author: Moore, J.

text:
    SHERROD v. DUFFY.
    1. Bills and Notes — Corporations — Conditional Stock Subscription.
    A stockholder who subscribes on condition that a proposed creamery shall be satisfactory, and gives notes for his stock on such condition in writing, is not liable on the notes in the hands of a holder with notice, if he is not satisfied with the creamery, whether his dissatisfaction is reasonable or unreasonable.
    2. Same — Contracts—Waiver of Condition.
    By making payments on the notes through third parties, who paid the several amounts without authority from the defendant, he did not waive the conditions of his contract.
    3. Appeal and Error — Evidence—Harmless Error.
    Where a party opens the door to incompetent evidence by an introduction of the same, he cannot complain of the admission of similar testimony on the same matter for the opposite party.
    4 Principal and Agent — Ratification.
    Accepting notes obtained by an agent who grants unauthorized conditions upon the liability of the maker, constitutes a ratification of the entire transaction.
    Error to Missaukee; Chittenden, J.
    Submitted February 18, 1910.
    (Docket No. 62.)
    Decided March 19, 1910.
    Assumpsit by Sumler J. Sherrod and Glover A. Nash against Martin Duffy upon promissory notes. A judgment for defendant is reviewed by plaintiffs on writ of error.
    Affirmed.

      Jesse R. Cropsey, for appellants.

      Gaffney & Miltner, for appellee.
   Moore, J.

This case was commenced for the recovery of the amount of three notes executed by the defendant on the 26th day of October, 1905, to the Burnap Building &c Supply Company, and by them indorsed to the plaintiffs without recourse. The defendant pleaded the general issue and gave notice that at the time of the execution of said notes an agreement in writing in connection therewith was made, which will appear later; that this agreement was made before the notes were given, was put in writing at the time the notes were given, and was known to plaintiffs at the time the notes were transferred to them.

Martin Duffy was a merchant at Lake City. The creamery was erected at Arlene, where Mr. Duffy was a partner in the Arlene Mercantile Company. Mr. Duffy denies authorizing any written subscription for stock, but admits a settlement when the notes were given, at which time and in connection with the notes a writing was given as follows:

“$300.00.
“Burnap Building & Supply Co.,
“Toledo, O.
“ Certifies that Martin Duffy has paid $300 (Cash $50, notes $250) in full of that amount subscribed by him on a contract for a butter factory at Arlene, Michigan, and is entitled to a corresponding number of shares in said factory as provided in said contract.
“Notes are not accepted as payment or satisfaction of the contract until the same are fully paid. Notes void if factory is not satisfactory.
“Burnap Building & Supply Company,
“ Per J. B. Dick, Special Agent.”

It is the defendant’s claim that the $50 was paid by receipting a store bill at Arlene; that the second $50 was paid at that time at the Arlene store by Mr. Duffy’s partner ; that the third $50 was paid without the knowledge, consent, or authority of Mr. Duffy, at the Missaukee County Bank, by being charged to his account. The balance of the notes Mr. Duffy refused to pay for the reason that, as the creamery did not prove satisfactory to him, the notes were not to be paid. No contract or subscription agreement was offered in evidence. The plaintiffs were content to offer simply the notes in evidence. There was no claim that plaintiffs were bona fide holders for value without notice of any defense that might have been made had the payee sued.

We quote sufficient of the charge to raise the important question in the case :

‘ ‘ The only questions for you to pass upon are whether or not these notes were given with this express understanding that Mr. Duffy should not pay them if he was dissatisfied with this creamery, and if you find that they were given with that express understanding, and that these plaintiffs took these notes under that express agreement, and that Mr. Duffy did express himself as dissatisfied with this factory or creamery, then your verdict will be no cause of action.
“If you find that no such agreement was made, and that Mr. Duffy did not express himself as dissatisfied with the factory, then your verdict will be for the plaintiff for $150, with interest from October 26, 1905, at the rate of 6 per cent, per annum.”

Plaintiffs insist this was error, and that the jury should have been told that the case came within the class of cases where the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination on grounds that are just and sensible, and that the grounds of his decision in that case are open to consideration and subject to the judgment of the courts—citing Schliess v. City of Grand Rapids, 131 Mich. 52 (90 N. W. 700). The testimony of defendant tended to show that he declined to subscribe for any stock in the proposed creamery upon any other condition than that the creamery should work to his satisfaction; that, to make it certain there should be no misunderstanding when the notes were given, he insisted upon the written agreement being made. The case is unlike Schliess v. City of Grand Rapids, supra. The creamery was not put up on land owned by defendant. At most, he only contemplated becoming a stockholder. He had a right to say upon what terms he was willing to become a stockholder. See Gibson v. Cranage, 39 Mich. 49 (33 Am. Rep. 351); Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); United States Electric Fire-Alarm Co. v. City of Big Rapids, 78 Mich. 67 (43 N. W. 1030); Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314, 84 Am. St. Rep. 572); Housding v. Solomon, 127 Mich. 654 (87 N. W. 57).

The court was asked to charge the jury as follows:

“ (4) The jury are further instructed that if they find that the defendant, Martin Duffy, after the notes in question were given, paid a part of the same, or if they were paid by his agents as claimed by him, and that soon after the payment of the same the same was brought to his notice, and he made no protest nor notified the company that the notes were paid without his knowledge or consent, then, in that case, this would constitute an acceptance of the contract, and waiver of any other warranties as claimed by the defendant.”

The court declined to give this request, and it is said he erred in so doing. There are several reasons why the request should not have been given. The contract was not offered in evidence. The case is predicated upon the notes. The writing given to defendant when the notes were given provides when, if at all, the notes shall become void.

The two questions we have discussed are regarded by counsel as his two main propositions, but he presents others which he does not waive. Some of them relate to the admission of testimony upon a phase of the case where the door was thrown open by the examination of the plaintiffs by their own counsel. Others relate to the testimony as to the agency of J. B. Dick, who obtained the notes and gave back the written agreement. The evidence is clear that the giving of all these papers constituted one transaction. Having taken over the notes obtained by Mr. Dick and bringing suit upon them, it is too late to question his agency. The other assignments of error do not require any further reference be made to them.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    LANE v. LANE.
    1. Wills — Contracts—Mental Competency — Deeds.
    A disposition of property by deeds and a somewhat complicated will is not sustainable if the testator, at the time of executing the papers had not sufficient judgment and memory to recognize that the papers presented conformed to his previously expressed intention, and embodied the disposition which he had determined upon.

      2. Same — Inoompetency.
    Upon a review of the facts as to mental competency, a transfer of property made by one in contemplation of death is not sustained as a valid disposition of the estate of deceased.
    Appeal from Lapeer; Smith, J.
    Submitted February 23, 1910.
    (Docket No. 24.)
    Decided March 19, 1910.
    Bill by William H. Lane against George A. Lane and others to set aside a deed. From a decree for complainant, defendant Lane appeals.
    Affirmed.
    Geer, Williams & Halpin, for complainant.

      jB. F. Feed, for appellant.

       As to capacity to make contract as affected by mental conditions, see note to Sprinkle v. Wellborn (N. C.), 3 L. R. A. (N. S.) 174.

   Blair, J.

The bill of complaint in this cause was filed to set aside a deed purporting to have been executed by David A. Lane on April 23, 1908, a few hours before his death. Other deeds and a will were executed at substantially the same time, conveying and devising his property to his brothers and sisters.

On the 20th day of April, 1908, David A. Lane stated to Mr. Hemingway, a justice of the peace and an old friend, that he wished to dispose of his property, and how he wished to dispose of it, and by what papers, and directed him to draw the instruments for his execution. At this time.Mr. Lane had been sick for three months and was failing. The papers were not executed till the 23d because of a claim by one McGunegle that there was a flaw in the title of the farm which had been sold to him' on land contract April 8th, 1908, by David A. Lane.

“Q. That is, the reason of the delay was trying to get a settlement with McGunegle from the 20th of April to the 23d in executing the papers ?
“A. Yes, sir; I couldn’t act without power of attorney in settlement. * * * On the 23d of April, the day these deeds and will were executed, I went there right after dinner, about one o’clock. I' was there before that day; I was there all the forenoon nearly. I talked with David during the forenoon, he gave me a power of attorney that day, about eleven o’clock or twelve, he did give me the power of attorney to settle this trouble with Mc-Gunegle. * * * I got the power of attorney in the morning, I got it to settle with Mr. McGunegle. I didn’t have time to settle with him.
“Q. How did you happen to go back and make those papers right after dinner ? Did Dr. Watterworth tell you you must make those papers right away if you made them at all ?
“A. Yes, sir; he said he was perfectly competent. He told me that in the road between my house and this. He didn’t come there on purpose to tell me to make those papers if I was going to. That is the reason I did not settle with McGunegle or try to settle with him after I got the power of attorney; because he was failing so rapidly I thought I must do it right away or not at all. I wasn’t a great while preparing those papers, perhaps an hour, something about two o’clock when they were signed.”

On May 16, 1908, Mr. Hemingway, at the request of counsel for complainant, signed the following written statement relative to his instructions from David A. Lane:

“ April 20, 1908.
“ David Lane’s statement.
“ Deed Stark house and lot to Maria Larkin.
“ Deed yellow house and lot to Nancy Tower.
“ Deed the farm to George Lane.
“ Will from the mortgages to Will Lane and sister Mary Reynolds, $500.00 each.
“ James T. Lane, $5.00.
‘ ‘ At the time this statement was made he asked me to prepare these papers at once. He said if he lived I was to return them and if he died I was to pass them to the parties to whom they belonged. He never at any other time gave me any directions as to what I should do with the papers. When the papers were made I took them and delivered them after his death under these directions.
[Signed] “ I. L. Hemingway.
“Dated May 16, 1908.”

Mr. Hemingway testified on the present hearing:

“David A. Lane never said anything to me about delivering this deed on the 23d, or at any other time. On the 20th I said to Mr. Lane, ‘ If you recover I will return these deeds,’ and he said, ‘Isaac, I shall never get well;’ and that was all that was ever said about that. He did not assent to the statement that I made that I would return the deed made on the 20th. * * * I didn’t tell Mr. Halpin that David Lane used that language. I think Mr. Halpin was careful to ask me just what was said about the delivery of the papers. I couldn’t say whether he asked me what David Lane said about them — the delivery. I did not understand, on May 16th, when I signed this statement prepared by Mr. Halpin, that it contained the exact language that was used between David Lane and me on April 20th, when he gave me a statement and directions how to dispose of his property.
“Q. Mr. Hemingway, you say that the language that was used at that time you stated to David Lane, that if he got well you would return these papers to him.
“A. I said that, yes, sir; and David Lane said, ‘ Isaac, I will never get well; ’ that was the language. He gave himself no directions as to what should be done with the papers. He left it to me after he told me how he wanted to dispose of his property to arrange the different deeds and will according to my own idea. And I made this will and the three deeds to carry out these directions that he wanted to dispose of his property to arrange the different deeds and will according to my own idea. And I made this will and the three deeds to carry out these directions that he gave me on the 20th.”

The circuit judge, being of the opinion that the case was somewhat like the case of Blackmore v. Thompson, 149 Mich. 693 (113 N. W. 307), held that Mr. Lane was mentally competent to execute the papers, saying:

“ Physically Lane was either a little nearer the stupor immediately preceding death than was Dickerson or else was under the influence of an opiate. At that hour Lane was clearly not in mental or physical condition to have planned a full disposition of his property and keep in mind all the necessary legal requirements, nor to have directed the details. But like ■ Dickerson he had considered the disposition of his property for a considerable time before, especially the giving of the farm, finally to his brother George, and had planned and dictated on the 20th and 21st, when he was in the full possession of all his mental powers, a full disposition of his property, except in a few matters of minor importance which he had left purposely to the discretion of the justice.
“ Justice Hemingway having correctly carried out the instructions, there was really nothing for Lane to do but sign or have signed for him the papers creating a disposition of the property previously settled. I think he comprehended this was being done for him.”

Being of the opinion, however, that there was not a sufficient delivery of the deeds to transfer the title, a decree was entered for complainant, from which the defendant George Lane has appealed to this court.

Previous decisions are of little assistance in determining the question of mental competency, and each case must be determined upon its own facts. The testimony is in conflict upon this question, and after a careful consideration of the testimony of the opposing witnesses we have come to the conclusion that the evidence against mental competency clearly preponderates over the evidence in its support. We do not think that mental competency is established by proof that a grantor had sufficient intellect left to understand that he was signing certain papers and that previously he had requested the person presenting the papers to prepare papers for him. Undoubtedly, the fact that a grantor or testator has fully considered the disposition he wishes to make of his property when of sound mind and has settled upon the disposition which he will make is to be considered in determining his competency to execute the necessary papers to carry such disposition into effect. It would require less strength of mind to take up and consider a previously settled plan than to take up the .subject de novo. But the mind must still possess sufficient judgment and active memory to recognize that the papers presented are in pursuance of his previous determination and actually embody the disposition of his property which it was then his intention they should. In the case of Blackmore v. Thompson, supra, we were of the opinion that the testimony which we credited showed that Mr. Dickerson had a sufficiently active mind and memory to support his execution of a single deed of his property. In this case we are of the opinion that the .testimony to which we give credit demonstrates that Mr. Lane did not possess a sufficiently active mind and memory to validate the deed made in connection with other deeds and a will involving some complications.

The decree is affirmed, with costs to complainant.

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


text:
    HARBOR SPRINGS LUMBER CO. v. EMMET CIRCUIT JUDGE.
    1. Equity — Jurisdiction — Trespass — Adequate Remedy at Law.
    A bill in chancery that avers a trespass on complainant’s land, the tearing down of his fences and damage to crops, the threatened continuation of the same, and that prays for an injunction to restrain the wrong, states a proper case for equity jurisdiction.
    2. Mandamus — Injunction—Vacating Temporary Writ — Discretionary Action.
    Under a bill of complaint which sets up a threatened injury to complainant’s real property, under an alleged claim of right to a temporary private highway founded on irregular proceedings by virtue of Act No. 283, Pub. Acts 1909, which is charged by complainant to be unconstitutional, the issuance of a temporary injunction is a proper exercise of discretion on the part of the circuit judge, and will not be vacated by mandamus.
    Mandamus by the Harbor Springs Lumber Company to compel Frank Shepherd, circuit judge of Emmet county, to vacate an order denying a motion to dissolve a temporary injunction.
    Submitted February 23, 1910.
    (Calendar No. 23,843.)
    Writ denied March 19, 1910.

      A. L. Deuel and Halstead & Halstead, for relator.

      Pailthorp & Hackney, for respondent.
   Moore, J.

This is an application for mandamus to compel respondent to vacate an order denying a motion to dissolve a temporary injunction issued in the cause of Myron Burdick and Rickey A. Burdick, complainants, v. Harbor Springs Lumber Company, defendant, now pending, and to compel the dissolution of said injunction.

The bill of complaint referred to contained the following averments:

“That complainants are owners in fee of the land involved, that they are occupying said land, and are engaged in the cultivation thereof, and that it is bounded on all sides by public highways, traveled and used by the general public for highway purposes; that defendant, Harbor Springs Lumber Company, without right so to do, on December 20,1909, tore down and destroyed complainants’ fences on said land, and entered upon said land with men and teams, and injured and destroyed the clover, grass, and herbage thereon, and has since said date repeatedly tom down and removed said fences and so entered upon said lands against the protests and objections of complainants; that complainants have repeatedly notified said defendant not to disturb said fences or to enter upon said land, but that defendant has refused to comply with said notices, but has persisted in tearing down and destroying said fences and in entering upon said land with men, teams, and sleighs, and has threatened to assault and injure complainants if they should attempt to protect their said property from being trespassed upon, and to arrest complainants if they should interfere; and that said defendant threatens to continue to tear down and remove said fences and to enter upon said lands to the great damage and detriment of complainants; that defendant claims to have acquired some right under sections 7, 8, 9, and 10 of chapter 9 of Act No. 283, Pub. Acts 1909, to enter upon complainant’s premises, but tbat said chapter so far as it relates to the opening of private and temporary highways is unconstitutional, as no provision is made therein for ascertaining and determining the amount of all damages sustained by the opening of temporary highways thereunder by a jury of six freeholders, or by not less than three commissioners as required by section 3 of article 13 of the Constitution (1909) of the State; that the highway commissioner and township board of West Traverse township never determined that there was a necessity for laying out a private or temporary highway across said land; that the damages sustained by complainants were never ascertained as required by said constitutional provision; that the land of complainants is situated in West Traverse township, and that the petition to the highway commissioner was not signed by a resident of West Traverse township; that if defendant is not restrained by injunction from interfering with the fences of complainants and from entering upon their land defendant will continue to tear down and destroy said fences and to trespass upon said land, ‘to the great damage and annoyance of your said orator and oratrix, and will involve your said orator and oratrix in a multiplicity of suits.’ The bill prays for a temporary and a permanent injunction to restrain defendant from tearing down or in any way disturbing the fences on their land, and from entering upon said land, and that defendant be required to pay the damages which complainants have suffered by reason of the tearing down of their fences and the entry upon their lands.”

The defendants answered and sought to justify their acts under proceedings taken by them by virtue of the provisions of Act No. 283, Pub. Acts 1909. The complainants claimed defendants proceeded irregularly, and also claim the act is unconstitutional. The circuit judge, after a full hearing, was of the opinion that there were irregularities in the proceeding and that the law was unconstitutional, and declined to dissolve the temporary injunction.

The question which confronts us at the outset is whether we should interfere with this action of the circuit judge. The claim of the relator is stated by its solicitors as follows:

“ The points in dispute are all pure questions of law, and the temporary injunction gives all the relief that a permanent injunction would. Mandamus is sought, as it is the only effective remedy available to relator. By the time an appeal could be heard in this court, the possibility of using the way and the time for which it was laid out (December 20, 1909, to April 1, 1910) would have expired. Under such circumstances we understand that this court will entertain an application for a writ of mandamus.”

This contention that all questions involved are legal ones is true only in the event that this court should find the law of the case to be as relator claims it to be. In the event that it should find the case is as claimed by the complainants in the chancery case, there is the question of damages to be determined. The court below has not passed upon that question, and this court is not in possession of any facts upon which it could intelligently reach a conclusion upon that phase of the case.

The case stated by the bill of complaint is one properly brought upon the chancery side of the court. See Rhoades v. McNamara, 135 Mich. 644 (98 N. W. 392). The return of the commissioner of highways shows that he signed the return of the township board and of the highway commissioner under a misapprehension.

In Detroit, etc., Plank-Road Co. v. Wayne Circuit Judge, 98 Mich. 141 (56 N. W. 1109), Justice Montgomery, speaking for the court, said:

“ This court does not sit for the purpose of granting injunctions, except it be on final hearing, when we are vested with jurisdiction on appeal. Aside from the power which we exercise in such cases, we can only interpose, if at all, in case of a plain and gross abuse of discretion. Nor is it an abuse of discretion if the circuit judge should reach a different conclusion than we might, if authorized to sit in his place. The granting of a preliminary writ of injunction is a discretionary power vested in the courts of original jurisdiction. 1 High on Injunctions, §§ 11,15. Such a writ is not a matter of right, particularly in cases in which the parties may be fully protected by a final decree, or by a suit at law. This court has in some cases interfered to compel the vacation of writs of injunction when they have operated to affect injuriously vested rights, and when the emergency was such as to require a speedy remedy, and when none but a speedy remedy appeared adequate. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479 (7 N. W. 65); City of Detroit v. Wayne Circuit Judge, 79 Mich. 384 (44 N. W. 622). In each of these cases, however, the issuing of the_injunction was held to be beyond the power of the circuit judge in the particular case. No such criticism can here be passed upon the order made by the respondent. It was certainly within his power to determine judicially whether this writ ought to be granted during the pendency of these proceedings. This he did after a full discussion of the question by counsel, and we do not feel called upon at this stage to review his action.”

In George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511 (99 N. W. 748), Justice Hooker said:

“ The complainant invokes the equitable remedy by injunction. Ordinarily this court will not review the exercise of the judicial discretion of the chancellor, and it is only when the issue or denial of an injunction violates a clear legal right, or is a clear abuse of discretion, that this court will interfere.”

See, also, Doud v. Mackinac Circuit Judge, 118 Mich. 86 (76 N. W. 155); Briggs v. Wayne Circuit Judges, 118 Mich. 200 (76 N. W. 1134); Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449); Central Bitulithic Paving Co. v. Manistee Circuit Judge, 132 Mich. 126 (92 N. W. 938); Blain v. Chippewa Circuit Judge, 145 Mich. 59 (108 N. W. 440).

Upon the record as presented we see no occasion to interfere.

The writ is denied.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
      In re GIES' ESTATE. BAUSCHER v. GIES.
    1. Sales — Offer and Acceptance — Statute of Frauds — Questions of Law and Fact.
    On the trial of a claim against the estate of decedent, for dishes ordered in his lifetime, to be decorated by claimant for him with the initials of deceased, so as to render them unfit for the general market, wherein it appeared that claimant had performed the work, and offered the dishes to the executrix by a letter addressed to the deceased a few days after his death, and received thereafter by such executrix, the question of sufficiency of the acceptance by the manufacturer to effect a valid contract is for the jury.
    2. Same — Statute of Frauds — Work and Labor — Contracts.
    Following the rule adopted by the courts of Massachusetts, the contract, being for an article especially designed for the decedent, not of a kind usually kept for sale by the producer, is a contract for work and labor primarily, and is not subject to the statute of frauds.

    Error to Wayne; Murfin, J.
    Submitted February 24, 1910.
    (Docket No. 77.)
    Decided March 19, 1910.
    Bauscher Bros., Limited, presented a claim against the estate of Edward G.- Gies, deceased, for the amount of an order, for certain goods. The claim was allowed by the commissioners, and Sylvia M. Gies, executrix, appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by claimant on writ of error.
    Reversed.

      Choate & Webster, for appellant.

      Graves, Hatch & Wasey, for appellee.

       Rehearing denied May 7, 1910.

       Statute of frauds, as to distinction between sales of personalty and agreements for work and labor, see note to Flynn v. Dougherty (Cal.), 14 L. R. A. 230.

   Stone, J.

The claimant and appellant is a German corporation, engaged in the manufacture and importation of crockery and china ware. Edward G. Gies, whose estate it is sought to charge herein, in his lifetime conducted a saloon and restaurant in connection therewith in the city of Detroit. On June 8, 1907, one Albert Debicke, an agent for Bauscher Bros., Limited, saw and obtained from Edward G. Gies his written order for dishes bearing his signature. The order provided that the dishes were to be in Detroit on or before September 25, 1907. This written order was sent on to Bauscher Bros., Limited, and the dishes were manufactured, and, appellant claims, according to the terms of the order. On July 18, 1907, Debicke addressed a registered letter to Edward G. Gies, asking for shipping instructions for the dishes in question. Mr. Gies died July 12, 1907. The letter came into the hands of Sylvia M. Gies, widow and executrix of the will of Edward G. Gies, and was receipted for by her and taken to her attorney. Claimant was notified not to ship the dishes. It was admitted at the trial in the circuit court that the goods called for by the order were in existence, and were, on the terms of the contract, sought to be delivered to the executrix, who declined to accept delivery. It appears that about the middle of May, 1908, the dishes were shipped by claimant to New York, whore they were stored and insured, and were and are there still, held subject to the order of the estate. The claim was proved before the commissioners on claims of the estate, and allowed. The estate appealed to the circuit court, and the matter came on for trial before a jury. The order in question was introduced in evidence. The circuit judge, after ruling against the appellee upon the questions of the measure of damages, and the acceptance of the order by the claimant, directed a verdict in favor of the estate, upon the ground that the contract was within the statute of frauds (section 9516, 3 Comp. Laws).

The appellant assigned error upon the charge, and the case is here for review. It is claimed by appellant that there were upwards of 6,000 pieces of the dishes. One of the dishes was produced at the argument in this court. There was evidence showing that the dishes were made of china plate. The clay is found in Germany and France. A few of the dishes were in stock, and the others were manufactured on the order. The order called for decoration, and black and luster lines with monogram “ E. G. G.” in black upon each dish. That part of the order called for work to be done to suit Mr. Gies’ particular purpose and use.

The appellant claims and we think that the evidence fairly supports the claim:

“(1) That the decoration with black and luster lines and the monogram is done by a good artist.
“(2) That this decoration and monogram are to be upon each and every dish.
“(3) That the design varies in size with the size and kind of the dish, and that there are as many designs as there sizes and kinds of dishes.
“(4) That the design is worked out in an exact and artistic manner.
“(5) That after the design has been put on the dish, it is again burned with 1,200 degrees of heat to turn the design in and through the glazing.
“(6) That the cost of putting on the monogram alonéis 40 per cent, of the price of the dish.
“In other words, the cost of putting on the monogram and lines is more than 60 per cent, of the price of the dish on the other side. An illustration will make this plain. If the price of the dish on the other side of the Atlantic was $1 — the duty is 60 per cent, of the import price — this would make the price of the dish in New York $1.60. The cost of putting on the monogram and lines is 40 per cent, of the price of the dish here, which would be 40 per cent, of $1.60, or 64 cents. The duty being 60 per cent, of the import price, or $1, is 60 cents added to the 64 cents makes $1.24. This substracted from the total of $1.60, leaves 36 cents, cost of the dish in plain white, 64 cents the cost of the work and labor to put on the monogram and lines, and 60 cents the duty. This bears out the statement of the court below, and the circuit judge understood this, for he says in his opinion:
“ ‘Of the purchase price involved in this case, a substantial amount is represented by the duty paid by the vendor upon bringing the goods in question into the United States. Even a larger amount is made up of the cost of the orange and black bands and the monogram ; the value of the dishes themselves, before being decorated or imported, representing considerably less than half the total purchase price represented by the order.’ ”

It also appeared that the monogram could not be removed without showing a scorch underneath, and impairing the value of the dish.

It is the claim of the appellee that the judgment of the court below is correct, even if the statute of frauds does not control the case, and it is urged that, upon the question of acceptance, the appellant had no standing in court. The circuit judge, in his opinion upon the motion for a new trial, disposed of that question as follows;

“It is stated that there is no evidence of an acceptance of the order on behalf of the claimant. The fact that the order was filled, and nothing remained to be done except deliver the goods, and delivery was prevented through the executrix, completely disposes of that proposition. There can be no question but that there was an acceptance of this order, but there can also be no question, nor is it controverted, that this acceptance was never in writing.”

We think that the order signed by Mr. Gies may be held to have been a continuing order to the time of his death. It may be well said that the claimant acted on the faith of the order, and that the conduct of the claimant was such that it may be said to be evidence of an acceptance of the order. Goodspeed v. Wiard Plow Co., 45 Mich. 322 (7 N. W. 902). Ordinarily the question of acceptance is one of fact for the jury. It at least would have been a proper question of fact for the jury, resting as it did upon the conduct of the parties. If this order by acceptance became a binding contract, it was binding on the estate of Mr. Gies.

The circuit judge disposed of the case upon the statute of frauds, and held that it was a sale of goods and chattels, and within the terms of the statute. The opinion of the circuit judge and the briefs of counsel for the respective parties abound with much learning and many authorities upon the subject. We cannot discuss all of the authorities cited. It is the claim of the appellant that the statute of frauds does not apply in this case.

The interpretation of the statutory words, “contract for the sale of goods,” etc., has led to the adoption of various rules in different jurisdictions whereby to distinguish contracts for sale from contracts for manufacture. By what may be termed the Massachusetts rule, an agreement by one to construct an article, especially for or according to the plans of another, whether at an agreed price or not, although the transaction is to result in a sale of the article, is a contract for work and labor, and not within the statute. The prevailing view throughout the United States accords substantially with the Massachusetts rule. According to what may be termed the New York rule, where the substance of the contract is work and labor to be done in converting raw materials into a new and totally different article, although the transaction is to result in a sale, the contract is not within the statute, but if at the time of the agreement the article sold substantially exists in its ultimate form, or is to be procured in substantially its ultimate form from others, even though acts remain to be done in finishing it, the agreement is a contract for sale, and within the statute. Certain States have construed the statute by reference to the English cases, or by adopting portions of the Massachusetts or New York rules, without adhering exclusively to either. Among such States are Alabama, Minnesota, New Jersey, Oregon, and Wisconsin. Some jurisdictions adopt the rule that, where the contract primarily contemplates work and labor to be done upon the goods to be sold, so as to make work and labor the essential consideration, the contract is not within the statute. Of these States are Missouri, New Hampshire, South Carolina, Washington, and Wyoming. 20 Cyc. p. 241, et seq., and cases cited.

A leading case in Massachusetts is that of Goddard v. Binney, 115 Mass. 450 (15 Am. Rep. 112). In that case A. agreed to build a buggy for B., and to deliver it at a certain time. B. gave directions as to the style and finish of the buggy, and it was built in compliance with his directions, and marked with his monogram. Before the buggy was finished, B. called to see it, and, in response to an inquiry of A., asking if he might sell the buggy, replied that he would keep it; when the buggy was finished, A. notified B., and sent him a bill for it. B. returned the bill, and promised “to see” A “about it.” The buggy was afterwards destroyed by fire while in A.’s possession. Held, in a suit by A. for the price, that the agreement was not a contract of sale within the statute., We quote at length from that opinion:

“Whether an agreement like that described in this report should be considered as a contract for the sale of goods within the meaning of the statute of frauds, or a contract for labor, services, and materials, and therefore not within that statute, is a question upon which there is a conflict of authority. According to a long course of decisions in New York, and in some other States of the Union, an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered (such as flour from wheat not yet ground, or nails to be made from iron in the vendor’s hands), is not a contract of sale within the meaning of the statute. Crookshank v. Burrell, 18 Johns. (N. Y.) 58 (9 Am. Dec. 187); Sewall v. Fitch, 8 Cow. (N. Y.) 215; Robertson v. Vaughn, 5 Sandf. (N. Y.) 1; Downs v. Ross, 23 Wend. (N. Y.) 270; Eichelberger v. McCauley, 5 Har. & J. (Md.) 213 (9 Am. Dec. 514). In England, on the other hand, the tendency of the recent decisions is to treat all contracts of such a kind intended to result in a sale, as substantially contracts for the sale of chattels; and the decision in Lee v. Griffin, 1 B. & S. 272, goes so far as to hold that a contract to make and fit a set of artificial teeth for a patient is essentially a contract for the sale of goods, and therefore is subject to the provisions of the statute. See Maberley v. Sheppard, 10 Bing. 99; Howe v. Palmer, 3 B. & Ald. 321; Baldey v. Parker, 2 B. & C. 37; Atkinson v. Bell, 8 B. & C. 277.
“In this Commonwealth a rule avoiding both of these extremes was established in Mixer v. Howarth, 21 Pick. (Mass.) 205 (32 Am. Dec. 256), and has been recognized and affirmed in repeated decisions of more recent date. The effect of these decisions we understand to be this, namely: That a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But, on the other hand, if the goods are to be manufactured especially for the purchaser and upon his special order, and not for the general market, the case is not within the statute. Spencer v. Cone, 1 Metc. (Mass.) 288.
“ ‘ The distinction,’ says Chief Justice Shaw, in Lamb v. Crafts, 12 Metc. (Mass.) 353, ‘we believe is now well understood. When a person stipulates for the future sale of articles which he is habitually making, and which, at the time, are not made or finished, it is essentially a contract of sale, and not a contract for labor; otherwise, when the article is made pursuant to the agreement.’
“ In Gardner v. Joy, 9 Metc. (Mass.) 177, a contract to buy a certain number of boxes of candles at a fixed rate per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale and within the statute. To the same general effect are Waterman v. Meigs, 4 Cush. (Mass.) 497, and Clark v. Nichols, 107 Mass. 547. It is true that in * the infinitely various shades of different contracts’ there is some practical difficulty in disposing of the questions that arise under that section of the statute. General Stat. [1860] chap. 105, § 5. But we see no ground for holding that there is any uncertainty in the rule itself. On the contrary, its correctness and justice are clearly implied or expressly affirmed in all of our decisions upon the subject-matter. It is proper to say also that the present case is a much stronger one than Mixer v. Howarth. In this case the carriage was not only built for the defendant, but in conformity in some respects with his directions, and at his request was marked with his initials. It was neither intended nor adapted for the general market. As we are by no means prepared to overrule the decision in that case, we must therefore hold that the statute of frauds does not apply to the contract which the plaintiff is seeking to enforce in this action.”

An instructive case is Roubicek & Zobel v. Haddad, 67 N. J. Law, 522 (51 Atl. 938). The contract was a New York contract, and the rule in that State was’applied. A defendant, who was doing a retail trade in Atlantic City, N. J., ordered from the plaintiffs, who were importers and manufacturers of Bohemian glass novelties, etc., in New York City, an assortment of watchcases and cologne articles, to be thereafter manufactured in Europe, with the words “Atlantic City” thereon, for the special use of defendant’s trade, and it was held, following the decisions of the State of New York, that this was not a contract of sale, but for work, labor, and materials, and hence not a contract within the statute. After stating the New York rule, the court said:

“ It should be stated, however, that the courts of the State of New York have more recently shown a disposition to qualify the rule thus stated to some extent, and to make it conform more closely to the rule as adopted in the later English and American cases. Thus in Passaic Manfg. Co. v. Hoffman, 3 Daly (N. Y.), 495, it is held that if the article to be manufactured to fill the order under the contract was one that was manufactured and supplied to the trade generally, it would be a sale within the statute; but, if it was specially manufactured for the trade of the person ordering it, then the contract would be one for work and labor, and not within the statute. So in Donnell v. Hearn, 12 Daly (N. Y.), 230, it was held that an agreement to manufacture lamps, which were not usually kept in stock, nor usually manufactured for the purposes of sale, is not within the statute.”

Meincke v. Fall, 55 Wis. 427 (13 N. W. 545, 42 Am. Rep. 722), is an able case, and reviews the authorities, both English and American. It was an action to recover the cost of a certain carriage manufactured by the plaintiff, and alleged to have been ordered by the defendant. It was claimed that the skill, labor, and workmanship of the plaintiff was the special inducement for giving the order. The case holds that, while an executory contract for the sale of an article for the price of $50 or more may be within the statute of frauds, notwithstanding such article does not at the time exist in solido, yet where such contract is to furnish materials and manufacture the article according to specifications furnished, or a model selected, and where without the special contract the thing would never have been manufactured in the particular manner, shape, or condition it was, then the contract is essentially for special skill, labor, or workmanship, and is not within the statute. This case is cited with approval in the late case of Gross v. Heckert, 120 Wis. 314 (97 N. W. 952).

A recent case in Arkansas is Moore v. Granite Works, 80 Ark. 274 (96 S. W. 1063, 117 Am. St. Rep. 87, 10 Am. & Eng. Ann. Cas. 308). It was there held that a contract by the plaintiff, who operated a marble yard, to make a tombstone according to a design selected by the buyer from the seller’s catalogue, and to place a suitable inscription on the tombstone, is not within the statute of frauds, as it is not a contract for the sale of goods, wares, or merchandise, but is one for work and labor to be done, and material to be furnished, though the transaction is to result in a sale of the completed article. See, also, Mead v. Case, 33 Barb. (N. Y.) 202.

As we have already shown, the Massachusetts rule has been adopted by a majority of the American courts. We understand that rule, in substance, to be that an agreement by one to construct an article especially for, or according to the plans of, another, whether at an agreed price or not, although the transaction is to result in a sale of the article, is a contract for work and labor, and not within the statute; but, if the article to be made and delivered is of a kind which the producer usually has for sale in the course of his business, it is a contract for sale, and must be in writing.

It must be conceded, we think, that the articles in this case — the dishes — when made according to the order, would not be fit for the general market, but were intended to suit the special use of Mr. Gies in his particular trade. They were not, in their finished condition, suitable to be kept in stock by the claimant, and were plainly unsuitable for the general traffic. The goods would never have been manufactured in the particular manner, shape, style, or condition but for the order. These are some of the considerations which induce us to hold that, under any of the American rules, and especially under the Massachusetts rule, which we are inclined to follow, the learned circuit judge erred in directing a verdict and judgment against the claimant.

The only case decided in this court which is directly in point is that of Turner v. Mason, 65 Mich. 662 (32 N. W. 846). It involved a contract for the painting of a portrait, and is an extreme case.

In Underfeed Stoker Co. v. Detroit Salt Co., 135 Mich. 431 (97 N. W. 959), it was held that an agreement to furnish and install stokers, and connect them with machinery belonging to defendant, and which, when connected, would become a part of the fixtures already on defendant’s premises, is not a sale of goods within the statute of frauds, and Benjamin on Sales (7th Ed.), p. 109, is quoted. The test as to whether the value of the work exceeds that of the materials used in the execution of the contract is no longer accepted either in English or American jurisdictions. Lee v. Griffin, 1 B. & S. 272; Mead v. Case, supra.

Appellant claims, and with some force, that the circuit judge should have left it to the jury to decide whether the contract was essentially a contract for work and labor, or a contract for the sale of chattels, and whether or not the goods existed in solido at the time the order was given; that these were clearly questions of fact to be determined from the evidence by the jury under proper instructions from the court, citing 29 Am. & Eng. Enc. Law (2d Ed.), p. 967; Pitkin v. Noyes, 48 N. H. 294 (97 Am. Dec. 615, 2 Am. Rep. 218); Puget Sound Machinery Depot v. Rigby, 13 Wash. 264 (43 Pac. 39); Schloss v. Josephs, 98 Minn. 442 (108 N. W. 474). It may be doubted" whether the facts were enough in dispute to have required this course.

For the error pointed out, the judgment below is reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    AUDITOR GENERAL v. WELLMAN.
    1. Taxation — Special Assessments — Regularity of Paving Tax — Municipal Corporations.
    Where records of a municipal corporation failed to show by direct proof that plans and specifications for paving were filed with the clerk, but the records and resolutions of the common council referred to them and recited that they were reported to the council and made a part of the contract, it will be presumed that they were duly filed and furnished to the council.
    2. Same — Municipal Corporations — Assessments — Benefits— Port Huron City Charter.
    An assessment for paving in proportion to frontage, as required by the charter of the city of Port Huron, is valid; an assessment in accordance with benefits being unwarranted by its provisions.
    3. Same — Resolutions of Common Council — Validity—Paving Tax.
    The adoption of a resolution by a municipal council authorizing the construction of pavement in accordance with plans and specifications of the city engineer, and providing for bids on several kinds of pavement, followed by the adoption of a second resolution determining the necessity of paving and the kind of pavement, which was one of the kinds bid upon, constitutes a compliance with the charter requirements.

      4. Same — Excessive Amount.
    The excessive nature of the assessment is not open to review, if at all, on a record which contains no evidence of values.
    5. Same — Evidence—Values.
    The assessment rolls are not competent evidence of values.
    6. Same — Notice—Publication.
    Publication of a notice of the proposed improvement and an opportunity for review of the assessment afford sufficient provision for objections without personal notice.
    Appeal from St. Clair; Law, J.
    Submitted February 25, 1910.
    (Docket No. 113.)
    Decided March 19, 1910.
    Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections of Charles Wellman and others. From a decree for petitioner, contestants appeal.
    Affirmed.

      John E. Bird, Attorney General, and Joseph Walsh, City Attorney, for petitioner.

      William T. Mitchell (Stevens, Graham & Stevens, of counsel), for contestants.
   Hooker, J.

The defendants in this case, five in number, owners in severalty of six lots in the city of Port Huron, are appellants. The lots were assessed in 1905 for a paving tax. These assessments were not paid, and this proceeding is the auditor general’s petition for foreclosure of the State lien for taxes, with the objections of the defendants, which objections were overruled in the circuit court.

The questions discussed by defendants’ counsel, as shown by the brief, are:

(1) That the paving proceedings are invalid, for the reason that the council did not have any plans and specifications before it when it adopted the resolution that the work “was a necessary public improvement.”

(2) That the law under which the council acted contained no requirement or authorization of a finding of benefits by the council.

(3) The resolution was insufficient for the reason that it omitted to state the kind of material for the pavement and curbing.

(4) The second resolution, declaring a necessity for a macadam street, superseded an earlier resolution for a pavement of brick, and therefore the adoption of and the assessment for a brick pavement were void.

(5) The law provides no notice to taxpayers, so that they may object to the proposed pavement before it is ordered.

The provisions of the charter (Act No. 542, Local Acts 1903, chap. 17, §§ 2-4) require:

(1) A petition filed with the council.

(2) Reference to the superintendent of public works.

(3) Report with estimates of cost and plans and specifications when needed (with recommendations). See Act No. 390, Local Acts 1885, chap. 13, § 4.

(4) Resolution of council of public necessity and fixing assessment district.

(5) Adoption and approval of plans and specifications with or without changes or amendment.

(6) Direction to superintendent of public works to advertise for proposals according to plans and specifications.

(7) Opening of bids and reports to council.

(8) Submission of question of raising amount required to board of estimates.

(9) Award of contract and order directing engineer to make roll.

The proceedings actually taken were as follows:

(1) A petition was filed; also a remonstrance.

(2) These were referred to the superintendent of public works.

(3) The superintendent made his report, accompanied by estimates for six kinds of pavement.

(4) A resolution was passed declaring the construction of a pavement a public necessity, ordering its construction 24 feet wide, with stone or cement curbing (width and thickness not specified in resolution) “ in accordance with plana and specifications prepared by the superintendent of public works and submitted to this council which are hereby adopted.” It also fixed the boundaries of the assessment district, and directed that the superintendent advertise for proposals in accordance with the plans and specifications in his office.

(5) A similar resolution for the construction of a macadam pavement was adopted. All of the foregoing occurred at one and the same meeting of the common council held on May 15, 1905.

(6) At a meeting held June 8th the superintendent submitted a lengthy report, showing in detail the various bids of contractors on the different kinds of pavement; i. e., brick and macadam, etc.

(7) A resolution was passed that it was necessary to pave said street with Metropolitan brick, Berea (stone) curbing, and Medina (stone) radius, etc., and to raise $8,750 for the purpose, and that a meeting of the board of estimates be called and they requested to give their consent to raising said sum. At an adjourned meeting, another similar resolution, different only as to the method of assessment, was passed.

(8) Ata meeting of said board on June 23, 1905, its assent was given as requested.

(9) This was reported to the council at a meeting held July 5th.

(10) Contract was awarded, and mayor and clerk directed to execute same. This was at a special meeting, and similar action was repeated at a regular meeting held July 17th.

(11) Plans and specifications were made part of contract, which was duly executed, and the pavement has been constructed.

Plans and Specifications. Counsel claim that plans and specifications were not before the board. This claim is based on the absence of a report showing that they were filed, and the testimony of Mr. Mitchell (admitted to be true) that a recent examination of the clerk’s office by him failed to find them. Reference is made to the plans and specifications in several resolutions; one of them reciting that they were reported to the council. Furthermore, they are made a part of and copies attached to or recited in the contract. We are of the opinion that this is sufficient to warrant the conclusion that they were duly furnished. The absence of the same from the clerk’s office is not accounted for. This absence does not prove that they were not filed there. We will presume that they were from the facts shown. We see no obstacle nor objection to a reference to and report by the superintendent on one and the same evening with plans and specifications, which might have been prepared in advance, if necessary.

Assessment of Benefits. We are of the opinion that the law does authorize an assessment for benefits. Section 5, chap. 17, of the charter, explicitly requires an assessment roll tó be made in the proportion of the tax that the lot frontage bears to the amounts to be raised, to be estimated by the engineer. Section 7 requires its confirmation by the council after review and correction. We have held that an assessment based on frontage is valid in paving cases. City of Kalamazoo v. Francoise, 115 Mich. 554 (73 N. W. 801); Cass Farm Co. v. City of Detroit, 124 Mich. 436 (83 N. W. 108); Palmer v. City of Port Huron, 139 Mich. 471 (102 N. W. 996).

Effect of Second Resolution. Counsel asks that we apply to the two resolutions the rules that a statute last passed stands in exclusion of an earlier one. We think this should not be done. These were in no sense laws, but resolutions subject to change. It is obvious that the council passed these resolutions for a legitimate purpose, viz., of laying a foundation for eitheir kind of pavement, in order that it might secure competitive bidding between builders of different kinds of pavement. We can see no objection to this. The proper steps having been taken for either kind, one was selected, while the other was abandoned. Counsel for defendant recognizes the fact that this was the design of the council, and characterizes it as “an attempt to ride two horses without a bridle, which has resulted in an outrageous and confiscating assessment. ” We do not see that the alleged outrageous assessment is the result of this method, unless it is to be said because of the adoption of brick instead of macadam, which the council had power to do without any consideration of macadam, had it chosen to do so.

Excessive Assessment. Counsel argue that the assessment on some of these lots nearly or quite equals their value. We cannot review the fairness of the assessment on this record; there being no testimony as to value except assessment rolls, which are not competent evidence to establish value. We do not mean to imply that it is an open question.

Notice to Abutting Owners. We have seen that the charter requires publication and opportunity for review. Charter, chap. 17, § 7; Auditor General v. Hoffman, 132 Mich. 198, 202 (93 N. W. 259). Counsel contend that this is insufficient, and claim that abutting owners have a right to notice, so that they may have an opportunity to object to the proposed improvement, and that no provision is made for such. This was unnecessary, as we held in the case of Parsons v. City of Grand Rapids, 141 Mich. 467 (104 N. W. 730), and Thayer Lumber Co. v. City of Muskegon, 152 Mich. 66 (115 N. W. 957). See, also, Auditor General v. Hoffman, supra.

The decree is affirmed, with costs.

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


text:
    NIEDZINSKI v. BAY CITY TRACTION & ELECTRIC CO.
    1. Carriers — Street Railways — Negligence — Operation of Cars — Inference from Derailment.
    Negligence being inferable from the derailment of a street car which the evidence tended to show passed over a switch at greater speed than usual, and which might be found to have been derailed by a large stick lying on the track or the collection of mud thereon, visible to the motorman; the question was one of fact.

      3. Same — Burden of Proof — Evidence.
    It was error to instruct the jury that the burden of proof rested on defendant to disprove the prima facie case made by the plaintiff’s evidence of the derailment.
    Error to Bay; Collins, J.
    Submitted February 35, 1910.
    (Docket No. 29.)
    Decided March 19, 1910.
    Case by Koyanton Niedzinski against the Bay City Traction & Electric Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Weadock & Duffy (Harry A. La Berge, of counsel), for appellant.

      De Vere Hall (E. V. Ingersoll, of counsel), for appellee.
   Blair, J.

Plaintiff was injured in consequence of the derailment of one of defendant’s cars, and brought this action to recover damages for the injuries resulting therefrom. There was testimony tending to show that the car did not slow down when approaching the switch, as required by the defendant’s rule, but ran upon it at its usual speed on a straight track between streets, and that the motorman at the time was looking back into the car. Plaintiff testified :

“ The car was going a good deal swifter that time than what it did before when I was riding on the car. I could not tell exactly the speed; I couldn’t say very fast or slow; I could not tell anything about it. * * * The way I observed in using a car for the last three years previous; the car was going a little bit swifter than any other time — that is what I noticed.”

The switch in question was a spring switch, which did not require to be operated for the cars. The defendant’s testimony tended to show that the car was running at the rate of three or four miles an hour when it struck the switch, and was under good control; that the brakes and equipments were in good condition; that the car was properly operated and in good order; that the switch was in good condition, and the track all right, shortly after the accident; that mud on the rail might cause a derailment. The testimony of the conductor and motorman and a photograph indicate that the street was very muddy. The conductor testified:

“ It is a rule of the company that when we approach a switch we also slow down the car, so we will strike the switch at a safe rate of speed. We have that rule, so we will go through all right.
Q. Isn’t the reason you have that rule so you won’t jump a track when you get to the switch ?
“A. Well, partly; yes, sir. * * *
“Q. How fast did you run at an ordinary speed along that Wenona avenue ?
“A. On that day?
“Q. Before that time, and about that time.
“A. All along Wenona avenue ?
“Q. Yes. * * *
“A. Oh, sometimes the car ran along without a stop and picked up to 10 miles an hour, biit not very often. * * * That morning after the car had left the track there was a small stick or piece of wood lying near the switch. I observed this stick. It appeared to be a root, I should think. A root of a tree about three feet long, a couple of knots in it, some hard timber lying in the mud there; and, after we got the car back in the track, I was anxious to know why we jumped the — . I examined it. It appeared to be a root of a tree about three feet long, and about an inch and a half or two inches in diameter. * * * About midways in it appeared to be scratched, as if it had been run over by the flange of the wheel, or something.”

He also testified that the round trip of the car was 5.7 miles and the running time 40 minutes. The wheels and flanges were examined by the company’s car repairer later on, but not that morning, and he testified that they were all right. He further testified:

“Q. What is the cause of a car going off the track at the switch point like that ?
“A. I cannot tell. Sometimes a lot of mud on the track throws it off.
“Q. It is the mud on the track ?
“A. Lots of times.”

The motorman also testified to seeing the stick or root near the switch, and that the street was muddier than at the time of the photograph.

“ I couldn’t say how high the tracks are above the level of the road there. The mud was very deep there.”

The principal questions are whether—

(1) The court erred in not instructing a verdict for the defendant on the ground that there was no evidence of its negligence.

(2) The court erred in instructing the jury as to the probative force of the derailment.

We are not prepared to hold upon this record that the derailment presented the sole evidence of negligence on the part of defendant. The running time of the car, excluding stops, required it to maintain a speed slightly in excess of seven miles an hour. Considering the regular stops and the slowing down for switches, the jury might well have found that the car usually ran, when not slowing down for switches, at least 8 miles an hour; and, if they believed the testimony of plaintiff, it was running faster than that when it struck the switch. According to the testimony of Miss Stachowiak:

They were going as fast as they would if on a straight line. They did not stop the car any for the switch. * * * In riding on street cars I do not ordinarily pay any attention to how rapidly they move. I do not know how fast it would be in miles an hour.
Q. You do not pay any attention to that when you ride on a street car ?
“A. Well, of course, I do.
“ Q. Do you watch the motorman that he does his work, and the conductor that he does his work ?
“A. I should think I rode in a car long enough to watch them.
“Q. Do you pay attention to all those things?
“A. Yes, I do.
“Q. Do you understand anything about how a car is run ?
“A. Yes, I do, because I have been riding cars for five years now, since I went in my place.
“Q. You mean you ride on the cars a good deal ?
“A. Yes.”

If the jury believed Miss Stachowiak, the car took the switch about twice as fast as the rate at which the conductor and motorman said they usually ran it, and did on that day. Furthermore, the jury might have found that the stick or root was the cause of the derailment, and that if the motorman had been watching the switch instead of looking back into the car, and had been approaching the switch at a safe rate of speed, and had had his car under control, he might have seen the root in time to have stopped the car and to have prevented the accident. Mud also might have been upon the rail, since the proofs do not negative its presence. Considering the testimony in connection with the inference of negligence arising from the derailment, we do not think the court erred in refusing to direct a verdict.

The court instructed the jury as follows:

“ I also charge you that the burden is upon the plaintiff to prove his case by a preponderance of the evidence, but, plaintiff having shown that the car was derailed, and that he was injured thereby, I charge you that he has made a prima facie case, and that, having made a prima facie case, the burden of proof is then upon the defendant to show that the derailment was not caused by or through its negligence or the negligence of its employes. In this respect the burden of proof shifts, after the plaintiff has made his prima facie case, and the burden is then upon the defendant; or, in other words, the burden of proof being in the first instance upon the plaintiff, if the plaintiff shows, as was shown in this case, that the car was derailed, that makes out a prima facie case, and that stands as proved, unless the defendant shows the derailment was not caused by or through its negligence, or the negligence of its employés.”

A similar charge was held erroneous in the case of Sewell v. Railway, 158 Mich. 407 (123 N. W. 2).

We do not think it necessary to discuss the other questions raised, since they will probably not arise upon another trial.

The judgment is reversed, and a new trial granted.

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


text:
    DRUEKE v. BOYLON.
    1. Partnership — Separate Agreements — Joint Ownership.
    An. agreement to convey to a purchaser at a fixed price half of property used in a livery business, which the parties thereupon proceeded to conduct as partners, by virtue of a further oral contract, made at the same time as a part of the same transaction, creates a partnership in the business and the property named.
    3. Same — Dissolution by Death.
    Upon the death of one partner the partnership is dissolved and the surviving partner becomes a trustee to wind up the business.
    3. Reformation of Instruments — Mistake.
    To justify the reformation of a written instrument upon the ground of mistake in drafting the same, the alleged mistake must be proved by clear and satisfactory evidence and the mistake must have been mutual.
    4. Same — Evidence.
    Testimony of an unsatisfactory nature elicited from one witness, that the agreement contained a mistake, contradicted by the subsequent dealings of the parties, and by inconsistent testimony of the defendant, does not warrant reformation of material provisions of the contract.

      5. Partnership — Winding Up — Accounting.
    The winding np in equity of a partnership which terminated upon the death of one partner, where the other continued thereafter to conduct the business, suffering a loss by fire, and where the interest of the estate is not clear, requires an accounting.
    Appeal from Kent; Perkins, J.
    Submitted February-28, 1910.
    (Docket No. 125.)
    Decided March 19, 1910.
    Bill by William Drueke, Jr., and George Egeler, administrators of the estate of Frank Koch, deceased, against Mary E. Boylon, for the appointment of a receiver to wind up the affairs of a partnership. Defendant filed an answer in the nature of a cross-bill to reform the schedule attached to the partnership agreement. From the decree rendered, defendant appeals.
    Reversed, and remanded for an accounting.

      Carroll & Nichols (George E. Nichols, of counsel), for complainants.

      Charles E. Ward, for defendant.
   Blair, J.

On the 18th day of November, 1907, Frank Koch and Mary E. Boylon entered into the following agreement in writing:

“This agreement, made the 18th day of November, 1907, between Mary E. Boylon of the city of Grand Rapids, county of Kent, State of Michigan, party of the first part, and Frank Koch, of the same place, party of the second part, for and in consideration of the sum of $3,500, witnesseth: That the said Mary E. Boylon, party of the first part, in consideration of the agreement hereinafter contained, to be performed by Frank Koch, agrees to sell and deliver to the said Frank Koch, party of the second part, one-half interest in her livery business, which are the property of Mary E. Boylon, party of said first part, and contained in and belonging to the livery business of the said Mary E. Boylon, the schedule of which hereunto is annexed, for the said sum of $3,500, which the said party of the second part hereby agrees to pay to the said party of the first part, as follows: $1,000 cash on the signing of the agreement, $1,000 in stock, pertaining to their business, and the balance of $1,500 to be paid as follows : $500 on November 18,1908, $500 on November 18, 1909, and $500 on November 18, 1910, with interest on all sums, at any time unpaid hereon, at the rate of 6 per cent, per annum, payable annually. It is agreed by the parties hereto, that the said party of the first part, on receiving payment in full of the said Frank Koch, installment of the principal and the interest thereon, will at her own proper cost and expense, execute and deliver to the said party of the second part, a bill of sale of one-half interest in her livery business.
“It is further agreed that the said party of the second part can pay at any time, $100 or more as he may deem best, the party of the first part agreeing to accept the same.
“ Failure to make the payments required by this contract, by second party, shall terminate his rights hereunder and the arrangements shall thereby be terminated, and the payments made by the second party shall be forfeited to the first party as liquidated damages and all the propérty shall belong to the first party.
“ It is further agreed that the party of the first part will assign one-half interest of her lease in the premises known as 156 North Ionia street in the city of Grand Rapids, county of Kent, State of Michigan, and it is agreed that the stipulations herein contained are to apply to and bind the heirs, executors, administrators and assigns of the respective parties hereto.”

Frank Koch died December 30, 190'?’, and his administrators, being unable to come to an agreement with Mrs. Boylon relative to the interest of his estate in the property and business, filed this bill of complaint, alleging the existence of a partnership between the parties and praying:

“ (a) That a receiver may be appointed by this court of said copartnership to take charge of all of its property and affairs and wind up the business of said copartnership to the end that the interest of the estate of the said Frank Koch, deceased, may be determined and paid over to your orators as aforesaid in order that the estate of the said Frank Koch may be closed and assigned by the probate court.
“(b) That incase the court should determine that it would be inadvisable to appoint a receiver of said copartnership, then in that case defendant be compelled by this court to give to your orators a good and sufficient bond that she will immediately proceed and wind up the affairs of said copartnership under the order and direction and supervision of the court, and pay over to your orators such interests of the estate of said Frank Koch therein as shall be found by the decree of said court to be due to said estate.”

The schedule of property attached to the written agreement contained the property described in the agreement as “$1,000 in stock pertaining to their business” as well as the property then owned by defendant. The property turned over by decedent was as follows:

“One (1) gelding, Sam; one (1) mare, Mollie B; one (1) mare, Jane; one (1) black mare, Nellie; one (1) gelding, Jim; one (1) Cunningham hack; one (1) number two hack; one (1) cab harness.”

The third paragraph of defendant’s answer is as follows:

“Answering the third paragraph of said bill, this defendant admits that at the time of the making of said written contract said Frank Koch and this defendant entered into a verbal contract to become copartners in the said livery business in the building then used and occupied by defendant, and that by the terms of said partnership agreement each of said copartners was to bear one-half of the expense of the conduct of said business and to share alike in the profits or losses growing out of said business, and that thereafter this defendant and said Koch did conduct said business as copartners until the death of said Koch on December 30, 1907; and that this defendant is the surviving partner of said copartnership, and since the death of said Koch this defendant has conducted a livery business at said place as before.”

In the fourteenth paragraph she avers that:

“The agreement of purchase and sale aforesaid was distinct and separate from the said agreement to form a copartnership.”

Defendant claimed affirmative relief in her answer and prayed:

“That the said contract of purchase and sale be reformed by striking out of said schedule or inventory the said property as follows: One (1) gelding, Sam; one (1) mare, Mollie B; one (1) mare, Jane; one (1) black mare, Nellie; one (1) gelding, Jim; one (1) Cunningham hack; one (1) number two hack; one (1) cab harness.”

After the cause was at issue, a portion of the property was destroyed by fire, and the insurance, amounting to $2,364, was paid into court under stipulation. Attached to each of said policies was the following clause:

“ It is understood and agreed that a one-half interest in this property has been sold on a contract to Frank Koch, and loss, if any, payable to parties as their interest may appear.”

After hearing the proofs the court entered a decree that:

“ The said complainants do recover from the said defendant the sum of one thousand five hundred dollars with interest thereon from the 30th day of Decembei’, 1907, at the rate of five per cent, per annum, and that the said complainants do recover their costs in this suit, to be taxed by them, and that said sum of one thousand five hundred dollars together with the interest and costs aforesaid be paid to the said complainants by the register of this court out of the funds now in his hands deposited with him pursuant to a stipulation heretofore entered into between the parties hereto, and that the balance of said fund, whatever the same may be, shall be paid to the said defendant by said register after the payments have been made to the said complainants as aforesaid.”

The defendant appeals to this court.

The most important question in the case is, What was the legal character of the admitted contractual relations of the parties ? The complainants contend that the written contract and the oral contract were made at the same time, as parts of the same transaction, should be construed together, and really formed a single contract. It is the claim of the defendant that the contracts were separate and distinct and that decedent Koch acquired no partnership interest whatever in the property. In our opinion, the proofs support the complainant’s contention, and are utterly inconsistent with the defendant’s claim. The defendant’s testimony given before the probate judge in a proceeding in that court clearly demonstrates that she understood that the oral partnership contract was an essential and inseparable part, together with the written contract of the complete agreement between the parties, and they conducted the business from the outset upon the theory that they were equal partners in the livery business.

We do not credit the testimony of the scrivener that there was no present agreement of partnership, but that the making of such agreement was deferred and was to be a separate and distinct agreement. His testimony is inconsistent with defendant’s testimony, the conduct of the parties and the probabilities of the case. The written agreement in terms relates to a half interest in the business of defendant and the property to be paid by decedent was stock “pertaining to their business.” The contemporaneous oral agreement of the parties and their conduct fully establish the fact that the half interest in the business referred to in the contract was a partnership interest, and defendant told one of the administrators that Koch “ had a half interest in the business,” and she admits the oral agreement of partnership and claims the right of a surviving partner in her answer. She further testifies:

“ Q. And now, of course, his services, and his devoting his time — that is, that he would devote his time to the conduct of the business during the coming three years— was a part of the consideration for your entering into the agreement with him, was it not ?
“A. Yes, sir.”

We are satisfied that the partnership agreement was an essential part of the consideration, without which the written contract would not have been made. The testimony shows clearly that Koch was not bargaining for an interest in the personal property without reference to the business, but that he was contracting principally with reference to the purchase of a half interest in the business, and the payments provided for were for payment of the purchase price of a half interest in the business and property. The parties so understood their contract, and so performed it until the death of Mr. Koch terminated the partnership. We are also of the opinion that the written contract, construed in the light of the conduct of the parties and their practical construction of its meaning, justifies the conclusion that the one-half interest in the business and the expression “their business” import an equal partnership interest, and not a tenancy in common. Mrs. Boylon’s testimony indicates that she so understood it:

“Q. When did you enter into the copartnership with him?
“A. The 18th of November, 1907.
“Q. Was that agreement in writing ?
“A. Yes, sir.
(‘Q. Then, aside from this paper, there was an agreement between you by which you were to enter into a co-partnership in the livery business ?
“A. What?
“Q. I say, aside from this, there was an agreement between you that you entered into a copartnership in the livery business?
“A. Why, yes; there was an agreement.
(lQ. I want to know what your agreement was about going into the copartnership ?
“A. That is the agreement. (Indicating.)
“Q. Was there anything else besides this about your copartnership ?
“A. No, sir.
“Q, There was a verbal agreement and a verbal talk between you as to how you would go into the partnership, wasn’t there, aside from this paper ?
“A. Why, we were to go into a partnership of course, and agreed to it, according to that paper.”

The agreement between the parties constituting a partnership agreement as to the business and property, the dissolution of the partnership by the death of Koch made it the duty of defendant as surviving partner to wind up the business and account as trustee to the representatives of his estate. Killefer v. McLain, 78 Mich. 249 (44 N. W. 405); Porter v. Long, 136 Mich. 150 (98 N. W. 990).

We are also of the opinion that the record does not sufficiently show a mutual mistake in the scheduling of the property turned over by Koch to warrant a decree on the cross-bill reforming the contract. The testimony of the scrivener, which is the only competent testimony upon the subject and in the accuracy of which we have little faith, does not show a mutual mistake of fact. He testified, among other things:

“ Fourteenth direct interrogatory. Was it by reason of the instructions of any person that the property turned over to Mrs. Boylon by Koch in payment of $1,000 on the contract price was included by you in the schedule attached to said contract ? And if your answer to this is no, state fully the reason why you included said property in said schedule.
“Answer. I was so instructed by Frank Koch.
“ Fifteenth direct interrogatory. If the legal meaning of said contract as drawn, is that one-half the property turned over by Koch to Mrs. Boylon in payment of $1,000 upon said contract, was to belong to Frank Koch on the payment of the balance of said $3,500, state whether such result would be or is a mistake, and whose mistake it is, and why said mistake was made. State fully, giving reasons why said mistake was not noticed or discovered by you at the time.
“Answer. I am unable to state at this time. It was the intention of Frank Koch to turn over this property as first payment under the contract to purchase the half interest in the business.
“ Sixteenth direct interrogatory. If your answer to the previous interrogatory is that Mary E. Boylon was to permit the use of any of the property mentioned in the livery business by the copartnership between herself and Koch, state what, if anything, was said or agreed concerning what the said Koch was to do in carrying on the said livery business.
“Answer. There was no partnership existing. He was to devote his time to the business until he had paid the balance due on the contract. If there was a loss during the winter months, which Frank Koch intimated, he was to share and share alike on loss. There was no partnership. He was to devote his time to the business until he had paid the balance due, and if there was a loss it was to be equally shared by them. * * *
“ Twenty-first cross-interrogatory. Is it not a fact that at the time of execution of the contract which you drew between these parties, that Mrs. Boylon and Frank Koch agreed to and did become copartners in the livery business ?
“Answer. No.”
“ To justify the reformation of a written contract upon the ground of mistake in drafting the same, the alleged mistake must be proved by clear and satisfactory evidence, and the mistake must have been mutual and common to both parties to the contract.” Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675).

We are satisfied that Mrs. Boylon understood that the property turned over by Koch was described in the schedule, as Koch certainly did, and the fact that the property was put into the livery barn and used in the business in common with the other property without additional charge to Koch or arrangement for charge for its use strongly indicates that, as the contract provides, it was to become part of the general stock in which Koch was to have a partner’s interest.

We do not think, however, that the facts disclosed by this record are sufficient to warrant the decree as made. A portion of the property was destroyed, but what proportion does not appear, and the evidence is not sufficiently full to enable us to determine the interest of the executors in the surplus; this can only be determined by an accounting. We see no valid reason why an accounting should not be had without further delay. The decree of the circuit court is reversed and the record remanded for the purpose of an accounting and decree in pursuance of this opinion.

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


text:
      In re La CROIX.
    Habeas Corpus — Infancy—Custody—Parent and Child.
    A parent who is entitled by a decree of divorce to the custody of her infant daughter and makes an arrangement with a third person for her care and custody, not shown to be disadvantageous for the child, reserving the right of re-possession on paying expenses of maintenance, is not entitled to the custody of her child by habeas corpus without a showing that the change would promote the child’s welfare.
    Certiorari to Wayne; Donovan, J.
    Submitted March 1, 1910.
    (Docket No. 180.)
    Decided March 19, 1910.
    Habeas corpus proceedings by Irene Collins to obtain the custody of an infant. An order dismissing the petition is reviewed by petitioner on writ of certiorari.
    Affirmed.

      Clarence D. Dwyer, for petitioner.

      Walter M. Trevor, for respondent.
   Blair, J.

Irene Collins is the mother of Margaretta La Croix, an infant four years of age, and, on the 31st day of August, 1908, by the Wayne circuit court in chancery, was granted a decree of divorce from George La Croix. The decree provided :

“That said complainant, Irene La Croix, shall have the care, custody, and education of the said minor child mentioned in said bill of complaint in this cause, and that said minor child shall remain with said complainant, Irene La Croix, until said child shall attain the age of 14 years.”

On the 25th day of October, 1909, Hon. Joseph W. Donovan, circuit judge, made an order purporting to appoint one Lottie Kyan guardian of said infant child. The order read as follows:

“At a session of the circuit court for the county of Wayne, convened and held at the circuit court rooms in the city of Detroit on the 25th day of October, in the year 1909.
“Present, J. W. Donovan, circuit judge.
“On hearing the testimony taken in open court, it is ordered that Mrs. Lottie Ryan be, and she is hereby, given the care and custody of Margaretta La Croix, an infant, in place of Margaretta Morrissey, formerly appointed guardian of said infant; this by the consent of the child’s mother. That in case the mother, at any future time, desires to regain the custody of her said child, she may do so upon payment to the said guardian (Mrs. Ryan) $1.50 per week for the said child’s board, one-half of the amount of the doctor’s bills, and one-half of the cost of said child’s clothing during the period the said child remains in the custody of said guardian, said settlement to be made before the child is returned to the mother.”

On the 6th day of December, 1909, Irene Collins filed in the Wayne circuit court a petition, in which it was alleged that Margaretta La Croix is being restrained of her liberty, without the consent or permission of said Irene Collins, by said Lottie Ryan; that she was not restrained or detained by virtue of any process, civil or criminal, and said petitioner prayed that a writ of habeas corpus issue out of and under the seal of the circuit court for the county of Wayne for the purpose of inquiring into the cause of such detention and restraint. On said 6th day of December, 1909, in obedience to the práyer of said petition, Hon. James O. Murfin, circuit judge, issued out of and under the seal of said court a writ of habeas corpus directed to Mrs. Edward (Lottie) Ryan, which writ was made returnable at his courtroom in the county building on December 13, 1909. On December 13, 1909, the matter of said writ came on for hearing before Judge Murfin, at which time the hearing thereon was adjourned until December 20th, and referred to Hon. Joseph W. Donovan, circuit judge, and on the morning of December 20th the matter of said hearing came on before Judge Donovan at his courtroom in the county building, at which time said Lottie Ryan filed her return to said writ, and the court thereupon dismissed said petition and writ. The answer of the respondent, Mrs. Ryan, to the petition for the writ of habeas corpus, which was not traversed, is in part as follows:

“That said Irene La Croix not being able to suitably provide or place her said child amid proper surroundings, she gave same to her aunt, Mrs. Morrissey, to take care of; that after a time Mrs. Morrissey being unable to take further care of said child, the said Irene La Croix appeared before the circuit court, in chancery, and testimony was taken in open court, whereby she testified that she was unable to take care of her said child, and requested said court that her sister-in-law, Mrs. Edward Ryan, be appointed guardian of said infant, this done by the consent of the child’s mother, as said child was suffering from a very serious disease, and the mother could not properly take care of said child, and that the said Margaretta La Croix, a minor, is now properly taken care of, and in a good and suitable home, with proper surroundings.
Third. This respondent further answers and says that the said Irene Collins, formerly La Croix, appeared before the circuit court about two weeks ago, and requested that her child be returned to her, and that a hearing was had on the 6th day of December, A. D. 1909, before Hon. Joseph W. Donovan, and testimony was taken in open court, showing that the petitioner was not a fit or proper person to have the care or custody of her said child, and that the respondent, Mrs. Lottie Ryan, was a fit and proper person to have the care of said child, and that said court reaffirmed the order made on the 25th day of October, A. D. 1909.”

In dismissing the petition the circuit judge said:

“ I want to state on the record that this Irene La Croix came in and took the stand, the witness chair, and petitioned in person, and said she was weakly; that the doctor had told her she was to refrain from any extra exertion ; that he indicated she had consumption, or something of that nature; that she was unable to earn and support the child at that time, and after and at her own personal request, it was passed over to Mrs. Ryan, a relative, to be made guardian of the child at the mother’s request, and Mrs. Ryan came forward and accepted it, and Mrs. Ryan suggested that at any time she wanted to take the child back, and pay her a small sum for board, she would give it back. I decline to meddle with the custody of the child under the present showing until they show something is going wrong in the usual way. The habeas corpus is dismissed. Whenever you come forward in the proper way it will be considered.”

Petitioner has brought the matter before us for review upon writ of certiorari. There was no claim in the petition for the writ of habeas corpus, nor evidence before the circuit judge, to the effect that the welfare of the child would be promoted by restoring her to the custody of her mother. The answer shows the contrary, and petitioner relies upon her naked legal right under the divorce decree. Conceding that the order committing the child to the custody of Mrs. Ryan did not have the effect to modify the divorce decree, it does not follow that petitioner is entitled, as a matter of law, to her custody. Petitioner voluntarily entered into an agreement with Mrs. Ryan in open court to transfer her right to the custody of .the child t*o Mrs. Ryan, upon the understanding that she might regain such custody by paying Mrs. Ryan in part for her services and expenditures. She sets up no claim that the present custody does not subserve the best interests of the child; neither does she dispute, either by pleading or evidence, the allegations of the return to the effect that the child’s welfare will be promoted by leaving her where she is. The welfare of the child is the governing consideration, and a large discretion is vested in the circuit court in determining the child’s custody. Corrie v. Corrie, 42 Mich. 509 (4 N. W. 213); Carpenter v. Carpenter, 149 Mich. 138 (112 N. W. 748); Bonnett v. Bonnett, 61 Iowa, 199 (16 N. W. 91, 47 Am. Rep. 810).

We find no valid reason for overturning the decision of the circuit court, if, indeed, we are at liberty to do so upon this record.

The order of the circuit court is affirmed, and the petition dismissed.

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