text:
    McCREADY v. NICHOLSON.
    1. Trial — Conduct of Court — Criticism; of Counsel.
    The complaint of counsel for defendant that the trial judge was unfair in his rulings and unduly criticized defendant’s counsel, held, not justified by the record, which shows that the trial judge was impartial in his criticism and interested only in the proper conduct of the trial.
    2. Brokers — Commissions — Procuring a Lease — Trial — Instructions — Procuring Cause.
    In an action by a broker for commissions on the procuring of a lease for defendant’s building, where the defense was that defendant himself was the procuring cause, it was not error for the trial judge to refuse an instruction that if the lessee called defendant up with reference to said lease because he had seen the sign on the building, he then became a customer secured by defendant, since he might have called defendant up and still be the customer of plaintiff.
    S. Same — Procuring Cause — Revealing Name of Customer— Test.
    Where the broker has not an exclusive listing, the owner reserving the right to lease the premises himself, the true test in determining the broker’s right to a commission is as to whether he was the procuring cause of the lease, and it is immaterial whether or not he revealed the name of his customer to the owner.
    Error to Wayne; Hunt (Ormond F.), J.
    Submitted January 14, 1921.
    (Docket No. 15.)
    Decided March 30, 1921.
    Assumpsit by Byron R. McCready against Louis A. Nicholson for a commission on the lease of a building. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cale & Kelly, for appellant.

      Munro & Powell (Leo F. Covey, of counsel), for appellee.
   Stone, J.

This is an action in assumpsit in which the plaintiff seeks to recover certain commissions from the defendant, claimed, to be due the plaintiff for obtaining and furnishing a tenant for the defendant of certain premises of the defendant, or premises under his control. In January, 1918, the plaintiff was a real estate broker in the city of Detroit, specializing in leases of. property for business and manufacturing purposes. On or about the 8th day of January, 1918, the defendant, having had his attention called to the plaintiff’s business, called upon the latter at his office and then and there entered into the following writing or agreement, known in the record as Exhibit 1:

“Detroit, Mich., Jan. 8, 1918.
“If Mr. B. R. McCready will bring me a satisfactory tenant to lease my property located at N. W. comer of Monroe and Beaubien, I agree to pay him the regular real estate board commission.
(Signed) “L. A. Nicholson.”

Upon the trial it was the claim of the plaintiff that pursuant to said agreement he did furnish a tenant, one Joseph C. Green and his partner, doing business as the Modern Pattern & Machine Company, for the defendant for said above described premises, and that said tenant entered into a lease for said premises with defendant for a term of 7% years from and after July 1, 1918, which lease provides a rental of $500 per month during the term thereof, and that the regular real estate board commission upon sueh lease was the sum of $810. The plea was the general issue, and upon the trial of the case a clear issue of fact was presented as to whether the obtaining of this tenant had been by the plaintiff, or, on the other hand, by the independent efforts of the defendant, for it seems to have been conceded that it was understood between the parties that if the defendant himself leased the building no commission was to be paid.

The plaintiff claimed upon the trial that he was instrumental in procuring this lease by having repeatedly interviewed Mr. Green, one of the tenants, and describing the property and interesting him in the same. It was the further claim of the plaintiff that he.promptly informed the defendant of the name of the proposed tenant and detailed to him particularly the fact that the proposed tenant was Mr. Green and his partner, doing business as the Modern Pattern & Machine Company. It appears that after the making of Exhibit 1 a fire occurred in the building proposed to be rented and the making of the lease was somewhat delayed by reason of the fire, and the necessity of making certain repairs; but it was the claim of the plaintiff that, upon being notified by the defendant that the premises were in proper condition for occupancy, he informed defendant on June 6th of the name of the said tenant, and of his willingness to comply with the terms proposed.

On the other hand, it was the claim of the defendant upon the trial of the case that the plaintiff never mentioned to him the name of Mr. Green of the Modern Pattern & Machine Company, and that Mr. Green came directly to him, the defendant, and that the lease was made directly with Mr. Green entirely independent of, and outside of, the agreement relied upon by the plaintiff. Upon learning of the making of this lease, which finally was made and signed on the 11th day of June, 1918, the plaintiff, on the 5th day of July thereafter, made a demand for his commission, which demand was refused and this suit was brought.

As indicating the claim of the plaintiff, he testified upon the trial as follows:

“On the 27th day of May I simply told' Mr. Nicholson that I had a client waiting for his property at that time, and I had not mentioned the Modem Pattern Works, who had called me on the first day of April, specifying a factory of this nature, and I also talked previous to that time to Mr. Green on the day of April 1st. When I told him (the defendant) that the Modern Pattern Works were the parties that I was trying .to get to take the building, he said, Well, go to it. It is a fine property.’
“Q. That was just a short time before the lease was made, was it?
“A. Yes, sir; that was the last conversation, and about the 6th day of June.”

The defendant, denying that the plaintiff had ever disclosed to him the name of the proposed lessee, testified as follows:

“Mr. MeCready never talked to me about Mr. Green, only after the lease was signed he came up to my office. He called me up two or three different times and I called him up two or three different times and he never told m© about Green. He told me once that he had an offer, but it was not satisfactory to me; I don’t know who it was for. He never told me he had any particular person. He told me once he had a party who would give me $350. I don’t remember how much, but it was not satisfactory and I didn’t accept it. He did not give me the name of that person; after the lease was signed he called me up first and told me — he ought to have some commission, and I told him, ‘What for?’ He said, ‘For the renting of my property on Monroe avenue.’ I said, ‘You didn’t make the lease; you didn’t bring any client.’ Then he said, T will come over and see you and I will tell you I did, and show you I did.’ He came up to my office and he was trying to prove to me Mr. Green was his client in the deal, and I told him, T will see Mr. Green anyhow,’ and I know in addition, before I saw him, that Mr. Green called me up himself.”

It is undisputed that Mr. Green finally, and on June 11, 1918, dealt directly with the defendant and the lease was then made, but the plaintiff claims that he was the procuring cause of the lease. The plaintiff testified:

“Mr. Nicholson told me that if he leased the building himself, he would not pay me a commission.”

There was much conflict in the testimony, especially between that of the plaintiff and the defendant. The learned circuit judge submitted the question to the jury as one of fact. Referring to the written agreement signed by the defendant the court in construing the term, “Bring me a satisfactory tenant,” said:

“I charge you that the true and proper meaning, so far as you are concerned, means that he will discover and bring to his attention, or cause to bring to his attention, you see, a lessee, a prospect that is satisfactory to him as a tenant, or lessee of his property. And as it is admitted by the defendant that a man whom the plaintiff claims he discovered and showed this property to, and afterwards a lease was entered into between Nicholson and the man that the plaintiff claims now, remember — I am not deciding whether he did, but claims that he was the procuring cause of this lease being entered into; plaintiff claims that he was the procuring cause. I am going to submit that question entirely to. you. If you find that the plaintiff Mc-Cready was the procuring cause of that lease, that was admittedly entered into between the .Modern Pattern Machine Company by a preponderance of the evidence, he is entitled to his commission. It is immaterial whether he worked long or short, or no matter how little or how much he did, that is not a question for you to determine. Just, Was he the procuring cause of that lease? If you find that he was, plaintiff is entitled to recover. * * * Fairly considered now, was the plaintiff the procuring cause of this lease? If you find fairly and deliberately that he was, he is entitled to recover. * * * The burden is on the plaintiff to satisfy you.”

The jury having found a verdict for the plaintiff for the full amount of his claim, judgment was entered thereon and the defendant has brought error. There are 34 assignments of error. Nearly all of them relate to the rulings of the court in the admission and exclusion of evidence, and substantially error is assigned upon all the testimony on behalf of the plaintiff. The peculiarity of the case is that counsel for appellant in their brief mainly complain of the manner in which the trial court conducted the trial and of divers remarks made by the court during the introduction of testimony; and upon this subject, which is common to all of the assignments of error referred to, counsel' say:

“We believe the controlling points in this case are the conduct and remarks of the trial judge, and the examination of witnesses by the trial judge. * * * It is apparent from even a casual examination of the record, that the trial court exceeded his right and his duties in the matter from the moment the first witness was sworn, and that the trial court practically acted as attorney for the plaintiff in this cause from the inception of the trial.”

We have very thoroughly examined this record, as it is not a large one, and we fail to find that counsel are warranted in their criticism of the trial court. There was much persistence of counsel in the urging of objections, many of which were technical and contending for a very narrow construction of the contract. For instance, upon the examination in chief of the plaintiff, the following occurred:

“Q. Did you send to Mr. Nicholson a man that leased this property?
“A. Yes, sir.
“Counsel for Defendant: Just a minute. That is objected to, your honor, please. The contract calls for bringing to Mr. Nicholson a satisfactory tenant in so many specific words, and the answer to that question of sending a man would be immaterial.
“The Court: I think I will overrule the objection. You have an exception, whether he brought or sent a man — supposing he took him up there in his automobile, is that what you call bringing him? Must he take him up physically?
“Counsel for Defendant: He must' not only take him there, but be present when he is brought in the premises.
“The Court: No, that is overruled, that construction. You have an exception.
“Q. Did you communicate with Mr. Green of the Modem Pattern Works after you got this contract from Mr. Nicholson, with reference to this property ?
•‘A. Yes, sir.” •

Counsel for defendant complain of unfairness, and undue criticism of the defense by the trial court. We do not think this claim is justified by the record. The court in the conduct of the case criticized plaintiff’s counsel as much as it did defendant’s, apparently being anxious to have the case proceed in the interest of the proper conduct of a trial. It would profit nobody to discuss all, of these excerpts from the testimony upon which error is assigned because they are all claimed to point in the direction which we have indicated.

There was a number of requests to charge preferred by defendant’s counsel. The only ones to which our attention is called in the brief are numbers 1 and 2. They are as follows:

(1) I charge you that if you find that Mr. Green called Mr. Nicholson up, with reference to leasing the premises in question because he had seen the sign on the building, he then became a customer secured by Mr. Nicholson, and the defendant is not liable.
“ (2) I charge you that if you find that the plaintiff did not tell Mr. Nicholson who the proposed lessee of the building was, the plaintiff was not the inducing cause of the lease, and the plaintiff is not entitled to recover.”

We do not think the court erred in declining to give the first request to charge. Mr. Green may have called Mr. Nicholson up with reference to leasing the premises because he had seen the sign on the building, and still Mr. Creen may have been brought to the attention of the defendant by the plaintiff, notwithstanding that fact.

Did the trial court err in refusing to give defendant's second request to charge, in vie# of the language of the general charge above quoted? There are cases, especially in Minnesota (see Quist v. Goodfellow, 99 Minn. 509 [110 N. W. 65]) which, if followed, would indicate that the request should have been given.

The question, in this precise form, seems to be a new one in this State. There will be found a full discussion of the subject in a note to the case of Hoadley v. Savings Bank, 71 Conn. 599, found in 44 L. R. A. 321, also in a note to Quist v. Goodféüow, supra, found in 8 L. R. A. (N. S.) 153. The cases referred to and discussed in these notes are too numerous to be even cited here. We cite, however, the following typical cases: Lloyd v. Matthews, 51 N. Y. 124; Sussdorff v. Schmidt, 55 N. Y. 319; Butler v. Kennard, 23 Neb. 357 (36 N. W. 579); Adams v. Decker, 34 Ill. App. 17; Graves v. Bains & Woodward, 78 Tex. 92 (14 S. W. 256).

In Adams v. Decker, supra, the court said:

“It is wholly unimportant whether appellee (defendant) knew that his purchaser was sent by appellant (plaintiff) or not. It is sufficient if that was the fact, and he was not misled by the agent.”

In the Graves Case the first headnote reads:

“If an agent be authorized to make a sale of land and a purchaser is procured by him, he is entitled to his commissions, and it is of no consequence that the owner did not know of the fact and made the sale himself.”

The true test is, Was the broker the procuring cause of the sale or lease? If so, he is entitled to his commission.- It must be said that the great weight of authority, outside of Minnesota,. is to the effect that if a broker, even though he did not have the exclusive agency, was in fact the procuring cause of the purchase or lease, and would otherwise be entitled to commissions, he will not be deprived thereof by the fact that the owner at the time of the sale or leasing did not know of the broker’s instrumentality in procuring the purchaser or lessee. We are disposed to accept this doctrine as the law, and to hold that the trial court did not err in refusing to give said request.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Steeke, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    STEVENS v. WAKEMAN.
    1. Estoppel — Deeds — Plaintiep’s Consent to Deed to Wie® Estopped Him: eromc Asserting Title.
    In a suit to amend a deed, plaintiff claiming that same was taken in the name of his wife alone without his knowledge and consent, when it should have been deeded to them jointly as tenants by the entireties, evidence examined, and held, insufficient to support plaintiff’s contention; the record clearly showing that he not only consented, but directed that the deed be made in his wife’s name, and for over seven years acquiesced therein.
    2. Same — Equities—Deeds—Purchase Pbioe.
    Where the wife had deeded said land to her children before commencement of suit, in view of the fact that she deeded other property in exchange therefor, and in addition paid large sums of money on the purchase price, the equities of said children are superior to those of plaintiff husband, although a small part of the purchase price may have been paid out of joint earnings.
    3. Husband and Wiee — Land Contract — Estates by Entireties.
    The assignment of a land contract to a husband and wife created an estate by the entirety.
    4. Estoppel — Real Estate — Conveyance by Estoppel.
    Where plaintiff stood by and directed that the legal title to land to which he and his wife jointly held a land contract be conveyed to Ms wife, and acquiesced therein for over seven years, and until after her death, his claim that if it be now held that he is estopped from asserting title it will be equivalent to holding that real estate may be conveyed by estoppel, cannot be sustained, since he never held the legal title.
    5. 'Same — Conveyance by Parol — Frauds, Statute oe.
    Plaintiff’s claim that Ms action in directing that deed be made to his wife was a conveyance by parol and therefore void because in violation of 3 Comp. Laws 1915, § 11975, cannot be sustained, since his oral request was followed by execution of the deed in which he acquiesced 'for over seven years.
    Appeal from Oakland; Rockwell (Kleber P.), J.
    Submitted January 19, 1921.
    (Docket No. 130.)
    Decided March 30, 1921.
    Bill by Alvin H. Stevens against Harriet Wakeman and others to set aside a deed. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Pelton & McGee (George A. Cram, of counsel), for plaintiff.

      Perry & Lynch, for defendants.
   Stone, J.

This case is here upon the appeal of the plaintiff from a decree dismissing his bill of complaint. By his bill of complaint and the amendments thereto, plaintiff alleges that on March 7, 1911, he intermarried with one Mary A. Kimball, a widow", who died November 17, 1918, and who was the mother of the defendants herein. He claimed that soon after said marriage and on March 11,1911, he and his wife, as assignees of Ambrose Hoyt and wife, purchased certain lands in the city of Pontiac by taking an assignment of a land contract from the said Hoyt and wife, who had purchased by land contract from one William Crombie and wife. He alleges that he fully paid the consideration named in the contract, but when the deed was taken from the said Crombie and wife on December 19, 1911, it was taken in the individual name of his wife, Mary A. Stevens, without his knowledge and consent, which operated as a fraud upon him, inasmuch as they were tenants by the entireties under the said land contract. He alleges that thereafter and by deeds bearing date July 3, 1918, his said wife purported to convey the premises to the defendants herein, without his knowledge or consent, and he claims that, by reason of the tenancy aforesaid, the title should have, vested wholly in him as survivor. He prays that the deed from Crombie and wife may by decree be modified so as to contain his name as one of the grantees therein, as the husband of Mary A. Stevens; for the reason that said deed was inadvertently, fraudulently, and by mistake, executed without his name being inserted therein as one of the grantees. He further prays that the deeds from Mary A. Stevens to the defendants be declared void and that they be canceled, and that he may be decreed to be the absolute owner of the premises as the survivor of himself and wife.

Defendants by answer make general denial of the allegations of fraud and mistake and, among other things, aver that the deed was taken from Crombie and wife, the original vendors in the land contract, in Mary A. Stevens’ individual name with full knowledge and consent of the plaintiff; that for a number of years after taking* the deed she assumed to manage, lease and control the premises in her individual right, with the full consent and acquiescence of the plaintiff. Further, that by Mary A. Stevens deeding said premises to her children (the defendants herein) they acquired no greater interest than they would have inherited, she having died intestate.

The learned circuit judge who heard the case below made written findings of fact. After a careful reading of the record we are of the opinion that the facts found are fully supported by the evidence. The substance of such finding was as follows:

Plaintiff and his wife at the time of their marriage were upwards of 50 years of age and both had children by former marriages, who had attained their majority. At the time of the marriage plaintiff was a man of very limited means, and he had obtained from his future wife a loan of $375, which he secured by a mortgage on a parcel of land owned by him in the township of Highland. Stating the facts in chronological order, it appears that on April 2, 1910, Ambrose S. Hoyt and wife purchased by land contract the property here in question of William F. Crombie and wife for $1,850. On March 11, 1911, pursuant to a preliminary agreement, plaintiff and his wife, Mary A. Stevens, purchased the contract of the Hoyts, taking an assignment thereof, the consideration being $2,500, Hoyts’ equity being $1,100, leaving a balance on same of $1,400 due Crombie and wife, the original vendors. 'Mrs. Stevens deeded to Hoyt and wife a parcel of land owned by her in the township of Hart-land, valued at $800, to apply upon the purchase price of said land contract, Hoyts’ remaining equity being paid by notes given by the plaintiff and wife. The following September the plaintiff deeded his Highland property, upon which his wife had a mortgage, to one Russell of Detroit, plaintiff's wife joining in the deed and reciting therein that she discharged said mortgage as mortgagee. Of the selling price plaintiff retained $150 and paid his wife $150, leaving a balance due her on the unpaid mortgage of something like $190.

On the 19th day of December, 1911, plaintiff and his wife went to the American Savings Bank at Pontiac and conferred with Arthur F. Newberry, the cashier, and discussed with him the making of a deed, and negotiated a loan incident to taking a deed from Crombie and wife. Mr. Newberry drew the deed to Mary A. Stevens, as he testified he was directed by both the plaintiff and his wife to do. The plaintiff, together with a notary by the name of Merz, went to the home of Mr. Crombie and wife and had the deed executed, the plaintiff returning the executed deed to Mr. New-berry at the bank. The securing of the loan was then perfected, and Mrs. Stevens executed a mortgage on the premises and a note to the bank for $1,650, in order to take up the contract with the Crombies. It was in evidence that the deed and mortgage were both placed on record, and on the 6th day of January following the plaintiff called at the register of deeds’ office and got the recorded deed and delivered the same to his wife. Subsequently the mortgage to the bank was paid by Mary A. Stevens and discharged. From the time of plaintiff’s marriage in 1911 until the death of his wife in November, 1918, they occupied, as husband and wife, a portion of the premises continually and kept boarders and roomers a great portion of the time. Mrs. Stevens leased a part of the premises, executing written leases therefor, which in one or two instances were witnessed by the plaintiff. It was in evidence that in one or two instances he referred parties inquiring about renting to his wife, stating that he had nothing to do with the matter. Insurance on the premises was maintained during this entire period in the name of Mrs. Stevens. On July 3,1918, Mrs. Stevens deeded the property to her children, the defendants herein, and had the deeds placed in escrow with the American Savings Bank, for delivery at her death. After the grantor’s death they were accordingly delivered to the defendants and placed on record.

The circuit judge concluded his findings of fact in the following language:

“During the entire time covering the period Of something over 7 years while Mrs. Stevens held the record title and assumed active control over the property, which fact was known to plaintiff, I do not find that he assumed to own or make any claim to any one, of any portion of the property from his wife, but on the contrary appears to have consented to his wife paying for the property and taking the same over in her own name.”

In the light of this entire record we have no doubt that the plaintiff knew and consented to the entire transactions with reference to taking title to the premises. It is incredible that he and his wife should have gone to the bank together and directed Mr. Newberry to draw the deed to Mary A. Stevens, that he would carry the deed to the home of the Crombie to be executed, see the same executed, would return it after execution in his presence to Mr. Newberry, and, knowing of the mortgage by his wife, that he should receive the deed after recording and carry the same to his wife, without knowing the contents of the deed. He appears to be a, man of fair intelligence and to have had more or less to do with the making of papers relating to real estate. It will be borne in mind that Mrs. Stevens had deeded property, valued at $800, to the Hoyts to apply upon the purchase price of the land contract. She discharged the mortgage upon the Highland property without having been repaid the loan to her husband, save $150. Mr. Newberry testified positively that Mrs. Stevens personally paid the note and mortgage. There is some claim that the note and mortgage were paid from the joint earnings of the parties in connection with the boarding and rooming house, but the evidence does not warrant the claim made by the plaintiff that he paid it himself. There is undisputed evidence in the record that Mrs. Stevens had inherited from her mother’s and also from her brother’s estates upwards of $1,000, which it is fair to presume went toward the payment of the note and mortgage. Certainly there would have been nothing inequitable in having the title placed in the name of Mary A. Stevens in view of the amount of money and property invested by her in the transaction, and we think the circuit judge was justified in finding that the plaintiff knew of the deed when it was given, knew that it conveyed property from Crombie and wife to Mrs. Stevens, that he not only consented, but directed the same to be done. Any other view would be inconsistent with his continued silence for a period of upwards of seven years. The learned circuit judge seems to have disposed of the case upon the ground of estoppel, and cited the case of Heyn v. O’Hagen, 60 Mich. 150, and quoted:

“The principle is well established, that if a man either by word or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not lawfully have been done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.”

The trial court also cited a case decided by the supreme court of Kentucky — Rowe v. Epling, 163 Ky. 381 (173 S. W. 801) — the headnote of which reads as follows:

“Plaintiff, who sold a tract of land to defendant, and to avoid the expense of putting his own deed on record, delivered it to Ms grantor, who at his request conveyed the land direct to the defendant, who was put in possession and paid the entire purchase price, was thereby estopped from an action to recover the land on the ground that the sale was by parol and void.”

The court below also cited 39 Cyc. p. 1350, as to the right to modify and change a land contract and the method of its fulfilment orally, and quoted:

“Contracts for the sale of land may be modified, or new contracts substituted therefor by subsequent agreement between the parties, and modification may be implied as well as by express agreement in respect of changes wMch may be made by parol. Thus contracts may be modified by extending or shortening the time of payments, by extending the time for closing the sale, by changing the place of payment, the amount of the purchase price, or the description of the land to be conveyed, or by substitution of a third person in the place of the purchaser.”

See cases cited! in notes. Also on page 1357 the following is cited:

“The implied agreement to rescind may consist in an abandonment of the contract by one of the parties assented to or acquiesced in by the other. * * * Conduct on the part of both the vendor and the purchaser wMch is inconsistent with the continuance of the contract of sale constitutes rescission by abandonment.”

The relevant section of the statute of frauds, being section 11975, 3 Comp. Laws 1915, reads as follows:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person there' unto by him lawfully authorized by writing.”

It cannot be said that the defendants are bona fide purchasers of the premises, but in view of the money and property paid by their mother we do not hesitate to say that their equities are superior to those of the plaintiff. It is, in our judgment, a question of superiority of equities. Slatkin v. Schumer, 210 Mich. 513, 523.

We are of the opinion that plaintiff is right in claiming that the interest of plaintiff and wife in the premises, under the assignment from Hoyt and wife of the Crombie contract, was that of tenants by the entireties. Auditor General v. Fisher, 84 Mich. 128, 132; Zeigen v. Roiser, 200 Mich. 328, 341.

We think that plaintiff has failed to sustain the burden of proof to show that there was either fraud or mistake in the transaction whereby the premises in question were deeded to his wife, and we think that the deed was so made, by and with his full knowledge and consent, and that he fully acquiesced in the arrangement and transaction until after her death, more than seven years thereafter. Should he now be heard to question it? It is urged by counsel for plaintiff that to hold that he should not will be to hold that real estate in Michigan can be conveyed by estoppel. We think not. It is not claimed by defendants that plaintiff conveyed the premises to his wife. It should be borne in mind that the legal title to these premises was in Crombie and wife.' It is the claim of defendants that plaintiff stood by, and with full knowledge of the facts not only permitted but consented to the transfer, by deed, of this legal title to his wife, and that he acquiesced in this transfer for many years. The evidence fully sustains this claim.

Should plaintiff be permitted to claim now that the transfer of title was invalid? We think not. But it is urged by counsel for plaintiff that the interest of a vendee cannot be transferred, assigned, released or even surrendered by parol, and the following cases are cited: Grunow v. Salter, 118 Mich. 148; McEwan v. Ortman, 34 Mich. 325; Whiting v. Butler, 29 Mich. 122, 144; Stewart v. McLaughlin’s Estate, 126 Mich. 1. We think that these cases can be readily distinguished from the instant case by reason of the acts and conduct of plaintiff.

In Whiting v. Butler, Mr. Justice Cooley said:

“If Drury had a legal title, it would be perfectly correct to say that he could not have parted with it by mere waiver. But as we have already seen, he had no legal title. The very reason for requiring the sheriff’s deed is in order to pass a title which otherwise would remain in the execution debtor. Until the purchaser receives it, he holds a certificate of sale which entitles him to demand a conveyance unless the moneys specified therein are paid by a day named. But although, on the view already taken, it is of no importance in this case, it would be contrary to all analogies, if the right to his conveyance could not be waived at any time before the conveyance was actually made.”

In Stewart v. McLaughlin’s Estate the language of the second headnote is as follows:

“A parol surrender of a land contract, not followed by a conveyance by the vendor, or by any other act on his part inconsistent with the contract rights of the vendee, will not amount to a surrender by operation of law, so as to prevent the vendor from recovering on a guaranty of payment of the contract.”

We conclude therefore that whether decision be based upon an estoppel, a waiver, or an assignment or surrender by operation of law, by plaintiff’s acts and conduct in the premises he is not entitled to relief, and the result reached by the court was the correct one, and the decree below is affirmed, with costs to the defendants.

Steers, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred. The late Justice Brooke , did not sit.


text:
    ST. CECELIA SOCIETY v. UNIVERSAL CAR & SERVICE CO.
    1. Appear and Error — Equity—Pleading—Amendment op Bill in Supreme Court.
    Where plaintiff’s bill to establish title to a strip of land adjoining its building, used as a driveway, alleged record title with possession, there being no allegation of title by adverse possession or by prescription, and the trial court ruled that while plaintiff’s deeds did not embrace said strip, it was unnecessary to amend the bill, in view of the prayer for general relief, the bill should be treated on appeal as amended in this court to conform with the testimony, the whole question of the extent and nature of the use by plaintiff having been gone into and been considered by the court,, without objection or claim of surprise.
    2. Easements — Adverse Possession — Distinction.
    The elements necessary to give rise to a prescriptive right are the same as those of title by adverse possession, with the exception that it does not have to be exclusive.
    3. Same — Adverse Possession — Acquiescence.
    Plaintiff’s continuous use of a strip of land as a driveway, when occasion required, for over 25 years, with the acquiescence of the adjoining owner, held, sufficient to establish in plaintiff a prescriptive right to drive over said land, although Insufficient to. establish title by adverse possession.

      i. Same — Definition.
    An easement is a privilege or advantage in land, without profit, existing distinct from the ownership of the soil.
    5. Same — Open, Notorious, Continuous Use Notice to Pub- (
    CHASES.
    "Where the use of the strip of land as a driveway by plaintiff was so open, notorious, and discoverable as to be notice to defendant when he purchased the adjoining property, he took his title subject to such easement to the same extent that his grantor was bound thereby.
    6. Appeal and Ebbob — Rights op Appellee.
    Where plaintiff has not appealed, it can claim no greater rights than it was granted by the court below.
    Appeal from superior court of Grand Rapids; Dunham (Major L.), J.
    Submitted January 21, 1921.
    (Docket No. 109.)
    Decided March 30, 1921.
    Bill by the St. Cecelia Society against the Universal Car & Service Company and others to establish title in a driveway. From a decree for plaintiff, defendants appeal.
    Modified and affirmed.

      Knappen, Uhl & Bryant, for plaintiff.

      Clapperton & Owen, for defendants.
   Stone, J.

The bill of complaint herein was filed in the superior court of Grand Rapids, in chancery, to establish plaintiff's title to a strip of land 6.81 feet in width adjoining its club house on the north. The club house is located on the east side of Ransom avenue, between Fulton and Fountain streets, in the city of Grand Rapids. The plaintiff alleged in its bill that it was seised of the property in dispute, being in block 30, Campau plat, and purchased and went into possession thereof on or about July 24, 1892, and had ever since been in possession; that defendants claimed certain rights in and to said strip of land, and prayed that defendants might be decreed to have no right, title, or interest in said land, and prayed for an injunction to restrain the defendants from building on, or in any way interfering with plaintiffs possession and use thereof. It may be said, as claimed by defendants’ counsel, that the issue raised by the pleadings was that of record title with possession. There was no allegation on the part of plaintiff that it claimed title by adverse possession or by prescription. There was, however, in the bill, a prayer for genera! relief. At the conclusion of the testimony at the hearing, plaintiff made a. motion to amend its bill of complaint by adding the claims of title by open, hostile, actual, visible, exclusive, notorious and adverse possession thereof, and title by prescription. A preliminary injunction was issued, and the hearing resulted in a decree for plaintiff, the court below finding that the plaintiff had acquired title to the strip of land in question by adverse possession; but did not have record title thereto, and denied plaintiff’s motion for leave to amend its bill of complaint. It appeared in evidence that the original surveys and plattings of the lots between Fulton street and Fountain street, made about 1833, and recorded in the land office at Kalamazoo, comprised two plats, viz.: Block 1 of Bostwick & Company’s addition, containing lots 1, 2, 3, and 4 north of Fulton street, Campau plat of block 30 joining Bostwick & Company’s addition on the north, consisting of lots 1, 2, 3, and 4, and following that block 26, consisting of lots 1, 2, 3, 4, and 5, extending to Fountain street. There has existed from an early day confusion and uncertainty as to the surveys and the boundary line between Bostwiek & Company’s addition and Campau plat, and also as to the land covered by said lots of block 26 of Campau plat. Upon this record we are of the opinion that the court below did not err in holding that the deeds to the plaintiff “did not embrace the strip of land 6.81 feet in width north and south, adjoining the building of the plaintiff on the north,” and we shall not review the evidence upon that subject.

It is the claim of the plaintiff that, if it should be held that its deeds did not give to it the strip of land in dispute, still that it has, ever since 1892, claimed title, by color of title by virtue of its deed, to said strip of land adjoining its building on the north, and has been in actual, continued, visible, distinct, notorious, exclusive and hostile possession thereof; has used the same, and has acquired title thereto by adverse possession, which adverse possession ripened into title in fee simple, at the latest, in the year 1909, before defendant Louis Barth purchased the adjoining property.

That independently of color of title, it immediately after the completion of its building in 1894 went into possession of a driveway adjoining its building on the north, which driveway was approximately 6.81 feet in width; that the plaintiff claimed title thereto, and had ever since been in hostile, visible, exclusive, notorious, actual, continual, distinct and adverse possession thereof, and was then seised thereof in fee simple.

That immediately after the construction of said building in 1894, plaintiff commenced driving over a strip of land adjoining said building on the north; that said strip of land was approximately 6.81 feet wide; and that the plaintiff claimed the right to drive over said strip, and had ever since continuously done so, and thereby, had acquired by prescription the right to do so.

It seems proper at the threshold of the case to consider the question of practice raised by the defendants. It is urged that plaintiff must recover, if at all, upon the case it has made in its bill, and that a court of equity cannot grant relief based upon a case, or issue, substantially different from that stated in the bill, and a number of cases are cited in support of the claim. It should be borne in mind that a motion was seasonably made to amend the bill in the particulars mentioned. It was denied, seemingly, upon the ground that such amendment was not deemed necessary by the trial court, in view of the prayer for general relief. The record shows that the testimony bearing upon the nature of the use of the disputed strip of land was taken without objection. The case seems to have been heard upon the merits, and the whole question of the extent and nature of the user by the plaintiff was gone into and was considered by the court, and no surprise seems to have been claimed upon the hearing.

In the case of City Bank & Trust Co. v. Hurd, 179 Mich. 454, at p. 464, Justice Steere, speaking for this court, said:

“Amendments as to matters germane to the case can be allowed at any time in chancery suits to conform with the proofs, protect the substantial, equitable rights of the parties, and secure the ends of justice— even in the appellate court. Morrison v. Mayer, 63 Mich. 238; Babcock v. Twist, 19 Mich. 516; Seymour v. Long Dock Co., 17 N. J. Eq. 169. The amendment proposed by complainant was germane to the controversy and should have been allowed in order to reach equitable and complete results.”

See, also, Charlet v. Teakle. 197 Mich. 426, 430.

Under such circumstances technical rules of pleading and practice should not be applied in the appellate eourt, where it appears that a case has been fully heard upon its merits in the court below. We are of opinion that, under the circumstances here disclosed, the bill should be treated as amended in this court to conform with the testimony. This course would seem to be equitable under all the circumstances of the case, thereby avoiding future litigation.

Coming to the merits of the case, we have read this record very carefully, and it seems to us that it appears by a great preponderance of the evidence that immediately after the completion of the plaintiffs building in 1894 it commenced to use the strip of land in question as a driveway, and as an exit from the building, and that such use has been continuous as occasion required during all of the intervening years; that this right was claimed by the plaintiff and does not seem to have been questioned by the predecessors of the defendants until about the time of the filing of the bill of complaint in this case. The former owner of the premises upon the north, a Mr. Morgan, who sold to the defendant Louis Barth, on the 5th day of March, 1910, in his deposition, testified that he understood that the plaintiff had been driving over the property. He testified, among other things, as follows:

“I understood that they made claim to this, but I never inquired into their ownership, and in fact I, myself, claimed ownership to the six feet in question and did nothing to waive the right I had in this six feet.”

It must be said that he was cognizant of the facts, and his testimony shows that he knew of the plaintiff’s use of the land. Charles B. Kelsey, a witness for the defendants, testified that he had lived in Grand Rapids since 1881 and was familiar with the property. Upon his cross-examination he testified as follows:

“I am familiar with the St. Cecelia property, more or less. I have been familiar with it from the time the building was built and prior to that, even. My wife was a. very active member of the society in the early days. I understood that the society claimed to own a driveway on the north of the building. My understanding is that they have used the driveway. During the time I was living there, I saw them use it. I think that the making of the claim by them was coincident with the building of the building. They claimed it at the time of laying the cornerstone in the fall of 1893. I could not say as to whether or not there is a well-defined driveway, whether the wheel marks were well defined or not. I simply knew they have claimed the driveway and used it.”

The defendant Louis Barth, among other things, testified as follows:

“Q. And have you known since you first went there and after you purchased it of the driveway into that property?
“A. There was a driveway joining the St. Cecelia building.
“Q. Whether or not that has been during that time an open driveway?
“A. Yes, it was open.
“Q. Was that a driveway into the Morgan property which you purchased?
“A. Yes, sir.
“Q. And whether it was used in connection with the Morgan property on which it was located?
“A. Yes, sir; whatever was unloaded there, wood, coal, etc., was taken over the driveway, because the woodshed was in the rear of the Morgan building. I have owned it since 1910. I knew of the property from about 1890. * * * I have known of the St. Cecelia people driving in the north side of the building to unload pianos. I have known them to unload coal from the front of the building. They do that now. I have seen them carry in a piano there once, and a harp.”

Numerous witnesses of the plaintiff testified to the driveway and the nature and extent of its use. One who had been president said:

“There is a driveway, a regular driveway built there, which the St. Cecelia built at the time they built their own sidewalk,, for use as a driveway. It extends down to the curb, down to the street.”

Nearly a score of witnesses testified to the continuous use of this driveway. There was a door upon the north side of the building through which pianos and scenery were taken upon the platform of the club house, and the testimony of a number of witnesses was to the effect that when there was a large crowd in the building this door was opened, and, steps having been built, was used as an exit into the driveway for people who were leaving the building.

In view of this entire record, and of the evidence showing the nature and character of the continued use of this strip of land by the plaintiff since the erection of its building, and the acquiescence therein of the owner of the adjoining premises, it seems to us that it should be held that the plaintiff has acquired a prescriptive right to drive over the land in question. It may be said that for over 25 years it has driven over it when occasion required, and it has continuously claimed the right to do so. The elements necessary to give rise to a prescriptive right are the same as those of title by adverse possession, with the exception that it does not have to be exclusive. It would seem that all the elements necessary to an easement by prescription are present in this case, and that the court below should have granted that relief to the plaintiff.

Under the evidence we are unable to find that the plaintiff has had such adverse possession of this property as would entitle it to absolute ownership in fee with the right to fence the same and occupy it for any and all purposes to the exclusion of the defendants; but we do think that it has an easement by prescription, in the nature of an appurtenant easement attached to the premises of the plaintiff.

In 9 R. C. L., title “Easements,” in section 2, it is said:

“An easement has been defined as a liberty, privilege or advantage in land without profit, existing distinct from the ownership of the soil. It is a right which one person has to use the land of another for a specific purpose.”

In section 33 appears the following:

“To establish an easement by prescription there must be: First, continued and uninterrupted use or enjoyment; second, identity of the thing enjoyed; third, a claim of right adverse to the owner of the soil, known to and acquiesced in by him. The accepted rule is' that the user must be exercised by the owner of the dominant tenement, and must be open, peaceable, continuous, and as of right. It is sometimes declared that it must also be exclusive, but the term ‘exclusive use,’ does not mean that no one may use the way except the claimant of the easement. It means no more than that his right to do so does not depend on a like right in others.” * * *

Section 34:

“The correct rule as to continuity of user, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. An omission to use when not needed does not disprove a continuity of use, shown by using it when needed, for it is not required that a person shall use the easement every day for the prescriptive period. It simply means that he shall exercise the right more or less frequently, according to the nature of the use to to which its enjoyment may be applied.”

It would seem from the evidence that the use of this strip of land by the plaintiff was so open, notorious, continuous, and discoverable, as to be notice to the defendant Louis Barth when he purchased the property adjoining. This being so, he took his title subject to such easement to the extent that his grantor was bound thereby, and the same may be said as to the other defendants. Murphy Chair Co. v. Radiator Co., 172 Mich. 14, 28. Upon the subject of easements generally, see Hoag v. Place, 93 Mich. 450 (18 L. R. A. 39); Williams v. Barber, 104 Mich. 31; Township of Oneida v. Allen, 137 Mich. 224; Bean v. Bean, 183 Mich. 379, 395; Berkey & Gay Furniture Co. v. Milling Co., 194 Mich. 234. Upon the subject of exclusive use, see 2 Tiffany Modern Law of Real Property, § 449. Also First National Bank v. Vanden Brooks, 204 Mich. 164, 178. In that case we said:

“It cannot be said that, because other persons than this defendant used this stairway, his use was not exclusive. In Schmidt v. Brown, 226 Ill. 590 (80 N. E. 1071, 11 L. R. A. [N. S.] 457), it was held that because other persons besides the claimant of a right of way used it, did not prevent the claimant’s user from being-exclusive, since exclusive use means that his right does not depend on a like right in others; the court citing Washburn on Easements, § 44, p. 164; Jones on Easements, § 272; Bennett v. Biddle, 150 Pa. 420 (24 Atl. 738); McKenzie v. Elliott, 134 Ill. 156 (24 N. E. 965).”

We think it should be held that the plaintiff has a prescriptive easement appurtenant to this property, to the use of the strip of land in question as a driveway.

In its motion to amend the bill of complaint the plaintiff’s claim was to more than 6.81 feet in width upon the east end of the driveway, but as the plaintiff has not appealed we think it can claim ho more in width than it was granted by the court below. The decree below will be modified so as to give this prescriptive right to the plaintiff, instead of absolute ownership by adverse possession. That decree will be modified in this particular and as thus modified affirmed. In view of the respective claims of the parties here, no costs will be awarded to either party in this court.

Decree below modified and affirmed.

Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PERKINS v. HOLSER.
    1. Evidence — Direct - examination — Cross-examination — Credibility of Witness.
    In weighing the testimony of a -witness, the whole testimony, both direct and cross, should' be considered together.
    2. Negligence — Automobile — Contributory Negligence — Question for Jury.
    In an action for personal injuries caused to plaintiff while crossing a public street by being struck by defendant’s automobile, evidence held, to present a question for the jury as. to plaintiff’s contributory negligence.
    Error to Oakland; Rockwell (Kleber P.), J.
    Submitted January 13, 1921.
    (Docket No. 2.)
    Decided March 30, 1921.
    Case by William R. Perkins against LeRoy D. Holser for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Patterson & Patterson (Vandeveer & Foster, of counsel), for appellant.
    A. L. Moore, for appellee.
   Stone, J.

This is an action on the case to recover damages for a personal injury of plaintiff. The plaintiff, a resident of the city of Pontiac, on June 14, 1919, received an injury as, a result of being struck by an automobile owned and operated , by the defendant. South Saginaw street is the main thoroughfare of said city, and runs north and south in the center thereof, and contains a double street car track. Raeburn court is a street starting on South Saginaw street, and extending eastward therefrom. It does not extend west of South Saginaw street. On the northeast corner of South Saginaw street and Raeburn court was a grocery store known as Kroger’s. Diagonally across the street, that is somewhat south and west from Kroger’s, store, was an ice cream parlor (sometimes called a fruit store in' the record) belonging to one Nichols. It appears that on the day stated, at about 10:30 o’clock in the forenoon, the plaintiff, a man 77 years old,i left his home on Raeburn court, and proceeded westwardly to the Kroger grocery. Shortly thereafter he left said grocery store and attempted to cross South Saginaw street diagonally to the Nichols’ store. It does not appear just how wide South Saginaw street is. It does appear that it is a paved street, with a curb. As the plaintiff left the curb on the east side of South Saginaw street he looked in both directions — north and south — and saw two automobiles coming from the north on the west side of the street, and headed south toward Detroit. He waited for these automobiles to pass before attempting to cross, and failed to observe the third automobile which was apparently following the second, which third automobile, being that of the ¡defendant, struck him as he was leaving the westerly rail of the west or south-bound track, resulting in serious injury. It appears that when the automobile struck the plaintiff it threw him some distance ahead of the ear, and again ran into him and struck him the second time. Plaintiff testified that, although he had had a cataract removed from his right eye, at the time of the injury he had good vision in his right eye, that he was alert, had good hearing, and that the day was bright and sunny.

Suit having been instituted, the negligence charged in the declaration was that defendant drove his car in excess of 15 miles per hour; that he did not drive with his car under control; that he did not sound the horn or give a reasonable warning of his approach; that he did not drive under such control as would permit its being -stopped in time to avoid striking pedestrians lawfully on the street, and that he had an unobstructed view of the street ahead of him, and had ample opportunity to- have seen the plaintiff had he been driving with his automobile under control. The undisputed evidence was that the car, as it approached the intersection of South Saginaw street and Raeburn court, was moving at 25 miles per hour; that no alarm was sounded and that it was running at such a high rate of speed that after striking the plaintiff the car skidded, and struck plaintiff, who had been thrown ahead of the car, a second time before it was stopped.

At the close of the plaintiff’s case defendant moved for a directed verdict on the ground of plaintiff’s contributory negligence, which motion was denied and the case was submitted to the jury without any testimony being offered on behalf of the defendant. The verdict returned for plaintiff was in the sum of $775. There is no claim that the damages were excessive, if plaintiff was entitled to recover at all. Judgment having followed the verdict, the case is here upon writ of error, and the sole error relied upon is that plaintiff’s contributory negligence, as matter of law, was so established by the record that the court should have taken the case from the jury and directed a verdict on behalf of defendant.

In the language of appellant’s brief:

“It will be noted that it is the claim and contention of the defendant and appellant that under the proof the plaintiff failed to meet that burden which rested upon him of showing freedom from contributory negligence, but that, on the contrary, his testimony disclosed, as matter of law, conduct establishing negligence on his part. * * * Defendant takes the position that, notwithstanding all that plaintiff’s proof established, he should not be held and bound to respond in damages because the plaintiff was guilty of contributory negligence as his own testimony disclosed. There was a slight variance between the testimony given by plaintiff on direct-examination and cross-examination, but defendant maintains that plaintiff is bound by his adverse testimony, although it must be viewed in its most favorable light in passing upon the question as to whether or not plaintiff was guilty of contributory negligence.”

So much depends upon the testimony of the plaintiff that we shall quote therefrom at considerable length. Plaintiff, after stating his age, and residence in Pontiac for 20 years, testified that he came to Kroger’s store for some things, and as they did not have everything he wanted he started to cross the street to the ice cream parlor; that this latter place was opposite and a little south from Kroger’s store; that as near as he could tell he was struck by the automobile near the west street car track; that he saw two automobiles going toward Detroit and that after they had passed he started to go to the opposite store; that before starting he looked both ways, but he did.not know anything about defendant’s car until it struck him. He described how he was thrown and that the car struck him a second time, and that the car when it stopped was on his hand and that the car had to be backed up before he could be removed. He described his injuries in detail; also testified that he had had a cataract removed from his right eye, and that after it had been removed, for a short time, he could see just as well out of that eye as he ever could.

Upon cross-examination he testified as follows:

“Q. Now, just before you were struck by the automobile you saw two. cars pass going towards Detroit?
“A. Yes, sir.
“Q. Did you, before crossing, look to the north and to your right?
“A. Sure, I looked both ways.
“Q. You looked both ways?
“A. -Yes, sir.
“I was about four feet from the curbstone when one car passed me and I stopped and another passed me. I had only a little ways to go to cross the street. I think Saginaw street from curb to curb is between 40 and 50 feet. I was walking in a southwesterly direction as I crossed the street. I can hear the steam from that radiator from a distance of about ten feet.
“Q. Now, when you started across Saginaw street to go over to the ice cream parlor, you reached the first street car track all right, didn’t you?
“A. When I started to go over the second street car track—
“Q. Well, to get to the second street car track you had to cross the first one?
“A. Yes, sir.
“Q. And you did cross the first one?
“A. Yes, sir.
“Q. Then you crossed the space between the two street car tracks?
“A. I was not betwixt the two street car tracks at all, after I crossed the first I was between the street car track and the curbstone, the last curbstone on the other side where I was going.
“Q. You had to cross—
“A. I was betwixt the street car track and the curbstone, in the middle of the last street car track.
“Q. What was the distance between the curb, the west curb and the first rail of the south-bound track?
“A. What was the distance?
“Q. Yes.
“A. About eight feet from the last car iron. It was about eight feet as near as I can tell.
' “Q. That is, from the last rail over to the curb was possibly eight feet?
“A. Yes, from the curbstone over to the first street car track, outside iron, not the inside, the outside iron next to the curbstone.
“Q. How far had you gone from the last rail towards the curb before you were struck?
“A. Well, I was stepping from the last iron from the street car track to get onto the curbstone when I was struck.
“Q. You had just left the car track and was going towards the curb when you were struck, then, is that correct?
“A. No, it ain’t. I told you straight. I told you I went across the street car track that is next to my place, then I went across them two and I got on the other two down about the last one and I was about the middle of the last one or pretty near a little over the middle when the car struck me on the curbstone.
“Q. Where were you standing watching when you last looked towards the north to see if the automobile was coming?
“A. I was standing awhile before the two went towards Detroit before I crossed the track, after those two had gone towards Detroit then I started to walk across the street.
“Q. After those two had gone towards Detroit then you started to walk across the street?
“A. Why, certainly, that’s the only way you would do, wouldn’t you?
“Q. You saw two automobiles, you saw them pass- . ing you going towards Detroit when you were standing still. Is that correct?
“A. That’s what I told you. These two machines were probably three or four rods away when I first saw them.
“Q. How far from the north did you watch them when you first saw them?
“A. I couldn’t tell you exactly, probably three rods. After they passed me I started across the street.
“Q. Now, then, after you started across the street and after they had passed you, did you look to your right again out towards the north?
“A. No, I couldn’t because I was in a hurry to get across the street for fear any more would come. I don’t think any one would do that.
“Q. So that you only looked once towards the north to your right and at that time you saw two going south towards Detroit?
“A. I told you I went down a little path from the curbstone, two or three feet. I saw two coming, going to Detroit, and I looked both ways before going across and after they passed me I didn’t see any more. Then I started to go across to the store. I looked both ways.
“Q. |When you were three or four feet from' the curb, while standing waiting for automobiles to pass you, going south, after they passed you, you started across the street toward the west and did you again look to your right after that?
“A. I looked both ways.
“Q. All right, now did you look a second time?
“A. Yes, sir.
“Q. Did you look the third time?
“A. I don’t know, sir. No, I didn’t look the third time.
“Q. You only looked once?
“A. When them cars started towards Detroit I told you, sir, that I looked that way and I didn’t see any one coming that way and any one coming from Detroit and then I started to cross the track.
“Q. And that is the only time you looked towards the right?
“A. Of course.
“Q. Well, how many feet had you gone before you were hit?
“A. I told you just now I went over one street car track until I got to the second and pretty near the last iron of the street car track.
“Q. How many feet had you gone from the place where you were standing waiting for the two cars to go to Detroit, up to the point where you were hit?
“A. I don’t know what you mean.
“Q. You know where you stood?
"A. Yes, sir.
“Q. And you know where you were hit?
“A. Pretty nearly, I told you that.
“Q. Well, you know where you were hit?
“A. Yes, sir.
“Q. Well, how many feet was it between those two points?
“A. I should judge probably it would be about 25 or 80 feet. I was walking just as fast as I could. It was somewhere around 10 o’clock.
“Q. What kind of a day was it? A very sunny day?
“A. Yes. Quite a warm day, too.
“Q. Had not been raining?
“A. No.
“Q. Standing in the center of Saginaw street, how far could you see towards the north of you if you had looked?
“A. How far could I see?
“Q. How far north of you could you see, standing in the center of Saginaw street?
“A. Towards Pontiac?
“Q. Yes.
“A. I could see from that place down pretty near the whole line.
“Q. The whole line?
“A. Yes, sir.
“Q. That approximately was what distance?
“A. Very nearly a quarter of a mile.
“Q. You knew the westerly or center track of Saginaw street was used by cars going to Detroit?
“A. Mainly.
“Q. Two tracks on Saginaw street?
“A. Yes, sir.
“Q. And the east tracks are used for north-bound cars, are they not?
“A. Well, now, I can’t tell you exactly about that, I think the track I was struck on was coming to Pontiac. The automobiles coming into Pontiac are supposed to use the right-hand side of Saginaw street, and the ones going to Detroit, the west side.”

The only other witness, who saw the entire occurrence was Miss Marian I-fyler, who was clerking in the ice cream parlor or store above described. She testified that she was standing in the doorway of' the store facing towards South Saginaw street; that she saw the automobile as it was coming not less than 25 miles per hour, and that) she did not hear any horn blow. She testified that the first she saw was the automobile coming and it struck the plaintiff, and, in her judgment, threw him about 30 feet; that the defendant tried to slow down and his car skidded and the plaintiff turned a somersault and the car struck him a second time; that he was hit by the left fender; that plaintiff did not get up until he was picked up. and that he was partially under the wheels and the car had •to be backed before they could get the plaintiff out. She testified that she had ridden in cars and had also driven them more or less for some time; that traffic was heavy on South Saginaw street, especially upon Saturdays, as it is the main thoroughfare between Detroit and Pontiac, and that this injury occurred on Saturday; that there was heavy traffic and there was hardly a moment through the day that automobiles were not going one way or the other; also that she saw the two cars pass just before the plaintiff was struck; that she could look north on Saginaw street for a distance of several blocks; that she stood far enough out from the door so that she could see both ways; and that she noticed it coming about a block away and there was nothing that obstructed her view. We quote the following:

“Q. Was there anything that would obstruct Perkins’ view if he had turned and looked towards the north?
“A. No, sir; not that I know of.
“Q. Nothing that would have interrupted his view of it?
“A. No, sir.
“Q. And a person crossing the street, if they had looked toward the right or towards the north as the approaching automobile came, could have seen it?
“A. He just waited for the other two cars to pass.
“Q. He did not look then?
“A. Not that I remember of.
“Q. You saw him, you say?
“A. Yes, sir.
. “Q. You did not see him look? .
"A. No, sir.
“Q. If he had looked he could have seen, that is true, isn’t it?
“A. I should judge he could, I saw it.
“Q. Where in the street was this automobile when you first saw it? A block away?
“A. Somewhere near the center of the street.
“Q. Near the center of the street?
“A. Yes, sir.
“Q. On the car track or between the car track and the west curb?
“A. Between the east rail and the — between the east track and west curb near the center of the street. * * *
“Q. And the automobile continued to come south, come right along in a southerly direction?
“A. It was near towards the center of the track.
“Q. And maintained that position right up to the time it struck Perkins?
“A. Yes, sir.”

There is considerable discussion in defendant’s brief as to the rule that should be applied in weighing the entire testimony of the witness, both direct and cross. There is no doubt that the whole testimony of the witness should be considered together.

It is the claim of the defendant that the instant case is ruled by the case of Tolmie v. Taxicab Co., 178 Mich. 426, and counsel quote from that case at great length in their brief. In our opinion the cases can be distinguished. In that case the plaintiff, a teamster, 32 years of age, and two companions were crossing a city street. His companions waited for a taxicab to pass, but plaintiff who saw the approaching car 15 or 20 feet away jumped ahead and was struck by the car. Plaintiff’s testimony did not show that the driver was on the wrong side of the street, or that he was proceeding at excessive speed, but that the plaintiff looked twice and failed to perceive the taxicab, or to hear any warning signal, although other witnesses, testified that the horn was sounded, and it was held that plaintiff was negligent, as matter of law, for failing to exercise his faculties to protect himself. It further appeared in that case that

“there was at the time no rush or confusion of travel; with two companions, the three walking abreast, he (plaintiff) being on the side next to an approaching automobile, coming on its proper side of the street, with a clear view in that direction for half a mile; that he looked in that direction and saw nothing, although his companions on the side farthest away did see the car and avoided it; that under those conditions he walked right on into the path of the approaching vehicle.”

As evidence that the Tolmie Case was considered a close one on the law of contributory negligence is the fact that three of the justices were of the opinion that the question of plaintiff’s contributory negligence was for the jury. We do not think the case controlling of the instant case.

We call attention to the case of Ottaway v. Gutman, 207 Mich. 393. In that case it was held that the facts presented a case for the jury. It was an action for personal injuries caused by defendant’s automobile to plaintiff, when it backed upon him and struck him as he was crossing defendant’s private driveway on the sidewalk on a public street. It was held that plaintiff’s testimony that he looked and did not see any automobile coming, although the day was clear, his eyesight and hearing good, and there was no obstruction in the way, presented a question of fact for the jury. In that case it was said:

“That he looked in that direction so indifferently as not to see the car coming, did not make him guilty of contributory negligence, as matter of law, nor does the improbability of his testimony produce such a result. I think the plaintiff made a case for the jury, and that the trial judge erred in directing a verdict against him.”

For cases passing upon the reciprocal duties of a pedestrian and the operator of an automobile in the public streets, the following cases are pertinent: Bouma v. Dubois, 169 Mich. 422; Amley v. Saginaw Milling Co., 195 Mich. 189; Patterson v. Wagner, 204 Mich. 593; Benjamin v. McGraw, 208 Mich. 75.

In the Patterson Case, Mr. Justice Steere said:

“Relative to the mutual rights and duties of those using the highway at such points, it is said in Babbitt on Motor Vehicles (2d Ed.), § 1295:
“‘At crossings on city streets the right of passage is common, to all and both pedestrians' and drivers of motor vehicles are bound to exercise reasonable care for their own safety and the safety of others upon the street. The footman is not required, as matter of law, to lookl both ways and listen, but only to exercise such reasonable care as the case requires. Both pedestrians and drivers are required to exercise that degree of care and prudence which the conditions demand. It is impossible to formulate any more precise definition of these relative rights and duties.’ ”

We are of the opinion that the trial court did not err in refusing to direct a verdict for the defendant, and that it properly submitted the question of contributory negligence to the jury. The judgment of the circuit court is therefore affirmed.

Steere, C. J., and Moore, Fellows, Bird, and Sharpe, JJ., concurred. Brooke and Clark, JJ., did .not sit.


author: Stone,, J.

text:
    CITY OF SAGINAW v. SECOND NATIONAL BANK.
    Taxation — Mining Leases on Land Outside State Not Taxable —Incorporeal Hereditaments.
    Leases of mineral rights in real property located in the State of Minnesota and the unaccrued installments to grow due on said leases are incorporeal hereditaments and a part of the real estate, and are not subject to taxation in Michigan.

      Case-made from Saginaw; Snow (Ernest A.), J.
    Submitted January 6, 1921.
    (Docket No. 47.)
    Decided March 30, 1921.
    Case-made before judgment under 3 Comp. Laws 1915, § 12754, by the city of Saginaw against the Second National Bank of Saginaw, executor of the last will of Wellington R. Burt, deceased, for the amount of a tax assessment. Judgment for plaintiff for less than amount claimed. It brings error.
    Affirmed.

      Bird J. Vincent, City Attorney (Frank A. Rockwith, of counsel), for appellant.

      Humphrey, Grant & Henry, John F. O’Keefe and James B. Peter, for appellee.
   Stone,, J.

A case was made before judgment in the circuit court for the county of Saginaw, upon agreed facts, in accordance with the provisions of section 18 of chapter 20 of the judicature act (3 Comp. Laws 1915, § 12754). Upon the judgment entered in the circuit court, the plaintiff has brought error. The facts, agreed upon in the case-made, show that Wellington R. Burt was an inhabitant and resident of the city of Saginaw, Michigan; that he died there on the 2d day of March, 1919, testate, and had appointed the defendant executor in his will, and that defendant has duly qualified as such executor. That in April, 1919, after the death of Mr. Burt, the defendant made and filed with the city assessor of Saginaw a general tax statement — known in the record as Exhibit A — and from this statement it appears, that the personal property of said estate subject to assessment for the year 1919 amounted only to $359,224.76. That notwithstanding this statement, the city of Saginaw assessed said estate on personal property, for the year 1919, the sum of $5,000,000. That the defendant bank exhausted all of the remedies provided by law to have this assessment corrected, but without avail. That the taxes assessed for the year 1919 against said defendant, as the representative of said estate, amounted to $160,400. That in December, 1919, the bank paid to the city treasurer $11,794.50, being the amount which it admitted it owed the city, based on the $359,-224.76, disclosed in the general tax statement, and refused to pay any further sum.

The assessment of $5,000,000 for the year 1919, it is admitted, was made up' as. follows:

Personal property, tax statement........... $359,224.76
Foreign bonds ............................ 50,000.00
Mining leases (Exhibits F and G)......... 4,590,775.24
Making a total of.....................$5,000,000.00

Upon the trial below the court held that there was no law in force at the time the specific tax was paid on those bonds, authorizing the payment of a specific tax upon foreign bonds, exempting them from general taxation, and entered a judgment in favor of the plaintiff and against the defendant for the sum of $1,780.44, the amount of the 1919 tax, interest and collection fees, on the foreign bonds, set forth in the case-made.

The defendant has not appealed from this judgment, and, therefore, the question of the tax on the foreign bonds described in the case-made is not involved in the appeal. The only question involved and raised by the assignments of error relates to the leases, Exhibits F and G, and as to these the trial court found that they are in name, and, in fact, leases of real property located in the State of Minnesota, and that the unaccrued installments to grow due on each of said leases are in fact rents, — the compensation the lessee pays the lessor for the use and occupation of the real estate under said leases; and that the amounts stipulated to be paid by the lessees are incorporeal hereditaments, and a part of the real estate, and .are not subject to taxation in the State of Michigan, — and entered judgment on this branch of the case in favor of defendant. A reference to Exhibit F shows that it is a lease made January 1, 1900, between Mr. Burt and the Lake Superior Consolidated Iron Mines, a corporation, of certain lands located in the State of Minnesota. This lease runs, unless canceled, for a period of 50 years from that date. The lands are particularly described in the lease. Mr. Burt is described as the lessor, and the said corporation as lessee, and the entire premises are demised to the lessee for the purpose of exploring for, mining, taking out and shipping therefrom the merchantable iron ore (as well as other minerals, as therein provided for) which then was or might thereafter be found on, in or under the said lands, with the right to the lessee to construct all buildings, and to make all excavations, openings, ditches, drains, railroads, wagon roads and all other improvements which were, or might become, necessary or suitable for the mining, or removing of the iron ore therefrom and the carrying on of mining operations thereon; and the right to cut and use all the timber, other than pine timber, which might be upon the said lands, free and without charge, so far as might become necessary for fuel, or in the construction of buildings required in the operation of any mine upon the said lands, and for drains, tramways, supports or shafts on or within any such mine, or in connecting the same with any lines of railway over which the said ore might be transported. The term “merchantable ore” as used in the lease shall be taken to mean such ore as shall be merchantable from time to time as the work of mining progresses.

The lessee covenants to pay to the lessor a royalty on all iron ore mined and shipped from the said lands while the lease shall remain in force, at the rate of 25 cents for each gross ton. The royalty is due and payable on the 10th days of April, July, October and January, in each calendar year. The payment on each quarter day shall be for the full amount of ore mined and shipped from the said lands during the three months immediately preceding the first day of the month in which the payment shall become due.

The lessee further covenanted that in each year during the existence of the lease, it would mine and ship from the said lands at least 200,000 gross tons of iron ore as an agreed minimum output, or, in case in any one or more of such years the lessee shall not actually ship from the demised premises the full quantity of said agreed minimum output, the lessee would nevertheless pay to the lessor advance royalty to be treated and considered as ground rent in addition to the royalty paid for iron ore actually shipped during that year such sum as should, together with the amount paid as royalty for iron ore actually shipped during the said year, amount to $50,000.

Said advance royalties or ground rent were to be paid quarterly, at the time and in the manner in said lease provided for the payment of royalties for ore actually shipped.

The seventh paragraph of said lease is as follows:

■“Seventh: It is mutually covenanted between the parties and this lease is granted and accepted upon conditions, that the lessee shall have the right at any time upon thirty days’ notice to terminate this agreement and lease, by giving written notice in the manner hereinafter provided to the lessors, their heirs, executors, administrators or assigns, who will in such case acknowledge in writing the receipt of such notice; and this lease shall terminate thirty days after the giving of such notice, whether the same shall be acknowledged or not.
“All arrearages and sums, including taxes, which shall be due and payable under this lease up to the time of its termination as set forth in the said notice, must and will be paid by the lessee within thirty days after such termination; and the lessee upon such termination must and will forthwith execute and record in the office of the register of deeds of St. Louis county, Minnesota, a formal relinquishment of such lease.
“Said notice of termination of this lease may be given by registered letter mailed from any postoffice in the United States, postage prepaid, and addressed to the lessors or their heirs, executors, administrators,' or assigns, at their respective last known places of residence.
“And it is further agreed that the lessee shall have the right to assign this lease or to contract with others to work any mine or mines which now are or hereafter may be discovered upon the said lands, or to subcontract or sub-let the same at its option with the same rights and privileges as are herein granted to the lessee, it being expressly understood that any such assignment, contract, sub-contract or sub-lease shall not operate as a release or discharge of the lessee from the performance of the conditions of this lease unless the lessors shall in writing consent thereto.”

The eighth paragraph is as follows:

“Eighth: This lease is granted and accepted upon condition that if the royalty hereby reserved or the advance royalty or ground rent hereby provided for and agreed to be paid or any part thereof be and remain unpaid after the days and times above specified, and if the same shall remain in default for a period of sixty days, or in case the lessee shall fail to keep any of the covenants or conditions herein expressed to be kept and performed by it, and such failure shall continue for sixty days after the receipt by it of written notice from the lessors specifying the default, neglect and failure complained of, then and from thenceforth and in either of the said events, but not otherwise, it shall be lawful for the lessors at their option to terminate this lease and to take possession of the said leased premises with or without any previous process whatever, to re-enter and have and possess the same as fully as if no lease had been given to the lessee, and the said lessee and all parties claiming under it shall be wholly excluded therefrom, and this lease shall become and be wholly void and at an end subject to the provisions of article ninth hereof; and the lessors reserve and at all times shall have, possess and hold a lien for all unpaid balances due hereunder upon all ore mined upon the said premises and upon all improvements made upon the said premises by the lessee.”

In the eleventh paragraph ot said lease it was provided that all covenants, conditions, and provisions should run with the lands.

Exhibit G is another lease made by Mr. Burt in July, 1902, as lessor, with the Oliver Iron Mining Company as lessee, and, subject to the right of termination, runs for a period of 50 years. This lease is in substantially the same form, -and contains the same conditions as the lease Exhibit F. The lands are located in Minnesota, and paragraphs 7 and 8 of the lease are identical with Exhibit F.

All of the ore referred to in these leases was in place in the lands, and was assessed as real property in the State of Minnesota, and this fact is admitted. In the statement of agreed facts, the following appears:

“That in assessing said lands for taxation in the State of Minnesota the assessing authorities determine and set down separately, the assessable value of the ore exclusive of the land, and the assessable value of the land exclusive of the ore, and the aggregate of the two is then assessed against the tract of land.”

Counsel for plaintiff and appellant in their brief say that the single question presented for adjudication is this:

“Are the documents, Exhibits F and G, together with the unaccrued royalties therein reserved, and all of the estate, rights, titles and interests specified, reserved, included in and represented thereby, properly and legally subject to taxation under the laws of the State of Michigan?”

We have here at considerable length set forth the substance of the leases in evidence in this case, to show that the question involved is identical with the question involved and considered by this court in the case of In re Rust’s Estate, ante, 138.

We are unable to distinguish the cases, and in our opinion the Rust Case controls and governs the instant case. The judgment of the circuit court is therefore affirmed.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.