text:
    MICHIGAN PAPER CO. v. KALAMAZOO VALLEY ELECTRIC CO.
    1. Trial — Reception op Evidence — Objections—Sufficiency.
    In an action for loss of profits, resulting from the shutting down of plaintiff’s mill in consequence of defendant’s negligence, the admission of testimony that the mill had orders to keep it running, without requiring the production of the orders, is not erroneous as against a mere general objection of irrelevancy and immateriality, though the orders were the best evidence.
    2. Evidence — Admission—Harmless Error.
    The error in admitting record evidence not used by the party introducing it is harmless.
    3. Waters and Watercourses — Injuries to Mills — Evidence —Admissibility.
    Where, in an action for loss of profits resulting from the shutting down of plaintiff’s mill in consequence of defendant’s
    • negligence in causing the formation of an ice jam, acting as a dam and setting the water back on plaintiff’s wheel, defendant claimed that like jams occurred prior to the construction of its dam, evidence that a break in plaintiff’s dam occurring at a time anterior to the building of defendant’s dam had more to do with the closing down of plaintiff’s mill at that time than the ice jam then formed was admissible as the basis for evidence as to the effect on plaintiff’s mill of the washing out of the dam, and whether the situation was the same at that time as at the time of the happening of the injury complained of.
    4. Evidence — Admission—Harmless Error.
    In an action for loss of profits resulting from the shutting down of plaintiff’s mill in consequence of defendant’s negligence, error, if any, in admitting evidence of the amount of money plaintiff had invested in its plant, was harmless.
    5. Waters and Watercourses — Injury to Mill — Notice of Injury.
    In an action for loss of profits resulting from the shutting down of plaintiff’s mill in consequence of defendant’s negligence in the management of its dam, evidence that plaintiff notified defendant of the injury at the beginning thereof, together with the contents of the notice, is admissible, as bearing on defendant’s negligence in not remedying the defects of which complaint was made.
    6. Same — Damages—Right of Recovery.
    Where a mill owner who had orders enough to keep his mill in' continuous operation, and who had had no dull season for two years, was compelled to shut down in consequence of the negli- , gence of defendant, he was entitled to damages for lost profits though he filled all his orders when he commenced to run again; for, though he merely received orders enough to run during the period when the mill was not shut down, it would not follow that he would have permitted the mill to remain idle if it had been in condition to run.
    7. Same — Instructions.
    In an action for loss of profits resulting from the shutting down of plaintiff’s mill in consequence of defendant’s negligent management of its dam by holding the water at a high level and allowing the formation of an ice jam, an instruction that defendant had a right to maintain its dam at a height that would not interfere with plaintiff’s power under ordinary circumstances, and that it was not responsible for damages resulting from slush ice below plaintiff’s tailrace, causing the water to set. back on plaintiff’s wheel, was erroneous, because requiring a verdict for defendant, though the jury should find that the formation of the slush ice was an • occurrence which defendant might reasonably have foreseen and avoided without injury to itself.
    Error to Allegan; Padgham, J.
    Submitted May 5, 1905.
    (Docket No. 147.)
    Decided July 21, 1905.
    Case by the Michigan Paper Company against the Kalamazoo Valley Electric Company for damages caused by flooding. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      L. L. Thompson (Howard & Howard, of counsel), for appellant.

      Wilkes & Stone, for appellee.
   Blair, J.

The plaintiff in this case operates a paper mill at the village of Plainwell, in Allegan county. The power for said mill is partly steam and partly water. The wafer power is obtained by means of a dam across the Kalamazoo river in the village of Plainwell. In the summer of 1902, the Plainwell Construction Company, Limited, built a dam across the Kalamazoo river below the plaintiff’s mill, and leased the same and the water power obtained therefrom to the Kalamazoo Valley Electric Company, the defendant and appellant. The defendant and appellant used the power obtained at this lower dam for generating electricity. It commenced operations in December, 1902. The latter part of December, 1902, commencing about Christmas time, and extending into the first week of January, 1908, there was an ice jam in the river, formed' between the dams of the plaintiff and the defendant, which ice jam, acting as a dam, set the water back upon the plaintiff’s wheel to such an extent that it could not run its mill for some days.

Plaintiff brought this action against defendant, claiming that the defendant so negligently operated and managed its said dam as that it prevented the free running of slush ice down the river; that by its said dam it held the water to a level of about a 14-foot head; that no spillway was provided at said dam to allow the water to flow away, and thus keep open the surface of the river, above the dam to allow such slush ice to escape. Nor did the said defendant, as it claims, so manage or operate its waste gates at said dam as to allow the free passage of the water and keep, an open current, and thus furnish a means of escape for slush ice running at the time in the river; and, on the contrary, the* plaintiff claims, because of such negligent operation and management of said dam and its waste gates, that it caused the pond above to become still water, and, freezing over, caused the slush ice on its downward course, below the plaintiff’s mill, to be stopped, blocked up, and form a dam in such a way that it backed the water up to the plaintiff’s mill, and prevented its operation to such an extent that it could not operate its mill or make paper for several days; and thereby, it says, it lost profit which it would have otherwise made, and was put to other expense in protecting its property during the time of its shutdown.

The defendant, on its part, and as a defense, denies any negligence on its part, in the management or operation of the said dam, and denies that it is in any way responsible for the condition of things as claimed by the plaintiff at its mill in December and the other dates, and also claims that, if the water was raised in the Kalamazoo river by a jam of slush ice, so as to cause damage to the plaintiff by stopping its mill, as claimed, it was one of those extraordinary occurrences of nature which could not reasonably be foreseen, and that no one, therefore, could be responsible for it. Plaintiff had judgment, and defendant brings the record to this court for a review upon writ of error.

The assignments of error upon which defendant relies for a reversal are grouped by its counsel in their brief under three heads, as follows:

First. Erroneous rulings of the trial judge in the admission and exclusion of evidence.
Second. The erroneous refusal to give defendant’s first and fourth requests to charge.
Third. Errors in the charge.

We shall consider the points of counsel in the order which they have adopted.

First.' (a) The court permitted several leading questions to be answered. In no instance was the claimed violation of the rule of sufficient importance to warrant a reversal of the case, and, if error was committed, it was harmless error.

(6) The court permitted witnesses for plaintiff to testify that at the time the mill was shut down plaintiff had orders ahead, without producing the orders themselves. We think this evidence was clearly material and relevant. Plaintiff was not seeking to recover for lost' or canceled orders. In fact, it was shown that no orders on hand were lost or canceled, but all were subsequently filled. The damages claimed by plaintiff were the loss of profits per day which it would have made if the mill had been running during the period when it was shut down. As bearing upon this question, it was not only material, but necessary, to show that the mill had work to do during that period. The objection that, if the fact that the mill had work enough on hand to keep it running during the period in question was to be shown by orders on hand, the orders themselves were the best evidence, and should be produced, was never specifically called to the attention of the trial judge, and in fact is not made in the brief in this court. The proceedings in this regard in the court below were as follows:

Q. At the time you shut down during last winter, did your mill have orders ahead ?
“A. Yes, sir.
Q. It could have run all the time ?
“Mr. Howard: I object to that as irrelevant, immaterial, and incompetent.
The Court: Why wouldn’t it be competent? Why would it be irrelevant, under their theory, that they claim damages ? Why wouldn’t it be competent ?
‘ ‘ Mr. Howard: I don’t think their theory is. competent. (Last question read.)
Q. Had orders to keep them busy?
“A. Yes, sir.
Mr. Howard: Hold on a minute. Have you any objection to the court ruling on that ?
“ Mr. Wilkes: Not on my part.
‘ ‘ The Court: It may stand.
Mr. Howard: Note an exception. * * *
“ Q. Was there any time during the winter that you did not have orders ahead in work to do ?
“A. Never.
“Mr. Howard: I want all this under objection.
“ The Court: It may be. (
“ Mr. Howard: An exception. * * *
Q. Whether they had orders ahead at that time, work ahead ?
“A. They did.
Mr. Howard: I want that under my objection. All this is in regard to their business and profits. If it can be considered under my objection and exception, I will not renew it.
‘ The Court: It can be so considered. * * *
“ Q. Did I ask whether, at these times that you have now referred to, when your mill was shut down, your mill had work to do ?
“Mr. Howard: I object to that as irrelevant, immaterial, and speculative.
The Court: The same question, I think, we passed over. I think he may answer.
“Mr. Howard: Note an exception.
“A. Yes, sir.
“Mr. Hoioard: If I may have an exception understood on all this question, I won’t lug in the objections.
The Court: Yes, sir, all right.”

In their brief, counsel for defendant say:

“We insist, if the plaintiff intended to recover profits on the orders it had, but could not fill, that it should at least produce the orders.”

Against the objections as made, the rulings were not erroneous.

(c) The court overruled defendant’s objection to the introduction of certain records, and admitted them in evidence. The record contains the following statement in regard to these records, viz.:

“The records for the building of the dam, called the ‘Botsford Dam,’ offered in evidence by the plaintiff, were not read in evidence, or shown to the jury, and were not used by the plaintiff.”

The ruling of the court thát plaintiff might use the rec-. ords, in view of the fact that it did not use them, could not have harmed defendant.

(d) These assignments are wholly without merit, and require no consideration.

(e) The plaintiff was allowed to give testimony in regard to a break in and repairs of the dam across the Kalamazoo river at Plainwell in the winter of 1895-96. One of the main contentions of defendant was that the evidence did not show that the defendant’s dam was responsible for the-ice gorging as it did, because it appeared from the undisputed testimony—

“That like jams had occurred in the river before the defendant’s dam was constructed. We claim that the evidence shows such a state of affairs in 1885 and 1895. If the defendant is liable for the damages that occurred in the winter after its dam was constructed, why should it not be liable for the damages that occurred in exactly the same way seven years before its dam was constructed at all?”

Plaintiff contended, and gave evidence tending td show, that the break in the Plainwell dam in the winter of 1895-96 had more to do with the closing down of plaintiff’s mill than the jamming of the slush ice. The testimony objected to was properly admitted as the basis for evidence as to the effect of the washing out of the dam on plaintiff’s mill, and whether the situation and surroundings were the same in 1895-96 as in 1902-03.

(/) That plaintiff was permitted to show how much money it had invested in its plant. Conceding that this was error, we do not think it was sufficiently prejudicial to call for a reversal of the case.

(g) That the court erred in permitting plaintiff to show that they notified defendant of their claim that their mill was being damaged by the management and operation of defendant’s dam. Plaintiff’s counsel offered certain letters, one to the defendant corporation, the other to its president, stating that—

“ The object of the offer is to show knowledge, brought to the defendant, of the condition at the date of the letter. It also appears that subsequent to that date, the same condition did recur; referred to in the letter, with no effort made to prevent it or alleviate it. * * *
‘ ‘ Mr. Howard: I want the same objection to each letter as incompetent, being a statement of the plaintiff in his own behalf.
“ The Court: Yes, it would be, if it was offered as substantive proof of any facts stated in them, but for the purpose of showing the correspondence between the parties, as calling their attention to the state of facts they claim to exist, I think it would be proper.”

Defendant’s counsel then offered to concede that plaintiff .notified defendant of its claim that defendant was infringing upon its rights upon the day when such infringement took place. Notwithstanding this concession, the court permitted the evidence tobe introduced. The court committed no error in this regard. The plaintiff not only had a right to show that it notified the defendant at the beginning of the injury, which it claimed was caused by defendant’s conduct and management of its dam, but what its notice contained, not as substantive proof of the facts stated, but as notice .of what it claimed the facts were, as bearing upon the defendant’s negligence in not remedying them, if the jury should find that they were facts.

Second. The defendant’s first and fourth requests to charge were as follows:

“First. Under the undisputed evidence in this case, the plaintiff cannot recover, and your verdict must be, ‘No cause of action.’ * * *
‘ ‘ Fourth. The plaintiff’s main claim is that the defendant, by the operation of its dam during the past winter, caused the slush ice to dam or gorge below its (plaintiff’s) tailrace, and, thus forming, caused the water to set back on the plaintiff’s wheel. I charge you that under the law the defendant is not responsible to the plaintiff for any damage thus accruing to the plaintiff; that the defendant has a right to maintain its dam at a height that will not interfere with the plaintiff’s power under ordinary circumstances, and in the ordinary state of the water in the river, and cannot be held liable for an accumulation of slush ice' that is attributable to natural causes; &nd every mill owner must take his chance in regard thereto.”

As to the first request to charge, counsel say:

“We base our right to this charge upon two grounds: (1) That .the evidence did not show that the defendant’s dam was responsible for the ice forming in the manner in which it did; and (2) plaintiff did not show damages resulting to itself. We base our contention on the first proposition upon the fact that substantially all the witnesses in the case, both for the plaintiff and the defendant, testified that like jams had occurred in the river before the defendant’s dam was constructed. We claim that the evidence shows such a state of affairs in 1885 and 1895. If the defendant is liable for the damages that accrued in the winter after its dam was constructed, why should it not be liable for the damages that accrued in exactly the same way seven years before its dam was constructed at all ? * * * No attempt is made to disprove the evidence of these witnesses, and it clearly establishes the fact that in 1895 or 1896 substantially the very same thing occurred as that complained of in the plaintiff’s declaration. The weather was substantially the same; conditions everywhere substantially the same. That there should be no misunderstanding about it, we will quote from, the testimony of some of the witnesses sworn in behalf of the plaintiff.”

We have examined the voluminous testimony in the record with diligence, and are satisfied that the court would not have been warranted in giving this request. The testimony is not utídisputed, but in conflict; and there is abundant testimony in support of plaintiff’s contention, both as .to the injury being caused by defendant’s management of its dam, and as to variance between the conditions at the time of the injury and on prior occasions.

The second proposition involved in this request, viz., that plaintiff had not shown that it had suffered any damage, is-equally unfounded. Plaintiff’s secretary and manager testified that at the time of the injuries' in question they had orders enough ahead to run two or three mills just like the mill in question; that there was an actual cash loss each day the mill was shut down of $90.26, and the net profits for each day were $42.12; that the mill was shut down for 11 working days, and they had had no dull season for 2 years. He also testified as follows:

Q. How many orders did you have on the last week in December, 1902, to fill ?
“A. I could not tell. We didn’t fill any that week. I presume we filled them. I don’t remember. I have no recollection of any being canceled. I suppose we filled the orders we had on hand when we commenced to run.”

It is upon this testimony principally that defendant’s counsel base their contention that no damage was shown because, they say, “if the plaintiff filled all the orders it had on hand, none were canceled, and it did not have to turn away any business, where did it lose anything?” Even though plaintiff only received or procured orders enough to run during the period when it was not shut down, it would not follow that it would have permitted its mill to remain idle for 11 days, or that it would not have received or procured orders for the 11 days if it had been in condition to run. The company was paying expenses and getting no returns for these 11 days. It does not follow that, even if they had not been compelled to shut down then, they would have been compelled to shut down for a like period later on through lack of business, and therefore have been subjected to the same expenses without returns; and in any event the plaintiff would have been entitled to nominal damages, which would be fatal to the request.

The fourth request has respectable authority in its support. See Smith v. Canal Co., 2 Allen (Mass.), 355. There is equally respectable authority to the contrary. See Davis v. Fuller, 12 Vt. 178; McCoy v. Danley, 20 Pa. 85; Cowles v. Kidder, 24 N. H. 364. We do not think this request contains a correct statement of the law. It requires the court to direct a verdict in favor of the defendant, although the jury should find that the formation 'and flowage of the slush ice during the winter season was a usual and ordinary occurrence, and the defendant might reasonably and naturally have foreseen that the effect of its maintaining the water at its dam at its highest level would naturally be the formation of an ice jam, which would shut down the plaintiff’s mill, and which injurious results might readily have been obviated by the defendant, without injury to itself, by opening its gates sufficiently to create a current and allow the slush ice to pass on down the river. The evidence made a case for the determination of the jury, and the request was properly refused.

Third. We do not consider it necessary to consider the objections to the charge specifically. Most of them are covered by what we have already said, and as to the others we are satisfied that they are not well founded. We think the charge was a clear, impartial, and substantially correct presentation of the case to the jury.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    WELLS v. MONTCALM CIRCUIT JUDGE.
    1. Prohibition — Propriety—Conflict of Jurisdiction.
    Where the circuit courts of different counties are attempting to exercise jurisdiction in a divorce case simultaneously and have made conflicting orders, prohibition is appropriate to settle the conflict of jurisdiction, vacate orders improperly made, and prevent the making of others.
    2. Courts — Jurisdiction—Conflicts—Priority.
    Where husband and wife reside in different counties, and the wife files a bill for divorce in the county of her residence and in good faith places the subpoena in the hands of the sheriff for service, the court has jurisdiction, and the subsequent filing of a bill by the husband in his county will not oust it, though service of process is obtained first on his bill.
    Petition by Maude M. Wells against Frank D. M. Davis, circuit judge of Montcalm county, for a writ of prohibition to restrain the exercise of jurisdiction in a divorce proceeding.
    Submitted June 20, 1905.
    (Calendar No. 21,143.)
    Writ granted July 21, 1905.

      E. O. Qrosvenor and Willis Baldwin ( Griswold & Tennant, of counsel), for relator.

      E. J. Bowman and G. L. & G. B. Barden, for respondent.
   Carpenter, J.

The circuit court for the county of Wayne, in chancery, and the circuit court for the county of Montcalm, in chancery — courts of co-ordinate jurisdiction — each asserts exclusive jurisdiction over a divorce suit between relator and her husband, Percy D. Wells. Relator, Maude, resides in Wayne county. Her husband, Percy, resides in Montcalm county. Relator, Maude, is the complainant, and her husband, Percy, the defendant, in the suit pending in the Wayne circuit court, while Percy is the complainant and Maude is the defendant in the suit pending in the Montcalm circuit court. The suit pending in the Wayne circuit was first commenced, and the subpoena immediately placed in the hands of a sheriff for service. Before this service was made, the suit was commenced in the Montcalm circuit, and the process issued from that court was served before the process issued from the Wayne circuit. The complainant in each suit asked for the custody of the infant child of the parties, the offspring of the marriage, and each court has issued an injunction restraining the defendant from interfering with the complainant’s custody of said child. The defendant in each suit has filed a plea to the jurisdiction, and each court has overruled that plea. Relator now applies to this court for a writ of prohibition directed to said respondent, requiring him to refrain from exercising jurisdiction of the suit pending in the court of which he is judge.

The first question for our consideration is this: Is a writ of prohibition the appropriate remedy? We have held (Wells v. Montcalm Circuit Judge, 139 Mich. 544) that mandamus is not the appropriate remedy, saying:

“ The writ of mandamus will not be allowed to take the place of an appeal or a writ of prohibition, or any other writ to review the action of a lower court.”

The writ of mandamus asked for would simply have compelled the vacation of certain orders. This relief would have been inappropriate. Appropriate redress for relator’s grievance requires respondent not merely to vacate orders already made, but to refrain from further exercising jurisdiction. This relief can be afforded by a writ of prohibition (see Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239), but not by a writ of mandamus. No relief can' be obtained by appealing from the order overruling the plea. That order is not appealable. See Miller v. McLaughlin, 135 Mich. 646. It is earnestly contended that relator can secure appropriate relief by appealing from a final decree. There is no doubt that the question involved in this case may be reviewed by appealing from a final decree, provided relator does nothing to waive her right to have it so reviewed, but it by no means follows that the remedy by appeal is adequate. Each of the two courts now claiming and exercising jurisdiction has already made, and, it may be presumed, will hereafter make, conflicting orders respecting the custody of the minor child It may be presumed that each of these courts will proceed at once to enforce such orders. Indeed, it is clear that the interests of the parties and of the child require that the order of the court whose jurisdiction is rightful should be at once enforced. The situation would be intolerable if this condition of affairs must continue during all the time that must elapse before the case can be reviewed after a final decree. This is a case, therefore, in which it is clear that the remedy by appeal is not adequate. Our own decision in Maclean v. Wayne Circuit Judge, 52 Mich. 257, is authority for the proposition that the writ of prohibition is the appropriate remedy. In that case the Wayne circuit court in chancery entertained jurisdiction of a matter within the exclusive cognizance of the superior court of Detroit. This court issued a writ of mandamus vacating an injunction, and a writ' of prohibition staying further proceedings, saying:

“ It is a familiar principle that, when a court of competent jurisdiction has become possessed of a case, its authority continues,, subject only to the appellate authority, until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty, to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and, while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely.”

See, also, Clark County Court v. Warner, 116 Ky. 801; Throop on Public Officers, § 835; Mechem on Public Offices and Officers, § 1014; Hudson v. Judge of Superior Court of Detroit, 42 Mich. 239.

It is proper, then, to determine in this proceeding whether the Montcalm circuit court had a right to assume jurisdiction of this controversy. At the time suit was commenced in the Montcalm circuit, relator had in good faith filed her bill in the Wayne circuit court. Process had been issued by that court, and was then in the hands of the sheriff of Wayne county for service. The question in this case is not whether the Wayne circuit court had at that time acquired such jurisdiction that it might render a decree binding upon the parties. It is clear that it had not. The question is whether the Montcalm circuit court had a right to prevent its acquiring such jurisdiction. There is authority for saying that, until service of process was actually made, it had that right. See Union Mut. Life-Ins. Co. v. University of Chicago, 6 Fed. 443; Owens v. Railroad Co., 20 Fed. 10. The true rule, however, and the rule sustained by the weight of authority (see Farmers’ Loan & Trust Co. v. Railroad Co., 177 U. S. 51; In re Talbot, 9 Wkly. Law Bul. 271; Spinning v. Trust Co., 2 Disn. (Ohio) 336; Chicago, etc., R. Co. v. Board of Com’rs of Chase Co., 42 Kan. 227, denies that right. It would create unseemly conflicts, if, after a court has taken cognizance of a controversy of which it has jurisdiction, and while it is proceeding regularly in an attempt to acquire jurisdiction, another court of co-ordinate jurisdiction has power to frustrate that attempt.

It results from this reasoning that the writ of prohibition prayed for injelator’s petition should issue, with costs against Percy D. Wells.

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


author: Per Curiam.,

text:
    BYRNE v. GYPSUM PLASTER & STUCCO CO.
    1. Appeal and Error — Chancery Appeals —Notice op Argument — Time.
    Notice of argument of a chancery appeal cannot be given until the whole time for returning the appeal under Supreme Court Rule 15 has expired.
    2. Same — Rules—Statutes—Constitution.
    Whether, under the provision of the Constitution (art. 6, § 5) directing the Supreme Court to simplify the practice by general rules, the court can, by rule, modify a statutory enactment as to practice, coming within the purview of the constitutional provision, quaere.
    3. Same — Record—Time por Returning — Rules.
    The time for filing the record referred to in Supreme Court Rule 34, for the purpose of giving notice of argument provided for therein, is “forty days after the filing of the appeal bond," as provided by Rule 15, notwithstanding the statute (§ 552, 1 Comp. Laws), requiring the register to transmit the record to the Supreme Court within 15 days after the appeal is perfected.
    Foreclosure bill, filed in tbe Kent circuit, by John T. Byrne against the Gypsum Plaster & Stucco Company, Alice F. Uhl, and others: On motion by defendant Uhl to strike the cause from the calendar for the June, 1905, term.
    Submitted June 6, 1905.
    (Calendar No. 21,093.)
    Granted July 21, 1905.

      Burlingame, Belden & Orton, for the^motion.

      T. J. O’Brien, James H. Campbell, and Knappen, Kleinhans & Knappen, contra.
   Per Curiam.,

This is a motion by defendant Alice F., Uhl for an order striking the above-entitled cause from the calendar of this court for the June, 1905, term. The grounds of the motion are that the cause was noticed for hearing before the time for filing the record had expired, as provided in Sup. Ct. Rule 15, and such notice was therefore improper under Sup. Ct. Rule 34.

The appeal bond was filed on the 31st day of March, 1905; and sufficient time would not remain for noticing the cause for hearing after the expiration of the time for filing the record under Rule 15. This court has held that such notice cannot be given until the full time for returning the appeal has expired. Stockton v. Garland, 14 Mich. 333; Torrent v. Booming Co., 21 Mich. 1.

It is objected, however, to the' granting of the motion, that Rule 15 is modified by the provisions of section 552, 1 Comp.' Laws, requiring the register to transmit the record to this court within 15 days after the perfecting of the appeal. This provision was introduced into section 5182 of the Compiled Laws of 1871 by Act No. 30 of the Public Acts of 1879.. The revised rules of this court were given effect January 1, 1897. Article 6, § 5, of the Constitution provides that “the Supreme Court shall by-general rules establish, modify and amend the practice in such court and in the circuit courts and simplify the same.”

Without determining the power of this court to modify a statutory enactment as to practice coming within the purview of the constitutional provision, we hold that the time for filing the record referred to in Rule 34 for the purpose of giving notice is “forty days after tlje filing of the appeal bond,” as provided in Rule 15.

The motion is granted.


author: Per Curiam.

text:
    UNIVERSALIST GENERAL CONVENTION v. VAN BUREN CIRCUIT JUDGE.
    Costs — Probate Appeals — Contested Cases — Discretion of Court.
    Where a probate appeal was voluntarily dismissed in circuit court, after the order of the circuit court had been reversed and the order of the probate court affirmed by the Supreme Court, the case was a “ contested case” within the purview of section 681,1 Comp. Laws, and it was within the discretion of the circuit court to deny costs to either party.
    Mandamus by the Universalist General Convention to compel JohnR. Carr, circuit judge of Van Burén county, to set aside an order denying costs.
    Submitted June 6, 1905.
    (Calendar No. 21,112.)
    Writ denied July 21, 1905.

      Lincoln H. Titus (William G. Howard, of counsel), for relator.
   Per Curiam.

The relator was the residuary legatee in the will of Ann Smith, deceased. From an order of the probate court of the county of Van Burén directing the payment of the residue of said estate to relator an appeal was taken to the circuit court by John Cook, one of the heirs of said Ann Smith, deceased. After this appeal was taken the case was tried in that circuit, and the order of the probate court reversed. The case was then reviewed in this court, and the judgment of the circuit court reversed. See Cook v. Universalist General Convention, 138 Mich. 157. Thereafter, on motion of defendant Cook, an order was entered in the circuit court for the county of Van Burén dismissing said appeal and denying costs to each party. Relator, under the claim that respondent had no discretion to deny its costs, asks a mandamus directing him to enter an order taxing the same against appellant Cook.

The issue in this case depends upon the proper construction of section 681, 1 Comp. Laws, which reads:

“ In all cases that shall be contested, either in the probate court or in the circuit court, such court may award costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.”

Relator claims that this statute properly construed has no application to the case at bar, because appellant voluntarily dismissed his appeal. In support of his contention, he relies upon Sherman v. Washtenaw Circuit Judge, 52 Mich. 474. There we held that the statute (section 930, 1 Comp. Laws) giving discretion to the circuit judge respecting costs “in all cases heard and determined on appeal ” from justice’s court had no application “to a case in which the plaintiff voluntarily discontinued his suit.” We do not think that case controlling. On appeal from justice’s court the circuit court has no discretion respecting costs unless the case is “heard and determined.” On appeal from probate court the circuit court has discretion “ in all cases that shall be contested.” This language does not justify our holding — as we must to uphold relator’s contention — that this discretion may not be invoked until the contest has resulted in a final determination. In the case at bar the appeal was contested within the meaning of the statute, and therefore respondent acted within the limits of his discretion in making the order complained of.

The mandamus asked for should be denied.


text:
    FULLER v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Injuries to Servant — Place to Work — Negligence.
    Plaintiff, a car repairer, by throwing a wrench on the car on which he was at work, struck a torpedo lying there, which exploded, injuring him. He recognized it as one of the torpedoes used by defendant, his employer, but did not know and had not been able to learn how it happened to be there, or who put it there, and had never seen one there before. Held, that the master was not liable as for failure to furnish a safe place to work.
    2. Trial — Direction oe Verdict — Evidence.
    A verdict should be directed for defendant where, under the evidence, the jury cannot find against him without basing their finding on a pure guess as to which one of several possible causes produced a certain result.
    3. Master and Servant — Injuries to Servant — Negligence oe Master — Res Ipsa Loquitur.
    In suits brought by employés against employers to recover damages for personal injuries, the occurrence of the accident raises no presumption of negligence on the part of the employer.
    Error to Shiawassee; Smith, J.
    Submitted June 13, 1905.
    (Docket No. 3.)
    Decided July 21, 1905.

      Case by William Fuller against the Ann Arbor Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      T. W. Whitney (Alexander L. Smith, of counsel), for .appellant.

      Watson & Chapman, for appellee.
   Carpenter, J.

Plaintiff brought suit to recover compensation for personal injuries. In the court below he recovered a verdict and judgment. The facts are these:

Plaintiff was a car and truck repairer in defendant’s employ, working in its Owosso yards. While repairing a car truck, he threw a wrench on the car. The wrench' struck a torpedo lying on the car, the torpedo exploded, and plaintiff was injured. Plaintiff testifies that he recognized the torpedo as one of those used by defendant. He did not know how the torpedo happened to be on the car or who put it there, never had seen one there before, and never could learn from any one how this got there. Defendant contended in the court below, and contends here, that from this testimony no inference of negligence could be drawn, and therefore that the trial court erred in not directing a verdict for defendant.

If defendant is responsible foj plaintiff’s injuries, it is so responsible because it failed in the duty it owed plaintiff to furnish him a safe place in' which to work. Defendant’s obligation as an employer, to furnish to plaintiff, as an employe, a safe place in which to work is an obligation, not of insurance, as urged by plaintiff’s counsel, but of diligence. This obligation was performed if defendant exercised due care. Defendant is not liable, therefore, unless it was guilty of some neglect. It is not liable unless the presence of the torpedo on the car resulted from defendant’s negligence. There is no evidence of this negligence unless that negligence may be inferred from the fact that the torpedo was on the car. Of course, it is possible that the torpedo may have been placed on the car under such circumstances as to make the conduct of defendant in failing to remove it negligent. There is nothing, however, to indicate this. It may have been placed there by a fellow-servant or by a trespasser only a short time before plaintiff’s injury. If so, it is clear that no liability would be imposed upon defendant. It is obvious, therefore, that the verdict in this case rested upon nothing but bare conjecture. A verdict should have been directed in defendant’s favor, unless a jury may, without any evidence whatever, guess which one of several possible causes produced a certain result. This, we have held, they cannot do. See Marquette, etc., R. Co. v. Kirk-wood, 45 Mich. 51; Smith v. Hockenberry, 138 Mich. 129. It may also be said that our decisions (see Toomey v. Steel Works, 89 Mich. 249; Quincy Mining Co. v. Kitts, 42 Mich. 34; Robinson v. Charles Wright & Co., 94 Mich. 283) holding that, in suits brought by employés against employers to recover damages for personal injuries, the occurrence of the accident raises no presumption of negligence, are decisive against plaintiff’s right to recover. It follows that the learned trial judge erred in refusing to direct a verdict for the defendant.

Judgment reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    FIELD v. VILLAGE OF HIGHLAND PARK.
    1. Municipal Corporations — Village Warrants — Negotiability.
    Village warrants are not negotiable instruments in such a sense that defenses available against the original payee are cut off by transfer to a bona fide holder.
    2. Same — Estoppel to Deny Liability.
    Where a village issues a warrant to a public contractor in excess of the amount due him and in excess of the special assessment against which it is drawn, the transaction is in no sense a borrowing of money, though a part of the warrant is subsequently paid and a new order given for the balance, and the village is not estopped as against a bona fide holder from raising defenses against the order on the theory that by its acts it had elected to rely on the contractor’s bond to enforce completion of the work.
    Certiorari to Wayne; Donovan, J.
    Submitted June 13, 1905.
    (Calendar No. 20,889.)
    Decided July 21, 1905.
    Mandamus by George S. Field to compel the village of Highland Park to pay or levy an assessment to cover the amount of a warrant. There was an order granting the writ and respondent brings certiorari.
    Reversed.
    This is certiorari to. review a decision of the circuit judge granting mandamus directing the village authorities to either pay or levy an assessment to cover the amount of an order or warrant in the following terms:
    “Village of Highland Park, Michigan.
    “May 28, 1901.
    “To A. G. Tyler, Treasurer:
    “ Pay to the order of Central Savings Bank two thousand sixty-one and 11 /100 dollars. For account of S. A. D. No. 16 fund. Payable on or before four months from date with. 6 ^ interest, ordered by trustees at their meeting on May 28, 1901.
    [Signed] “E. Ketcham,
    “President.
    [Signed] • “ R. Milton Ford,
    “Clerk.”
    The relator originally held this warrant as trustee for the Central Savings Bank and Brainard Rorison, and the indorser, Rorison, having paid the amount of the warrant to the bank, is now the only person beneficially interested in the fruits of relator’s proceeding. It appears that a similar time order was given March 1, 1900, to the American Contracting Company, Limited, for $2,740.15, that this order found its way into the hands of the Central Savings Bank with the indorsement of the American Contracting Company, Limited, and Rorison, that certain payments were made upon the warrant, and that the present warrant is a renewal for the balance due.
    The evidence shows that the consideration for the original warrant was work done by the American Contracting Company, Limited, in paving Woodward avenue. This work was done under a contract involving an outlay by the village of $27,887. Of this amount $26,247.60 was spread upon the assessment roll of Assessment District No. 16, and the sum of $1,600 was to be paid by the village at large for intersections. Prior to the giving of this order the village engineer reported that certain defects existed in the pavement, but it seems to have been understood that the work of repairing the pavement and completing the contract, which the testimony shows would cost something like $5,000, should be postponed until spring, and the order to the American Contracting Company, Limited, was issued. The contracting company had given a bond for the faithful performance of the work contracted. The work of remedying the defects above referred to has never been done.
    The circuit judge was of the opinion that relator was entitled to enforce this warrant, apparently upon the ground that the village had estopped itself from withholding payment from the holder of thq warrant, and must look to the bond given by the American Contracting Company, Limited, for reimbursement. He also held that the warrant was in the nature of commercial paper.

      Rowland M. Connor, for appellant.

      Orla B. Taylor, for appellee.
   Montgomery, J.

(after stating the facts). Mr. Justice Field, in Wall v. County of Monroe, 103 U. S., at page 77, in speaking of warrants in every way similar to the one under consideration, said:

“They are orders upon the treasurer of the county to pay out of its funds for county purposes not otherwise appropriated the amounts specified. They establish prima facie the validity of the claims allowed and authorize their payment. But they have no other effect. * * * The warrants being in form negotiable are transferable by delivery so far as to authorize the holder to demand payment of them and to maintain in his own name an action upon them. But they are not negotiable instruments in the sense of the law merchant, so that, when held by a bona fide purchaser, evidence of their invalidity or defenses available against the original payee would be excluded. The transferee takes them subject to all legal and equitable defenses which existed to them in the hands of such payee.”

Numerous cases have been decided in harmony with this holding, including a decision in point by this court. See Miner v. Vedder, 66 Mich. 101. See, also, School District Township of Newton v. Lombard, 2 Dill. (U. S.) 493.

Relator’s counsel .does not insist that this paper is negotiable within the law merchant, but claims that the village is now estopped, after renewing the paper in the hands of the bank, from refusing payment; that the village has elected to rely upon the bond both by the original issue of the order and by its repeated renewal. We do not consider this position tenable. It is true the village council is by section 2872, 1 Comp. Laws, given power to borrow money in anticipation of the collection of special assessments actually made, not in excess of the assessment; but not only is this order in excess of the unused portion of the assessment, but the transaction was in no sense a. borrowing of money. The issue of the first order Was an attempt to advance the paper of the village to a contractor to whom no money was at the time due. Had it brought suit upon this order, the court could not have entertained the contention that the village had borrowed money. The village had no power to lend its credit. As we have seen, had the bank undertaken to enforce the original order, it would have had to meet the same defenses which would have been open as against the payee. No new consideration has passed either from the bank or Rorison, and the rights of neither are greater than they would have been under the original warrant.

The order is reversed, with costs.

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


author: Gbant, J.

text:
    TROMBLY v. KLERSY.

    1. Girts — Delivery—Necessity.
    Where the payee of a note after it was executed told the maker that he need only pay the interest, and the debt would be canceled by will at the payee’s death, but retained possession of the note, there was no such delivery a's to constitute a gift of the note by the payee to the maker.
    2. Contracts — Consideration.
    An agreement by the payee of a note after it was executed to cancel the same at his death, by will, upon the regular payment of interest by the maker, was without consideration and void.
    Error to Wayne; Rohnert, J.
    Submitted June 13, 1905.
    (Docket No. 4.)
    Decided July 21, 1905.
    Assumpsit by Robert Trombly, guardian of the person and estate of Joseph Buhler, an incompetent, against Andrew Klersy on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    This suit is based upon a promissory note dated February 3, 1900, for $1,000, made by defendant, and payable to the order of Joseph Buhler, an incompetent person, of whose person and estate the plaintiff was duly appointed guardian. With the plea, notice was given that said note was given by Joseph Buhler to defendant upon condition that defendant “pay to said Buhler interest upon said principal sum for and during the natural life of said Joseph Buhler at the rate of five per cent, per annum, and that he (said Joseph Buhler) had canceled said principal indebtedness, as evidenced by said note, by testamentary bequest in his (said Joseph Buhler’s) last will.”
    The note was a renewal of one for the same amount executed in 1894. Defendant admitted the receipt of the money and the payment of interest. Defendant testified that in December, 1896, he had a conversation with Mr. and Mrs. Buhler, in which they said that after their death everything would be free and clear, and that all he had to do was to pay the interest; that the debt was to be canceled by will as was also another indebtedness of $13,000 from the defendant to Mr. Buhler, secured by mortgages, but that nothing of that kind was said when he borrowed the money. One witness (a Mrs. Rommeck) testified that after Mrs. Buhler’s death Mr. Buhler said to the witness “that everything Mr. Klersy owed him — the whole thing —he should pay the interest on it now, because he had to live on the interest, but after his death everything should be his; ” that Mr. Buhler made a will with such a provision in it, and that she was present at the time. The scrivener who drew the will testified that the will then drawn did not contain such a provision,' and that that will was not now in existence. There is no evidence of the execution of another will.
    The court directed a verdict for the plaintiff on the ground that there was no evidence of a gift.

      William Look, for appellant.

      De Forest Paine, for appellee.

      Rehearing denied December 30, 1905.

   Gbant, J.

{after stating the facts). The instruction was correct. Mr. Buhler retained the possession of the note, and the record is barren of any evidence tending to show that he delivered it to the defendant, or to any one for him. The delivery essential to constitute a gift was therefore wanting. If it be insisted that there was an agreement to cancel the note at his death by will, upon the regular payment of interest, such an agreement was without consideration and void. The same defense was made by this same defendant in a suit to foreclose the mortgages, and the same testimony introduced to defeat the suit; and we held that there was no gift, and no consideration for any promise to cancel the debt. 139 Mich. 209.

We find no error in the rulings of the court in excluding testimony.

Judgment affirmed.

Carpenter, McAlyay, Montgomery, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    KATZINSKI v. GRAND TRUNK RAILWAY CO.
    1. Railroads — Yard—Duty to Pence.
    The law does not require a railroad company to fence its yard.
    2. Same — Injuries to Trespasser — Warning Notice.
    Where a railroad company has posted warning notices along its yard limits notifying all persons to keep ofE the tracks, it is not liable to a child for injuries which it receives by going on a track filled with cars liable to be moved at any time, on mere proof that children are in the habit of playing on or near the tracks.
    Error to Wayne; Frazer, J.
    Submitted June 14,1905.
    (Docket No. 8.)
    Decided July 21, 1905.
    Case by Martha Katzinski, by her next friend, against the Grand Trunk Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Warsaw Place is a short street, wjth one end leading into St. Aubin avenue, and extending to the railroad yard of the defendant. In the yard at this point were four tracks, two of them being side tracks leading to various manufactories. The one next to Warsaw Place was a side track, and for a day or two previous to the accident had been occupied by a large number of freight cars, extending from Warren to Garfield avenues. Plaintiff, years of age, with several other children, was playing in this street, next to these cars. In some manner, but how it does not clearly appear, she got upon the track as an engine was coupled to the cars to take them out. One of her legs was run over and crushed. None of the employes of the defendant had any notice or knowledge that the plaintiff was upon its tracks. The railroad yards were unfenced. Defendant had posted along its right of way at the intersections of the streets the following notice :
    “Grand Trunk Railway System.
    “ Warning. — This right of way is the private property of the Railroad Company. All persons are warned against walking or trespassing on the track between stations, by doing so they run great risk and are liable to prosecution.”
    At the conclusion of the evidence the court directed a verdict for the defendant.

      Charles Kudner (George Gartner, of counsel), for appellant.

      Harrison Geer, for appellee.
   Grant, J.

(after stating the facts). The law did not require the defendant to fence its yard. Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405).

Defendant was under no obligation to station an employe at this place, or to have one upon its cars, to see that no trespassers were upon its right of way. It had done all that the law required, if it required even that, by posting warning notices along its yard limits, notifying all persons to keep off. The fact, even if it could have been shown, that persons were in the habit of going down this street and into the defendant’s yard, or that children were in the habit of playing on or near its tracks, would not tend to fasten any liability upon it, under the circumstances of this case, when its side track was filled with cars liable to be moved at any time. The case is ruled by Rabidon v. Railway Co., supra; Sturgis v. Railway Co., 72 Mich. 619; O’Neil v. Railway Co., 101 Mich. 437; Formall v. Standard Oil Co., 127 Mich. 496; Ryan v. Towar, 128 Mich. 466 (55 L. R. A. 310); MeCaughna v. Electric Co., 129 Mich. 407.

Judgment affirmed.

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


text:
    PENNER v. VINTON CO.
    1. Master and Servant — Injury to Servant — Negligence op Third Person — Liability op Master.
    The contractor for the wood work on a building is not liable for injury to his employé from negligence of an employé of the contractor for the mason work, in dropping a brick on him.
    2. Same — Safe Place to Work.
    The doctrine of safe place to work has no application where the place was safe and is merely made unsafe by the negligent act during work by an employé of a third person, for which the employer is not responsible.
    Error to Wayne; Rohnert, J.
    Submitted June 16, 1905.
    (Docket No. 24.)
    Decided July 21, 1905.
    Case by Gustav J. Penner against the Vinton Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    The owner of a building in Detroit, which had previously been used for stores and offices, was remodeling it into a theater. To accomplish this, it was necessary to remove a large part of its interior. He let a contract to do the wood work to the defendant, and an independent contract to one Fisher to do the mason work. The walls were of brick. Plaintiff, a common laborer, had been employed by the defendant for about three weeks in cleaning out debris from the interior of the building, and assisting in doing whatever there was to do. The flooring had been removed from the upper stories, and the joists taken down. At the time of the accident they were taking down the joists on the second floor. Plaintiff had helped to take them down on the third floor. He testified that Mr. Vinton told him to go up and assist in taking them down. No one was working above at this place inside the building. Plaintiff looked to see if there was any danger. Mr. Vinton told him to wait until he sent another man to assist. In a little while another man came, and the two went to work as directed. They loosened the joists, took them out, and lowered them to other workmen on the floor below. Plaintiff suddenly fell, striking on a pile of brick about 12 or 15 feet below. His physician testified that there was an abrasion between the top and side of the head. ‘1 It was not a very large cut. It was more like a contusion.” The principal injury was to his back.
    Plaintiff described the accident as follows:
    ‘ ‘ I had been working up there several minutes, about 10 minutes, before I got hurt with something. I can’t say how many minutes, but several minutes. I do not know what hit me. I don’t know what it was like, whatever hit me. I have no idea of what hit me. It knocked me senseless. I can’t say whether it was hard or soft. Whatever hit me, it knocked me senseless. I don’t know what happened then. The people told me I fell.”

      Plaintiff introduced two other witnesses, both of whom testified that plaintiff was in the act of lowering one or two joists with a rope, and that while doing so he fell; he and the joists coming down together. One'of them testified as follows:
    “The way they came down with the joists together — ■ the one he had his feet on — my idea was, that his joist got loosened. It might have. The bricks in the wall might have given way and let both joists down. I don’t know. I can’t swear to that. I noticed just a little blood on the head, or the side of the head, when he got out of it.”
    On cross-examination he testified as follows:
    ‘ ‘ As far as I could judge, I thought at the time, the way the two joists came down together, that the bricks between them- — they were about 10 or 12 inches apart — that the brick between the joists loosened, the way they came down together, that the joists loosened, and he came down. Further than described, I do not know. I can’t tell whether anything fell or not.”
    The testimony of the other witness was substantially the same. Above where the plaintiff was at work were openings in the brick wall, which the masons were filling, but whether they were actually engaged at work there at that time is not entirely clear. The defendant introduced no testimony.
    The negligence charged in the original declaration is the failure to provide a safe place for plaintiff to work. At the close of the testimony plaintiff’s attorney, by permission of the court, amended his declaration, alleging:
    “ That the defendant’s workmen, in the regular course of their employment, were engaged in the stories above, tearing down the walls of said building, and that the plaintiff in this case was sent in there to remove certain joists, and that in the place in which he was sent, at the time he was sent, there was no condition to indicate to him that anything was to be thrown down at the time, and while he was so engaged upon these joists, in an attempt to loosen them and lower them down, in obedience to the orders of the defendant, the workmen from above, in the course of their work, allowed or permitted, or in some way unknown to the plaintiff, a brick or something of a hard nature was precipitated upon him, knocking him from the joists, and severely and permanently injuring him.”
    The court directed a verdict for the defendant.

      Oscar M. Springer, for appellant.

      Keena & Lightner, for appellee.
   Grant, J.

(after stating the facts). The instruction was correct, because:

1. The negligence which caused the plaintiff’s injury, if any, was that of an employe of Mr. Fisher, over whom the defendant had no control. The wall was not being torn down, but being built up. Defendant is not chargeable with negligence that any of these bricklayers might commit in throwing or dropping a brick from the building.

2. The doctrine of a safe place has no application here. The place was safe, and was only made unsafe by the negligent act of a third party, for which the defendant was not responsible.

Judgment affirmed.

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


text:
    FARRELL v. DANBURY.
    1. Appeal and Error — Bill op Exceptions — Setting Forth Evidence — Sufficiency.
    Where the trial judge certifies that the bill of exceptions contains the substance of all testimony given on the trial which affects the exceptions noted, the court on error will assume that the record contains all the evidence affecting an exception as to the sufficiency of the evidence to sustain the findings, though the testimony is in an abbreviated narrative form.
    2. Chattel Mortgages — Right to Redeem — Evidence—Sufficiency.
    On the issue whether a mortgagor in a chattel mortgage had a year in which to redeem from the mortgage, evidence examined, and held, not to warrant a finding that he had such time.
    Error to Wexford; Chittenden, J.
    Submitted June 16, 1905.
    (Docket No. 34.)
    Decided July 21, 1905.
    Trover by James Farrell against Nicholas V. Danbury. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      F. O. Gaffney, for appellant.

      F. F. Sawyer,‘for appellee.
   Carpenter, J.

This is a suit for the conversion of a horse and buggy. April 22, 1902, plaintiff, who owned the property in suit, gave to one Robert Garrow a bill of sale of the same to secure the payment of about $80. A few days thereafter plaintiff’s brother, who was duly authorized to act for plaintiff, made an arrangement with defendant whereby defendant paid the loan to Garrow, and received an assignment from him of the bill of sale. February 27, 1903, defendant sold said property under an alleged foreclosure of his bill of sale. Plaintiff claims that this sale was a conversion, because it took place before the expiration of the year in which plaintiff had a right to redeem. The sole dispute in this case is whether plaintiff had a year in which to redeem from said mortgage. The case was tried by the court without a jury, who found as a fact that plaintiff had that right, and therefore rendered a judgment in his favor. Defendant contended in the court below and contends here that there was no evidence in the case warranting said finding. Was there such evidence?

Plaintiff contends that we cannot determine that question on this record, because, the testimony being “in an abbreviated narrative form,” we cannot be certain that it is all returned to this court. The trial judge certified that “this bill of exceptions contains the substance of all testimony given upon said trial which in any manner affects the exceptions therein noted.” We think we are warranted in saying that no testimony introduced in the court below affecting the exceptions under consideration was omitted from the record. See Atlas Mining Co. v. Johnston, 23 Mich. 46; Hitchcock v. Burgett, 38 Mich. 501. We will therefore proceed upon that assumption.

It cannot be said that the agreement under which the defendant advanced the money and took the bill of sale gave plaintiff a year in which to redeem. That agreement was made between defendant and plaintiff’s brother, who was authorized to act as plaintiff’s agent. The terms of this agreement were known only to defendant and plaintiff’s said brother. Said brother did not testify, and defendant was therefore the only witness sworn who had knowledge of that agreement. He testifies that by that agreement plaintiff was to have 30 days, and not a year, in which to redeem. If this testimony of defendant is discredited, there is nothing to show that the original agreement gave plaintiff a year in which to redeem. If it is credited, it certainly did not give him a year. Plaintiff cannot, therefore, base his claim that defendant gave him a year to redeem upon the agreement under which defendant advanced the money. He must base that claim upon an agreement made between himself and defendant after defendant had advanced it. The only testimony which it can be claimed warrants the inference that such an agreement was made is the testimony of plaintiff himself. He testifies that the defendant, after he had advanced the money and obtained a bill of sale, “ said that he and my brother had had some talk to the effect that if I would secure him with a chattel mortgage on the rig, I could have one year’s time;” that he (plaintiff) thereupon did execute such a chattel mortgage, and tendered it to defendant; that defendant took it one morning, and said that he would look it over; that the following morning defendant told plaintiff that he would not accept that mortgage, and demanded a mortgage in which plaintiff must redeem within six months; that plaintiff assented to this. Subsequently defendant refused to take any mortgage at all, and insisted on plaintiff at once paying the note which defendant had given to a third party, a Mrs. Alvin, to obtain the money advanced by him for plaintiff; that plaintiff assented to this, but either through the fault of Mrs. Alvin or defendant he was unable to pay this note; that defendant told him that he would keep the rig if the note was not paid, and later — about a week after the chattel mortgage had been received by him — defendant returned the chattel mortgage, which plaintiff accepted. In addition to this, there is testimony of admissions made by defendant respecting the arrangement made with plaintiff. This testimony corroborates plaintiff, but it justifies no inference not warranted by his testimony. We therefore sufficiently dispose of that testimony when we dispose of plaintiff’s testimony. The most that can be inferred from plaintiff’s testimony is that he and defendant had once agreed that he (plaintiff) should have one year in which to redeem from defendant’s bill of sale — which was, in legal effect, a chattel mortgage — and that subsequently plaintiff, at defendant’s instance, consented to rescind that agreement. The voluntary rescission of this agreement placed the parties in the same position that they would have been if the agreement had never been made; that is, their rights were covered by the agreement made between defendant and plaintiff’s brother, and, as already pointed out, there is no evidence to show that that agreement was violated by the defendant in making the sale at the time he did. It results from this reasoning that we must sustain defendant’s contention that there was no evidence warranting the inference that plaintiff had a year’s time in which to redeem from defendant’s mortgage.

Judgment reversed, and a new trial ordered.

Moore, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    HYMAN v. ANN ARBOR RAILROAD CO.
    Eminent Domain — Railroads—Embankment—Closing Access— Damages — Liability.
    A person buying land in a platted portion of a city in reliance upon the fact that the streets platted thereon gave him a way to and from the land, is entitled to recover damages from a railroad company, which, with knowledge of the facts, constructs an embankment on its right of way adjacent to the land, and on the same plat, in such manner as to close the means of access to the land, irrespective of whether the streets were ever legally accepted by the city.
    Error to Wexford; Chittenden, J.
    Submitted June 16, 1905.
    (Docket No. 33.)
    Decided July 21, 1905.
    Case by Herman Hyman against the Ann Arbor Railroad Company for damages to land caused by obstructing a street. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. W. Whitney {Alexander L. Smith, of counsel), for appellant.

      E. F. Sawyer, for appellee.
   Moore, C. J.

Plaintiff obtained a judgment of $350 against defendant. The case is brought here by writ of error. The record shows: That in 1882 there was recorded in the office of the register of deeds the G. A. Mitchell plat of the southwest quarter of section 3, T. 21 N., R. 9 W. That this plat was approved by a resolution of the common council of the city of Cadillac at a meeting held July 10, 1882. The east half of the southeast quarter of the southwest quarter of section 3 is within the lines of this plat. Some time after this plat was recorded, the plaintiff bought the east half of the southeast quarter of the southwest quarter of section 3, and entered into the possession of it. The plat shows two streets — Lester street and Carmel street — both of which run to the land of plaintiff. Before buying this land the plaintiff was shown by Mr. Farrar, the agent of the owner, the location of these streets, and their relation to the land. The only means of ingress and egress to and from this 20 acres was by means of these streets. In 1887 the defendant procured a right of way across that portion of section 3 that was adjacent to the line of plaintiff’s land, up to which the two streets named came. Later the defendant built an embankment about 12 feet high on its right of way, crossing the two streets at right angles, and practically closing them against plaintiff, making it impossible for him to reach his 20 acres. It promised him to arrange a crossing later so he could reach his land, but it failed to do so, and later he caused an approach to be made at his own expense, so he could drive his cattle back and forth and take light loads over the crossing. Nearly 10 years later the defendant raised its embankment so it is now 18 or 20 feet high, and fenced its right of way, so as to completely prevent plaintiff from reaching his land. The above facts are practically undisputed. The brief of counsel for appellant is not very helpful. The following excerpt from it is an illustration:

“ It seems a waste of time to review the numerous decisions of this court wherein it has held an acceptance of the street by the authorities is necessary to bring them under municipal control.”

No authorities are cited. As nearly as we are able to understand the propositions of counsel, they all revolve around the idea that, unless the city had opened, repaired, and improved the streets shown by the plat, the plaintiff could not recover. He attempted to show by the city clerk elected in 1895, from the record book of the council for the years 1888 to 1889 and for the years subsequent thereto, whether they contained any resolution as to opening, repairing, or improving the two streets in controversy. This was objected to as incompetent and immaterial, and the objection was sustained. This witness testified on cross-examination that the city at the intersections of the streets erected posts carrying signs with the names of the streets upon them. Mr. Hyman was allowed to testify that there was a post at the intersection of Whaley and Carmel streets carrying a sign with the name “Carmel Street ” upon it. Error is assigned as to these rulings of the court.. Also to that portion of the charge of the judge relating to the effect of making and recording a plat approved by a resolution of the common council. Error is also assigned upon the refusal of the court to direct a verdict for defendant.

We deem it unnecessary to enter upon a discussion of these assignments of error. It has already appeared that Mr. Hyman bought his land in a platted portion of the city, relying upon the fact that streets platted thereon gave him a way to and from his land, enabling him to get some beneficial use therefrom. It also appears that defendant, getting a right of way through land in the same plat, and knowing what the situation was, arbitrarily closed all means of access to this land. In any view of the case, plaintiff was entitled to recover damages. The important question in the case was, How much was the plaintiff entitled to recover ? There is no complaint made to the portion of the charge relating to the question of damages, and no assignments of error in relation thereto.

Judgment is affirmed.

Carpenter, Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    COWAN v. SARGENT MANUFACTURING CO.
    1. Principal and Agent — Powers of Agent — Representations of Agent — Effect.
    The agent of a corporation engaged in the manufacture of reclining and folding chairs, revolving bookcases, hospital supplies, and invalid goods, who is placed in charge of its branch store, with power to sell its goods, has no authority to bind the corporation by the purchase from another of ordinary household goods, delivered to third persons, though he represents to the seller that he has authority.
    2. Same — Ratification.
    There is no ratification of the unauthorized act of an agent where it is not shown that any one acting for the principal knew of the act, except the agent.
    Error to Muskegon; Russell, J.
    Submitted June 16, 1905.
    (Docket No. 27.)
    Decided July 21, 1905.
    Assumpsit by J. Fred Cowan against the Sargent Manufacturing Company for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      L. K. Soper, for appellant.

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

This is an action of assumpsit to recover for goods sold and delivered, to the amount of $190.05. It was commenced in justice’s court, in which court the plaintiff recovered a judgment for the full amount of the claim. The case was appealed to the circuit court, and tried before the judge without a jury. He rendered a judgment in favor of the defendant. The case is brought here by writ of error.

The circuit judge made findings of fact and conclusions of law which s.tate the questions involved in the case. They are as follows:

“1. The plaintiff is a New York manufacturer of bedroom furniture, and is assignee of the claim of S. G. Estabrook & Co., of New York, manufacturers of parlor and library furniture.
“2. The defendant is a Michigan corporation engaged in the manufacture of reclining and rolling chairs, invalid stands, revolving bookcases, and hospital supplies, at Muskegon, Michigan; having a salesroom for their goods in New York City, used as a distributing warehouse and retail store. H. E. Hughson was a salesman for the defendant, and in charge of said New York store.
“3. Said Hughson visited the store of plaintiff about October 8, 1902, in company with two lady friends, introduced himself as agent for the Sargent Manufacturing Company, and ordered three brass beds, three springs, two hair mattresses, and one mattress made over, and two pillows, for a total price of $141.25, and directed them to be, and they were, delivered to one Mrs. Beebe, in Brooklyn. This is one of the claims in suit.
“4. Prior to December 20, 1902, Hughson went to the store of S. G. Estabrook & Co., plaintiff’s assignor, told them he was manager of the Sargent Manufacturing Company’s store, ordered parlor furniture delivered to a private address in Brooklyn, and on said December 20th again visited their store, and ordered a parlor chair, the price of which was $49, and which was, by his direction, delivered to a Mrs. F. L. Ingram, in Brooklyn. This is the other claim in suit.
“5. Neither plaintiff nor plaintiff’s assignor had any knowledge concerning the authority of Hughson to bind the defendant by such purchases, other than his own representations, and they made no inquiry to ascertain whether he had such authority or not.
“6. Said Hughson had neither express nor implied authority to bind the defendant by the purchase of the goods in question.
“7. The fact of prior purchases of goods from plaintiff or plaintiff’s assignor and the giving of checks therefor by Hughson was never known to defendant, and his acts in that regard were never in any manner ratified by it.
“ From the foregoing facts the court finds the following conclusions of law:
“ 1. Said Hughson had no authority to bind the defendant by the purchase of the goods for the recovery of which this suit was brought.
“2. The defendant did not undertake and promise in manner and form as the plaintiff has in his declaration complained against it.
“ 3. The said defendant should be, and it is hereby, awarded its costs of this suit against the said plaintiff, to be taxed, and that it have execution therefor.”

Amendments were proposed to these findings and conclusions, which the judge refused to make. Much of the testimony was taken by deposition in New York. Some of it was taken in open court. Upon the trial, much of it was excluded because it was not shown that Mr. Hughson had authority to make the purchases upon behalf of defendant. For the purposes of this case, and in reaching our conclusion in relation thereto, we have considered all of this testimony as though it was properly in the case. After considering it all, we have no hesitancy in saying it falls far short of showing any authority on the part of Mr. Hughson to bind the defendant for the purchases made here.

The defendant is a corporation with a manufacturing plant at Muskegon. It had a branch house in New York for the purpose of marketing the goods manufactured in the Muskegon factory. Mr. Hughson was in charge of this branch house. The stock of goods carried, and which Mr. Hughson was authorized to sell, consisted of folding chairs, revolving bookcases’ hospital supplies, and invalid goods, for sick people. The Sargent Manufacturing Company did not deal in brass beds, springs, mattresses, pillows, or parlor furniture, such as armchairs. It had none of these goods in its branch house in New York. Giving the fullest force possible to the testimony offered on the part of the plaintiff, it shows that plaintiff made three sales at plaintiff’s store to Hughson under the following circumstances: Hughson visited, plaintiff’s store in New York about October 8, 1902, in company with two lady friends, and ordered three brass beds, three springs, two hair mattresses and one mattress made over, and two pillows, for a total price of $141.25. These goods were never delivered to defendant, or in its store. It was arranged at the time Hughson ordered them that they were to be delivered to a Mrs. Beebe, in Brooklyn. Plaintiff says this was done to save cartage. These goods are part of plaintiff’s claim. Mrs. Beebe paid Hughson for these goods, and he receipted for them in the name of the defendant. On May 25, 1901, Hughson ordered one iron bedstead, springs and mattress made special. These goods were delivered to Walter Cleveland, 659 Bedford avenue, Brooklyn, by direction of Hughson, and paid for by defendant’s check, drawn by Hughson. On July 29, 1902, Hughson came to plaintiff’s store and ordered a brass bed from stock. This was delivered at defendant’s store, and was paid for on November 5, 1902, by a check signed, “Sargent Manufacturing Company, Mr. Hughson, Manager.” On December 20, 1902, Estabrook & Co. sold at their place of business one armchair for $49, which was delivered at 273 Sixth street, Brooklyn, to Mrs. F. L. Ingram. The dealings were with Mr. Hughson, who gave the directions as to place of delivery of the chair. This is the other item of plaintiff’s claim. On June 7, 1899, a five-piece parlor suit, for $82.50, was ordered by Hughson, in person, at Estabrook & Co.’s store, and was by his direction delivered to F. Morris, 959 Bedford avenue, Brooklyn; also on May 22,1901, a parlor suit of four pieces, at $52.25, was ordered by Hughson, in person, at Estabrook & Co.’s store, and was by his direction delivered to Walter Cleveland, 659 Bedford avenue, Brooklyn. Estabrook & Co. never had any dealings with the defendant, other than those mentioned. They satisfied themselves when they sold the first bill that Hughson was manager of the defendant, from the fact that he had “ a card or something ” with him. At least, “ Hughson gave them to so understand.” Their salesman who sold these goods never saw Mr. Hughson at any other time than when these three purchases were made, nor in any other place, except in their (Estabrook '& Co.’s) store. No representations were made by anybody to them, other than by Mr. Hughson himself, that he was manager of the defendant. The last two items were paid for by checks signed the same as the others.

It is argued that, as Mr. Hughson was in charge of the New York house, plaintiff was authorized to act upon his statement that he had authority to make the purchases. The trouble with the argument is that the articles purchased were not within the scope of the business of the defendant in New York. The business it was conducting there was the selling of articles made by it in Muskegon. It would hardly be claimed that sales to Mr. Hughson, by a jeweler, of diamonds, or, by a manufacturer, of a touring car, would bind defendant. The principle of law is well settled that—

“The authority of a general agent is not unlimited, but must necessarily be restricted to the transactions and concerns within the scope of the business of the principal, and if he exceeds the authority the principal is not bound.”

1 Am. & Eng. Enc. Law (2d Ed.), p. 990, and the many cases there cited.

See Rice v. Peninsular Club, 52 Mich. 87; Hurley v. Watson, 68 Mich. 531; Stilwell-Bierce & Smith-Vaile Co. v. Paper Mill Co., 115 Mich. 35.

It is contended that a ratification of the acts of Hughson can be inferred from the fact that bills for the purchases hereinbefore mentioned were sent to the New York house, and were paid for with its checks. The trouble with this contention is that it is not shown that any one acting for defendant, except Hughson, knew he was purchasing in the name of the defendant articles outside of the scope of its business, and paying for them with the company funds.

Judgment is affirmed.

Carpenter, Grant, Montgomery, and Ostrander, JJ., concurred.


author: Moore, O. J.

text:
    SHERWOOD v. RYNEARSON.
    Mandamus — Propriety—Drain Tax — Uncompleted Drain.
    Mandamus is not a writ of right and is properly denied where relator, by demurrer to respondent’s answer, admits that his application for mandamus to compel township officers to lay a drain assessment before the board of supervisors is founded on a drain order issued to him as payment of the full contract price for a drain, that the drain is not completed, and is of no benefit to the township.
    Certiorari to Berrien; Coolidge, J.
    Submitted June 20, 1905.
    (Calendar No. 21,018.)
    Decided July 21, 1905.

      Mandamus by Jerry Sherwood to compel Isaiah Rynearson, township clerk, and George L. Stevens, supervisor, of the township of Three Oaks, to lay an assessment roll before the board of supervisors. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Gore & Harvey, for relator.

      Lawrence O. Fyfe, for respondents.
   Moore, O. J.

The relator filed his petition in the circuit court' praying that a writ of mandamus issue commanding the respondents, who are respectively the clerk and supervisor of the township of Three Oaks, to take the statutory steps to lay the Close Drain special assessment roll before the board of supervisors. The respondents answered. The petitioner demurred to the respondents’ answer. The court overruled the demurrer. The relator brings the proceedings to this court by certiorari.

He claims that proceedings were taken by the county drain commissioner of Berrien county for the purpose of cleaning out, widening, deepening, extending, and rebuilding the “Close Drain,” so called, affecting the townships of Three Oaks, Galien, and Weesaw, in said county; that the usual proceedings were taken, and the drain completed; that “as the work progressed orders were drawn in anticipation of the taxes to be levied and collected on account of such drain; that among these orders was an order in favor of Jerry Sherwood, the relator, for $1,950. He further claims the townships of Galien and Weesaw paid the taxes levied upon them; that the taxes levied upon the township of Three Oaks, and the various descriptions of land located in said township, were not paid because the clerk refused to certify the special assessment roll to the supervisor of the township. The relator demanded of the clerk that he certify said assessment roll as directed by the statute, and requested the supervisor, when such tax should be certified to him, to lay the same before the board of supervisors. This each of said respondents refused to do until the drain had been constructed.

It is claimed by relator that the question of law at issue is whether the clerk of a township, when the drain commissioner files an assessment roll with him, can go hack of such filing and the matters appearing thereon, and determine for himself, judicially or otherwise, whether the drain proceedings are regular; and if, in his judgment, the proceedings are deemed to be irregular, whether he can refuse to certify the said assessment roll to the supervisor, as commanded by section 4356 of the Compiled Laws of Michigan of 1897, or whether such action is purely ministerial, and the clerk bound to act in any event. Counsel for relator insist that:

“ The duty of the clerk to certify to the supervisor-, and of the supervisor to lay the matter before the board, is statutory. No discretion is lodged in either. Neither of these officers have the power nor the right to pass upon the regularity of drain proceedings. They must simply perform the duty imposed upon them by the statute ”— citing Union School Dist. v. Parris, 97 Mich. 593, 596; Laubach v. O'Meara, 107 Mich. 29; City of Jackson v. Jackson County Treasurer, 117 Mich. 305; Scholtz v. Smith, 119 Mich. 634; Board of State Tax Com’rs v. Quinn, 325 Mich. 128; Smith v. Titcomb, 31 Me. 286; People v. Halsey, 37 N. Y. 344.

On the part of the respondent it is claimed in its answer that the order in question, with the others previously issued, makes the full contract price for the construction of the drain, and that the drain is not completed. Counsel’s position is stated in the brief as follows:

“This is an effort to secure a mandamus to compel the levying of a tax to pay a drain order which the relator admits by his demurrer was never earned, and for a drain which he also admits is not completed, and which, in its incomplete state, does the township of Three Oaks absolutely no good; * * * that the relator does not come into court with clean hands; that he is seeking to take advantage of his deliberate wrong and willful misconduct, in that he has left the drain unfinished to such an extent that the township of Three Oaks does not reap any benefit from it.”

Counsel for respondent say that the writ of mandamus is a discretionary one, and that the court, using its discretion, will not grant a mandamus when it aids a relator-who is not entitled to the money represented by the order which he seeks to have paid; citing People v. Regents of the University of Michigan, 4 Mich. 105; Pack v. Supervisors of Presque Isle Co., 36 Mich. 380; Sherburne v. Horn, 45 Mich. 160; Post v. Township Board of Sparta, 63 Mich. 325; Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (8 L. R. A. 851); Tennant v. Crocker, 85 Mich. 339; Nugent v. Erb, 90 Mich. 279; Board of Sup'rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 388; Van Akin v. Dunn, 117 Mich. 421.

We think this case falls within the cases cited by the respondent. The answer, for the purposes of this case, must be taken as true. If true, it shows relator has not been harmed. It presents such a situation as to justify the refusal of the trial court in the exercise of his discretion to issue the writ.

The order of the court below is affirmed.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


author: McAlvay, J.

text:
    PEOPLE v. HUBBARD.
    Indictment and Information — Statutory Offenses — Resisting Officer — Language of Statute — Sufficiency.
    An information in the language of the statute (§ 11327, 3 Comp. Laws) providing punishment for resisting an officer in a lawful attempt to preserve the peace is insufficient where it fails to state facts showing that the officer was engaged in the lawful performance of his duty.
    Error to Van Burén; Carr, J.
    Submitted June 22, 1905.
    (Docket No. 180.)
    Decided July 21, 1905.
    Roswell Hubbard was convicted of resisting an officer and sentenced to pay a fine of $50.
    Reversed and defendant discharged.

      Barnard & Lewis, for appellant.

      Bussell M. Chase, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was convicted before the circuit court for Van Burén county upon a charge under section 11327, 3 Comp. Laws, with having knowingly and. willfully resisted, opposed, and assaulted an officer, and upon such conviction was sentenced to pay a fine of $50, and in default of payment of said fine to be imprisoned in the county jail for a period of 60 days, “ or until such fine is sooner paid.” The' information in this case is founded upon that clause of section 11327, 3 Comp. Laws, which provides:

“ If any person shall knowingly and willfully * * * obstruct, resist, oppose, assault, beat, or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace in their lawful acts, attempts and efforts to maintain, preserve, and keep the peace, every person so offending shall 'on conviction thereof be punished,” etc.

The information charges that respondent:

“To wit, on the 15th day of April, at the township of Antwerp, in the county of Van Burén, aforesaid, did knowingly and willfully resist, oppose, assault, and beat one Frank A. Robinson, he, the said Frank A. Robinson, being then and there a person authorized by law to maintain and preserve the peace, to wit, a deputy sheriff of said county of. Van Burén, and he, the said Frank A. Robinson, being then and there engaged as such deputy sheriff in his lawful acts, attempts, and efforts to maintain, preserve, and keep the peace.”

Upon the trial respondent objected to the introduction of any evidence under the information for the reasons: First, the information charges no offense known to the law; second, the information contains no allegations of any breach of the peace; third, the information contains no statement of facts constituting any specific offense.

The errors relied upon are based upon exceptions taken to the action of the court in overruling these objections; also upon the denial of a motion in arrest of judgment for the reason that the verdict of the jury found respondent guilty as charged; that three distinct offenses are charged, and the verdict did not show of which one of these offenses respondent was found guilty. ■

The record discloses that respondent was tried upon the charge of knowingly and willfully assaulting an officer while in the lawful discharge of his duty, and the charge of the court submitted the case to the jury upon that charge alone. If these first objections were well taken, it will be unnecessary to consider the other errors assigned. The charge in the information is drawn in the exact words of the statute. While it is true in many cases that a statutory offense is sufficiently described in the words of the statute, yet this statute requires that the officer resisted or assaulted must he engaged as such in the lawful performance of his duty. No specific allegations are made as to what such lawful performance of his duty was. The statement is made that the officer was “ then and there engaged in his lawful acts, attempts, and efforts to maintain, preserve, and keep the peace.” This statement is a conclusion, and not a statement of facts of which respondent was entitled to be informed. People v. Hamilton, 71 Mich. 340. It is a general rule that in all pleadings, and particularly in criminal cases, statements which are conclusions are not permissible. In Robison v. Miner, 68 Mich. 659, Justice Campbell said:

“ But a charge of breach of the peace, and nothing more, is not a definite charge, and the arrest made on such a charge could lead tono trial.”

No cases are found by us or called to our attention, in prosecutions for resisting an officer in the execution of process lawfully issued, where it has been held not necessary to set forth specifically in the information the nature of the process and the doings of the officer under it at the time of the resistance. No different rule can be applied in the case of an assault upon an officer while engaged in his lawful acts to maintain, preserve,- and keep the peace. The case of People v. Tompkins, 121 Mich. 431, does not overrule the Hamilton Case, for the reason that the lawful performance of duty in which the officer was engaged at the time of the assault was specifically set forth, and the question raised was that the information failed to allege that respondent knew he was an officer, or that he knew that he was at the time in discharge of his. duty. These questions are not raised in the case at bar. This information charged no offense under the statute.

The conviction is set aside, and the respondent discharged.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.