text:
    Reuben F. Benton v. The Farmers’ Mutual Fire Insurance Company of Kent County.

      Eire insurance — Location of property — Removal—“Contents” of building.

    1. A farmers’ mutual fire insurance company insured a farm barn and its contents, without specifically describing the contents. Over eight years after the issuance of the policy, which had been kept in full force, the insured erected a new barn on another part of the farm, in which he stored the hay and unthreshed wheat raised on the farm that year, as also a portion of his tools and farming implements. The company had no notice of the erection of the new barn, or of the removal ' of the property. The barn and its contents were destroyed by fire. And it is held that the company is not liable for the contents of the barn, the permanent storage of the property in another building than that named in the policy having withdrawn it from the protection of the policy; citing Lyons v. Insurance Co., 14 R. I. 109; English v. Insurance Co., 55 Mich. 273.

    2. The term “stack” has a well-defined meaning, and cannot be said to include unthreshed wheat in a mow in a barn.
    Error to Kent. (Grove, J.)
    Argued June 20, 1894.
    Decided October 16, 1894.

      Assumpsit. Defendant brings error.
    Reversed, and no hew trial granted.
    The facts are stated in the opinion.

      Myron H. Walker, for appellant.

      Wesselius & Corbitt, for plaintiff.

       For an exhaustive note on the location of movable property as affecting fire insurance thereon, see Benton v. Insurance Co., 26 L. R. A. 237.

   McGrath, 0. J.

On the 4th of April, 1884,-plaintiff made written application to defendant for insurance upon the following property, and in amounts named:-

One dwelling-house............................... $275 00
Contents in same_________________________________ 300 00
One barn........................................ 175 00
Contents in same................................. 300 00
One tool house___________________________________ 75 00
Contents in same................................. 300 00
Stock on said farm, against lightning, in Kent county.......................................... 175 00
Total.........................................§1,600 00

—All situate on section 27, in the township of Bowne. On the same day a policy was issued describing the property as:

One dwelling-house............................... $275 00
On contents in same_____________________________ 300 00
One barn......................................... 175 00
On contents in said barn......................... 300 00
One tool house................................... 75 00
On contents in tool house........................ 300 00
On live stock, against lightning, in Kent county. 175 00
Total.........................................$1,600 00

On January 26, 1889, the defendant executed and delivered to said plaintiff, in pursuance of an application of the same date, a certain other contract of insurance, as follows, to wit:

On one frame granary.............................$100 00
On contents in said granary, or in stacks on farm. 600 00
Total increase...................................$700 00

On April 4, 1884, when said policy was issued, there were a barn and a tool house on said premises, being the ones mentioned in and covered by the policy of insurance of that date; and on the 26th day of January, 1889, there was a fr.ame granary on said premises, being the one mentioned in said contract of .increase. But the plaintiff afterwards considered that said tool house and barn had become unfit or insufficient for his purposes, and in 1891 commenced the erection of a new and larger barn on another part of said farm, which he completed in July, 1892, and in which he stored his grain from the harvest of 1892, and the tools, or a part of the tools, he then had and used upon said farm; and the new barn and said grain and tools therein stored as aforesaid were the ones destroyed by the fire mentioned in said declaration, which occurred, as therein stated, the 28th day of July, 1892. The old barn and tool house and said granary then stood, and still stand, on said premises, and they had contents therein at the timé of said fire. Plaintiff procured a policy of insurance on the new barn in the German Baptist Mutual Fire Insurance Company for the sum of $1,100, which sum was paid after said fire. Defendant had no notice of the transfer of the tools or the grain to said new barn, or of the erection of said barn; and the plaintiff had no insurance thereon, unless the insurance mentioned in the declaration, and as a part of defendant’s policy of insurance, covered the same. Said barn and its contents were destroyed by fire, caused by lightning, at the date aforesaid.

Plaintiff’s proofs of loss covered unthreshed wheat, hay, and tools and implements, all contained and stored in the new barn. Plaintiff insists that the terms "contents in barn” and "contents in tool house” covered the articles, wherever situate.

The old barn and old tool house were still in use. Plaintiff had obtained another policy, in another company, on the new barn. The policy in this case was not for any given term, but was to continue in force so long as plaintiff continued to pay his assessments and remained a member of the defendant company. The barn risk was a permanent one, but in respect of the contents of the barn and tool house the risk was not limited'to the contents on hand at the date of the policy, but was what is termed a " shifting risk,” and covered substituted property. The only language that can be looked to for a description of the property insured is that specifying its situation.

There is a class of cases which hold that the words “contained in” or “being in” or “stored in,” when used in a policy which is not a shifting policy, but which, independently of such terms, sufficiently describes property the use of which necessitates its temporary absence from the building, are considered as further description merely, and as indicating its place of deposit when not temporarily absent in«.the ordinary course.

In Everett v. Insurance Co., 21 Minn. 76, the property was described in the application as “stored in barn on,” etc., and in the policy as a “ threshing machine,” reference being made to the application for a more particular description.

In Holbrook v. Insurance Co., 25 Minn. 229, the property was described as “36 mules, all contained in,” etc.

In McCluer v. Insurance Co., 43 Iowa, 349, a phaeton was destroyed while in a carriage shop for repairs.

In Haws v. Fire Association, 114 Penn. St. 431, certain horses, “all contained in,” etc., were insui’ed under a policy containing a lightning clause. One of the horses was killed by lightning while at pasture in a field on plaintiff’s farm. The court say:

“It is true, in an insurance upon such personal property as household goods or a stock of merchandise, the words 'contained in a’ particular building would seem to imply that the property insured should remain in such building, and that, if removed therefrom, the policy would not cover it. But in such cases the contract contemplates that the property shall remain in the building, and there are obvious reasons why a change of location would afEect the insurance. The very nature of such property implies permanency in its location. But it is not so with a man’s horse. It is of no use to him if kept in a stable. We can understand that if, in. a fire policy, hay, straw, or grain is insured in a barn, the insurance would cease if removed to some other building. Such would be the reasonable meaning of the contract of insurance, and what the parties probably contemplated when they made it. But none of this reasoning applies to a lightning clause upon horses or other stock. The terms and conditions to which such an insurance is subject must be such as are reasonably applicable to such kinds of insurance upon this particular species of property, and such, therefore, as the parties may be presumed to have had in view when the contract was made.”

In Peterson v. Insurance Co., 24 Iowa, 494, the policy covered plaintiff’s seven horses, situated on section 22, etc. While marketing his grain, plaintiff put up at an hotel, and placed his team in the hotel barn, and one .of the horses was destroyed by fire.

In these cases the property was fully described without reference to the words describing its location, and, when destroyed, it was in a situation which from its very nature may well be deemed to have been within the contemplation of the parties at the inception of the policy. Lord Mansfield observed in Pelly v. Governor, etc., 1 Burrow, 341, that the insurer, in estimating the price at which he is willing to indemnify the insured, must have under his consideration the nature of the business, and the usual course and manner of conducting it, and everything done in the usual course must have been foreseen and in 'contemplation at the time he engaged, and that he takes the risk upon the supposition that what is usual or necessary will be done.

The rule has been extended by some authorities to cases where the policy has described a class of property and the risk a shifting one. In Longueville v. Assurance Co., 51 Iowa, 553, certain wearing apparel was burned while being worn.

In Noyes v. Insurance Co., 64 Wis. 415, a dolman was burned while at a furrier’s for repair.

In De Graff v. Insurance Co., 38 Minn. 501, the policy covered $3,000 on his wood barn; $2,500 on live stock therein.” The policy contained a lightning clause. A few weeks before the loss, plaintiff put one of the horses into a new barn, which had been built, where she remained until killed by lightning. The removal was alleged to have been but temporary. The court say:

“Words descriptive of location might, as to one class of property, or as to one kind of insurance, be treated as a statement of a fact relating to the risk, and as amounting to a stipulation or condition that the property should remain there; while as to another class of property, or as to the other kind of insurance, it might be construed as mere description for the purposes of identification. This action is to recover for the loss of live stock by lightning, and the language of the policy must therefore be construed as applied to insurance upon that particular species of property. The parties must be presumed to have known that danger from lightning exists almost wholly in the summer, when live stock is out in the fields. No man of common sense would take a policy of insurance against lightning which only covered his stock when in a particular barn. Such stock cannot well be, and is not usually, kept permanently in a building. The ordinary uses to which it is put forbid it; and the usual and proper treatment of it requires that' it be turned out to pasture about one-half the year at least. According to the usual course of farming operations, it is not customary to treat an animal, even when housed, as attached to some particular building, as a part of its contents, but to change its place of stabling from time to time, as necessity or convenience may require. The parties must be presumed to have had all these facts in view when they made this contract. If appellant’s contention be correct, this policy would not cover a loss occurring while the stock is out at pasture, during the summer, for that could hardly be called a ‘ temporary removal ’ from the barn for some temporary purpose incident to the ordinary use and enjoyment of the property. * * * Our conclusion is that the statement in the policy that the stock was in this barn is not a promissory stipulation on the part of the insured, or a condition of insurance on part of the insurer, that such location should remain unchanged, but as to that class of property, and as to that kind of insurance, at least, is mere matter of description for identification of the property insured, indicating that it was the stock which was usually kept in that barn at that time.”

In Insurance Co. v. Elliott, 85 Va. 962, the policy covered carriages, buggies, hacks, and harness ” in a building occupied as a livery and sales stable, and certain of the vehicles were in a repair shop when ' destroyed. But see Bradbury v. Insurance Co., 80 Me. 396.

In none of these cases, however, was the property described simply as contents of the building named, nor was the situs of the property (when not in use) permanently changed.

In Wildey v. Insurance Co., 52 Mich. 446, the policy covered personal farm property in buildings and on farm.” The by-laws of the company did not allow it to insure village property that was within 100 feet of other buildings. A horse was destroyed by fire while in the barn of a village hotel that stopd within 100 feet of other buildings. The Court in that case say that, where particular property is specified as covered by the risk, it may well be held covered though moved elsewhere, unless there are clear provisions to the contrary; but, where property is only insured as farm property, it may be so restricted as to raise very different presumptions. The defendant was, however, held not liable, on the ground that there could be no implied liability where an express undertaking was forbidden.

In English v. Insurance Co., 55 Mich. 273, the policy insured household goods, furniture, clothing, etc., “ all contained in his two-story frame dwelling-house and'additions, occupied as a residence.” A fire occurred, which rendered the house uninhabitable, and some of the household goods were removed to and stored in the barn. About a month afterwards the barn was burned, and it was held that there could be no recovery for the household goods destroyed in the barn.

In Association v. Kryder, 5 Ind. App. 430, the description was .precisely like that in the present case. The policy, however, contained a lightning clause. While approaching the barn with a load of wheat, two horses, which' were usually kept in the barn, were killed by lightning. The court held that the language “contents therein” referred to the contents at the time of the loss of the barn, and that there could be no recovery. In that case, however, the property insured was animate property; there was a lightning clause in the policy; the insurance of that class of property was contemplated, and-its use in the ordinary and usual course rendered temporary absence from the barn necessary; and it is unnecessary to follow the case. *

The general rule is that place and location is of the essence of the risk. 1 Wood, Ins. § 47; 2 May, Ins. §§ 401a, 4015. No case has been called to our attention as coming within any of the exceptions to the rule where the property has been described as household goods or stores contained in a certain dwelling, or as a stock of goods in a certain store, or as farm products contained in a barn, or simply as the contents of a dwelling, store, or barn, where the property consisted of articles having a permanent location for use, sale, or consumption, and its ordinary use did not involve the necessity for temporary removal. Again, every case presented has been one where the property has been destroyed while in a situation incident to its use, enjoyment, or repair. Nor has a case been suggested or found where the property has been permanently removed from the abiding place named in the policy, stored or kept elsewhere, and destroyed while in such new place of deposit. In Lyons v. Insurance Co., 14 R. I. 109, it was expressly held that a permanent removal of the property from the place where insured would withdraw it from the protection of the policy. To the same effect is English v. Insurance Co., 55 Mich. 273.

This disposes of the plaintiff’s claim for hay, tools, and implements.

Respecting the grain, the policy covers grain in the granary and in stacks. The term “stack” has a well-defined meaning, and cannot be said to include grain in a mow in a barn.

The judgment is therefore reversed, and a new trial denied.

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


source: Caselaw Access Project

author: Long, J. Per Curiam.

license: Public Domain

text:
    Asa G. Dailey v. The Preferred Masonic Mutual Accident Association of America.

      Accident insurance — Conditions of policy — Waiver—Bight of action.

    1. Where the secretary of a mutual accident insurance company, after being informed by a solicitor that a prospective applicant is carrying other insurance which, with that he proposes to take out, will exceed the limit prescribed by the company, and that he has agreed with the solicitor to drop such prior insurance at its expiration, sends the solicitor to take the application, and he, in answer to a question in the application whether the applicant is carrying other insurance, writes in a negative answer, the knowledge of the secretary and the solicitor is that of the company, and it will be held to have waived the right to insist upon a forfeiture of the policy on account of the prior insurance.

    2. Where, in such a case, the secretary indorses an acceptance upon the application, and fills out the policy with intent to have it take immediate effect, and causes it to be mailed to the applicant as of force and effect at that time, the company cannot be heard to say that there was no delivery, though the policy did not reach its destination until after the death of the applicant.
    3. Where an insurance policy expressly refers to the application, and makes it a part of the contract of insurance,- the two instruments- must be construed together, in determining what the real contract is; and if the policy, as delivered, contains provisions not in the application, and which are not accepted by the applicant, they may be treated as waived by the company, and as constituting no part of the insurance contract.
    4. A railroad conductor, in his application for accident insurance, stated that his sole business was running passenger trains. The application was accepted by the company, and a certificate issued, containing a condition that attempting to enter or leave moving conveyances using steam, electricity, water, or compressed air as a motive power were hazards not contemplated or covered by the insurance, and that no sum would be paid for injuries or death in consequence of such exposure, or while the insured was thus exposed. The certificate expressly referred to the application, which contained no such restriction as to entering or leaving trains when in motion, and made it a part of the contract of insurance. The insured was killed while attempting to alight from a moving train, and before the certificate had reached him in due course of mail. And it is held that it is common knowledge that conductors of passenger trains on all railroads must not only enter their trains when in motion, but leave them before they come to a full stop; that this may be a dangerous practice, but it is among the risks which the passenger conductor assumes when he enters such employment; and that this knowledge is so general that the company, when it took and approved the application, must have had knowledge of it, and, in view of this, it cannot insist upon said restriction.
    Error to Wayne. (Brevoort, J.)
    Argued October 27, 1893.
    Decided January 5, 1894.

      Assumpsit. Defendant brings error.
    Reversed.

    The facts are stated in the opinion.

      Franje T. Lodge (Fdwin F. Conely, of counsel), for appellant.

      W. F. Baubie (Russel & Campbell, of counsel), for plaintiff.

       For note on effect of agent’s knowledge of falsity of statements in application for insurance, see Clemans v. Supreme Assembly, 16 L. R. A. 33.

       The case was reargued, and judgment of circuit court affirmed. See opinion on page 299.

   Long, J.

This action is brought upon a benefit and indemnity certificate of $5,000$ issued by the defendant upon the life of Arthur H. Dailey, a conductor on the Michigan Central Railroad, and a brother of the plaintiff, who was named as beneficiary therein. The maximum indemnity in case of injury was $25 per week. The cause was tried before a jury, resulting in a verdict and judgment for plaintiff for the amount of the policy and interest.

The record shows that the deceased made an application for the insurance in writing on January 16, 1891. It was filled out by Mr. McBride, a solicitor for the defendant, upon a blank form provided and furnished for that purpose. In answer to the question contained in the application: “Have you other accident insurance covering weekly indemnity? If so, give names of companies, and amount of weekly indemnity in each,” — McBride filled in the answer, “No.” And in answer to the question: “ Does the weekly indemnity you now carry, and the amount you hereby apply for, exceed your weekly salary, wages, or income? If so, how much? Answer fully,”— McBride filled in the answer, “No.” The testimony tends to show that, at the time of signing the application, Dailey explained to McBride that he had other insurance, which, with that proposed to be taken in the defendant company, would make the weekly indemnity exceed his wages; that McBride induced him to agree to drop this other insurance when it should expire, upon the 1st of March following, and assured him that the statements in the application would make no difference as to the validity of the insurance he would give him; and that he agreed also to give Dailey credit for the premium until February 1. Mr. McBride testified that Mr. Miller, the secretary of the* company, was advised of the fact that Dailey had other insurance, and that he did not desire to pay until the end of the month. January 19, Mr. Miller, as secretary, indorsed an acceptance upon the application. January 24 a policy was filled out, and properly executed by the president and secretary, under the seal of the company, and mailed to Dailey. The same date, about two or three hours after the policy was mailed to him, Dailey was run over by his train, and injured, so that he died the following day. He never saw the policy, which was delivered at his residence in the regular course of mail. The premium required by the company was afterwards tendered and refused.

Mr. McBride testified on the trial that he informed Miller, the secretary, of all of the facts, and that Miller agreed to charge him with the premium, and issue the policy at once. McBride says:

I had told Miller that Dailey was going to let his other insurance run out, and he had promised to let me write him up as soon as his other insurance ran out. Miller said: ‘ You get it as soon as you can. We want it. He may not see you when it runs out, and get another year’s insurance in some other company.’”

Mr. Miller does not deny that he was informed of the other insurance, and of Dailey’s wish not to pay the premium at once. He says, however, that he did not agree to issue the policy and give credit for the premium. He did fill out the policy, however, and dated it back to the date of the application, January 16, but claims that he instructed his cashier not to deliver it until March 1, when the premium would be collected.

1. The defense claims that the policy was not operative at the time of Dailey’s death, for the reason that it had not been delivered; that it was sent to applicant’s house by mistake; that the advance premium had not been paid; and that it was agreed that it should not become operative until March 1, 1891.-

The court instructed the jury substantially that if the policy was filled out by the secretary with intent to have it take immediate effect, he knowing of the other insurance and of the agreement to give credit for the premium, and it was mailed to the deceased with intent to. have it take immediate effect, the plaintiff could recover; but, on the other hand, if the secretary indorsed it to take effect on the 1st of March, when the other policy expired, and the secretary did not agree to extend credit for the premium, and the policy was mailed to the deceased by mistake of the cashier, and against the instructions of the secretary, the plaintiff would not be entitled to recover. The court further charged the jury that if they believed that the statements as to the other insurance, contained in the application, were made under the direction of McBride after he had been fully informed of the facts, and that the answers were written in by McBride after being so informed, the defendant would be bound by the acts of McBride, as he was the agent of the company.

We think there was testimony in the case to sustain these instructions. McBride says he knew of the other insurance, and the amount of it, and when it. would expire. He testifies that he advised the secretary of it, and in fact solicited the insurance under the advice of the secretary. If so, then, notwithstanding the answers in the application were not truthfully made, the company could not avoid the policy. The knowledge of McBride and the secretary was the knowledge of the company, and the company must be held to have waived the right to insist upon the other insurance as a forfeiture. Under such circumstances it is not in a position to assert that the answers are untrue. Pudritzky v. Lodge, 76 Mich. 428.

The court was not in error in the charge as to* the extension of time to pay the premium, and the delivery of the policy, to take immediate effect. If the secretary, knowing all the facts, filled out the policy with intent to have it take immediate effect, and caused it to be mailed to the deceased as of force and effect at that time, the company cannot now be heard to say that there was no delivery, though it did not reach its destination until after the death of the insured. If these facts were true, the beneficiary could have enforced a deliverj' of the policy if delivery had been refused. The contract was complete when the application was accepted and credit given for the premium. May, Ins. § 46.

It is contended that the court was in error in directing the jury that Mr. McBride ivas the agent of the company, and that the company would be bound by his acts in writing in the answers to the questions in the application. We think the court was not in error in this part of the charge. Mr. McBride was given authority to take the application, and it appears that he was sent by the secretary for the very purpose of obtaining the application, the secretary knowing at that time that Dailey had other insurance.

2. Another question in the case relates to a certain condition in the policy. The policy recites:

“The conditions under which this certificate is issued, and to which the insured, by his acceptance hereof, agrees, are as follows: • * * * Standing or walking on the roadbed or bridge of any railway, or attempting to enter or leave moving conveyances using steam, electricity, water, or compressed air as a motive power, are hazards not contemplated or covered by this insurance, and no sum will be paid for injuries "or death in consequence of such exposure, or while the insured is thus exposed.”

The application upon which this policy was issued is set out, in the record, and is entitled—

“.Application for Membership in the Preferred Masonic Mutual Accident Association of America,” and states:
“ I hereby apply for membership in the above association, membership to be based upon the following statement of facts, which I hereby warrant to be true, and agree to accept certificate of membership subject to all its conditions and provisions.” •

The blank form of application is numbered with questions and answers, from 1 to 20 inclusive. No. 4 is as follows, in question and answer:

Q. “ Place of business.”
A. “M. C. Ry., Detroit, Mich.”
No. 6. “ Occupation.”
A. “ Passenger conductor M. C. Ry.”
No. 7. “What are the duties required of you in these occupations? Answer fully.”
A. “Running passenger trains.”
No. 8. “Name and line of business of firm of which you'are a member, or by whom you are employed.”
A. “M. C. Ry. Co.”
No. 15. “Have you in contemplation any special journey or hazardous undertaking, not stated in this application for indemnity?”
A. “No.”
No. 16. “Are you aware that the benefits from this association will not extend to nor cover hernia, orchitis, nor to any bodily injury of which there shall be no external and visible mark, nor to any bodily injury happening directly or indirectly in consequence of disease, nor to death or disability caused wholly or in part by bodily infirmities or disease, or by the taking of poison in any form or manner, or by any surgical operation or medical or mechanical treatment, nor to any cause except when the accidental injury shall be caused by external and accidental violence, and that these shall be the proximate and sole cause of disability or death?”
A. “Yes.”
No. 17. “Are your habits of life correct and temperate, and do you understand that the certificate of insurance will not cover any injury which may happen to you either while under the influence of intoxicating drinks, or in consequence of having been under the influence thereof?”
A. “Yes.”
No. 18. “Are you aware that any misstatement or concealment of facts by you, or the omission or neglect to pay within 30 days from date of notice the quarter-annual fee, or any of the assessments made by the association upon you, will work a forfeiture of all the claims you or your heirs or legal representatives may have to any benefits arising from your connection with this association?”
A. “Yes.”
“Applications for certificates are not binding until accepted by the secretary. No other' person is authorized to bind the association.
[Signed] “A. H. Dailey.”
“ Accepted January 19, 1891, 13 o’clock noon.
“A. C. M., Secretary.
“3-1-91.”

Aside from the questions of other insurance, which have been before discussed, the foregoing contains substantially ■all there is in the application which Dailey signed.'

It is contended that no recovery can be had under this ptolicy, for the reason that the proofs show conclusively ■that Mr. Dailey came to his death while attempting to .alight from his train when it was in motion, and that the ■direct cause of his injury and death, resulting therefrom, was in attempting to alight from his train while in motion. 'The declaration avers that,—

“At the time said injuries were incurred by said Arthur H. Dailey as aforesaid, he, said Arthur H. Dailey, was not •attempting to enter or leave a moving conveyance, as defined by said policy.”

It is contended by plaintiff:

1. That there was some evidence from which the jury might find that the deceased did not meet his death from attempting to leave the train while in motion.
3. That, under the application, the insured was entitled to have a policy issued to him which did not Contain these restrictions.
3. That, under the application, it is fairly to be inferred that an accident such as caused the death of Dailey was within the express risks against which it was assumed to insure.
4. That the restriction in the policy cuts out the probable accidental violence which, in the minds of both parties, Mr. Dailey, a railway passenger conductor, was insuring himself against; that the restriction would practically render the insurance nugatory and valueless; and that it must therefore be held inoperative so far as this insurance is concerned.

There can be no doubt about the correctness of plaintiff’s position when we take into account the answers given to the questions in the application, and, had the action been brought upon the contract made by the acceptance of the application, no doubt could arise as to the plaintiff’s right of recovery; but the declaration avers that the deceased did not come to his death by the attempt to leave the moving train. Failing to establish that fact, and it being shown by defendant that the proximate cause of the injury and death was the attempt to leave the train while in motion, it is now, asserted that that was one of the very risks insured against, and plaintiff should be permitted to recover for that reason.

We think there was no evidence from which the jury would have been warranted in finding that Dailey came to his death by any other means than in an attempt to leave the train while in motion. We are also satisfied from the application and the information which that gave to the defendant company that accidents of this kind are of the risks intended to be insured against. The sole- business of the deceased was in running passenger trains, and this was plainly stated in the application. It is common knowledge that conductors of passenger trains on all railroads must, in the very nature of their business, not only enter their trains when in motion, but leave them before they come to a full stop. It is common knowledge that conductors of passenger trains have full charge of their trains. They give the signal to start, and, after the train starts, they get on board. At stations when the train pulls up, and before it stops, the conductor alights upon the platform. This may be a dangerous practice, but it is among the risks which the passenger conductor assumes when he enters upon such employment; and so general is this knowledge that the defendant company, when it took and approved the application, must have had knowledge of it. In view of this, the above restriction in the policy cannot be insisted upon by the defendant company, and, if the declaration had been based upon the contract actually made, the questions here raised by plaintiff might be of avail. As before stated, the contract was complete • when the application was accepted and credit given bjr the secretary for the premium. The insurance which the parties agreed upon is substantially set out in the application, and the insured had no reason to believe from it that there was to be any such restriction as to entering or leaving moving trains as contained in this policy. He was entitled to have a policy issued to him in conformity to the application, and if the suit had been planted on the contract of insurance such as the minds of the parties met upon, and the other facts were as found by the jury, there could be no doubt about the right of recovery. If it was. the intent of the parties that the policy should issue at once when the application was accepted, and the application was accepted to take effect as of January 19, so as to give the insured the same legal remedy which he would have had had the policy been delivered on that day, and that was the intent of the parties, the law will give effect to such intention. Davenport v. Insurance Co., 17 Iowa, 276; Perkins v. Insurance Co., 4 Cow. 645; Tayloe v. Insurance Co., 9 How. 390.

But as the declaration counts on the policy as the contract between the parties, and negatives the restrictive clause, and this not being proved, the action cannot, in its present form, be maintained, and the judgment of the court below must be reversed, and a new trial granted, with costs.

The other Justices concurred.

Upon application of plaintiff a rehearing was granted, and the case reargued May 2, 1894. Upon October 16, 1894, the following opinion was filed, affirming the judgment of the court below:

Per Curiam.

A rehearing was granted in this case on account of the doubt we entertained, when the motion for the rehearing was made, as to the correctness of the holding that the suit could not be maintained upon the policy of insurance, but should have been brought upon the contract effected by the application and the acceptance of the defendant indorsed thereon. • This question was not fully presented upon the former argument, and we are satisfied now that that ruling was erroneous. The policy expressly referred to the application, and made it a part of the contract of insurance. In such cases the two instruments must be construed together, in determining what the real contract is. Chrisman v. Insurance Co., 16 Oreg. 283; Rogers v. Insurance Co., 72 Iowa, 448. When the policy, as delivered, contains provisions not in the application, and which are not accepted by the applicant, they may be treated as waived by the company, and constituting no part of the insurance contract. We held in the former opinion that the provision of the policy prohibiting the decedent from getting on and off a railroad train while in motion was inoperative, and did not affect the validity of the insurance. He had not accepted this provision, nor assented to it.

The former opinion upon this point is therefore overruled, and the judgment is now affirmed.


author: Long, J.

text:
    Matilda L. Springer v. The City of Detroit.

      Municipal corporations — Defective sidewalks — Personal injury— Presentation of claim to council — Right of action.

    Under the charter of the city of Detroit, which provides that the common council shall audit and allow all accounts chargeable against the city, but that no unliquidated account or claim or contract shall be received for audit or allowance unless it be verified by the affidavit of the person rendering it, and that it shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against the city that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit and rejected for that reason, the presentation for audit and allowance of a claim for damages for injuries received by falling upon a defective sidewalk is a condition precedent to bringing suit to recover the same.

      Error to "Wayne. (Brevoort, J.)
    Argued June 7, 1894.
    Decided October 16, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      John J. Speed, for appellant.

      Edward S. Grece (T. E. larsney, of counsel), for plaintiff.

       Section 7, chap. 5, Act No. 3, Laws of 1895 (taking effect February 19, 1895), entitled “An act to provide for the incorporation of villages within the State of Michigan, and defining their powers and duties,” provides:
      “The council shall audit and allow all accounts chargeable against the village, but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the village; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the village, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance, or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon-it.”

   Long, J.

This action was brought to recover damages for an injury received by plaintiff by a fall. upon a sidewalk, which it is claimed was not in a safe condition for travel. The declaration did not contain any allegation that the claim had been presented to the common council, and notice was attached to the plea that defendant would insist that the claim had never been presented for audit and allowance, as required by section 17, chap. 5, of the charter of the city of Detroit. At the opening of the trial in the court below, objection was made to the introduction of evidence in the case for that reason. This objection was overruled, and the testimony admitted. At the close of the trial, defendant’s counsel requested the court to charge that, inasmuch as the claim had not been presented to the common council, verdict must be for defendant. This was refused. Plaintiff had verdict and judgment. The refusal of the court to give this request presents the only question for consideration.

The provisions of the charter referred to are as follows:

“ The common council shall audit and allow all accounts chargeable against the- city, but no unliquidated account or claim or contract shall be received for audit or allowance unless it be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the- services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are included or referred to in such account or claim.
“It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without -said affidavit and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.”

Counsel for defendant claims that, under these provisions of the charter, no suit can be commenced or maintained against the city of Detroit, in this class of cases, until the claim shall have been presented to the common council, and it shall have had reasonable time to investigate and pass upon it. Our attention is called by counsel for defendant to -the language of these provisions, and it is contended that there is a distinction between them and those of the charter of the city of Adrian, which were passed upon in Lay v. City of Adrian, 75 Mich. 438.

The Adrian charter is as follows:

“ The council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are indorsed or referred to in such ' account or claim. And every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each.
“It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city, that it has never been presented, verified as aforesaid, to the council for allowance, or that the claim was presented without the affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”. Local Acts of 1887, p. 158, § 112.

It is said in reference to this Adrian charter that, reading the last paragraph in connection with the first, it is apparent that the last clause made the omission to present ■claims a bar to suits only in cases -where the claim was required to be verified by affidavit, as provided by the first ■clause, and that the second paragraph of the Detroit charter is much broader in its scope; that, by it, it is apparent that there was in the minds of the lawmakers a class of ■claims which were not embraced within the terms of the first paragraph, which was intended to relate only to unliquidated claims or contracts; that, by the second paragraph, all claims are barred unless first presented to the council, and claims on contracts are barred unless accompanied with the affidavit; that, by this paragraph, distinct, separate provisions, which are complete in themselves, are made, without reference to the first paragraph, except as to contracts requiring said affidavit, while in the Adrian charter the only claims barred are such as are required to be “verified as aforesaid.”

The language of the Detroit charter is essentially different from that of the Adrian charter, passed upon in Lay v. City of Adrian, supra. The Detroit charter expressly refers to unliquidated claims; and while it provides, in the first paragraph of the section referred to, that no unliquidated account or claim or contract shall be received for audit or allowance unless it be accompanied with an affidavit, and then proceeds to recite what the affidavit shall contain, the next paragraph expressly provides that it shall be a sufficient bar and answer to any action for the collection of any demand or claim that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit, and rejected for that reason. The last paragraph embraces claims to which the requirements of the affidavit recited in the first paragraph have no application. It is general, and includes any claim or demand not presented to the council, and, in addition, any claim upon contract presented, hut not accompanied with the affidavit provided for in the first paragraph. In other words, it recognizes a class of claims which are not susceptible of verification in the manner prescribed, and requires all such claims to be presented, and then refers to claims growing out of contract, and requires that they be verified in the manner provided in the preceding paragraph. The second paragraph in the Adrian charter refers only to claims “verified as aforesaid;” and this Court, in the Lay case, held that a claim for injuries occasioned by a defective highway was not susceptible of verification according to the requirements of the first paragraph, and was therefore not within the. contemplation of the section. In other words, the Court held that the requirements of the affidavit which should accompany any and all claims indicated the character of the claims to which the section applied.

City of Detroit v. Michigan Paving Co., 38 Mich. 358, was an action founded upon a tort, where plaintiff had waived the tort and brought assumpsitj and this Court has in that case, it seems to me, construed this section as embracing all classes of claims against the city. Chief Justice Campbell there says:

“ By section 25, chap. 4, of the city charter of Detroit [which is compiler’s section 86 of the present charter, and the one here involved], all claims against the city are required to be presented to the council for audit or allowance, accompanied by affidavit -in case of contract.”

What is stated in that case as to the propriety of such a provision and the design of the statute is equally applicable to the present case.

In O’Neil v. City of Detroit, 50 Mich. 133, which was an action for injuries occasioned by a defective street, while' it was held that this question had not been raised in the court below, the case of City of Detroit v. Michigan Paving Go. was cited. Similar provisions have been held to apply to claims for the refunding of illegal taxes. Louden v. East Saginaw, 41 Mich. 18; Mead v. City of Lansing, 56 Id. 601; Crittenden v. City of Mt. Clemens, 86 Id. 220; Whitney v. City of Port Huron, 88 Id. 268.

It seems to me, therefore, that our own Court has settled this question in favor of the contention made by defendant, and that the judgment should be reversed, and a new trial granted.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


text:
    The City Bank of Dowagiac v. Caiphas Dill.
    [See 84 Mich. 549.]

      Bills and .notes — Good-faith holder — Evidence—Burden of proof.

    This case is held to have been fairly tried and submitted to the jury under the rules laid down in the former opinion, reported in 84 Mich. 549, and the judgment in favor of the plaintiff is affirmed.

      Error to Cass. (O’Hara, J.)
    Argued June 23, 1894.
    Decided October 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in 84 Mich. 549.

      F. J. Ativell (Spafford Try on, of counsel), for appellant.

      Coy W. Hendryx and Howard & Roos, for plaintiff.
   Long, J.

This case was in this Court at the January-term of 1891, and was reversed and remanded for a new trial (84 Mich. 549), which has now been had, and in which plaintiff recovered. The facts are fully set out in the former opinion, in which it was held that the testimony of defendant, if believed, made a complete defense to the note, and threw the burden of proof upon the plaintiff to show that D. Lyle & Co. purchased it before maturity, for value, and without notice of the facts which constituted a defense as against the note in O’Brien’s hands. On the present trial the court submitted that question of fact to the jury, and put the burden of proof upon the plaintiff, saying to them, in substance, that, unless they should find by a preponderance of evidence that this $80 due-bill was a part of the consideration of the $600 note given by O’Brien to Dill, the plaintiff could not recover. In other words, the court stated to the jury that, if O’Brien could not recover against Dill on this $80 due-bill, then the bank could not recover. ,

Several errors are assigned upon the admission of evidence and the charge; but, after a careful review of 'the case and the assignments made in the brief of counsel, we find no error of which the defendant can complain, and, as we think the case was fairly tried and submitted to the jury under the rules laid down in the former opinion, there is no necessity for discussing the various assignments of error.

Judgment is affirmed.

McGrath, C. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Montgomery, J. McGrath, 0. J.

text:
    Edwin Dawe, Administrator of the Estate of Anna McIntosh, Deceased, v. The Flint & Pere Marquette Railroad Company.

      Railroad companies — Accident at crossing — Open gates — Contributor negligence.

    1. Plaintiff’s intestate is held to have been guilty of such negligence, in walking a distance of 48 feet after passing an open railroad gate at a city street crossing, and before reaching the track, where she was struck by a passenger train, during which time she could have seen the train for a distance of 435 fept if she had looked in the direction from which it was coming, as to bar a recovery, unless it should be held that the fact that the gate was not let down excused her from exercising care in crossing the track.

    3. The rule established by Richmond v. Railway Co., 87 Mich. 374, and Evans v. Railroad Co., 88 Id. 443, that a party approaching a railroad- track has a right to rely upon the absence of such warnings of danger as it is shown to be the custom of the railroad company to give, will not excuse the negligence of the decedent, who testified that she thought the gates did not fall for a yard engine, for, if she was looking for a yard engine, as she testified, she could as easily have seen the passenger train.

      Error to Saginaw. (Hart, J., presiding.)
    Argued June 28, 1894.
    Decided October 16, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinions.

      E. L. Beach, for appellant.

      Hanchett, Stark & Hanchett, for defendant.

       As to duty of looking and listening, or stopping and listening, before crossing or attempting to cross railroad tracks, see Jensen v. Railroad Co., 102 Mich. 176, 181, and note.

   Montgomery, J.

Plaintiff’s' intestate, Anna McIntosh, instituted this suit to recover for personal injuries. The circuit judge directed a verdict for the defendant. She has since deceased, and her administrator brings the case here for review.

Deceased testified that she was struck by an incoming train while crossing the railway track of defendant. The. evidence shows that, traversing a distance of 48 feet before she reached the track in- question, and after passing the gate, she could have seen the approaching train for a distance of 425 feet at least, had she looked.

The case is ruled by Gardner v. Railroad Co., 97 Mich. 240, and the cases there cited, unless it shall be held that the fact that the gate was not let down excused the deceased from exercising care in crossing the track. The plaintiff relies upon the cases of Richmond v. Railway Co., 87 Mich. 374, and Evans v. Railroad Co., 88 Id. 442. The rule established by these cases is that a party approaching a railroad track has a right to rely upon the absence of such warnings of danger as it is shown to be the custom of the railroad company to give. But in the present case the deceased herself testified that she thought the gates did not fall for a yard engine. As the circuit judge very pertinently said:

If she was looking to see a yard engine, of course she could see a regular train as easily.’’

The judgment will be affirmed, with costs.

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

McGrath, 0. J.

(dissenting). Plaintiff’s intestate was struck by an incoming passenger train while crossing the railway tracks on Washington avenue, in the city of Saginaw, at about 20 minutes past 5 o’clock on the evening of December 17, 1891. The court directed a verdict for defendant, on the ground that plaintiff’s intestate was guilty of contributory negligence. A sketch of the crossing will be found on the following page.

The testimony tended to show that Washington avenue is a leading thoroughfare. The deceased was walking .south on the sidewalk, on the east side of the avenue, and was struck by a train going east on the main line Bay City Division.” There are three gates, — one about 60 feet north of the point where deceased was struck, one south of the Flint & Pere Marquette main line, and one near Potter street. These gates are raised and lowered from a tower some distance away. When down, they do not extend across the sidewalk. The south end of the machine shop is about 15 feet from the first track. The first building west of Washington avenue and north of the tracks is about 175 feet directly north from the place where deceased was struck, is 300 feet long, and 2 stories in height. The deceased testified that, just before she passed the railroad gates, she looked to see if they were down; that the gates were up; that when she got past the gates,- so she could .see the depot, she looked in that direction, and then looked the other way, to see if she could see a yard engine coming; that she knew that, if the gates were up, no train was coming, but she thought the gates did not fall for a yard engine; that she did not see or hear the train‘ until it was within a few feet of her, when she was frightened, and did not do anything. The engineer testified that he was on the lookout, but did not see deceased until he got within three feet of her, when he immediately applied the brakes, and stopped the train as soon as it could be stopped; that, coming around the curve, the reflection of the headlight was thrown to the south. A city ordinance prohibited the running of trains within the city limits at a. rate of speed to exceed 6 miles per hour. While the engineer and fireman, testify that the rate of speed was not. to exceed 10 miles per hour, it appeared that the train did not stop until it had reached a point 200 feet east of Washington avenue; and one of defendant’s witnesses testified that, if the train had been running but 8 or 10 miles per hour, the brakes would have brought it to a stop in 50 feet, and that, if it had been running 15 or 20 miles an hour, it would have come to a full stop in 100 feet. The fireman testified that the whistle was not blown after they left Kirk street, which was 1,500 feet away, and north of the place of collision.

While the facts in the present case differ in some particulars from those in Richmond v. Railway Co., 87 Mich. 374, and Evans v. Railroad Co., 88 Id. 442, I do not think that there is such a substantial difference as warrants the conclusion in the present case that the deceased was, as a. matter of law, guilty of contributory negligence. I am not prepared to say arbitrarily that an ordinarily prudent, person would not place some reliance upon the fact that the gates were open. Here, as in those cases, there was the open gate, and, in addition, the curve, the high speed of the train, the absence of warning signals, and evidence that some degree of care was exercised. As is said in a recent case in the federal court:

“There is no fixed standard-in the law by which a court is enabled to arbitrarily say in every case what conduct shall be-considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms c ordinary care/ f reasonable prudence/ and sucb like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. * * * The policy of the law has relegated the determination of such questions to the jury, under 'proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs.” Railway Co. v. Ives, 144 U. S. 417.

The mere fact that deceased thought that the gates were not lowered for yard engines, which usually make the yard movements at a low rate of speed, and was on the lookout for the same, would not suggest the degree of care necessary to protect herself from an unexpected and greater danger.

The judgment should be reversed.


author: Lons, J. Grant, J.

text:
    James K. P. McClary v. The Michigan Central Railroad Company.

      Implied contract — Services rendered.

    Under the postal laws of the United States, each railroad company is bound to carry to and from the post-office all mails at terminal points of its road, while the government lets special contracts for such carriage to and from the stations along the line. At a city which was a terminus of two divisions of defendant’s road, and also a station on its main line, plaintiff had a contract with the defendant for the carriage of the mail of one of its divisions, and a contract from the government for the carriage of the main-line mail. Supposing it to be his duty under his contract with the government to carry the mail of the other division, plaintiff continued to do so without charge, until he learned of defendant’s duty in the premises, when he declined further carriage of such mail. And it is held that, the defendant having permitted the performance of such services, and having had the benefit thereof, the law will presume that they were to be paid for, there being nothing in the relation of the parties that would repel- the idea that payment was intended.
    Error to Berrien. (O’Hara, J.)
    Argued June 22, 1894.
    Decided October 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Edwards & Stewart (Ashley Pond and Henry Russel, of counsel), for appellant.

      George 8. Clapp, for plaintiff.
   Lons, J.

Plaintiff sued to recover of defendant for services in carrying the Air Line mail, on its arrival at Niles over defendant’s Air Line Division, from the depot of defendant to the post-office in the city. On the trial, plaintiff had verdict and judgment.

It is conceded that plaintiff had a contract with the government to carry the mails to and from the main line of defendant’s road, and that under that contract 'he carried these mails from August, 1885, to the time of .commencement of suit. It is also ‘conceded that plaintiff carried between the defendant’s depot and the post-office the mails that came and went' over the South Bend Division of the defendant’s road, and was paid therefor by defendant the sum of $5 per month.- It is also conceded that plaintiff carried’ between the defendant’s depot and the post-office all mails that came and went over the Air Line Division of defendant’s road. Under the postal laws of the United States, each .railroad company is bound to carry to and from the post-office all mails at terminal points of its road, while the government lets special contracts for such carriage to and from the stations along the line. The plaintiff claims that, while he was carrying the mails from the main line, he was not aware that it was the duty of the defendant to carry the Air Line mail, but, supposing it his duty to carry it under his contract with the government, he continued to carry it without charge, until he ascertained that it was the defendant’s duty to carry it, when he .ceased to do so, and was subsequently paid by the defendant to carry it. There is but little dispute as to the facts.

The court was asked by defendant to charge the jury as follows:

“The fact that the plaintiff did not know that the defendant was obliged to deliver at the post-office in said city of Niles and carry all mail from the post-office in said city of Niles to its trains on the Air Line Division of its said road, and because of such lack of knowledge this plaintiff did carry the same between the trains and post-office, would not give the plaintiff a right of action against this defendant for such service.
“An action will not lie to recover payment for voluntary service, any more than to recover moneys voluntarily paid out for another’s benefit.
“The proof in this case shows that no contract was ever made between the plaintiff and defendant to carry any mail at the city of Niles until December 29, 1891, and that the plaintiff, without consulting or advising with any authorized agent of the defendant, carried the said mail at the said city of Niles; and it was his duty to have advised some proper officer or agent of said defendant, in case the pay was not satisfactory to him, of such fact, and failing to do so, but receiving payment at $5 a month for carrying said mail, without reference to any particular mail, he is now prohibited from claiming any.
“The fact that the plaintiff in this case carried the mail to and from defendant’s depot that came off of and went over its Air Line Division, under a mistaken idea, or not knowing that the defendant was obliged to deliver it . and take it from the post-office, would not of itself give the plaintiff the right to turn round and bring this action against the defendant. '
“If the jury find that the plaintiff carried said mail from August 1, 1885, until January 1, 1892, or thereabouts, and had made no contract to carry the same, but did carry it without objection, and under the belief that it was part of his work in connection with the carrying of the other mail between the same points, for which he conceded he did get pay, and made no objection to it nor demand for payment all that time, he could not thereafter, upon learning that it was not part of his duty to carry said Air Line mail, turn round and recover, for receiving the same, from this defendant, and therefore your verdict should be for the defendant.
“The defendant pays its employés every month, and has pursued that system from August 1, 1885, until the commencement of this suit; and every employé, after receiving his pay, signs a receipt called the ‘ pay roll,' and such a receipt or pay roll this plaintiff signed, and drew his pay at $5 a month every month from said August 1 to January 1, 1892. Those pay rolls have been offered in evidence, and all read as follows: ‘Sums due for all personal services during the month of September, 1885.' Up to September they are printed, and the month left blank, to be written in as occasion may require. At Niles station, upon every month's pay roll of defendant, as above described, during all of the period of time for which .he brings suit and seeks to recover, appears the plaintiff's name receipting for all personal services and for carrying mail, without reference to any particular mail; and, as the plaintiff does not claim that there was any other or different kind of services rendered to deféndant,, he cannot recover in this case.”

These requests were refused, and the court charged the jury:

“While one person cannot recover for services rendered for another without a request, express or implied, yet, if one voluntarily takes the benefit of another's labor, the law will presume that the laborer is to be paid for his work, unless the contrary is shown by the evidence. In this case, if it was understood between the plaintiff and the railroad company that he was to receive $5 monthly for his services, and that said amount was to be full payment of his services for carrying all the mail, he did carry, he cannot recover, and your verdict should be in favor of the defendant.”

The requests were properly refused, and the charge, under the circumstances, presented the only question of fact in the case for the consideration of the jury. Counsel for defendant cite cases from whjch they deduce the following principle: No promise to pay for services is implied where circumstances fail to indicate that they were rendered or received for. compensation, but clearly repel the idea that payment was to be made or asked for. Undoubtedly, this is the correct rule. But in the present case the defendant had the benefit of the plaintiff's services. It permitted the services to be performed, and there is no such relation between the parties as would repel the idea that payment was intended. The company had the plaintiff’s services, and the law will presume that the work was to be paid for.- •

The judgment is affirmed.

McGrath, O. J., and Hooker, J., concurred with Long, J.

Grant, J.

(dissenting). There is no dispute about the facts in this case. The question, therefore, becomes one of law. Was there an implied contract between the plaintiff and the defendant by which he rendered services for which the defendant is legally bound to pay? When this service was performed, it is clear that the plaintiff did not understand that he was entitled to any compensation therefor other than what he received, but that he understood that the compensation he received from the defendant covered all the mail service at Niles, except that on the Michigan Central main line, for which the government paid him. The plaintiff understood that the contracts made \Vith the defendant and with the government included the carriage of all the mails that arrived at Niles over the defendant’s road. The defendant also understood that the services for which plaintiff was paid included the carrying of all the mails for it. The government did not pay the defendant any specific sum for the carrying of the mail which came over the Michigan Central Air Line-from its depot to the post-office. It appears to have been included in _ the general contract with the defendant for carrying the mails, by which it was required to take the mails from, and deliver them into, all terminal post-offices. It appears now to be conceded that, as to the Air Line Branch, Niles was one ' of its termini; but whether it was so understood during the years for which the plaintiff now seeks to recover does not appear. < Plaintiff received every month $5 for carrying the mails for the defendant at-Niles, and signed the receipts therefor. How can there be any privity of contract where neither party understands a contract to exist? During the seven years for which the plaintiff now seeks to recover, he did not understand that he was rendering services for which he was not paid. Neither did the defendant. Under such circumstances, the law does not, in my judgment, -imply a contract.

The - judgment should therefore be reversed, and a new trial ordered.

Montgomery, J., did not sit.


author: McGrath, 0. J.

text:
    The People v. David W. Titmus.

      Criminal law — Perjury—Unauthorized oath.

    Under How. Stat. § 9236, which, provides that, “ if any person of whom an oath shall be required by law shall willfully swear falsely in regard to any matter or thing respecting which such oath is authorized or required, such person shall be deemed guilty of perjury,” a charge of perjury cannot be predicated upon the sworn statements of a person who was subpoenaed to appear before a justice of the peace to furnish testimony upon which to base a complaint for a violation of the liquor law, no complaint, oral or written, having been made to the justice, at the time said statements were made, of the commission of such offense.
    Error to Livingston. (Person, J.)
    Submitted on briefs June 29, 1894:.
    Decided October 16, 1894.
    Respondent was convicted of perjury, and sentenced to imprisonment in tbe State House of Correction and Reformatory at Ionia for two years.
    Judgment reversed, and respondent discharged.
    The facts are stated in the opinion.
    ■ 8. 8. Abbott and L. 8. Montague, for respondent.

      A. A. Ellis, Attorney General, and D. Shields, Prosecuting Attorney, for the people.
   McGrath, 0. J.

Respondent was convicted of perjury. It appears that on the 2d day of March, 1894, a subpoena was issued by a justice of. the peace, commanding the respondent to appear before said justice forthwith, to testify <fin an action now pending before me, and then and there to be tried, between the people of the State of Michigan, plaintiff, and James Hoag, defendant," etc. Respondent appeared, and was examined upon oath, and the charge is predicated upon the statements then and there made.

Upon the trial in the circuit, upon cross-examination, the justice testified as follows:

Sheriff Chase came in, and requested me to subpoena Mr. Titmus to come before me and testify. He said he wanted to see if there was testimony enough to make complaint against the saloon-keepers. There was not then a complaint before me. A complaint had not been made before me for the arrest, or a complaint of the violation of the law by Mr. Hoag; that is, there had been no written complaint made at that time, and no complaint under oath, and there was yet no complaint of any violation of this liquor law, concerning these men, and there was no such complaint up to the time of the issuing of the subpoena and the time of taking the testimony, and there was no judicial inquiry or proceedings before me at the time I issued the subpoena, or at the time of taking the testimony. The complaint written against Mr. Hoag was made on the 5th day of March, three days after the taking of the testimony of respondent. Sheriff Chase made the complaint. I did not examine any other witnesses, or take any other testimony, except the foregoing.
The Court: I wish you would ask if the sheriff had made any complaint not under oath. (To which the respondent, by his counsel, objected. The testimony was taken subject to the objection, and excepted to.)
“A. Yes. The sheriff came into my office before I issued the subpoena, and said the circuit judge had ordered him to get out a subpoena, and subpoena some witnesses, and see if he had sufficient cause to make complaint against Mr. Hoag and Mr. McDonough, I think, and any others; and he requested me to issue some subpoenas, and this is the one I have issued. The sheriff at that time claimed the offense to have been committed on the 1st day of January last, in the saloon of Benjamin Hoag, in Fowler-ville, in this county; and he wanted to discover, also, if he could, whether there was any other offense committed on that day in the village of Fowlerville, in this county. The offense and offenses mentioned were for violation of the liquor law. It was a well-known fact that whisky had been sold upon that day, and from the trial of the case in the circuit court, that had just been determined before that (in which I was an attorney), of course he knew that I knew what he wanted, so he (sheriff) did not explain very much what he did want. The case I refer to is the case of the People v. Bristol, "William Brooks, and Fred Miller, tried here in this court-room before a jury. Before issuing a subpoena, some testimony had been given in that case about the saloon of Hoag having been opened on January 1.”

Upon this testimony, it cannot be seriously insisted that a complaint was pending before the justice when the subpoena was issued, or when the testimony was taken upon which the charge is based. It is true that in answer to a question put by the court, as to whether the sheriff had made a complaint not under oath, an answer is given in the affirmative; but this is a legal conclusion, unsupported by the statement of facts. The. justice proceeds at once to give just what the sheriff did say, viz., that he had been ordered to get out the subpoenas, “and see if he had sufficient cause to make complaint against Mr. H. and Mr. McD., and any others.”

The language of the statute defining the offense here charged is:

“If any person of whom an oath shall be required by law shall willfully swear falsely in regard to any matter or thing respecting which such oath is authorized or required, such person shall be deemed guilty of perjury.” How. Stat. § 9236.

The information alleged that on the 2d day of March, 1894, at, etc., “complaint in due form of law * * * having then and there been made.”

In People v. Fox, 25 Mich. 492, 496, Mr. Justice Cooley, speaking for 'the Court, says:

“ There must be an oath authorized by law, an issue or cause to which facts were material, and a false statement regarding such facts upon such issue or in such cause. Such would be the case at the common law, and, if it be claimed that this is statutory perjury, the information is not aided, for, by the statute, it must appear that the oath is one required or authorized by law. * * * Had the information alleged that the affidavit was used on the hearing of the motion, a different case would have been presented, which might require consideration; but that was neither alleged, nor, consequently, could be proved. In fact, the record shows that it was not filed until the day after the motion was heard; but this, under this information, was immaterial.”

See, also, People v. Gaige, 26 Mich. 30.

The’ judgment must be reversed, and the respondent discharged.

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


author: Grant, J.

text:
    The City of Grand Rapids v. Edwin A. Burlingame, Judge of the Superior Court of Grand Rapids.

      Constitutional law — Title of act — Mandamus—Default—Practice in Supreme Court.

    1. The object of Act No. 358, Local Acts of 189Í, entitled “An act to establish permanent dock, safety, sanitary, and building lines along the shores and margins and in the waters and on the bed of Grand river, within the corporate limits of the city of Grand Rapids, and to provide for the building and maintaining of suitable masonry walls along such lines, and to authorize the city of Grand Rapids to acquire private property for such public use,” is to establish one line for all of the purposes named, and, considered in this light, the title fulfills the requirements of the Constitution.

      2. Under Supreme Court Rule No. 63, which provides that “in proceedings for mandamus, where an order to show cause has been made, the respondent must answer fully every material allegation of the petition, and every material averment not so answered may be taken admitted by the respondent to be true as alleged, and, in case no answer is made and filed as required by such order, the Court, upon due proof of service of the order, will award a peremptory mandámus as prayed for, or enforce obedience to the order' by process for contempt,” the failure of the judge of the superior court of Grand Eapids to answer an order to show cause why he should not be compelled to vacate an order by him made dismissing the petition of the city of Grand Eapids for the establishment of permanent dock, safety, sanitary, and building lines along the shores and margins and in the waters and on the bed of Grand river, as provided by Act No. 358, Local Acts of 1891, on the ground that said act is unconstitutional, amounts to an admission by the respondent and the contesting property-owners that all of the material averments of the petition for the writ are true, and a peremptory mandamus should issue as prayed.
    3. The petition for mandamus gave said property-owners their day in court, and the order of the Supreme Court, overruling the order of the superior court, is conclusive and binding upon them as to all questions raised by their answers; but, inasmuch as it is possible that, since the original petition was filed, other parties may have acquired interests in the premises by transfer, mortgage, or otherwise, the relator should be allowed to amend said petition by making such persons, if any there are, parties.

      Mandamus.

    Argued October 2, 1894.
    Granted October 16, 1894.
    Belator applied for mandamus to compel respondent to set aside an order dismissing its petition for the establishment of permanent dock, safety, sanitary, and building lines along the shores of Grand river. The facts are stated in the opinion.

      William Wisner Taylor (Henry J. Felker, of counsel), for relator.
   Grant, J.

The title to Act No. 358, Local Acts of 1891, reads as follows:

“An act to establish permanent dock, safety, sanitary, and building lines along the shores and margins and in the waters and on the bed of Grand river, within the corporate limits of the city of Grand Eapids; and to provide for the building and maintaining of suitable masonry walls along such lines; and to authorize the city of Grand Rapids to acquire private property for such public use.”

The body of the act provides the method of procedure for the establishment of such Tines, and the condemnation of property necessary for the purpose. Acting under this statute, the relator filed a petition in the superior court of Grand Eapids to secure the establishment of such lines on the east and west sides of Grand river. Certain parties defendant answered the petition, and. attacked the constitutionality of the act upon various grounds. The respondent entered an order dismissing the petition, holding the act unconstitutional. The relator thereupon filed a petition for the writ of mandamus in this Court to compel the respondent to vacate said order of dismissal. An order to show cause was granted, and a copy of such order and of the petition was duly served upon the respondent. No answer has been filed, and none of the parties interested have appeared in this Court to contest the issuance of the writ.

Under Supreme. Court Rule No. 63, all the material averments in the petition are admitted by the respondent and the parties interested to be true; and a peremptory mandamus should issue as prayed.

It is insisted, however, by counsel for the relator, that, inasmuch as this is a ease of public importance, the determination ought not to rest upon a default order. The obvious reply to this is that constitutional questions ought not, as a rule, to be determined by courts upon ex parte arguments. This petition has given the defendants in that proceeding their day in court, and the order in this Court, overruling the order of the court below, is conclusive and binding upon them as to all questions raised by their answers.

There is, however, one question which we are requested to determine, which seems so clear that we feel justified in acceding to the request of counsel. It is claimed that the title to the act contains more than one object, and is therefore multifarious. This appears to be based upon an erroneous construction of the title, — that it provides for different lines, for different purposes. We 'do not think it was intended to provide for the establishment of one line for docks, another for sanitary purposes, another for safety, and still another for building. The object was to establish one line for all these purposes. Considered in this light, the title fulfills the requirements of the Constitution.

The writ of mandamus will issue; and inasmuch as it is possible that, since the petition was filed, other parties may have acquired interests in the premises by transfer, mortgage, or otherwise, the relator will be allowed to amend its petition in the superior court, making such persons, if any there are, parties. The relator will recover costs.

McGrath, O. J., Long and Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Hooker, J.

text:
    Coit & Company v. Eli R. Sutton.

      Constitutional law — Taxation of corporations — Interstate commerce.

    Act No. 79, Laws of 1893, which requires every foreign corporation or association permitted after the passage of said act to transact business in this State, which had not, prior to' the passage of said act, filed or recorded its articles of association under the laws of this State, and been thereby authorized to do business therein, to pay a designated franchise fee, and voids all contracts made in this State after January 1, 1894, by any foreign corporation not complying with said act, does not apply to foreign corporations whose business within this State consists merely of selling through itinerant agents, and delivering, commodities manufactured outside of this State.

    Error to Wayne. (Hosmer, J.)
    Submitted on briefs June 21, 1894.
    Decided October 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      K. B. Wilkinson, for appellant.

      Bowen, Douglas & Whiting, for plaintiff.

       See Moline Plow Co. v. State Treasurer, 62 N. W. Rep. 1119 (— Mich. —), where the relator, an Illinois corporation, after the act of 1893 had taken effect, forwarded to the Secretary of State a copy of its articles of association, together with the franchise fee required by said act, which it paid under protest, and, upon the refusal of the State Treasurer to refund the money, applied for a ■mandamus to compel such action on his part, claiming to be doing business in this State through itinerant agents, whose duty it was to solicit orders and sell goods manufactured in Illinois, and that the act of 1893 is in conflict with the provision of the Constitution cf the United States regulating interstate commerce, as held in the case of Coit & Co. v. Sutton. And it was held that the validity of the act of 1893 was not questioned in that case; that •said act was held not to apply to the facts there stated; that the plaintiff there was simply selling goods within this State manufactured by a foreign corporation, and was not asking to have its articles of incorporation filed within this State; that in the case at bar the relator not only sold its products through itinerant ■agents, but came within this State, asking to have its articles of ■association filed here, and that it might be put on the same footing with our own home corporations; that the act of 1893 gives the foreign corporation the same privileges as domestic ones, but provides that it must comply with its provisions by paying the fran■chise fee which a domestic corporation must pay; that the relator had had its articles of incorporation filed here, had paid the franchise fee provided by the act, and was not entitled to have said ■moneys refunded.

   Hooker, J.

The plaintiff, a corporation of the state of Illinois, recovered a judgment in the Wayne county circuit court, from which the defendant appeals.

The findings of fact show that plaintiff was engaged in the business of shipping from Illinois goods manufactured in that state, to its customers in Michigan, on orders given it by mail, or taken by its agents in Michigan; that on January 23, 1894, the plaintiff, through its duly-authorized agent, entered into a written contract with the defendant, in the city of Detroit, Mich., for the sale to him of a quantity of white lead at a specified price, to be paid for upon delivery; that on January 27, 1894, delivery of the lead was tendered at Detroit; and that the defendant refused to receive the lead, claiming the contract to-be void. At the time of making such tender the plaintiff’ had not filed articles of association in this State, and had' not paid to the Secretary of State a franchise fee, as provided by Act No. 79, Laws of 1893.

Counsel for plaintiff seek to avoid the effect of said act, contending that it is in conflict with the provision of the ■Federal Constitution that “Congress shall have power to regulate commerce among the several states.” Article 1, § 8. The defendant relies upon the familiar rule that, states may impose conditions upon the right of foreign corporations to do business within their limits. This rule has been recognized by the federal courts where it does not conflict with the power of Congress to regulate commerce. Paul v. Virginia, 8 Wall. 168. But, where the effect is to restrain or obstruct commerce among the states, it cannot be applied; the federal decisions, for which we must look for a construction of the Constitution, holding that it is the right of persons residing in one state to contract and sell their commodities in another, unrestrained, except where restraint is justified under the police power, by states or by act of Congress, and that this right extends to corporations. Paul v. Virginia, 8 Wall. 168; Brown v. Maryland, 12 Wheat. 419; Welton v. Missouri, 91 U. S. 275; Pensacola Tel. Co. v. W. U. Tel. Co., 96 Id. 1; Webber v. Virginia, 103 Id. 344; Manufacturing Co. v. Ferguson, 113 Id. 727; Mining & Milling Co. v. Pennsylvania, 125 Id. 181; Bowman v. Railway Co., 125 Id. 465; Moran v. New Orleans, 112 Id. 69; Pickard v. Car Co., 117 Id. 34; Robbins v. Taxing District, 120 Id. 489; Leloup v. Port of Mobile, 127 Id. 640; Fargo v. Michigan, 121 Id. 230; Steamship Co. v. Pennsylvania, 122 Id. 326; Car Co. v. Pennsylvania, 141 Id. 18; Brennan v. Titusville, 153 Id. 289.

The law in question imposes a tax npon corporations for the privilege of doing business in Michigan. It is a tax npon the occupation of the corporation, with a provision that all its contracts shall be void until the tax is-paid, which, if enforced, would embarrass plaintiff in its. commerce with inhabitants of Michigan. It must therefore be held that the act in question does not apply to foreign corporations whose business within this State consists merely of selling through itinerant agents, and delivering, commodities manufactured outside of this State.

The judgment of the circuit court will be affirmed.

The other Justices concurred.


text:
    Celia Niles, Administratrix, etc., v. Joseph H. Steere, Circuit Judge of Schoolcraft County.

      Constitutional law — Amendment of act — Title—Jury—Challenge to the array.

    1. It was provided by Act No. 142, Laws of 1883, that certain county officers of each county in the Upper-Peninsula should constitute a board to select a list of names of persons to serve as petit jurors in the circuit courts of said counties. The counties embraced in the eleventh judicial circuit (which included the county of Manitou) were excepted from the operation of said act. The act of 1883 was amended by Act No. 93, Laws of 1885, entitled “ An act to amend section 1 of Act No. 142 of the Session Laws of 1883, being an act entitled ‘ An act to provide for selecting petit jurors in the Upper Peninsula,’ so as to include the county of Manitou,” by providing that said county officers “of each county in the Upper Peninsula, and of the county of Manitou,” should constitute a board for the purpose of selecting such jury lists, thus eliminating the exception as to the counties embraced in the ■eleventh judicial circuit. And it is held that, had the clause “so as to' include the county of Manitou” been omitted from -the title to the act of 1885, there would be much force in the ■claim that the act is valid so far as it applies to that portion ■of the eleventh judicial circuit within the bounds of the Upper Peninsula proper, the title of the act of 1883 being broad ■enough to cover that portion of the State; that Manitou county is not a part of the Upper Peninsula, . within the meaning of the act; that, by inserting the clause mentioned, an attempt was made to include territory not in the Upper Peninsula, and the plain inference is that this was the only object of the act; that said clause restricted the title, and precluded legislation embracing any other territory than the county of Manitou.

      Ü. The list of names from which a petit jury was drawn was selected from the assessment rolls of 1892, instead of 1893, as required by the statute, and a challenge to the array was -interposed on that ground. It appeared that a majority of the names selected were names of persons admittedly eligible. And it is held that that was sufficient; that if the others were not, and happened to be drawn, the result was that a sufficient number of qualified jurors did not attend upon the court, and How. Stat. §§ 7575, 7576, 7578, and 7580, point out the procedure in cases where from any cause this happens.

      Mandamus.

    Submitted . October 2, 1894.
    Denied October 16, 1894.
    Delator applied for mandamus to compel respondent to vacate an order sustaining a challenge to the jury array interposed in a cause pending before him. .The facts are stated in the opinion.

      J. F. Garey, for relator.

      McMahon é Oren, for respondent.
   Hooker, J.

Act No. 142, Laws of 1883, was entitled—

“An act to provide for selecting petit jurors in the Upper Peninsula.”

The eleventh judicial circuit consisted of several counties of the Upper Peninsula, and the county of Maniton, which is comprised entirely of a number of islands in Lake Michigan. The first section of said act excepted the counties embraced in the eleventh circuit from the provisions of the act.

Act No. 93, Laws of 1885, was entitled— .

“An act to amend section 1 of Act No. 142 of the Session Laws of 1883, being an act entitled fAn act to provide for selecting petit jurors in the Upper Peninsula/ so as to include the county of Maniton.”

The act reads as follows:

“Section 1. That the- county clerk, judge of probate, sheriff, and county treasurer of each county in the Upper Peninsula, and of the county of Manitou, are hereby constituted a board for the purpose of selecting a list of names of persons, annually, to act as petit jurors in the circuit courts in such counties.”

Under the law of 1883, as thus amended, a jury was drawn, and the respondent sustained a challenge to the array. The return shows that the respondent held the later act unconstitutional so far as it applied to the eleventh circuit, which included the county of School-craft. It further appears from said return that “ the list of names selected by the board from which the jurors in this panel were drawn had not been taken from the assessment rolls of 1893, as required by law, but that they had been largely taken from the tax rolls of the previous year, and that a large majority of the names so selected, and perhaps nearly all of them, were in fact upon the assessment rolls for the year 1893,” but some of them were not upon said rolls. The respondent held that this was not a ground for challenge to the array, but was a cause for challenge of the several jurors whose names were not upon such rolls. Having refused to vacate his order sustaining the challenge to the array, relator asks a mandamus requiring it.

Had the clause “ so as to include the county of Manitou ” been omitted from the title of the act of 1885, there would be much force in the claim that the act is valid so far as it applies to that portion of the eleventh circuit within the bounds of the Upper Peninsula proper, the title of the earlier act being broad enough to cover that portion of the State. See cases cited by counsel: Board of Supervisors v. Auditor General, 65 Mich. 408; Canal Street Gravel-Road Co. v. Paas, 95 Id. 379. It becomes important to determine whether Manitou county can be considered a part of the Upper Peninsula.

Article 19 of the Constitution is entitled “Upper Peninsula.” Section 1 provides that certain counties (indisputably upon the Upper Peninsula, naming them), “and the islands and territory thereunto attached, the islands of Lake Superior, Huron, and Michigan, and in Green Bay and the Straits of Mackinac and the Eiver Ste. Marie, shall constitute a separate judicial district.” Section 4 provides that such judicial district shall be entitled to at least one Senator and three Representatives. No allusion is in terms made to the Upper Peninsula in this article except in sections 7 and 8, the former providing for the disposition of taxes paid into the treasury from mining corporations “ in the Upper Peninsula.” Section 8 provides for the change of location of the State prison “ from Jackson to the Upper Peninsula.” It will be seen that the Constitution does not say that these counties and islands shall constitute the Upper Peninsula, and it seems to distinguish the islands in the lakes from the islands, attached to the counties named, which are upon the Upper Peninsula.- The Legislature has almost uniformly attached the county of Manitou to the Lower Peninsula for various purposes; such as the election of Representatives in Congress' and members of the Legislature. See Comp. Laws 1857, p. 95; Comp. Laws 1871, p. 102; How. Stat. p. 106, — as to Representative in Congress. For State Senator, see Comp. Laws 1871, p. 105; How.Stat. p. 108. For Representative in the Legislature, see Comp. Laws 1871, p. 106; How. Stat. p. 110. At one time it was attached to the Lower Peninsula for judicial purposes. See Comp. Laws 1871, § 4988. Section 26 of the schedule of the Constitution authorized the Legislature to abolish the judicial district created by article 19.

There seems no reason to call these islands constituting the county of Manitou a part of the ■ Upper Peninsula, unless it be the fact that article 19 is entitled “Upper Peninsula.” Most of the islands in that county were nearer the Lower than the Upper Peninsula. No reference is made to the Upper Peninsula in terms by article 19 in any section where this county is necessarily included; and we think section 1 indicates that it was not intended that the “ islands in the lakes,” as contradistinguished from the “ islands attached to said counties,” should be included in the term “Upper Peninsula.”

The Court held in the case of Mays v. Commissioner, 89 Mich. 460, that State land upon Bois Blanc Island was not subject to selection as land upon the Upper Peninsula in payment for the construction of a State road. Bois Blanc Island is one of the islands included in the -judicial district formed by article 19 of the Constitution.

It is true that for most of the .time that the State has existed the county of Manitou has been attached to the whole or some portion of the Upper Peninsula for judicial or other purposes, but as much may be said of some of the counties in the Lower Peninsula. Section 25 of the schedule of the Constitution attached all of the territory mentioned in article 19 to the third circuit for the election of Begents of the University. Section 29 of the schedule shows that the third circuit consisted of the county of Wayne. It would hardly be contended that counties in the Lower Peninsula would be held to be within an act whose title was similar to this merely because such counties were included in the judicial circuit, or congressional, senatorial, or representative district, with some county of the Upper Peninsula; and the impropriety of holding certain territory within the term “ Upper Peninsula” for some purposes, and not for others, is apparent.

The confusion likely to arise from uncertainty in regard to the boundaries of the territory meant by the term “Upper Peninsula” would be greater than the inconvenience, if there be any, of having different methods of selecting jurors in the different counties of the eleventh circuit, — an inconvenience which the Legislature can easily remove. We think, therefore, that Manitou, county is not a-part of the Upper Peninsula, within the meaning of the law. By including the clause mentioned, an attempt was made to include territory not a part of the Upper Peninsula, and the plain inference to be drawn from the title is that this was the only object of the bill. The eleventh circuit is not mentioned in the amendatory act, and it is brought within the former act by omitting the exception in such act. We think the clause mentioned restricted the title, and precluded legislation embracing any other territory than the county of Manitou.

This disposes of the case, but, as the other' question appears to be of public importance, we consider it. We think the circuit judge was right in holding that a challenge to the array, upon the ground that the board used the assessment rolls of 1892, instead of 1893, in selecting the names from which jurors were to be drawn, could not be sustained. A majority of these were the names of persons admittedly eligible, and that is sufficient. If others were not, and happened to be drawn, the result was that a sufficient number of qualified jurors did not attend upon the court, and the law points out the procedure in cases where from any cause this happens. See How. Stat. §§ 7575, 7576, 7578, 7580. See, also, Schlacker v. Mining Co., 89 Mich. 253, 261.

We think the viéws of the - learned circuit judge upon both questions were correct, and his order will be affirmed..

The other Justices concurred.