text:
    WAVERLY PARK AMUSEMENT CO. v. MICHIGAN UNITED TRACTION CO.
    1. Landlord and Tenant — Trade Fixtures — Removal—Damages —Instructions.
    In an action by a tenant to recover damages for tbe removal of personal property from tbe premises, where such act was in violation of an injunction and an examination of the property was made by plaintiff’s agents after its removal, and they made an inventory of tbe property and removed some of it, it was erroneous to refuse an instruction for defendant that if any of the officers, agents, or servants of plaintiff exercised any authority over the property after its removal, then defendant, its officers, agents or servants would have been in contempt of court.
    2. Same — Trade Fixtures — Removal—Mitigation of Damages.
    Where an injunction is obtained by a tenant against tbe removal of amusement devices from the premises by tbe landlord tbe latter may show in mitigation of damages, in an action for damages for such removal, that plaintiff exercised control and dominion over the removed property.
    3. Same.
    All items removed from the premises, title to which was not shown to have been in plaintiff, the tenant, could not be considered in the computation of damages.
    4. Same — Reduction oe Profits — Damages.
    The reduction of profits upon a roller coaster and skating rink due to the destruction of surrounding devices was proper to be considered as an element of damages.
    Error to Ingham; Collingwood, J.
    Submitted January 5, 1917.
    (Docket No. 38.)
    Decided July 26, 1917.
    ' Case by the Waverly Park Amusement Company against the Michigan United Traction Company and another for the removal of certain trade fixtures. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sanford W. Ladd (Charles E. Lewis and Warren, Cady, Ladd & Hill, of counsel), for appellant.

      W. K. Sagendorph (;Cummins, Nichols & Rhoads, of counsel), for appellee.
   Kuhn, C. J.

This was an action brought by the plaintiff, Waverly Park Amusement Company, to recover damages for certain property that was removed from the premises known as Waverly Park near the city of Lánsing, on Sunday, May 17, 1914, by the defendant, the Michigan United Traction Company. The plaintiff claimed the right to have the property, consisting of buildings and their contents, remain on the premises in question under the terms of a certain lease between the Michigan United Railway Company and the Waverly Park Amusement Company. The defendant claims that the buildings in question, which were erected on the park premises by various tenants under annual seasonal leases, and which were not re-removed by the respective tenants at the termination of these leases, passed to the owner of the soil as trade fixtures; that the plaintiff company has never obtained any right in or title to these buildings; that the plaintiff company’s lease, obtained in 1907 and covering the seasons of 1908 to 1916, does not give the plaintiff any right to occupy these buildings in the park, and that the defendant was within its rights in ridding the park property of the buildings and their contents after due notice to H. P. French, who occupied the buildings during the previous season of 1918, and whose right under his last contract to remove his property from the park had expired..

The plaintiff company brought a suit against the defendant in the circuit court in chancery, and obtained a preliminary injunction, which was subsequently made permanent, prohibiting the defendant from removing or interfering in any way with the property or rights of the plaintiff. An appeal was taken to this court, and. a decision thereon is herewith handed down, ante, 92, the opinion being written by Mr. Justice Stone, in which the opinion of the learned chancellor who heard the case is adopted. By this opinion the rights of the parties to the property in question under the various leases is determined, and a further discussion of the principal questions involved in this suit is therefore made unnecessary.

It being determined that the claims of the defendant as to their rights to remove the property were unwarranted, the only question which need be considered is whether this case was properly submitted to the jury on the question of damages, the jury having determined that the plaintiff was entitled to recover $9,750.

It appears that the Waverly Park Amusement Company’s lease covered that part of 71 acres which was within an inclosure fence used for amusement purposes. That on Sunday, May 17, 1914, the defendant by its agents went into the fenced inclosure, seized a lot of property, and carried it away onto land over which it alone had control, and within a few rods of the inclosure. Counsel for defendant requested the court to charge the jury as follows:

“If, under the evidence in this case, you find that any of the officers, agents, or servants of the plaintiff herein removed or exercised any authority over the property which was removed, or any of it, following the removal, then I instruct you that the defendant Michigan United Traction Company, its officers, agents or servants, would have been in contempt of court for in any way interfering with said property subsequent to May 29, 1914.”
The temporary restraining order, subsequently made permanent, contained the following:
“It is further ordered that defendant be and is hereby restrained from destroying and removing or in anyj way interfering with the property rights of the complainant, the Waverly Park Amusement Company, or shutting off or interfering with its supply of electricity or with its rights under the contract set forth in the bill herein.”

The trial judge charged the jury:

“I would say to you, gentlemen, that the plaintiff is not bound to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where defendant placed them, looking to them for their value.”

Now it appears that in this case Mr. French, acting for the plaintiff, on the day following the removal admittedly went “through the buildings and stuff,” where it was placed in what he termed “the dump,” and made an inventory, and actually took some of the property away. In our opinion prejudicial error was committed in refusing to give to the jury defendant’s request to charge above set forth.

The instruction of the trial court that the plaintiff is not bound to follow its property wrongfully taken from it is a correct statement of the law as a general proposition. See note to Shannon v. McNabb, 39 L. R. A. (N. S.) 244 (29 Okla. 829 [120 Pa. 268]). Here, however, the plaintiff obtained an injunction restraining the defendant from interfering with plaintiff’s property. As there was evidence to show that the plaintiff, by its agent, did actually exercise control and dominion over the property which had been removed, we are of the opinion that if the jury so found, it follows that the injunction covered such property. If it did, the defendant should have been allowed to show that situation in mitigation of damages;

Fault is also found with the failure of the court to give defendant’s requests to charge covering items of personal property to which it is claimed the plaintiff had no title, and which were never owned by. the plaintiff, and which were set forth in plaintiffs bill of particulars. In view of the fact that the case is to be sent back for a new trial it will be sufficient to say that all items of personal property removed from the inclosure, the title to which was not shown to have been in the plaintiff, should be removed from the consideration of the jury.

We do not think it was error to allow the jury to consider as an element of damages the reduction of profits upon the roller coaster and the skating rink due to the destruction of the surrounding devices. It is contended by plaintiff’s counsel that the business of the roller coaster depended largely upon the attractiveness of the park as a whole as an amusement center. If it can be shown that by the destruction of some of the attractions the park as a whole became less attractive and this caused a reduction of the profits of the amusements then running, such loss, in our opinion, would be a proper element of damages for the jury to consider.

The judgment will be reversed, and a new trial granted, with costs to the appellant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    McNALLY v. CITY OF SAGINAW.
    1. Master and Servant — Workmen’s Compensation Act — “Officers.”
    The* distinction, between officers and men of tbe city fire department of the city of Saginaw is recognized in the fire department ordinance and, under the workmen’s compensation act, part I, § 7 (2 Comp. Laws 1915, § 5429), defining employees, a city fireman is not a city ^“official” within the exception of the statute.
    2. Statutes — Construction—Workmen’s Compensation Act— Home Rule Law.
    The workmen’s compensation act is presumed to have been enacted with knowledge of, and is to be construed with reference to, existing relevant laws.
    3. Master and Servant — Municipal Corporations — Workmen’s Compensation Act — Saginaw Charter — “Officers.”
    City officials are primarily creatures of the charter, to which, as a general rule, reference should be made in differentiating between city officials and employees under the workmen’s compensation act, part I, § 7 (2 Comp. Laws 1915, § 5429).
    4. Same.
    A captain of the fire department of the city of Saginaw is, under the city charter, §§ 142, 151, 160, an official coming within the exception of subdivision I, § 7, part I of the workmen’s compensation act (2 Comp. Laws 1915, § 5429), and consequently is not entitled to compensation under its provisions.

    Certiorari to Industrial Accident Board.'
    Submitted April 9, 1917.
    (Docket No. 95.)
    Decided July 26, 1917.
    Ephraim J. McNally presented his claim against the city of Saginaw for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Robert T. Holland (Purcell & Travers, of counsel), for appellant.

      Otto & Davis (R. L. Crane, of counsel), for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Steere, J.

On February 17, 1916, plaintiff, Ephraim McNally, while assisting in placing a sleigh in hose house No. 1 of the fire department of the city of Saginaw, slipped and suffered a strain from which a rupture resulted, necessitating a surgical operation. Following the accident he was absent from duty until April 3, 1916.

Under the provisions, of an ordinance of said city he received full pay for four weeks during the period of his incapacity. He subsequently made application for compensation under Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.), resulting in an award to him by the Industrial Accident Board of 41/2 weeks’ compensation at one-half his. average weekly earnings and $100 for medical and surgical expenses. It is undisputed that this accident arose out of and in the course of his employment as a captain in the fire department of said city.

The city of Saginaw denied liability, and contests his claim, as stated in defendant’s brief, on the ground that at the time of his injury he was an official of the city, and therefore not entitled to benefits under the act, that he made no application for compensation until April 10, 1916, subsequent to the time he made application for and accepted from the city of Saginaw full salary for a period of four weeks under the provisions of an ordinance of said city regulating the fire department, which was a waiver of any claim he might otherwise have under the act, and which, in any event, should be credited in reduction of the amount awarded him, provided he is found to come under the act. The printed record contains the following somewhat equivocal agreement:

“It is hereby stipulated and agreed between the claimant and the respondent that the claim filed with the industrial accident board be amended so as to show that the respondent claims for a period of disability from the 17th day of February, A. D. 1916, to April 3, 1916, regardless of any compensation received from the city of Saginaw other than that which has been paid under the workmen’s compensation law. We are making that claim under section 5 of part 3 of the Pub. Acts of 1912, the same being Act No. 10.
“The respondent consents to the amount of the claim, simply claiming the hospital bill and doctor’s bill and the amount shown by the exhibits and the compensation this man would be entitled to under the compensation law from February 17, 1916, to April 3, 1916.”

Whatever the purpose of this stipulation, it is fairly inferable from other parts of the record and the briefs of counsel for both parties that the important question raised and sought to be litigated is whether plaintiff was when injured an employee or a public officer of the city .of Saginaw under its charter, in contemplation of the provisions of part 1 of the employers’ liability act (2 Comp. Laws 1915, §§ 5427, 5429), which, so far as material here, are ¿s follows:

“Sec.' 5. The following shall constitute employers subject to the provisions of this act:
“1. The State, each county, city, township, incorporated village and school district therein. * * *
“Sec. 7. The term ‘employee’ as used in this act shall be construed to mean:
“1. Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township,” etc.

In Purdy v. City of Sault Ste. Marie, 188 Mich. 573 (155 N. W. 597), it was held that the title of this act was sufficient to include municipal corporations, and that the law was not optional as to them. The legislature did not see fit to furnish a statutory definition of an “official” of any of the governmental entities enumerated, and the difficulty of formulating an adequate one of general application is made manifest by an examination of the many, and not always harmonious, authorities in which that subject has been under discussion. Vide Mechem on Public Officers, chap. 1; 6 Words and Phrases, p. 4983; 28 Cyc. p. 585, and, more directly as to policemen and firemen, the footnotes to Schmitt v. Booling, 145 Ky. 240 (140 S. W. 197), found in 36 L. R. A. (N. S.) 881 (Am. & Eng. Ann. Cas. 1913B, 1078).

Not long before January 1, 1913, the city of Saginaw adopted a new charter by popular vote under the so-called home rule law, providing for a commission form of government with members of its commission, which constitutes its governing body, as heads of various departments. By this charter the fire department was put under the general supervision and control of the mayor as commissioner of health and safety. Section 142 of said charter provides, in part, that the city council upon the recommendation of the commissioner of health and safety shall appoint “a chief” of the fire department, and section 151 provides:

“Upon recommendation of the commissioner of health and safety the council shall appoint such assistant chiefs, captains and other subofficers as the proper organization of the fire department may require.”

Section 360 provides, in part:

# “Except as may be in this charter otherwise specifically provided for, all persons in the employment or service of the city on the 31st day of December, 1913, shall continue in their various employments and duties until either reappointed or their service and employment be terminated by action of the council of the city of Saginaw acting under and by virtue of the terms of this charter.”

Plaintiff had been for nearly 30 years employed in the fire department of the city of Saginaw, and for about 11 consecutive years preceding the accident was a captain in that service. Being in the service of the city in that capacity on December 31, 1913, he so continued without any further or special action on the part of the municipal authorities in reference to him, recognized and paid as a regular captain of that department under and by provision of the new charter.

Prior to the time of the injury complained of an ordinance of the city was adopted for the proper administration of the affairs of the fire department, which, following the charter, provides in part as follows:

“Section 1. The fire 'department of the city of Saginaw shall consist of a fire chief and such assistant chiefs, captains and other subofficers as the proper organization of the fire department may require, and not to exceed 75 firemen.
“Sec. 2. The fire chief shall be the head of the fire department and shall have the custody and control of all engines, hose carts, * * * and all other public property of said department, subject always, however, to the supervision of the commissioner of health and safety. He shall devote his whole time to the affairs of said department and shall preserve and enforce discipline and obedience to orders among members thereof.
“Sec. 3. Upon recommendation of the commissioner of health and safety, the council shall appoint such assistant chiefs, captains and other subofficers and firemen as the proper organization of the fire department may require. Each of said officers shall be a fireman and shall take, subscribe and file with the city clerk the oath of office prescribed by the charter.”

Section 4 relates to the selection and appointment of “firemen,” and concludes:

“Upon approval by the council of the appointment of the commissioner of health and safety of any person as fireman, such fireman shall take, subscribe, and file with, the city clerk the oath of office prescribed by the charter.”

By Section 5:

“The commissioner of health and safety, or the fire chief, by and with the approval of the commissioner of health and safety, shall have power to summarily dismiss from the department, suspend without pay, reduce in pay or in rank, any member of the department whenever such action shall be deemed for the best interests of the department.”

Section 11 makes it the duty of the fire chief to attend all fires in the city, if possible, and in case of his absence conférs his powers on his assistant, providing further that:

“In the absence of the fire chief or an assistant fire chief the captain of the company first present at the fire shall take command of all fire companies at such fire and during the absence of such officers shall have and exercise all the powers of the fire chief.”

Several sections are devoted to the powers and duties of the fire chief at fires. Section 19 appears to recognize that all members of the fire department are not officers, in the following language:

“The officers and men of the fire department with their fire apparatus of all kinds when going to, or on duty at, or returning from a fire, shall have the right of way over any person, horse or vehicle in any and all streets, alleys and public places within said city.”,

It is first broadly contended in behalf of defendant that:

“In the very nature of things under the charter and ordinances of the city of Saginaw a fireman must be deemed to be an official of said city.”

In support of this contention the following is quoted from Blynn v. City of Pontiac, 185 Mich. 35 (151 N. W. 681):

“Being satisfied that a policeman is an appointive officer under the provisions of the charter of this city, required to take an official oath of office, which it appears was done in this case, it follows that he came within the exception in subdivision 1, § 7, pt. 1, Act No. 10, Pub. Acts 1912, Extra Session (2 How. Stat. [2d Ed.] § 3945, 2 Comp. Laws 1915, § 5429), and is not an employee, as defined by said act, and therefore does not come within its provisions.”

Blynn was a member of the police force of the city of Pontiac. His duties, as the name applied to his position signified, were to assist in enforcing the laws, prevent crime, lawlessness, and disorder, protect the persons and property of citizens, and preserve the public peace and safety — to exercise a portion of well-understood and important sovereign police power of the State. In that relation and as applied to such functions, in connection with the charter provisions of that city as to the manner of his selection and qualifications, he was construed to be an officer, and not a mere employee, within the meaning of the act. It was not held and could not in reason be contended that all persons in the service of a city in any capacity, regardless of the nature of their duties, could be made officers within the meaning of the act by appointment of the city council or commission, and a requirement that they take an oath of office. In the Blynn Case it was pointed out that the charter mentioned policemen independently of the employees of the department, recognizing a distinction between the two. Here the ordinance recognizes “officers and men of the fire department.”

As is customary with cities of its size and importance, the city of Saginaw had maintained under its old charter, and continued under the new, a paid fire department with á force of men regularly employed, trained, organized, and equipped to efficiently fight and prevent the spread of fires, their duties presumably devoted and limited to preparation for and performance of that service. While for proper organization and efficient administration of the department certain members of its force are given rank and authority over others, they are all engaged in a service the duties of which, although important and requiring special training, are largely subordinate, physical, and of comparatively narrow scope in the governmental affairs of a municipality. Conceding that the city is performing a governmental function in furnishing its citizens fire protection, and is therefore not liable in damages for negligence while in the discharge of such function, its immunity from liability in that particular is not contingent on whether its agents in the service are called officers or employees. To indiscriminately classify all men in the fire department as officers would be an anomaly which is recognized in the city ordinance upon that subject and which the statute cannot be reasonably construed as contemplating. The more serious question is whether the chief, assistant chiefs, and captains of the fire department provided for in the charter come within the exception of the employers’ liability law as city “officials.”

That statute is presumed to have been enacted with knowledge of and to be construed with reference to relevant existing laws. The general law providing for incorporation of cities (Act No. 279, Pub. Acts 1909 [1 Comp. Laws 1915, § 3304 et seq.]), passed in compliance with section 20, art. 8, of our present Constitution, specifies in section 3 (1 Comp. Laws 1915, § 3306) that each city charter adopted under it shall provide for selection, by election or appointment, of a mayor, a legislative body, a clerk, treasurer, assessor or board of assessors, a board of review and “(b) for the election or appointment of such other officers as may be deemed necessary.” Manifestly the law means that the incumbents of created offices shall be officers in fact as well as name, clothed to a substantial degree with personal responsibility and governmental authority, to be exercised for a public purpose. Subject to such limitations, cities adopting a charter under the present State Constitution, and home rule act passed pursuant to it, must provide for certain officials specified in the act, and may further provide for the election or appointment of such other officers as are deemed necessary by those framing and adopting the charter. The act does not provide or contemplate that general authority can be delegated to subordinate bodies, or designated officials, to. create municipal offices not named in the charter, and thus make employees selected to fill them city officials. City officials are primarily creatures of the charter, to which as a general rule reference should be had in differentiating, under the exceptions in the employers’ liability law, between city officials and “every (other) person” in the service of the city “under any appointment or contract of hire, express or implied, oral or written.” The charter of Saginaw in providing for a fire department specifically designates as essential officers of such governmental activity a “chief,” with such “assistant chiefs” and “captains” as a proper organization of the department may require. It also authorizes, in general terms, without other designation, “subofficers,” or persons selected from amongst the firemen, with minor authority over others in the performance of their common duties, acting as petty officers of the organization in respect to their relations with each' other. Such employees do not thereby become public city officials in the true sense of that term.

The charter has, however, in unmistakable language expressly created the offices of chief, assistant chiefs, and captains, and by recognized official titles which according to common conception distinguish, in importance and implied authority, officers from employees. Not only do the positions provided for and designation of incumbents imply official responsibility and command, but by the authorized scheme of organization it is provided that in certain contingencies any one of them may, by virtue of his office, be required to assume at fires not only full command of the active operations of the department, but authority over the property, conduct, and services of citizens as in his judgment the emergency demands — a manifestly important exercise of the sovereign powei of local government.

For these reasons, we are constrained to conclude that under the facts shown and charter provisions cited a captain of the fire department of Saginaw is, in contemplation of the employers’ liability law, an official of the city coming within the exception of subdivision 1, § 7, pt. 1 (1 Comp. Laws 1915, § 5429), of the act, and therefore not entitled to compensation under its provisions.

The order of award made by the industrial accident board is therefore reversed.

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


text:
    CITY BANK & TRUST CO. v. ATWOOD.
    1. Bills and Notes — Contracts—Foreign Contracts — Validity —What Law Governs.
    The laws of a foreign State govern the rights of the parties to a note executed in such State by a resident of such State and payable to a bank in such State.
    2. Husband and Wife — Contracts—Statutes—Contract of Wife —Surety for Husband.
    Under the Code of Alabama, § 4492, providing that a “wife has full legal capacity to contract as if she were sole, except as otherwise provided by law,” and § 4494, relating to her right to alienate or mortgage her real or personal-property under certain conditions, and § 4497, providing that the “husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations; but his wife shall not, directly or indirectly, become the surety of her husband,” a married woman can make all contracts, agreements, and conveyances in regard to her separate estate, “except as otherwise provided by law,” and the only prohibition upon her is that she cannot directly or indirectly become the surety for her husband.

    3. Same.
    Under the Alabama laws a surety is one who contracts to answer for a debt, default or miscarriage of another, assuming an obligation accessorial to that of the principal debtor.
    4. Bills and Notes — Contracts—Foreign Contracts — Principal and Surety.
    In an action on a note made in Alabama, evidence examined and held, insufficient to establish that defendant was a surety on the note for her husband.
    Error to Montcalm; Davis, J.
    Submitted April 9, 1917.
    (Docket No. 96.)
    Decided July 26, 1917.

      Assumpsit by the City Bank & Trust Company against Jennie Atwood upon a promissory note. Judgment for defendant. Plaintiff brings error. '
    Reversed.

      John W. Dasef and E. J. Bowman, for appellant.

      N. O. Grisivold, for appellee.

      On conflict of laws as to capacity of married woman to contract, see notes in 57 L. R. A. 513; 26 L. R. A. (N. S.) 764, 774; L. R. A. 1916A, 1054.

   Steere, J.

Plaintiff brought this action in the circuit court of Montcalm county upon a promissory note given by defendant to it, dated at Mobile, Ala., April 20, 1907, payable on demand at plaintiff’s bank in Mobile. The note itself is in customary form, followed by a supplemental provision pledging as collateral to it 600 shares of the Mann Lumber Company, a corporation. The declaration is upon the common counts in assumpsit with a copy of the note made a part of the declaration.

Defendant pleaded the general issue with special notice of the defense that she was a married woman and the note was given without consideration to her, at the request of her husband, not for her benefit, and the proceeds were not her property.

The case was tried before the court without a jury. Findings were made and filed by the court upon request of counsel. The portions material to an understanding of the issues involved and questions raised here are as follows:

“Plaintiff is doing a banking business in the city of Mobile, in the State of Alabama, and is a resident of that State. The defendant is the wife of Guy W. Atwood, who resided in the city of Mobile and State of Alabama during the greater part of the years of 1906 and 1907. Guy W. Atwood at the time was secretary and treasurer and manager of the Mann Lumber Company, which company was a corporation organized under the laws of the State of Michigan and doing business in the State of Alabama. On or about the 1st day of June, 1906, the said Mann Lumber Company was indebted to the plaintiff for borrowed money to the amount of $21,995.94 for which the said plaintiff held its obligations. The said Mann Lumber Company had also purchased timber upon contracts on which payments were then maturing, and it had not money to meet such payments oil said timber contracts, and through the said Guy W. Atwood the said Mann Lumber Company applied to the plaintiff for a further loan of $3,000.
“The plaintiff, through its president, stated to the Mann Lumber Company, through its secretary and treasurer, that the Mann Lumber Company had borrowed to its limit, and that the plaintiff could not lend any more money to the Mann Lumber Company. The plaintiff then suggested to the secretary and treasurer of the Mann Lumber Company and the husband of the defendant that it had money to loan, and that if the wife of the said Guy W. Atwood would make a note for $3,000 and secure it with stock of the Mann Lumber Company and have the avails of the note or notes credited to the account of the defendant with the plaintiff, and make her check to the said Guy W. Atwood or Mann Lumber Company for the avails of it, so that the transaction would not appear to be for the benefit of the said Guy W. Atwood or the Mann Lumber Company, that the plaintiff would then make the loan.
“Thereupon, about the 1st day of June, 1906, the defendant and her husband, Guy W. Atwood, went to the lobby of the bank office of the plaintiff, and there the defendant, at the request of her husband, signed three notes of $1,000 each, and gave them to her husband, who took them, and issued stock of the Mann Lumber Company to Jennie Atwood and deposited the stock as collateral for the security of said notes with the plaintiff, who thereupon passed the amount of $3,000 to the credit of the said Jennie Atwood, and the said Jennie Atwood also at the same time she signed said notes signed a check for $3,000 in favor of the said Guy W. Atwood, for that amount, which check the said Guy W. Atwood indorsed over to the Mann Lumber Company and used the avails in its business: The defendant had no part of the avails of said notes for her individual use or for the benefit of her estate, and was not to have any part of the avails of said notes for the use and benefit of her estate, which fact was well known to the plaintiff at the time of making said loan.
“Said notes, were renewed from time to time and payments made thereon, until on April 20, 1907, there remained a balance due upon said notes of $1,400, the defendant signing from time to time renewal notes, and on .April 20, 1907, at the request of the said Guy W. Atwood, she signed the note in question in this suit, but the defendant never at any time received any consideration therefor for her own use or for the benefit of her estate. The payments that were made from time to time by which said original indebtedness was reduced were made by checks of the Mann Lumber Company and received by the plaintiff to apply upon said obligation. The defendant never' made any payments whatever upon said notes.
“The note in suit was payable on demand, and interest was paid thereon up' to June 19, 1907. ■ By its terms it should draw interest at the rate of 7 per cent, per annum until maturity, and the legal rate prevailing in Alabama after maturity.
“No evidence was offered of any demand ever having been made by the plaintiff upon the defendant, and no evidence was offered showing the legal fate of interest in Alabama. At the time of the commencement of this suit the plaintiff was still a resident of the city of Mobile, Ala., and the defendant was a resident of the State of Idaho.
“Copies of four sections of the statutes of Alabama, together with the certificate of the secretary of State appended thereto showing that such statutes were in force in 1906 and 1907, were offered and received in evidence without objection.
“There was no evidence offered of the value of the certificate of stock of the Mann Lumber Company held by the plaintiff as collateral to said defendant’s obligation, or whether the plaintiff had or had not availed itself of its right to sell such stock or to purchase same for its own use, as it was authorized to do, under the terms of the obligation declared upon.
“I further find’ that the transaction took the course above outlined for the purpose of avoiding the appearance that the moneys were loaned to. the Mann Lumber Company, and that in substance the loan was made to the husband of the defendant for the use and benefit of the Mann Lumber Company, and that in substance the defendant was a surety only.
“Conclusions of Law.
“Under the common law in force in all the States of the United States, except where changed by statute, a married woman is not liable on any obligation made for the benefit of another. The plaintiff in this case is not entitled to recover. Let judgment be entered for the defendant.”

• Amendments to such findings were proposed by plaintiff and refused. Exceptions were duly taken to the findings as made, the refusal to find as requested, and conclusions of law under the undisputed facts proven, upon which it is contended a judgment should have been rendered in plaintiff’s favor for the amount of the note sued upon.

Plaintiff’s most serious contentions are that certain of the facts found by the court have no evidential support, and material facts shown by undisputed testimony are omitted, that the record is barren of any evidence defendant was surety for her husband, or of any personal indebtedness by him to either the Mann Lumber Company or plaintiff.

Amongst the requested facts not found and others disclosed by the undisputed evidence are the following: The three separate collateral notes of $1,000 each signed by defendant and given plaintiff on June 1, 1906, fell due respectively in three, four, and five months. The certificates of stock of the Mann Lumber Company attached as collateral to those notes were of $10 par value per share, being certificate No. 10 for 598 shares issued to defendant May 14, 1906, and certificate No. 2 for two shares, May 14, 1906. Defendant testified that she was the owner of stock in the lumber company which was deposited as. collateral with the contract or paper which she signed that day, and had been owner of the stock since the company-first started some months before. The Mann Lumber Company is shown by its certificates of stock to have had on May 14, 1906, a capitalization of $100,000, and to be “incorporated under the laws of the State of Alabama.” We find nothing in the record indicating that it was organized under the laws of Michigan. Plaintiff was a corporation “foreign” in Michigan, its place of organization not shown, with its principal office at Mobile, Ala. Defendant carried a modest account with plaintiff in her own name, upon which she had drawn checks, and her husband testified she was acquainted with the president of the bank in a social way. On June 1, 1906, none of the lumber company’s indebtedness to plaintiff was past due, and defendant’s husband was not individually indebted to it at the time these notes were given. Interrogated upon this, he testified in part:

“I had no individual liability. * * *
“Q. For what purpose was the $3,000, the avails of the Jennie Atwood note made June 1, 1916, that is, was it used to discharge any obligation which you owed to the bank of the Mann Lumber Company, or was it used to discharge any obligation which you owed to the bank?
“A. Neither one; I borrowed the money to invest in more stock in the Mann Lumber Company. * * * The check was given by Mrs. Atwood to me, and I indorsed it to the Mann Lumber Company, and the treasury stock was issued at the time for the amount of the loan, and the money did go to the benefit of the Mann Lumber Company. * * * I acted as Mrs. Atwood’s agent in dealing with the bank; she had met the officers of the bank.”

The dispute upon the facts lies in the testimony of E. J. Buck, president of plaintiff, and George W. Atwood, defendant’s husband. Both testified by depositions, Buck to the effect that the loan was direct to defendant for the purpose, as he understood, of increasing her holdings in the lumber company, which had increased its capital stock, and when she with her husband applied to the bank for the loan she brought the stock which she already owned and left it as collateral security; that it was always understood between defendant and her husband and witness that the borrowed, money was used to buy stock for her in the lumber company; while Atwood testified that he first attempted to borrow money from the bank direct for the lumber company to take up timber contracts and other of its paper that had' matured, and Buck stated it was not desired to increase its loans, but suggested the bank had money which it would loan on good security, and “it was suggested” (he does not state by whom) that the plan outlined in the court’s findings be followed. Atwood’s testimony, as taken by deposition in Idaho, at two different times, is not harmonious with itself in all particulars. He, however, testified and repeated that the money was borrowed upon his wife’s note with the lumber company stock as collateral security, to buy more stock in that company; that he received from his wife a check drawn on her account in the bank, and indorsed it to the Mann Lumber Company, for which treasury stock was issued to the amount of the check (he does not state to whom), by which method the money eventually went to the Mann Lumber Company and was used in its business. He was defendant’s agent, and also secretary and treasurer of the Mann Lumber Company. Upon the proposition that the money borrowed from plaintiff’s bank was used to purchase more stock in the Mann Lumber Company he and Buck are in accord. '

There is no direct testimony to whom the stock so purchased was actually issued. The court inferred and found that it was issued to defendant and put up as collateral. That it was issued to her i.s a fair presumption, but her testimony is not in harmony with the inference that was the same stock she put up as collateral.

This is an Alabama contract. It is undisputed that all parties connected with the transaction, including the Mann Lumber Company, were then located in and residents of the State of Alabama. Their rights are to be tested by the laws of that State. The provisions of the Code of Alabama then in force are as follows:

'“4492. (2526) (2346). Wife’s Power to Contract— The wife has full legal capacity to contract as if she were sole; except as otherwise provided by law.
“4494. (2528) (2348). Power of Wife to Alienate or Mortgage her Real and Personal Property. — The wife, if the husband be of sound mind, and has not abandoned her, or be not a nonresident of the State, or be not imprisoned under a conviction for crime for a period of two years or more, cannot alienate or mortgage her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution .of conveyances of lands. But if the husband be non compos mentis, or has abandoned the wife, or is a nonresident of the State, or is imprisoned under a conviction for crime for a period of two years or more, the wife may alienate or mortgage her lands 'as if she were sole. .
“4497. (2529) (2349). Contracts Between Husband and Wife; She Cannot Become His Surety. — The husband and wife may contract with each other, but all 'contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations; but the wife shall not, directly or indirectly, become the surety for. the husband.”

It is to be observed that undér the law of that State the wife is more fully emancipated than by the Michigan statute, the object of which is limited to abolishing the common-law rule respecting the marital rights of the husband over, the wife’s individual property, in relation to which she may contract (De Vries v. Conklin, 22 Mich. 255); but otherwise her common-law disabilities remain, and she is not liable on her individual promissory note or other obligation, even in the hands of a bona fide holder for value, unless it is shown to be connected with her separate property (Johnson v. Sutherland, 89 Mich. 579), while a contrary rule obtains in Alabama, as held in Scott v. Taul, 115 Ala. 529 (22 South. 447), where the wife who signed a note with her husband was held, as against a bona fide purchaser for value, precluded from escaping liability under the statutory defense that she signed as surety for her husband. In that State all common-law disability is removed except as otherwise provided by statute. The only statutory restriction material here is. the provision in section 4497 of the code that, while she may contract with her husband, she cannot become surety for him directly or indirectly. In Sample v. Guyer, 143 Ala. 613 (42 South. 106), referring to the statutory provisions of that State, the court said:

"Under our present married woman’s law, capacity to contract is the rule, and incapacity the exception. A married woman can make all contracts, agreements,- and conveyances in regard to her separate estate, ‘except as otherwise provided by law,’ and the only prohibition upon her is that she cannot ‘directly or indirectly become the surety for the husband.’ * * * She has the ‘right to give her property away to her husband or anybody else, and to apply it, by her own hand or through her husband, directly to the payment of his debts’ ” — citing previous decisions.

In Alabama, as generally elsewhere, a surety is held to be one who contracts to answer for a debt, default, or miscarriage of another, assuming an obligation accessorial to that of the principal debtor. Mobile, etc., R. Co. v. Nicholas, 98 Ala. 92 (12 South. 723). The word "surety” means a copromisor to answer for and with another, or a co-obligor with and for the principal entering into a contract with a third party at the same time jointly, or jointly and severally. Read v. Cutts, 7 Me. 186 (22 Am. Dec. 184).

Conceding that the lumber company was the actual borrower from the bank under disguise, and defendant was in truth only surety for it, she was a stockholder in that company from the beginning, financially interested in it, and, if she was so inclined, could legally become surety for it in that State. Misplaced confidence in the business ability of her husband as its manager would be no defense. She even had the legal right to borrow this money from the bank and give it to her husband to buy stock for himself, or as her agent for her. She could do anything and everything in that connection that any adult could do, except to become a surety to another for her husband. The record is barren of any evidence that her husband became legally liable as principal to the bank, or to any one else in this transaction, and his testimony is to the effect that he did not. It cannot be contended that the bank could hold the lumber company or Guy Atwood individually as principal on those notes which it accepted from defendant and credited the proceeds to her account.

Upon this record the testimony fails to support the finding that defendant was a surety for her husband.

The judgment is reversed, with costs, and a new trial granted.

Kuhn, C. J., and Stone, Ostrander,. Moore, Brooke, and Fellows, JJ., concurred. Bird, J., took no part in the decision.


author: Moore, J.

text:
    BUELL v. SIDERMAN.
    1. Trial — Argument op Counsel — Harmless Error.
    Where defendant was called by plaintiff as a witness under the statute, the action of plaintiff’s counsel in asking the jury in his argument what ■ the inference would be because of the failure of counsel for defendant to call defendant to testify on his own behalf was harmless error . where the court stated that counsel for defendant was under no obligation, after examining defendant when called by plaintiff, to call him again as a witness.
    2. Same.
    The argument of counsel for plaintiff, in an action by the receiver of a bankrupt estate to recover the value of goods sold by the bankrupts to defendant, that the bankrupts were indicted evidently for the purpose of endeavoring to dispose of their stock to defraud creditors and, referring to the sale, whether, if a “man even though you have been dealing with him, came to your house in this mysterious way, having said nothing about it prior to that time, would it not raise some question in your mind as to what he was trying to do?” and whether it would call for an investigation of his financial circumstances, was harmless error, where the evidence relating to the indictment got into the case by concession of counsel and the evidence was conflicting as to what was said at the time of sale of the goods.

    Error to Wayne; Murphy, J.
    Submitted April 5, 1917.
    (Docket No. 38.)
    Decided July 26, 1917.
    Assumpsit by Edwin D. Buell, trustee in bankruptcy of Morris F. Schloss and Herman N. Aserson, copartners as. Schloss & Aserson, against Louis Siderman for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Selling & Brand, for appellant.

      Ciarle, Emmons, Bryant & Klein, for appellee.

      On comment by prosecuting attorney on failure of defendant to produce witness as ground for new trial, see notes in 46 L. R. A. 641; 34 L. R. A. (N. S.) 811.

   Moore, J.

This suit was commenced by declaration containing all the common counts in assumpsit. It is brought to recover $1,412.88, the value of clothing shipped to and received by defendant, less a possible shortage. The defendant pleaded the general issue, and gave notice that the goods for which suit was brought were part of an order for $8,426.88 worth of goods, payment for which was to be $1,000 on the receipt of the goods, and the balance to be paid in six months. It is further claimed the balance of the goods were not received, and that defendant is entitled to recoup his damages to an amount equal to the value of the goods for which suit is brought. From a judgment for $1,505.56 in favor of the plaintiff, the case is brought here by writ of error.

A general summary of the situation may be of advantage: Schloss & Aserson were manufacturing clothiers in Chicago for a number of years, making a specialty of blue serge suits. Defendant is a retail clothier, operating two stores in Detroit. He had bought clothing from Schloss & Aserson previous to the transaction involved here. On Friday, February 13, 1914, he received a. telegram as follows:

“Will be in Detroit Sunday morning. Will you be at home. Wire reply collect. '
[Signed] “Schloss & Aserson.”

He replied to the telegram, and Mr. Aserson came on the following Sunday morning to defendant’s residence, which was upstairs and next to one of his stores. There was some talk about a sale of goods by Mr. Aserson to the defendant, in quantities and at prices that would total $3,426.88. On Monday morning a sale was arranged, about the terms of which the claims of the parties are conflicting. A memorandum appears in the record, which totals $3,426.88; but it was not signed and contains no statement about the payments. Mr. Aserson delivered samples of the goods, and part of the goods were shipped from Chicago that day. The goods were received by defendant a few days later. On the same day the goods were sold a petition in bankruptcy was filed against Schloss & Aserson, but, as no receiver was'then appointed, Schloss & Aserson shipped another case of goods via the Pere Marquette Railroad. After these goods had been shipped the plaintiff Buell was appointed receiver of Schloss & Aserson, and obtained an injunction against the Pere Marquette, forbidding it to deliver the case of goods which was on the way. Defendant was notified by the railroad company of the injunction, and immediately consulted his attorney and as a result correspondence ensued between defendant’s attorney and the attorney for the receiver, which did not result in any adjustment, and suit followed, with the result already stated.

The defendant was called as a witness under the statute by the plaintiff. Serious complaint is made of the latitude permitted in his examination; counsel contending that it tended to create an impression that there was a conspiracy to defraud Schloss & Aserson’s creditors, and also as to his examination about what he did to supply the goods, which he claimed he was entitled to, that were not shipped to him. An examination of the entire testimony of this witness does not convince us there was any abuse of the discretion permitted to a trial court in the conduct of a trial.

Serious complaint is made of the argument of counsel.- It is said he misquoted the testimony. The argument was quite fully taken. When.counsel for appellee stated what he claimed for the testimony of the defendant, counsel for appellant at once interrupted him, and stated what he claimed defendant had testified to. The jury were instructed:

“To arrive at a right conclusion you are dependent, of course, upon the testimony given here in open court, and you are to be guided in your examination of the case, and in arriving at your decision, solely and alone by such testimony as you accept as reliable and worthy of your belief and acceptance.”

The record shows the following:

“Mr. Selling proceeds with and finishes his argument.
“Final argument for plaintiff by Mr. Bogle.
“Mr. Selling: Now, Mr. Bogle, will you repeat what you said, that I may have an exception to it?
“Mr. Bogle: I stated that Mr. Selling, at the close of our evidence, did not put Mr. Siderman on the stand, and I want to know what the natural inference from that would be, whether he was afraid of what Mr. Siderman would say, putting him on his own defense.
_ “Mr. Selling: I take it that is entirely improper, in view of the fact that he was called before the defendant could properly have been called upon to make his defense, and was not only examined and re-examined, but recalled and cross-examined at length.
“The Court: I think that move is one which is a proper matter for argument to the jury. I personally ought to say to the jury at this time that the plaintiff called the defendant as his own witness, as he had a right to do under a special provision in the laws of this State; you may not have observed that at the time, but it is proper, in view of this objection, to say to you that the plaintiff put Mr. Siderman on the stand as part of his own case, and the defendant, having been so called, was examined by the plaintiff’s counsel and examined by his own counsel, Mr. Selling, and the matter traversed, covered pro and con. Now there is no obligation on the part of the defendant, that having been done, to call Mr. Siderman then again as a witness. It could have been done, but there was no necessity for it. The fact that it was not done, I think, is a proper matter for such argument as counsel may wish to make to you on the subject. (Exception for defendant.) ”

The matter seems to have dropped there. It would not be claimed that, if Mr. Siderman had not been called as a witness, the fact might have been commented upon. The fact that plaintiff called him under the statute did not preclude defendant from making him his own witness, and what was said and done about his failure to do so does not make reversible error.

The following part of the argument of Mr. Ferris appears in the record •

“It is our contention that, Mr. Siderman having received goods from this bankrupt, he should pay the reasonable value therefor. He admits the price he has charged was reasonable, making the total amount of the claim for the goods he received $1,412.85. In answer to that he says he does not want to pay any of that money out; he does not want to see the creditors. of Schloss & Aserson get what they are rightfully entitled to; according to my opinion, he does not want to see the trustee of this estate, for the creditors of that bankrupt — and we admit, we cannot deny it, that the bankrupts, so we are informed, are indicted for doing the very thing they have done, endeavoring to dispose of their stock to defraud creditors was evidently the charge. Taking these things together, we leave it to you, and if a man, even though you had been dealing with him, came to your house in this mysterious way, having said nothing about it prior to that time, would it not raise some question in your minds as to what he was trying to do? Would you not investigate and find out what his financial circumstances were ? ^ ^
“The Court: Is there any other matter to which counsel desire the attention of the jury to be called?
“Mr. Selling: I call your honor’s attention in view of the correspondence, and the argument of the opposing counsel, to our request to charge No. 18.
“The Court: I think I have said all I want to say about that, Mr. Selling.
“Mr. Selling: Your honor will give me an exception.”

The eighteenth request reads:

“(18) There is no evidence in this case from which you have any right to infer that, in these transactions with Schloss & Aserson, Mr. Siderman did not act in perfect good faith.”

It is said the reference to the indictment of Mr. Aserson and the refusal to give the eighteenth request constitute error. It may be well to know how the testimony in relation to the indictment got into the case. The deposition of Mr. Aserson was being read when the following occurred:

“Mr. Bogle continues reading the deposition to the end; there being no cross-examination.
“Mr. Selling: Will it be conceded that Mr. Aserson is under indictment for some kind of offense in these bankrupt proceedings? It is so testified to in the affidavit of a member of your firm; we did not want to bother about it, and offer the affidavit, if you will concede it.
“Mr. Bogle: I am informed that that is true.
“Mr. Selling: It is understood that we are both informed that this witness is under indictment for some kind of offense against the bankrupt law, as it appears in an affidavit filed by a member of your firm in this suit.”

It is also well to recall some of the testimony. Mr. Aserson testified in part:

“Q. 22. Now state just what was said by you and by him at the time you took the order, as to the method of paying for it.
“A. Nothing more than he was to receive the merchandise and to pay for it.
“Q. 23. Nothing was said about the time the check was to be sent?
“A. Nothing but on receipt of the goods. * * *
“Q. 55. Did the price of these grades of suits change materially between February 16 and April 1, 1914, in Chicago?
“A. They remained the same.
“Q. 56. Do you recall anything in the conversation with Mr. Siderman in Detroit, at the time he bought these goods, regarding the conditions of the sale or the terms of payment that you haven’t already told us.
“A. I don’t know of anything.
“Q. 57. Was anything said about who was to pay the freight from Chicago?
“A. No, sir; it is customary in the clothing business for the purchaser to pay the freight.
“Q. 58. Was anything said by you or Mr. Siderman about his paying $1,000 on delivery of the goods and having time on the balance?
“A. I don’t remember.
“Q. 59. Was anything said by you or Mr. Siderman at that time about his having six months in which to pay for these goods ?
“A. I don’t believe it.
“Q. 60. Do you recall anything at all being said in that conversation, except as you have already stated, that he was to send a check when the goods arrived?
“A. I cannot recall anything else.”

It is the claim of the defendant that he could not get the goods at all in April that were not delivered. It was also his testimony that he was to pay $1,000 on receipt of the goods and have six months’ credit for the balance.

In view of the way the testimony about the indictment got into the case, and the contradictory testimony in relation to what occurred when the goods were sold, we do not think what was said in the argument, and the refusal to give the eighteenth request, constitute reversible error.

It is strenuously argued that the court erred in certain portions of his charge to the jury. The charge was somewhat long. It covered every phase of the case. The theories of the litigants were fairly and clearly stated. If any criticisms of the portions of the charge to which counsel call attention have any basis when considered separately, when the entire charge is read the basis for the criticism disappears. We do not think it necessary to call attention to the other assignments of error. They have been considered.

Judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Osteandee, Bied, Steeee, Beooke, and Fellows, JJ., concurred.


author: Mooee, J.

text:
    CHAFFEE v. CHAFFEE.
    Compromise and Settlement — Question eor Juey.
    The evidence presented a jury question relating to the sufficiency of evidence of a consideration for a compromise between defendant, the widow of deceased, and the plaintiff, his mother, whereby a bond was given by the widow to the mother conditioned on the payment of monthly sums to the mother for life, where the mother claimed that a will was in existence, under which she was entitled to a specific sum of money out of the estate and the widow claimed that it had been revoked and that the deceased had requested her to make provision for the mother, and she had agreed to do so.
    Error to Kent; Perkins, J.
    Submitted April 16, 1917.
    (Docket No. 56.)
    Decided July 26, 1917.
    Assumpsit by Hannah M. Chaffee against Laila M. Chaffee upon a bond. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Lombard, Hext & Washburn, for appellant.

      Roy M. WatJdns (H. Monroe Dunham, of counsel;, for appellee.
   Mooee, J.

Defendant is the widow of Guy W. Chaffee, who died August 1, 1913. Plaintiff is his mother. It is the claim of plaintiff that deceased left an estate of the actual value of $100,000 or more. This action is based on a claim that a compromise was made between the parties hereto, resulting in the giving of a bond by defendant to plaintiff conditioned on the payment of $50 per month to plaintiff during her lifetime, subject to certain modifications. Defendant concedes the giving of the bond and made payments thereon, but later refused to make further payments on the ground of failure of consideration. The trial court directed, a verdict for defendant, holding the bond was without consideration. • The sole question is: Should there have been a directed verdict?

Plaintiff claims to be a legatee under a will which she claimed had been left by her deceased son. Defendant claimed the will had been revoked by deceased. For 15 years prior to his death Guy Chaffee contributed largely to the support of his mother. She had been told by Guy, and it was a matter of common repute among members of the family up to the time of his death, that he had made a will wherein he had made a provision of $10,000 for plaintiff. Deceased had told Burt Chaffee and two brothers and a sister of plaintiff that he had provided a legacy of $10,000 for his mother by will. Guy Chaffee died in Chicago, where he had been taken for treatment five days before his death. On the train coming home from Chicago, the defendant, while in conversation with deceased’s sister, made the statement that there was no will. Burt Chaffee, a son of the plaintiff, had sev-' eral talks with defendant about the will. During these talks he was acting on behalf of plaintiff. Both plaintiff and Burt Chaffee testified that they then believed, and still believe, that the will was then in existence. During these talks with defendant, Burt Chaffee made the claim that there was a will having a provision in it of $10,000 for plaintiff. Defendant claimed that deceased had stated to her shortly before his death that he had destroyed his. will, but had requested defendant to provide for plaintiff in a manner she stated. In order to satisfy plaintiff, defendant offered to make provision for plaintiff in writing in accordance with the request made of her by her husband, as claimed by her. Burt Chaffee then went to his mother and communicated defendant’s offer, which at first was rejected. But later, after advising with Burt, plaintiff accepted the proposition. During these negotiations, the testimony discloses, it was talked between Burt and defendant .that the acceptance of the bond would be a release of any claim that plaintiff had under any alleged will that she claimed was then in existence. Plaintiff also so understood the matter.

The question involved is simply: Was there sufficient evidence of a consideration for defendant’s agreement? Or, stated otherwise: Was. there evidence to go to the jury on the question of a compromise and settlement of a claim which was in dispute between the parties, and made in good faith by plaintiff?

In 5 Puling Case Law, p. 876, it is said:

“Compromise may be defined to be any agreement or arrangement by which, in consideration of mutual concessions, a controversy is terminated. The word applies equally to controversies in court or out of court. Mere abandonment of one’s claims is not a compromise, but abandonment may constitute the consideration for which the other party either concedes some right, or parts with something, or sustains some loss or inconvenience. and in that event there is a compromise.”

On.page 877 the following appears:

“The'compromise of any matter is valid and binding, not because it is the settlement of a valid claim, but because it is the settlement of a controversy., it has been said that.the only elements necessary to a valid agreement of compromise are the reality of the claim made and the bona fides of the compromise; and a dispute must have existed between the parties as to their respective rights. If the parties act in good faith, even where they know all the facts, and there is a promise without legal liability to base it on, the courts hesitate to disturb the agreements of parties on any assumption that an advantage which they have obtained, and conceive to be worth paying for, is not considered valuable.”

At page 878 it is said:

“It is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims, and the nature or extent of the rights of each should not be nicely scrutinized. Courts should, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties. The consideration for such agreements is not only valuable, but highly meritorious. They are encouraged, because they promote peace) and when there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement.”

At page 879:

“In order to effect a compromise there must be a definite proposition and an acceptance. As a question of law it does not matter from whom the proposition of settlement comes; if one is made and accepted, it constitutes a contract, and in the absence of fraud it is binding on both parties.”

At pages 880 and 881 it is said:

“The cases establish the position that in equity the termination of family controversies furnishes a sufficient consideration to support agreements for such purpose, and that its powers will be fully and readily used to enforce them. Family arrangements extend and apply, not merely to cases in which arrangements are made between members of a family for the preservation of its peace, but to cases in which arrangements are made between them for the preservation of its property; it being a general principle that a voluntary conveyance, made with a view to a family settlement, is such a conveyance as the law will effectuate. In cases relating to the adjustment of family disputes, where the motive is to preserve the honor or peace of the family, or the family property, the courts will not closely scrutinize 'the consideration, and will, if possible, decree performance of all reasonable settlements, even though they may at times rest on grounds which would not have been satisfactory if the transaction had occurred between mere strangers. * * *
“A doubtful or disputed claim, sufficient to constitute a good consideration for an executory contract of compromise has been defined as one honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he has a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be wholly unfounded.”

See, also, Weed v. Terry, 2 Doug. 344 (45 Am. Dec. 257); Van Dyke v. Davis, 2 Mich. 145; Bull v. Hepworth, 159 Mich. 662 (124 N. W. 569); Stevens v. Utilities Co., 189 Mich. 203 (155 N. W. 402), and Hoey v. Ross, 189 Mich. 193 (155 N. W. 375).

In the instant case plaintiff was claiming there was a will in existence that entitled her to $10,000 out of the estate of the husband of defendant. This was denied by defendant, basing her denial upon the assertion that her husband had told her he had revoked or destroyed the will, but wanted her to make provision for the mother which she expressed to the son, who was acting for the mother, a willingness to do. It .is apparent that, if the mother and the daughter-in-law acted upon their beliefs, it might result, in litigation which would greatly disturb the peace of the family, and might also have a tendency to affect the honor of some members of the family. The case presented questions of fact for a jury under proper instructions.

Judgment is reversed, and a new trial is ordered.

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


text:
    DOUGLAS v. TEMPLE MANUFACTURING CO.
    Master and Servant — Personae Injuries — Actions—Sufficiency of Declaration.
    A declaration in an action by a servant against the emiployer for damages for personal injuries due to the fall of a smokestack, which states the duties of the defendant under eight heads and avers that none of these duties was performed, causing injuries to plaintiff, reasonably informs the defendant of the nature of the case it is called upon to defend, and is sufficient under the judicature act (3 Comp. Laws 1915, § 12454).
    Certiorari to Kent; Brown, J.
    Submitted April 18, 1917.
    (Docket No. 94.)
    Decided July 26 1917.
    Case by Burt Douglas against the Temple Manufacturing Company for personal injuries. From an order denying a motion to dismiss, defendant brings certiorari.
    Affirmed.

      Wicks, Fuller & Starr (George Clapperton, of counsel) , for appellant.

      Snow & Snow (Purcell & Travers, of counsel), for appellee.
   Moore, J.

This is an action to recover damages for injuries which plaintiff claims he received while in the employment of the defendant. The suit was commenced by declaration. The defendant made a motion to dismiss this declaration, which motion was overruled. The plaintiff seeks by writ of certiorari to review the action of the circuit judge in overruling the motion.

There are several errors assigned, but the important contention of defendant may be stated as follows:

“Fifth. Affiant calls attention particularly to the following: . •
“(‘a) That the eight allegations of negligence or breach of duty contained in the declaration in question do not separately or collectively set forth any facts which show negligence, but that such allegations separately and collectively are merely conclusions of the pleader.
“(h) That in the declaration in question no ultimate facts are shown upon which to predicate the charge of negligence or with which to connect the allegations of duty.
“(e) That according to the declaration in question the plaintiff is claimed to have been injured by the falling of a certain smokestack, but that the said declaration does not by allegation of fact apprise the defendant what caused this stack to fall, and consequently gives defendant no notice whatever of any connection between the alleged falling of the stack and the alleged breaches of duty.”

These' contentions make it necessary to refer somewhat in detail to the declaration. Omitting the formal opening, it avers the employment of plaintiff by the defendant as a laborer ánd his inexperience. We quote: ..

“Plaintiff further avers that, in the construction of said building or buildings aforesaid by the said defendant, it became necessary to erect and place in position for the purposes of its said business a large iron or steel smokestack, which was to have a cement or solid foundation, and which, upon the day and year aforesaid, had been prepared by said defendant and was ready to be used for the purpose intended.
“Plaintiff further avers that, before the day and year aforesaid, said defendant had secured said smokestack, and' upon said date was engaged in the erection thereof upon the premises of said defendant aforesaid; that said smokestack was in dimension, to wit, about 72 feet long and about 32 inches in diameter, and was made of metal as aforesaid, of the usual and necessary thickness, prepared and fastened together in the ordinary way, and was heavy and cumbersome to handle, and required particular methods, skillful and experienced employees, and careful operation upon the part of defendant, or those engaged by it, to place said smokestack in an upright position in the place prepared for it as aforesaid, so that the same could be used by said defendant in the operation of its said business.
“Plaintiff further avers that, being so employed as aforesaid, it then and there became and was the several duty of defendant: (1) To provide a safe place wherein plaintiff might do the work required of him. (2) To employ, or see to it that there was employed, in connection with the work of erecting and elevating said smokestack, and placing the same in position, competent servants, agents, and employees, qualified to do said work and in sufficient numbers. (3) To provide, or see that there was provided, sufficient supports, ropes, cables, hoisting machinery, and apparatus, and of sufficient strength to hoist and place said smokestack in position, and to keep said supports, ropes, cables, hoisting machinery, and apparatus in a reasonably fit condition to do said work and in sufficient repair. (4) To require all persons doing the work of hoisting and placing said smokestack in position to furnish, provide, and use sufficient materials, supports, and all other machinery, ropes, pulleys, chains, and apparatus, and of sufficient strength to do said work in a safe and prudent manner, and to have the same in good and sufficient repair, and to engage, employ, and furnish sufficient men to do said work in a reasonably safe manner. (5) To warn and notify plaintiff of the dangers incident to the erection of said smokestack in the manner and way in which the same was to be placed in position. (6) To furnish and provide, or to see that there was furnished or provided, sufficient ropes, hoisting machinery, and necessary apparatus as well as sufficient men, competent to do the work of hoisting and erecting said smokestack, as might be necessary in view of the hazardous and dangerous character of said work. (7) To not direct or require plaintiff to do work other than that of his regular employment or of like character. (8) To not direct or require plaintiff to do or perform a more hazardous character of work than that of his regular employment.
“Plaintiff further avers that the said defendant, its servants, agents, and employees, failed, omitted, and neglected to perform its several duty in the manner heretofore specified, and was guilty of actionable negligence on account of said failure and omissions, as a result of which said plaintiff, being at the time in the exercise of due and ordinary care, and without fault upon his part, was seriously and permanently injured. * * *
“Plaintiff further avers that in the lifting of said smokestack into position it became necessary to raise the bottom thereof "about 12 feet from the ground, and to then lift said stack to an upright and perpendicular position, the top of the stack, when in such position, being about 80 feet from the ground; that in raising said smokestack, as aforesaid, a ‘gin’ pole, so called; was placed near the stack, said pole being, to wit, 54 feet in height, and through the top and over said ‘gin’ pole ropes were fastened to the said smokestack, and passed through pulleys; that the end of the said smokestack, which was to be placed upon the foundation as aforesaid, was then raised from the ground to a height of about 10 feet, and the other end of the stack was then raised from the ground by means of said ‘gin’ pole and pulleys as aforesaid, and plaintiff avers that when the top of the said smokestack was about 30 feet from the ground that the.butt of the said smokestack, by reason of the negligence of said defendant, its servants, agents, and employees, as aforesaid, and without fault or negligence upon the part of said plaintiff, fell to the ground, striking said plaintiff with great force and violence upon the head, face, legs, and right foot, causing serious and permanent injuries, as hereinafter more specifically stated.”

It will be noticed that under eight heads the duties of defendant are stated. It is then averred that none of these duties were performed, and because of the neglect to perform these duties the smokestack fell and plaintiff was hurt. The principles involved are discussed in Creen v. Railroad Co., 168 Mich. 104 (133 N. W. 956, Am. & Eng. Ann. Cas. 1913C, 98), and McDonald v. Hall, 193 Mich. 50 (159 N. W. 358), and we deem it unnecessary to restate them here. In the judicature act, so called, occurs the following:

“In the actions which are in this act retained, the. forms of declaration now in common use may be employed ; but no declaration shall be deemed insufficient which shall contain such information as shall reasonably inform the defendant of the nature of the case he is called upon to defend.” Judicature Act (Cummins & Beecher’s Edition), § 577 (3 Comp. Laws 1915, § 12454).

We think the declaration reasonably informed the defendant of the nature of the case it is called upon to defend.

The order overruling the motion to dismiss is affirmed, with costs to the plaintiff.

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


author: Brooke, J.

text:
    MASSACHUSETTS BONDING & INSURANCE CO. v. PARK.
    1. Negugence — Presumptions—Accidents.
    No presumption of negligence is raised by tbe mere happening of an accident, or proof of injury resulting therefrom.
    2. Justices oe the Peace — Certiorari-—Scope oe Review.
    The circuit court, on certiorari to a justice’s court, where the contention is made that there is no evidence of negligence of the defendant, may review the evidence to see whether such contention is correct, and, if correct, it may reverse the judgment, but otherwise it must affirm the judgment.

      Error to Wayne; Law, J., presiding.
    Submitted April 5, 1917.
    (Docket No. 52.)
    Decided July 26, 1917.
    Rehearing denied December 28, 1917.
    Case in justice’s court by the Massachusetts Bonding' & Insurance Company against Ross A. Park for the negligent breaking of a window. There was judgment for plaintiff and defendant appealed to the circuit court by writ of certiorari. Judgment dismissing writ. Defendant brings error.
    Reversed.

      Rupert A. Bell, for appellant.

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Brooke, J.

This case was tried in justice’s court. The justice’s return to the writ of certiorari contains the following:

“On the trial of said cause, Russell Grover, John Slazinski, and Harry K. Curtis, witnesses sworn on the part of the plaintiff, testified that Joseph Skrzycki was the owner of the store located at 404 East Can-field avenue, Detroit, Mich.; that he leased the store to the witness John Slazinski; that Slazinski was in possession of the store upon June 20, 1916; that the Massachusetts Bonding & Insurance Company had previously insured Skrzycki for any breakage to the plate glass windows in the front of said store; that on the date mentioned defendant was driving his automobile in front of this store and as he passed it one of the wheels from his automobile flew off * * * and struck the plate glass window in front of the store. The cost to replace the window was $16.38. The Massachusetts Bonding & Insurance Company, as insurer for Skrzycki, paid the bill and took an assignment of Skrzycki’s claim against defendant Park. A copy of the assignment is included in the petition for the writ of certiorari. This suit was then brought by the Massachusetts Bonding & Insurance Company against the defendant, Park, in which it was asserted that Park was indebted to the Massachusetts Bonding & Insurance Company, as assignee, for the damage done to this window. Three witnesses sworn for the plaintiff testified to the facts above related and presented to my satisfaction a prima, facie case of negligence on the part of the defendant, Park. And thereupon the plaintiff rested its cause. And Ross A. Park, witness sworn on the part of the defendant, testified that he was driving his automobile at the place above mentioned, and that a rear wheel of his machine flew off from the axle and went into the window of the store, breaking it. He also testified that he had made a casual examination of the wheel before the accident, but in my judgment he did not bring sufficient evidence to satisfy me that he had made a reasonable inspection of the wheels of his automobile prior to the date.of this accident. Testimony was likewise introduced to the effect that the defendant Park had made a settlement with the tenant for the damage done to merchandise that was contained in the window of this store.”

The learned circuit judge who heard the case at circuit made the following order:

“It is ordered that the writ of certiorari issued on behalf of the defendant in above cause be dismissed, and the same is hereby dismissed, with costs to plaintiff, for the reason that the return of the justice shows that there was sufficient testimony offered and received before him to raise a question of fact as to the negligence of the defendant, and, the justice having passed upon this issue of fact, his determination cannot be reviewed on certiorari.”

We are of opinion that the justice of the peace was in error in holding that the testimony introduced before him presented a prima facie case of negligence on the part of the defendant. As we read the testimony, there is nothing therein beyond the mere happening of the accident and consequent injury upon which to predicate negligence. We have frequently held that the mere happening of an accident, or proof of injury resulting therefrom, raises no presumption of negligence. Hewitt v. Railroad Co., 67 Mich. 61 (34 N. W. 659); Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938); Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004); Perry v. Railroad Co., 108 Mich. 130 (65 N. W. 608); Stuch v. Town, 178 Mich. 477 (144 N. W. 833); Barger v. Bissell, 188 Mich. 366 (154 N. W. 107).

We are likewise of opinion that the learned circuit judge was in error in holding that, where the return of the justice shows that there was sufficient testimony offered and received before him to raise a question of fact as to the negligence of the defendant, and the justice having passed upon this issue of fact, his determination cannot be reviewed on certiorari, where, as in the case at bar, the claim of defendant appellant is that there is absolutely no evidence of negligence. In the early case of Elliott v. Whitmore, 5 Mich. 532, it is said:

“With the correctness of the judgment, so far as it is dependent upon the evidence, this court has nothing to do. The circuit court, in virtue of its statutory jurisdiction, has power to inquire into the evidence exhibited in the justice’s court, and to give judgment as the right of the matter may appear.”

This case appears to have been modified by the decision of this court in Berry v. Lowe, 10 Mich. 9, the headnote to which is as follows:

“On certiorari to a justice’s court, if the error alleged is a total want of evidence to prove some fact necessary to sustain the judgment, the circuit court should look into the testimony to see whether there was such evidence or not. If there was, it should not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, _ and it appears that all the testimony before the justice has been returned, the judgment should be reversed, on the ground that the justice erred, in law, in rendering the judgment he did without such evidence.”

See, also, Hyde v. Nelson, 11 Mich. 353; Welch v. Bagg, 12 Mich. 41; Bullock v. Ueberroth, 121 Mich. 293 (80 N. W. 39).

The judgment is reversed, but, inasmuch as there is but $16.38 involved, no costs will be allowed appellant.

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


text:
    KUTSCHMAR v. BRIGGS MANUFACTURING CO.
    Master and Servant — Workmen’s Compensation Act — “Hernia” —“Accident.”
    An employee does not receive an accidental injury entitling him to compensation under the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.), where he sustains a hernia while lifting an iron har which, in the ordinary course of his employment, he is required to lift many times a day, and without the intervention of any untoward or accidental happening.

    Certiorari to Industrial Accident Board.
    Submitted April 6, 1917.
    (Docket No. 78.)
    Decided July 26, 1917.
    John Kutschmar presented his claim for compensation against the Briggs Manufacturing Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer,- bring certiorari.
    Reversed. •

      Douglas, Eaman & Barbour, for appellants.

      Crimmins & Echlin, for appellee.
    On April 10, 1914, claimant was employed by respondent, the Briggs Manufacturing Company, in making automobile cushions. In the course of such employment it was his duty to lift an iron beam about 3 feet long and weighing between 30 and 90 pounds. Claimant testified:
    “I lifted this beam often, about 90 or 100 times a day. This time I say I was hurt 1 did iiot_ fall or stumble when I lifted the beam. I picked it right up, and something snapped in my side. I did not fall or stumble. There, was nothing unusual about it. The beam was about 1% inches thick, 3 feet long and weighs about 90 pounds.”
    Plaintiff claimed that at the time of his injury he told one Hovey Leases about it. Leases was a sub-foreman, or straw boss, who acted as such under Mr. Overmyer, who was foreman of the department. From the 10th of April to the 17th of August, 1914, plaintiff worked at irregular intervals and in all about five weeks. On August 17th, he went to Harper Hospital, where an operation was performed, as a result of which his rupture was cured. He returned to work some time in September. On October 2, 1914, he made the following statement:
    “Briggs Mfg. Co. v. John Kutschmar.
    “Detroit, Michigan, Oct. 2, 1914.
    “Statement of J. Kutschmar of 705 Grandy avenue, a mouldman employed by the Briggs Manufacturing Company: I am 20 years of age and have been employed by the Briggs Manufacturing Company for the past '3 or 4 years. On April 10th, which was Good Friday, while working in the trimming department, I was lifting an iron beam onto a mould which weighed about 90 pounds. I felt a snap in my right side, and was immediately seized with a severe pain, and it was necessary for my partner to finish the work. That was between 4 and 5 p. m., and I stayed the rest of the day and returned to work the next morning, but was unable to work and had to go home, and then for the next couple of months I laid about the house, unable to do any work until about the 1st of July, when I returned to work with the aid of a truss, but the rupture continued to give me trouble, and I finally decided to be operated upon. I made arrangements to go to Harper Hospital, where the operation was performed on August 17th by Dr. Angus McLean. I was confined to the hospital for two weeks, and my hospital and physician’s bill amounted to $49.50. I still owe $15 of the expense. I do not know at this time when 1 will be able to return to work, probably not until the first of the year. I did not report the injury to the Briggs Manufacturing Company, for at that time I did not know that they were supposed to take care of such cases as mine. I first reported it to them on September 28th to a man by the name of Tom. He is the man in charge of the employment office. I attended St. Stanislaus Parochial School, located at the corner of Dubois and Medbury, and when I left I was in the A — 4th grade. I saw the notice posted in the plant regarding the compensation law, but I thought it only applied to death cases and cases of severe injury. I read the above statement and same is true in every particular.
    “John Kutschmar.”
    Compensation having been refused by the respondent, the Briggs Manufacturing Company, an arbitration was had, and claimant’s right to compensation was denied by the arbitration committee. On appeal to the accident board the action of the arbitration committee was reversed, and compensation was allowed in the sum of $153. Respondents review the case in this court under the following assignments of error:

      “First, In reversing and setting aside the award of the committee on arbitration.

      “Second, In finding that John Kutschmar had received an injury while in the employ of the Briggs Manufacturing Company, arising out of and in the course of his employment.

      “Third, In finding that John Kutschmar complied with the provisions of the workmen’s compensation act with regard to the giving to his employer of the notice of injury as required by law.”

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Brooke, J.

(after stating the facts). It is apparent from the record that the committee on arbitration denied compensation upon the ground that no notice was given to respondents by claimant under section 15, pt. 2, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5445). The board in reversing the action of the arbitration committee held that claimant suffered an accident and received an injury arising out of and in the course of his employment, resulting in a hernia, that the notice claimed to have been given by the claimant to Leases was a sufficient compliance with section 15, pt. 2, of the act, and that therefore claimant was entitled to compensation.

Many authorities are collected in the brief filed on behalf of respondents, tending to show that a man occupying a position such as that held by Leases is not a proper person to whom to make report of an accident under the act. As we find it unnecessary to determine this question, we simply insert a list of cases cited, for the benefit of the profession. McLean’s Case, 228 Mass. 342 (111 N. E. 783); Plumley v. Ewart & Son, 8 B. W. C. C. 464; Pimm v. Clement Talbot, 7 B. W. C. C. 565; Jackson v. Vickers, 5 B. W. C. C. 432; Hancock v. Electric Co., 3 B. W. C. C. 210; Burrell v. Holloway Bros., 4 B. W. C. C. 239.

Under the second and fourth assignments of error it is argued by counsel for appellant that the award was wholly unauthorized because the record conclusively shows that the claimant’s injury was not the result of an accident. In the case of Adams v. Color Works, 182 Mich. 157 (148 N. W. 485, L. R. A. 1916A, 283, Am. & Eng. Ann. Cas. 1916D, 689), this court, in an opinion by Mr. Justice Stone, very carefully considered the provisions of our act, distinguished it from the Massachusetts act, and concluded:

“We are of opinion that in the Michigan act it was not the intention of the legislature to provide compensation for industrial or occupational diseases, but for injuries arising from accidents alone.”

This conclusion is predicated- in part upon the title of the act which we there said—

“Shows that the controlling words are ‘providing compensation for accidental injury to or death of employees.’ No compensation is contemplated except for such injuries.”

An examination of the following cases will show that compensation was allowed because of some unusual, fortuitous, or unexpected happening which caused the injury and which was in essence accidental in character. Bayne v. Cartage Co., 181 Mich. 378 (148 N. W. 412); La Veck v. Parke, Davis & Co., 190 Mich. 604 (157 N. W. 72, L. R. A. 1916D, 1277) ; Bell v. Hayes-Ionia Co., 192 Mich. 90 (158 N. W. 179). In the case at bar it conclusively appears from claimant’s own testimony that he received no accidental injury. He was engaged at the moment of his injury in his .usual and ordinary employment and in the usual and ordinary way. In the course of such employment it was his duty to lift the iron bar once in about every 15 minutes, about 90 or 100 times a day. We are of opinion that an employee who receives an injury in the nature of a hernia, while engaged in his usual and ordinary employment, without the intervention of any untoward or accidental happening, is not within the provisions of the compensation act, which as we have held provides compensation for accidental injury only.

The judgment is reversed.

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