author: Ostrander, J.

text:
    NEWELL v. REID.
    'Salks — W akranty — Actions—Evidence.
    Evidence that plaintiff bought bran of the defendant which he fed to two cows and they died with symptoms of arsenical poisoning, that what remained of the feed was screened, a portion submitted to a chemist who analyzed the sample and found traces of arsenic amounting to about a grain to pne and a half ounces, that the bran had been swept up off the floor of defendant, who used rat poison on his premises, though he introduced evidence to show that the poison contained no arsenic, was sufficient to support a verdict for plaintiff and warranted an inference that the bran contained poisonous material.
    Error to St. Clair; Tappan, J.
    Submitted October 15, 1915.
    (Docket No. 115.)
    Decided December 21, 1915.
    Case by John Newell against James Reid and another for breach of warranty of a quantity of bran. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Clair R. Black and John B. Mcllwain, for appellants.

      Walsh & Walsh (C. L. Benedict, of counsel), for appellee.
   Ostrander, J.

It is alleged in the plaintiff’s declaration that he purchased from defendants bran to feed, to cattle, that defendants sold him the bran for such use, that the bran was not fit and proper for such use—

“and was mixed with and contained poisonous substances and unwholesome and deleterious material, and was entirely worthless and of no value and unfit for such use and of a poisonous and unwholesome nature; and the said plaintiff, * * * relying upon said promises and warranties, fed such bran and materials to certain live stock, to wit, two cows then and there the property of said plaintiff of the value of, to wit, $300, which thereupon, by reason of its unwholesome and poisonous nature, immediately became sick and soon thereafter died as a result of eating said bran and materials aforesaid.”

The court refused a peremptory instruction favorable to defendants. Defendants then presented, and the court submitted to the jury, two special questions, namely:

“Do you find from the preponderance of the evidence in this case that the two cows of the plaintiff died from arsenic poison, and not from other causes ?
“Do you find from a preponderance of the evidence in this case-that at the time of the sale of the bran to plaintiff there was arsenic in the small sack sufficient to kill the two cows ?”

To each question the jury returned an affirmative answer, with a general verdict for plaintiff of $140.

It is certified that the bill of exceptions “has been made sufficiently full and complete so that the Supreme Court on writ of error may by going over the same be able to make an examination of the entire case.”

It is the contention, and only contention, of defend-, ants, appellants, that the answers to the special questions and the general verdict are not supported by testimony. In considering this contention, it is assumed that the record contains substantially all of the testimony given at the trial. Otherwise, it would be presumed that testimony had been given which supported the findings of the jury. Stevens v. Rose, 69 Mich. 259 (37 N. W. 205). The assumption is. based upon what seems to be the fair meaning of the certificate above referred to.

The contents of the stomachs of the two cows which died, and which the plaintiff claims were poisoned, were not analyzed. However, the testimony for the plaintiff tended to prove that both cows were fed bran from a package purchased from defendants, both died, exhibiting symptoms of arsenical poisoning, the remainder of the contents of the package was screened, a portion of the material was submitted to a chemist, and he found upon an analysis that it contained arsenic. Further, the testimony tended to prove that when it was sold to plaintiff the bran was not in the packages purchased by defendants from the manufacturer of the bran, but had been resacked by defendants after having been turned out upon the floor of their barn, or storehouse. The smaller package, claimed to have contained the noxious substance, or substances, had in it, besides bran, pieces of bread and meat. The chemist tested a portion of a sample of 1*4 ounces of this material, consisting of a mixture of bread, bran, meat, dirt, and hairs, and found arsenic, and estimated that in the 1*4 ounces there was probably a grain of arsenic. Defendants used rat poison about their premises on several occasions, putting it upon bread and meat. A box of the material screened from the smaller sack of bran, and like that sent to the chemist, was exhibited to the jury. It is not mere conjecture, but an inference, based upon testimony, that the smaller sack of bran contained sweepings from the storehouse floor and included portions of bread and meat and rat poison, which ought not to have been sold for food for cattle. There was testimony tending to prove that the rat poison used by defendants contained no arsenic, and different persons might have reached different conclusions concerning the preponderance of the evidence. That there was testimony supporting the finding is, I think, clear.

The judgment is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    LOUD v. DEACON.
    Highways and Streets — Section Lines — Laying Out — Injunction — Evidence.
    In proceedings to restrain defendant from laying out a highway along a quarter line from the section center, according to a survey made by the highway commissioner, also involving the discontinuance of an existing highway claimed not to have been located on the correct line, held, that the finding of the trial court that the proposed highway was not located correctly but south of the true quarter line, by mistake, was supported by competent evidence, that it justified a decree granting an injunction against the establishing of the highway.
    Appeal from Alcona; Connine, J.
    Submitted October 12, 1915.
    (Docket No. 42.)
    .Decided December 21, 1915.
    Bill by H. Nelson Loud, Charles Wallace, and Culver Van Alstyne against Frank Deacon, Louis Clouse, John W. Ferguson, George Sampson, Charles Aldrich, and James Aldrich to restrain defendant Deacon from laying out a highway. From a decree for complainants, defendants appeal.
    Affirmed.

      Henry, Henry & Henry, for complainants.

      John A. Stewart (Charles A. Jahraus, of counsel), for defendants.
   Ostrander, J.

The petition for the laying out of a highway described the proposed highway as “commencing at the center of section 26, and running half a mile east on surveyed line.” Before the petition was filed, the highway commissioner had caused a survey to be made. Prior to the laying out of the highway in question, there had been a highway by user running east and west north of the line of the disputed highway. Certain persons, claiming that the highway was not on the quarter line, but ran north of it and on their land, procured the discontinuance of it and petitioned for the laying out of the one in dispute, claiming its route is along the true quarter line. Complainants collectively own the north half of south half of section 26, and defendants other than the highway commissioner own the south half of north half of the section. Complainants filed the bill to enjoin the laying out of the new highway. There was a decree in their favor.

The court found, first:

“That the discontinuing of the old highway and the laying out of the new one were all upon the theory and claim that the old highway was not upon the quarter line; that, therefore, it should be discontinued, and a new one laid out upon the quarter line. It is conceded by the complainants that the proceedings to lay out the highway in question were regular.”

The court finds the questions involved to be: Is the highway upon the true quarter line? If not, can it be enjoined, the regularity of the proceedings being conceded? The first question the court answered in the negative, finding that the original quarter post could easily be located by field notes and other unquestionable testimony. The second question was answered in the affirmative, and the reasons given as the following:

“The defendant commissioner was attempting to establish a new highway upon this quarter line, but he made a mistake as to the line. This is not the case of an attempt to establish a highway upon some line other than the quarter line, so that question need not be considered.
“The commissioner has not located this highway upon the correct quarter line, but has located it elsewhere, by mistake. This highway as established does not run upon the quarter line, but runs south of that line and over and upon complainants’ lands; it does not run where the commissioner’s petition asked to have a highway located, nor where his answer in this case alleges it runs. The complainants’ lands have been taken without due process of law. It is not suggested by defendants that complainants had an adequate remedy at law, and it is difficult to see where they had such remedy.”

In this court the defendants, appellants, make two contentions. One of them is that the corner (quarter post) at the center of section 26 was lost and had to be and was re-established by the survey relied upon by the highway commissioner. The other is that if it is in fact north of the point established by said survey, and if the proposed highway does not run on the true quarter line, it is also true that highways may be laid out without following quarter lines, and the proceeding is a lawful one. From the answer of defendants it cannot be doubted that the highway commissioner is proposing and attempting to lay out a highway on the true quarter line as determined by the United States survey, and there is no doubt that he believed, and is in fact asserting, that the true quarter line is the line established by the recent survey. Therefore, he construed the petition which set his department in motion as a petition for a highway upon the quarter line of the section. This would seem to remove from consideration appellants’ second contention, namely, that whether it is or is not on the true quarter line, the highway may nevertheless be laid out. Appellants’ refer to 2 Comp. Laws, § 4040, which provides that when a highway shall be laid out parallel to and within half a mile of an already existing highway, the damages for any lands taken shall not be estimated at less than the value of such lands for general farming purposes. In view of the petition for the highway, and the answer of defendants, the point whether a highway commissioner may lay out a highway not on a quarter line does not seem to be involved. An examination of the record shows that the second conclusion of the court below is abundantly sustained by evidence.

The decree must be affirmed, with costs to appellees.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    LEEVER v. CENTRAL CITY LUMBER CO.
    Ejectment — Bound aeies — Aluey—Desoei-ption.
    Where plaintiffs in ejectment had conveyed to the defendant a parcel of land described as lots 15, 17, and land lying east thereof, bounded on the northwest by Michigan avenue, east by Milwaukee street, formerly Albany street, on the south by Wesley street and on the west by an alley contiguous to lot 17, and no alley appeared in the original plat, as prepared for filing by the owner, and lot 17 did not have the alleged alley but included said land, described by metes and bounds, that the plat had never been filed in the office of the register of deeds and was at an early date lost, the deed from plaintiffs to defendant carried with it all the property purporting to be transferred, including the alleged' alley, which did not show upon the premises and which was not in actual use, and which defendant, who had been in possession as tenant, occupied with the rest of the realty; plaintiffs’ contention and evidence that because an abstract furnished to defendant after entering into a contract' for the purchase of the land, contained a map with parallel lines that they alleged represented the alley across the lot, is held to be insufficient to prove title in the grantors who admitted that no open and used alleyway had ever existed on the lot, — no public or private way existing in fact. And a reservation did not result from describing the parcel as bounded on the west by an alley.

    Error to Jackson; Parkinson, J.
    Submitted October 12, 1915.
    (Docket No. 61.)
    Decided December 21, 1915.
    Rehearing denied June 23, 1916.
    Ejectment by Fred 0. Leever and another against the Central City Lumber Company. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Grove H. Wolcott, for appellants.

      Price & Whiting, for appellee.
    The action is ejectment to recover possession of a parcel of land in the city of Jackson, described in the declaration as:
    “Commencing at the southeast corner of lot 17 in block S south of range 2 east according to Stratton’s survey; thence east along the north line of Wesley street 16% feet; thence north to the south line of Michigan avenue; thence northwesterly along the south line of Michigan avenue to the northeast corner of said lot 17; thence south along the east line of said lot-17 to the place of beginning.”
    Testimony for plaintiffs tended to prove the following facts: Alonzo Bennett in 1865 acquired title by warranty deed to an undivided one-half and in 1868-to the other undivided one-half of premises described as:
    “Commencing at the southwest corner of lot seventeen (17) in block three (3) south, range two (2) east, in the city of Jackson, county of Jackson, State of Michigan; running thence north to Mill street; thence southeasterly on the south line of Mill street to Albany street; thence south on the west line of Albany street to Wesley street; thence west to the place of beginning.” '
    Plaintiffs, as husband and wife, in 1908 took from the heirs of Alonzo Bennett a warranty deed, describing land as follows:
    “Lots-fifteen (15) and seventeen (17) in block three (3) south, range two (2) east, according to Stratton’s survey; also a parcel of land lying east of said lot seventeen (17) bounded on the northeast side by Michigan avenue, formerly Mill street, on the east by Milwaukee street, formerly Albany street, on the south by Wesley street, and on the west by an alley contiguous to lot seventeen (17) aforesaid.”

      Dated December 15, 1911, a quitclaim deed was executed by the Bennett heirs to plaintiffs conveying:
    “Commencing at the southeast corner of lot 17, block 3 south, range 2 east, according to Stratton’s survey; thence east along the north line of Wesley street 16% feet; thence north to the south line of Michigan avenue; thence northwesterly along the south line of Michigan avenue to the northeast corner of said lot 17; thence south along the east line of lot 17 to the place of beginning. The purpose of this conveyance is to grant to the parties of the second part hereto, their heirs and assigns, all right, title, and interest which parties of the first part had in and to the above parcel of land on the 7th day of October, 1908.”
    Plaintiffs made a lease to defendant, dated June 10, 1908, of lots 15, 17, and 18, and the west half of lot 16, block 3 south, of range 2 east, excepting a small cottage, the lease containing the following stipulation:
    “Part of said premises are at present under lease to John Middaugh whose lease of same expires May 1, 1909; * * * The part which said Middaugh occupies being lot 17 and 18. * * * ”
    Under date • October 26, 1911, plaintiff Fred 0. Leever acknowledged in writing the receipt from defendant of a sum of money to apply on purchase price of lot 17, lot 15, and the west half of lot 16, with the exception of that part lying west of Michigan Central Railroad track, block 3 south, of range 2 west, city of Jackson, agreeing to furnish an abstract of title and convey by warranty deed. An abstract was furnished, attached to which was a plat or map. The caption to this abstract was — the property abstracted as shown by recital — lots No. 15 and 17 in block 3 south, of range No. 2 east in the city of Jackson according to the recorded plat of the village of Jacksonburg;
    “also a parcel of land lying east of above-described land and bounded on the northeast side by Michigan avenue, formerly Mill street, and on the east by Milwaukee street, formerly Albany street, and on the south by Wesley street, and on the west by an alley contiguous to lot 17 aforesaid.”
    The deed executed by plaintiffs to defendant describes lots 15 and 17 and west half of lot 16 (with exception). The premises held by defendant as lessee of plaintiffs had for 20 years or more before this suit was begun been surrounded by a fence. Defendant used them for a lumber yard. The premises were a part of the land surveyed and platted as the village of Jacksonburg by one J. F. Stratton, which plat included the older portion of the city of Jackson and was made in the year 1830. What purports to be a copy of the Stratton plat is recorded, with an affidavit which recites that the plat was made and deposited in the office of the register of deeds for Washtenaw county for ' record, was lost before record, and that the annexed plat is a true copy of the original. As shown by this plat as recorded, the premises appear to lie as indicated on the opposite page.

      There are maps of the city of Jackson, including the territory platted as the Village of Jacksonburg. Names of streets, and perhaps their courses, have been changed. New streets have been laid out. A copy of the plat which was attached to the abstract furnished defendant follows:

      It is said in the reply brief of plaintiffs and appellants :
    “It is not claimed by the plaintiffs that there ever was an open and used alleyway between lot 17 and the parcel east thereof, but they do insist that the same was represented upon the original survey and referred to in the deed from the Bennett heirs to the plaintiffs, and also in the abstract furnished defendant, and in the caption thereto and in the plat attached to said abstract, and that defendant had full opportunity for knowledge of the situation with regard to such alley and its boundaries at the time the deed was delivered.”
    Plaintiffs’ testimony tended to prove, further, that for the premises, including lot 18, they asked $15,000, and excluding lot 18, $12,000. Defendant paid $12,000 for what it purchased. Plaintiffs’ witness Francis D. Bennett testified that he drew the deed from the Bennett heirs to plaintiffs.
    “I got that description in that deed from one of those little folding maps I have had for a good many years. I think it was made by Mr. Fargo; one I have had in my desk for a good many years. In that deed we conveyed lot 17 and a description of a parcel which was not numbered as a lot. The parcel with reference to 17 was east of it, separated by a strip 16% feet. It was an alley. .1 do not say 16% feet, but those alleys usually^ are 16% feet. There was never any alley at that point designated there open to the public and used ■during the time I have known the premises. The reason why I omitted the alley in the deed to Leever and wife from the Bennetts in 1908 was because that property had been carried on my father’s books as No. 15 and 17 and 18, and I had always supposed that this piece east of lot 17 separated by an alley which showed on my map in that way was lot 18, but when I came to draw this deed I found this was not numbered as No. 18, so I deeded it — described it. My map showed an alley, a continuation in line with the alley which is open from Wesley street south. That map is a Fargo map. It showed an alley across between what my father had called, I suppose, 17 and 18. I supposed he had no deed for it. I supposed he simply had a deed for lot 17 and what he called 18, so I deeded those two pieces, thinking we had no recorded title to.the alley — merely possession. * * * Leever and wife held this property from myself and brothers under contract for some time before they got the deed. During that time they held it under contract they made a lease to the Central City Lumber Company. Myself and my brothers ratified the lease by the writing at the bottom cf the lease. In that lease, as well in the contract, that land is referred to as lots 17 and 18. I have no recollection that we had more than one contract with Leever covering that piece of property. The deed of the Bennett heirs, I think, was given in 1908. Mr. Leever and wife went into possession of all that land there under that contract referring to the property as lots 17 and 18, and when the lease was given to the Central City Lumber Company they also went into possession, I believe, of the land under the description of 17 and 18. I knew of their having possession afterwards.
    “Q. You intended those descriptions to cover that property, and supposed it had ?

      “A. No, sir; I don’t think I intended it to cover that property. I intended they should have that property, but I didn’t understand the description covered the property.

      “Q. Were you reserving something, or did you describe the property in such a way you understood you were not describing all of it when you made that contract and lease; is that what you are getting at?

      “A. Yes, sir; I did describe. I did not describe all I supposed they were getting.
    “Q. I didn’t ask you that. I say: Did you, when you used that description, intentionally use a description which you knew did not cover all the property which was understood by -the parties to be covered ?
    . “A. I can’t say — that isn’t — -I can’t say ‘Yes’ or ‘No’ quite to that, Mr. Price. The facts are I intended them to have that property. I supposed my father only had a deed to the lots, and not to the alley, so I simply gave them those two lots, thinking it would carry the alley with it; that those two lots would carry the alley the same as he had; that those two lots would carry the alley with it, the same as he had. I intended that-description to carry the property, but decided not to describe it. It was so used by the parties in the'negotiations to carry that property. There was nothing-said by me at any time to the Central City Lumber Company or Mr. or Mrs. Leever at the time that contract and lease was made that there was anything to be reserved; that they did not get the whole thing. It-was explained to Mr. Leever that he got that alley with, those two lots, that I was deeding him the two lots,, two separate pieces, and that the alley went with it.. We always had possession, and he would get it with it. There was something said to Mr. Leever about the alley. I said that to him. I didn’t have any dealing with, the officers of the defendant, and said nothing to them. * * * Preceding the giving of the quitclaim deed Mr. Leever came to me. I had my talk and conversation with him entirely at that time, to the best of my knowledge. Pursuant to that myself and my brothers finally gave this quitclaim deed. I negotiated the business for my two brothers. Mrs. Leever did not then, take any active part in it according to my recollection.’r
    There was hanging in the office of defendant before and at the time the option was given and the deed to them executed a map of the city of Jackson which showed, as the Fargo map does, an alley extending across lot 17.
    For defendant there was testimony tending to prove that there has never been at any time visible evidence of an alley on the east side of lot 17. No one looking at the premises could distinguish the line between lot 17 and the parcel called 18. No mention was made of an alley in the negotiations of plaintiffs and defendant. No officer of the defendant examined the abstract or the plat attached to it. It was submitted to its attorney, Mr. Price, for examination and opinion concerning the title to the land described in the option or receipt. The price asked by plaintiffs for all the land they held, all of it being occupied under lease by defendant, was $15,000, which included $3,000 for lot 18. Before the option already referred to was drawn, plaintiff Fred 0. Leever, but not in the hearing nor immediate presence of his wife, and not with her knowledge, so far as is made to appear, pointed out to "the defendant’s officers the east line of lot 17, indicating that it was a line in continuation of the east Jine of the alley on the south side of Wesley street. In an argument concerning the admissibility of this testimony, counsel for defendant said:
    “This is my theory about it, if your honor please: The deed calls for lot 17, block 3 south, range 2 east, referring to no survey at all, Stratton or anybody else. Their theory is that that description means the Stratton survey, or, as they call it, the Packard map. That is their theory. That really means lot 17, block 3 ■south, range 2 east, according to the plan of the village of Jacksonburg by Stratton. They have got a copy of that in evidence. We contend it, according to that plan they have got in here, goes clear out to Albany street. Don’t mistake our position about that. We claim that goes clear out to Albany street, even as shown on the map itself, but it was never treated that way by these people. That is conclusively shown. They have put in a deed here — a lease and other papers there before you now — in which lot 18 is spoken of, which they say never was in the plan of the village of Jacksonburg. Never having been there, where did it come from? Our answer to that is this, and it is consistent with our other position: It never was there. 17 went clear out to Albany street or Milwaukee street, and when they made lot 18 they took part of 17 for 18. Those two positions are exactly consistent. They divided 17 because it was a large lot, and they called the east end of it lot 18, and that is why we do not find any 18 on the original survey — no 18 there. But there is an 18 in the dealings between these parties that we can’t get over. They choose that term in their lease. It was so on the books of Alonzo Bennett and Mr. Frank Bennett says he doesn’t know how it came to be that way, but it was treated that way. Now, having divided this property and covered the whole thing, and designating it by 17 and 18, they commence to negotiate about the purchase of all of it. They fixed upon a price of $15,000, that is the price asked. He asked a separate price for lot 18, lot 18 spoken of in their lease, the lease signed by Mrs. Leever, as well as Leever. He asked a separate price of $3,000 for that lot. They think that is too much for that one lot. They had rather take the balance without that than to pay $3,000 for that one lot. So the option was drawn, and they get all of it but lot 18.”
    At the hearing in this court the book of plats in which the so-called Stratton plat was recorded was produced. An examination of it showed that lot 17 extended east to Albany, now Milwaukee, street. No other plat fvas introduced in evidence.

       The effect of bounding grant on private way to carry title thereto is discussed in note in 24 L. R. A. (N. S.) 539.

   Ostrander, J.

(after stating the facts). Defendant has and claims no title except that derived from the plaintiffs. Plaintiffs had title to a parcel of land described as lot 17. This title defendant acquired. What are the dimensions, boundaries, of lot 17 ? It is clear that Alonzo Bennett, plaintiffs’ grantor, had title to all of the land east of the alley, which it is admitted bounds lot 17 on the west. In the deeds running to Mr. Bennett the land is described by its boundaries, not merely as lot 17, and in neither deed is a plat referred to. No testimony tends to prove that any owner opened, laid out, or dedicated an alley crossing lot 17. No such alley was acquired in condemnation proceedings. No testimony tends to prove that a private alley was opened and used, for convenience, across lot 17. There was therefore, in fact, no public or private way east of the west line of lot 17 as described in the conveyances which are in evidence. Apparently it was Mr. Bennett who first divided the original lot 17, not in fact, not by a plat, but by a memorandum which appears to conform to pictures or maps made by others and in common use. He called the east end of lot 17 lot 18; and, when his heirs sold the property in 1908, the deed executed by them describes both lot 17, and by boundaries, but not by dimensions, a piece of land lying east of lot 17, which, by recital, had an alley for its western boundary. When this deed was executed, the grantees therein, by their tenant, the defendant, had possession of all of the land. Mr. Francis Bennett, who prepared the deed, was mistaken in supposing that- his father had no title to the land now claimed to have been an alley. The recital in the deed affected no rights of the grantor or grantees therein, because the grantees had then, by their tenant, the defendant, possession and control of the entire premises. No reservation to the grantor was intended by the recital in the deed that the parcel east of lot 17 was bounded on the west “by an alley contiguous to lot 17.” The title to all of the land resting in Mr. Bennett, no reservation as between the parties to the deed resulted. No public right was affected.

As between the plaintiffs and defendant it was understood that lot 17 did not extend so far to the east as Milwaukee street; that there was land east of lot 17, title to which did not pass by the deed. It is unfortunate that the dimensions of the parcel intended to be conveyed as lot 17 were not stated in the deed. No alley was talked about, and the bargain for the purchase and sale of the property was made before an abstract was furnished or examined. There being no alley in fact, it is necessary to consider whether for the purposes of this action, between the parties to the deed which describes and conveys lot 17, there is an alley 161/2 feet wide on the east side of lot 17 and between that lot and the parcel called in the lease lot 18. If there is, it is because lot 17, as described, had, to the knowledge of defendant, the dimensions which plaintiffs now assign to it. To establish knowledge, or notice equivalent thereto, the caption to the abstract which was furnished, the plat attached thereto, and the description in the deed from Alonzo Bennett to plaintiffs are relied upon.

It must be assumed from all of the testimony, because the inferences to be drawn therefrom are necessary ones, that while only a portion of the deeds in the chain of title refer in terms to the Stratton plat, all of them do, in fact, refer to it. This agrees with plaintiffs’ contention. Upon the plat is a scale to which, it is asserted, it is drawn. According to this scale, the dimension of lot 17 on Wesley street is about 193 to 195 feet. It is about 1% inches on the plat. According to the Fargo map, so-called, purporting to be drawn to the same scale, this dimension of lot 17 is said to be 132 feet, excluding the alley and lot 18. It shows no lot 18. But Fargo’s map shows the alley, which never existed in fact. No authority is proven in him to make such a map as he made. It does not delineate what, in fact, existed there. The testimony is conclusive that none of defendant’s agents examined the plat attached to the abstract. The attorney who examined the ab-. stract was of opinion that plaintiffs had title to lot 17, and looked no further.

At the most, therefore, the notice which defendant had from the descriptions in the chain of title was that Mr. Bennett, in deeding to plaintiffs, recited ás a boundary for the west side of the parcel east of lot 17 an alley. Its dimensions, its location, and its character are not given. The fact that Mr, Leever pointed out to defendant the eastern boundary of lot 17 cannot be used to affect the title of Mrs. Leever. She conveyed lot 17, and is not bound in this action by what her husband, without her knowledge, may have said as to its dimensions or boundaries.

I conclude that plaintiffs have not proven title in themselves to the land in dispute, have not established the fact that the land is not a part of lot 17, and that the court should so have advised the jury. It is suggested whether, upon plaintiffs’ theory, a reformation of the deed they gave to defendant is not essential to the establishment of their alleged rights.

Judgment is. affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    HOEY v. ROSS.
    1. Compromise and Settlement — Checks—Conditional Payment — Offer and Acceptance — Accord and1 Satisfaction — Estoppel.
    Acceptance by plaintiffs of a check sent by defendants in full settlement of a purchase of logs, bearing on its back the statement that it was in full settlement of the timber that had been received and if not correct, to return check, indorsment meant receipt in full, barred any action for an alleged balance on account, the amount of indebtedness having been in dispute, and operated as a compromise of the items in controversy, although plaintiffs replied to defendants’ letter accompanying the check that they had applied the remittance on account, and claimed a balance unpaid of $1,207.24.

    2. Same — Burden—Evidence.
    Under testimony of an undisputed character, that defendants sent the cheek indorsed as above and that plaintiffs accepted their proposition by cashing it, there was no question for the jury; the evidence satisfied the burden of proof resting on the defendants and the issue was one of law.

      Error to Bay; Collins, J.
    Submitted October 15, 1915.
    (Docket No. 126.)
    Decided December 21, 1915.
    Rehearing denied April 21, 1916.
    Assumpsit by William T. Hoey and Henry D. Franks, copartners as the Western Cedar & Lumber Company, against John C. Ross and Norris R. Went-worth, copartners, etc., for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Affirmed.

      I. S. Canfield, for appellants.

      Stoddard & McMillan, for appellees.

      On accord and satisfaction by part payment, see note in 20 L. R. A. 785.
      On acceptance of remittance of part of the amount of an unliquidated or disputed claim, accompanied with the statement that it is “in full” or words of similar import, as assent to its receipt in full payment, see notes in 14 L. R. A. (N. S.) 443, 27 L. R. A. (N. S.) 439.

   Ostrander, J.

The action is assumpsit for the value of certain sawlogs. With the plea defendants gave notice that they would prove in their defense, among other things, that, the plaintiffs having made a demand upon defendants for a large sum of money claimed to be due to plaintiffs for the logs mentioned in plaintiffs’ bill of particulars, defendants in good .faith disputed the amount of the demand, and, the parties being unable to agree with respect to the amount due to plaintiffs from defendants, the defendants offered and tendered to the said plaintiffs, in full payment, settlement, and satisfaction of plaintiffs’ demand on account of said logs, the sum of $1,797.45,' for which amount defendants gave their check to plaintiffs in compromise and settlement of the plaintiffs’ said claim, and the same was received and accepted by the plaintiffs under and in accordance with the terms and conditions accompanying the said offer and tender.

Testimony was introduced tending to prove the truth of these matters, and the trial court, being of opinion that an accord and satisfaction was conclusively established, directed a verdict for defendants. If the direction was right, other questions raised by assignments of error need not be considered.

The demand of the plaintiffs was unliquidated. The statement, letter, and check of the defendants, dated December 15, 1914, went to plaintiffs after a considerable correspondence between the parties, which correspondence indicates clearly that neither accepted the factors which the other employed in arriving at the sum which defendants ought to pay. As early as September 10, 1914, plaintiffs claimed to have completed the delivery of logs under its contract of March 14, 1914,.and sent to defendants a statement which showed an unpaid balance of $3,004.69. This statement was questioned by defendants, who also asserted that plaintiffs had not delivered the logs as they had contracted to do. After some correspondence and after the logs had been freighted by boat or by rail from Thunder Bay, where plaintiffs were to deliver them, to Bay City, at defendants’ cost, and on November 27, 1914, plaintiffs again requested defendants to pay their demand. Statements of account were exchanged which showed that they were made by one party according to one theory of the .contract and by the other according to another theory. Finally, under date December 15, 1914, defendants sent forward to plaintiffs a statement of account, which need not be here reproduced, and a letter and check. The letter is as follows:

“Western Cedar & Lumber Co.,
“Alpena, Mich.
“Gentlemen:
“Inclosed please find our check No. 10349 for $1,-797.45 in full of account to date per inclosed statement. We have gone over your account carefully, and we feel that we cannot accept the Guy Eaton scale in determining average of logs, as we had nothing to do with this scale and it was not made by a party mutually agreed on. If we were to allow you to put this scale in in determining averages, you would show according to your report 13837 feet Balm of Gilead, when all the balm that we cut out of all of your logs was 7211 feet, so you can see that there would be a great error in your way of figuring.
“In regard to the logs that are full of driftbolts and spikes which we have deducted in making settlement, these logs are here and are subject to your order at any time you may want them. We certainly cannot use them and you had no right to put them in.
“Trusting you will find this settlement satisfactory and in order, we are.”

The check was drawn by defendants on the Bay City Bank in favor of plaintiffs. It was indorsed:

“This check is in settlement of invoices as follows: In full account of all claims and demands for moneys due in connection with logs purchased by us through our Mr. R. G. Evans, delivered by you to us at Bay City, as per statement rendered herewith. $1,797.45. If above is not correct, return check indorsement means receipt in full.”

Plaintiffs received the check probably on December 16th, and later indorsed the check and cashed it. Under date. December 28,1914, they wrote defendants:

“We are in receipt of your check No. 10849 for $1,-797.45, for which we thank you and will apply the same -on your account. We do not wish to take legal steps to 'collect the balance due on your account, and are asking you to please send us check for the amount still due, which is $1,207.24. If you do not send us check for this balance at once, we will be forced to commence suit to recover the same, as this amount is too large for us to lose and we do not think you have treated us fairly in this matter.”
It is said in appellants’ statement of facts, and repeated later on in the brief, that plaintiffs disputed the fact that the words, “if above is not correct, return check indorsement means receipt in full,” were indorsed on the check when they received and indorsed it. No page of the record is referred to and no testimony supporting this statement. The court in charging the jury said, “In my opinion it is an undisputed fact that they were there.”

It is assumed that defendants had the burden of proving accord and satisfaction; indulging which assumption, the ruling of the trial court must be sustained. The facts are not in dispute; the legal effect of them is a question of law. It is not claimed that the dispute of the parties was not a good-faith difference, and, if it was honest, it affords the basis for an accord between the parties, which the law favors. There can reasonably be no dispute concerning the intention of the debtors in offering the check, nor about the condition which accompanied the offer. It is not suggested that any element of a complete accord and satisfaction is doubtfully established except the one of the creditors’ intention in receiving and cashing the check. The creditors’ intention, it is said, is a matter to be determined by a jury. But as the debtors’ intention is determinable from what they did, so may the intention of the creditors be — and must be — determined by what they' did. Neither fraud nor attempted fraud, nor duress, nor mistake, affected their conduct. The tender made by the debtors was upon condition, and the creditors were bound so to understand it, and to understand the condition unequivocally expressed. The creditors had the alternatives of accepting or returning the check. It was accepted, and cashed.

In none of the causes heretofore determined in this court have the facts relied upon to establish an accord been precisely like those in the case at bar. It is the rule in this State that, if it is doubtful if an accord— an agreement — is established, the question is for the jury. But the principle which sustains the ruling of the trial court and requires an affirmance of the judgment in the case at bar has been repeatedly recognized and applied. The subject is exhaustively reviewed, with references to the decisions of the Federal and State courts,, in 1 C. J. pp. 520-584.

The judgment is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    MORTON v. ROTH.
    Intoxicating Liquors — Negligence—Third Persons — Civil Damages — Action—Automobiles.
    Where plaintiff, in a civil-damage action, had received injuries to his person as the result of reckless driving of a minor with whom he was riding in an automobile that they borrowed without the owner’s consent, and where it appeared that they had visited several saloons and became intoxicated, and that the plaintiff treated the minor, who in his turn had paid for refreshments for both, plaintiff, being of age, was chargeable with helping to bring about the accident and could not recover damages under 2 Comp. Laws, § 5398 (2 How. Stat. 2d Ed. § 5074), which creates a remedy against the saloon keeper for the benefit of innocent third persons.
    Error to Muskegon; Sullivan, J.
    Submitted October 14, 1915.
    (Docket No. 97.)
    Decided December 21, 1915.
    Case by Benjamin M. Morton against Henry Roth and another for unlawful sales of liquor to a minor whereby plaintiff claimed to have suffered personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Sutherland, Johnson & Sessions, for appellant.

      S. Wesselius, for appellee Roth.

      A. F. Bunting, for appellee Michigan Bonding & Surety Co.
   Ostrander, J.

The statute (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074) provides.that:

“Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name, against any person or persons who shall, by gelling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury. * * * ”

It is alleged in the declaration that defendant Roth, on July 6, 1914, sold and furnished liquor to one Clare McMahon, a minor, to be drunk and which was drunk by said minor in defendant Roth’s saloon, and that said McMahon then and there became grossly intoxicated; that McMahon, while so intoxicated, invited plaintiff to ride in an automobile belonging to a third person, and while plaintiff was a passenger in the automobile, driven by McMahon, the car suddenly swerved and dashed, into the side of the road, throwing McMahon and plaintiff to the ground, injuring the plaintiff.

The testimony for the plaintiff tended to prove: That at the time mentioned in the declaration plaintiff was 22 years old, born in the city of Muskegon, and an acquaintance of McMahon. Shortly after the noon hour, July 6,1914, he and McMahon, who was 18 years old, were in company visiting saloons in the city of Muskegon, each of them buying for himself and the other, and drinking, liquor. Among other places, they visited the saloon of defendant Roth, and there bought and drank liquor, and bought and carried away a bottle of whisky, which each contributed money to pay for and which they drank. Their itinerary appears to have taken them to eight or more saloons, to some of them more than once, and. to the red light district. At some time in the evening, the hour not definitely fixed, they took an automobile which they found upon the street, and, with McMahon driving, enjoyed a ride. Both claim to have been so drunk that they have no very distinct recollection about taking the car or about the ride. At the end of the pavement on one of the streets, when the car passed upon the dirt or earth roadway, it was mismanaged, or because of the speed attained became unmanageable. It was wrecked, and both men were injured; plaintiff very severely.

Plaintiff having rested his case, the court was moved to direct a verdict for defendant, for the reasons:

“First. That the plaintiff is not entitled to sue the defendant in this case under the statute permitting the recovery of damages for any unlawful sales of liquor, not belonging to one of the classes that are authorized to bring such suits.
“Second. Because it appears irom the plaintiff’s proof that he himself purchased liquor, being an adult, for Clare McMahon, and permitted Clare McMahon to purchase liquor for him, and that they both drank the same in saloons and other places set forth in the declaration, and that thereby the plaintiff became one of the joint tort-feasors in the case at bar, and is estopped from bringing this action against this defendant, because he is a joint tort-feasor.
“Third. Because it appears that the plaintiff being an adult, negligently'and without due and proper care for himself, purchased intoxicating liquors to excess, and himself indulged in intoxicating liquors to excess, and when so intoxicated acquiesced in the unlawful taking of an automobile, and himself unlawfully took the automobile which resulted in the injuries complained of in the declaration.
“Fourth. That the proximate cause of the injury was the excessive use of intoxicating liquors by the plaintiff, the unlawful taking of the automobile, and the accident resulting from such taking, and not the sale of liquors, if any were made by the defendant.”

A verdict was directed as requested, and judgment was entered on the verdict. The ruling is assigned as error.

A few, and only a few, cases under the statute have reached this court in which the plaintiff was other than an innocent third person injured by an intoxicated person, or by reason of the intoxication of some person, or by reason of the unlawful selling of intoxicating liquor to some person. In Brooks v. Cook, 44 Mich. 617 (7 N. W. 216, 38 Am. Rep. 282), the plaintiff had his pocket picked while he was intoxicated. He was refused relief. In Heikkala v. Isaacson, 178 Mich. 176 (144 N. W. 508, 50 L. R. A. [N. S.] 857), the plaintiff, while drinking with another, or with others, and while himself somewhat intoxicated, was struck by an intoxicated person, who used a beer glass, and an eye was destroyed. There appears to have been some testimony tending to prove that the plaintiff may have aggravated — did aggravate — by conduct or language, or both, the person who struck him. A judgment for the plaintiff was affirmed, and in affirming it the charge of the trial court was approved which advised the jury that if they found the conduct of plaintiff aggravated his assaulter, the fact would be no defense. There was an affirmative act of violence, committed by an intoxicated person upon the plaintiff. But in Rosecrants v. Shoemaker, 60 Mich. 4 (26 N. W. 794), where a wife brought her action under the statute for furnishing liquor to her husband, there was testimony tending to prove that she authorized defendants to furnish liquor to her husband, and that she herself procured it for him. A request to charge that:

“If the jury find that, for her husband’s use, as a beverage, the plaintiff was in the habit of purchasing of defendants intoxicating liquor by the bottle, they may consider that as evidence for the purpose of determining whether she authorized them to sell her husband liquor or not”

• — was refused, as well as the request that:

“If the jury find that defendants were authorized by' plaintiff to furnish her husband liquors, she cannot recover damages for injuries sustained by reason of defendants having furnished her husband liquor, unless he was intoxicated when such liquors were furnished.”

' This court, speaking through Mr. Justice CAMPBELL, said:

“As the wife sues solely in her own behalf, it is evident that she cannot complain of any evil which she has herself caused, and that, if she encouraged or requested the sale of liquor to her husband, she does not stand on the footing of an innocent injured party.”

In McDonald v. Casey, 84 Mich. 505 (47 N. W. 1104), the principle of Rosecrants v. Shoemaker is recognized. See the distinction made in Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088). The courts of other States have recognized the same principle. Reget v. Bell, 77 Ill. 593; Engleken v. Hilger, 43 Iowa, 563. It does not appear, affirmatively, in the opinion in the case last cited, that the action was founded on a statute. See, also, Black on Intoxicating Liquors, §§ 292, 307.

In the case at bar, there was no act of McMahon— no affirmative act, like a blow or other trespass— which caused plaintiff’s injury. And plaintiff himself participated in furnishing liquor to McMahon, a minor. He paid for liquor which the minor drank, and drank with him. He was guilty of furnishing liquor to a minor and to an intoxicated minor. Both took the car of a third person, and, while McMahon drove the car, the adventure was a mutual one. Those who sold the liquor are undoubtedly responsible in a criminal action. But plaintiff is seeking to recoup himself, in a pecuniary way, for consequences for which he was directly and actively responsible. In my opinion, he is not an “other person” within the meaning of the statute sued upon, and the ruling and direction complained about were right.

The judgment is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    STEVENS v. LAKEWOOD UTILITIES CO.
    1. Compromise and Settlement — Contracts—Work and Labor.
    Plaintiff, who supplied, defendant’s ice house with ice, was not entitled to a directed verdict in his favor where he and defendant settled a dispute with regard to the manner in which he had packed the ice, by agreeing that defendant should pay a substantial part of the price agreed upon before March 24th and the balance on May 15th, if the ice was in good condition at the date named, and where the evidence was in conflict whether the ice was in good or in poor condition at the stipulated time, the issue raised was for the jury.
    2. Same — Evidence—Value.
    Evidence to show the value of the work done was therefore immaterial; if the ice was in fact in good condition at the date agreed upon, plaintiff should have been permitted to recover the deferred payment; if not, defendant was entitled to a verdict.
    3. Same — Issues—Directing Verdict.
    The trial court erred-in excluding evidence- relative to the condition of the ice at the time fixed by plaintiff and defendant according to the later contract; and it was also erroneous to advise the jury that plaintiff might, although they found he was in default, recover a part of the deferred payment.
    4. Same — Forfeiture—Instructions to Jury.
    There was reversible error at the trial in charging the jury that the settlement between the parties provided for a forfeiture and that the law abhors a forfeiture.
    Error to Muskegon; Sullivan, J.
    Submitted October 13, 1915.
    (Docket No. 73.)
    Decided December 21, 1915.
    Assumpsit by Samuel Stevens against the Lakewood Utilities Company for a balance claimed to be due on a contract to fill defendant’s ice houses. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Turner & Turner, for appellee.
    The initial written evidence affecting the issue is the following:
    “Chicago, January 21, 1914.
    “I, Samuel Stevens, agree to fill three icehouses belonging to the Lakewood Utilities Company and B. C. Mayo for the sum of two hundred and eighty dollars. This sum is to include all materials to be furnished without additional charge by me, except the materials for slide, which are to be furnished by the company, if possible, or if furnished by mej are to be paid extra for.
    “The services of Mr. Alex Ferguson as helper at two dollars a day are to be deducted from the amount of two hundred and eighty dollars for whatever time he puts in on this work.
    “It is understood that this work should be done at whatever time the weather conditions permit”
    —which was signed by the plaintiff. He filled the three icehouses and sent the defendant his bill, which the defendant received, and on March 4, 1914, wrote him that his bill would be honored after defendant had received a report. Under date March 7th, defendant wrote plaintiff that he had received a most unsatisfactory report in regard to the quality of the ice; that it was not 10 inches thick; a quantity of it had 8 or 4 inches of snow on top; that it was packed too close to the center walls on both sides; and that the inside wall (between two icehouses) had been cut through to allow the ice to be shifted back and forth. Later, under date March 16th, defendant wrote plaintiff, reaffirming the charges that the ice was of poor quality and improperly stored, and suggesting that plaintiff could remedy the conditions in part. Under date March 19th plaintiff wrote the manager of defendant the following letter:

      “Whitehall, Mich., March 19,1914.
    “Mr. Mayo,
    “Chicago, 111.

      “Dear Sir:

    “In reply to yonrs of March 16th, I have been to the icehouse and replaced the ties that were removed to get the ice in. I have also rearranged the packing on the ice but I surely will not molest the ice for there is no better ice to be had than that already in the house. Now I will tell you what I will do; you pay me $220.00 on or before March 24, 1914, and I will look after the ice and keep it packed and in good shape until May 15,1914. If the ice is in good shape at that time (May 15, 1914) then I am to receive the remainder of my contract money, but if the ice is not in good keeping order then I forfeit the remainder of my contract money.”
    The subsequent correspondence is here set out in full:
    “Chicago, March 20, 1914.

      “Dear Sir:

    “In re yours of the 19th, will say that the arrangement you propose seems satisfactory on the face of it. We will pay you $220.00 before April 1st, 1914, provided you look after the ice and keep it packed in good shape until May 15th, 1914. At that date you are to receive the remainder of your contract money, provided the ice is in good shape and satisfactory to us, but if the ice is not in satisfactory condition, you agree to forfeit the remainder of your contract money. Please confirm this letter.”
    “Whitehall, Mich., March 23,1914. “Mr. G. G. Mayo,
    “Chicago, 111.

      “Dear Sir:

    “I have just received yours of March 20th, accepting my proposition of the 19th inst. Your acceptance is one-sided wherein it states the ice must be satisfactory to you upon May 15th. This gives me no voice in the matter whatever. However, I will pass it as it is, trusting you to do the square thing by me. I will expect the $220.00 before April 1st, 1914.”

      “Chicago, March 24,1914.

      “Dear Sir:

    “I have just received yours of March 23d accepting our recent proposition, and we will send you check for $220.00 as your first payment on your contract with us, as hitherto stated, before April 1st, 1914.”
    “Chicago, April 1,1914.
    “Mr. Samuel Stevens,
    “Lakewood, Whitehall, Michigan.

      “Dear Sir:

    “We are inclosing herewith check for two hundred twenty ($220.00) dollars to apply on contract dated January 21st, 1914. The balance of $60.00 will be remitted to you on May 15th if ice is satisfactory at that time.”
    “Whitehall, Mich., May 16, 1914.
    “Lakewood Utilities Co.

      “Gentlemen:

    “As per agreement I have taken care of ice and kept it packed in good shape to May 15, 1914. There is remaining due me on my contract the sum of $57.80. You will please attend to this at once.”
    “Chicago, May 20, 1914.
    “Mr. Samuel Stevens,
    “Lakewood, Whitehall, Michigan.

      “My Dear Mr. Stevens:

    “I have received the report that the ice in the ice-houses is in very bad condition. I will personally inspect it next Sunday, May 24th, at which time you can see me, and we can arrange settlement at that time.”
    This action is brought to recover the balance of $57.80, and interest, alleged to be due to the plaintiff.
    It is the contention of the plaintiff that he substantially performed, as he agreed to perform, the contract to fill the icehouses, and was therefore entitled to receive the contract price when the work was completed; that the claim of the defendant that he had not substantially performed his contract was not a good-faith claim, nor based upon facts; that the subsequent arrangement indicated by the correspondence was without consideration in so far as it amounted to a postponement of his right to receive the balance due him, and that in any event the claim of the defendant that the ice was not satisfactory on May 15, 1914, was captiously made. Upon this theory testimony was taken and the case submitted to the jury, which returned a verdict in favor of the plaintiff, upon which judgment was entered.
    It is the contention of the defendant, appellant, that the testimony showed beyond question that it was a matter of dispute between the parties whether plaintiff had performed his contract in a substantial manner; that this dispute was settled and adjusted by the making of a compromise agreement, according to which plaintiff was to be paid $220 on April 1, 1914, and the remainder of the contract price if the ice was in good condition and Satisfactory to defendant May 15, 1914; otherwise he was to receive no further pay; that the testimony shows beyond question that on May 15th the ice was not in a condition satisfactory to defendant, was insufficiently packed with sawdust, had melted materially around the edges, and had fallen one-third of the height inside of the icehouses; that it was therefore the duty of the court to direct a verdict for the defendant upon its motion.
    Error is assigned upon a ruling of the court excluding a letter written by defendant to plaintiff under date March 7, 1914, in which is recited the particulars of the condition of the ice reported by defendant’s agent, the argument being that the letter was important as tending to show an honest claim on the part of defendant that the plaintiff’s work was improperly done.
    Error is assigned upon a ruling admitting an answer to a question asked plaintiff:

      “Q. Was your work worth — the work that was done there fairly worth the sum — the contract price?”
    Counsel for the defendant was reading a deposition to the jury. A certain objection having been made by plaintiff’s attorney, the court examined the deposition. The question asked the witness was:
    “In what condition did you find the ice? Please describe fully.”
    A part of the answer to this question having been read, the court, having, examined and marked the deposition, said:
    “Read that answer there excepting the part in brackets. Read the question before it and that part of it not marked out. There is a lot of stuff included in the answer that I think ought not to go in, and I have eliminated the parts that I think ought not to go in in the answer, and that part will be stricken out, and you may read the answer.”
    The portion of the answer excluded contained the statement, “There was an insufficient amount of sawdust used in packing.” For defendant the court, having concluded the charge to the jury, was requested to further instruct, and refused to instruct, the jury that plaintiff, having accepted the check for $220, after the stipulated time for payment, which was before April 1st, and thereafter continued in performance of the compromise agreement, cannot set up the default of defendant in not paying before April 1st. The charge of the court is criticised, seven errors being assigned. In substance, the criticism is that issues were submitted when no' such issues were made by the testimony; that the charge was argumentative, the argument being favorable to plaintiff. Among other things, the court said:
    “If it [the ice] was in poor shape — if really it was in such a poor condition and packed in such a poor condition that it was in poor shape, then this man ought not to recover the whole $57.80 but should recover what you say it was worth to the defendants who used the ice, not to exceed $57.80.”
   Ostrander, J.

(after stating the facts). The undisputed testimony presented a single issue for the jury, which was whether the ice on May 15, 1914, was in good shape, in good keeping order. I am satisfied that the trial court intended to submit this as the controlling issue. A charge of considerable length was given which, when read in its entirety, seems to present other issues and to permit a recovery by plaintiff, no matter in what condition the ice may have been on May 15, 1914.

The _ce was stored for the purpose of keeping it for use in warm weather — for use after May 15th — and there are, of course, proper and improper ways of storing it. Plaintiff was, or professed to be, satisfied that his work had been well done. Defendant was protesting that it was illy done. There can be no question about this. The issue might have then been determined according to the facts. It was plaintiff who proposed that time, and some care on his part, would demonstrate that the ice was well stored, a proposal assented to by defendant. It was agreed that the condition of the ice on May 15th should determine whether plaintiff should or should not be paid the remainder of the contract price. If the ice was then in reasonably good condition, defendant could not refuse payment. • However plaintiff may have construed the bargain, the matter in no way involved the personal tastes, sensibilities, fancy, or individual judgment of the party to be satisfied. It is therefore evident that the value of the work actually done was immaterial, and equally evident that if the ice was not in fairly good condition on May 15th the jury was not at liberty to measure the portion of the reserved payment plaintiff ought to receive. Upon the real issue both parties were entitled to present the testimony tending to prove the actual conditions on May 15th, they having agreed, in writing, that such condition should determine whether plaintiff should receive any further sum. Plaintiff did not regard the fact that the $220 reached him after April 1st as a breach of the arrangement finally made. On the contrary, he professed to thereafter -continue to do what it had been agreed he should do. His. final demand was based upon the proposition that:

“I have taken care of the ice and kept it packed in good shape to May 15, 1914. There is remaining due me on my contract the sum of $57.80.”

It was error to admit testimony to prove the value of the work done by plaintiff; error to exclude testimony tending to prove the condition of the ice May 15th; error to advise the jury that plaintiff might, notwithstanding default on his part, recover some portion of the deferred payment; error to instruct the jury that the agreement of the parties provided for a forfeiture of $57.80, and that the law abhors a forfeiture.

It is most unfortunate that a cause involving so little should be remanded for a new trial. However, such must be the order.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    LARDIE v. TRAVERSE CITY IRON WORKS.
    Sams — Warranty—Evidence.
    Evidence, in a suit for breach, of warranty of a motor truck, considered and held, insufficient to support a recovery, and not tending to show a breach, or that the seller had warranted the truck in any way differently than the manufacturer whom he represented had warranted it.

      Error to Grand Traverse; Lamb, J.
    Submitted October 14, 1915.
    (Docket No. 84.)
    Decided December 21, 1915.
    Assumpsit by James Lardie against the Traverse City Iron Works for breach of warranty of a truck. Judgment for plaintiff. Defendant brings error.
    Reversed.

      H. C. Davis and Parm C. Gilbert, for appellant.
    • Patchin & Duncan, for appellee.
    It is alleged in the declaration that on or about September 15, 1913, as an inducement to a purchase by the plaintiff of the defendant of a certain motor truck, defendaiit promised and represented to plaintiff that it was practically a new truck, had been used very little as a demonstration truck by the manufacturers, was as good as a new truck except for the wear upon the tires, had been overhauled, recalipered, and rema» chined by the manufacturers, was as good as a new machine and in perfect condition; that it would make 14 miles an hour; its carrying capacity was one ton; it would do plaintiff’s work satisfactorily, that defendant understood that the use to which plaintiff would put it was carrying loads from plaintiff’s home near Old Mission, Mich., to Traverse City; that, relying upon these promises, the plaintiff purchased the truck for $1,150 and paid for it; that it would have been worth $1,150 if it had been of the kind and in the condition that it was represented and warranted to be by the defendant, but that in fact it was worth, when delivered, not to exceed $400; it was not practically a new truck, but was an old machine, and had been used a long time, and its parts were badly worn; one of the cylinders was scored, all of them badly worn; the truck did not have the power that it was represented to have; the steering arm was worn and in such condition as to make it unsafe to operate the truck; the transmission gear and the other parts were worn and defective; it was not a good truck for the purposes for which it was purchased; had not been thoroughly overhauled, re-calipered, and remachined by the manufacturers; it did not have a carrying capacity of one ton; it would not do plaintiff’s work satisfactorily, nor in the manner that a good truck in good condition would do it. The defendant pleaded the general issue. Upon the trial it appeared, and is not disputed, that defendant, to the knowledge of plaintiff, was the agent at Traverse City, Mich., of the Federal Motor Truck Company of Detroit ; that the defendant sold the plaintiff a truck for $1,150, at Detroit, and the plaintiff paid for it. The conditions of the sale are in dispute, and the relevancy and effect of testimony which was introduced respecting the terms and conditions of the sale were at the trial, and are now, made a matter of contention. It is the plaintiff’s theory that he had a parol warranty from the defendant, for a breach of which he brings this action. It is the theory of the defendant that the only warranty the plaintiff had was the warranty of the manufacturers, and that the defendant by parol offered its own responsibility in addition to that of the manufacturers with respect to the manufacturers’ warranty, and no other.
    It is agreed that the truck which was sold and purchased was a second-hand truck, had been used by the manufacturers, and that it was purchased, as above stated, for the price of $1,150; that the defendant knew that the manufacturers had the truck, that it was for sale, the price at which it could be furnished, and informed the plaintiff; but it also appears that, as a part of the negotiations for its purchase and sale, the plaintiff signed a contract, addressed to the Federal Motor Truck Company, Detroit, Mich., a blank form of which the defendant had, which gave the model, the purchaser’s name, the wheel base, the purchaser’s address :
    “Make of tires, same as now on. Kind of business, general farming. * * * Lettering, Fruit Ridge Farm, Old Mission. Prices, Chassis and seat, in priming coat, $1,800.00. Price painted, $1,815.00”
    —with other details. This was signed by the plaintiff. The blank under the signature of the purchaser which reads:
    “Accepted at Detroit, Michigan, by Federal Motor Truck Company. By-,”
    was not filled in, but the further indorsement was:
    “Sold by Traverse City Iron Works. By H. O. Joynt.”
    On the back of this instrument was a printed guaranty, the principal and important portion of which is:
    “We guarantee Federal Motor Trucks against defective material and workmanship for a period of one year from date of shipment, and will replace free of charge any parts broken by reason of such defects, providing such parts are returned to our factory for our inspection, transportation charges prepaid, tagged with the name of the sender, the number of the truck from which part was taken and the reason for returning.
    “This guaranty does not apply to claims arising from accidents, misuse, neglect, nor does our guaranty apply to chains or special equipment.
    “Our guaranty ceases on any Federal truck on which the governor seals have been broken.
    “The purchaser understands and agrees that no other guaranty of the Federal Motor Truck is made, or authorized to be made by the company or its agents, other than the above set forth.”
    This has below it the printed signature: “Federal Motor Truck Co.,” and, following that:
    “This contract is subject to the approval of an executive officer of the Federal Motor Truck Company, and will not be binding on said company until so approved."
    This contract or order was made in duplicate, one. duplicate being, sent to the manufacturers at Detroit,, and, as has been stated, the truck was shipped from. Detroit and delivered to the plaintiff at Traverse City,. Mich. The contract or order referred to describes the truck which was to be sold without mentioning whether it is a new or old truck, but the price stated is the price of a new truck and is not the price at which the particular truck was to be sold. The plaintiff testified that Mr. Joynt, representing the defendant, having requested the plaintiff to call and see him, said:
    “That he had been to Detroit to the company, and that they had a truck down there that had been used at the factory as a demonstrating car, and later on he «aid it was a pick-up-car, that they could make me a price on that that would suit me all right, somewhere in the neighborhood of $1,150 or more. That it would be as good as a new truck in every respect except what wear there had been on the tires, and that they would stand up the same as a new car, and they guaranteed to give me satisfaction, and that they would take care of it in case anything went wrong, the same as they would their new cars, and I told Mr. Joynt that I knowed nothing about the car whatever, but if they would guarantee it, and the company would stand back of that guaranty, too, that I didn’t feel that I was taking any chances in that case and would buy, and I gave him an order for the car."
    He further testified that the written order referred to was the only order he ever gave for the truck. The plaintiff further testified:
    “I have stated in substance my talk with Mr. Joynt in regard to the purchase of this truck. He described the truck to me. He said that it was a truck that had been slightly used at the factory as a demonstrating car, and later he mentioned a pick-up, and that the car was in every respect as good as new, that it had been put through the factory, recalipered, remachined, and that everything was in good condition, and that they would guarantee it the same as a new car, and — well, I think that’s all the guaranty that was put on it. They told me to bring it back to them if it proved in any way defective.”
    Plaintiff further testified that the defendant gave him a book, telling him that he would find the guaranty in there; that he turned over to it in the book. “He said that was the warranty under which this machine was delivered to me.” The warranty so called to his attention is not materially different from the one printed on the other sheet of the contract, and reads:
    “We warrant the new motor trucks manufactured by us to be free from defects in material and workmanship; this warranty being limited to making good, at our factory, any part or parts thereof which shall, within one year after delivery of the truck to the original purchaser, be returned to us with transportation charges prepaid, and which our examination shall disclose to have been thus defective.
    “This warranty shall not apply to any truck which shall have been repaired or altered outside of our factory in any way, so as, in our judgment, to affect its stability or reliability, nor to any truck which has been operated at a speed exceeding the factory rated speed, or loaded beyond the factory rated load capacity, or which has been the subject of other misuse, negligence or accident.
    “We make no warranty whatever in respect to tires, rims, chains, ignition apparatus, lamps, gas tanks, signaling devices, generators, batteries or other trade accessories, inasmuch as they are usually warranted separately by their respective manufacturers.
    “The foregoing obligation to make good any defective parts returned as herein provided is in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on our part, and we neither assume nor authorize any other person to assume for us any other liability in connection with the sale of our trucks.”

      Plaintiff testified that, if the truck had been as it was represented to be, it was worth $1,150, and it ap-pears that, after the plaintiff had had the truck for some time and had made various complaints about it, the defendant offered to allow him $1,000 for it as a part of the purchase price of a new truck. There was testimony tending to prove .that there is no market value or price for second-hand trucks. Plaintiff had never operated a gasoline car, and he made various complaints about it, and the defendant undertook to and did, as he complained, examine the truck or have it examined and remedied, or have remedied such infirmities in its operation as plaintiff called attention to. In new parts alone, nearly $200 was spent upon the truck, without cost to plaintiff.
    At the close of plaintiff’s testimony, the defendant moved for a peremptory instruction, as follows:
    “That the court now order that, in this case, the plaintiff be limited in his right of recovery, if any, to a breach of the written or printed warranty annexed to this order that has been introduced in evidence, and the same thing as set out in the catalogue that the plaintiff introduced; the first one being Exhibit A, and the other one Exhibit B.
    “That, under the testimony in this case, the only part of that warranty that would be available here would be in regard to defective material and workmanship; and it would be the duty of the plaintiff, if he claimed any such defect, to produce the parts and call the attention of the vendor to the same and request that they be replaced or made good, remedied; and that the plaintiff shall be limited to that warranty; and that there is no other warranty upon which he can recover.
    “We ask, second, that the court direct a verdict in this case of no cause of action, for the reason that the plaintiff has not shown any right of action here, thus far; that there has been no defect or default shown or proven, that would in any way violate the written guaranty, or printed guaranty, or render the defendant liable under the same.

      “(3) That there is no right of. action shown here against the defendant, because, if there was any bargain made, it was simply that the defendant company, the Traverse City Iron Works, acted as agent of the Federal Motor Truck Company, and Mr. Lardie knew that, and says he understood it when he bought the machine.”
    This was refused. The defendant then introduced testimony tending to prove that except that it was a used truck the truck when it was delivered on board cars in Detroit was in good condition, had been examined, recalipered, remachined, and in every respect put in good and workable condition, that the governor was sealed, that it was sealed when it arrived at Traverse City, that the seal was not broken by the defendant or its agent, and that the truck in fact when last inspected and run by the defendant or any of its agents was in. good condition and performed, when operated by a competent person, the service required of it. Defendant renewed the motion made at the close of plaintiff’s testimony, and it was again refused. The court submitted to the jury as a question of fact whether there was any special warranty such as is relied upon by the plaintiff in the declaration, saying to them that if all the warranty there was was that one printed on the back of the order and in the little book, and that that had been fulfilled — not breached — then the verdict should be for the defendant. He also charged the jury:
    “If you should determine, from the testimony in the case, bearing upon that proposition, that the defendants were obligated by the warranty entered into between the parties, simply to remedy such defects as should be brought to its attention, and further find that the defendant has remedied all such defects that 'have been brought to its attention by Mr. Lardie, then your verdict in that case will be, No cause of action.”.
    The court instructed the jury further:

      “It is claimed by the plaintiff, Lardie, and his action in the case is based on the claim, that, at the time of the making of the contract for the sale and purchase of said truck, the defendant entered into a contract of warranty with the plaintiff, whereby said defendant promised and warranted that the said truck should be and. was practically as good as new, except the tires, that it had been thoroughly overhauled and remachined and was in perfect condition, that it would develop 28 horse power, make 14 miles an hour and carry a ton over such roads as the plaintiff had to travel in going to and from Old Mission to Traverse City.”
    Upon the subject of damages the jury was instructed that the rule for determining the amount of damages was the difference between the actual value of the auto truck at the time of its delivery to the plaintiff for the purpose for which it was bought and used and the amount paid for it by Mr. Lardie at the time of the purchase, in determining which they would take into consideration all the evidence in the case.
    The court was requested by defendant to instruct the jury:
    “I. You are instructed that the order signed by Mr. Lardie was directed to the Federal Motor Truck Company, and that Mr. Lardie should not recover against the Traverse City Iron Works, and your verdict must be, no cause of action, for that reason.
    “II. You are instructed that all the defendant was obliged to do was to remedy such defects as Mr. Lardie brought to its attention. That is, when Mr. Lardie found any defects, it was his duty to report the same to Traverse City Iron Works, and allow them to correct same. If you find the Traverse City Iron Works had remedied such defects and replaced such parts as it has been asked to do by Mr. Lardie, then it has done its full duty, and your verdict should be, no cause of action.
    “III. I instruct you that the only warranty that you can consider is the written warranty as attached to the original order as set forth in this catalogue which Mr. Lardie has put in evidence.

      “IV. If you find the written warranty has been fairly and reasonably fulfilled by the Traverse City Iron Works, then your verdict must be, no cause of action.
    “V. I instruct you, there is no proof in this case upon which to base a judgment for damages. There is no proof of the value of the truck in question, except the purchase price at the time Mr. Lardie bought it, and you cannot find this truck to be worth less than such purchase price.”
    The jury returned a verdict in favor of the plaintiff for $500, and judgment was entered on the verdict. Defendant moved for a new trial, which was denied.
   Ostrander, J.

(after stating the facts). In my opinion, the testimony of the plaintiff, fairly interpreted, means no more than that the truck was sold with the warranty which was given by the manufacturer upon the sale of a new truck. It is also improbable that defendant gave, upon the sale of a secondhand truck, a warranty broader than the manufacturer and vendor gave upon the sale of a new truck. There were certain representations made by defendant respecting the condition of the truck, as a second-hand, used vehicle. But the guaranty, or warranty, which defendant gave, or made, was the identical warranty of the manufacturer, made known to and understood by the plaintiff. The order was accepted by the manufacturer by delivery of the truck upon the order which plaintiff made. The principal contract was between the manufacturer — vendor—and the plaintiff, and was fully executed. Assuming that a consideration moved to defendant for the additional parol warranty, there is no testimony tending to prove that it was other than the printed warranty of the manufacturer or that there had been a breach of it. The jury should have been instructed that defendant’s parol warranty was identical with the printed warranty, and that no breach of it had been made out. This view of the matter requires a reversal of the judgment and, if plaintiff is so advised, a new trial. Other questions debated by counsel are not likely to arise upon a new trial, although it may be pointed out that it is doubtful if any evidence of the value of the truck supports the verdict.

Judgment reversed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    WEINGARDEN v. FOLLY THEATRE CO.
    1. Contracts — Parties—Novation—Bailment.
    Testimony to the effect that plaintiff rented a quantity of theatrical costumes to the defendant, which transferred its assets and business to another company, incorporated for the purpose of conducting such theatrical business as defendant had carried on, that the managers of the two companies were the same, that plaintiff continued providing the rented costumes and defendant paid part of the rental, sending a check for the last amount subsequently to the change, signed by the manager of both corporations, but ceased to pay for rentals accruing after the transfer of its assets, contending that the later concern owed the debt, was insufficient as a matter of law to estop plaintiff from recovering against the original debtor on the theory that a novation had been effected.
    2. Same — Change oe Parties — Notice.
    And although defendant claimed plaintiff had been notified in conversations and by written communications that the defendant had made the transfer to the second corporation, the notice alone did not shift the contract obligation to the other company unless plaintiff expressly or impliedly consented to accept a new debtor in the stead of the defendant.
    Error to Wayne; Hally, J.
    Submitted October 12, 1915.
    (Docket No. 44.)
    Decided December 21, 1915.
    Assumpsit in justice’s court by Israel Weingarden against the Folly Theatre Company for a balance claimed to be due for rental of theatrical equipment. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Welsh, Crane & Kahn, for appellant.

      George W. Bates, for appellee.
   Bird, J.

The defendant was incorporated in October, 1912, to operate the Folly Theatre in Detroit. When it began operations it also operated a theatrical company. The costumes for the use of the theatrical company were furnished by plaintiff, who was engaged in the city of Chicago, in the business of renting theatrical costumes. Mr. Hugh Shutt was manager of the Folly Theatre, and the costumes were addressed and shipped to him, either personally in care of the Folly Theatre, or to him as manager of the Folly Theatre. The rentals were paid for by checks of the company. Matters ran along this way until December, 1912, when the Central Circuit Company was incorporated to operate theatrical companies in the Folly Theatre and elsewhere. Its principal officers, were the same as those of the Folly Theatre Company. This company took over the theatrical company which had been operated by the defendant. The plaintiff continued to ship the costumes to the same address, and they were paid for in part by the checks of the Folly Theatre Company, until April 1, 1913. The rentals which accrued between April 1, and June 22, 1913, being unpaid, plaintiff brought this suit to recover therefor. The defense was that the debt was not owing by defendant, but by the Central Circuit Company; that the plaintiff had notice that the Central Circuit Company had taken over in December, 1912, the theatrical company formerly operated by the defendant, and was itself operating it and using the costumes, and that by reason of such knowledge, plaintiff was estopped from claiming that the defendant was indebted for the rentals. The trial court was of the opinion'that the evidence bearing upon this contention was in conflict, and theréfore submitted the question of defendant’s liability to the jury. They found a verdict for the plaintiff in the full amount of his claim.

1. The real.question to be determined was whether the plaintiff impliedly extended credit to the Central Circuit Company, and accepted it as his debtor. The defendant insists that the evidence made it a question of law. The plaintiff contends that the testimony was in conflict, and was therefore a question of fact. Defendant relies upon conversations and letters which passed between the parties, to establish his contention. The letter most relied upon is the following:

“C. W. Harrah, Pres. Chas. Lonsby, Sec.-Treas.
“Hugh Shutt, Mgr.
“Folly Theatre Company, Inc.
“Home Office, Folly Theatre Building.
“Detroit, Michigan, Jan. 24, 1913.
“Mr. I. M. Weingarden,
“414 South State Street,
“Chicago, 111.
“Dear Sir:
“Your letter of the 23d received, and I thank you for the quick action on sending the dancer out. I am inclosing $4.00 in this, letter for the transportation, and will have the company send you a cheque for the other bill just as soon as they can raise a little cash. You see that there is only a few interested in the Central Circuit. This is the company that runs the show, and it has been losing every place except here, they are now down in Indiana, and as soon as they can get a little money I will see that it is sent to you. The theatre is doing well of course under the present arrangements, but the Circuit Co. is a little behind but possibly next week will be in shape to pay you up, I will see that you get some of it any way just as soon as any money comes in.
“With best wishes I remain, yours very truly, .
“Hugh Shutt.”

The conversations in which Mr. Shutt claims he advised plaintiff of the change in the management of the theatrical company are denied by plaintiff. The foregoing letter, when read in the light of the other facts, appears to be conclusive only of the fact that the Central Circuit Company had taken over the theatrical company, and was then operating it. Notice of this fact would not necessarily shift the contract obligation of defendant to the Central Circuit Company, nor would it necessarily follow that because defendant had turned over the theatrical company to the Central Circuit Company, it would refuse to carry out its own contract with plaintiff. And had plaintiff received the impression from the letter which it is contended he ought to have received, that impression would have been dissipated in part by subsequently receiving defendant’s checks in payment of the rentals. Plaintiff testified that he had never dealt with the Central Circuit Company, and it is not claimed that any express agreement was made, whereby plaintiff should deal with it and accept it as his debtor. It is not unlikely that the failure of plaintiff to fully appreciate the situation from the information received was due to the fact that Mr. Hugh Shutt was manager of both companies, as it did not clearly appear when Mr. Shutt was talking or writing as manager of the Folly Theatre Company, and when he was talking or writing as manager of the Central Circuit Company. Biit whatever the cause of the misunderstanding was, there was. a question of fact involved, and the trial court very properly submitted it to the jury.

2. Defendant argues that, when plaintiff was advised by Mr. Shutt that the Central Circuit Company had taken over the theatrical company, and was then operating it, the same rule of law should apply as is applied when the creditor extends credit to a copartnership with knowledge that a certain member of the firm has retired. In such case, if the retiring partner could not be held liable for the debt, the defendant in this case ought not to be so held. The analogy fails for the reason that whether the creditor had notice or not of the retirement of the partner, the debt is all the while against the same firm, and the only question is whether the creditor possessed knowledge of the fact of retirement when the indebtedness was incurred, whereas, in this case it is attempted to substitute one of the contracting parties or debtors for another by bringing notice home to the creditor. The plaintiff made his contract with the Folly Theatre Company, and no other person or corporation could be substituted therefor without his consent. Whether his consent should be inferred from their dealings was the question which the court submitted to the jury, and we think properly so.

The judgment of the trial court is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    WEINGARDEN v. FOLLY THEATRE CO.
    Error to Wayne; Hally, J.
    Submitted October 12, 1915.
    (Docket No. 60.)
    Decided December 21, 1915.
    Assumpsit by Israel Weingarden against the Folly Theatre Company for a balance on open account. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Welsh, Crane & Kahn, for appellant.

      George W. Bates, for appellee.
   Bird, J.

Plaintiff claims that he furnished theatrical costumes, to defendant for a monthly rental from September, 1912, to June 22, 1913. The agreement provided that after a stated time defendant should return them. Some of the costumes furnished were never returned, and this suit was begun to recover their value. The defense made was that in December, 1912, defendant turned over its theatrical company to the Central Circuit Company, a corporation which was formed for the purpose of operating theatrical companies in the Folly Treatre in Detroit, and elsewhere, and that if any costumes were not returned, the Central Circuit Company was liable therefor, and not defendant. The plaintiff had judgment. The question of the liability of defendant in this case turns upon the same state of facts as were discussed and passed upon in Weingarden v. Theatre Co., ante, 220 (155 N. W. 501), filed herewith, and is ruled by that case.

The judgment is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.