author: MoAlvay, J.

text:
    FOSTER v. STEVENS.
    1. Wills — Construction—Rules—Intent of Testator.
    The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail.
    3. Same — Entire Instrument.
    Such a construction should be adopted as will give effect, if possible, to every clause, and meaning to every word, if it can be done without violating the general design of the instrument or any well-settled rule of law.
    '3. Same — Inconsistent Clauses.
    If two clauses in a will are absolutely irreconcilable, the last prevails, as being the latest expression of the testator’s wishes.
    4. Same — Presumption Against Intestacy.
    There is a presumption against partial intéstacy.

      5. Same — Presumption Against Illegality.
    If two constructions of a will or a part of it are possible, one consistent with the law and the other inconsistent, the presumption that the testator intended to comply with the law will compel that construction which is consistent with the law to be adopted.
    ■6. Statutes — Construction—Adoption from Sister State.
    The rule that the construction given a statute by the courts of the State of its origin is followed only where the decision was made by the highest court of the State prior to the adoption of the statute by this State.
    7. Perpetuities — Trusts—Wills—Construction.
    A paragraph in a will directing that testator’s executor should hold certain land in trust and pay the income thereof to testator’s wife and two sons or the survivor of them during their natural life, and further providing that on the death of the two sons the land should descendió their heirs, examined, in connection with the other provisions of the will, and held, not invalid as suspending the power of alienation for a period longer than two lives (section 8797, 3 Comp. Laws), but to create a valid trust, the later clause limiting the earlier one as to the estate created.

      Appeal from Kent; Wolcott, J.
    Submitted October 20, 1905.
    (Docket No. 91.)
    Decided October 29, 1906.
    Bill by Frank W. Foster against George F. Foster and Wilder D. Stevens, executor of the last will and testament of Wilder D. Foster, deceased, to obtain a construction of said will, and for an accounting. From the decree rendered, complainant appeals.
    Affirmed.

      Martin Rozema {Nims, Hoyt, Erwin, Sessions & Vanderwerp and M. Brown, of counsel), for complainant.

      Knappen, Kleinhans & Knappen and John E. More, for defendants. .
   MoAlvay, J.

The bill of complaint was filed in this case by complainant against his brother and Wilder D. Stevens, executor of the will of his father, Wilder D. Foster, for the purpose of obtaining a construction of said will and an accounting of certain moneys and property received by said executor under and by virtue of the paragraph of said will which is in dispute, and for the conveyance and transfer of said property to complainant.

The testator was possessed of a large estate, both personal and real, at the time of his death. By the provisions of his will he made several bequests, and all of his estate not so disposed of, and not included in paragraph 11 in dispute, he gave to his wife and two sons, share and share alike; all of the wife’s share under the will to be in lieu of dower and any distributive share she might be entitled to by any statutory provision. The testator left surviving him his widow, Fannie L. Foster, and two sons, .Frank W. Foster, complainant, and George Foster, one of the defendants. Defendant Stevens, Noyes L. Avery, and the wife of the testator were appointed as executors of the will. After the death of the testator, which occurred September 20, 1873, the will was probated, and Stevens and Avery, two of. the executors named, qualified as such and entered upon the discharge of their duties. Since the death of Mr. Avery defendant Stevens has acted as sole executor.

The estate as appraised amounted to $218,487.46, personal property, real estate other than the property included in the eleventh paragraph of the will, referred to as the “trust property,” $30,030.95, and the trust property $127,000. The trust property was incumbered by mortgages to the amount of $47,045.98. It consists of five business lots in the city of Grand Rapids, upon two of which at the time of testator’s death were store buildings built several years beforehand upon the remaining three lots was a building begun and partially constructed. During the administration of the estate the executors, with the consent of the widow, out of the personal estate and the income of all the estate including the trust property, have paid the entire mortgage indebtedness upon the trust property, and completed and paid for the unfinished building above mentioned.

The widow died in 1886, leaving an estate of about $35,000, the larger part of which she gave to the two sons, share and share alike. The estate of Mr. Foster has been fully administered, except as to the trust supposed to have been created by the eleventh paragraph of the will. During the lifetime of the widow all of the income of the property disposed of by said paragraph was divided between the widow and the sons, each receiving one-third. Since her death it has been equally divided between the sons. This estate has been administered by the executors and the survivors of them with economy and marked ability. The mortgage indebtedness has been fully paid and the buildings upon the trust property completed out of the personal property and the income of the entire estate. The entire amount of the legacies provided by the will have been paid, and the two sons, Frank and George, have received during the administration from personal estate and income of realty about $80,000 each, and also certain real estate provided by the will. During her lifetime the widow received her entire share as provided by the will, including her share of the income from the trust property. The estate was closed and the executors discharged in 1889. Thereafter the executors, Avery and Stevens, acted as trustees under the eleventh paragraph of the will until the death of Mr. Avery, since which time Mr. Stevens has acted as sole trustee.

In 1881 complainant sold his interest which he had received from his father’s estate in the firm of Foster, Stevens & Co., and in 1889, being unsuccessful in his business ventures and badly in debt, he conveyed all of his property in trust to defendant Wilder D. Stevens to manage and control the same during complainant’s lifetime ; his wife consenting thereto in writing. This trust has continued since that date; and the income from the trust property under the father’s will, being from $600 to $800 a month, has been paid, one-half to George Foster and one-half to Mr. Stevens, trustee for complainant.

The trust provision of paragraph 11 of the will is attacked, and the court is asked to hold it invalid as offending against the provision of the statute which limits the suspension of the power of alienation of real property. Section 8797, 3 Comp. Laws. In the circuit court for Kent county a decree was rendered holding the • trust a valid one, with the privilege to complainant of an accounting, if he desired, with the defendant Wilder D. Stevens of the conduct and management of the trust estate, and the receipt and disposition of the income therefrom, as prayed for in his bill of complaint.

From this decree complainant has appealed.

The question in this case is whether the provisions of the eleventh paragraph of this will are invalid because the power of alienation is suspended for a longer period than during the continuance of two lives in being. The essential provisions of this paragraph, omitting immaterial portions, are:

“I give and devise unto my executors hereinafter named, all and singular my lands, tenements and real estate of whatsoever name and nature situate, lying and being at the foot of Monroe street, so called, in the city of Grand Rapids, county of Kent and State of Michigan, together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, in trust, however, for the purposes, uses and applications, and under and subject to the specific directions hereinafter particularly enumerated and set forth, that is to say: It is my will, and I direct that my said executors shall not sell or cause to be sold or conveyed said designated and described lands, tenements and real estate, or any part or parcel thereof, * * * and it is my will that my said executors shall hold the same in trust for my surviving heirs at law, and shall let and lease the same for the best possible rental price per annum, and shall equally divide any and all rents, profits and income that shall and may be derived and realized therefrom, * * * among and between my wife Fannie L. Foster, and my surviving children as aforesaid, share and share alike, at the expiration of each and every year during their natural lives and the natural life of either of them, * * * and always so that my said wife and surviving children or child shall not sell, mortgage, charge or otherwise dispose of the said lands, tenements'and real estate, or any part thereof, in the way of anticipation or otherwise. * * * And I desire and direct as is my will here expressed, that upon the death of my said children, Frank W. and George, herein named, that the said described lands, tenements and real estate so hereinbefore designated and described, shall descend to, become and be the property and estate of their heirs, or the heir or heirs of the survivor, to be owned by them in equal proportions, share and share alike, as tenants in common, to their heirs and assigns forever; and that my said executors shall then make over the possession of said lands, tenements and real estate, with the appurtenances and hereditaments to them accordingly.”

In the construction of a will the first duty of a court is to ascertain the intention of the testator. Such intention is to be ascertained from the whole will interpreted with reference to the obvious or manifest object of the testator. All’ parts of the instrument must be construed in relation to each other, so as to give meaning and effect to every clause and phrase, and, if possible, form one consistent whole; every word receiving its natural and appropriate meaning. 1 Redfield on Wills, p. 431 et seq.; Page on Wills, § 462, and cases cited. Chief Justice Marshall, of this intention, said:

“ The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and, is not contrary to some positive rule of law, it must prevail.” Finlay v. King’s Lessee, 3 Pet. (U. S.) 346.

While the eleventh paragraph of the Will is the only provision contained in it which is in dispute, it will be necessary to consider its other provisions in attempting to ascertain his intention expressed in the whole will as well as in this paragraph. First he made such gifts and provisions as he desired to and for those he considered entitled to his bounty, not so near of kin to him as his wife and two children. Then for his wife and two sons and the heirs of said sons he made certain provisions by the terms of the trust paragraph under consideration, setting apart a portion of his estate for that purpose. Next he disposed of all the residue of his estate of every kind and description to his wife and these two sons, share and share alike. The estate he disposed of by his will was a considerable one. Without taking into consideration the payment of the mortgages on the trust property, which were paid out of the personal estate and the income from the whole estate by the executor with the consent of the widow and sons, it may be said that he divided equally two-thirds of his entire estate between them, giving to each property of the value of about $80,000, exclusive of their interest' in the trust property; or, if the incumbrances on the trust property should be deducted in the first place, then he gave each the sum of $65,000. As far as these provisions are concerned as to two-thirds of his estate, it appears that the intention of. the testator was that the wife and sons should share therein equally.

Considering now the eleventh paragraph, which deals exclusively with certain specific real estate, it must be admitted that the intention of the testator as to this property was to create a trust. By its terms a prohibition was laid upon the executors against selling or disposing of any of it, and this prohibition was extended to his wife and sons. Here is indicated an express purpose and intention of preserving this property to be transmitted eventually intact. The executors were ordered to hold this property in trust:

“For my surviving heirs at law * * * and shall equally divide any and all rents, profits and income that may be derived and realized therefrom * * * among and between my wife Fannie L. Foster and my surviving children as aforesaid share and share alike at the expiration of each and every year during their natural lives, and the natural life of either of them. * * * And I desire and direct, as is my will here expressed that upon the death of my said children Frank W. and George herein named, that the said described lands, tenements and real estate, so as hereinbefore designated and described, shall descend to, become and be the property and estate of their heirs, or the heir or heirs of the survivor, to be owned by them in equal proportion, share and share alike, as tenants in common, to their heirs and assigns forever, and that my said executors shall then make over the possession of said lands, tenements and real estate with the appurtenances and hereditaments to them accordingly.”

The parties for whom the property has been held intact, and to whom the same is to be transmitted, are named, as well as the time when the estate is to vest in them, together with full possession and enjoyment of the same. Taking the will as a whole, and guided by the well-recognized rules of construction already given, we have found without difficulty the clear intention of its maker to be as to two-thirds of his estate an equal division between his wife and children, who,’ as to this portion of his will, are the paramount objects of his bounty. As to the remaining one-third of his estate, a trust is created with provision that the net income of the property held by the trustees be equally divided between these same parties during their natural lives, said trust to terminate upon the death of the sons and the estate to vest at once in their heirs; the heirs of the sons for whom the property has been held intact being made as to this portion of his will the paramount objects of his bounty.

The, intention of the testator herein above expressed as to the division of his property among his wife and children and the heirs of his children cannot be questioned. The contention is that this intention as to the trust property cannot be carried out, and that the trust is invalid because by the terms of the trust paragraph the power of alienation of real estate is suspended for a period longer than during the continuance of two lives in being, contrary to the provisions of the statute.

The essential provisions of the paragraph have already been quoted at length. That portion under discussion provides that the income of the trust property shall bo equally divided:

“Among and between my wife Fannie L. Foster and my surviving children as aforesaid, share and share alike, at the expiration of each and every year, during their natural lives, and the natural life of either of them. * * * And I desire and direct as is my will here expressed that upon the death of my said children, Frank W. and George herein named, that the said described lands * * * shall descend to, become and be the property and estate-of their heirs or the heir or heirs of the survivor, to be owned by them in equal proportion, share and share alike, as tenants in common, to their heirs and assigns forever, and that my said executors shall then make over the possession of said lands * * * to them accordingly,”

If the first sentence above quoted stood by itself, or was to be construed alone, there can be no question but that it offends against the prohibition of the statute and suspends the power of alienation contrary to its provisions, and, unless the later provision of the paragraph modifies or controls this provision, the complainant’s construction is correct and must prevail. This paragraph must be construed as a whole, in connection with the whole instrument. Such a construction should be adopted as will give effect, if possible, to every clause, and meaning to every word, if it can be done without violating the general design of the instrument or any well-settled rule of law.

The later clause referred to reads:

“I desire and direct as is my will here expressed that upon the death of my said children Frank W. and George, herein named, that the said described * * * real estate * * * shall descend to, become and be the property and estate of their heirs or the heirs of the survivor.”

As above stated, if this later clause does not modify or control the earlier clause, then the trust provision is invalid, and the clear intention of the testator to make provision for the heirs of his sons, who were the paramount objects of his bounty under the provisions of this paragraph, cannot be given effect. It is a well-established rule of construction that, if two clauses in a will are absolutely irreconcilable, the last prevails, as being the latest expression of the testátor’s wishes. 3 Jarman on Wills, p. 705; Page on Wills, § 470; Hendershot v. Shields, 42 N. J. Eq. 317; Barnes v. Marshall, 102 Mich. 248; Smith v. Bell, 6 Pet. (U. S.) 76. Of this later clause the trial judge in his opinion said:

“ This clause as it stands is an express declaration that the limitation of the power of alienation ceases upon the death of the sons, whether the widow be then living or not. It is the last expression of the testator on the subject. Standing alone, it is clear and unambiguous. * * * If the earlier provisions of this paragraph are in conflict with this later one, the later must control, as being the last word of the testator on the subject. * * * It is the only place where the testator speaks in positive terms as to when the fee of the trust property is to pass and to whom. ”

Applying this rule last above stated, that the earlier clause must give way to and be harmonized with the later, the intention of the testator is not frustrated and a valid trust may be declared created. Such construction is also in harmony with the rule of presumption against partial intestacy. Page on Wills, § 466, and cases cited.

Further, testamentary intention is presumed to be in accordance with law. If two constructions of a will or part of it are possible, one consistent with the law and the other inconsistent, the presumption that the testator intended to comply with the law will compel that construction which is consistent with the law to be adopted. 3 Jarman on Wills, p. 706; Page on Wills, § 465, and cases cited; James v. Pruden, 14 Ohio St. 251; DuBois v. Ray, 35 N. Y. 162; Roe v. Vingut, 117 N. Y. 204.

It is contended that to hold in this case that the earlier clause is to be controlled by and harmonized with the later disregards a superior rule, which admits of no exception in the construction of written instruments, that, where one estate is given in one part of an instrument in clear and decisive terms, such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate; and many authorities are cited in support of the rule. The case at bar is not within the reason of this rule, because there is no doubt as to the extent, meaning, and application of the subsequent clauses, nor is the construction one of inference drawn therefrom. The subsequent words are clear, decisive, and unequivocal, and are the last words of the testator upon the subject. They determine the period during which the suspension of alienation continues, and when the fee to the trust property is to pass.

In giving this construction the court is not unmindful of the rule that it is the duty of the court to construe the will as made by the testator and not to make a new one. The construction given is in harmony with this rule. The court, following well-recognized rules of construction, has found from the whole instrument the intention of the testator, and determined that he has carried' out that intention by the words he has actually used. In other words, the intention of the testator being ascertained, the court finds the same has been carried out by valid testamentary disposition.

Our statute above refórred to, relative to the suspension of the power of alienation of real property, was adopted from the New York statutes, and it is urged that the decisions of that State construing the statute subsequent to its adoption, in the absence of a contrary holding by the adopting State,- should be given the greatest consideration. Complainant cites the case of People’s Trust Co. v. Flynn, 106 App. Div. (N. Y.) 78, decided June 16, 1905, by the appellate division of the supreme court of New York, claiming that the case is identical with the case at bar in principle, and nearly identical in its facts and legal propositions, ánd should be decisive and controlling. The provision in the will in the Flynn Case construed by the New York court was very similar to the one in the case at bar, and the question involved was whether the trust was invalid under the statute. The practice of accepting the construction of the courts of a State in construing statutes adopted from such State is quite generally accepted and has been frequently recognized by this court. Such decisions are not necessarily controlling, and are not accepted unless made prior to the adoption and by the highest court of the State. The case at bar is, however, distinguishable from the case cited. In that case the provision of $1,800 to be paid yearly to the widow during her life was in lieu of dower and the only provision made for her. In the case at bar ample provision is made for the widow out of the estate other than her share of the income from the trust property. A careful examination of the opinion in the New York case shows that the court considered the wife as the paramount object of the testator’s bounty, and did not hold the provisions of the trust valid, and apply the rule that the later clause should control and modify the earlier clause because in that case it would violate the intention of the testator and defeat a provision made for his wife. The court said:

‘ ‘ Although subsequent provisions of a will are frequently held to limit earlier provisions, that construction will not be adopted where it will violate the intention of the testator and defeat a provision for the benefit of one who must be regarded as the paramount object of the testator’s bounty, and no such construction is urged upon us.”

Under a similar state of facts this court might accept the reasoning of the New York court. The construction this court gives to this will, under the facts of this case, has been one which does not violate the intention of the testator and defeat a provision for the benefit of the paramount object of the testator’s bounty. In this case the testator by clear and unambiguous language has declared when the limitation upon the power of alienation ceases and the estate vests.

In the construction of wills no hard and fast rule can be applied to all cases alike. The peculiar facts and circumstances of each case must be considered, and from them the court must determine the rules of construction to be adopted. In the construction of this will the court holds that the later clause of the paragraph under consideration must control, for the reasons herein stated, and declares the trust created to be a valid one.

The decree of the circuit court is affirmed, with costs to the defendants.

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


source: Caselaw Access Project

author: Blair, J. Hooker, J.

license: Public Domain

text:
    BELD v. DARST.
    1. Evidence —Written Contract — Oral Evidence — Varying Terms.
    Plaintiff, when approached by defendant for the purpose of inducing him to enter into a contract to raise onions on shares, declined because he was unable to provide the necessary cribs and warmhouses, and thereupon defendant expressly agreed to build them. Before signing the writing, plaintiff called defendant’s attention to the fact that, while the writing referred to cribs and warmhouses on defendant’s premises, yet defendant’s premises contained none, and was thereupon assured by defendant that he would place such buildings there. Held, that the written agreement clearly did not contain the entire contract of the parties, and oral testimony was admissible to prove what the whole contract was.
    Statute oe Frauds — Appeal—Questions Considered.
    The point that the contract was void under theiStatute of frauds, because not to be performed within a year, being first raised in this court, cannot be considered.
    Hooker and Grant, JJ., dissenting.
    Error to Newaygo; Palmer, J.
    Submitted February 6, 1906.
    (Docket No. 100.)
    Decided October 29, 1906.
    Case by John H. Beld against Warren Darst for breach ■of a contract for the raising of a certain crop. There was judgment for plaintiff, and defendant brings error.
    Af- . firmed.

      George Luton, for appellant.

      Martin Rozema, for appellee.
   Blair, J.

On the 2d of September, 1902, the plaintiff .and the defendant entered into an agreement whereby the plaintiff agreed to put in, care for, harvest, and sell, if directed so to do, a crop of onions on the lands of defendant. The basis of the agreement between the parties was a written contract between the defendant and other parties for the raising of onions and potatoes on lands of defendant in Indiana, upon which the contract stated there were certain buildings, which were not present on the Michigan lands, and there were provisions of the written contract which were inapplicable to the Michigan lands. Plaintiff, when approached by defendant for the purpose of inducing him to enter into a • contract to raise onions on shares, expressly told defendant that he could not enter into such a contract, because he was unable to provide the necessary cribs and warming houses, and thereupon defendant expressly agreed to build them. Before signing the writing, plaintiff called defendant’s attention to the fact that, while the writing referred to cribs and warming houses on the premises, yet defendant’s, premises contained none, and was thereupon again assured by defendant that he would place siich buildings there.

Plaintiff commenced work under the contract in the spring of 1903 as soon as the weather permitted, and put in 10 acres of onions. During the summer plaintiff urged defendant several times to put up the necessary cribs and warming houses, as he had agreed to do. Defendant assured him that he would. Plaintiff paid out for hired help between $200 and $300. Defendant advanced the .money necessary to pay the hired help up to the time of the topping and pulling, but refused to do so after that. Plaintiff commenced pulling and topping the onions about the middle of August, and had it done in good season. The onions were in good condition. After the crates were filled, they were dumped in 10-bushel piles in the field. Plaintiff had no other place to put them. He sent word to defendant, but it was almost two weeks before he came, and then only provided an old barn, which was' wholly inadequate and unsuited for plaintiff’s needs. All this greatly delayed the work, and occasioned much extra labor and expense. No proper place for curing and storing the crop being provided, plaintiff was obliged to hurry as many as possible to market in an unsatisfactory condition. The total amount of onions raised was about 6,000 bushels, but on account of the want of the proper facilities for handling the crop advantageously, the plaintiff was only able to get about one-half of it to market. Those marketed were sold for 35 cents a bushel. The rest were frozen, and became a total loss. The extra expense on the onions marketed caused by the lack of suitable cribs and warming houses was at least 5 cents a bushel. The market price of onions in the fall of 1903 was between 33 and 40 cents.

It is contended by defendant that the writing embraces the entire contract between the parties, and that the court erred in permitting oral evidence to vary or modify the contract; that the contract, if partly resting in parol,' was void because not to be performed in one year; that plaintiff counted upon the written contract, and should have been restricted to it.

The written agreement in this case clearly does not contain the entire contract of the parties, and the trial judge very properly admitted oral testimony to prove what the whole contract was. Stahelin v. Sowle, 87 Mich. 124.

The point that the contract was void under the statute of frauds, because not to be performed within a year, is raised for the first time in this court, and cannot be considered. The declaration did not count upon the agreement as in writing, but as it was claimed to be upon the trial. The assignment of error is based upon a misapprehension of fact.

We have considered all of the errors relied upon for a reversal, and find none calling for' a reversal.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred with Blair, J.

Hooker, J.

(dissenting). The parties to this cause, or some of them, undertook to contract for the leasing of premises to be cropped on shares. The contract was in writing, as required to be by the statute of frauds, because it could not be performed-within one year. The writing consisted of a contract, or copy of a contract, made previously, relating to lands in Indiana, described, “and any other lands farmed by second party on premises of first party,” between the defendant and third persons, to which these parties appended .their contract. It is as follows:

“This lease made this twenty-seventh day of January, 1900, between Warren Darst, first party, and Mike and Henry Mortimore, second party, witnesseth that said first party does by these presents to farm let to said second party for one year beginning March 1, 1900, and continuing till February 28, 1901, the following described lands: Lands of said first party in Jefferson township, Kosecwinsko county, Ind. Any other land farmed by said second party on premises of said first party shall come under the conditions of this lease.

‘ ‘ Said first party agrees to furnish one-third of the seed potatoes and one-half of the onion seed planted by said second party on said lands, and said second party agrees to furnish two-thirds of the seed potatoes and one-half of the onion seed so .planted, and to furnish all teams, tools, and all other articles necessary for the proper farming of said lands and the proper caring for all crops raised thereon till sold; to farm said lands and raise all crops in a proper manner to the best of his ability; to harvest, gather in, and care in person for all crops in proper manner till sold; to deliver them when sold or' consigned promptly and without delay in good merchantable condition on board cars at railroad station, from which they can be shipped to the best advantage for marketing. The parties shall mutually assist each other with advice and information in selling said crops. Said first party reserves the right to sell all of each of said crops and receive the pay therefor. Said second party agrees to sell as much of each of said crops as said first party shall direct in writing. Each party shall account to the other for all money or other property received by him from the sale of said crops, and in the division of said income said first party shall receive one-third and said second party shall receive two-thirds.

All said crops shall be weighed when sold or used on the scales on the premises of said first party by a weigh-master to be selected by said first party, and paid one-third by said first party and two-thirds by said second party, and all said weights shall be recorded carefully by said weighmaster in a suitable book to be furnished by said parties; said book to be carefully kept b.y said weigh-master till delivered by him to said first party at his request.

‘ ‘ Said second party agrees not to farm any land not included in the above-described premises, nor to allow any one living in house furnished by said first party to farm any land not so included, nor to sublet or sublease any of said lands or any buildings furnished by said first party. Said first party reserves the right to allow other parties the use of said buildings when not needed by said second party.

“ If any of the conditions of this contract shall be broken or not fulfilled by said second party, said first party shall receive immediate possession of said lands, building, and crops, to possess, care for, dispose of, and enjoy them. Any expense or damage falling on said first party by reason of said breaking, or nonfulfillment of said contract shall be restored and paid to him by said second party.

“ Said second party agrees to take good care of buildings furnished by said first party; to pay damages to said Buildings resulting from carelessness, neglect, or misuse, to haul out and use on said lands all manure made thereon; not to remove or allow to be removed from said premises any straw or manure; not to allow any manure to lie against the barn, nor to allow scales, warmhouses, cribs, or dwellings to be used by any other person; nor to allow other parties the right of way on or over said lands.

‘ ‘ Said first party agrees to furnish said second party money to pay for his half of the onion seed, and money for necessary expenses for tending crop in hired labor, for which said second party is to give his promissory note, to be paid from his share of the income received from the first produce sold from said crop, and said debt shall be a lien on said share of said crops.

“ Said second party agrees to move refuse from said crops at least 25 or 30 rods from cribs or warmhouses. The claims of said first party arising from any money advanced to said second party by said first party to pay for said second party’s share of seed, tending crops, or other purpose, shall be a lien on said second party’s share of said ■crops, and shall be paid to said first party out of said second party’s share of the income from the sale of the first of said crops sold.

“Warren Darst.

“Mike Mortimore.

“ Henry Mortimore.”

“Grant Township, Newaygo Co., Mich.

“We, the undersigned, adopt this contract for ourselves for lands of said first party in Newaygo Co., Grant township, Mich., except part referring to scales and manure, and Mr. Martin Van Duine and Mr. Wiltse Beld, second parties, are to have the privilege of farming their own land cleared.

“ Signed this 2d day of September, 1902, for the season of 1903 to 1904.

“Warren Darst.

“Martin Van Duine.

“Wiltse Beld.”

“We, the undersigned, adopt the contract of Mr. Yan Duine and Mr. Wiltse Beld.

“Signed this second day of September, 1902.

“Warren Darst.

“John H. Beld.”

Possession was taken and crops raised and disposed of, and the plaintiff Beld afterwards brought this action, claiming damages resulting, from defendant’s alleged failure to provide buildings suitable and necessary to the cribbing, curing, and storing onions, and received a judgment, from which the defendant has appealed.

Plaintiff’s counsel claim that plaintiff had the right to show a contemporaneous agreement to supply said building. It is based on what is said about buildings in the Indiana contract. The court permitted plaintiff to show under the claim that the contract was partly writing and partly in parol; that at the time the bargain was made and the writing executed, he called the defendant’s attention to the fact that the lands in contemplation had no buildings on them suitable for cribbing, curing, and storing onions, and he did not care to sign it; whereupon, defendant said he would see that the buildings were there if plaintiff would raise the onions. This testimony came in under the objection that it was incompetent, because the contract was in writing, and afterwards the court was asked to direct a verdict for defendant on the ground that “the court should not have permitted oral testimony to change or vary the written contract, and virtually to make an entire new contract.”

It is clear that the contract was not to be performed within one year, for it could not be so performed, if the land should be farmed in a proper manner, crops harvested, cured, and sold before September 3, 1903, to say nothing of the provisions that' the lessee should have possession of the lands, and should care for them for the period of' his lease, and not sublet, etc. We have held that such contracts cannot be varied by parol contracts or stipulations not in writing even though subsequent to the making of the first contract. See Abell v. Munson, 18 Mich. 306; Cook v. Bell, 18 Mich. 387; McEwan v. Ortman, 34 Mich. 325; Barton v. Gray, 57 Mich. 635. It is said this point was not made below, but we think it covered by the request to charge, if it can be said that the objection was not sufficiently specific.

If the statute of frauds were not fatal to this case, we should think that the contract was not one which can be said to have rested partly in writing and partly in parol, as contended by plaintiff’s counsel. The testimony of the plaintiff shows what appears on the face of the instrument also, i. e., that the parties undertook to put their engagement in- writing, and it was signed deliberately by the plaintiff without correction or change after calling attention to the omission of the subject of buildings. No rule is better settled than that the promise made orally at that time cannot be shown as part of the contract.

The rule that a latent ambiguity may be explained would not admit of such evidence. No one has raised the question of latent ambiguity in connection with this case, but we will discuss it. If we can legitimately infer that the parties agreed that the defendant was to furnish a farm with buildings for cribbing, curing, and storing onions upon the place, and there were no such buildings on the place, there might be room for the claim that there was a latent ambiguity, and the plaintiff might show the circumstances surrounding the transaction to explain the writing and to aid in its interpretation. But such evidence must be consistent with the terms of the writing, and evidence tending to contradict, vary, or add to the writing, thereby lessening the defendant’s rights or increasing his obligations under it would not be admissible. The contract made for land in Indiana did not bind defendant to furnish suitable buildings for cribbing, curing, or storing onions. It provided for leasing a particular farm. It is inferable that there were some buildings upon the farm, but the only engagements concerning them were the right of the tenant to use such as there were his promise not to let the person who might live in the house farm any other land; not to sublet any of the buildings ; to pay damages for misuse of buildings; to not allow any manure to lie against the barn; nor to allow some of them to be used by any other person; and to remove refuse from crops 25 rods or more from such buildings. That there was any obligation to provide such buildings is only inferable from their apparent presence on the farm let. In the contract sued upon there is no allusion to buildings, except as counsel argue that by adopting the Indiana contract the parties agreed that _ there were such on this farm, although it is conceded that both parties knew that there were none, except a shed and possibly a house, and there is no circumstance that tends to show that it was contemplated by either that this contract related to buildings, or provided that any should be constructed. If plaintiff’s statements are true, this is no more than a case where he relied on a parol promise which he did not have put in the writing, and of which he cannot, therefore, avail himself. This contract expressly binds the plaintiff to raise, cure, care for, store, and market crops. He seeks by this evidence to impose a part of such burden upon the defendant, upon the claim that he agreed to construct buildings upon the place, and notwithstanding the fact that he actually furnished buildings near by, which plaintiff used, but which he says were unsuitable. This is an attempt to alter and add to the writing by parol, which the authorities generally hold cannot be done.

The judgment should be reversed, and we see no occasion for a new trial. Defendant is entitled to a judgment for costs of both courts.

Grant, J.,.concurred with Hooker, J.


author: Moore, J. Grant, J.

text:
    DUPUIS v. SAGINAW VALLEY TRACTION CO.
    1. Appeal and Error — Review—Questions op Pact.
    In exercising its duty of reviewing the action of the trial judge in refusing a new trial, this court is bound to recognize the principles which have always governed trial courts in deter • . mining whether or not verdicts should be set aside, and is also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of the witnesses.
    2. Carriers — Street Railroads — Injury to Passenger — Negligence — Evidence—Question por Jury.
    In an action against a street railroad company for injury to a passenger by being thrown from a car rounding a curve at excessive speed, evidence examined, and held, to make a case for the jury notwithstanding plaintiff claimed to have been thrown towards the inside of the curve in apparent conflict with the law of centrifugal force.
    3. Damages — Personal Injury — Excessiveness.
    A verdict for the full present worth of plaintiff’s entire earnings during his expectancy of life is not excessive, in favor of a man 50 years of age, in perfect health, for-an injury rendering him a physical wreck and seriously affecting his mind.

      4. Witnesses — Impeachment—Corroboration—Evidence.
    Where witnesses have stated that plaintiff promised them a suit of clothes if they would testify for him and he were successful, it is not improper to show by them and by him that no harm was intended and that what was said did not influence their testimony.
    5. Evidence — Weight — Preponderance of Evidence — What Constitutes.
    It is error to charge that the number of witnesses has nothing to do with the preponderance of the evidence.
    6. Trial — View—Discretion of Court.
    Refusal of defendant’s offer to take court and jury to view the place where a street car accident happened, and to take them around the curve on the car under similar circumstances, is discretionary with the court.
    Error to Saginaw; Beach, J.
    Submitted April 11, 1906.
    (Docket No. 48.)
    Decided October 29, 1906.
    Case by Moses V. Dupuis against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Humphrey, Grant & Smith, for appellant.

      Weadock, Purcell & Weadock, for appellee.
   Moore, J.

This is an action to recover damages for injuries alleged to have been received by the plaintiff on May 2, 1904, on account of his being thrown from the rear platform of one of defendant’s street cars while going around a curve at the intersection of Sixth and Wadsworth streets. The court was requested to direct a verdict in favor of defendant. This he declined to do. Plaintiff recovered a judgment for $16,927. Defendant then made a motion for a new trial, and asked the judge, in case the motion was overruled, to file his reasons for doing so. The judge complied with this request, as follows:

“It is not claimed in the motion for a new trial that any testimony was improperly admitted or rejected. Neither is there any claim made that the plaintiff’s attorney made any improper remarks to the jury during the trial of said cause, and the only questions for my consideration are the four questions raised:

First. Because said verdict is against the evidence in this case. I am unable to find from all the evidence introduced upon the trial that the verdict is against the evidence in the case; and it seems to me there was sufficient evidence to submit to the jury for their consideration.

“Second. Because said verdict is against the weight of the evidence in the case. Several persons claimed upon the trial that they saw the plaintiff thrown off from the car as it rounded the curve on "Wadsworth street, and that the car was running as it rounded the curve at a very high and dangerous rate of speed. The motormen who were placed upon the stand for the defendant claimed that if the cars were running the rate of speed as claimed by the plaintiff’s witnesses the car could not have made the curve,' but would have continued straight ahead and jumped the track. Defendant produced witnesses to show that the centrifugal force would have thrown the plaintiff to the north, instead of the south. The plaintiff produced witnesses who testified that they had made the experiment, and that they were thrown to the south, and that the plaintiff must have been thrown just exactly as he claims he was thrown. From this evidence, which was in direct •conflict, I cannot find that the verdict was against the weight of the evidence. If the court is to weigh all of the evidence when there is positive evidence on both sides of the question and say that one set of witnesses are telling the truth and the others a falsehood, and what weight to give to each, then he is placing himself in the place of the jury. The facts, as I understand it, are for the jury, and not for the court, except where the facts are undisputed, or where but one conclusion could be drawn from all the evidence. In my opinion the evidence was not such in this case.

“ Third. Because said verdict is in disregard of the charge of the court in said cause. I cannot concur with the defendant upon this point in the case, as the question of fact was left entirely with the jury and they found against the defendant, and I believe there were sufficient facts before the jury, if they believed them to be true, to warrant them finding as they did.

“Fourth. Because the said verdict was excessive. If the plaintiff is injured, as claimed by him, and his physicians and the different witnesses that testified as to his. physical and mental condition, he was upon the stand where the jury could see him, and the manner in which he gave his testimony; and if he is not an impostor, the verdict is not excessive. If he is not injured as claimed by him he is the greatest actor that I ever saw upon the witness stand, and he is an impostor and not entitled to any damages. I cannot say from the testimony in this case that he is shamming; the jury were cautioned about the verdict they should render; and in this motion there is no claim made that any remarks were made that would prejudice the jury in rendering as large a verdict as they did. Several cases of this nature have been to the different courts, and the verdict has been upheld. In our own State, in the case of Retan v. Railway Co., 94 Mich. 146, a verdict of $30,000 was sustained.”

The learned judge then cited Texas, etc., R. Co. v. Kelly, 34 Tex. Civ. App. 21; International, etc., R. Co. v. Moynahan, 33 Tex. Civ. App. 302 (15 Am. Neg. Rep. 199); Smith v. Whittier, 95 Cal. 279; Tuthill v. Railroad Co., 81 Hun (N. Y.), 616. The motion for a new trial was overruled. The case is brought here by writ of error.

It is claimed by the plaintiff that the accident for which he seeks recovery was caused by his falling or being thrown from one of the cars on the defendant’s Lapeer Street Line, as it was going around the curve at the' corner of Wadsworth and Sixth streets. What is known as the “ Lapeer Street Line” is operated from the corner of Washington and Genesee streets over Genesee street to Lapeer, over Lapeer street to Sixth, from Sixth street to Wadsworth, then over Wadsworth street to the end of the line. When the cars leave the corner of Genesee and Washington, there are two men on the car, a motorman and a conductor. These men continue on the car until they get to the switch in Sixth street. This switch is three blocks south of the curve where it is claimed the accident happened. At this switch, the motorman leaves the outgoing car and gets onto the returning car, bringing it back to the corner of Washington, and Genesee streets. The conductor of the outgoing car then goes forward and takes the controller as motorman, taking the car to the end of the line on Wadsworth street as a one-man car. When the conductor goes forward he raises the front curtains so he can look into the car, and he acts as conductor, as well as motorman, from that point on. It is claimed he did not realize he was at the curve until too late to check the speed of the car. The negligence claimed is that the car from which it is claimed the plaintiff was thrown was not run around the curve with due care, but was running at a high and dangerous rate of speed, to wit, 15 miles an hour, .and upwards; and that, by reason of the car being run at this high rate of speed around the curve, the plaintiff, who was standing on the rear platform smoking, was thrown with great violence to the street. It is claimed by defendant, first, that the car did not pass around the curve at a great rate of speed; second, that it was a physical impossibility for the plaintiff to be thrown from the back platform toward the inside of the curve as he claims he was thrown. That instead of being thrown toward the inside of the curve the tendency would be to throw him closer to the support against which he claimed he was standing. Counsel say:

‘ ‘ In accordance with the natural laws relating to centrifugal force, and with the experience of every one who has ridden around a corner on a vehicle of any kind, the tendency is to throw objects to the outside, instead of toward the inside of the curve.”

We are asked, and the judge below was asked, to take notice of this natural law, and to rely upon it, and to disregard the testimony of the witnesses upon the part of the plaintiff.

The two important questions are: First. Did the court below er.r in declining to direct a verdict in favor of defendant ? Second. Did it err in overruling a motion for a new trial ? The two questions, so far as they relate to whether there was testimony which required the case to be submitted to the jury, may be considered together. No one can read the record without reaching the conclusion that plaintiff was badly hurt the night in question. Counsel intimate in their brief that he was hurt because he stepped off the car while it was in motion upon a portion of the street where they were repaving and fell, and that he alone was at fault. Defendant swore several witnesses who rode in a car around the curve at great speed at the time the trial was in progress. These witnesses gave testimony tending to support the theory of the defendant. On the other hand, testimony was given, tending to show that when a north-bound car was rounding the curve, at first the passenger would be thrown to the left; but, when the rear truck struck the curve, it would throw the person to the right. Besides this, the plaintiff, and at least four others who claimed to have seen the accident, swear the plaintiff was in fact thrown off the platform as he claims. Nine witnesses in all, besides the plaintiff, testify to facts from' which the only inference reasonably to be drawn is that plaintiff was thrown from the platform as he claims. Unless the court is to substitute its judgment upon questions of fact for that of the jury, it logically follows that it would have been error to refuse to submit the question to the jury. See the late case of Line v. Railway Co., 143 Mich. 163, where many of the decisions of this court upon that point are collated. In Hintz v. Railroad Co., 132 Mich. 308, in discussing the duty of this court when the trial judge had refused á new trial, Justice Carpenter said:

“In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses.”

See, also, Finkbinder v. Ernst, 135 Mich. 226; Line v. Railway Co., supra.

As said before, a number of witnesses testified supporting fully plaintiff’s theory of the case. The circuit judge saw and heard these witnesses, and had an excellent opportunity to judge of their truthfulness. He did not abuse his discretion in refusing a new trial upon the ground that the verdict was against the weight of the evidence.

Was the verdict so excessive as to make it his duty to grant a new trial ? Counsel say:

“In spite of all of these inaccuracies of the testimony and based solely upon the opinion evidence of plaintiff experts, all of whom admit the possibility of their being mistaken, the jury rendered a verdict for $16,927, which is the full present worth of his entire earnings during his full expectancy of life at the highest remuneration he was able to show that he had ever earned. Such a verdict ought not to be permitted to stand.”

The testimony upon the part of the plaintiff tended to show that, at the time of the injury, his earning capacity was such that the present worth of his earnings, based upon his expectancy of life, would equal the amount of the verdict. In addition to this, it is shown that the plaintiff, who was 50 years old at the time of his injury, weighing 200 pounds, and in perfect physical and mental health, has become a physical wreck, and that his mind is very badly affected. This being. the record, we do not think we ought to say we will set aside the action of the circuit judge (who saw the plaintiff at the trial) in refusing a new trial because the verdict was excessive. In addition

to the authorities cited by the circuit judge, see Chicago, etc., R. Co. v. Holland, 18 Ill. App. 418; Illinois Cent. R. Co. v. Souders, 79 Ill. App. 41; Shaw v. Railroad Co., 8 Gray (Mass.), 45; Gulf, etc., R. Co. v. Shelton, 80 Tex. Civ. App. 72; Fonda v. Railway Co., 77 Minn. 336; Galveston, etc., R. Co. v. Hynes, 21 Tex. Civ. App. 34.

Errors are assigned as to the admission of testimony. We deem it necessary to discuss only one of them. We quote from brief of counsel:

“The witnesses Don Lacy and James McGory had both testified that the plaintiff had offered them a suit of clothes if they would testify in his behalf, provided he won the case; and, in the questions covered by assignments 3, 4, 5, and 6, plaintiff’s counsel was permitted to ask these witnesses, in substance, whether these promises by the plaintiff had in any way affected their testimony, or caused them to tell anything different than the truth, and by the question covered by assignment No. 39 plaintiff was asked whether in this arrangement he attempted to influence these witnesses to tell anything but the truth.”

If the testimony of these witnesses had been left where it was left by counsel, it would have been argued to the jury, as it is argued here, that plaintiff had attempted to bribe these men to distort the facts in his favor. The examination which was permitted by the circuit judge, and of which complaint is made, drew out just what was said, the circumstances under which it was said, the effect of what was said, tending to show that no one intended any harm, and that what was said did not influence the testimony of the witnesses. We do not think it was error to permit this testimony.

The court charged the jury as follows:

“In order for the plaintiff to recover in this case it is necessary for him to establish by his proofs three separate and distinct facts:

“First. That the defendánt company was negligent in the manner in which it ran its cars at the time of his injury, and while he was a passenger upon the car.

Second. That the plaintiff himself, at the time of the happening of the accident, was in the exercise of and was taking ordinary care for the preservation of his own safety.

Third. That the negligent running of the car by the defendant was the cause of the plaintiff being thrown from the car; and, in order for the plaintiff to recover, it is necessary for you to find the existence of each one of these three propositions by a preponderance of the evidence in the case. A preponderance of the evidence means simply evidence that outweighs that which is brought to oppose it. You have a right to believe one person in preference to a dozen others, if you believe what that person has testified to, that it is the truth; it does not mean that the person who has proved his cause by a preponderance of the evidence must have sworn more witnesses, as the number of witnesses has nothing to do with the case in the determination of the question of preponderance of the evidence.”

■ Error is assigned in relation to the part in italics. Counsel for appellee seek to justify this charge by saying it is substantially the same as the one approved by this court in Strand v. Railway Co., 67 Mich. 380. We cannot agree with counsel in this contention. We have quoted all of the charge of the court upon the subject of the burden of proof. This court has never said that ‘ ‘ the number of witnesses has nothing to do with the case in the determination of the question of preponderance of evidence.” We have held that it was not conclusive, and that the jury might believe one witness as against any number of others, if convinced of his truthfulness, but it is always the duty of the jury to consider the number of the witnesses as well as the quality of the evidence in determining where the truth lies. The case at best was a close one, and we cannot say that this improper charge may not have misled the jury. Eor this reason we think the case must be reversed. We concur in the second proposition discussed by Justice Grant.

It is reversed, and a new trial ordered.

Carpenter, O. J., McAlvay and Blair, JJ., concurred with Moore, J.

Grant, J.

1. This case is without a parallel in cases of negligence. It appears to be in conflict with the law of centrifugal force, in the operation of which there is no exception. Some other power must have operated in opposition to centrifugal force to throw the plaintiff in the manner claimed. He stood with his back against the closed door, facing the open door, upon the opposite side of the car. He testified:

“I was braced up there, so I thought I was braced safe to stand up there, with my back against the wall and my feet ahead, holding my balance from any shaking.”

Suddenly, according to his own testimony and the testimony of others who saw the accident at some distance away, he was thrown from this position across the car and into the street 10 feet from the car, in the direction directly opposite to the law of centrifugal force, and fell upon his back. The claim, as I understand it, is that, when the forward wheels struck the curve, the law of centrifugal force is in operation, but when' the rear trucks strike the curve the centrifugal force has ceased to operate and there is a violent force in the opposite direction.

In rounding a curve, the motorman having lost control of the car in descending a grade, a passenger standing upon the platform and having hold of the iron rod claimed that, as the car rounded the curve, the centrifugal force was sufficient to, and did, throw her from the car to the street. In that case as in this, there would be no tendency to throw a passenger either way until the curve was reached. In this respect that case and this seem to be parallel. The claim of the defendant in that case was that the passenger jumped from the car. The court said:

“ There is nothing so inconsistent in the idea that the centrifugal force should have broken her hold and thrown her from the car as to justify the jury in finding that she jumped off,” etc. Howell v. Railway Co., 136 Mich. 432, 436.

I confess it is difficult to understand how this plaintiff, under similar circumstances, could be violently thrown in the opposite direction a distance of nearly 15 feet, contrary to the law of centrifugal force. The defendant gave evidence of experiments over this same curve, with the same car, at various rates of speed, some of which wore the full speed of the car. Six witnesses participated in these experiments. All testified that in the position occupied by the plaintiff the only tendency was to throw the body in accordance with the law of centrifugal force. Of these witnesses four were in the-employ of the defendant, and two were disinterested citizens.

• In rebuttal plaintiff produced two witnesses. Their testimony is as follows: The witness Herbert:

“Q. Has your attention been directed in any way to the tendency in which, rounding the curve on the corner of Sixth and Wadsworth streets —the direction it would tend to throw a passenger standing on the rear platform ?

‘‘A. Yes, it would throw him to the east.

“Q. And that means what direction ?

“A. To the right.

“Q. To the open door ?

“A. Yes, sir.”

Cross-examination:

“Q. When was it that you were on the car to test that?

“A. I never was there to test that.”

Witness William Brown:

“Q. Have you given attention to the effect of a passenger standing upon the rear platform of a street car passing around the Sixth Street curve from the south to the east ?

“A. Yes.

“Q. And what would be the tendency, as to what direction it would throw him in rounding the curve ?

“A. Well, say the car, when it strikes the switch, the tendency would be to throw- to the left, and when the second pair of wheels strikes it, it would throw to the right.

“Q. And when thrown to the right what direction is it ?

“A. Towards the door.

“Q. And what effect does it have upon the feet ?

“A. Why, it would take the feet out from under him.”

The force must have been very great to throw the plaintiff, a strong man weighing 200 pounds, from the braced position, across the platform of the car through the open door into the street. Under the testimony of the plaintiff and his witnesses, if the jury believed them, it did occur, and I am compelled to concur in the opinion of my Brother Moore, that there was a disputed issue of fact for the jury. I concur in reversing the case for the error in the charge of the court, as stated in my Brother’s opinion. Inasmuch as a new trial is granted, I express no opinion upon the other questions raised upon the motion for a new trial.

2. The refusal of the court to direct a view of the premises and to accept the offer of defendant “to take the court and the jury out on that curve and arrange to make, with the court and jury, the turn of the curve on that car,” rested in the sound discretion of the court, and error canpot be assigned upon his order or refusal. 6 Thompson on Negligence, § 7878; Mulliken v. City of Corunna, 110 Mich. 212; Williams v. City of Grand Rapids, 53 Mich. 271; Stewart v. Railway Co., 89 Mich. 318 (17 L. R. A. 539). The offer of the defendant in this case involved placing the jury and the judge upon the car, or placing them in the vicinity, where they might view the car with others standing upon it in the position in which plaintiff stood. Such a course was condemned in Moore v. Railway Co., 93 Iowa, 484. I am not prepared to follow that decision.

In this case, a view of the situation would evidently have been of no aid, unless the car was driven around the curve at a rate equal to that when the plaintiff received his injury. Certainly the court could not have compelled the jury to place themselves upon this car, and have it driven around the curve at a dangerous rate of speed.


text:
    KENASTON v. RIKER.
    Intoxicating Liquors — Municipal Ordinance— License — Mandamus-Propriety. '
    On certiorari to review the action of a circuit judge in refusing to issue a mandamus compelling a justice of the peace to issue a warrant for violation of a municipal ordinance licensing saloons, the order of the circuit judge is affirmed; Mr. ' Justice Blair, with whom concur Justices Montgomery and Ostrander, writing for affirmance on the ground that a license of $500 per year as-applied to saloons selling- nonintoxicating drinks is excessive, and Mr. Justice Hooker, with whom concurs Mr. Justice Grant, writing for affirmance on the ground that with four justices of the peace in each township, to whom application for a warrant could be made, it was unnecessary to review the refusal of one of them and therewith decide the validity of the ordinance by mandamus.
    Certiorari to Barry; Smith, J.
    Submitted April 3, 1906.
    (Calendar No. 21,567.)
    Decided October 29, 1906.
    Mandamus by Alonzo E. Kenaston to compel Marcus "W. Riker, justice of the peace, to issue a warrant against Erank Herrick for a violation of an ordinance. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Alonzo E. Kenaston (Thomas & Pryor, of counsel), for relator.

      Golgrove & Potter, for respondent.

      Thomas Sullivan, Fred, W. Walker, and Robert B. Dawson, for Herrick.
   Blair, J.

On July 5, 1905, relator applied to respondent, one of the justices of the peace of the city of Hastings, to take his complaint and issue a warrant against one Herrick for the offense of violating an ordinance of ■the city entitled:

“An ordinance relative to licensing the keeping of saloons in the city of Hastings and the conduct thereof, and prescribing penalties for its violation.”

The respondent refused to accept the complaint and issue the warrant, upon .the ground that the ordinance was invalid for various reasons. Thereupon, relator applied to the circuit court for a writ of mandamus to compel the magistrate to receive the complaint and issue the warrant. Upon the hearing before him, the circuit judge denied relator’s application, and this order relator seeks to review in this court upon certiorari.

The charter of the city provides, chapter 10, § 1:

“ The city of Hastings shall, in addition to the other powers as are herein conferred, have the general powers and authority in this chapter mentioned; and the council may pass such ordinances in relation thereto, and for the exercise of the same, as they may deem proper.” Act No. 402, Local Acts 1903.

Subdivision 12 of said section 1 of the same chapter authorizes the council to pass ordinances :•

“ To regulate and license all taverns and houses of public entertainment, all saloons, restaurants and eating houses, and to regulate and prescribe, the location of saloons; but this shall not be construed as authorizing the licensing of the sale of intoxicating liquors.” .

The ordinance in question provides, section 1:

“ That no person shall engage in the business of keeping a saloon within the limits of the city of Hastings, without first having obtained a license for that purpose from the city council of the city of Hastings.

‘ Section 2. Every person desiring to keep a saloon in the city of Hastings shall, before a license is obtained for that purpose, make an application in writing to the city council for such license, stating the location of the saloon, which application shall be accompanied by a recommendation signed by at least three reputable and respectable citizens of this city, certifying that the applicant is well known to them and is of means and qualified to keep a saloon and is of good reputation, fame, moral character and an orderly person.

“Such applicant shall also before receiving his license pay to the city treasurer five hundred dollars for such license, and take the treasurer’s receipt therefor. Such license when issued shall state the location of the saloon as designated in the application and such location shall not be changed to any other part of the city without the consent of the city council, and no license shall extend beyond the first Monday in June next after the issue of the same.”

The ordinance was passed at a regular meeting of the city council, there being five members present and all voting in favor of the ordinance. The city council is composed of the mayor, clerk, and eight aldermen. The original ordinance, in typewritten form, as enacted by the city council, was properly published in one of the newspapers printed and circulating within the city of Hastings, and after its publication was returned to the clerk’s office, where it was duly filed.

The charter of the city provides that all ordinances shall require for their passage the concurrence of the majority of all the aldermen elected. It is further provided, section 3, chap. 8:

“No ordinance or resolution passed by the council shall have any force or effect, if, on the day of its passage, or the next day thereafter, the mayor, or other officer or person legally discharging the duties of mayor, shall lodge in the office of the clerk, a notice, in writing, suspending the-immediate operation of such ordinance or resolution. If the mayor or other officer or person legally exercising the office of mayor, shall within three days after the passage of any such ordinance or resolution, lodge in the office of the city clerk his reasons in writing, why the same should not go into effect, the same shall not go. into effect, nor have any legal operation, unless it shall, at a subsequent meeting of the council, be passed by a two-thirds vote of all the aldermen elect, exclusive of the. mayor or other officer or person legally exercising the duties, of the office of mayor, and if so repassed shall go into effect according to the terms thereof. If such reasons shall not be lodged with the clerk, as above provided, such ordinance or resolution shall have the same operation and effect as if no notice suspending the same had been lodged with the city clerk, and no ordinance or resolution of the council shall go into operation until after the expiration of twenty-four hours after its passage, unless the said mayor or acting mayor shall approve the same in writing.”

As provided in section 4 of chapter 8:

“ All ordinances, when approved by the mayor, or when regularly- enacted, shall be immediately recorded by the clerk of the council, in a book to be called the ‘ record of ordinances,’ and it shall be the duty of the mayor and clerk to authenticate the same by their official signatures, upon such record.”

Section 5 provides:

“ Within one week after the passage of any ordinance, the same shall be published in some newspaper printed and circulated within the city, and the clerk shall immediately after such publication enter upon the record of ordinances, in the blank space to be left for such purpose, under the recorded ordinance a certificate stating in .what newspaper and of what date such publication was made, and sign the same officially, and such certificate shall be prima facie evidence that legal publication of such ordinance has been made.”

Section 6 provides:

“ Whenever it shall be necessary to prove any of the laws, regulations or ordinances of the city, or any resolution adopted by the council thereof, the same may be read in all courts of justice, and in all proceedings: First, from a copy record thereof kept by the city clerk; second, from a copy thereof, or of such record thereof, certified by the city clerk under -the seal of the city; third, from any volume of ordinances purporting to have been written or printed by authority of the council.”

Immediately after the ordinance in question had been enacted, the clerk undertook to record the same in the book of ordinances. In copying the same, the clause of section 2 above quoted, beginning “such applicant shall also before receiving his license pay to the city treasurer five hundred dollars,” etc., was omitted by mistake. The ordinance, as copied in the ordinance book, was signed and authenticated by the mayor and clerk, and a certificate of publication was attached to the ordinance, as required by the charter. At the suggestion of the city attorney, the clerk, whose office had then expired, wrote on the opposite page from that on which the ordinance was copied in the record book the words that had been omitted by mistake, and made a notation beneath them pointing out where these words ought to have followed in the ■ original copy.

The circuit judge denied the writ upon the principal grounds:

1. That the ordinance had not been duly and legally authenticated, as required by the charter.

2. That, under the charter and the stipulation of the mayor and respondent as to the facts in the case, the city had no power to pass the ordinance.

We do not think the ordinance was invalidated by the failure of the clerk to copy it into the record book correctly. Stevenson v. Bay City, 26 Mich. 45; Boehme v. City of Monroe, 106 Mich. 401; McQuillin on Municipal Ordinances, § 100. ■ The authority of the council to pass the ordinance in question, apart from the question of its reasonableness, is sustained by our previous decisions in Kitson v. Mayor, etc., of Ann Arbor, 26 Mich. 325; Wolf v. City of Lansing, 53 Mich. 367. The distinction between the case before us and Dewar v. People, 40 Mich. 401, upon which the circuit court relied, is clearly pointed out in Wolf v. City of Lansing. It is contended, however, by counsel for respondent, that the ordinance is unreasonable and oppressive, and for that reason invalid. We think this contention must be sustained.

The ordinance is not limited in its application to saloons where intoxicating drinks are sold. If it were, it would be invalid under the holding in the case of Dewar v. People, supra. In this case the ordinance is general, and applies to all-saloons as defined in Kitson v. Mayor, etc., of Ann Arbor, supra, including the venders of harmless refreshments in the same category with those engaged in the sale of intoxicating beverages. No discrimination is made as regards the fees demanded, as in the case of Wolf v. City of Lansing, but all are required to pay the license fee of $500 before engaging in business. We think that, as applied to those saloonkeepers who are not engaged in the sale of intoxicating drinks, the ordinance is oppressive and unreasonable, and, therefore, invalid. This seems to have been the view of the city authorities, since they have singled out and made complaints against those saloonkeepers only who are engaged in the sale of intoxicating drinks, and, by the stipulation of facts filed in the case, counsel for relator agreed that it was not intended to demand the fee of the keepers of other saloons.

The contention of respondent’s counsel that the ordinance provides for a tax and, therefore, required a two-thirds vote is overruled by the recent case of Wells v. Torrey, 144 Mich. 689.

The order denying the writ of mandamus is affirmed.

Montgomery and Ostrander, JJ., concurred with Blair, J.

Hooker, J.

(concurring). I am of the opinion that the writ was improvidently issued in this case. It is not the province of courts to encourage the practice of trying the validity of laws upon mandamus when it can be avoided. With four justices in every township, it can seldom be necessary to resort to such proceeding merely because a justice first applied to shall be of the opinion that a warrant should not issue, whether his judgment is based upon a question of fact or law. I therefore concur in the affirmance of the order, expressing no opinion on other questions.

Grant, J., concurred with Hooker, J.


author: Ostrander, J. Moore, J.

text:
    ROBERTS v. GATES.

    Attorney and Client — Duty to Client — Breach—Liability.
    Where, in an action against an attorney for a breach of duty, there is evidence from which the jury may find that plaintiff employed defendant to procure for him an outstanding title to land which plaintiff had conveyed by warranty deed, and that defendant collusively had the outstanding title conveyed to a third person from whom plaintiff purchased at a substantial advance over its cost, it is error to direct a verdict for defendant, since plaintiff is entitled to recover the difference between the cost of the title to defendant and the price paid by plaintiff as money in defendant’s hands equitably belonging to plaintiff.
    Error to Sanilac; Beach, J.
    Submitted April 18, 1906.
    (Docket No. 83.)
    Decided October 29, 1906.
    Case by William Roberts against Charles F. Gates and Albert S. Sholes for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed as to defendant Gates, and affirmed as to defendant Sholes. (See Roberts v. Sholes, 144 Mich. 215.)

      Avery & Walsh (E. C. Babcock, of counsel), for appellant.

      Charles E. Gates, in pro. per.

      Erect C. Ballard, for defendant Sholes.

       Rehearing denied December 17, 1906.

   Ostrander, J.

Plaintiff conveyed certain land by warranty deed, having at the time only a tax title. It is the theory of his case in this action that, becoming satisfied that his tax title was invalid, he employed defendant Gates as his attorney to purchase the so-called original title for him at the lowest possible price; that his attorney, instead of purchasing the land for him, purchased it for himself, taking a deed therefor to the defendant Sholes; that he, plaintiff, not knowing of the fraudulent conduct of his attorney, obtained a deed to the land from Sholes; that the land was purchased from the original owners for $150 and plaintiff paid Sholes $502.50. There is testimony which, if believed by the jury, would have warranted them in finding a verdict against the defendant Gates for a sum equal to the difference between $150 and $502.50, upon the theory that Sholes was a mere nominal party to the transaction and Gates the real party, who fixed the price for which plaintiff was obliged to purchase the land, the difference between the price paid for the deed and the sum exacted from plaintiff being the profit to be realized by Gates when the note of plaintiff, given, in part payment for that land, and in the hands of third parties, should be paid. That is to say, that, if plaintiff had discovered the facts before purchasing the land from Sholes, and had filed a bill to obtain the benefit of the action of his attorney, the testimony in the case, if believed, would support a decree in his favor. The case was not submitted to the jury, but a verdict for both defendants was directed. The learned trial judge was of opinion that, as matter of law, plaintiff could not purchase the title of Mr. Ballard (Sholes), pay the amount demanded, and charge it to Gates, although Gates may have been employed as an attorney and have been guilty of a breach of the contract of employment; that, possibly, if plaintiff had contested his ejectment suit concerning the land to a- conclusion and had been compelled to pay a certain amount for breach of his covenants of warranty, and the jury had found the employment to be as claimed, and the breach of it, he might have recovered such sum from the defendant Gates. I know of no legal objection, the facts being established, to the recovery by plaintiff in an action at law of this sum of money as money in the hands, of the defendant Gates which, in equity and good conscience, belongs to plaintiff, and in my opinion the case should have been submitted to the jury under proper instructions. Other objections to a recovery, made by counsel for defendant Gates in the brief, are none of them insuperable. Reversed as to defendant Gates. Affirmed as to defendant Sholes.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, -and Hooker, JJ., concurred with Ostrander, J.

Moore, J.

(dissenting). It is the claim of plaintiff, briefly stated, that, after he became the owner of a tax title, he employed the defendant Gates to procure for him the original title from Fulton Brothers upon as favorable terms as possible; that, instead of doing so, the two defendants conspired together to procure the original title, the deed thereto being taken in the name of Sholes, who later conveyed to the plaintiff. It is to recover the damages caused by having to pay Sholes more than plaintiff claims he should have paid Fulton Brothers, that this suit is brought. At the close of plaintiff’s testimony a verdict was directed in favor, of defendant Sholes, and, upon the close of all the testimony* it was directed in favor of defendant Gates. The case is brought here by writ of error, counsel insisting there was a case to go to the jury.

A careful reading of the record satisfies us that, at the close of plaintiff’s testimony, no wrong-doing was shown as to defendant Sholes, and we think the court very properly directed a verdict in his favor.

It is the claim of defendant Gates that, at the time when the plaintiff claims Gates was giving him advice about the tax title, and employed him to procure the original title, he was not, and had never acted as, his attorney, and a number of receipts signed by the plaintiff and introduced in evidence tends to strongly support this claim. He also testified that he had no talk with plaintiff about procuring for him the original title; that he learned from an inspection of the records the Fulton Brothers were the owners, and dealt directly with them in procuring the original title; and that when plaintiff obtained the deed from Sholes he knew fully the part Mr. Gates had in the transaction. His testimony is a full and explicit denial of any wrong-doing. This dispute between plaintiff and Mr. Gates of course presented a question of fact for the jury, and, if it was all there was in the case, it would have been the duty of the judge to submit the question to them. It was, however, not only the duty of the plaintiff to show the agreement and a breach of it, but to furnish some testimony upon which the jury could act intelligently in arriving at the amount of damages.

It appears by the record that in the latter part of 1896 Fulton Brothers and their wives executed a deed to Mr. Roberts for this land and sent it to Judge Stevens of Port Huron to be delivered when $125 was paid. Some correspondence ensued, and the deed was returned to Fulton Brothers. Mr. Roberts says he was governed by the advice of Mr. Gates. This is denied by Mr. Gates. The latter testified he found the title was in Fulton Brothers from the indexes in the abstract office; that he then called the Fulton Brothers by telephone and inquired of them for what their interest could be purchased; that he was asked if he was acting for Roberts, and was told “ If you are you cannot have it for a cent less than the land is worth.” This testimony is uncontradicted. It also appears from Mr. Roberts’ testimony that for the deed from Sholes to him he paid $77.50 in money, and gave his notes for $425; that he refused to pay these notes; that he has been sued upon them, and that in an affidavit filed in the case he swore that “he has a good and substantial defense to the merits thereof as he is advised by his counsel after such statement made as aforesaid and-verily believes to be true.”

We have, then, a case where it appears the Fulton Brothers would not sell to Mr. Roberts for less than the full consideration named in the deed from Mr. Sholes, where it also appears that all he has paid to Mr. Sholes is $77.50 in money and notes for the balance, and as to the notes he is contesting them and claims he has a good defense to the suit brought upon them. I agree with the circuit judge when he said that ‘ ‘ he was of the opinion that the case was barren of facts to form a basis as to the measure of damages,” and for that reason directed a verdict in favor of Mr. Gates.

£ think the judgment should be affirmed.


author: Ostrander, J. Montgomery, J.

text:
    HODGE v. CITY OF ST. LOUIS.
    1. Trial — Argument of Counsel — Conduct of Witness — Privilege — Waiver.
    Waiver by plaintiff, in a personal injury case, of his privilege, after his physician has been called to the stand as a witness by the defendant, does not bar comment by counsel for plaintiff upon the conduct of the physician in making improper disclosures leading to his being called as a witness. '
    2. Highways and Streets — Municipal Corporations — Personal Injury — Defective Sidewalk — Contributory Negligence. •
    Where a pedestrian walking on a sidewalk, the planks of which are loose and have been for two years to his knowledge, is thrown down and injured by a person walking on the other side of the walk stepping on the other end of a plank,. and the pedestrian’s attention ■ is not diverted otherwise than by conversation with the person with whom he is walking and who steps upon the plank, his contributory negligence bars recovery. Montgomery, J., Carpenter, C. J., and Moore, J., dissenting.
    Error to Gratiot; Stone, J.
    Submitted April 19, 1906.
    (Docket No. 62.)
    Decided October 29, 1906.
    Case by William A. Hodge against the city of St. Louis for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Kelly 8. 8earl and G. W. Giddings, for appellant.

      T. W. Whitney and William A. Bahlke, for appellee.
   Ostrander, J.

Plaintiff has recovered a judgment of $1,700 for injuries received in consequence of falling, or being thrown down, upon a defective sidewalk.

The judgment and verdict must, in any event, be set aside for the intemperate language used by counsel for the plaintiff in his argument to the jury, persisted in after being rebuked by the court. In view of the further conclusion arrived at, it is unnecessary to dwell upon the point further than to say that criticism is not made of proper argument addressed to the conduct of the physician, as affecting his credibility. Waiver of privilege by plaintiff after the physician was produced in court, in the presence of the jury, as a witness for the defendant, would not bar comment of counsel for plaintiff, if, as was claimed by him, improper disclosures, made by the physician, led to his being summoned as a witness. We do not, in saying this, assume that such disclosures were made.

That the sidewalk was defective, and had been for a considerable time, is not disputed. The court said to the jury, and this portion of the charge is not challenged, that the fact was established. The testimony of the plaintiff, to which alone reference will be made, was to the following effect:

1. The injury occurred in front of premises described as lot 1, in block 78, also known as the “ Kennedy Lot,” at about half past 6 o’clock in the evening of June 12, 1903. Plaintiff was going west on Washington avenue, from his saloon to his home, carrying a gallon bottle of mineral water with one hand and his laundry and some meat with the other.

2. Plaintiff’s son and a companion came from across the street and walked with plaintiff. Plaintiff was on the inside and the boys on the outside or street side of the walk. “ I was walking real fast.” The boys stepped on a board, the other end going up and catching plaintiff between the legs, throwing him down.

3. For two years plaintiff had gone over this walk six times every day, except that, upon some occasions, he took the other or north side of the street. The walk in front of the Kennedy lot had been in the same condition, substantially, as it was on the day of the injury, for two years.

“It was in such condition the planks would fly up if you stepped on the end of them. * * * It was in such condition that the nails stuck up .through the nail holes in the boards in certain places and there was large holes in the boards so that the nails would not hold-them down, and the stringers underneath were rotten. As you stepped on them, if you walked in the middle they would not tip up but if you got on to the edge they would fly up.

Q. You knew that condition during that entire two years ?

“A. Yes, sir.

Q. You are positive you are correct about it ?

“A. Yes, I think I am.

Q. You saw that condition every time you went along there ?

“A. Yes,'sir.

“ Q. You could see it was in the condition you have described, the day you got hurt ?

“A. Yes, sir.

Q. The boards were loose and would tip up if you stepped on the ends ?

“A. Yes, sir.

Q. These big holes were there and the nails stuck up .through ?

“A. Yes, sir.

Q. Some of the nails sticking up ?

“A. Yes, sir.

Q. And you could see the rotten condition of the •stringers ?

“A. Yes, sir,

Q. You knew that condition during the entire time ;you lived there ?

“A. Yes, sir.

Q. This continued up to the time of the accident ?

“A. Yes, sir. I did not notice it when I went along in the morning of that day. I walked over it the same as usual. The only change made in the condition of the walk from the time I moved there up to the time of the accident was, that once in a while there were new boards slipped in when they would get real bad. When some of these boards would get tipped up, new ones would be slipped in. With that exception there was no change. Just prior to the accident, I had noticed the boards would still tip up. Just a few days before it, I didn’t know they would tip up. I could see the nails were sticking up. I knew the condition was there that I have described. I could not tell how long before June 12th, I had walked on the north side of Washington avenue. I might have gone there that month, and I might not. At the time of the accident it was a nice sunshiny day, and the street along there was dry, and I could have turned out at, the driveway, between Long’s and Kennedy’s lot, and walked along the road to the crosswálk, if I had wanted to. I didn’t do that. I could not say whether I walked all the way from Mill street to the Kennedy lot on the south side of Washington avenue or not at the time I was hurt. I don’t remember. I sometimes crossed at different places. I could cross over at any one of the three blocks. There were sidewalks on both sides and crosswalks at every intersection. The two boys came up behind me, and caught up with me after I left Long’s corner, and between there and the Kennedy lot. I think they were walking or running possibly. They caught up with me before I got to the driveway. I don’t think they were running when I fell down, but think they were walking fast alongside of me, and one of them stepped on a board and tripped it up about 9 or 12 feet after I had left the driveway and while we were in front of the Kennedy lot. I know that I fell in front of the Kennedy lot because I could tell the sidewalk and the ditch. I saw them at the time. When I went on ther§ I was busy in conversation with the boys. I was tripped up. When I got up I knew I was in front of Kennedy’s. When the boys came up beside me I knew where I was and knew at the time that I was some place in front of George Long’s, and I then knew that the next premises west of George Long’s was the Kennedy property.

“Q. You knew this old, rickety sidewalk would be the next sidewalk you would encounter after you passed this ?

“A. It didn’t enter my mind then.

“Q. You say it didn’t enter your mind it was ?

“JL No, sir.

“Q. You knew when you started for home you would have to pass that piece of walk ?

“A. That was the way I always went.

“Q. You knew it was there ?

“A. Yes, sir. * * *

“Q. At the time you fell it was broad daylight, was it not ?

“A. Yes, sir.

“Q. There was nothing to prevent you from seeing, if you looked ahead of you, this walk in question at the time you fell ?

“A. No, sir.

“Q. There was nothing to prevent you seeing the bad place when you entered upon this walk if you had been looking for them ?

“A. I don’t know—

“Q. I asked you if there was anything to prevent you from having seen them if you had looked ?

“A. I suppose if I had my mind on the walk I would have noticed that when I came to it.

“Q. Was there anything there to prevent you from seeing the walk ?

“A. No, sir; the street is open right along. * * * At the point where the driveway enters there is a wagon track, and theré is a little depression between the street and the sidewalk where this driveway crosses, but there is no difficulty in coming into the driveway. You could walk in there easily. At the time when I reached this driveway coming from the east when I was hurt I could have turned out at this driveway by walking about 12 feet to the north and then have gone down the street to the west until I reached the crosswalk. It was a level road and not muddy, and if I had taken that course and had gone to the crosswalk I could then have gone 12 feet south and passed on to my home.”

At the conclusion of plaintiff’s case, and again when proofs were closed, counsel for defendant moved for a directed verdict for defendant, upon the ground that plaintiff had shown himself to have been guilty of negligence precluding a recovery. It is the law of this State, undoubtedly, that it is not negligence as matter of law for a pedestrian to make use of a walk he knows to be out of repair. And whether the defect is or is not known, a reasonable diverting of attention from the known or the actual and visible condition of the way, at the moment of injury, may require the question of plaintiff’s negligence to be submitted to the jury. This court has, however, never held that where the unsafe condition of .the way is well known, and the circumstances relied upon as attracting attention from its condition and from the danger attending passage are circumstances which themselves, to the knowledge and within the experience of the injured person, create or make threatening the danger, the testimony of the injured person that he did not think or did not have his danger in mind, raises a question of fact as to his negligence. The facts just stated appear here. They serve to distinguish this case from most, and, perhaps, from all, cases of injuries from defective ways heretofore presented to this court. This is not the case of one having previous knowledge of unsafe conditions who attempts prudently, in view of those conditions, to make a passage. The injury occurred in broad daylight, on a piece of walk which was for a considerable distance, and in the same way, defective. The defect was not a single hole, or a broken plank. It was a defect to be regarded as eminently dangerous as plaintiff used the walk. Plaintiff’s knowledge was:

“As you stepped on them (the boards in the walk), if you walked in the middle they would not tip up, but, if you got onto the edge, they would fly up. ”

It is not claimed that the situation increased the care exercised by plaintiff. On the contrary, “I was walking real fast,” on the ends of the boards, and a boy was walking on the other ends. The obvious, and, according to his testimony, the usual, if not inevitable, thing occurred. The ends of the boards flew up. On one of them he tripped, fell, and was injured. His attention was not reasonably diverted from existing conditions and from the obvious danger. His own conduct created his danger; did not merely lead him into, or attract attention from, an existing danger. It was negligence not to notice and to realize the obvious danger. The circumstances negative the exercise of due care. The case requires the application of the rule that when it clearly appears from the undisputed facts, judged in the light of that common knowledge and experience of which courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, or when the evidence is of such conclusive character that the court would be compelled to set aside a verdict in opposition to it, the case may properly be withdrawn from the jury. A verdict for defendant should have been directed by the court.

The judgment is reversed, and a new trial granted.

McAlvay, Grant, Blair, and Hooker, JJ., concurred with Ostrander, J.

Montgomery, J.

(dissenting). The testimony tends to show that, while plaintiff had previous knowledge of the fact that the walk in question was in bad repair, as he approached the bad strip of walk he was overtaken by two boys. He continued on his way conversing with them, and when he had passed onto the walk in front of the Kennedy property (the defective walk), 8 to 10 feet, one of the boys stepped on the end of a plank, the other end of which flew up and -tripped plaintiff. The plaintiff testifies in substance that the unsafe condition of the sidewalk did not enter his mind at the time. It is not negligence, as a matter of law, for a pedestrian to make use of a walk he may know to be out of repair. Harris v. Township of Clinton, 64 Mich. 447. If, however, he proceeds upon the way, and suffers an avoidable injury from a defect known to him and present in his mind at the time all would agree that his contributory negligence should bar recovery. Grandorf v. Railway Co., 113 Mich. 496. Where, however, the defective condition of the walk is not in the mind of the traveler at the time, and his attention is reasonably attracted elsewhere, it is not held contributory negligence, as matter of law. Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143); Urtel v. City of Flint, 122 Mich. 65; Herring v. City of St. Joseph, 137 Mich. 480; George v. City of Haverhill, 110 Mass. 506; Crites v. City of New Richmond, 98 Wis. 55. The Crites Case has been twice cited by this court with approval, viz.: Urtel v. City of Flint, and Herring v. City of St. Joseph. In the Crites Case the excuse for failure to attend to a known danger was the fact that the plaintiff’s attention was diverted by a passing friend. In the present case the plaintiff’s attention was engrossed by his conversation with companions. No distinction in principle can be noted. We think the question of plaintiff’s contributory negligence one for the jury. Upon the other question we agree with the main opinion.

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