text:
    HEWELT v. HEWELT.

    Divorce — Extreme Cruelty — Evidence—Sufficiency.
    On a bill for divorce on the ground of extreme cruelty, evidence examined, and held, insufficient to justify a decree for complainant.
    Appeal from Wayne; Donovan, J.
    Submitted April 13, 1906.
    (Docket No. 24.)
    Decided July 23, 1906.
    Bill by Caroline Hewelt against John F. Hewelt for a divorce. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      E. A. Fink (Dohany & Dohany, of counsel), for complainant.

      Seth W. Knight (Brennan, Donnelly & Van De Mark, of counsel), for defendant.

       Rehearing denied November 7, 1906.

   Blair, J.

Complainant filed her bill tor a divorce against the defendant upon the ground of extreme cruelty. The principal charges of extreme cruelty contained in the bill as filed are that defendant compelled complainant to do a man’s work upon the farm; “ and when she told him that she was not able to do it — that she could not — he became impatient with her; that he called in his own family and relatives, and together with them insinuated that she was not sick; that he and they would insist that your oratrix should either be sick in bed or be able to work as she had before her sickness; that after about four months she was able to gradually resume heavier work again, and that her husband made her do the work of a man upon the farm, in addition to her household duties; that after the birth of her second child the same trouble again arose, and that the said defendant took your oratrix to the Lakeside Sanitarium at Grosse Pointe against her wishes and desires, where she was detained for about four months, and was subjected to outrageous and ill treatment; that in May, 1904, the said defendant wanted your oratrix to sign some papers for mortgaging their farm to the said defendant’s father, that when your oratrix demurred he told her she was crazy; that he consulted his people and with them insisted that she must go to bed, and kept her confined in her room, and finally took your oratrix to Pontiac and had her confined in the asylum there without any hearing or adjudication as to her sanity; that he kept her there for about three months, finally yielding to her entreaties to take her away, but only on condition that she would be satisfied and do his bidding, and do the work he imposed upon her, and that she had to take up her work at once upon her return home;” that his conduct was generally abusive towards her; that he called her vile names and twitted her with being crazy, and upheld his mother in inducing the older child to disregard her authority, which, in connection with her fear that she would again be taken to an asylum, was the immediate occasion of her separating from defendant.

The answer of defendant denied all the charges of cruelty contained in the bill and alleged “that he has never treated his wife with cruelty in any manner whatever, but alleges that during this summer complainant has treated her children with extreme cruelty almost' every day to such an extent that the eldest boy refuses to stay with her. * * * That he has always uniformly been kind to her, and has never used cross words to her.” At the close of the proofs as to the cause for divorce, complainant asked leave to amend her bill of ■ complaint, “so as to conform to the proofs.” Thereupon, the record shows the following occurred:

“Mr. Knight: I would ask that they suggest upon the record in what particulars they want the bill amended so that we may know what we have to meet.
“Mr. Dohany: We have charged extreme cruelty, and we have shown specific acts of cruelty, and I ask that the bill may be so amended as to show specific acts of cruelty shown by the proofs.
“The Court: I think that is proper. * * * The finding when made will follow the testimony as introduced. We cannot reopen the case for further hearing. We have given it a long and patient and considerate hearing; now, unusually long.
Mr. Knight: Then I understand the court does not require the solicitor for complainant to state the particulars wherein he amends his bill of complaint.
The Court ."No, only as the pleadings and testimony have already shown.”

The finding referred to by the court was filed on November 10th, in favor of a divorce, and on November 15th the amendments to the bill of complaint were filed. On November 24th, 1905, the court entered a decree in favor of complainant for a divorce from the bond of matrimony, giving her $4,000 as permanent alimony, and the custody of the younger child. From this decree, defendant has appealed to this court.

It is contended that the amendments to the bill of complaint were improperly allowed, and counsel cite in support of their contention: Briggs v. Briggs, 20 Mich. 34; Green v. Green, 26 Mich. 437. We do not find it necessary to determine this question, since we have come to the conclusion that even if the amendments were properly allowed, the complainant has not made out her case.

It appears from the record that on three occasions complainant’s mind has become deranged. On the first occasion, she was treated at home under the care and instructions of competent physicians; on the second occasion, she was taken to a private asylum, and on the third, to the State asylum at Pontiac under the order of the judge of probate. Her insanity seems to have yielded to treatment, and upon her recovery she apparently regained her normal mentality. In the opinion of Dr. Christian, medical superintendent of the Eastern Michigan asylum, and other eminent alienists and physicians, there is a strong, probability of a recurrence of her insanity. The specific acts of cruelty complained of are closely related in time to the periods of complainant’s insanity, and the inference from the bill of complaint and the proof is quite irresistible that the basis of this suit is the restraint necessarily imposed upon complainant when she was not in possession of her faculties. I think the complainant has failed to make out a case of extreme cruelty. The charge of cruelty depends mainly upon complainant’s own testimony. The charge of cruelty in compelling her to work in the field is not sustained. I think the most of her statements are but the imaginations of a diseased mind. Certainly the charge of cruelty in confining her in a sanitarium and in the asylum are not sustained. On these occasions, she was violently insane, and yet in her bill she charges such acts to be extreme cruelty; that she worked in the field is true, but she had done that before her marriage when living with her father. She testified:

“ I helped around in the field from the time I was IS until I was married. I drove the hayfork once in a while; worked in the hay fields, pitched hay and bundles, and did all kinds of work.”

Her own father testified that his wife and daughters all thus worked. She testified that up to the time her first baby was born she helped her husband in the field the same as she had her own father, and did it willingly. The witnesses who were employed on the farm by the defendant say that defendant treated his wife kindly, and they saw no trouble between them. After her return from the asylum, defendant sold his farm and moved to Detroit, and she herself testified that they had no particular trouble there until the Sunday before she left when some words arose between them' because the defendafit chided her for whipping the children too severely. If the testimony of the neighbors is to be believed, there were good grounds for this complaint on his part. The defendant positively denied the use of any of the language charged or any of the acts of cruelty. In her fits of insanity, it was necessary to use force, and no greater force was used than was necessary. The reason given by her for abruptly leaving her husband is significant. She testified :

“I- was afraid he would take me away again; he quarreled with me again at that time, and told me I was using the children in a very mean way; that I misused the children and for the last four weeks they were just as if they were in jail. They did not have their own way at all. * * * I thought it would be wrong if they took me away. I thought they were going to take' me away and was afraid they would do so, that was the reason I left the house that evening; I told my husband I was going; he said I should go, and I went to my brother’s and the next day to my parents.”

She did not take any of the children with her.

I think the decree should be reversed, and the bill dismissed.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    SALZWEDEL v. CITY OF ADRIAN.

    1. Master and Servant — Injuries to Servant — Work Directed by Servant — Evidence—Sufficiency.
    On the issue whether certain sheet piling, the giving way of which caused the death of plaintiff’s intestate, was put in under the direction of, and in accordance with the instructions of, plaintiff’s intestate, evidence examined, and held, to be undisputed that the piling was so put in.
    2. Same — Liability op Master.
    Defendant city employed plaintiff’s intestate to assist in building a sewer, and pursuant to such employment intestate took charge of the placing of the sheet piling which was put in in accordance with his directions. The piling gave way, causing intestate’s death, and his administrator claimed damages on the ground that the piling was not properly placed and that defendant failed of its duty to furnish intestate with a safe place to work. Held, that when intestate agreed to put in the sheeting he agreed to use due diligence in putting it in and thereby transferred to himself the duty resting on defendant in that respect.
    Error to Lenawee; Chester, J.
    Submitted April 20, 1906.
    (Docket No. 125.)
    Decided July 23, 1906.
    Case by Bertha J. Salzwedel, administratrix of the estate of Fritz Carl Salzwedel, deceased, against the city of Adrian for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Wallace Westerman, for appellant.

      Theodore M. Joslin, for appellee.

       Rehearing denied December 17, 1906.

   Carpenter, C. J.

Defendant employed Fritz Carl Salzwedel, plaintiff’s husband and intestate, to assist in constructing a sewer within its corporate limits. While ie was so employed, on the 6th of November, 1902, said sewer caved in, and he was crushed to death. Plaintiff brought this suit to obtain compensation for the damages caused by said death, and recovered a verdict and judgment in the trial court. Defendant asks us to reverse that judgment upon the ground that a verdict should have heen directed in its favor.

The sole ground upon which plaintiff recovered was that the sheeting which supported the sides of said sewer was not properly put in. Plaintiff urges that defendant is responsible for the condition of this sheeting, because it neglected (a) to employ competent and skilled superintendents, (b) “to furnish proper appliances,” and (c) “to furnish the plaintiff’s decedent a reasonably safe place in which to work.” It is unnecessary to consider these reasons unless plaintiff’s intestate had a legal right to complain that the sheeting was not properly put in. Had he that right ? It is the claim of the defendant that the undisputed testimony proves that the sheeting was put in according to the directions, and under the supervision, of plaintiff’s intestate himself. The trial court, however, left this question to the jury and they found that he did not direct its construction. Every witness save one who gave testimony on that subject testified in accordance with defendant’s contention. The witness who did not so testify — a Mr. Jones — was asked:

Q. Who had charge and supervision of putting in the curbing down there ?
“A. Well, I suppose Mr. Wood (defendant’s foreman) had.”

Later he testified:

“ Mr. Witt and Mr. Salzwedel built the curbing. I do not know whether Mr. Salzwedel had charge of it or not. Mr. Salzwedel told Mr. Witt what to do. I do not think that I understood that he had charge of it, still he went on and built the curbing. * * * I do not know whose plan it was.”

Fairly construed, there is nothing in this testimony which casts doubt upon the other testimony which indicates that plaintiff’s intestate had charge of putting in the sheeting. We conclude, therefore, that defendant is right in its contention that the undisputed testimony proves that the sheeting was put in according to the direction, and under the supervision, of plaintiff’s intestate.

Had plaintiff’s intestate a right of action because this. sheeting was improperly put in ? Plaintiff’s right of action is and must be based upon the ground that due diligence was not used in putting in the sheeting. When plaintiff’s intestate agreed to put in the sheeting, he contracted to use due diligence in putting it in. The obligation to use due care theretofore resting upon defendant was by said agreement transferred to plaintiff’s intestate. In other words, by this agreement plaintiff’s intestate released defendant from the obligation to use due care. If he was competent to make that agreement — and he certainly was — his administratrix cannot now repudiate it. She cannot assert a right of action which rests, as does her present one, solely upon the ground that her intestate failed to perform his own contract. As a result of this reasoning we are bound to declare that the evidence in this' case did not warrant the finding that defendant neglected any duty it owed to plaintiff’s intestate, and a, verdict should therefore have been directed in its favor.

Judgment reversed, and a new trial granted.

McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Moore, J.

text:
    AYERS v. HINKLE.
    Sales — Contract — Statute of Frauds — Offer and Acceptance.
    Evidence that plaintiff asked defendant if he thought he could purchase potatoes in his vicinity for plaintiff at 90 cents a bushel and that plaintiff said he would see and that if he could purchase a car load he would do so, no money being paid nor memorandum being made, does not establish an enforceable contract for the sale of the potatoes.
    Error to Hillsdale; Chester, J.
    Submitted April 19, 1906.
    (Docket No. 99.)
    Decided July 23, 1906.
    Assumpsit by Albert J. Ayers against Ernest Hinkle for breach oj: contract of sale. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Frankhauser & Cornell, for appellant.

      Charles M. Weaver and Merton Fitzpatrick, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant for $100. The case is brought here by writ of error.

It is the claim of the defendant that the court should have directed a verdict in his favor. The plaintiff is a resident of Adrian, and while waiting between two trains at Hillsdale, he called upon the defendant, who is a grocer at the latter place, and had some conversation with him about buying a car load of potatoes at 90 cents a bushel, and asked defendant if he thought he could purchase some. He was informed by the defendant that he did not know, that he had heard of some potatoes southwest of Hillsdale, and if he could purchase a car load, he would do so. This is the substance of the conversation. No memorandum was made signed by either party, and no money was paid. It is evident no enforceable contract was made at that time. The record discloses that defendant went into the country and bought some potatoes, following the conversation between the parties at Hillsdale before narrated. During this time considerable correspondence ensued between them. It is the claim of plaintiff that, when properly construed, this correspondence shows an agreement upon defendant’s part to sell 500 bushels of potatoes at 90 cents a bushel, to be delivered on or about the 19th of April to plaintiff, and that the plaintiff agreed to buy them, and as there was a failure on the part of the defendant to deliver these potatoes, plaintiff is entitled to recover his damages. The circuit judge accepted plaintiff’s theory of the case, and so instructed the jury.

It is the claim of the defendant that the correspondence does not show an agreement on the part of the plaintiff to buy, and an agreement on the part of the defendant to sell. The correspondence is somewhat voluminous, and it would not profit any one to set it out in full. We are satisfied, from a careful examination of it, that the construction which the defendant claims, is a proper one, and that no contract was made by reason of it. It follows from this conclusion a verdict should have been directed in favor of the defendant.

The judgment is reversed, and new trial ordered.

Carpenter, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CITY OF ALBION v. BOLDT.
    Intoxicating Liquors — Licenses — Municipal Corporations— Charter Authority.
    A city incorporated under the general law has no authority to provide by ordinance for an annual saloon license payable on or before the first day of May in each year, since section 3109, 1 Comp. Laws, provides that no license shall be granted by a city incorporated under the general law for any term beyond the first Monday in June next thereafter.
    Error to Calhoun; Hopkins, J.
    Submitted April 20, 1906.
    (Docket No. 124.)
    Decided July 23, 1906.
    Herman Boldt and Ernest Boldt were convicted of violating an ordinance, and sentenced to pay a fine of $100 or in default thereof to 10 days’ imprisonment in the county jail.
    Conviction reversed, and defendants discharged.

      Edward B. Loud (Thomas A. Wilson, of counsel), for appellants.

      Adrian F. Cooper, City Attorney, for appellee.
   Moore, J.

This is an action, criminal in its nature, brought by the city of Albion, against Herman Boldt and Ernest Boldt, for the violation of an ordinance of said city of Albion, “ Relative to the Licensing of Saloons.” The respondents were convicted in the circuit court of violating said ordinance, which reads as follows:

An ordinance relative to the licensing of saloons.
“ The city of Albion ordains:
“ Section 1. That it shall be unlawful for any saloon, under which designation shall be included all hotels that maintain a bar, to do business in the city of Albion without first paying a license fee for the privilege of conducting the same, of five hundred dollars per annum, which shall be paid to the city treasurer on or before the first day of May of the year in which such business is to be conducted. Or in case such business shall be entered on after such date, a proportional part of such sum shall be paid before such business is begun, as hereinbefore provided; but no license shall be less than one-half of the yearly license. * * *
“ Sec. 5. This ordinance shall take effect twenty days after the date of its passage.
“Approved and adopted April 24, 1905.”

The validity of this ordinance is attacked for a variety of reasons; but, as one of them is conclusive, we deem it unnecessary to discuss the others. It is elementary that the city council gets its authority to pass ordinances from its charter. Cooley on Constitutional Limitations (2d Ed.), p. 192. The city of Albion is incorporated under the general law for the incorporation of cities. Section 3109, 1 Comp. Laws, provides:

‘ ‘ No license shall be granted for any term beyond the first Monday in June next thereafter, nor shall any license be transferable,” etc.

The ordinance in controversy took effect 20 days after April 24, 1905. It provided for the payment of an annual license fee to be paid on or‘before the 1st of May of the year in which the business is to be conducted. To illustrate, to one who paid a fee of $500 on the 1st of May, 1905, a license would be issued running until the 1st of May, 1906, thus ignoring the provision of the charter as to the term of the license. The council could no more do this than it could provide that licenses should be transferable.

The convictions are set aside, and defendants discharged.

Carpenter, C. J., and McAlvay, Montgomery, and Ostrander, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    SAGINAW LUMBER & SALT CO. v. GRIFFORE.
    1. Injunction — Restraining Trespass — Propriety of Granting —Sufficiency of Bill and Affidavits.
    A bill and affidavits that show that complainant is the owner in fee of a certain island and has been in actual possession thereof and the fishing rights appurtenant thereto for upwards of 20 years, that the fishing rights are of the value of $1,000 per year, that defendant leased a right to fish for the past year from complainant, that his lease has expired, but he threatens to continue fishing and trespassing upon the lands for the coming year resulting in irreparable loss to complainant, and that defendant is irresponsible financially, show a prima facie case for an injunction.
    2. Certiorari — Contempt—Disregarding Injunction — Validity of Injunction.
    Where an injunction issues on the filing of a bill and affidavits making a prima facie case, and the court subsequently refuses to dissolve it on motion and a hearing, and the order refusing to dissolve is not appealed from, but defendant ignores the injunction, resulting in his being convicted and fined for contempt, the conviction cannot be set aside on certiorari, on the ground that the injunction was void and that defendant was not guilty of contempt in disregarding it.
    Certiorari to Saginaw; Gage, J.
    Submitted April 19, 1906.
    (Docket No. 102.)
    Decided July 23, 1906.
    Bill by the Saginaw Lumber & Salt Company against Andrew Griffore to enjoin a trespass upon lands. There was an order adjudging defendant guilty of contempt, and he brings certiorari.
    Affirmed.

      Weadock, Purcell & Weadock, for complainant.

      F. L. Eaton and A. E. Snow, for defendant.
   Moore, J.

The complainant in October, 1905, filed an .injunction bill, and obtained a temporary injunction.' The defendant answered the bill, and moved to have the injunction dissolved. After a hearing the motion to dissolve the injunction was overruled. No appeal was taken, from this order. After this motion was decided an amended answer was filed. The defendant ignored the injunction. He was cited before the court to show cause why he should not be punished for contempt. To this citation he made answer. After a hearing he was found guilty of contempt by the judge, who directed that he pay a fine of $25 or in default thereof that he be confined in the county jail, etc. A precept was issued and placed in the hands of the sheriff for his arrest, because he had not paid the fine as provided in the order. He then paid the fine to the sheriff and now seeks by the writ of certiorari to review the action of the circuit judge in adjudging him guilty of contempt.

It is claimed the injunction was void because it deprived the defendant of the right to carry on his occupation without a hearing, and as the injunction was void, defendant was not guilty of contempt in disregarding it. In the bill of complaint it was alleged that complainant was, by proper conveyances to its grantors and from them to it, the owner in fee of Crow Island, and had been in the actual possession thereof and the fishing rights pertaining thereto, for upwards of 20 years, and that the fishing rights are worth $1,000 annually. Paragraph 6 of the bill reads: '

“For the past twenty years your orator has been for the most of the time operating a saw mill and lumber and salt plant on the main land above described as 640 acres, which includes said Crow Island and that during all of said time your orator has been in absolute and undisputed actual possession of said island and the whole thereof, and all riparian and fishing rights, belonging thereto, and exercised said possession and control over the same by using said island in connection with said lumbering business, and to boom logs and conducting, renting, and controlling the fishing rights pertaining thereto.”

Paragraph 8 of the original answer says:

“Answering the sixth paragraph, defendant admits the same.”

The bill alleges in detail the method of leasing the fishing rights, the making of a lease to defendant for the fishing season ending in the spring of 1905. It then alleged frequent trespasses by defendant both on the island and in the fishing grounds, and defendant’s intention to continue these trespasses, resulting in irreparable loss to complainant unless restrained, and that the defendant was wholly irresponsible financially.

Defendant in his answer insisted he had the right to fish as he proposed to do, and had exercised that right for a series of years. We do not think it can be said the injunction was void. The bill of complaint and the affidavit accompanying it made a prima facie case. After a full hearing, the circuit judge in the exercise of his discretion refused to dissolve the injunction. No appeal was taken from that order, but defendant proceeded to ignore it. We do not think him entitled to the writ he asks. See Campbell v. Kent Circuit Judge, 111 Mich. 575; Swett v. Thorkildsen, 115 Mich. 314; Davis v. Township of Frankenlust, 118 Mich. 494; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162; Rhoades v. McNamara, 135 Mich. 644.

The order of the circuit court is affirmed.

Carpenter, C. J., and Montgomery and Hooker, JJ., concurred. *

Ostrander, J.

I concur in affirming the case upon the ground that the order appealed from has been satisfied and discharged.


author: Ostrander, J.

text:
    FERGUSON v. FERGUSON.
    1. Divorce — Pleading—Condonation Pending Trial — Practice.
    Where a condonation occurs after filing a bill for divorce, proper practice requires that either complainant or defendant shall bring upon the record the precise nature of the issues to be tried, and where it appears to the trial court that this has not been done, hearing upon the merits, if it has been entered upon, should be deferred until the pleadings are properly amended. •
    2. Same — Duty of Amending.
    Where defendant in divorce relies upon a condonation occurring after issue joined, it is his duty to bring it before the court by amendment to his answer; and where he fails to amend, and contents himself with objecting to proceeding with the hearing, supporting his objection by an affidavit setting up the condonation, and complainant claims that the condonation is ineffective for failure of defendant to perform its conditions, complainant is in no position to complain that the cause proceeded to decree without proper pleadings.
    3. Same — Condonation — Nonperformance of Condition — Effect.
    Where complainant in divorce condoned the offense relied on after issue joined, but was informed and believed that her rights would not be endangered by so doing, and defendant failed to perform the conditions of the condonation, such condonation was ineffective to avoid the jurisdiction of the court. s
    4. Same — Decree—Defective Pleadings — Effect.
    A decree of divorce, and the arrangement for the custody of the children of the marriage, will not be disturbed for failure to so amend the pleadings as to show a condonation after issue joined and its ineffectiveness for breach of its conditions, where it appears that defendant had the benefit of his affidavit setting up the facts, and there is evidence to meet the actual case.
    5. Same — Alimony—Award in Gross — Evidence—Necessity. Where* alimony is awarded in .gross, it is especially important that all facts material in determining a just award should be before the court.

      Appeal from Wayne; Donovan, J.
    Submitted April 18, 1906.
    (Docket No. 38.)
    Decided July 23, 1906.
    Bill by Myra J. Ferguson against John G. Ferguson for a divorce. From a decree for complainant, defendant appeals.
    Affirmed, but remanded for a rehearing on the question of alimony.

      Geer, Williams, Martin & Butler, for complainant.

      Fred Q. Harvey (Dickinson, Stevenson, Cullen, Warren & Butzel, of counsel), for defendant.
   Ostrander, J.

Two questions are presented on this appeal. The first arises upon the practice pursued in the court below. Complainant in her bill, filed February 23, 1904, charged her husband, the defendant, with various conduct amounting to extreme cruelty and with having, on or about December 6, 1901, and again on or about December 16, 1901, committed adultery. She prayed for a divorce, for the custody of the two infant sons, issue of the marriage, until they had attained respectively the age of 14 years, and for permanent alimony. Defendant answered the bill denying the acts ‘ of specific bad conduct charged, and setting out that in December, 1901, complainant ceased to live with him, and threatened to leave him, and begin divorce proceedings; that he- turned over to her certain certificates of stock, whereupon complain.ant forgave him, and they resumed marital relations which continued until December, 1903. There was a replication, notice that the cause was at issue, and demand for the examination of witnesses in open court. On November 16, 1905, the cause was brought on for hearing. Counsel for defendant objected to proceeding upon the pleadings, and filed an affidavit showing cohabitation of the parties after the filing of the bill and answer. The objection was overruled, and counsel for defendant then asked permission to show by complainant the truth of the matters set out in the affidavit in advance of her examination as a witness for herself in the cause. This was denied. Upon cross-examination, complainant was interrogated at length upon the matter of the alleged condonation. Decree passed for complainant, and an award of $75,000 cash as permanent alimony was made. Defendant has appealed.

The parties were married in December, 1891. In December, 1901, defendant was found in an assignation house. On December 18,1901, he asked complainant to give him a chance to retrieve himself, and transferred to her $37,500 par value of the stock of 'the Detroit Timber & Lumber Company. In January, 1902, he went with his wife to Boston, to be, and he was there, treated for the drinking habit. In May, 1902, the parties resumed marital relations, and continued to live and cohabit together until some time in December, 1903, when complainant refused longer to cohabit with him, although they lived in the same house until complainant filed her bill for divorce. In August, 1904, complainant, at the solicitation of defendant, returned to live with him and again marital relations were resumed, and were continued until some time in December, 1904. Then such relations ceased, and they occupied separate rooms in their house until April 26, 1905. Complainant left Detroit and is at present in Boston where the boys are at school.

It is the theory of counsel for appellant that while con-donation is a forgiveness upon condition that the injured party shall be thereafter treated with conjugal kindness, it is, nevertheless, true that if condonation follows the filing of a bill for divorce, no divorce can thereafter be granted except upon the showing that the condition was not performed; that if it is claimed in any case that the condition of the condonation is broken, an original or a supplemental bill must be filed, bringing upon the record the new facts and indicating the precise issues. I have no doubt that proper practice in such cases requires the complainant, or the defendant, to bring upon the record the precise nature of the issues to be tried, and that where it appears to the trial court that this has not been done, hearing upon the merits, if it has been entered upon, should be deferred until the pleadings are properly-amended. Such a course is agreeable to the settled rules of pleading. It may be essential also in a given case that the court shall know whether or not the condonation pleaded and proven extends to unknown as well as to known marital offenses, and whether the breach of the implied condition attending condonation revives, or does not revive, all of the offenses originally relied upon as causes for divorce. As matter of evidence in all such cases, if complainant succeeds, there must be, first, a cause for divorce; second, condonation, third, subsequent acts destroying the effect of the condonation; and these matters bear some relation to each other. Upon each of them the court must hear testimony and find fapts. It has been held by the English courts that a condoned offense may be a bar in recrimination at the discretion of the court. In a leading case in this country, Gumming v. Gumming, 135 Mass. 386, it appeared that a married woman had committed adultery and had been expressly forgiven by her husband, who lived with her for some years afterwards. Later, the wife sued for a divorce on the ground of his adultery, committed after such period of cohabitation. He pleaded her offense in recrimination, bqt it was disallowed. It is true generally that a suitor for a divorce cannot prevail if open to a valid charge of any matrimonial offense of the same or of equal grade of that relied upon. But if the offense pleaded in recrimination has been condoned, the rule as announced in the case cited is:

‘ ‘ Condonation restores equality before the law. If the injured pafty is willing to forgive the offense the law may well give full effect to that forgiveness, and not extend to such party the temptation, the encouragement, the license, to run through the whole calendar of matrimonial offenses without redress at the hands of the other party.”

These references are made, not for the purpose of laying down any rules, but by way of argument to illustrate the necessity for pleadings which present the issue which, it is expected will be tried; pleadings which are coextensive with the required evidence. The testimony in a chancery case is no part of the record, nor is preserved. In the case at bar, if the hearing had proceeded upon the pleadings without the attendance of counsel for defendant, it would not appear by the record that after joining issue in the case the parties cohabited together as husband and wife, nor would the effect of such condonation or whether it had been waived by subsequent misconduct of the defendant have appeared to be involved.

It remains to be seen whether in this case the failure to perfect the pleadings should operate to annul the decree. It appears that counsel for defendant were in court when the hearing was begun, and, before any proceedings were taken, read by permission an affidavit made by defendant, to which reference has been made. The affidavit was filed, and counsel asked that it be treated as a part of the answer and supplemental thereto. The bill of complaint was read to the court, and counsel for complainant stated that after issue joined complainant did return to live with defendant, upon his promise of reformation, which promise had been broken. Over objection made by defendant’s counsel, the hearing proceeded without amendment of the pleadings. Complainant was examined at length, the testimony covering the period referred to in the bill and all the subsequent relations of the parties. The cross-examination of complainant was confined to showing the condonation of August 9, 1904, and the resuming of marital relations from that date until December, 1904. Counsel declined to cross-examine her upon the merits. As the case stood for hearing, the affirmative of the issue of condonation was for defendant; of waiver by subsequent acts for complainant. It was the position of complainant that, because of the wrongs alleged in her bill of complaint, she was entitled to a divorce, notwithstanding the con-donation pleaded in the answer. If, therefore, defendant proposed to rely upon a subsequent act of condonation as effective to bar the relief prayed for, he should have set it up by an amendment to his answer. Not having done this, he is not in position to rely upon this defect in the pleadings. The course pursued does not lead to the belief that it was desired to defend upon the merits.

It is clear that, because of the cruelty of defendant, and because of the act of adultery charged, complainant had, at the time of filing her bill of complaint, an enforceable, provable cause of action for and right to a divorce, unless she had condoned the offenses of defendant which were made the ground for relief. The answer alleged a con-donation before the bill was filed; the affidavit a subsequent and distinct condonation after the bill was filed. The evidence on the part of complainant met both of these allegations by admission of the facts and by proof of conduct on the part of defendant reviving and making active the original causes for complaint. It is clear that the several acts of condonation were accompanied with and induced by express promises of defendant in keeping with the promise and condition which the law implies. There can be no doubt that defendant after each con-donation of his offenses complied for a time with the condition which the law and his express promises imposed, relapsing later into the practices which were the cause of all the mischief. As to the last condonation, which was after the filing of the bill for divorce, it appears that complainant inquired concerning the effect upon her suit of any further attempt to preserve the family relation, and was informed and believed that no rights would be endangered. Under the circumstances, it cannot be held that the last act of condonation avoided the jurisdiction of the court. For this ruling Tackaberry v. Tackaberry, 101 Mich. 102, is authority. Jurisdiction of the court being found, the departure from approved and proper practice, defendant having had the benefit of his affidavit and the suggestions of his counsel, and the evidence being found to meet the actual case, does not require the decree of divorce to be disturbed nor the arrangement for the custody of the children.

The second question involves the award of alimony. That it is a proper ease for the allowance of alimony, if the practice is not fatal to any decree, is not disputed. The reasons given by the trial judge for awarding to complainant a sum in gross are convincing. Complainant is given the household furniture and the sum of $75,000 in lieu of any allowances for the cost of educating the children, and in lieu of dower, but defendant is required to pay the usual taxable costs, including a solicitor’s fee of $250.

The award is said to be excessive. The responsibility for lack of accurate information concerning defendant’s estate is in great measure his own, and if from the record we were able to arrive at a conclusion at all satisfactory, we should state that conclusion with the reasons therefor. But the net value of defendant’s property, as stated — estimated — by his wife, varies so considerably from the value which her counsel contend for, which contention is in a way supported by testimony of experts and others, that it ■seems to be impossible to do more than guess at the award which should be made. The alimony which should be awarded in such cases is a matter which concerns the parties, the children, and, in some degree, the public. Where it is awarded in gross, it is especially important that facts material in determining a just award should be before the court. It is not important to set out the testimony upon this subject. The decree of the court below is affirmed, except as to the amount of alimony to be paid and the dates of payment, and the case is remanded with directions to grant a rehearing upon the question of the amount of alimony which shall be awarded.

Defendant must pay the costs of this appeal, including a solicitor’s fee of $150 to complainant’s ■ solicitors, to be paid on demand.

Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


text:
    STIEHR v. STIEHR.
    Divorce — Grounds—Recrimination.
    Where it appears that a woman, applying for divorce on the grounds of extreme cruelty, has been guilty of marital infidelity, she will be denied relief, though defendant lived with her after he believed, with good reason, that he had been wronged.
    Appeal from Macomb; Tucker, J.
    Submitted April 18, 1906.
    (Docket No. 94.)
    Decided July 23, 1906.
    Bill by Edna Stiebr against Richard Stiehr for a divorce. Erom a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      William T. Hosner, for complainant.

      James H. Lynch, for defendant.
   Ostrander, J.

Complainant, in her bill for divorce, charged her husband with extreme cruelty. The answer of the husband denies, or sets out excuse and reason for-the conduct complained about, the most important allegation therein charging the complainant with improper conduct with a male person named, and with having occupied, with that person, a room at a hotel in Oxford on the night of August 1, 1903. Defendant does.not, however, ask for a divorce. The court found the material facts alleged in the bill to be true, entered a decree dissolving the marriage, and awarded complainant, as permanent alimony, the household furniture and utensils. Defendant appeals.

Counsel for defendant says in his brief:

“That they [the parties] can live together in peace, I do not believe; but I must dissent from the conclusion that because of that they should be divorced.”

It is contended that the testimony clearly establishes the misconduct of the wife, and that for that reason, and because of the weakness of complainant’s case, the bill should have been dismissed. It would profit no one to set out the testimony. It leaves the impression that complainant is guilty of the act of infidelity charged to her. On the other hand, although the defendant believed, or strongly suspected, on the day following the act charged, that he had been wronged, and though upon questioning his wife she told him, as he testifies, that “ it was none of his damned business,” he took the man in question back to work for and live with him, because, as he says, he needed, help and could get no one else; and the parties lived together until August 13, 1903, when they separated. There is evidence of conduct of defendant likely to estrange his wife. On the whole, I am impressed that neither party deserves particular consideration at the hands of the court; neither has affection for the other, and, upon a balancing of the account of marital conduct, the remainder, either way, would be insignificant. The question presented is one of greater public than of private importance. We should, I think, apply the familiar rule that where it appears that complainant has been guilty of marital offenses of an enormity equal to or greater than those charged against the defendant, relief will be denied.

The decree is reversed, and the bill dismissed. No costs are awarded.

Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


author: Hooker, J. Ostrander, J.

text:
    OLMSTEAD v. TRACY.
    1. Deeds — Quitclaim—Estoppel—Effect.
    A quitclaim deed is not the assertion of any particular, or of any, title, and does not of itself operate as an estoppel against either the grantor or grantee as to the nature or extent of the title.
    2. Tenancy in Common — Mutual Rights and Duties — Tax Titles.
    Plaintiff, while a minor, together with other grantors, all being tenants in common, executed a quitclaim deed to certain lands, upon which at the time were several outstanding tax titles. The grantee afterwards acquired the tax titles and subsequently conveyed by warranty deed to defendant. Plaintiff, after majority, brought suit in ejectment, claiming that as his deed, executed during minority, was ineffective, the relation of tenancy in common existed between him and his grantee, and that his grantee’s purchase of the outstanding titles inured to plaintiff’s benefit. Held, that defendant was not forbidden to deny plaintiff’s contention, the outstanding titles having originated, through no default of plaintiff’s grantee or of defendant, at a time when no relation existed between plaintiff and his grantee requiring either, as to the other, to pay the taxes, and the quitclaim deed not having created any such relation.
    Error to Tuscola; Beach, J.
    Submitted April 19, 1906.
    (Docket No. 101.)
    Decided July 23, 1906.
    Ejectment by Charles D. Olmstead against Francis C. Tracy and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Charles McPherson, for appellant.'
    . Quinn & Wixson and Frederick Wheat, for appellees.
   Hooker, J.

The trial court directed a verdict for the defendants, and plaintiff has appealed. The action was ejectment. Plaintiff’s claim of title rests on a Federal patent to his father and uncle, Hiram and George Olmstead, respectively, and inheritance from the former, who at the time the action was begun was survived by a widow, Martha, and two children, i. e., the plaintiff and his sister. The proof conclusively shows that the land was sold repeatedly for taxes, and deeded by the auditor general, and that such titles were outstanding in various persons at the time that Judson and Wiley, the defendants’ grantors, first had their attention directed to the lands. Judson and Wiley purchased most of these tax titles, taking quitclaim deeds from the respective owners, and the defendants’ subsequent purchase would be a complete answer to plaintiff’s action but for the fact that, before purchasing any of said tax titles, Judson and Wiley took quitclaim deeds from George, Martha, and Katherine Olmstead and the plaintiff. It is shown that the plaintiff was but 12 years old when he executed his deed, and he claims that it did not divest him of title, and that the acceptance by Judson and Wiley of deeds from George, Martha, and Katherine Olmstead made Judson and Wiley tenants in common with the plaintiff, and that therefore the purchase of tax titles by Judson and Wiley inured to plaintiff’s benefit under the alleged rule that a tenant in common cannot obtain title against a co-tenant by purchasing tax titles.

There was no tenancy in common, because the Olmsteads had no interest in the lands at the time they gave their quitclaim deeds to Judson and Wiley, which therefore conveyed nothing, and the acceptance of the quitclaim deeds could not make the parties thereto tenants in common, when neither party had or acquired thereby any interest in the lands. Again, the case is within the rule laid down in the case of Sands v. Davis, 40 Mich. 14. If, as counsel claims, the quitclaim deed from the Olmsteads was void as to the plaintiff, Judson and Wiley acquired only the interests of his mother and sister, and were under no obligation to protect his interest in common, with their own against outstanding titles, which they were at liberty to purchase for their own benefit. See, also, Blackwood v. Van Vleit, 30 Mich. 118; Cook v. Clinton, 64 Mich. 313; Watkins v. Green, 101 Mich. 497; Fuller v. Swensberg, 106 Mich. 317; Defreese v. Lake, 109 Mich. 428 (32 L. R. A. 744); Boynton v. Veldman, 131 Mich. 559; Brigham, v. Beau, 139 Mich. 256. It is unnecessary to discuss other questions.

The judgment is affirmed.

Moore, J., concurred with Hooker, J.

Ostrander, J.

I concur , in affirming the judgment. At the time the opinion in Dubois v. Campau, 24 Mich. 360, was handed down, it was not supposed that this court had before then determined that a tenant in common out of possession could not purchase from a stranger in good faith, and set up against his co-tenants, an outstanding tax title, even if the tax sale was based in part upon his own default, since the point is in that case expressly left undecided. In the case at bar all of the tax titles had accrued and were outstanding at the time when the alleged co-tenancy began. The cases of Butler v. Porter, 13 Mich. 292, Sleight v. Roe, 125 Mich. 588, and Mc-Pheeters v. Wright, 124 Ind. 560 (9 L. R. A. 176), cited and relied upon by counsel for appellant, are each of them cases where the tax sales were made during .the period of the co-tenancy, for which reason they are not controlling here. The deed in which, in 1883, plaintiff joined, which he now revokes, was a quitclaim deed, not an assertion of any particular, or of any, title. It did not of itself operate as an estoppel against either the grantor or grantee as to the nature or extent of the title. Sparrow v. Kingman, 1 N. Y. 242, approved in Sands v. Davis, 40 Mich. 14, 20. Plaintiff’s grantee, after acquiring outstanding titles to some or all of the lands for each of. the years from 1864 to 1881, excepting for the year 1866, conveyed the land by warranty deed in 1895, and as to a portion of the lands two other warranty deeds and actual possession thereunder intervene the deed from plaintiff and the beginning of this suit. The outstanding and apparently superior titles having originated through no default of plaintiff’s grantee or of defendants, and no relation having existed, when plaintiff’s deed was made, between himself and his grantee, which required either, as to the other, to pay the taxes, the quitclaim deed not having created any such relation, and plaintiff’s grantee having, after purchase of the outstanding and superior titles, conveyed with covenants of warranty, defendants are not forbidden to assert that the purchase of the tax titles did not inure to the benefit of plaintiff and of the title which he now asserts.

Carpenter, C. J., and Montgomery, J., concurred with Ostrander, J.


text:
    STARR v. SHEPARD.
    1. Taxation — Tax Sales — Validity.
    The sale of a mill assessed at $8,000 for a tax of less than $200, the mill at the time containing various machinery worth more than the amount of the tax, and which might have been separately sold, is void.
    2. Injunction — Right to Maintain — Adequate Remedy at Law.
    Stockholders of a limited partnership association, organized under chapter 160, 2 Comp. Laws, have not an adequate remedy at law, by actions of replevin or trover, so as to bar them of relief in equity by way of injunction, where a purchaser of the property of the association at a void tax sale is removing it; the title to the property not being in the stockholders individually, but in the association.

      •3. Corporations — Stockholders’ Suit — Right to Maintain— Applioation op Rule to Limited Partnership Associations.
    Stockholders of a limited partnership association, organized under chapter 160, 2 Comp. Laws, have a right analogous to that of stockholders of a corporation, to maintain a suit in equity to enforce a right belonging to the association where the directors and officers refuse, or, by inertia equivalent to refusal, neglect to act.
    Appeal from Calhoun; Hopkins, J.
    Submitted May 2, 1906.
    (Docket No. 41.)
    Decided July 23, 1906.
    Bill by Marshall H. Starr and others against Thomas 'Book Shepard and others to restrain the removal of certain property. From a decree for complainants, defendant Shepard appeals.
    Affirmed.
    The principal facts, briefly stated, are as follows: In .December, 1901, defendants Steudell, Peavy, and Pang-burn filed articles of association as “The Sanitary My-Food Company, Limited,” in which articles the character of the business to be conducted was stated to be “to own the necessary lands, buildings, and other property, construct the necessary buildings, manufacture, and sell all kinds of bakery goods and foods, nut food cereal and ■other substitutes for coffee.” Presumably, the association was organized under chapter 160, 2 Compiled Laws of 1897. “The capital stock was $500,000, and of this $201,000 was in some manner contributed, or claimed to have been, at or about the time of organization. The .articles of association named Steudell as chairman, Peavy as secretary, and Pangburn as treasurer. The persons above named proceeded to offer for sale the stock of the ■ association. They issued certificates for stock sold, and among others issued certificates to the complainants, and to defendants Foote, Grace, Goodrich, Bosley, Arndts, . and Shepard, and to themselves. The office of the company was fixed in the articles at the city of Battle Creek, where its principal office has been maintained. An amendment to its articles, made in 1902, increased the number of the board of managers from three to five. None of complainants are members of the board of managers, or otherwise connected with the management of. the business of the association. In April, 1902, the company purchased a leasehold interest in certain premises, and in the same conveyance the property known as the Hurd Mill, in Marshall, Mich., the mill being located upon the land of the Michigan Central Railroad Company, and took and recorded a deed of conveyance therefor, dated April 16, 1902, and afterwards, in July, 1902, received another deed of conveyance of said property, which deed was taken to perfect the title. The actual consideration for the property, was to be $100,000 worth, of stock of the association, less the amount of a mortgage upon the property. The mortgage was paid by the association, and stock issued for the balance of the purchase price at 25 cents on a dollar. In April, 1902, the assessing officer of the city of Marshall assessed the said property upon the rolls to the Sanitary My-Food Company, Limited, ,as personal property, and valued it at $8,000, and there was spread against said description of property taxes to the amount of $90, levied apparently for local or city purposes. The record indicates also that upon the same property, at the same valuation, taxes to the amount of $94.83 were later in the year spread for State, county, and school purposes. Under date January 19, 1903, the city treasurer of Marshall executed an instrument in which he describes himself as the party of the first part, and for a stated consideration of $193.72 bargains and sells to Thomas Rook Shepard:
    “The mill building, the storage elevator building, engine and boiler house and office building standing and being on the land of the Michigan Central Railroad Company, and near ’and east of their passenger depot, * * * belonging to the Sanitary My-Food Company, Limited, so-called.”
    It contains the further recital:

      “ And the said party of the first part, for himself, his heirs, executors, and administrators, do covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, that the said property was sold by him at public auction or vendue after five days’ notice duly posted in three or more public places in the city of Marshall, to collect taxes assessed thereon, and that the said party of the second part was the highest bidder thereof, and that the sale was held open one hour before said property was struck off to him.”
    April 10, 1903, the said mill was destroyed by a fire, which injured or destroyed the milling machinery and apparatus of the mill, but not materially injuring three large boilers, the large engine, the foundation of the building, and some portions of the walls. After the fire, the defendant Shepard, claiming to own the property by virtue of his purchase from the city treasurer and the said instrument issued by the city treasurer, sold the property which remained after the fire to defendant Schley, who in turn sold and transferred some of it as junk to the defendant Q-umbinsky, who set about securing the property and moving it away. The Sanitary My-Food Company, • Limited, had no considerable property other than said mill building and fixtures, and was in debt. The managers neglected, whéther they specifically declined’ or not is matter of some dispute, to institute proceedings to determine and protect the rights of the company in said property.
    Thereupon complainants filed the bill in this cause, setting up the facts, praying that the bill of sale given by the city treasurer to Shepard be found to have conferred no right or title or interest in said Shepard and be set aside; that Shepard and his vendees be required to return such property as they had removed, and in default to pay for what had been removed; for an injunction restraining said Shepard and his vendees from selling, incumbering, or otherwise disposing of any of said property or removing same. A temporary injunction was issued on the 21st day of April, 1903. A demurrer interposed by him having been overruled, defendant Shepard answered the bill. The Sanitary My-Food Company, Steudell, Pangburn, and Peavy joined in an answer, the city of Marshall filed a separate answer, and Schley and Gumbinsky, purchasers of the burned material from Shepard, joined in an answer. Later on, by the application of one of the complainants, a receiver for the Sanitary My-Food Company was appointed and qualified. The cause was brought on for hearing in March, 1904, at which time proofs were taken in open court and a decree was entered in accordance with the prayer of the bill of complaint. From this decree, the defendant Thomas Rook Shepard has appealed. Upon his brief in this court, he asserts three propositions:
    (1) That complainants have an adequate and complete remedy at law; (2) that the stockholders, complainants, had no right to bring this action; (3) that the tax title of appellant was set aside upon insufficient evidence.

      H. J. Cortright (Hatch & Page, of counsel), for complainants,

      James L. Powers (James M. Powers, of counsel), for appellant.
   Ostrander, J.

(after stating the facts). As to the last proposition of defendant, viz.: That the tax sale and title thereunder were not shown to be invalid, it seems a sufficient answer to say that the sale of property carried on the assessment roll at a valuation of $8,000 to satisfy a tax of less than $200, and the further fact that the title to the property assessed was not acquired by the Sanitary My-Food Company until after the time fixed by law for the completion of the assessment roll, are ¿wo facts which are made affirmatively to appear, and in the absence of explanation and of proof of the regularity of the proceedings taken to collect the tax, are-sufficient to sustain the ruling that the sale was not a legal one. The evidence is undisputed that there were various portions of the machinery Which might have been separately sold, and that various machines, or parts, were worth more than the amount of hhe tax. This court has decided (Leaton v. Murphy, 78 Mich. 77) that the same rule must be applied in sales by a town treasurer to satisfy taxes and in judicial sales. We may therefore at once address ourselves to the first two of the propositions above stated and they may be considered together.

The instrument given by the city treasurer, and called a bill of sale,” was recorded in the office of the-register of deeds for the county of Calhoun and in the office of the vecorder of the city of Marshall. The bill prays that this ■instrument may be declared to be void, and that so much •of the property as has been removed be returned, and in default of such return the value thereof may be assessed and required to be paid. It is also prayed that an injunction issue to interrupt and prevent the removal of property. It appears there was an exigency. Certain of the shareholders had applied to the secretary, who seems •to have been the principal executive officer of the company, to protect the interests of the company in the property. While there was no refusal to act, there was delay, the end of which could not be foreseen. The secretary testifies that he was urged to bring suit to protect creditors, but had no money belonging to the company to pay .fees with and was not inclined to advance money. The ■testimony warrants the conclusion that the managing officers were not in accord. There are creditors of the company whose claims amount to about $2,000, and neither funds nor other property with which to pay them-. While the company is not strictly a corporation and not a ■ partnership, the title to the property sought to be recovered was in the company, and not in complainants. It is suggested that the actions of replevin and of trover would have afforded adequate relief. The argument made by •counsel for appellant expressly challenges the right of complainants to maintain either of these actions because, it is said, they did not have either a special or general title nor right to actual possession.

’ It is not necessary to discuss or to disagree with the rules laid down in Hawes v. City of Oakland, 104 U. S. 459, cited for appellant, upon the point that a shareholder in a corporation will not be permitted, except under certain circumstances, to enforce by suit in equity a right or remedy which belongs to the corporation itself. That case supports rather than challenges the jurisdiction asserted here. It is true, in the case at bar, that the answer of the company, after admitting the allegations in the bill to the effect that persons were removing the property of the company under false claim of right, and that those persons would have continued to remove and dispose of such property until it was all gone, asserts that the company had or has an adequate remedy at law, and denies that complainants ever importuned or requested the officers of the company to institute proceedings to obtain possession, for the company, of the property. The answer sets out that complainants were informed by the secretary that he was preparing to commence such proceedings in the name of, and for the benefit of, the company. The secretary signs the answer as solicitor for the company. His testimony has been already, in part, referred to. He further testified:

The property was practically rendered £ junk ’ by the fire. All I know of a claim of Thomas Rook Shepard to the property is that he has a deed on record. Some of the property was shipped to Mr. Gumbinsky after the fire. I came to Marshall at the time. I heard that he had possession of the property, and was shipping it away, and heard from Mr. Schley that he claimed that he was purchasing the property from Mr. Gumbinsky and was shipping it to him. I went to Kalamazoo, and told him that the Sanitary My-Food Company, Ltd., owned the property, and would hold him responsible for the property, whatever had been shipped to him. I will say that the stockholders asked me to institute these proceedings, and importuned the officers of the company to start proceedings then. Mr. Alexander lived in Grand Ledge, and Mr. Powers and Mr. Alexander being interested, as soon as I knew the property had been sold, I communicated with them, and importuned them to tell us what to do. Mr. Powers advised me to go to Mr. Gumbinsky and claim the property, and I did so. I thought that was not sufficient, and there was some delay, owing to an argument as to what proceedings were necessary to take, and nothing was done until the stockholders commenced the proceedings. I was prepared to institute the same kind of proceedings that the stockholders took. They asked me to institute the proceedings before they were begun, and were very urgent, too. They informed me that the property was being taken away, and something ought to be done immediately. There was no objection made, the officers very willingly acquiesced in the action the stockholders had taken.”

Neither the company nor the stockholders are, so far as appears from the testimony, disputing, in fact, the right of complainants to proceed. It is the appellant, who claims the property under the city treasurer’s sale, who is contesting. There is abundant support for the finding that the inertia of the officers and other stockholders amounted to a refusul to interfere in behalf of the company ; that complainants only acted in an emergency after it seemed apparent that, without their • action, the rights of the company and of the shareholders and creditors would be seriously impaired; that there was no adequate remedy at law, under the circumstances, and that the court below not only had jurisdiction to proceed in the matter but to make the decree appealed from.

The decree is affirmed, with costs against appellant.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    LETHERER v. UNITED STATES HEALTH & ACCIDENT INSURANCE CO.
    Insurance — Accident Insurance — Immediate Disability — What Constitutes.
    An accident policy, providing indemnity for loss of time resulting from bodily injuries which shall “immediately following the receipt thereof wholly and continuously disable and prevent the assured from performing any and all duties pertaining to any business or occupation,’’does not cover an injury after which assured performed the duties of- his employment for over a week, and other work for a still longer period, though, such labor was accompanied with great pain, and the injury finally resulted in his giving up work altogether.
    Error to Lenawee; Chester, J.
    Submitted May 3, 1906.
    (Docket No. 106.)
    Decided July 23, 1906.
    Assumpsit by John E. Letherer against the United States Health & Accident Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Theodore M. Joslin, for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Montgomery, J.

The plaintiff held a policy in the defendant company providing indemnity for loss of time “resulting from bodily injuries caused solely and exclusively by external, violent, and accidental means, * * *

which shall independently of all other causes and immediately following the receipt thereof wholly and continuously disable and prevent the assured from performing any and all duties pertaining to any business or occupation.” This action was brought to recover indemnity for loss of time resulting from an injury received by falling and striking Ms testicles against a scantling. TMs injury occurred on the 2d day of October. The undisputed testimony shows that plaintiff was employed in conducting a cider mill; that he did the firing, ran the engine, and did other work about the mill; that after receiving the injury complained of he continued in his employment until the 9th of October, when he left, after having a disagreement with his employer. In answer to the question, “Under what circumstances did you work?” plaintiff answered, “Well, with a lot of pain, and it was hard work for me to work, but I don’t give up very easy.” He was asked, “ Were you able to do a full day’s work?” and answered, “Well, in some cases I was and in some I wasn’t.” The employer was not apprised of the fact that plaintiff had received any injury. After leaving his employment at the cider mill plaintiff went up to Pittsford to his sister’s, and stayed until the nest morning and returned to Adrian, and worked two or three days for a Mr. Earl in building a summer kitchen. He testifies that he told Mr. Earl of his injury, and did not charge him full pay. He then went back to his sister’s and dug potatoes two or three days and gave up work. The circuit judge submitted to the jury the question of fact as to whether the plaintiff was immediately and wholly disabled and prevented from pursuing his employment within the meaning of the policy. The jury found for plaintiff, and defendant brings error.

The plaintiff relied upon Turner v. Casualty Co., 112 Mich. 425 (38 L. R. A. 529), and Hohn v. Casualty Co., 115 Mich. 79, as sustaining the holding of the circuit judge. In Turner’s Case the injury consisted of a dislocation of the shoulder. Plaintiff testified that the fall disabled his arm for 10 weeks, and that during that time he did no business at all; that he could not dress himself without help; that he had a man to do his business for him; that he went to the office every day for a short time, but was unable to do any kind of work. It was held that under this testimony it was a question for the jury as to whether he was wholly disabled. In Hohn’s Case plaintiff was a barber. He was injured on Friday. On Saturday he went to his shop late and did some work, but not nearly as much as he would have done if well. He rested on Sunday. On Monday he again went to his shop, and attempted to work, but suffered such pain that he fainted away, a physician was called, and plaintiff was taken home in a carriage. He continued to visit his shop during the week, suffering pain all the while, and occasionally working a little, but was unable to perform all the duties of his business because of the pain he suffered. It was held to be a question for the jury. The case perhaps goes as far as any which can be cited in plaintiff’s support. It is near the border line, and yet we think it is easily distinguished from the present. In that case there was no time in which the plaintiff actually performed all the duties pertaining to his business. While attempting to do so he was so far overcome by pain that he had to eall a physician to his place of business. It might well be said that here was a demonstrated ineffectual attempt to work. In the present case the plaintiff in fact for one week after suffering the injury actually performed all the duties of his employment. It would be in contradiction of his own testimony to say that during this time he was not only disabled from, but prevented from, performing those duties. If he was able to perform all the work connected with his employment for a week he was not immediately disabled. Preferred Masonic Mut. Accident Ass’n v. Jones, 60 Ill. App. 106; Williams v. Accident Ass’n, 91 Ga. 698.

The circuit judge should have directed a verdict for defendant. Judgment reversed, and no new trial ordered.

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


text:
    LETHERER v. PHŒNIX ACCIDENT & SICK BENEFIT ASS’N
    Insurance — Accident Insurance — Immediate Disability — What Constitutes.
    This case, involving the liability of an accident insurance company for an injury not immediately disabling assured, is ruled by Letherer v. Insurance Co., ante, 310, involving the same facts.
    Error to Lenawee; Chester, J.
    Submitted May 4,1906.
    (Docket No. 107.)
    Decided July 23, 1906.
    Assumpsit by John F. Letherer against the Phoenix Accident & Sick Benefit Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Theodore M. Joslin (Abbott & Abbott and E. J. Adams, of counsel), for appellant.

      Smith, Baldwin & Alexander, for appellee.
   Ostrander, J.

The plaintiff in this case is the plain-tiff in Letherer v. Insurance Co., ante, 310. The injury . to plaintiff, the foundation of this action, is the identical injury described in the opinion in that case. The provisions • of the policy set out in the opinion in that case are identical with those, in the policy sued upon in this case. The court was requested to direct a verdict for defendant. This request, for reasons set out in the opinion referred to, should have been granted.

Judgment is reversed, and no new trial will be granted.

McAlvay, Blair, Montgomery, and Hooker, JJ., ^concurred.


text:
    COUSINEAU v. MUSKEGON TRACTION & LIGHTING CO.
    1. Carriers — Street Railroads — Personal Injuries — Crowd at-
    Station — Contributory Negligence.
    Where a street-railway company carries a crowd of several thousand people to an amusement park owned by it, apassenger at the park cannot be said to be guilty of contributory negligence, as a matter of law, in taking a position in the front-rank of the crowd in the effort to secure a seat in a car going-towards her home after the close of the performance, precluding her recovery for an injury sustained by being forced, under the car by the crowd in the rush for seats.
    2. Same — Negligence.
    Whether a street-railway company was negligent in not providing employés and other means sufficient to direct ¡and control a crowd which it had invited and carried to an amusement park owned and controlled by it, so as to be liable to a passenger crowded under a car and injured in an effort to-secure passage home after the close of the performance at the-park, held, a question for the jury.
    Error to Muskegon; Russell, J. Submitted
    May 8, 1906.
    (Docket No. 51.)
    Decided July 23, 1906.
    Case by Netiva Cousineau, by next friend, against theMuskegon Traction & Lighting Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James E. Sullivan, for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Moore, J.

The plaintiff sued the defendant to recover for injuries done her by one of the cars of defendant company. The circuit judge was of the opinion she did not. make a case, and directed a verdict for defendant. Counsel for defendant is quite right in saying precedents on this subject are not plentiful, and it is difficult to find a case strictly parallel. Before taking up the legal questions, an understanding of the facts from the standpoint of the plaintiff is important. The defendant not only operates a line of street railway, but it is the owner of an amusement park containing a number of acres, upon the shore of Lake Michigan, with a grove, .picnic tables, dancing pavilion, candy stand, theater, and a fine beach. It runs many of its cars into this park and around a loop. At one side of the loop there is a platform about 50 feet square. The planking of the platform at its beginning lies directly upon the sand, and gradually the surface is raised until it is about even with the running board of the cars. As a rule the cars stop opposite the platform, and the passengers step from the platform into the cars. There was no barrier along the track or around this platform, but it could be reached from all sides. Sometimes the cars coming from the city stop before reaching it. There was a sandy stretch of ground at the side of the track all the way up to the platform. On the 4th of July the plaintiff, a girl about 16 years old, and a girl companion, took a car in the city and went out to the park. The cars were crowded when they went, and continued to be crowded all day long, and after 5 o’clock there never was a time when there were not more people to take the cars going to the city from the park than the motor car and trailer attached to it could carry. After the theater was over, and soon after 10 o’clock, the girls concluded to take a car back to the city, and repaired to near the place where the cars stopped for that purpose.

It is the claim of plaintiff that between the dance pavilion, theater, and the street-car track there were between 7,000 and 8,000 people, and when the plaintiff and her companion came to the platform there was such a crowd that it extended off the platform into the sand, and was so dense on the platform they could not get on it. The plaintiff stood about three feet west of the platform;

*

her friend was nearer the platform, and both were about six feet from the track. The plaintiff with her right hand had hold of her friend’s left arm, and the crowd was on all sides of her, except towards the street-car tracks. The two girls took their places just after a street-car train had left, and remained standing until the next train came, about 10 or 15 minutes later, expecting to get on the next car if they could secure seats therein. Plaintiff had paid her fare to the park in the morning on coming down, and expected to pay her fare on the car going back, as was .usual. A train of two cars would carry about 160 people. The crowd was a good naturedone; but every one apparently desired to get on the first car going away from the park. Plaintiff says she saw but one policeman and he was at the farther end of the platform. When the motor car and trailer appeared, it is claimed the crowd made a rush for them before they stopped, though the motorman and conductor warned them not to get on until the cars stopped. No heed was paid to this warning by the crowd. The plaintiff and her companion were thrown down; the plaintiff going between the motor car and trailer, and receiving injuries for which this action is brought.

Two questions are presented: First. Was the company negligent in not making adequate provision by the way of railings, barriers, and policemen to protect the persons who had accepted the invitation to come to the amusement park, against the dangers incident to such a great crowd ? And, second, was the plaintiff guilty of such contributory negligence that she cannot recover ? We take up these propositions in the inverse order. We quote from brief of counsel for defendant:

“ One contention of the defendant is that when the plaintiff voluntarily joined the crowd near the platform, edging her way through it to the front ranks near the track, knowing the extent of the crowd, the facilities of the defendant to transport them, the open condition of the track, and the expected approach and frequent passage of cars thereon; she assumed all risks involved in the taking of such position. We here use the term ‘ assumed risk’ in its broad and general sense, and not in its contractual sense, as applied in the law of master and servant. It is also insisted on defendant’s part that such conduct of the plaintiff constituted -.contributory negligence precluding her recovery. * * *
“ The plaintiff was not a stranger to the situation at the park. She knew what to expect there. She had lived in Muskegon all her life, and had visited the park very frequently. During the season she had been there once or twice a week. She was thoroughly familiar with the park and the conditions, including the occasional presence of large crowds; and, of course, knew of the absence of any railings or barrier around the platform and along the track. Plaintiff knew that the cars did not usually stop where she stood, but only opposite the platform. She knew the chances for getting aboard the cars were very remote, but says she and her companion were waiting to see whether there was any room for them. * * *
“ It was and is the claim of the defendant that, under the circumstances disclosed, the conduct of the plaintiff, in making her way through the throng of people and taking a position in the front rank near the track, off the platform, in loose sand ankle deep, was negligence contributing to her injury.”

No authorities directly in point are cited in support of this proposition. It should be borne in mind that this amusement park was several miles from the homes of the people who were in attendance there. It was not owned by the public, but was under the entire control of the defendant. The people who were there came as patrons of the company, and by its invitation, and for its profit. The crowd was made up of individuals. Before it could get smaller some of them must go away. Most of them must go by the same means which brought them. Were all of the first to go guilty of contributory negligence, and only the late goers free from it ? No one knew better than defendant the number of persons it had brought to the park. In taking them there it was a fair implication it would afford them reasonably safe guards from danger while on its ground, and reasonable facilities for returning home. No individual could get upon a car without getting into the vicinity of where it stopped. There is no testimony indicating that plaintiff attempted to board a moving car. Her testimony is that she did not. "We do not think it can be said, as a matter of law, that because of what these girls did, they are guilty of contributory negligence. At most, it would present a question for the jury.

To return to the first question, Was defendant guilty of negligence ? It knew what its facilities were for taking •care of a crowd. It knew its facilities for handling them. It invited the people who constituted the crowd to come. In the exercise of ordinary care it would know, and doubtless did know, approximately the size of the crowd. It also knew that many of its members would be eager to return home after a period of time had elapsed. The precise point involved here, so far as we know, has not been decided, but there are authorities which afford some light in relation to the principle involved. In Brezee v. Powers, 80 Mich. 172, Justice Long, speaking for the court, quoted with approval the following language from 2 Cooley on Torts (3d Ed.), p. 1258:

“ It has been stated on a preceding page that one is under no obligation to keep his premises in a safe condition for the visits of trespassers. On the other hand when he expressly, or by implication, invites others to come upon his premises, whether for business, or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger; and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.”

And added:

This rule is the doctrine of all the courts, and I know of no rule to the contrary.” Citing a large number of cases.

In Sheldon v. Railroad Co., 59 Mich. 172, a boy who was on a railroad platform listening to a band of music, was, because of the inconsiderate action of the crowd which had been attracted by the music, pushed in front ■of a backing train and killed. It was held that whether the degree of care exercised was commensurate with the duty imposed presented a question of fact peculiarly within the ■province of the jury. The case of Taylor v. Pennsylvania Co., 50 Fed. 755, is very suggestive: The suit was for damages sustained by the plaintiff in the Union Depot in Pittsburgh, while she was about to pass out of ■one of the exit gates through which the passengers were required to go to reach the cars. The depot was under the control of the defendant company. There was a large crowd gathered in Pittsburgh to attend a celebration. •She waited in a large vestibule at the depot to take the cars from the depot home, and the crowd packed in around and behind her. One of the gates opening from the vestibule where she was waiting was opened for passengers to take the cars, and the crowd began to move, .and she moved with it. When she reached an iron railing, constructed to turn people to the narrow exit of the gateway, she was, by a sudden surging of the throng, forced and jammed against the railing and injured; and the case having been submitted to the jury, a verdict was •returned for the plaintiff. The court in disposing of the case used the following language:

“ Did the defendant exercise ordinary care in providing a suitable force of officers and employés to properly control and direct the movement of the unprecedented throng which it was advised would crowd through its depot rooms, •vestibules, corridors, and gates to reach its trains ? * *
“The only remaining question, therefore, is, Did the defendant exercise ordinary care in providing a suitable force to properly control and direct the movements of the unprecedented crowd then in its custody ? The evidence ■offered by the defendant was that it made application to the chief of police of Pittsburgh for an extra force of patrolmen, and got all it wanted, and that at the time of the accident it had from 20 to 40 policemen, and, with its own employés, had about 100 men in and about the depot to direct and control the crowd in its approach to the depot, while in the depot, and while going to the trains.”

The jury were instructed:

“ A passenger while in actual progress on his journey is necessarily exposed to innumerable hazards; is wholly under the care of the carrier; and, in view of these dangers, which he can in no respect control, the law imposes upon such carrier the greatest possible vigilance as to the passenger’s safety and holds it responsible for the slightest negligence. This degree of care is fixed not solely because of the relation of carrier and passenger; it is measured by the consequences which may follow the want of care. A carrier is held to this highest degree of care as to the condition of its engines, cars, roadway, bridges, and other appliances, because negligence as to any of them involves, extreme peril to passengers, against which they cannot protect themselves. But a rule properly ceases with the reason for it. Therefore, as a passenger’s detention at a station, or his exit to his train, is not attended with the hazards pertaining to the journey on the cars, running at a rapid rate of speed, the degree of care above defined is justly lessened to the extent that in such a place, and at such a time, the carrier is bound to exercise only a reasonable degree of care for the protection of its passengers. This reasonable and ordinary care depends largely upon the circumstances of each particular case, and is such, care as a person of reasonable and ordinary prudence and skill would usually exercise under the same or similar circumstances. * * * The witnesses for the plaintiff characterized the crowd as orderly and jolly. * * * As I have stated, the defendant could not be held to that degree of diligence, that called for a guard for every passenger. It was not bound to provide a policeman for each person, to protect and defend him or her from violence of fellow passengers, but it was bound to furnish a suitable number of its own officers or police to properly control, as a body, such a crowd of passengers to the extent already stated. If you find it did this, then it discharged its duty to the plaintiff, and cannot be held liable for this injury.”

The court said:

“ These instructions correctly state the law. as applicable to the case. The degree of care to which the defendant was held in its relation and duty to the plaintiff at the time of the accident was just. * * * They had the right to suppose that the precautions to be taken for their safety and protection would be commensurate with the increased dangers confronting them. Of these increased dangers, the defendant had the first and most trustworthy warning. * * * The crowd immediately surrounding the gates, waiting to be passed through, was permitted to become too dense for proper control or safe exit. The police and guards, as they were stationed, were unable to keep the crowd back. Whether, because they were not stationed at the most suitable places, or because they were not active and energetic enough, is not for me now to determine. The jury found want of ordinary care in some of these respects, and I am not justified in saying such a conclusion is not supported by sufficient evidence. * * * If the carrier which has solicited the 10,000 passengers to travel over its road cannot give to them this proper measure of care, and an injury thereby follows, it is responsible. It cannot invite and undertake to transport more passengers than its capacity justifies, and then excuse itself by claiming an unprecedented crowd, and that ordinary care as to the passengers in its depot was used.”

In Illinois Gent. R. Co. v. Treat, 75 III. App. 327, a person who had purchased a ticket passed through a turnstile to the platform and was hurt, and it was said, in substance, in deciding the case:

“ A railroad company is bound to use reasonable care in providing for the safety and protection of its passengers while in its inclosures, and while being conducted to its trains, with due regard to the number and character of those on its premises, and with due reference to the risks to which they are exposed; and this duty may require it to provide a suitable number of men to properly control a crowd and to protect its passengers from the dangers incident thereto.”

The case of McGearty v. Railway Co., 15 App. Div. (N. Y.) 2, was an action to recover damages for personal injuries sustained by the plaintiff, occasioned by his being crowded from the platform by the passengers assembled at the defendant’s elevated station at Grand street, in the city of New York, which caused the plaintiff to fall into the street below. The court said;

“ It may be conceded that defendant’s elevated station at Grrand street is properly constructed, and is sufficient in extent to answer all of the ordinary requirements for which it is used, and accommodate the passengers who assemble there for the purpose of boarding the defendant’s trains, but the theory upon which the case was tried and submitted to the jury, and upon which the negligence of the defendant was predicated, did not necessarily involve thisquestion. The negligence of the defendant was based, not upon any infirmity in the structure, as a structure, but upon the character of its use at the particular time. It was sufficient to accommodate ordinary traffic, for, so fast as the platform filled with passengers, they were removed by the trains which stopped at the station for that purpose at frequent intervals. It is easy to see that, as there was a constant accumulation of passengers upon the platform, unless they were removed by the trains, the platform of the station would become overcrowded, and that such overcrowding might render the place unsafe. That was shown to be the condition in this case. The trains did not remove the passengers as fast as they accumulated, and the defendant continued to sell tickets and admit passengers to the platform. When the plaintiff entered upon the platform, it was a safe place, and he had the right to assume that no part of it would be rendered unsafe by any act of the defendant. The obligation imposed upon the defendant was to take reasonable care in securing the safety of the passenger while upon its premises, and to see that he was exposed to no unnecessary danger while there. The defendant must be assumed to have known the capacity of its platform, and when it had admitted passengers to the extent of such capacity, if when having done this the passengers were not removed by its trains, it became its duty to permit no more to enter. It had no more right to accumulate a crowd at the rear, which, pressing forward, would precipitate those at the edge of the platform into the street, than it would have the right to go upon the platform and push them off by physical force. ”

See, also, Dawson v. Brooklyn Bridge, 31 App. Div. (N. Y.) 537; Lehr v. Railroad Co., 118 N. Y. 556.

The reasoning of these authorities seems to be without flaw, and, applied to the facts of this case, would require both questions discussed herein to be submitted to the jury.

Judgment is reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Blair, and.Hooker, JJ., concurred.


text:
    ADRIAN KNITTING CO. v. WABASH RAILWAY CO.
    1. Carriers — Goods — Misdelivery — Partnership — Apparent Authority oe Partner.
    A carrier cannot excuse a misdelivery of goods on the ground that the person to whom the delivery was made was formerly a partner of the consignor, where the agent making the delivery had no knowledge of the former partnership.
    2, Same — Possession oe Shipping Receipt — Custom.
    A custom of defendant and some other carriers to deliver goods without question to any one presenting a shipping receipt cannot be relied upon to excuse delivery to a person obtaining the receipt surreptitiously, where the custom was unknown to the consignor.
    Error to Lenawee; Chester, J.
    Submitted May 2, 1906.
    (Docket No. 86.)
    Decided July 23, 1906.
    Case by the Adrian Knitting Company against the Wabash Railway Company for the misdelivery of certain goods. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    February 1, 1903, Charles C. Pierce and Orville E. . Fox made an agreement for a copartnership to engage in manufacturing shoes at Adrian, Mich. The agreement provided for an equal division of the profits and losses, and also provided that upon all moneys advanced by Charles C. Pierce over and above the amount advanced by Orville E. Fox, Pierce should be credited with interest at current rates. Pierce testifies that he expected Fox to invest some money, and that none was forthcoming. The parties however engaged in business, bought a plant from the present plaintiff on contract, and began to manufacture shoes, Fox being in control as manager, with one Thomas Young as foreman. The goods manufactured were all shipped to Beeman & Son, of Chicago. Fox drew a salary weekly; but, on April 27, 1903, Pierce wrote Fox a letter purporting to discharge him. Fox accepted this letter, and left Adrian. Pierce came on and took charge and retained Young as foreman. The court found as a fact that the partnership was dissolved on April 27th by Mr. Fox stepping out of the business. This is supported by the fact of his leaving and surrendering the business, and by testimony of his declaration to a representative of plaintiff that he intended to have nothing further to do with the business. On the 27th of May, 1903, four cases of shoes were shipped to Beeman & Son over the defendant’s road by Pierce, he receiving a receipt in the following words:
    “Form No. 106 1-2 A.
    “Adrian, M., 5-27-1903.
    “Received in good order from the Pierce Shoe Company, by the Wabash Railway Company, to be delivered to Beeman & Son, 147 5th Ave., Chicago, 111., 4 cases of shoes, weight 250.
    “The Wabash Railway Company,
    “By W. F. Bradley, Agent.
    “ All carload freight to be loaded by consignor or unloaded by consignee shall be subject to a minimum charge for trackage and rental of one dollar per day for each twenty-four hours or portion of twenty-four detention, or fractional part thereof after the expiration of forty-eight hours at point of shipment, and from its arrival at point of destination. The railroad company, however, reserves the right to load and unload cars and charge for the same, and will be exempt from all liability for deficiency in •quantity loaded in them, and from all demurrage result-, ing from improper handling.
    “Eeleased and at owner’s risk.”
    This receipt was attached to the invoice and sent to Eeeman & Son, at Chicago. The Pierce Shoe Company being indebted to plaintiff assigned to it the account against Beeman & Son covering this shipment, of which assignment plaintiff gave notice to Beeman & Son. Bee-man & Son having the right to accept or reject goods at their option declined to receive the goods in question. Defendant’s agent at Chicago notified the agent at Adrian and asked for instructions. On June 6th or 7th the plaintiff notified defendant’s agent at Adrian to return the goods or hold for orders.
    About this time, June 3, 1903, Mr. Fox, who was then residing in Chicago, went to Beeman & Son and desired to look over their papers and correspondence about this last shipment of goods, and took from the papers the receipt issued by defendant railway company without the consent or knowledge of Beeman & Son. Mr. Fox, upon obtaining this receipt, took it to the Wabash Eailway Company in Chicago, and got the goods on June 5, 1903, without any authority from the Pierce Shoe Company or from Beeman & Son, and the receipt was in no way indorsed. The evidence shows that it was the custom of this defendant, and of the Lake Shore & Michigan Southern Eailway Company, and also of the Detroit Southern Eailway Company, to deliver goods to any person who produced a shipping receipt similar to the one issued in this case without making any inquiry or determining whether the person who produced the receipt was the consignee or consignor, or authorized in any way to receive the goods. It also appears that this custom was not known to the Pierce Shoe Company who shipped the goods in question. The right of action against defendant was assigned to plaintiff, this action instituted, and a recovery had. Defendant brings error.

      Smith, Baldwin & Alexander, for appellant.

      B. F. Graves and Bird & Sampson, for appellee.
   Montgomery, J.

(after stating the facts). Under-the findings it is clear that Fox had no authority to receive the goods from the defendant’s agent in Chicago.. The finding of the circuit judge that Fox had abandoned, his connection with the firm was supported by evidence, and it follows from this that he could not lie in wait and at each recurring opportunity seize the fruits of his former partner’s industry. The fact that Fox had been at one time a partner was not known to the defendant’s Chicago agent, so far as appears. The case cannot be rested upon any apparent authority of Fox growing out of his former connection with Pierce Shoe Co. In the absence of actual authority to receive the goods, the defendant’s right to deliver must rest upon the fact that the receipt for shipment not indorsed or signed by the consignee was presented by one claiming to represent the shipper. Proof of a custom to deliver to any person who might produce the shipping receipt, which custom was unknown to the-shipper, cannot avail to excuse the defendant from the burden which the law casts upon it. The defendant cannot relieve itself from liability to the true owner by delivery to one not authorized by showing that such unauthorized person has obtained and presents the bill of lading. Sword v. Young, 89 Tenn. 126; Weyand v. Railway Co., 75 Iowa, 573 (1 L. R. A. 650, note, 9 Am. St. Rep. 513, note); Louisville, etc., R. Co. v. Bark-house, 100 Ala. 543; Cavallaro v. Railway Co., 110 Cal. 348.

The judgment is affirmed.

McAlvaA, Blair, Ostrander, and Hooker, JJ., concurred.