. v. Massachusetts, 97 U. S. 25; Jordan v. City of Evansville, 163 Ind. 512 (72 N. E. 544, 67 L. R. A. 613), and note in 2 Am. & Eng. Ann. Cas. 96. In Robison v. Haug, 71 Mich. 38 (38 N. W. 668), Mr. Justice Long, in discussing this question, said:

“The business of selling intoxicating liquors is one which the legislature has an undoubted right to regulate or prohibit, and it has therefore the power to impose such conditions and restrictions upon the sale as in its judgment may seem wise, where such restrictions are applied to all alike, or to the same class alike. It is within the power of the legislative branch of the State government, and is a part of the police regulations, such as the State may make in respect to the sale of intoxicating liquors for the prevention of intemperance, pauperism, and crime. It is not for the courts to determine its expediency, or, as said by Mr. Cooley in his work on Constitutional Limitations, ‘ to run a race of right, reason and expediency with the legislative branch of the State government.’ If the legislature may altogether prohibit the liquor traffic, it may make such conditions if it is permitted to be continued, and place its sale under such restrictions as will make it easy to detect any violations of the law. * * * The business of selling intoxicating liquors has for many years, both in this country and in England, been regarded by legislatures and courts with disfavor; and it does not stand upon the same plane of utility and morality with many useful arts, trades, and professions.”

In Sherlock v. Stuart, 96 Mich. 193 (55 N. W. 845, 21 L. R. A. 580), Mr. Justice Gbant said:

“The principle upon which is based the regulation of the liquor traffic is found in the police power of the State. No one possesses a natural, inalienable, or constitutional right to keep a saloon for the sale of intoxicating liquors. ‘To sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling.’ Black on Intoxicating Liquors, §§ 46, 48. * * * ‘If the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases.’ Ex parte Christensen, 85 Cal. 208 [24 Pac. 747]; Crowley v. Christensen, 137 U. S. 86 [11 Sup. Ct. 13].
“ The system in this State is not purely a tax system. The fee to be paid as a condition precedent to entering upon the business is called a * tax,’ but there are other conditions precedent which are inconsistent with a purely tax system. These provisions partake of the character of a license. It is said by Black:
“ ‘ Any law which requires certain acts, other than the mere payment of a tax, to be done by the party, as a prerequisite to his right to enter upon the pursuit of the trade in question, and makes it a penal offense to engage in the business without such formalities, is in reality a license law, no matter whether it be called a “tax” or by any other name.’ Black on Intoxioating Liquors, § 108.”

Counsel for respondent rely largely upon the case of Robison v. Miner and Hang, 68 Mich. 549 (37 N. W. 21). That decision dealt with the liquor law of 1887. That was a tax law, taxing the traffic. We think that the Warner-Cramton act introduced into the liquor laws of this State a new element, rendering applicable the rules pertaining to a license law. The law of 1909, instead of providing for a mere application to carry on the business, requires an application under oath, in which the applicant makes certain representations and agreements, among them one that, in the event of the issuance of a license to such applicant upon such application, such license shall be revokable as provided in the act. This is followed by a license which differs very materially from the tax receipt given under the law of 1887, in that it is upon the express condition that, in the event of the licensee being convicted two times in a court of record of violating the provisions of the act, such license shall be revoked, forfeited, and become null and void, and the licensee shall be forthwith precluded and debarred from continuing in the retail liquor business.

The licensee has no vested property right in his license; in fact, it would not be in the power of the legislature to make an irrepealable contract as to that which affects public morals or public health so as to limit the exercise of the police power over the subject-matter. The license is granted to the licensee upon the condition that he shall not violate the provisions of the statute. The legislature having control of the subject of the traffic in, and use of, intoxicating liquors, may make such regulations to prevent public evils and prevent injuries resulting from intoxication as in its judgment are calculated to accomplish this end. It may prohibit the selling or giving away of liquors, or it may, while not interfering with the liberty of the sale or use, guard against the dangers of an indiscriminate traffic, and induce caution on the part of those who engage in the business by subjecting them to liabilities for consequential injuries. Bertholf v. O’Reilly, 74 N. Y. 509 (30 Am. Rep. 323); Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. Again, in the absence of a provision in the Constitution of a State restricting the power of the legislature in reference to the sale of liquor, the legislature has the power to regulate the mode, manner, and the circumstances under which the liquor traffic may be conducted, and to surround the right to pursue it with such conditions, restrictions, and limitations as it may deem proper. Giozza v. Tiernan, 148 U. S. 657 (13 Sup. Ct. 721); Gundling v. City of Chicago, 177 U. S. 183 (20 Sup. Ct. 633); Joyce on Intoxicating Liquors, § 80 et seq. It is entirely within the province of the legislature, in the exercise of the police power of- the State, to regulate the sale of intoxicating liquors, and to impose such restrictions upon those engaged in the business as will carry out its purpose. State v. Settle, 34 Mont. 448 ( 87 Pac. 445); State v. Ludington, 33 Wis. 107.

It was undoubtedly one of the objects of the WarnerCramton law to improve the personnel of the business. This is rendered obvious by the provisions of the act which we have quoted. Inasmuch as a license is in the nature of a permit, creates no vested or property rights, and the traffic is at all times subject to the control of the State in the exercise of the police power, it follows that the State may at any time revoke licenses whenever it deems it for the public welfare. Joyce on Intoxicating Liquors, § 303, and cases cited. Revocation of a license is not so much for punishment within the meaning of the Constitution, as it is to prohibit an improper person from continuing in the business, because of violations of the law. Joyce on Intoxicating Liquors, § 303; State v. O’Connor, 58 Minn. 193 (59 N. W. 999). We have no doubt of the power of the legislature under our Constitution to provide that any number of convictions which it deems wise to provide may ipso facto work a forfeiture of the conditional license granted to a saloon keeper, where both the application and the license have made such a provision. We fail to see any constitutional infirmity in the statute in question, and we think that Robison v. Miner and Haug, supra, can be distinguished.

The second question urged by respondent’s counsel is that the forfeiture clause in the act is oppressive and unreasonable, and' is therefore void. It seems to us that the vital question is whether the two convictions provided for in the act ipso facto work a forfeiture of the license. In our opinion the trial judge was correct in charging the jury that two convictions operate per se to forfeit the license. We think that the language of the statute wherein it provides that, if any person engaged in the business shall be a second time convicted of a violation, he shall thereby forfeit entirely the privilege and rights conferred upon him, is very explicit and clear to the effect that the conyictions shall operate as a forfeiture. It/has been repeatedly held that such a provision in an ordinance or statute is valid. In Sprayberry v. City of Atlanta, 87 Ga. 120 (13 S. E. 197), the charter of the city was under consideration, in and by which the mayor and general council had full power to pass such ordinances as might to them se8m proper for the security, peace, health, order, and good government of the city, and to regulate the retail of ardent spirits within its corporate limits. It was held that they had the power to ordain that the conviction, in a State court, of any person licensed to retail spirituous or malt liquors, for the violation of the State statute in relation to the sale of ardent spirits to a minor or a person already intoxicated, or the conviction of the retailer before the recorder’s court for the violation of any of the provisions of the city ordinance regulating the issuance of licenses for retailing, should work an immediate revocation of the license of such person, and that for any further exercise of the privilege granted by such license he should be punished as one retailing without a license. It was held that the granting of such a license to sell liquor was an exercise of police power; that such license was not a contract, but only a permission to enjoy the privilege on the terms stated for a specified time unless it was sooner abrogated; and that by its revocation the citizen was not deprived of his property without due process of law. The court said:

“ But it is claimed that he ought to have been notified by the mayor and council that his license had been revoked ; that unless this was done, he must try the case himself and determine for himself whether it had been revoked or not by his conviction. What was the necessity of any notice to him ? His license informed him that it was subject to be revoked. The law under which the license was granted informed him that his conviction would work an immediate revocation. What more notice could he desire ? What other trial could he wish than the one he had already had in the superior court ? When he was convicted there, the notice was ample that it operated as a revocation of his license. Nothing that he could have said or done before the mayor and council would have changed the record of his conviction, they would have had no discretion in the matter; the law was as imperative upon them as it was upon him. Upon the subject of the immediate revocation of a license by a violation of the condition upon which it is issued, the Court of Appeals of New York, in the case of the People v. Meyers, 95 N. Y. 223, says:
“ ‘ Under the provision of the excise act of 1873, which provides that a conviction for a violation of any provision of said act, or of the acts thereby amended, by any person or at any place licensed as therein provided, shall forfeit the license, and authorizes the board of excise upon being satisfied of a violation of any such provision to canoel or revoke the license, a conviction of a bartender of a licensed person for an offense under the act, committed at the place licensed, operates ipso facto to annul the license. The act casts upon the licensee the necessity, in order to protect himself in the enjoyment of his license, of seeing to it that no violation shall be committed upon the licensed premises. * * * It is competent for the legislature to prescribe such a cause of forfeiture.’
“In the case of People v. Tighe, 5 Hun (N. Y.), 25, it was held that the conviction of a licensee under any of the provisions of the act of 1873 ipso facto annuls his license. Moreover, we think that when Sprayberry applied for and accepted a license under this ordinance, he assented to the condition contained therein, and he has no right now to insist that it shall be adjudged forfeited by a judicial tribunal. He knew this to be the law when he applied for and accepted the license, and he knew that, these terms, conditions, and restrictions were put upon him by his acceptance of it. He knew that when he was. indicted and convicted for a violation of the State law,, it worked an immediate revocation of the license.”

See Schwuchow v. City of Chicago, 68 Ill. 444; Wiggins v. City of Chicago, 68 Ill. 372.

We have already covered the first, second, and third requests to charge, and have said that a license to sell liquor is not a contract, but only a promise to enjoy the privilege on the terms named for a specified time, unless it be sooner revoked. The granting of a license is an exercise of police power, and does not include any contractual relations whatever. Stone v. Mississippi, 101 U. S. 820. A license is a mere privilege to carry on a business subject to the will of the grantor, and it is not property in the sense which protects it under the Constitution. The revocation of a license does not deprive the citizen of his liberty or his property without due process of law. See, also, Cassidy v. City of Macon, 133 Ga. 689 (66 S. E. 941). It must be held that the respondent has had his day in court. It appears undisputed in the case that he paid the fines in both cases of Sunday violations, and he knew the conditions under which his license was held. It thereby became forfeited by reason of his own illegal acts. These conditions were provided for by the license itself, as well as in the application for the license. They were contained in the statute, which he was bound to know.

We have now discussed all of the questions raised by counsel except that covered by the fifth request to charge. It is contended that it was a condition precedent to the institution of the prosecution that the license fee paid by the respondent should have been tendered back, or repaid to him, and that the language of section 7, above quoted, must be so construed. We do not so read the statute. While there is a redundancy-in the language used, there is in our opinion no provision for repayment of the license fee, or any part thereof. The words, “upon payment of the licénse fee herein required,” undoubtedly refer to the payment by the person or persons for the license, and who have forfeited the privileges and rights conferred upon them by the license, and do not refer to any contemplated repayment before prosecution.

In the absence of a statute authorizing it, the licensee is not entitled to a rebate for the unexpired term upon revocation. Such a return is dependent upon the statute, and, where there is no. statute, the licensee must be held as taking his license subject to such laws as prevail. 14 Current Law, p. 324, and cases cited; McGinnis v. Inhabitants of Medway, 176 Mass. 67 (57 N. E. 210); Toman v. Town of Westfield, 70 N. J. Law, 610 (57 Atl. 125); City of Louisville v. Cain, 134 Ky. 76 (119 S. W. 763); Joyce on Intoxicating Liquors, § 330, and cases cited.

We find no error in the record, and the conviction of the respondent is affirmed, and the trial court is directed to proceed to judgment.

McAlvay, Blair, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    HICKEY v. LUNDY.
    1. Pleading — Notice of Special Defense — Admissions—Appeal and Error — Court Rules.
    Although, defendant’s original plea and notice in justice’s court set up a breach of warranty of quality of the goods purchased by defendant’s wife, in assumpsit by the seller for the purchase price, plaintiff was not authorized to rely on any claimed admission of liability under the notice (Circuit Court Rule 7 e), where defendant, on discovering the nature of the contract that plaintiff claimed to have made with defendant’s wife, amended his plea and notice so as to deny any liability thereon.
    2. Sales — Contracts—Lease—Husband and Wife.
    Within the provisions of a contract, stipulating that defendant’s wife should pay as rental one dollar weekly for certain clothing, which she might purchase at the end of the term on paying one cent additional, and that the contract was not intended as one of sale, conditional or otherwise, defendant could not be held on the theory that plaintiff had sold necessaries to the wife of defendant.
    3. Same — Implied Contract.
    The contract being express, the law will not imply one.
    4. Same.
    And in the absence of testimony that the wife acted as defendant’s agent, or that her act was ratified by him, a verdict for defendant was properly directed.
    Error to Shiawassee; Miner, J.
    Submitted November 20,1911.
    (Docket No. 148.)
    Decided January 23, 1912.
    Assumpsit in justice’s court by Anna L. Hickey against Harry Lundy for goods leased to defendant’s wife upon a written contract. Prom a judgment for defendant, plaintiff appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      A. L. Chandler and George E. Pardee, for appellant.

      Seth Q. Pulver, for appellee.
    This action was commenced in the justice’s court where the plaintiff declared orally in assumpsit and specially upon a certain written contract which was filed with the court and marked “ Exhibit A.” The contract is as follows:
    “ 11 — 7—1910. 389. This agreement, made and executed this........day and date, by and between D. E. Hickey & Co. (hereinafter called lessor) and________ ( hereinafter called lessee) witnesseth, that the lessors have this day rented to the lessee the following goods, herein described:
    “ Description and value of goods.
    “ L. Suit 14 95
    “ 827-40
    “Valued at $........for the period of........from date hereof, the sum of $1.00 deposit, and for the further sum of $1.00 per wk. to be paid promptly at their store during the continuance of this agreement. And the lessee agrees to pay said several sums promptly, and not to remove the property from his or her premises without the consent in writing of the lessors. It is distinctly understood that this is a contract in renting only, and not a sale, conditional or otherwise, and that the whole contract is expressed in this instrument. If the lessee shall faithfully keep this agreement and make all payments therein stipulated, when due, then after the payments of the last installment or rent, the lessee may at his or her own option purchase the property by paying the lessors one cent purchase money. If the lessee does not keep the above agreement, it is understood and agreed that he or she will return said property to the lessors on demand, without process of law; and the lessors are authorized tp enter lessee’s premises by their agent'or agents and remove the same, provided the lessee does not. voluntarily surrender it. If default shall foe made in the payment of any installment of rent, as aforesaid, then the whole of the remaining rent shall become immediately due and payable, and I, the lessee, do hereby authorize any attorney of any court of record, or elsewhere, to enter and confess judgment for the full amount of rent, as aforesaid, with cost of suit and attorney’s commission for collecting, release all errors without any stay of execution, and I do hereby waive the right and benefit of any law of this or any other State, exempting salary, property, real or personal, from sale, giving full liberty to sell the same on (fieri facias) with release of all errors thereon.
    “In witness whereof, we have hereunto set our hands and seals the day and year above written.
    “ Signed, sealed and delivered in the presence of........
    [Signed] “D. E. Hickey & Co.
    [ Signed ] “ Mrs. Nellie Lundy.
    “Address, 429 Howard.
    “ Lessee’s occupation, Fireman.
    “ Employed at Sugar Fty.”
    To this declaration defendant filed a plea of general issue and gave notice thereunder that at the trial he would show a breach of warranty as to the quality of the goods in question and demand damages therefor. During the trial in the justice’s court defendant was permitted to amend his notice as follows:
    “ Notice under plea of general issue; that contract upon which suit was brought is contract of rental, and not contract by which husband bound without express agreement on his part so to do; that defendant never agreed to terms of the contract, or authorized his wife to sign the same, or ever made any undertaking in regard to it; that after its execution Mr. Lundy, defendant, never ratified the contract or appointed his wife as his agent, or in any way ratified his contract so as to be binding on him.”
    Plaintiff, having been defeated in the justice’s court, appealed to the circuit court. There a verdict was directed against her and she now reviews the case in this court by writ of error.
   Brooke, J.

(after stating the facts). Plaintiff assigns six different reasons why she is entitled to a reversal of the judgment against her:

First. That under the notice attached to defendant’s plea, under subdivision (e) of Circuit Court Rule No. 7, defendant’s legal liability is admitted.
Second. It was a question for the jury whether the wife was the agent of the husband in doing what she did towards the purchase of the goods, and as to whether they were necessaries.
Third. Defendant is liable to plaintiff because of his subsequent ratification of his wife’s acts, which is a question for the jury.
Fourth. Defendant is liable on his express contract to pay for the goods, which was a question for the jury.
Fifth. If no express contract is proven, then defendant is liable on an implied contract to pay for the goods, which is a question for the jury.
Sixth. The court erred in his rulings on the admission and rejection of testimony.

In discussing the first question raised, it is sufficient to say that defendant, upon learning of the existence of Exhibit A, promptly amended his plea as above set forth, and the trial thereafter proceeded both in the justice and circuit courts upon the amended rather than upon the original notice. In the circuit court, plaintiff offered testimony to establish the liability of defendant. She did not rely upon the original notice under the plea as admitting such liability. Counsel for plaintiff seem to have proceeded upon the theory that under the amended notice defendant denied all liability.

The second, third, fourth, and fifth grounds urged may be treated together. In each it is assumed that there was a contract of sale and purchase at least between plaintiff and defendant’s wife. It seems to us plain there was no such contract. The contract was in writing. It is unambiguous and provides for a stipulated rental for the property in question. It was further specially pleaded by plaintiff as evidencing her right to recover. There being an express contract, there is no room left for implication.

We find no testimony in the record which tends to prove that in executing said contract the wife acted as agent for the husband or that the husband ever ratified her actions in the premises, and it is not claimed that he thereafter purchased the goods himself.

The liability of the husband for necessaries purchased by the wife is not questioned. The only testimony in this record, however, upon the question of whether or not the goods were necessaries is to the effect that they were not necessaries and it affirmatively appears that they were never purchased. A verdict having been properly directed in favor of defendant upon facts which are not in dispute, it is not necessary to consider the last ground urged for reversal.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, and Bird, JJ., concurred.


author: Blair, J.

text:
    SCHRAM v. ROGERS.
    Wills — Devise—Construction.
    A devise by testatrix to her brother, followed by a declaration, in a succeeding clause of the will that it was the wish and desire of testatrix that her nephew, a beneficiary under the will, should have an equal share in the property so devised with other children of the devisee at the death of such brother, operates as a conveyance of the fee simple; the language in the separate and succeeding clause operating merely as an expression of a desire, does not limit the estate conveyed.
    Case-made from Barry; Smith, J.
    Submitted November 22, 1911.
    (Docket No. 163.)
    Decided January 23, 1911.
    Ejectment by Nellie M. Schram as guardian of Horatio E. Warner, and in her personal right, and another, as plaintiffs, against Daniel W. Rogers. Judgment for plaintiffs. Defendant brings case-made.
    Reversed.

      Thomas Sullivan, for appellant.

      Colgrove & Potter, for appellees.
   Blair, J.

This is an action of ejectment, brought by Nellie M. Schram, as guardian of Horatio E. Warner, and in her own right, and Lillie Belle Curtis, as plaintiffs, against Daniel W. Rogers, as defendant. The action was brought by the plaintiffs to recover the N. -J- of lots Nos. 297 and 298 of the city of Hastings, according to the original plat of said city; each of the plaintiffs claiming an undivided one-third of said premises in fee simple.

The plaintiffs claim title in fee as heirs at law of Daniel 0. Warner, deceased. The defendant claims title in fee simple through the foreclosure of a real estate mortgage given by Daniel C. Warner in his lifetime.

Daniel C. Warner obtained title to the premises in question through the last will and testament of Hannah Minerva Mixer, deceased. It is conceded that the determination of the case depends upon the construction to be given to the last will and testament of Hannah Minerva Mixer. If the will gave to Daniel C. Warner only a life estate in the premises referred to, then plaintiffs are entitled to recover. If it gave to Daniel C. Warner an estate in fee in the premises, then plaintiffs are not entitled to recover. The last will and testament of Hannah Minerva Mixer disposes of her estate-as follows:

“ First. It is my desire that all my just debts, funeral charges and expenses be first paid out of my estate.
Second. I give, devise and bequeath to my brother, Daniel 0. Warner, of Castleton, Barry county, State of Michigan, all of my property both personal, real and mixed, wherever the same may be situated, except as is hereinafter excepted and named, to have and to hold the same to himself, his heirs and assigns forever.
" Third. I give, devise and bequeath to my nephew, Charles Warner, the money and property now in his hands, and owing from him to me, to have and to hold the same forever.
Fourth. I give, devise and bequeath to my nephew, Horatio E. Warner, the money and property in his hands owing from him to me, to have and to hold the same forever.
“Fifth. It is my wish and desire in case my said nephew, Horatio E. Warner, outlives my brother, Daniel C. Warner, that the said Horatio E. Warner shall have an equal share of the property herein bequeathed to Daniel 0. Warner with said Daniel C. Warner’s other children who may then be living.”

For further facts, see Rogers v. Schram, 161 Mich. 278 (126 N. W. 423).

“ In the construction of a will, the first duty of a court is to ascertain the intention of the testator. Such intention is to be ascertained from the whole will interpreted with reference to the obvious or manifest object of the testator. All parts of the instrument must be construed in relation to each other, so as to give meaning and effect to every clause and phrase, and, if possible, form one consistent whole; every word receiving its natural and appropriate meaning.” Foster v. Stevens, 146 Mich. 131 (109 N. W. 265).

In the second clause of the will, the testatrix, by apt and technical language, gives, devises, and bequeaths her entire property to her brother absolutely, except only such “as is hereinafter excepted and named.” In the third and fourth clauses, she proceeds to “ give, devise and bequeath ” the property “ excepted and named” to her nephews absolutely. She has now disposed of her entire estate in clear and unambiguous language, without a hint of any reservation whatever. If the fifth clause is to be construed as cutting down the absolute estate granted to a limited estate for life only, then it is apparent that the clear language of the second clause was not used intelligently, and the intent so plainly expressed thereby must fail, as inconsistent with the intent expressed in the fifth clause. If, however, we construe the fifth clause in accordance with the natural meaning and the changed form of the language used, as compared with the accurate language used in the second, third, and fourth clauses, as an expression by the testatrix of a mere wish and desire on her part that her brother do not discriminate against his son Horatio in disposing of the property by will, then the entire will is harmonious, and every clause receives an interpretation consistent with its own language and that of all other clauses. Such construction we deem to be the proper construction of the fifth clause.

The judgment is reversed, and no new trial granted.

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


text:
    GALLOWAY v. DETROIT UNITED RAILWAY.
    1. Carriers — Negligence—Imputed Negligence — Automobiles.
    A passenger in the taxicab of a common carrier, injured by the concurrent negligence of the chauffeur and of agents of another carrier, is not barred from recovering against the other by the negligence of the driver of the taxicab.
    2. Same — Street Railways — Lookouts.
    Evidence that a street car was backed without warning from the main track upon a switch or Y across a portion of the street, while the conductor was in the forward end of the car, and no lookout was being maintained, tended to show negligence of the street railroad company contributing to a collision with a taxicab in which plaintiff was riding.
    Error to Wayne; Donovan, J.
    Submitted November 21, 1911.
    (Docket No. 159.)
    Decided January 23, 1912.
    Case by James S. Galloway against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      John T. Nichols {James G. McHenry, of counsel), for appellant.

      Corliss, Leete & Joslyn {A. B. Hall, of counsel), for appellee.
    Plaintiff hired a taxicab from the Bailey Auto Company of the city of Detroit and directed the driver to convey himself and daughter to Groase Pointe. He gave no further directions to the driver and did not attempt to control his actions either in a selection of the route or in the matter of speed. At the corner of Jefferson and Field avenues in said city, defendant maintains a Y upon which it turns its Trumbull avenue cars. Those cars run easterly for some distance upon the southerly Jefferson avenue track. At Field avenue they Y up in a northerly direction, then turn, and proceed west on the northerly Jefferson avenue track. When the taxicab in which plaintiff was a passenger approached Field avenue it was following a Trumbull avenue car at a distance of about one-half block, running with the right-hand wheels outside the southerly rail of the south or east-bound track. The left-hand wheels of the machine were, of course, between the rails of that track. When the street car reached the Y at the junction of Field and Jefferson, it' stopped and almost immediately thereafter started to back around the Y up Field avenue. It had backed but a few feet when it came into collision with the right hind wheel of the taxicab, which at the moment had turned out and was attempting to pass the car to the left. As a result of the collision, the taxicab was turned part way around. It dashed over to the north curb, struck and demolished a fire hydrant, and upset, pinning its occupants beneath it. This action is brought by the plaintiff to recover compensation for injuries sustained by him as a result of the collision. The charge was, in part, as follows:
    “ It is an open matter for you to say whether the handling of the car caused the accident, or whether the handling of the cab caused the accident. And I charge you now absolutely that, if the taxi made the accident, there can be no recovery in this case. * * * It must be caused by the D. U. R. alone to bind them, for they are the defendants. . * * * When you get into your jury room and select your foreman, the usual practice is to take a ballot. And in an accident case like this, or in a negligence case, for we use that term, you would vote guilty or not guilty. It does not mean guilty of crime. It is not a criminal matter. But it means guilty of negligence. Guilty or not guilty, and if you can agree on not guilty, you will come in and find no cause of action. And if you find guilty, that would mean that the D. U. R. is guilty over and above anything that happened. That nobody else caused it; that they were guilty. * * * It is not for the court, and with the fact that, if the accident was caused by the taxicab driver, there can be no recovery, and if caused solely by the railway there could be a recovery, I will leave the case solely to you.”
    A verdict under the foregoing instructions having been rendered in favor of defendant, plaintiff reviews his case in this court by writ of error.
   Brooke, J.

(after stating the facts). Counsel for defendant frankly concede that in instructing the jury that plaintiff could not recover unless he showed that the driver of the taxicab acted without negligence, and that his injuries were due solely to the negligence of the defendant, the learned circuit judge was in error.

It seems now to be settled, in this State at least, that, where one suffers an injury through the concurrent negligence of two common carriers, the negligence of the one upon whose conveyance the injured person is a passenger cannot be imputed to the passenger so as to bar his recovery-against the other. Cuddy v. Horn, 46 Mich. 596 (10 N. W. 32, 41 Am. Rep. 178); Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. 391).

But it is urged on behalf of defendant that the verdict should not be disturbed because (it is claimed) the court should have granted defendant’s motion for a directed verdict upon the ground that plaintiff had failed to show any negligence on the part of the defendant which contributed to cause the injury to plaintiff.

Plaintiff produced evidence which (if true) tended to show that defendant by its agents stopped its car and suddenly, without warning, backed it up the Y across the northerly portion of Jefferson avenue, at a time when the conductor, instead of being upon the back end of the car and maintaining a proper lookout, was in the forward portion of the car where he could not see the approaching taxicab. This testimony was sharply contradicted by witnesses on behalf of defendant, but this is not a proper occasion to discuss the weight of the evidence. To entitle the defendant to a directed verdict, there must have been no evidence tending to show its culpability in the premises. We are unable to agree with counsel for defendant in his contention.

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

Steere, Mo Alva y, Blair, and Bird, JJ., concurred.


text:
    CRONK v. MULVANEY.
    1. Principal and Agent — Estoppel—Evidence.
    Agency in fact may be implied where one person, by his conduct, holds out another as his agent and thereby invests him with apparent or ostensible authority as agent.
    2. Same-Admissions.
    Acts and admissions of defendant, after the commencement of suit, tending to show his acquiescence in the things done by his agent, were competent evidence against him.

      3. Customs and Usages —Contracts —Consideration—Work, Labor and Seryioes.
    In an action of replevin for hay, which plaintiff grew on defendant’s land under an arrangement which was silent as to the amount and method of compensating plaintiff for his services, evidence of a custom in the community to divide the hay in equal shares was properly admitted.
    4. Replevin — Crops—Personal Property.
    After the severance of crops from the realty, they become personal property and are recoverable by one having the right of possession in an action of replevin.
    Error to Eaton; Smith, J.
    Submitted November 21, 1911.
    (Docket No. 151.)
    Decided January 23, 1912.
    Replevin by Delbert Cronk against Maynard Mulvaney for a quantity of hay. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      G. D. Blasier, for appellant.

      George Huggett, for appellee.
    This is an action of replevin to recover the possession of certain hay cut and stored by the plaintiff upon the defendant’s premises. The record shows that in the spring of 1909 defendant was the owner of a farm lying near one owned by the plaintiff; that Fred Mulvaney, the father of the defendant, went to plaintiff, and asked him to take charge of defendant’s farm, as they were going away; that said Fred Mulvaney represented to plaintiff that he had a power of attorney to act for his son in the premises. With reference to the hay, plaintiff testifies:
    “ He told me that I could either cut the hay myself, or let it in fields out to my neighbors — he mentioned one— and if I let it in fields, I was to see it was put in in good shape, or it was not cut too green, and was put in in a workmanlike manner.”
    Relying upon this arrangement, which contained no stipulation as to plaintiff’s compensation for harvesting the hay, plaintiff in due season cut and placed the hay in a barn upon defendant’s premises. Later in the season, Fred Mulvaney returned to the farm, and notified plaintiff that it was time to divide the hay. One mow was cut down through the center, and plaintiff drew his half away. It was determined to bale the balance. Plaintiff and Fred Mulvaney together furnished the help necessary for this operation. When part of the hay had been baled, plaintiff decided that his half of the balance should not be baled, as he desired to keep it for his own use. Thereupon the hay that remained in that mow was cut down through the center, and under the direction of Fred Mulvaney defendant’s half was baled. This baled and unbaled hay seems to have remained in defendant’s barn until the spring of 1910, when plaintiff went with men and teams to remove that portion which he claimed to be his. Defendant himself, who had meantime returned to his farm, refused to permit plaintiff to take any part of the hay. Plaintiff thereupon sued out a writ of replevin.
    In executing the writ, the officer supposed that the unbaled hay in the mow would have to be divided. One present at the time remarked that it had already been divided, whereupon defendant said: “That is the hay as it was divided; that all belongs to Mr. Oronk.” Evidence was admitted, over the objection of defendant, tending to show that it was the custom or usage in that neighborhood, where hay was properly cut and stored as this was, without an agreement as to compensation, for each party to take one-half of the crop. Plaintiff having recovered a verdict, defendant reviews his casein this court by writ of error.
   Brooke, J.

{after stating the facts). The first four assignments of error argued by defendant are based upon rulings of the trial judge, by which he permitted plaintiff to testify to what occurred between himself and Fred Mulvaney at the time the hay was divided. Earlier in the trial, plaintiff had testified, without objection, to the fact that his bargain had been made with defendant’s father, upon the father’s representation that he had a power of attorney from his son, the defendant. We think the testimony was properly admitted. Agency in fact may he implied where one person by his conduct holds out another as his agent, and thereby invests him with apparent or ostensible authority as agent. 31 Cyc. p. 1219. 3 Current Law, p. 102. It is to be noted that the defendant did not deny that the arrangement had been made as claimed by plaintiff; indeed, Fred Mulvaney, who testified on behalf of defendant, said:

“I think I made a bargain with the man, and I wanted to close the bargain all up with him and settle up my affairs with him before leaving; and I did take these matters all up, and talked it over about the share of the hay and dividing it.”

Assignments of error 5, 6, 7, and 8 refer to rulings of the court admitting testimony as to what was said and done by defendant after suit was commenced. This testimony was admissible, as it tended to show acquiescence by the defendant in the acts of his father as his agent.

Assignments of error 12 to 14, inclusive, relate to the admission of testimony as to usage or custom. The contract being silent upon the question of compensation for the service to be performed, evidence of custom or usage in that neighborhood was properly admitted. Beecher on Contracts, § 20, p. 45.

The fifteenth assignment of error raises the question of the propriety of the remedy by replevin. Where crops or timber are severed from the realty, they become personal property, and one entitled to the possession thereof may have recourse to the action of replevin. Crapo v. Seybold, 36 Mich. 444; Spalding v. Archibald, 52 Mich. 365 (17 N. W. 940, 50 Am. Rep. 253); Sutherland v. Carter, 52 Mich. 151, 471 (17 N. W. 780, 18 N. W. 223); Antrim Iron Co. v. Anderson, 140 Mich. 702 (104 N. W. 319, 112 Am. St. Rep. 434).

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, and Bird, JJ., concurred.


text:
    CITY OF ALPENA, for use of GILCHRIST, v. TITLE GUARANTY & SURETY CO.
    Municipal Corporations — Bonds — Mechanics and Material-men — Fuel.
    Coal used for fuel to operate a dredge that a municipal contractor employed in digging a trench for an intake pipe of the municipal waterworks, was not covered by the statutory bond of the contractor “ against all claims due from said contractor or other subcontractors under them, which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished under and by virtue of this contract.”
    Error to Alpena; Emerick, J.
    Submitted November 31, 1911.
    (Docket No. 157.)
    Decided January 23, 1912.
    Assumpsit by the city of Alpena for the use of Frank W. Gilchrist against the Title Guaranty & Surety Company and others on a statutory bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Henry & Henry, for appellant.

      Luman W. Goodenough and Irvin Long, for appellees.
   Blair, J.

The facts essential to a decision of the issues involved in the above-entitled cause have been previously litigated in this court, and the bond and contract sued upon have been heretofore presented for adjudication to this court. We refer to the cases of City of Alpena, for use of Besser, v. Title Guaranty & Surety Co., 159 Mich. 329 (123 N. W. 1126), City of Alpena, for use of O'Brien, v. Title Guaranty & Surety Co., 159 Mich. 334 (123 N. W. 1127), and City of Alpena, for use of Beaudrie, v. Murray Co., 159 Mich. 336 (123 N W. 1128).

The action in this case was brought by the city of Alpena, for the use of F. W. Gilchrist, as assignee of certain creditors, against the Murray Company and the Title Guaranty & Surety Company, to recover from the defendant Surety Company for material furnished and labor performed for the Murray Company under a contract with the city of Alpena for the construction of the city waterworks. In conjunction with the contract was a bond executed by the defendant the Title Guaranty & Surety Company, of Scranton, Pa. By this bond the Title Guaranty & Surety Company undertook—

“To indemnify and save harmless the said city of Alpena, the city council, and officers thereof, as herein stipulated, and to save harmless the people of the State of Michigan against all claims due from said contractor, or other subcontractors under them, which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished under and by virtue of this contract.”

One of the assignors of Gilchrist was the M. N. Bed-ford Coal Company. As indicated in the contract, one part of the work to be performed was the laying of an intake pipe. To lay such an intake pipe it was necessary that a trench be dug, and for this purpose a dredge was used by the Murray Company. The M. N. Bedford Company furnished to the Murray Company quantities of coal at various times during March and April, 1905. This coal was furnished the Murray Company for fuel to be used on the dredge. No payments were made upon the account between Bedford and the Murray Company, and the present action is brought upon the coal so furnished.

The sole question presented for our determination is, as stated in the brief for appellant:

“Whether or not the bond executed by the Title Guaranty & Surety Company constituted an undertaking on the part of the Surety Company to insure the payment to the M. N. Bedford Company of the coal furnished for fuel for the dredge in the construction of the waterworks system.”

The trial judge answered this question in the negative and directed a verdict for defendant. His ruling is in accordance with our decision in the case of City of Alpena, for use of Besser, v. Title Guaranty & Surety Co., 159 Mich. 329 (123 N. W. 1126). In that case the court cited with approval Philadelphia v. Malone, 214 Pa. 90 (63 Atl. 539), which involved the precise question before us in this case.

The judgment is affirmed.

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


author: Steere, J.

text:
    VOIGT BREWERY CO. v. HOLTZ.
    1. Landlord and Tenant — Injunction — Intoxicating Liquors.
    Having an adequate remedy at law, a brewing company which leased premises to a saloon keeper on condition that he should not purchase beer from any other party, is not entitled to an injunction against the saloon keeper to restrain him from buying beer from other manufacturers as the exigencies of his trade required, when it appeared that the tenant sold the lessor’s beer as his principal commodity, and secured permission orally from defendant to sell the beer of other wholesale dealers as it might be called for, and that the amount of other beer so purchased was small and the probable damages inconsiderable.
    2. Same — Frauds, Statute of — Lease—Parol Waiver — Equity.

      A waiver, invalid because not in writing, of conditions contained in a lease for a term of years, may be treated as. an equitable estoppel to enjoin a breach of the written instrument.

      Appeal from Wayne; Murfin, J.
    Submitted November 21, 1911.
    (Docket No. 150.)
    Decided January 23, 1912.
    Bill by the Voigt Brewery Company against John Holtz for an injunction. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Orla B. Taylor and Charles ff. Delbridge, for complainant.

      Clark, Lockwood, Bryant & Klein, for defendant.
   Steere, J.

Complainant is a Michigan corporation located in the city of Detroit and engaged in the brewery business; the purchasers of its products being mostly saloon keepers in that city. The defendant is one of its customers, being the keeper of a saloon at Nos. 159 and 161 East Fort street, Detroit, which premises he occupies under a five-year lease from complainant, bearing date April 13, 1908.

This bill of complaint was filed on April 5, 1911, to enjoin defendant from violating the following clause in said lease:

“ And as a further consideration, the party of the second part does hereby expressly covenant and promise to conduct and carry on in and upon said premises a saloon business in a respectable manner and to buy or cause to be bought of and from the said party of the first part, Voigt Brewery Company or its successors, and from no other person or persons, all the beer sold, used or consumed in and upon said premises in bulk as well as in bottles, and to pay or cause to be paid therefor on the delivery thereof its regular market price. The party of the first (part) or its representative shall have the right to inspect any and every part of the premises at any reasonable hour.”

A preliminary writ of injunction was granted according to the prayer therefor in complainant’s bill, but on final hearing the trial court held that complainant had an adequate remedy by either summary proceedings before a commissioner, which it had already instituted, or in an action at law for damages, basing his decision squarely upon the .case of Hardy v. Allegan Circuit Judge, 147 Mich. 594 (111 N. W. 166, 10 L. R. A. [N. S.] 474, 118 Am. St. Rep. 557), and dismissed said bill.

On March 21, 1911, about two weeks prior to the filing of this bill, complainant obtained a judgment of restitution before a circuit court commissioner, under statutory, summary proceedings, from which judgment defendant appóaled to the circuit court, giving the usual bond for payment of rent.

It appears that at the time of making the lease in question, and for some time before, defendant was owner of a property at the corner of Forest and Wabash avenues, in Detroit, where he was engaged in running a saloon. This property he leased to complainant, and transferred his business to Fort street, occupying the same originally under a parol lease, engaged in running a saloon, grocery, and meat market business combined; the parties in effect exchanging the use of their two locations. This arrangement was continued by a subsequent exchange of leases A and B; the dates, rate of rent, and term of years being the same in each lease. Each party, therefore, became both landlord and tenant of the other, and each still has possession of the property leased from the other. This controversy, however, only directly relates to defendant’s conduct of his business under complainant’s lease to him. He admits that he has not fully complied with its terms in the particular that he has, since July 10,1910, bought from wholesalers, other than complainant, some of the beer sold by him in the saloon conducted on said premises.

It is his claim that on said date a supplemental agreement was made relaxing the restrictive clause in his lease, authorizing him to purchase and retail other kinds of beer, to meet the existing demands of his trade. His evidence shows that after he went to Fort street the character of the surrounding population changed from German, French, and English speaking people to an Italian community, affecting his trade detrimentally, to the extent that he was forced to give up the meat and grocery business which he had conducted in connection with his saloon, and that the tastes and demands of many of his new customers were for other kinds of beer than that made by complainant; that, as a result of such developed conditions, he, on July 10, 1910, had an interview with Mr. Voigt, the president and general manager of complainant, in which he informed Mr. Voigt fully of the situation, told him that he could not, under existing conditions, profitably continue even the saloon business, and that he intended to quit, proposing in that connection to sell to complainant his fixtures; that, as a result of such talk and negotiations on that subject, Mr. Voigt prevailed on him to continue his saloon, and authorized him to buy from other dealers, and retail to his trade, other kinds of beer, when there was a demand for it, telling him to push the Voigt beer, but to give customers what they wanted when they called for it; that he accordingly did continue his saloon business, dispensing some Tivoli, Pabst, and Stroh beers, which he bought from the manufacturers, but only when called for, giving his customers Voigt beer, unless they expressed other preferences; that what he sold of other brands was mostly bottled beer, and the amount sold, between July 10, 1910, and the commencement of this suit, would not exceed in value the sum of $50.

Mr. Voig’t,.in his testimony, admitted such conversation and notice given to him as to a change in the character of the business in that locality, together with defendant’s declaration of intention to abandon the business as unprofitable; that as a result concessions were made relative to the sale of other beer, but he claims that this took place in September, 1910, and permission was only given to sell Tivoli beer in bottles.

The undisputed evidence shows that after July 10, 1910, defendant was openly dispensing, when called for, other beer than complainant’s, and that Mr. Yoigt was well aware of it, having himself drank other brands of beer in the place. The testimony discloses no objections made during the summer, or until about the time summary proceedings were instituted to oust defendant. The testimony shows conclusively that under the changed conditions complained of by defendant, and known to complainants, permission was given to dispense other brands of beer, as an inducement for defendant to continue the business. The date and exact scope of that permission is in dispute.

It is the claim of complainant that whatever concessions may have been made, they were oral, gratuitous and void under the statute of frauds, the conditions as to the sale of complainant’s beer being in writing, not to be performed within a year and in connection with the transfer of real estate interests; that summary proceedings to oust defendant or an action to recover damages for breach of contract do not furnish an adequate remedy at law, the defendant having appealed from the judgment in the summary proceedings, and being yet in possession of the property, conducting his business in violation of the conditions of his lease, and that in the very nature of things it would be impossible to ascertain, in a suit to recover damages, how much more of complainant’s beer would have been sold providing defendant sold no other beer.

It is the claim of defendant that a waiver of the condition in his said lease was made under such circumstances as to constitute a binding agreement, based on a valid consideration, maintainable in a court of chancery; that complainant has an adequate remedy at law and has elected its remedy by declaring the lease forfeited and instituting summary proceedings to regain possession of the property; that the condition is void for want of mutuality, and the contract, being in restraint of trade, is against sound public policy.

A parol waiver of the conditions in a written lease for a term of years, which would be invalid if unwritten, cannot be enforced in a court of law; but, considered in a court of chancery, this permission, given to defendant by complainant, to ignore the strict terms of his lease, and sell other beer when it was called for, to meet the demands of the trade and bolster up a declining business, in which complainant’s beer is the chief commodity, if acted upon and carried out in good faith, points strongly to an equitable estoppel, where an injunction is asked which would operate, to all intents and purposes, as a decree for specific performance.

Taking the evidence of defendant as true, and it is undisputed, the injury complained of is neither irreparable nor great. From July 10, 1910, to the time of filing this bill, the other beer bought by defendant, including 3 barrels in bulk, did not exceed $50 in value, during which time he bought one-half barrel per day of complainant’s beer. For 26 days in the month that would amount to 13 barrels, or 130 barrels for the 10 months. He pushed the sale of complainant’s beer, and only bought and sold other brands as the exigencies of his trade demanded.

In the cases cited by complainant’s counsel, where injunctions were granted for breach of similar lease conditions, the violations were hostile, extensive, and inexcusable, without color of right or equitable circumstances.

Counsel for complainant urge that the issue now before us was not involved in Hardy v. Allegan Circuit Judge, 147 Mich. 594 (111 N. W. 166, 10 L. R. A. [N. S.] 474, 118 Am. St. Rep. 557), by which the trial court was governed in dismissing the bill, and point out the distinction that in said case the brewing company was not the owner or lessor of the premises to which the covenant related, but only a mortgagor, the court properly ruling that equity would not enjoin selling beer contrary to the terms of the mortgage, as the contract was purely personal and such sales would not lessen the mortgage security, while in the case at bar complainant is lessor of the premises, and the covenant appertains to land, thus giving the right of injunction to restrain violation of conditions relative to its use.

It is manifest that the Hardy Case is to be distinguished from the one at bar in the particular mentioned, and, had the decision been confined to, and based on, that reason, it would not be of controlling importance here; but the court held, as a further ground for the decision, that a court of equity will not interfere where the interest of complainant in a breach of covenant involves only profits in beer sold on the premises, but leaves the aggrieved party to his remedy at law, which is adequate.

As controlling precedents which should govern the disposition of this case, counsel for complainant cite and rely on the cases of Ferris v. Brewing Co., 155 Ind. 539 (58 N. E. 701, 52 L. R. A. 305), and Schlitz Brewing Co. v. Nielsen, 77 Neb. 868 (110 N. W. 746, 8 L. R. A. [N. S.] 494). Those cases squarely hold that injunction will be granted to restrain breach of covenant in a lease where a lessee has contracted to sell no other beer on the leased premises than that manufactured by a designated company ; applying to a particular article, handled in a particular business the general rule that a covenant by a lessee not to carry on a particular business, or not to carry on any business, except the certain one named, upon leased premises, is binding, and a violation thereof may be restrained by injunction. The Hardy Case cannot be reconciled with these authorities, although it can be said that it might have been decided on grounds not in conflict with them.

In discussing certain cases analogous to those cited by complainant’s counsel, among which was the Ferris Case, the court said:

“There is, however, this difference: That in each of these cases the restrictive covenant was inserted in a conveyance by the owner of the property. I doubt, however, if this difference distinguishes those cases from the case at bar; for there the injunction seems to have been sought and granted for no other purpose than to insure to a brewer the profits from the sale of his beer.”
“Such covenants are enforced by injunction, because their breach tends to the destruction of a business, and the remedy at law for damages is therefore inadequate. The reasoning does not apply where the damages are the profits of the beer sold on the premises.”

The court further said:

“We may profitably consider the consequences, if courts enjoin the breach of such contracts. If the court enforce by injunction the agreement of an owner of property that there shall not be sold thereon the products of any rival of a certain manufacturer or dealer, it thereby stamps what is equivalent to a trust upon that property, and gives manufacturers and dealers a power to place fetters on individual and industrial freedom which self-interest will impel them to use for their own aggrandizement. The protection of their own interest does not require that they should possess any such extraordinary power, for their remedy at law for damages is entirely adequate. I think reason and authority, and the best interests of society, require us to say that they must be content with that remedy.”

The undisputed testimony shows that complainant'had secured a lease of the property in question, to re-lease it to the defendant, paying the same rent it received from him; the deal working out by the exchange of leases, as heretofore stated. Mr. Voigt testifies that the main consideration of complainant was the selling of its beer in the place, “because we only rent such places to sell our beer.” The damages involved are the profits of the beer sold on the premises.

This court is not committed to the rule that a court of chancery will interfere by injunction, which must necessarily operate as a decree for specific performance, to enforce contracts to sell a particular brand of beer, where the only purpose is to insure a brewer his profits arising from such sale. To do so would be for the court to undertake the work of supervising, directing, compelling the performance of, in effect governing by injunction, private contracts between parties engaged in the liquor traffic (a business by sufferance), which contracts might, and often do, extend over a term of years.

Under the general equities of this case as disclosed by the testimony, which are not with complainant, and in harmony with the views expressed in the Hardy Case, we are constrained to hold that equitable relief should not be granted, and to leave complainant to the remedies provided by law.

The decree of dismissal is affirmed, with costs.

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


text:
    HYATT v. GRAND RAPIDS BREWING CO.
    Landlord and Tenant — Intoxicating Liquors — Lease — Construction — Legality.
    Upon the adoption of prohibition under the local-option law, a lease of premises to be occupied for and by a saloon did not become void, in the absence of a warranty in the contract that the use of the premises for that purpose should be continuous throughout the term.
    Error to Kent; Perkins, J.
    Submitted November 22, 1911.
    (Docket No. 166.)
    Decided January 23, 1912.
    Assumpsit by Francis A. Hyatt against the Grand Rapids Brewing Company for rent due. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Geo. E. & M. A. Nichols (E. O. Eldred, of counsel), for appellant.

      William M. Smith, for appellee.

      On April 21, 1906, plaintiff rented to defendant a brick store building located in the city of St. Johns, Clinton county, for the term of four years from and after May 1, 1906, at an annual rental of $600 to be paid at the rate of $60 monthly in advance; the building “to be occupied for the purpose of operating and conducting a retail liquor business and saloon.” Defendant so occupied the building and paid the rent therefor for two years. On April 15, 1908, the board of supervisors of Clinton county adopted a resolution prohibiting the sale of intoxicating liquors in that county, under the provisions of Act No. 207, Pub. Acts 1889 (2 Comp. Laws, § 5412 et seq.), from and after the 1st day of May, 1908. Thereupon and on May 4, 1908, defendant wrote plaintiff a letter in which it made a tender of the premises to plaintiff. On May 6, 1908, plaintiff wrote defendant declining to accept the premises and insisting upon the payment of the rent reserved in accordance with the terms of the lease. Defendant then sublet the premises to one Stormfeltz, who occupied them from July 20, 1908, to January 1, 1909. Defendant paid the rent up to May 1, 1909. On May 5, 1909, it wrote the following letter to plaintiff:
    “Grand Rapids, May 5, 1909.
    “F. A. Hyatt,
    “St. Johns, Mich.
    “ Dear Sir: Enclosed find our check for $50 for April rent, building leased of you April 26, 1906, being unable to use this building for purpose rented we vacated said building and surrender herewith our rights and privileges under lease which we hereby cancel, as under local-option laws the lease is declared null and void. The keys are with Pardee & Schoenhals, whom we have instructed to turn the keys over to you.
    “Yours truly,
    “Grand Rapids Brewing Co.”
    Defendant paid no rent thereafter, and at the expiration of the lease, one year later, plaintiff brought suit .for the recovery of the amount thereof, $600, and interest, together with the sum of $130 which he claimed was due for injury to the premises. Upon the trial counsel for defendant conceded that, if plaintiff was entitled to recover at all, he would raise no question over the sum of $130 claimed as damages for injury to the premises. The trial judge then said:
    “ I think I will direct a verdict for the plaintiff for the amount claimed, under the concession of counsel with reference to damage for injury to the premises, and on the ground that the adoption of local-option in Clinton county taking effect May 1, 1908, did not relieve the defendant company from its obligations to carry out its terms of this contract.”
    Verdict for plaintiff was directed in the sum of $787.81. Defendant has brought the case to this court for review upon writ of error.
   Brooke, J.

{after stating the facts). Counsel for appellant in his brief states that the assignments of error raise four points. We find it necessary to discuss but one, the first, which is set out as follows:

“Whether the court was right in holding that the adoption of local-option in Clinton county had no effect whatever to cancel or render void the lease, and that defendant remained liable under it just the same after the adoption of local-option as though it had never been adopted, and rendering a verdict for that reason.”

It is the claim of appellant that this case is controlled by our decision in Hooper v. Mueller, 158 Mich. 595 (123 N. W. 24, 133 Am. St. Rep. 399). We think the cases are clearly distinguishable. In the Hooper Case the lessors not only agreed to lease a building, but to furnish for the lessees suitable bondsmen, and further covenanted that, in case they were unable to furnish such bondsmen, the lease should become void. The adoption of the “local-option law’’made it impossible for the lessors to fulfill their part of the contract, and this court held that thereby the lease became void according to its terms. The instant case presents no such situation. Nowhere in the lease can there be found an undertaking on the part of the lessor that the lessee shall at all times' during the continuance of the lease be legally able to operate a retail liquor business upon the premises; otherwise the lease to become void.

We are of opinion that the words in the lease, “to be occupied for the purpose of operating and conducting a retail liquor business and saloon,” should be construed as permissive in character, rather than as a warranty on the part of the lessors that the premises could be legally so occupied throughout the term. We think the court may take judicial notice of the fact that the use of premises for the sale of liquor at retail is such a use as tends to injure the reputation of the property so used. In inserting in the lease the words quoted, the lessee doubtless desired to have it placed beyond peradventure that it might use the premises for the purpose named. Had it desired to secure such a warranty from the lessor, it would have been easy to provide in the lease for its avoidance upon the happening of the contingency which later made it impossible for it to sell liquor at retail in Clinton county. In making the contract it did, we must presume that it acted with a knowledge of the law.

That the use for which it stipulated in the lease might at any time become illegal was known to it. The so-called “local-option law” had been upon the statute books for many years, and many counties in the State had prohibited the sale of intoxicating liquors under its provisions. That such action in Clinton county was possible was, of course, known to the lessee. That it should have been apprehended, from the history of the liquor traffic in this State during the past 20 years, is clear. The lessee doubtless did sq apprehend it, and yet it chose to enter upon a contract which did not provide for its avoidance upon the happening of the contingency plainly in view. The language used is, in our opinion, permissive and not restrictive. The premises demised could have been used for other than the specified purpose. Indeed, a portion of them were so used during all the time they were occupied under the lease, and all of them were so used during six months of the last year of occupancy. While the construction placed upon the contract by the lessee, as indicated by its use of the premises, is not controlling, it is not without force when the court is called upon to determine the meaning of the language used.

Upon the question here involved, the following cases may be consulted with profit: Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79 (88 S. W. 197); Lawrence v. White, 131 Ga. 840 (63 S. E. 631, 19 L. R. A. [N. S.] 966); Abadie v. Berges, 41 La. Ann. 281 (6 South. 529); Shreveport Ice & Brewing Co. v. Mandel Bros., 128 La. 314 (54 South. 831); Koen v. Brewing Co. (W. Va.), 70 S. E. 1098; Hecht v. Coal Co. (Wyo.), 113 Pac. 788 (34 L. R. A. [N. S.] 773); Barghman v. Portman, 14 S. W. 342, 12 Ky. Law Rep. 342; O’Byrne v. Henley, 161 Ala. 620 (50 South. 83, 23 L. R. A. [N. S.] 496; Kerley v. Mayer, 155 N. Y. 636 (49 N. E. 1099).

Having reached the conclusion above indicated updn this question, it becomes unnecessary to consider the other questions discussed in the brief of appellant.

The judgment is affirmed.

Steere, McAlvay, Blair, and Bird, JJ., concurred.


author: Blair, J. Ostrander, J.

text:
    MACATAWA TRANSPORTATION CO. v. FIREMAN’S FUND INSURANCE CO.
    1. Insurance — Words and Phrases — Outside.
    In a policy of insurance covering a gasoline launch, permission to store the boat “outside,” when construed with the remainder of the policy and with the application, signified that the boat might be stored out from the shore in the waters of the adjacent bay..
    2. Same — Marine Insurance — Exposing Buildings.
    Under the terms of the policy providing that the distance to exposing buildings should be 500 feet, only such buildings as increased the danger because of the use of fire were intended. Ostrander and McAlvay, JJ., dissenting.
    3. Same — Statutes—Breach op Condition.
    Notwithstanding 2 Comp. Laws, § 5180, providing that no policy of fire insurance shall hereafter be declared void for the . breach of any condition if the insurer has not been injured by such breach or the loss has not occurred by reason thereof, the policy became void for breach of a promissory warranty that the distance to exposing' buildings should be 500 feet.
    Error to Ottawa; Padgham, J.
    Submitted November 15, 1911.
    (Docket No. 21.)
    Decided January 30, 1912.
    Assumpsit by the Macatawa Transportation Company against the Fireman’s Fund Insurance Company upon a policy of marine insurance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gore & Harvey, for appellant.

      Diékema & Kollen (Arthur Van Duren, of counsel), for appellee.
   Blair, J.

This is an action upon a marine insurance policy covering the gasoline launch Holiday. The survey contained the following:

“55. Boat will probably be laid up and not in use from (season for which boat is to be in commission and for which insurance other than fire is to apply) October 1, 1908, to July 1, 1909. * * *
“58. Give location and describe fully the .building in which the boat is contained while laid up. In water at Macatawa Bay.
“ 59. Give distance in feet to exposing buildings. 500 feet.
“I hereby make application for insurance on my gasoline power boat, and agree that the statements made above are true, and that during the continuance of the insurance to be written on this application (both of the original policy and any renewals thereof) the property shall be and remain in all respects as above set forth, and that the foregoing shall be deemed and taken as promissory warranties.
[Signed] “Macatawa Resort Co.,
“ By S. A. Miller, Prest.,
“By F. Van Ry, Master,
“At Chicago, Ill.”

The policy contained, among other clauses, the following:

“Warranted that the vessel shall not be engaged in navigation from October 1st to June 1st, and that when laid up and out of commission, shall be safely stored at outside,” etc.
“ Privileged to lay up either afloat or ashore. * * *
“This insurance is accepted by the assurers, and this policy is issued on the written application of the owner, now on file in the office of the assurers, which application is warranted by the assured to be true, and is accepted by both the assured and assurers as a part of this policy.
“Countersigned at St. Joseph, Mich., this 22nd day of June, 1908.
“ Chas. A. Newton & Co., Fireman’s Fund. -,
“ Agent.”

The boat was laid up in September in one of the 12 stalls of the plaintiff’s boathouse, where she was either fired by an incendiary or by spontaneous combustion, and almost totally destroyed during the early morning hours of September 19, 1908. The boat was removed from the shed and beached, and no part of the shed took fire. The boathouse was 15 feet from the shore and in comparatively deep water. Defendant gave notice of special defense that plaintiff violated the warranties above quoted as to the location of the boat and as to the distance from exposing buildings. At the close of the testimony, defendant’s counsel moved for an instructed verdict, which was denied, the case submitted to the jury, and verdict rendered for plaintiff for the agreed amount of the loss. Defendant insists that it was entitled to an instructed verdict for the reason that the policy was avoided by the continuing breach of the promissory warranties as to location and exposures.

Concerning the warranty as to location, the court instructed the jury that there was no breach, and this instruction raises one of the important questions in the case. Defendant’s counsel contend that:

“ ‘ Outside’ is a plain stipulation that the property should be stored outside of any shed or building.”

In considering the meaning to be given to the word “outside,” as used in the policy, the policy and application must be read together. The word is not used in the application, and the only reference to the location is in answer to question 58, which asks for the location and description of the building in which the boat will be laid up. Applying the answer to the question, it is that the boat while laid up will be in a building in water at Macatawa Bay. The printed policy grants the privilege “to lay up either afloat or ashore,” and the written word “outside” after the printed words “ shall be safely stored at,” when construed in the light of the application, naturally signifies that the boat was to be stored outside of the shore, as she actually was stored “afloat” in the waters of Macatawa Bay and outside of the shore.

Concerning the warranty as to exposing buildings, the court charged the jury as follows:

“I charge you that what is meant by the word ‘exposing ’ or ‘ exposure ’ as used in insurance matters means openness to danger, accessibility to anything that may affect especially detrimentally. The words ‘exposing buildings ’ mean buildings erected and occupied for the use therein of dangerous elements, as fire, whereby the exposure is increased.
“ A building per se — that is, a building in itself — is not an exposing building.
“It is the use to which the building is put that determines whether or not it is an exposing building; and if you find that at the time of the burning of the Holiday, this launch,there was no building within five hundred feet erected and occupied for the use therein of dangerous element, as fire, and where such dangerous element was used, there was no exposing building within five hundred feet, and the terms of the application and policy were not violated in that respect. Now that is a question for you to say, whether there is any proof in this case to show, under the definition that I have given you of ‘exposing buildings’ that there were any exposing buildings within five hundred feet; that is a question for you to determine, whether the buildings you have heard spoken of here, under the definition I have given you of exposing buildings, did increase the danger, or were any element of danger under the meaning of this term here ‘exposing buildings.’”

We regard this instruction as a correct exposition of the law as applied to the contract of the parties in this case. The question in the application did not require the distance in feet to all buildings, but only to “exposing buildings,” which would tend to increase the risk and might naturally be considered in fixing the rate. Burleigh v. Insurance Co., 90 N. Y. 220; Davis v. Insurance Co., 81 Iowa, 496 (46 N. W. 1073, 10 L. A. R. 359, 25 Am. St. Rep. 509); Wilson v. Insurance Co., 29 U. C. C. P. 308.

The court further instructed the jury as follows:

“ Counsel has stated to you something with reference to the statute in this State, being section 5180 of Miller’s Compiled Laws of 1897. This statute provides that no policy of fire insurance shall hereafter be declared void by an insurance company for the breach of any condition of the policy if the insurance company has not been injured by such breach or where such loss has not occurred during such breach and by reason of such breach of condition; and I charge you that to prevent a recovery on the part of the plaintiff in this case it is not only necessary for you to find that said boat was laid up within five hundred feet of an exposing building, but you must further find that the insurance company has been injured thereby, or that the loss has occurred while said boat was so laid up and by reason thereof.”

We are satisfied that where, as in this case, there is a continuing promissory warranty, the rule laid down by this court in King v. Insurance Co., 140 Mich. 258 (103 N. W. 616), applies.

Under this rule, if there were exposing buildings within 500 feet at the time the Holiday burned, the policy would be avoided, regardless of the fact that such exposing buildings had clearly no influence upon the loss. If, however, there were exposing buildings at the time the boat was laid up, and they had ceased to be exposing buildings at the time of the fire, the statute would apply. Whether any of the buildings within 500 feet were exposing buildings, as defined by the court, at the time the Holiday was burned, should not be difficult of determination upon another trial.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steers, Brooke, and Stone, JJ., concurred.

Ostrander, J.

The president of plaintiff testified that within 250 feet of the boathouse in which the launch was laid up there were five or six boathouses, constructed of wood, in size 30x18 or 30x16 feet. The boathouse of the plaintiff was constructed of wood. He further testified that the engine or power house of plaintiff was about 60 or 70 feet away, the icehouse 50 or 60 feet away, the interurban freight depot 40 or 45 feet away, and five cottages were within 250 feet. It is said in the brief for plaintiff that it was not possible to place the launch 500 feet away from any building, on the shore or in the water, upon the property of plaintiff or adjacent to it. The promissory warranty given with the application for the policy was in effect that there were no exposing buildings within 500 feet. Under the definitions and instructions given by the court, the jury found there was no breach of the warranty. Referring to the case of Burleigh v. Insurance Co., 90 N. Y. 220, cited in the opinion of Mr. Justice Blair, it will appear that the warranty was that the insured building was “detached at least one hundred feet.” It was said:

“The brevity of the language requires that something be added to complete and elucidate the meaning. The phrase may mean detached one hundred feet from any other building whatever its size or character. This would be a rigorous and severe interpretation, most favorable to the insurer and operating harshly upon the insured. So construed, it would make anything which could be deemed a building, however small or insignificant, as an icehouse, or privy, or open shed, within the prescribed distance, operate as a breach of the warranty. If a construction so literal'or severe is intended by the insurer, he should at least say so by apt and appropriate language, and not ask the courts to supply it by intendment. If it be granted that such small and insignificant structures were not meant and should be treated as if they did not exist, the question would remain how small and how insignificant must they be to be disregarded, and how large and of what character to justify a conclusion of breach of the warranty, and where and upon what principles is the line to be drawn between buildings strictly such, but proper to be disregarded, and those whose presence breaks the warranty. These questions can be wisely answered in but one way. The test must be whether the building within the distance named is or is not an exposure which increases the risk. One which does not can scarcely be supposed to come within the warranty, unless such result is indicated by explicit language which will bear no other reasonable interpretation. No such language is contained in these policies, and when the courts are asked to supply a defect and complete an imperfect phrase, they should remember that the necessity is the fault of the insurer, and construe .the language in view of the natural understanding of the parties, and with justice to both. Declining to hold the phrase in the policy to be meaningless and void, we are compelled to choose between two constructions; the one rigorous and hard and producing a forfeiture, and the other natural and reasonable and supporting the obligation. We have heretofore decided that in such case the latter construction is to be preferred. (Baley v. Insurance Co., 80 N. Y. 21 [36 Am. Rep. 570]). We hold, therefore, that the warranty in this case was that no other building, of such size and character as to constitute an exposure and increase the risk, stood within one hundred feet of the storehouse.”

The case of Wilson v. Insurance Co., 29 U. C. C. P. 308, was determined upon the point that there was no warranty. In Davis v. Insurance Co., 81 Iowa, 496 (46 N. W. 1073, 10 L. R. A. 359, 25 Am. St. Rep. 509), the policy was to become void if there “be any change in the exposure by the erection or occupation of adjacent buildings, or by any means whatever in the control or knowledge of the assured.” The policy covered corn in cribs. The assured caused or permitted a corn sheller, operated by steam power, to be placed near the cribs and used to shell the corn. In its use fire was communicated to the cribs. The trial court instructed the jury that the exposure referred to in the policy—

“ In order to avoid the policy, must be by the erection or occupancy of an adjacent building, or by some means of like character; that is, some permanent erection or structure must have been placed in proximity to the crib which contained the corn, or the occupancy of some building standing at the time the policy was issued, adjacent to the said crib, must have been changed so as to increase the hazard.”

There was the further specific instruction that the use of the corn sheller was not within the prohibitory clause of the policy. In holding the instruction to be erroneous, and in construing the policy, it is said that exposure from “the erection or occupation of adjacent buildings” is especially prohibited by specific language; exposure “by any means whatever ” by general language.

“ The condition of the policy under consideration is against exposures. The erection or occupation of adjacent buildings is specially named, as causes producing exposure. In the general language, exposures, ‘by any other means whatever within the control or knowledge of the assured,’ are forbidden. The special words forbid ‘the erection and occupation of adjacent buildings’ so as to change or increase the exposure. If they are erected and occupied for the use therein of dangerous elements, as fire, the exposure is increased. Now it is the use of the element of fire, or other dangerous thing, that is provided against. It is plain that the buildings jper se are not exposures, and it is equally plain that anything which causes the use of fire or other dangerous elements, by which a building is made an exposure, is ejusdem generis. The rule as applicable to this case does not mean that the cause of an exposure, contemplated by the general words of the condition, shall be buildings or something of the same nature or character, but shall be ejusdem generis, of the same nature, kind, or character, in causing exposure to fire. In our opinion the condition of the contract has not regard to the form, substance, use, or character of the thing creating the exposure. But anything in which fire is used so as to be dangerous, or any occupation when it is so used, or any acts, habits, or customs endangering the insured property, which are within the control or knowledge of assured, causes an exposure within the meaning of the conditions of the policy under consideration.”

In the case at bar, the assured was asked to “give distance in feet to exposing buildings.” It seems to me there could have been no misunderstanding of the, meaning and purpose of the question. It means how near to the property at risk were there buildings which in their size and character exposed the risk, made it less safe, might communicate fire to it if they burned. The parties were bargaining for indemnity against loss by fire. The information asked for was “how will the risk stand with reference to exposures to fire from other buildings.” The information given was that there are no buildings within 500 feet of such size and character as to expose the risk to hazard if they shall burn. This is the idea conveyed to my mind by the decision in Burleigh v. Insurance Co., supra. To say that a barn constructed of wood, filled with combustible material, does not expose an adjacent dwelling, or barn, when the chances of loss by fire are considered, would be to state what no man believes. So, if a factory building, constructed of wood, in which no fire was ever permitted to enter, stood near a dwelling or another factory. Upon this point I-am impressed that the learned trial judge was in error. I agree with my Brother Blair upon all other points. If the conclusions I have stated are sound, the judgment should be reversed and no new trial granted.

McAlvay, J., concurred with Ostrander, J.

Bird, J., did not sit.