text:
    HOWE v. CHICAGO, KALAMAZOO & SAGINAW RAILROAD CO.
    1. Negligence — Dangerous Premises — Railroads—Public Conveniences — Inspection—Question for Jury.
    In an action for injuries occasioned by plaintiffs being precipitated intcj the vault of a public convenience at a railroad station on its floor giving way, evidence examined, and held, that whether defendant railroad company was negligent in failing to properly inspect it was for the jury.
    2. Same — Damages—Instructions.
    Instructions on the measure of damages in such a case examined, and held, not erroneous as permitting the jury to speculate upon the value of the injuries to the plaintiffs’ feelings, no matter in what way they were occasioned.
    3. Same — Damages—Injury to Peelings.
    The damages recoverable for such an injury may include injury to feelings occasioned by the fright and suspense which plaintiffs suffered while in the vault.
    4. Personal Injuries — Examination op Witness — Objection.
    Where a witness in a personal injury case testifies that plaintiff “always complains” a motion to strike out the answer that “she always complained” is not sufficient to call attention to the objectipn that the statement of witness is a narrative of past suffering.
    5. Same — Present or Past Suffering.
    A statement by a witness in a personal injury case that plaintiff “always complains of being sore through her lungs” fairly imports that the complaints made related to present, rather than past, suffering.
    Error to Barry; Smith, J.
    Submitted February 15, 1905.
    (Docket No. 161.)
    Decided April 21, 1905.
    Case by Eva Howe and Frances Roach against the Chicago, Kalamazoo & Saginaw Railroad Company for personal injuries. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Golgrove & Potter, for appellant.

      Thomas Sullivan, for appellees.
   Montgomery, J.

These two actions were brought to recover damáges for injuries sustained by the plaintiffs from being precipitated into the vault of a privy situated on defendant’s station grounds at Hastings. The two cases were tried as one, and a verdict in favor of plaintiffs and judgments based thereon were entered.

The chief contention is that there was no evidence in the case supporting the averments in the declaration as to defendant’s negligence. The declarations were not essentially different. In the second count of the Howe case defendant’s duty and neglect thereof are set out as follows:

“ It became and was the duty of the said defendant to keep the foundation thereof safe, and to keep the timbers supporting the floor and the seats therein in a secure and safe condition, and to make timely and reasonable inspection of said privy and the floor and timbers supporting the same, and supporting the seats thereof from time to time, and to see that they did not become .decayed, weakened, or misplaced, so as to become unsafe or unfit to hold and maintain the weight of those who should have occasion to enter and use the same, and it became and was their duty to take all timely and reasonable precautions to keep and maintain said privy, and each and every part thereof, in such a condition that the same would not break and give way under the weight of those who might enter the same. * * * That the said defendant disregarded its said duty in the premises, wrongfully and negligently failed to keep and maintain said privy in a safe condition for the use of its employes, patrons, customers, and the general public, and failed to keep the foundation thereof safe, and failed to keep the timbers supporting the floor and seats in said privy in a secure and safe condition, and failed to make timely and reasonable inspection of said privy and the floor and timbers supporting the same and supporting the seats therein, and failed to keep the same in such condition as to hold and maintain the weight of those who should have occasion to enter and use the same, and did not take all timely and reasonable precautions to keep and maintain said privy, and each and every part thereof, in such a condition that the same would not break or give way under the weight of those who might enter the same, but wrongfully and negligently permitted said privy to become unsafe, and the floors and timbers beneath the floor and seats to become rotten, decayed, and weakened, and to become unsafe, dangerous, and insufficient in strength and firmness to maintain the ordinary and reasonable weight which its use from time to time would place upon it.”

At the close of the testimony the court withdrew from the jury all question of faulty construction of the privy as not within the declaration.

The defendant’s counsel state in their brief their view of the scope of the declaration as follows:

“The declarations nowhere charge faulty construction. The suits were planted upon the theory that the defendant had'negligently failed to maintain, and not upon the theory that the building was constructed in a faulty manner, and the negligence charged in the declarations against the defendant was:
“First, that the defendant was negligent in maintaining the privy in an unsafe condition; and,
‘ ‘ Second, that defendant was negligent in failing to make proper inspection of the same.”

And it is strenuously contended that there was no evidence of negligence in making proper inspection.

The evidence showed that the privy was built before the road was built, some 15 years ago; that it had been moved twice — the last time not many weeks prior to the accident. The first time it was moved the privy was tipped over, and the timbers examined, and found to be sound. The privy was last moved under the supervision of Mr. Burke, an employé of defendant. A new vault was excavated, boarded up on three sides and partly on the fourth side. The privy was then placed upon the new foundation, and Mr. Burke went through the opening, and sounded the timbers, and inspected them as well as he could under these circumstances, and found them sound, as he states. He testified that he tapped the timbers with a hammer to see if they were all right; that he couldn’t tell what kind of timber it was; that he didn’t see the nails, but saw it was all solid by hitting it. He also testified that the stringers were toe-nailed. It appeared by further testimony of defendant’s witnesses that the nails were in fact rusted off when the floor gave way a few weeks later. We think it cannot be said as matter of law that this inspection was all that was required. Particularly in view of the peculiar construction of this building (which might be considered for this purpose) it was a question for the jury as to whether a proper inspection of this building required an examination of the nails sufficient to determine whether they were rusted off, as it was as apparent to the witness Burke as it was to the jury that, whether the construction be proper or improper, it was such as to leave this support dependent entirely upon the soundness and sufficiency of these nails. We think this was a question for the jury.

Complaint is made of the charge of the court on the subject of damages. The court said to the jury that plaintiffs were entitled to recover compensation for injuries to their feelings occasioned by the fright and suspense, if any existed, while in the vault, but" distinctly excluded damages for humiliation, disgrace, and annoyance. It is contended that damages for injury to feelings are not recoverable in the absence of evidence of some voluntary act or gross neglect. The trial court evidently recognized fully the rule which excludes added damages for injury to feelings where the elements of gross carelessness0 or wantonness are lacking, but recognized that such inevitable injury to feelings as necessarily occurs from shock and fright are not'dependent upon the malice of the defendant, but necessarily flow from the injury. The court, in this charge, followed the holding in Styles v. Village of Decatur, 131 Mich. 443. Counsel for defendant do not question that under the ruling in the case cited fright and suspense might be considered, but insist that the court had no right to go beyond this, and throw open the door for the jury to speculate upon the value of the injuries to the plantiffs’ feelings, no matter in what way they were occasioned. The court did not leave the question to the jury in any such broad way as this criticism implies; on the contrary, the charge distinctly limited the recovery for injury to feelings to injuries to feelings occasioned by the fright and suspense which plaintiffs suffered while in the vault.

On the examination of Ida Backus, a witness for plaintiff, the following occurred:

Q. What other things have you noticed in reference ?
“A. She always complains of being sore through her lungs.
“Mr. Golgrove: I move to strike out the answer that she always complained.
“Mr. Sullivan: I think it is a proper question.
The Court: I am inclined to think that testimony is admissible.
“Mr. Golgrove: I am perfectly willing that the court should rule so. I want the record. Give me an exception.” '

It is now insisted that this testimony was not admissible, for the reason that the statements are not limited as to time, and, for aught that appears, they may have been narratives of past suffering. The attention of the court was not called to this specific objection. Moreover, the language fairly imports that the complaints made and testified to by this witness related to present suffering. Strudgeon v. Village of Sand Beach, 107 Mich. 500; Elliott v. Van Buren, 33 Mich. 52.

. The charge fairly presented the issues to the jury.

Judgments affirmed.

Carpenter, Blair, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    VILLAGE OF MORRICE v. SUTTON.
    1. Municipal Corporations — Contracts—Lighting—Power op Council.
    Under section 2908, 1 Comp. Laws, providing that the council of an incorporated village may contract for any period not exceeding 10 years for gas, .electric, or other lights, the council has no power to enter into such a contract during the life of a valid contract previously entered into, covering the period of 10 years.
    2. Same — Private Adventure — Public Aid.
    A municipality has no power to aid, by contract or otherwise, a private adventure, and money paid by a village council as a bonus to secure the building-of a grist mill and electric lighting plant may be recovered-as money received.
    Error to Shiawassee; Smith, J.
    Submitted February 16, 1905.
    (Docket No. 167.)
    Decided April 21, 1905.
    Assumpsit by the village of Morrice against Edward Sutton and George Mackey, copartners as Sutton & Mackey, for money had and received. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Lyman B. Trumbull and Thomas E. Barkworth, for appellants.

      John T. McCurdy, for appellee.
   Ostrander, J.

The village of Morrice sued defendants, declaring on the common counts in assumpsit, and furnishing a bill of particulars, which, in substance, states its demand to be $2,000 in money'paid by plaintiff to defendants as a bonus. The plea was the general issue. A trial was had before the court without a jury. An opinion, which has by all parties been treated as a finding of facts and law, was filed; and later, upon the application of defendants, an amended and extended finding was made and filed. Both the opinion and the amended findings are here set out at length:

“ OPINION.
“ This is an action of assumpsit, whereby the plaintiff seeks to recover of defendants the sum of $2,000, and interest thereon, which plaintiff claims was of the public' moneys of said village, and which the defendants unlawfully and wrongfully received into their hands and to their use. It is an undisputed fact in this case that the defendants received such sum of $2,000 of the public money of the plaintiff with full knowledge that the same was the property of the plaintiff, and that the same was paid over to them as a bonus for building a mill and lighting plant. Such a perversion of public moneys can only be in violation of the law, and cannot be sustained by the courts.
“ Defendants, by brief, argue that the contract between the plaintiff and E. Bennett & Sons ‘ was not assigned ’ to the defendants, etc. (Exhibit B); that such contract (Exhibit A) had been assigned to defendants; and that defendants were agreeing to furnish light under the terms and conditions of such last-named contract.
“It is further argued in behalf of the defendants that there was a consideration moving to plaintiff for such $2,000 by force of the agreements of the defendants to furnish certain electric lighting to plaintiff, etc. Such claim cannot be sustained in face of the statement in the contract (Ex. B) that ‘said sum of three thousand dollars to be paid to them by said second parties [i. e., plaintiff] as a voluntary aid in the construction of an electric light plant and flouring mill.’ As far as it appears in this case, any.lighting furnished to plaintiff by defendants has been paid for by plaintiff according to the terms of the contract Exhibits A and B.
“My conclusions are that the plaintiff is entitled to recover of defendants such sum of $2,000, and interest thereon- at the rate of five per cent, from September 15, 1900, to this time, amounting in all to the total sum of $2,325, with costs to be taxed.
“Let finding and judgmefft be entered accordingly.
“amended findings.
“1. I find that said plaintiff is a village incorporated under the general laws for the incorporation of villages.
%. That defendants, on or about the 7th day of June, 1900, purchased of Edmund Bennett a gristmill and an electric light plant situated within said village; being the only gristmill and lighting plant within said village.
“3. That said lighting {Slant, which was operated in connection with said gristmill, had been used to furnish light for said village under certain contract entered into between said village and Bennett & Sons on the 13th day of November, 1899, which contract is in words and figures as follows:
“ ‘ This Indenture made this 13th day of November, A. D. 1899, between the village council of the village of Morrice, county of Shiawassee, State of Michigan, for said village of Morrice of the first part and Edmund Bennett of the same place of the second part:
“ 1 Witnesseth, That the said party of the first part together with their successors in office do bargain and 'contract with the said second party to buy all electric lighting of .said party of the second part for a period of ten years from and after said second party has his electric light plant installed in said, village of Morrice, which is to be installed within four months from the date hereof; and it is further agreed by said party of the second part to furnish said village eight arc lights, each of 1,600 candle power, schedule of standard make and to maintain and operate the same for said period of ten years after said plant is installed as aforesaid at a cost to said village of. Morrice of $50 a year for each arc light aforementioned; the same to be paid monthly in advance by said village to said Bennett or his assigns during the continuance of this contract. The light to be furnished as aforesaid’shall be kept clean by said second party or his assigns and shall burn from sundown, dark, each night until eleven o’clock p. m., except Saturday nights said lights shall burn until twelye o’clock and except also moonlight nights. And the same shall be maintained as aforesaid unavoidable accidents excepted. The said council and their successors do hereby grant to .said second party and his assigns the right to the use of the streets, alleys, and public grounds in said village of Morrice as shall be necessary to enable the said Bennett or his assigns to construct and operate proper works for the supplying of said lights to said village ■under this contract, and supplying the inhabitants thereof with incandescent lights on any terms that may be agreed upon by said inhabitants and said Bennett or his assigns; such grant to continue for the period of 25 years from the date hereof. It is also agreed that said eight arc lights are to be placed within the corporation limits of said village, and at such points as may be determined by said council; and should said council or their successors require any more lights for said village, the same shall be furnished by said second party or his assigns at the rate aforesaid in consideration of the privileges hereby granted.
“ ‘ Witness the signature of the parties hereto on the day first above mentioned,
“ ‘Robert B. Craig,
“ ‘ President, and
“ ‘Claud E. Jones,
“ ‘Clerk of the Village of Morrice, Shiawassee County, Michigan.
“ ‘ E. Bennett & Sons.’
“4. That said contract was afterwards assigned by said Bennett & Sons to said defendants. While I do not find that the defendants, or either thereof, ever contracted or agreed directly with said plaintiff to assume or carry out the terms and conditions of such last-mentioned contract, yet I do find that the defendants subsequently, by their contract of date, to wit, September7,1900, made with Benjamin F. Rann, William Case, and Abraham L. Beard, and hereinafter set forth, did contract and agree with said last-mentioned persons ‘to furnish said village with lights under the terms and conditions of said last-mentioned contract between said village and said Bennett & Sons.’
“5. That said defendants afterwards purchased said mill and lighting plant and property, and that about 30 days after such purchase such property was struck by lightning and burned up.
“6. That during the course of the summer of the year 1900 certain representative citizens of said village of Morrice held out as an inducement to defendants to rebuild said mill and lighting plant that they would raise the sum of $3,000, to be paid to defendants on conditions embodied in the contract hereinafter next mentioned.
7. That on, to wit, the 7th day of September, 1900, a. written contract was made and entered into by and between defendants, as parties of the first part, and William Case, Benjamin F. Rann, and Abraham L. Beard, three citizens of said village of Morrice, as parties of the second part, which contract is in words and figures as follows,, viz. :
“ ‘ This Agreement made and entered into this 7th day of September, 1900, by and between Edward Sutton and George Mackey of Albion, Michigan, of the first part, and William Case, Benjamin F. Rann, and Abraham L. Beard, of Morrice, Shiawassee county, of the second part:
“ ‘ Witnesseth, That the said first parties, for and in consideration of the sum of §3,000 to be paid to them by said second parties, as a voluntary aid in the construction of an electric light plant and flouring mill, at the time and in the manner hereinafter stated, do agree to construct' substantially after the plans and specifications of the Jackson Flour Mill and Machinery Company of Jackson, Michigan, a copy of which specifications is hereto attached and made a part of this agreement. Said first parties also agree to erect and maintain an electric light plant of suflieient power to furnish current to light the village of Morrice with at least ten arc lights of 1600 candle power, also of sufficient power to furnish current for at least 500 incandescent lights if so many be desired by private citizens of said village. Said first parties agree to furnish the village with light under the terms and' conditions of a certain contract made on the 13th day of November, 1899, with Bennett & Sons, which contract has been duly assigned to said first parties. Said flouring mill and electric light plant shall be located on some suitable site within the said village of Morrice.
“ * The payment of the sum herein stipulated shall be made as follows : When the foundation walls are all completed according to specifications, and the lumber and all’other materials for said build-, ing are upon said ground the sum of $1,000; when the building is fully inclosed, the sum of $500, when the boiler and engine are upon the ground, the sum of $500, and at the completion of both the mill and electric light plant in the manner heretofore specified, the sum of $1,000, all of which the said second parties agree to pay to said first parties.
“ ‘It is further agreed that said first parties shall keep said mill and electric plant insured in the sum of at least $2,000, and shall assign said insurance to the amount of $2,000 to said second parties as security for the specific performance by first parties of the following undertaking, to wit: In case said mill and electric plant shall be destroyed by fire in whole or in part and first parties shall not elect to rebuild said mill and electric light plant or to resume operations, then in that event said first parties shall pay back to said second parties the sum of $2,000, Jess the amount of premiums actually paid by said first parties in carrying said insurance. When said first parties have expended the sum of $2,000 in pi emiums in carrying the insurance to the amount above specified then this agreement to assign insurance and return any sum to said second parties in case first parties should not elect to rebuild after a fire, shall become void.
“ ‘This agreement shall be binding upon and inure to the benefit of the heirs, representatives, and assigns of the respective parties.
‘In Witness Whereof, the respective parties have hereunto set their hands and seals the year and day first above written in duplicate.
“‘Edward Sutton. [L. S.]
“ ‘ George Maokey. [L. S.]
“ ‘Benjamin P. Rann. [L. S.]
“ ‘William Case. [L. S.]
“ ‘Abraham L. Beard. [L. S.]
“ ‘In the presence of, as to Edward Sutton:
“ ‘John A. Brown.
“ ‘Palmer M. Dearing.
“ ‘ Witnesses to George Mackey and parties of the second part:
“ ‘R. B. Craig.
“ ‘H. B. Waterman.’
“ 8. That defendants built and constructed a mill and electric light plant substantially according to the terms of said last-mentioned contract, and received the sum of $3,000, as therein provided, of which last-mentioned sum of money $1,000 was raised by said second parties by subscription, and $2,000 thereof was raised by the sale of the municipal bonds of plaintiff; that the issuing of such bonds was through the action of the village council of plaintiff after the question of the issuing of such bonds had by said village been submitted to, and voted upon by, the electors of said village at a special election called by such council for such purpose; that the $2,000 soreceivedbysaid village was by its municipal officers turned over into the hands of the said parties of the second part to the last above mentioned contract, and by them afterwards paid to the said defendants ; that said defendants, at and before the time they so received said sum of $2,000, were advised and had knowledge of the manner and means by which such moneys were prociired, and that such last-mentioned sum was the property of the said plaintiff village.
“9. That said sum of $2,000 was delivered to defendants by said • Rann, Case, and Beard as follows, viz.: $1,000 thereof on November 5, 1900; $500 thereof on November 17, 1900; and $500 thereof on January 22, 1901. That such sum of $2,000 was received by said Rann, Case, and Beard from said village for the purpose of delivery to defendants on or 'about'September 15, 1900.
“10. That defendants substantially completed such mill and electric lighting plant on or about January 22, 1901, and have furnished light for said village of Morrice from that time until the present under the terms and conditions of the contract which said Bennett & Sons made with said village and assigned to defendants, and have received pay therefor from said village as stipulated in said contract with Bennett & Sons.
“11. That, in the making of said contract by Case, Rann, and Beard with defendants, at least some of the members of said village council had knowledge thereof, and impliedly consented thereto and approved of the same, but I do not find that the commop council of said village, by action as a council, ever directly consented to or approved of the making of such contract further than by their subsequent action in calling a special election submitting to the electors of said, village the question of issuing bonds, and the further action'of said council in issuing bonds of said village and selling the same, and thereby raising the said sum of $2,000, and causing said last-mentioned sum to be delivered into the hands of Case, Rann, and Beard, and which sum of $2,000 subsequently came into the hands of defendants in the manner hereinbefore stated.
“12. That said defendants, for a time, at least, and without objection from said plaintiff, furnished lights and lighting in compliance with the terms of their said contract with Case, RaDn, and Beard, and that said plaintiff village' has paid defendants therefor according to the terms of said last-mentioned contract with Bennett & Sons.
“13. That said plaintiff has assumed to recognize such last-mentioned contract,' and acted under it, to the extent that it made provision for the payment to defendants of the sum of $2,000 of the $3,000 in such contract mentioned, and which was so as aforesaid by Case, Rann, and Beard paid over to defendants, and has paid defendants for lighting as stated in the foregoing (12) paragraph of these amended findings of fact.
“14. I am not able to determine from the evidence whether the defendants would or would not have erected the electric lighting plant and furnished lights to plaintiff under their contract with Case, Rann, and Beard, but for the payment of said sum of $2,000, but it is but a fair presumption that defendants would not have done so without payment to them of said sum.
“15. In addition to the findings as to matters of the foregoing 14 proposed amendments of findings of facts, I further find and add thereto that there was a plan or scheme in which a portion at least of the members of said village council, a large number of the electors of said village, Rann, Case, and Beard, and the defendants in this case, were to some extent engaged, or had knowledge of, to get and use said sum of $2,000, and pay the same over to defendants as a bonus for building and erecting said mill and electric lighting plant, which sum was the $2,000 so as aforesaid paid over to defendants by Case, Rann, and Beard.
“ As to defendants’ requests for a finding of conclusions of law, they are all denied, except as they may be embodied in the following conclusions: The whole proceeding of the disposition of said sum of $2,000 was unlawful and void; and it does not matter whether there were or were not informalities or neglect of methods anywhere in such proceeding, or whether such proceedings were regular or irregular. The result is the same — that public moneys of a municipal corporation cannot be' lawfully used for the particular benefit of private individuals, even though the general public may incidentally receive some benefits from such use in common with such private individuals.”

But two assignments of error, viz., the eighth and the third, are argued. These are:

8. The court erred in refusing to make the fourth finding of fact proposed by defendants.”
“3. The court erred in making the finding as follows:
“ ‘ It is an undisputed fact in this case that the defendants received such sum of $2,000 of the public money of the plaintiff with full knowledge that the same was the property of the plaintiff, and that it was paid over to them as a bonus for building a mill and lighting plant.’ ”

The fourth finding of fact proposed by defendants reads:

“ That said contract [the Bennett & Sons contract] was not at any time assigned to said defendants, or either of them; neither did they assume nor agree with Bennett & Sons to carry out its conditions. ”

It is true, as claimed by counsel, that defendant Sutton, who bought the Bennett property, testified, “I did not assume in any manner the obligations of that contract.” After purchasing the Bennett plant, defendants, for 30 days or more, continued to supply electric lighting as Bennett had done. In the contract of September 7, 1900 (seventh finding), to which defendants are parties, it is recited that the Bennett contract has been duly assigned to defendants, and defendants agree, in terms, to provide light under the terms and conditions of that contract. True, this contract is not one to which the village is a party, but the facts recited are some evidence supporting the finding of the circuit judge. It is at least debatable whether defendants are not estopped to assert against the plaintiff that they are not bound as assignees of the Bennett contract. They have furnished lights thereunder as his successors; they bought his property, knowing about his obligation to the village; and the instrument contains a grant of the use of the streets,' alleys, and public places in the village for a term of 25 years for public and private lighting. By reasonable inference, it appears, that, under this contract and grant, private lighting is being done. Suppose, however, for the purposes of argument, we concede the position of counsel upon this point, and pass to their remaining contention. Summing up their position, counsel say:

“1. This money, or a part of it, at least, was paid out of the village treasury and went into the hands of Sutton and Mackey as payment, in part, for electric lighting for a term of nine years and more. Even though the court should think that the idea of bonus as well as of lawful consideration entered into payment of this money, it cannot now be recovered by plaintiff without depriving defendants of that lawful consideration without which they would not have furnished lighting for the village. In other words, the court would not do one wrong to right another.
“2. A contract for electric lighting which involved an advance payment could have been legally entered into by the corporate authorities.
“3. If the court holds that the village acted in an irregular manner in bringing about this arrangement, then, by reason of the part performance of the contract, it cannot be allowed to complain at the present time.
‘ ‘ 4. The idea of bonus, as far as electric lighting is concerned, is negated in the express terms of the contract with Case et al. under which the village paid this money. Would the village Have paid the money if Sutton and Mackey had not agreed to furnish electric lighting ? Would Sutton and Mackey have undertaken to furnish the lighting if the money had not been paid ? These questions must be answered in the negative, and show that the idea of bonus did not control that part of the transaction.”

And again, in their supplemental brief, counsel say:

“We contend that while the joining of the action of the village with that of its citizens through the mediumship of such a committee may be an irregularity which might seasonably have been prevented at the objection of citizens, nevertheless, the villiage having the unquestioned right to contract with regard to the subject-matter, and having so contracted, and the defendants having been clearly prejudiced thereby, and the village having received and appropriated the benefit which it sought to obtain by its action, thát the decisions cited in our former brief apply, and that the inequity of now permitting the village to rescind the contract, after years of acquiescence, and when the parties can no longer be put in statu quo, should prevent recovery.”

We do not think it necessary or profitable to discuss the law of ultra vires as applied to municipal corporations, or to pursue other of the interesting legal questions with which the briefs for appellants deal.

The act under which plaintiff is incorporated provides (1 Comp. Laws, § 2908) that the council may contract from year to year, or ,for any period of time not exceeding 10 years, for gas, electric, or other lights. This is the full measure of power in this behalf. This power was exhausted when the contract was made with Bennett, November 13, 1899, for lighting for 10 years. No one would assert that, this contract being in force and being performed, plaintiff would have power to make another covering the same subject and same period of time. If we could say that the effect of the sale by Bennett of his plant, the destruction of the plant, and the attitude of defendants were together equivalent to an abrogation of the Bennett contract, and that the village was in position to make a new contract for lighting, it is still true that its power in this behalf is a power to contract. It has made no.such contract. The village is not a party to the contract with defendants.

There is another proposition not to be overlooked. If u we could say that the village is indirectly and beneficially a party to the contract with defendants, it would appear that the $2,000 of village money was paid to defendants as much to secure a flouring mill as an electric light plant. It does not appear that the village has the power to so aid, by contract or otherwise, private adventures.

Counsel for appellants say that the case falls directly within the rule laid down in Coit v. City of Grand Rapids, 115 Mich. 493. We.thinkthat the case is easily to be distinguished.

In our opinion, the errors discussed are not well assigned, and the judgment should be affirmed, with costs.

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


text:
    SHELDON v. CARR.
    1. Witnesses — Competency—Transactions with Decedents.
    An heir suing to set aside a deed made by his grandmother, or to enforce a trust on the property granted by it, cannot testify to conversations with her concerning the deed and the consideration moving her to execute it. Section 10212, 3 Comp. Laws.
    2. Trusts — Establishment—Evidence—Sueficiency.
    On a bill to set aside a deed as obtained by fraud, or to impress a trust upon the land conveyed, evidence considered, and held, insufficient to support a finding that the grantee promised at the time of the conveyance to make a certain payment to the grantor’s daughter.
    3. Appeal and Error — Conclusiveness oe Findings.
    Where the court below presumably reached a conclusion based on all the testimony, including that of complainant, which was incompetent, the consideration, usually of force, that the court below saw and heard the witnesses, is eliminated.
    4. Trusts — Establishment by Parol.
    A parol agreement by the grantee of land to pay a certain sum of money to the grantor’s daughter when the land should be again sold gives rise to no trust enforceable in equity by the heirs of the daughter.
    Appeal from Barry; Smith, J.
    Submitted February 16, 1905.
    (Docket No. 162.)
    Decided April 21, 1905.
    Bill by Harvey Sheldon and another against Allen G. Carr and others to establish an interest in certain land. From a decree for complainants, defendant Carr appeals.
    Reversed, and bill dismissed.

      Thomas Sullivan, for complainants.

      Oolgrove & Potter and O. S. Palmerton, for appellant.
   Ostrander, J.

The substance of the averments of the bill of complaint is here set out: On- May 3, 1883, there was conveyed by warranty deed to Sarah Carr and defendant Allen G. Carr, certain preinises. The deed was recorded, and a copy of the record is annexed to the bill. The entire consideration of $2,000 was paid by Sarah Carr, and the undivided one-half of the premises was given by Sarah Carr to Allen G. Carr as his share as an heir at law of her estate. On August 12, 1889, Allen G. Carr, who was son and one of two heirs at law of Sarah Carr, for the purpose of defrauding said Sarah and the heirs of her body other than himself, promised said Sarah that, if she would convey to him her undivided interest in the premises, he would, after her decease, sell the premises, and from the proceeds pay Etta Sheldon, his sister, the sum of $400; if Etta Sheldon was then dead, he would pay that sum to her heirs. Allen G. Carr never intended to perform his said promise, but made it with the deliberate and fraudulent intent of not performing, and of beating Etta Sheldon and her heirs out of their rightful share of the property of Sarah Carr. Sarah conveyed to Allen her undivided half interest in the premises without other consideration than the said promise, and relying upon the promise, and the deed was not recorded until December 17,1900. From May, 1883, to the time of her death, June 4, 1890, Sarah Carr continued to occupy and control the said premises as though they were her own. The heirs of Sarah Carr living at the time of her death were defendant Allen and his sister, Etta Sheldon. Etta Sheldon died December 8, 1900, and complainant is her only surviving heir. Defendant frequently informed Etta Sheldon during her lifetime that as soon as he sold the premises she should receive $400, as agreed between himself and his mother. Defendant sold and conveyed the premises April 2, 1902, giving a warranty deed therefor, to the other persons made defendants, whose good faith as purchasers is not attacked; receiving in payment other real estate and a mortgage on the premises sold. Since the said sale by defendant, defendant has apparently avoided meeting complainant, who has not been able to attempt to obtain a fulfillment of the said promise.

The answer of defendant Allen G. Carr puts in issue the payment by his mother of the entire consideration for the premises, the promise to pay any sum at any time to Etta Sheldon, and the procuring the deed from Sarah because of any such promise. It also asserts that another daughter of Sarah Carr (Emeline Hadley) is living; that no administrator of the estate of Etta Sheldon has ever been appointed.

Upon the filing of this answer, a papar appears to have been filed, of which the following is a copy:

“ [Title of cause. ] And now comes the said defendant [?] and amends the bill of complaint heretofore filed in this cause by making Emeline Hadley, who is a half sister of Etta .Sheldon, mentioned in said bill of complaint, and a daughter of Sarah Carr, deceased, a party complainant. Said bill to be and remain in all other particulars the same as filed, with the exception of adding the name of Emeline Hadley as one of the complainants thereto. [Signed by counsel for complainant.] ”

Authority to make this amendment does not seem to have been challenged in the court below. The fact is mentioned as explanatory of the theory upon which the bill was filed.

The prayer of the bill is that the court will decree complainants to be entitled to a one-half portion of the note, mortgage, and real estate received by defendant in exchange for his property, and to one-half the rents and profits of the land after the decease of Sarah Carr; also that defendant Allen be required to assign to complainants such portion of the proceeds of sale of the land as would have been theirs if the deed from Sarah to Allen had not been made. There is a prayer for general relief. The relief prayed could only be given by setting aside the deed from Sarah to Allen, and finding that Allen had no interest in one-half the proceeds of the land.

The court below found that Allen G. Carr ^received the conveyance from his mother with an understanding and promise to pay his sister (mother of Harvey Sheldon) $400, and he determines that this sum defendant Carr shall pay within 60 days, and establishes a lien for its payment on the note, mortgage, and real estate which defendant received in the trade.

We might dispose of the case without further reference to the facts. The bill, however, charges the defendant with fraudulent conduct, and the court below has, in effect, found that charge sustained by the proofs. For that reason, and because it will lead to a better understanding of the case and of our conclusions, w;e make a brief reference to the testimony:

The entire consideration for the deed and land was not paid by Sarah Carr. She was from some time before 1865 until her death a widow. Defendant was her only son, and a cripple. He has never married, but lived with his mother until her death. When her husband died, Sarah Carr sold some land, paid some debts, and, according to the testimony of Allen, she distributed a part of the remainder; giving to her daughter Etta Sheldon her share, or one-third. Then she and Allen together bought 10 acres of land, the title being taken in the name of Allen. Later she received a back pension of some $1,900. With some of this money and with the proceeds of a sale of the 10 acres the land in question was purchased, the deed running to Sarah and Allen. Seventeen hundred dollars was paid down, and a mortgage for $300 given for the balance, and this mortgage was afterwards paid. There is no evidence tending to show that the joint deed had any reference to, or was in any way connected with, a distribution of property, or that it was a setting off of property to Allen as heir. There is no proof that the deed from Sarah to Allen, made in August, 1889, was in consideration of a promise of Allen that he would pay to Etta Sheldon or her heirs $400, or any other sum, at the decease of Sarah, or out of the proceeds of a sale of the premises, or at any other time, unless found in inferences to be drawn from certain of the testimony. There was no valuable consideration paid by Allen to his mother for this deed, excepting his lifelong care of her. She lived to be 73 years old. The testimony referred to is that of complainant and of the witnesses Martin and Mary Cole, Charles Phillips, and Charles Roscoe. Of this, the testimony of complainant was and is challenged as incompetent, because facts stated by him were equally within the knowledge of Sarah Carr. The testimony of this witness is to be weighed, as to value, somewhat by the manner of its extraction. He was 30 years old when sworn (1902), and, after stating that he was present at a talk in harvest time, 1888, between his mother, Allen, and Sarah, the following occurred:

Q. State to the court what that conversation was.
“A. Why, my grandmother was talking of deeding him a farm, and he was to pay my mother $400.
Q. That was talked between your grandmother and Allen and your mother ? ■
“A. Yes, sir.
Q. What did Allen say with reference to that arrangement ? Did he consent to it ?
“A: He did'.
Q. Do you know whether or not at that time your mother had a deed— Your grandmother had deeded her interest. Did she deed her interest after that to Allen ?
“A. Yes, sir.
Q. After the deed was made, and various times until your mother’s death, did you hear other conversations between Mrs. Carr and your mother about the matter — your grandmother and mother ?
ílA. I do not understand that question.
Q. After the deed was made to Mr. Carr, here, did you hear other conversations between your mother and grandmother in reference to the $400 ?
“A. Yes, sir.
Q. What were those conversations ?
“A. My grandmother seemed to be worried about it- — • whether he was going to pay my mother or not — and she spoke about it.
“ Q. Did you ever hear any conversation between your mother and Allen ?
“A. Yes, sir.
“ Q. In which reference was made to the $400 ?
“A. Yes, sir.
Q. What was said by your mother, and what was said by Allen,-in those conversations ?
‘ ‘A. She needed the money, and asked him for it, and he promised to pay.it to her.
Q. How many times have you heard such conversations ?
“A. Probably a dozen times.
‘ ‘ Q. Did you ever on any occasion during your mother’s lifetime ever hear Allen Carr repudiate the debt, or claim he had paid any portion of it of that he did not owe it ?
“A. No, sir.
‘ ‘ Q. Have you had any talk with him in reference to the matter since your mother’s death ?
“A. I have not. * * *
Q. During the time you worked this farm for Allen, was Allen promising that this money would be paid to your mother ?
“A. Yes, sir.
Q. Did he so continue to promise continually during all the years up until the time of your mother’s death ?
“A. Yes, sir.
Q. I have forgotten your answer, but did you ever have any talk with Allen about this claim after your mother’s death ?
“A. No, sir. * * *
Q. Do you know whether or not your grandmother would have made a deed of the premises, had it not been for his promise to pay ?
“A. I don’t think she would.
Q. From the conversations you heard there between them, you think that promise was one of the inducements he held out to procure the deed ? -
“A. I do; yes, sir.
Q. Is it your firm conviction, had the promise not been made, the deed would not have been executed ?
“A. No, sir.” ' *-

On cross-examination:

Q. You say this talk you had there at your grandmother’s house occurred in harvest time in 1889 ?
“A. Yes, sir.
Q. Wheat harvest ?
“A. Yes, sir.
Q. That was some time after she deeded this land to Carr F
“A. No; that was before.
Q. You didn’t know she had made a deed to Allen in 1888 ?
“A. I did not. * * *
Q. You knew when this other deed was made ?
“A. Yes, sir.
Q. When did you say that was made ?
“A. August 12, 1889.
Q. You are sure it was at harvest time — just before ?
“A. Yes, sir.
‘ ‘ Q- Allen had a half interest in this farm anyway, didn’t he ?
“A. Not that I know of.
Q. You have examined the records F
“A. Yes, sir.
Q. You never learned that?
“A. Nq.
Q. You knew he had a deed of half of it ?
“A. No.
Q. And always had a deed of half ?
“A. I never knew it. ” >

Witness further testified on cross-examination that after his grandmother’s death he rented this farm for four or five years, and settled with Allen; that he never went to Allen about this matter.

The witness Martin Cole testified that he never heard Mrs. Carr say anything about the deeding to Allen, and never heard Allen Carr say anything in regard to the deed, but that at his (witness’) house, at a time when Allen Carr, witness, his wife and children were present, he heard Allen Carr say—

“That he was to pay his sister some money, and after the deed was drawed — after the deed was made— I have just forgotten what time — whether it was at his mother’s death it was drawn in that way.
> “ Q- How much did Mr. Carr say he was to pay his Cl O'f'OT* p
“A. I think, $400.
Q. He was to take the farm ?
“A. Yes, sir.” »

He says this conversation occurred about three years ago. Later on he says it was about four years ago.

Q. In that conversation at that place did he state how this indebtedness — how this indebtedness to Etta Sheldon originated?
“A. Why, no; I don’t think he said anything in regard to that — how it was originated — more than he was to pay Ettie. He owed her some money — $400—and she wanted the money. At times she wanted some money.”

The witness Mary Cole testified that she heard Sarah Carr, in her lifetime, say that she was going to deed Allen the place. She said he had always lived with her, but Allen was to pay her a sum of money, “but she didn’t tell me just how much, but he was to pay her some money;” that since Sarah Carr’s death she had been up to the Sheldons, and found her worrying about money, and that, coming home, she told Allen Carr about it, and he said he owed it to her, and, if she really wanted it, he would get it.

The witness Roscoe served the papers in this case upon the defendant Allen Carr, and he testified that defendant said, “ I don’t think I will have any lawyer;” that he said he guessed Harvey had some kind of a claim; he had been looking for something of that kind.

The witness Charles Phillips testified to having had two conversations with Sarah Carr — the last one a year or a year and a half before her death, and the first one a year prior to that one — at which no one was present but himself and Sarah Carr. He testified that his hearing was pretty bad, and had been for a good many years; that Mrs. Carr said to him, in substance, that she thought Allen ought to have the place, but that they were going to pay Etta money, about — she thought about $500.

Sarah Carr had a deed made to Allen of her interest in this land in 1888, executed it, and tendered it to him. He declined to take it. The deed was destroyed. Allen was not present at the drawing or execution of the deed made a year later — the deed in question. He took it when it was given him, and laid it away among other papers in the house. There is an abundance of testimony to show that Sarah Carr intended the land for Allen, and that their life together was such that her desire was a reasonable one.

Whether we treat the bill as filed to enforce a right-which accrued to the ancestor, Sarah Carr (a right to-treat the deed from Sarah to Allen as though it had never been made), or as one to enforce a parol trust in or concerning land, the testimony of Harvey Sheldon concerning the statements made by Sarah Carr is incompetent. He is a person within the terms of the statute (3 Comp. Laws, § 10212). If we eliminate the objectionable testimony given by this witness, there remains none which will warrant a finding that the deed from Sarah to Allen was procured by a fraudulent promise, or that the land, or any of it, was held by Allen in trust. With his testimony, the case is a very doubtful one upon the facts. The proof shows that Allen managed the farm while he and his mother lived together. That he owned an undivided half of it from the time of its purchase is undisputed. Etta Sheldon lived in the neighborhood of defendant until December 8, 1900, 10 years after the death of her mother. During this time her son (one of the complainants) rented the land for four or five years from defendant Allen, and settled with him. Inaction on her part is attempted to be explained by the allegation of frequent promises made by Allen to pay her. The testimony upon this subject has been already referred to. Its tendency to show any promise or acknowledgment based updn or growing out of any arrangement with his mother is equaled, at least, by the testimony offered on the part of defendant. There is no proof that defendant has since the death of Etta Sheldon avoided complainant. Complainant never applied to defendant nor conversed with him about the matter. Complainant did not know that Allen had from 1883 been owner of one-half the land. The fact that presumably the court below reached a conclusion upon all the testimony, including that of complainant, eliminates the consideration, usually of force, that he saw and heard the witnesses.

Two distinct claims are set up by the complainants. As to both, we quote from the brief:

“It'is certainly a well-established principle in equity practice that if Allen Carr procured this deed from his mother to her undivided one-half interest in the forty-four acres of land on the express promise and understanding that he was to pay to Etta Sheldon or -her heirs the sum of $400, that in that case the court will enforce a parol trust in said land in favor of Etta Sheldon or her heirs.
“In the case at bar it is our contention that Allen Carr procured the deed upon his express promise to pay this $400 to Etta Sheldon; that Sarah Carr continued in possession of the land up until the time of her death; that Allen Carr always recognized this trust arrangement, and néver repudiated it, until within a short time before the filing of the bill of complaint in this case, and not until after the death of Etta Sheldon. It is our contention that the rights of Sarah Carr in the premises descended to Etta Sheldon and her personal representatives.”

It is to be noticed' that none of- the testimony is addressed to any agreement except the alleged agreement to pay to Etta Sheldon or her heirs $400; that, as averred in the bill, payment was to be made after death of Sarah Carr. We assume, upon the proofs, that this alleged agreement rested wholly in parol. No mention is made of it in the deed. No proof of any such agreement is made, excepting by the testimony of Harvey Sheldon; and the conversation he gives us, if occurring in 1888, occurred prior to the making of the deed. Besides, counsel for complainants speak of and treat it as a parol agreement or trust. The case of Thompson v. Marley, 102 Mich. 476, is authority for the proposition that there is no such trust averred or proven as can be declared or enforced in equity. The same case is said by counsel for complainants to be authority for the proposition that if Allen procured the deed by fraud, with intent not to carry the agreement into effect, Sarah Carr might at any time have filed a bill to set the deed .aside, and, having died without so doing, her rights devolved upon her heirs or personal representatives. Her personal representatives are not here. If Thompson v. Marley is authority for holding, under the facts of this case, that the heirs of Sarah Carr might set aside the deed to Allen — a proposition we do not discuss— still the court below found against complainants upon that theory, and they have not appealed.

The decree can only be sustained as a declaration and enforcement of a trust made void by our statutes. It is reversed, with costs of both courts, and a decree will be entered here dismissing the bill of complaint.

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


author: Montgomery, J.

text:
    POWERS v. BRIGGS.
    1. Sales — Warranty—Breach—Question for Jury.
    Plaintiff, in an effort to sell a hay loader to defendant, warranted that it would do certain work. Defendant declined to purchase the machine, but afterwards the matter was again taken up, and the machine was ordered. Held, that it was a question for the jury whether the original warranty entered into the contract of sale as finally made.
    2. Same — Return of Goods — Delay—Reasonableness.
    In an action for the price of a hay loader, rejected on account of breach of warranty, circumstances examined, and held, that the delay in returning the machine was not, as a matter of law, unreasonable.
    Error to Eaton; Smith, J.
    Submitted February 16, 1905.
    (Docket No. 166.)
    Decided April 21, 1905.

      Assumpsit by Seroll E. Powers against Albert Briggs for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Horace 8. Maynard, for appellant.

      Frank A. Dean, for appellee.
   Montgomery, J.

This action was brought to recover the price of a hay loader sold and delivered to the defendant. The defense was that the loader was bought under an express warranty that it would do good work and would load hay from windrows, and that, if it failed to do so, defendant might return it; that it did not answer the terms of the warranty; and that defendant returned it. There was a sharp contest on the trial. The circuit judge submitted to the jury the three questions: (1) Whether there was such a warranty as claimed; (2) whether defendant gave the machine a fair test within a reasonable time, and found that the machine would not do good work; and (3) whether within a reasonable time there-, after he returned the machine to plaintiff.

If there was evidence which justified the submission of each of these questions to the jury, we think the concise, clear charge" of the circuit judge covered all the points in the case, and that no elaboration was necessary. It is insisted, however, that the evidence shows that the sale, when made, was not accompanied by a warranty. Plaintiff’s contention in this regard is best stated in his request to charge:

“The time when the warranty was made, if any were made, becomes important in this suit. If you find that some time prior to the delivery of the machine the plaintiff, either by phone or otherwise, tried to sell a hay loader to the defendant, and in the negotiations made warranties and representations of what such machine would do, and said that if said machine did not do good work the defendant would not have to keep it, and that it might be returned ; and find that the offer and proposal of the plaintiff was not at the time accepted by the defendant, but that the defendant said he would consider the matter, and let the plaintiff know whether he would take the machine or not; and find, further, that the plaintiff afterwards called the defendant by phone and asked him if he was going to take the machine, and whether the plaintiff should order a machine for him, and that the defendant then informed the plaintiff, in substance, that he (the defendant) had concluded not to buy a machine, and that the plaintiff need not order a machine for defendant — that would end the negotiations at that point, and all representations and warranties, if any, made by the plaintiff up to that time, would not bind the plaintiff in any after negotiations or proposals of sale, unless he expressly renewed them. If the status of affairs then was that the plaintiff had made a proposal of sale which the defendant rejected, a new warranty would have to be made by the plaintiff in order to bind him.”

We do not think this request correctly states the law. The evidence shows that, after the ‘conversation referred to in the request, the subject was again taken up, and the, loader ordered. In the view most favorable to plaintiff, it was a question for the jury as to whether the subsequent order had reference to, and was understood to have reference to, the preceding conversation, and whether both parties understood that the loader was ordered under the warranty which was a part of the offer of the machine in the first instance. The case of Childs v. O’Donnell, 84 Mich. 533, is easily distinguished. It was there held that a warranty on a sale of one bill of goods did not attach to a sale of another bill at a later time. In the present case the negotiations all related to the identical machine delivered to the defendant, and the question is whether all that was said during the negotiations was understood to have reference to these machines, and whether, in the understanding of the parties, the proposed warranty attached when the sale was finally consummated.

It is contended that the machine was retained an unreasonable time before being returned. It is said that the machine was retained from July 20th to September 14th before it was returned. The testimony tends to show that on July 20th it was understood that the machine was to be given a further trial. It was given a further trial on the 23d. On the 25th defendant sent his brother to inform plaintiff that the machine did not work. Again, about the middle of August, the defendant’s brother told plaintiff that the machine did not work, and was informed that it would not be taken back. Finally, on. September 14th, it was returned to the place where defendant got it. It was not used after July 23d. Under these circumstances, it cannot be said, as matter of law, that the delay was unreasonable, particularly when it is considered that, under the testimony, plaintiff had a duty to perform in mairing the machine do the work it was designed for, and when it is considered that the season for its use was about closed. Felt v. Evaporator Co., 52 Mich. 602.

Error is assigned on the opening statement of defendant’s counsel. We see no reason to question the good faith of defendant’s counsel in stating what he expected to prove. The reasoning in Prentis v. Bates, 88 Mich. 567, applies with peculiar force to the present case.

No error appears.

Judgment affirmed.

Carpenter, Blair, Ostrander, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    OLIVER CHILLED PLOW WORKS v. DOLAN.
    Sales — Contracts—Construction—Conditions.
    Where plaintiff, a manufacturer of plows, used the same blank form to create sales agencies and for sales to the trade, an indorsement on the blank that plaintiff retained title to the goods until paid for was not a part of a contract for the sale of goods to defendant’s assignor, providing for absolute payment at specified dates, which both parties must have understood would be after the purchaser would have sold most of the goods in the due course of trade, and which did not qualify the buyer’s right to make sales in any manner satisfactory to himself, though it also contained a provision that the buyer recognized as lawful and binding “all conditions and agreements on this sheet.”
    Error to Ingham; Wiest, J.
    Submitted February 16, 1905.
    (Docket No. 163.)
    Decided April 21, 1905.
    Replevin by the Oliver Chilled Plow Works against Patrick H. Dolan. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    P. H. Dolan (Black & Beasoner, of counsel), in pro. per.

      GJiarles F. Hammond, for appellee.
   Carpenter, J.

In December, 1902, plaintiff and D. J. Mahoney (defendant’s mortgagor), a retail dealer of agricultural implements in the city of Lansing, executed a written agreement, of which the following is a copy:

“Lansing, Dec. 24, 1902.
“ORDER. .
“Oliver Chilled Plow Works,
‘ ‘ South Rend, Ind.
“Please ship on or about the 15th day of February, 1903, via. L. S. R. R., sure, from South Bend, the goods below specified.
“This order is given at the discounts named below from current price lists of the Oliver Chilled Plow Works due and payable i May 20, \ Sept. 20, £ Nov. 20, 1903, with 10 per cent, additional discount for cash, if paid by that date. Payment to be made in New York or-exchange, or currency by express, charges prepaid. Remittances by check at customer’s risk. Failure to realize from any cause will be at customer’s loss. Subsequent orders during the season are subject to all the conditions of this contract and to changes in prices and discounts without notice, are due on the 20th day of the month following purchase, and are subject to 14 per cent, cash discount if paid at maturity. The terms to the trade and the conditions and agreements on this sheet are recognized as lawful and binding by all the parties hereto.”

This was signed “D. J. Mahoney,” and accepted subject to approval of the Oliver Chilled Plow Works by plaintiff’s salesman. Then followed a statement of terms to the trade, and then a description of the goods ordered (which consisted of 50 plows and a large quantity of slips, points, molds, etc.). Above the order, which was given on a blank prepared by plaintiff, was printed this:

“The handling of bogus or imitation plows, extras, or repairs will work a forfeiture of this agency. Contract for agency of Oliver chilled and steel walking and riding plows for the season ending Noy. 1,190-.”

On the back of this contract appeared in large letters this indorsement: “Agency Contract for Oliver Chilled and Steel Plows, taken by-.” In another column, printed in smaller type, was: “Territory ■-.”

‘ ‘ Agents are not permitted to sell outside the territory assigned them. * * *
“ In all cases the title to and ownership of goods manufactured by the Oliver Chilled Plow Works shall remain vested in said Oliver Chilled Plow Works until paid for.”

This same column contained many other stipulations. Some of them were clearly limited in their application to agents.

After the goods were delivered to Mahoney under this contract, and before they were .paid for, he mortgaged the same to defendant for the purpose of securing his creditors. The plaintiff, claiming that by the indorsement on the contract it retained title until the goods were paid for, brought this action of replevin. Mahoney testified that he did not know that there was any indorsement whatever on the contract, while plaintiff’s testimony indicated that this indorsement was brought to his attention at the time he signed the ordered. The trial court directed a verdict in plaintiff’s favor. Defendant appeals.

The decisive question is this: Is the indorsement retaining title in plaintiff a part of the contract of sale? Cases have arisen where it was clear that one of the parties to a .contract intended that indorsements thereon should be a part of the contract, and the issue in dispute was whether the other party assented to that intent. Jurists have not agreed upon the principle by which that issue should be determined. Compare Seymour v. Farquhar, 93 Ala. 292, with Parker v. Railway Co., L. R. 2 C. P. D. 423, and Henderson v. Stevenson, L. R. 2 H. L. Sc. App. 470.

We are not called upon to consider that interesting question, because here, as we shall endeavor to show, it was not plaintiff’s intention to make the indorsement reserving title a part of its contract with defendant’s mortgagor. The contract under consideration was a contract of sale. It was made on a form prepared by plaintiff to be used when it made a contract for goods to be sold by an agent, as well as when it sold them to the trade. When the form was used to create an agency, certain blanks were filled, which, when it was used for the purpose of a sale to the trade, as in this case, were left vacant. Thus certain provisions indorsed on the contract were operative when an agency was .created which had no application in case of a sale. We -think the indorsement retaining title until the gobds were paid for is such a provision. It will be noticed that defendant’s mortgagor had until November 20, 1903, to pay for goods which (it is fair to assume) froth contracting parties intended would be sold before that date. No provision in the contract qualified the vendee’s right to make such sales, and to make them in any manner satisfactory to himself. He had, therefore, a right to transfer to the purchasers an absolute title or anything less than an absolute title. A provision retaining title in plaintiff until the season closed would, as between the vendor and vendee, nullify this right. It would prevent the vendee from doing precisely what the contract intended he should do. We are bound, therefore, to decide that the indorsement which retained title in plaintiff had no application to the contract of sale under consideration.

In reaching this conclusion we have considered and rejected plaintiff’s contention that the language recognizing “as lawful and binding” “all conditions and agreements on this sheet ” makes the indorsement reserving title a part of the contract. It is proper that we should state why we reject that contention. This clause does not say that all indorsements thereon shall be a part of the contract. Neither can it be so construed, for it is clear that the indorsement restricting the sales of an agent to a specific territory is not a part of the contract.' The utmost that plaintiff can claim, then, is that this clause makes some, but not all, of the indorsements a part of the contract. If so, the court must determine by considering the writing —that is, by construing it — whether a particular indorsement is a part of a particular contract. It is obvious that that question must be determined by the general principles applicable in the construction of contracts. Those principies have already been applied in construing the contract in suit. They will not permit us to read into the contract by implication any provision which (like that reserving title in the vendor) would defeat the purpose for which the contract was made. See Walker v. Douglas, 70 Ill. 448; First Nat. Bank of Baltimore v. Gerke, 68 Md. 456; Hunter’s Adm’rs v. Miller’s Ex’rs, 45 Ky. 619.

While the clause reserving title to plaintiff has no application to this case where the goods were sold to the trade, it is easy to see how it may have application when goods are consigned to an agent. It may then be regarded, as between principal and agent, as a limitation upon the agent’s authority to sell. In case he makes a sale on credit, title is to remain in the vendor (the agent’s principal) until the goods are paid for.

It follows from these views that the learned trial judge erred in directing a verdict for the plaintiff. He should have directed a verdict for the defendant.

Judgment reversed, with costs, and anew trial ordered.

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


text:
    PEOPLE v. SCHNEIDER.
    1. Municipal Corporations — OrUinanoes—Regulation op Automobiles.
    The city of Detroit has power under its charter (1904, § 170), to provide by ordinance for the registration and numbering of automobiles and other motor vehicles.
    2. Same — License—Revenue.
    An ordinance regulating automobiles and requiring registration and numbering thereof at a cost to the owner of $1 to cover the value of figures furnished by the city to form the number, is not objectionable as a license, it being at most a mere means of regulation, and not a license for revenue.
    3. Same — Constitutionality.
    An ordinance requiring one operating an automobile on the street to display thereon a number furnished by the city, is not in conflict with the Constitution in that it is an unreasonable search, or compels the operator to furnish evidence against himself, or deprives him of rights without due process of law; but such an ordinance is a justifiable exercise of the police power, in the interest of the safety of the traveling public.
    Certiorari to recorder’s court of Detroit; Phelan, J.
    .Submitted February 16, 1905.
    (Docket No. 268.)
    Decided April 21, 1905.
    John P. Schneider was convicted of-a violation of an ordinance regulating the use and speed of automobiles and other motor vehicles.
    Affirmed.

      Henry F. Chipman and Henry Look, for appellant.

      Timothy E. Tarsney and J. Walter Dohany, for the people. ■
   Carpenter, J.

Certiorari to the recorder’s court of the city of Detroit. Respondent was convicted in the lower court, and fined $25, for operating an automobile in the streets of the city of Detroit without having first registered said automobile, and without placing thereon a number, as required by an ordinance of said city. We are asked to set aside said conviction upon the ground that said ordinance is invalid.

The provisions of said ordinance material to this decision are as follows:

“ Section 1. No person or persons shall drive or propel any automobile or other motor vehicle within what is known as three-quarter mile circle at a rate of speed to exceed eight (8) miles per hour; nor shall any person or persons drive or propel any automobile or other motor vehicle outside of said three-quarter mile circle within the city limits at a rate of speed to exceed twelve (12) miles per hour; and at no time shall any person or persons drive or propel any automobile on any street, highway, or public place in a careless, reckless, or negligent manner. * *' *
“Sec. 2. The owner or driver of any automobile or other motor vehicle shall, before operating the same, register with the license collector his name and residence, together with a description of the vehicle so owned or operated, and the license collector shall enter such name and residence and description in a record kept for that purpose and shall furnish the person so registered with one or more aluminum figures sufficient to compose a number corresponding with the number appearing upon the record so made. The figures shall be four (4) inches high, and three (3) inches in width, for which the person to whom delivered shall pay to said license collector the sum of one dollar ($1). The owner of such vehicle shall place, or cause to be placed, such figures on the rear of his vehicle in the center of the bed thereof, arranging the same in a horizontal line with the space of one and one-half (1£) inches, between the nearest adjacent points thereof, and on a dark background; but said figures may be rigidly attached to the axle or hung under the body of the vehicle ; said figures shall at no time be concealed or covered, but shall be kept in plain sight. * * *
“Seo. 5. No person shall operate or cause to be operated an automobile or other motor vehicle upon any of the streets, alleys, boulevards, park driveways, or public grounds of the city of Detroit without complying with the provisions hereof.
“Provided, That the provisions of the ordinance relating to the registration and numbering of such vehicles and notification as to transfers thereof shall not apply to automobiles or other motor vehicles owned by nonresident visitors when said vehicle is kept in the city for not more than two (2) days.
“ Sec. 6. Any person violating any of the provisions of this ordinance shall be punished by a fine not exceeding one hundred dollars ($100) for each offense; and, in the. imposition of such fine, the court may make a further sentence that, in default of the payihent of such fine, the offender may be imprisoned in the Detroit house of correction for such offense for any period of time not exceeding three (8) months.”

Respondent .concedes that part of the ordinance regulating the speed of automobiles is valid. He contends, however, that the provisions respecting registration and numbering are invalid. His objections to the validity of those provisions may be classified thus: (1) The legislature has never granted to the common council of Detroit authority to enact them. (2) They interfere with respondent’s constitutional rights. We will consider each of these objections separately.

1. Has the legislature authorized the common council to enact the provision in question? This depends upon the proper construction of section 170 of the city charter (1904), which gives the common council authority “to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.” It is scarcely necessary to say that this gives the common council ample authority to enact ordinances which will tend to make streets safe for the traveling' public. We may take judicial notice that many of these automobiles may be driven at a speed of at least 40 miles an hour. Driven by indifferent, careless, or incompetent operators, these vehicles may be a menace to the safety of the traveling public. Under its authority to regulate the use of the streets, the city may enact ordinances which will diminish this danger. It is clear, and it is conceded, that it may regulate the speed of automobiles and repress their careless management, but it is contended that it has no power to provide for their registration and numbering. It is not difficult to see that the registration and numbering of automobiles is intimately connected with their safe operation in the streets. In a city like Detroit many automobiles are precisely alike in external appearance. They are sometimes operated by persons whose faces are partially concealed and whose identity is uncertain. Those operators who are most reckless and indifferent — and those are the ones who endanger the safety of others— may violate this ordinance with impunity unless some method is adopted by which they or their automobiles may be identified. The provision in the ordinance for registration and numbering is such a method. It is reasonable to believe that, when he knows that the number displayed at the rear identifies his automobile, fear of discovery and punishment will lead the automobile’s driver to observe the requirements of the ordinance. Indeed, we cannot say that the common council did not decide — and did not justly decide — that the provision for identification by registering and numbering was necessary to prevent injury to pedestrians and other travelers from the careless management of automobiles.

If authority be needed for the proposition that the city may enact this provision for the purpose of identifying automobiles which endanger the safety of travelers, Frankford, etc., R. Co. v. City of Philadelphia, 58 Pa. St. 119, is such an authority. The ordinance there in question provided “that each car run shall be numbered and have its number painted in a conspicuous place.” The court sustained this ordinance, saying:

It is obvious that its effect is that of police regulation. It clearly furnishes a means of identifying every car which may be run in violation of those rights and public interests which the city is authorized by its charter to maintain and secure.”

See, also, Laundry License Case, 22 Fed. 703.

But it is said that the provision for registration and numbering is a license, and that the grant of authority to regulate gave the city no power to license. If the provision for registration and numbering — which involved no discrimination, and requires the payment of nothing more than is necessary to pay for. the number which the municipality furnishes — can be regarded as a license (for conflicting definitions of “license,” see 2 Cooley on Taxation [3d Ed.], p. 1137; Adler v. Whitbeck, 44 Ohio St. 539), it is not a license for the purpose of raising revenue. If it were, it might well be contended that it did not pass as an incident to the power to regulate. See 2 Cooley on Taxation (3d Ed.), p. 1141; Laundry License Case, 22 Fed. 703. It is a license (if a license at all) as a mere means of regulation; indeed, we might say, as already shown, as a necessary means of regulation'. This proposition is self-evident, viz., that the grant of authority to accomplish a certain purpose carries with it authority to use any proper and lawful means without which that purpose cannot be accomplished. If, therefore, the speed of automobiles cannot be effectually regulated without licensing them, the grant of the power to regulate confers upon the city power to license, unless some other provision of law forbids the exercise of that power. I think this conclusion is supported by the following authorities: Town of Russellville v. White, 41 Ark. 485; Fort Smith v. Ayers, 43 Ark. 82; Village of St. Johnsbury v. Thompson, 59 Vt. 300; Laundry License Case, supra.

In the Laundry License Case, which involved the licensing of laundries in the city of Portland, Or., it was said:

“The words ‘to control’ and ‘to regulate,’ ex vi termini, imply to restrain, to check, to rule and direct. And, in my judgment, the power to do either of these implies the right to license, as a convenient and proper means to that end. * * * By this means the persons or occupations to be regulated are located and identified and brought within the observation of the municipal authorities, so that whatever regulations are made concerning them may be the more easily and certainly enforced.”

There are cases holding that the grant of power to regulate does not confer upon the city power to license. See City of Burlington v. Bumgardner, 42 Iowa, 673. In that case (that was a grant of authority to regulate taverns and houses for public entertainment) it might be said that the power of regulation might be effectually exercised without licensing. That is by no means an authority for the proposition that, when regulation cannot otherwise be effectual, the grant of power to regulate does not carry with it power to license. We do not think that any of the cases cited by respondent are opposed to this conclusion. The cases most nearly in point are City of Chicago v. Collins, 175 Ill. 445 (49 L. R. A. 408), and City of Chicago v. Banker, 112 Ill. App. 94.

In City of Chicago v. Collins, the supreme court of Illinois held invalid an ordinance of Chicago which imposed a license fee on each vehicle using the streets of the city. The grounds of that decision were these: (a) The city had no authority to prohibit, and therefore no authority to license, “ an ordinary method of locomotion, or even an extraordinary method, if it is not of itself calculated to prevent a reasonably safe use of the street by others.” (6) The city had no authority to raise a revenue by taxing the use of vehicles which were already subject to taxation under the general laws of the State. That decision has no application to the case at bar. It does not hold nor indicate that municipal authorities may not (if in their judgment such a requirement is essential to safe travel) exclude from their streets automobiles not registered and numbered.

City of Chicago v. Banker, supra, is more nearly in point. In that case it was decided that an ordinance of the city of Chicago compelling one ‘ ‘ who uses his automobile for his pleasure and business only to submit to an examination and to take out a license (if the examining board see fit to grant it) * * * is beyond the power of the city council, and is therefore void.” Without approving that decision, it is sufficient to point out that the ordinance in question in that case goes further than the ordinance in the case at bar.

We conclude, therefore, that the common council of the city of Detroit had authority to provide for the registration and numbering of automobiles under the grant of power to regulate the use of the streets, unless the exercise of that power is forbidden -on some constitutional ground.

2. Is the ordinance constitutional ? Respondent contends that the ordinance violates section 26, art. 6, of our Constitution, which forbids “unreasonable searches,” and section 32 of article 6, which reads:

“No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.”

We deem it sufficient to say that the provision requiring one operating an automobile on the street to display thereon a number furnished by the municipality is not an unreasonable search. The statement in the opinion of this court in Robison v. Haug, 71 Mich. 38, relied upon by respondent, which denies the right of the public to look into one’s private place of business or residence, manifestly has no application. We think it equally clear that the ordinance does not compel an automobile owner or operator to testify against himself, or deprive him of any property rights. It is merely a justifiable exercise of the police power in the interest of the safety of the traveling public. We think it unnecessary to discuss any other objection.

The conviction is affirmed.

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


text:
    PEOPLE v. PECK.
    1. Criminal Appeal — Brief—Court Rules.
    Where the brief of plaintiff in error contains no statement of the facts, nor of the errors on which he relies, nor of the questions involved, nor the manner in which they are raised, as required by Rule 40 of this court, the fact that the case is one involving personal liberty alone prevents affirmance of the verdict without an examination of the questions raised, and even then the action of the court is not to be regarded as a precedent.
    2. Jurors — Voir Dire — Use of Peremptory Challenges — Prejudicial Error.
    In a criminal case it is reversible error, regardless of whether peremptory challenges have been used, to refuse to permit jurors to be asked on their voir dire examination “ if, * * * the testimony is evenly balanced in your mind * * * which way would you be inclined to lean, for or against the defendant?”
    3. Criminal Law — Evidence —Other Offenses — Cross-Examination.
    On a prosecution for embezzlement of the amount of a check, sent by prosecuting witness to defendant to buy tax titles, the parties were shown to have had a number of business transactions and some litigation, and the vital issue in the case on which the evidence was conflicting was whether a receipt introduced by defendant for the money alleged to have been embezzled was a forgery. Held, that it was error to require defendant on cross-examination to answer concerning receipts in other transactions,' which, on an accounting between defendant and the prosecuting witness, had been disallowed as credits on the claim of the prosecuting witness that they were forgeries.
    4. Same — Evidence of Prosecuting Witness.
    It was error also to permit the prosecuting witness to state that receipts in other transactions were forgeries, and that on an accounting between defendant and the prosecuting witness they had been disallowed as credits, on the claim of the prosecuting witness that they were forgeries.
    5. Embezzlement — Check — History — Admissibility in Evidence.
    On a prosecution for embezzlement of the amount of a check sent by prosecuting witness to defendant, proof of the history of the check was admissible, where the defense admitted the receipt of the check and of the money on the check, and insisted that it had been accounted for to the prosecuting witness.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted February 16, 1905.
    (Docket No. 233.)
    Decided April 21, 1905.
    William Peck was convicted of embezzlement.
    Reversed.

      Turner & Turner, for appellant.

      George 8. Lovelace, Prosecuting Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   Ostrander, J.

' This case comes here on exceptions before sentence. Respondent was convicted of having, on December 17, 1898, embezzled and fraudulently converted to his own use $250 of the goods and chattels of another, contrary'to the provisions of 3 Comp. Laws, § 11570. No attempt has been made by counsel for appellant to comply with Rule 40 of this court. His brief contains no statement of the facts, nor of the errors upon which he relies, of the questions involved, or the manner in which they are raised. The fact that it is a case involving personal liberty alone prevents affirmance of the verdict without examination of the questions raised. Nor must this action of the court be regarded as a precedent.

In November, 1897, respondent, who lived at Montague, Mich., wrote to the complaining witness, Nathan H. Webb, with whom he had had similar transactions, inviting him to invest $250 in purchasing certain tax titles from the State of Michigan. Mr. Webb lived at Austin, 111. Pursuant to the correspondence had, Mr. Webb sentto respondent his check for $250, and later, on request of respondent, $25 additional. Respondent cashed the checks, purchased a sight draft at the Muskegon County Bank for $267 and sent to a person in Lansing, Mich., to be used at the office of the auditor general 'to purchase the tax interest. This was in December, 1897. The land had been redeemed, and on December 9, 1897, the money was returned to respondent by way of a State treasurer’s check, upon which respondent within a day or so obtained the money. It is claimed by Mr. Webb that he did not learn for several years that the check was not used for the purpose intended, and that his first knowledge came from respondent’s testimony in litigation which arose between them. After some investigation, on July 10, 1903, a criminal complaint was made by Webb; respondent was arrested, examined, and held for trial. The complaint, as well as the information, charges in different counts the felonious appropriation of the check and its proceeds. Neither the complaint, the testimony before the magistrate, nor the information leaves room for doubt about the particular transaction involved.

In selecting the jury, counsel for respondent asked of one of the panel presented this question:

“If, in the proof introduced here, witnesses should take the stand on the part of the people and on the part of the defense, and at the end of the trial you retire to your jury-room to deliberate on your verdict, suppose that you then ascertain that the testimony is evenly balanced in your mind (that is, as much upon one side as the other, and entitled to the same weight and credence), which way would you be inclined to lean — for or against the defendant ?”

This was objected to by the prosecuting attorney, the objection was sustained, and an exception for respondent was taken. Upon proceeding to ask other jurors the same question, the trial judge said:

“ It isn’t necessary for you to ask that question. I have ruled on it, as far as that is concerned. It isn’t a proper question anyway.”

Thereupon another exception was entered for respondent. So far as the record discloses, no objection was made to any juror, nor any other questions asked the jury by counsel for respondent There was no argument, nor was the court referred to any authority. In Monaghan v. Insurance Co., 53 Mich. 238, 245, the following question was asked a juror:

‘ ‘ Suppose, in this case, after the evidence is all introduced, you should believe that it was evenly balanced, so that there was as much for the plaintiff as for the defendant, which way would you be inclined to lean — against or in favor of the company ?”

To this counsel for the plaintiff objected for the reason that the juror w»uld probably be guided by the court, and the court said:

“ Of course, the party that has affirmation of an issue must produce a preponderance of evidence, and, if the evidence was evenly balanced,- they would be obliged to find against the party that had the affirmative of the issue. I don’t think the question is proper. I don’t permit the juror to answer it.”

This court held the question a proper one, and that the court erred in not permitting the juror to answer. That the question was a proper one is conceded. In Township of Otsego Lake v. Kirsten, 72 Mich. 1, 6, it was held proper to be answered. In People v. Keefer, 97 Mich. 15, 19, it was held error to exclude such a question. In Towl v. Bradley, 108 Mich. 409, a case from Muskegon circuit, it was held that the case came within the rule announced in Monaghan v. Insurance Co. We regard it as the settled law of the State that counsel have the right to interrogate jurors upon their voir dire to the precise point indicated by the question here asked, and that it is reversible error to exclude such questions and the' answers to them. As is explained in Monaghan v. Insurance Co., the fact that counsel have not or do not use peremptory challenges does not affect the question. Such questions are asked to enable counsel to judge of the propriety or the necessity of peremptory challenges.

Upon the trial respondent claimed that he had repaid to Mr. Webb the money he was accused of having converted, and he produced and offered in evidence a receipt for it, purporting to be signed by Webb. The fact and the giving of the receipt were denied, and the signature to the receipt was declared by Webb to be forged. Upon this question of forgery or no forgery, an issue of fact, vital and controlling, was presented. Upon his cross-examination of respondent upon this issue the prosecuting attorney asked the following questions, which, over objection, were required to be answered:

Q. You had some other receipts you did introduce or claim credit for that Mr. Webb claimed were forgeries, didn’t you ? * * *
Q. You had some other receipts or papers or orders you introduced, or attempted to, upon the accounting of Mr. Webb’s father’s estate, which Mr. Webb claimed were forgeries ? * * *
Q. You were not allowed any credit for that, were you ? * * *
Q. Isn’t it true that the court refused to allow you any credit for it in any respect ?”

The parties were shown to have had a number of business transactions, and some litigation, and it was the claim on the part of the people that respondent had forged other papers besides the particular one involved upon this trial. The answers to these questions, while admitting that Mr. Webb claimed there were other forgeries, do not in any way admit that they were, in fact, forgeries, and explain why no credit was given respondent by the court in the matter to which his attention was called. This was not proper cross-examination. It was not material that Mr. Webb claimed that other papers were forged, nor that some court had disallowed a claim presented by respondent. Whether, in view of the answers of respondent, by which the people were bound, reversible error was committed, we do not determine. The prosecution did not rest upon respondent’s answers to these questions. Upon rebuttal Mr. Webb not only testified — as was competent and proper — that the receipt in question was forged, but was permitted over objection to testify as follows:

Q. Will you state whether or not Mr. Peck has ever used, or offered to use, upon the trial of any of these other cases which have been pending between you and him, any other forged papers or documents ?
A. Yes, sir; he has.
Q. Mr. Peck’s attention was called the other day to an order claimed to have been given by you authorizing the applying of $563, or $567, I don’t recollect which, as an advancement against your father’s estate. Will you state whether that order was ever given or signed by you at all ?
‘‘A. Never.
“ Q. Was any such order of any kind or character ever ^ signed by you ?
“A. Never.
Q. That was a forgery ?
“A. It was a forgery out and out.
“ Q. Was there also a forged note, or a forged indorsement of one, or something of that kind ?
“A. A forged note at the bank.”

Upon motion made to strike out all of this testimony, which was denied, the court said:

The jury cannot pay any attention so far as they refer to a conviction, and that would not warrant the jury in convicting the defendant of this crime; that is not the object of the admissibility of them at all; that is not what they are admitted for.”

Counsel for the people do not refer us to any authority supporting this procedure. It is said,in the brief that this testimony was admissible, not for the purpose of showing this particular receipt was a forgery, but to show respondent’s felonious and guilty intent. The issue was, as we have stated, whether a particular receipt, produced by respondent, was genuine or was forged. Respondent contended that it was genuine, Webb that it was forged. Any competent evidence bearing up,on this issue was proper to go to the jury. But Webb’s statement that other papers were forged raised new issues. Respondent could not be expected to meet and to try these various issues: The cross-examination of respondent and the direct examination of Webb, taken together, was prejudicial to respondent, inasmuch as the jury were at liberty to infer-that respondent’s guilt or ^innocence of other claimed forgeries was a matter for them to determine.

In the charge to the jury the court said upon this subject:

“ The evidence tends to show that there has been some controversy heretofore over other receipts that were claimed to be forged. You have a right to take that matter into consideration; but be careful. You are not warranted in convicting this defendant of this crime simply because he has been accused, or it is claimed that other receipts have been forgeries. It is a matter you have a right to take into consideration in connection with the case. ”

It will be seen that the jury were not told for what purpose they might consider this evidence — for what purpose it was before them. If respondent had been on trial for forging the particular receipt, the testimony would have been inadmissible. People v. Henry, 129 Mich. 100; People v. Lonsdale, 122 Mich. 388. It does not fall within the rule of Helwig v. Lascowski, 82 Mich. 619 (10 L. R. A. 378).

We pass the assignments of error based upon the testimony of Mr. Webb of the contents'of letters written' to respondent because the respondent afterwards produced the letters themselves.

The various assignments relating to proof of the history of the check are overruled. It was proper to lay the whole matter before the jury. The defense admitted the receipt of the check and of the money on the check, and insisted it had been accounted for to the owner. There was no error in refusing to rule that respondent and Webb were partners in the transaction involved.

We have examined such of the other assignments of error as are at all discussed in the brief for respondent. Some are not likely to arise upon a new trial. Others, in the view we have taken of the case, require no discussion.

For the reasons herein assigned, the conviction should be set aside, and a new trial granted.

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