author: BROOKE, J.

text:
      In re HOOPER’S ESTATE. BERRY BROTHERS, LTD., v. ESTATE OF ALFRED HOOPER.
    1. Work, Labor and Services — Salary—Implied Contract.
    Evidence that the deceased manager of a partnership association, limited, drew $5,000 yearly from the association, and, to his knowledge, interest on overdrafts was charged to him regularly, held, to negative any contract to pay compensation for services in excess of the salary.
    2. Same — Copartnership Associations, Limited — -Agency.
    The expression of intention by one of the managers and officers of such association to readjust the compensation of its manager, or to dispose of the balance charged to him by distributing at some future date a surplus of the association, was insufficient to bind the association to pay additional salary or cancel overdrafts of its manager, even if one of the five managers had authority to make such a contract.
    Error to Wayne; Murphy, J.
    Submitted October 5, 1913.
    (Docket No. 48.)
    Decided March 26, 1914.

      Berry Brothers, Limited, a copartnership association, presented a claim against the estate of Alfred Hooper, deceased, which was disallowed by commissioners on claims. On appeal to the circuit court the claim was allowed by direction of the trial judge. Defendant brings error.
    Affirmed.

      Campbell, Bulkley & Ledyard (Henry M. Campbell and Henry Ledyard, of counsel), for appellant.

      James O. Murfin and William L. Carpenter, for appellee.
    Prior to the year 1893, Joseph H. Berry and Thomas Berry were engaged as partners, under the firm name of Berry Bros., in the manufacture and sale of varnishes and kindred products. Alfred Hooper entered the employ of this copartnership at an early age. He was a relative of the Berrys, and, starting as a youth at a low salary in the year 1872, he advanced rapidly in the confidence of his employers and in usefulness to the concern, until in 1892 he was receiving a salary of $5,000. During this 20-year period, Hooper was charged in the books of Berry Bros, with his withdrawals and credited with the amount of his salary at the end of the year. A balance was struck and the debit carried forward into the next year’s account, and interest was charged thereon. This debit balance of Hooper’s account gradually grew, until in 1893 it had reached the sum of approximately $50,000. In that year the partnership was changed into a partnership association limited, with a capital of $1,000,000. The stock was all owned by the Berry brothers except certain qualifying shares. At the time of organization or shortly thereafter, Hooper’s debit balance was wiped out, and he was presented with capital stock in the new association in the sum of $100,000.
    The board of managers consisted of five persons, of whom Hooper was one. Joseph H. Berry was the chairman of the board and was the ruling spirit in the concern up to the time of his death, which occurred May 22, 1907. Mr. Hooper died in December, 1909, and Mr. W. G. Smith, the treasurer of the association, died in 1911. During the 16 years which elapsed between the formation of the association and the death of Mr. Hooper, he was very active in the affairs of the concern, and during the last two years he was its general manager. Within this time there was a period of about 18 months during which Hooper became addicted to the excessive use of alcoholic stimulants and wholly absented himself from the concern and did no business in connection therewith. After medical treatment, however, he again became normal and resumed, and for a number of years continued to perform, the onerous labors incident to his position.
    The record does not disclose that the salaries of the officers of the association were ever fixed by formal resolution, but, from the first, each of the active managers was credited each year with the sum of $5,000, which was charged to expense. Hooper, as well as both of the Berry brothers, continued to draw from the concern cash as their necessities required, and at the end of each year, after deducting the $5,000 and an annual 5 per cent, dividend upon stock, the balance was carried forward into the account for the following year. Interest was charged upon these balances at the rate of 6 per cent. The account was open to the inspection of Mr. Hooper, and was inspected by him from time to time. In the year 1905 Mr. Hooper’s debit balance had grown to a sum in excess of $90,000. He then requested and secured a rebate on account of interest. The account was restated in that year and interest charged for the entire period from 1893 at the rate of 5 per cent, instead of 6 per cent. The sum credited to Hooper’s account as a result of this change was $6,670.08.
    After the death of Joseph H. Berry, Mr. Hooper was made general manager of the concern at an annual salary of $15,000. At the time of his death, his debit balance upon the books of the association* limited had been reduced to something less than $40,000. A claim was filed against his estate for this sum by the association. This claim was resisted on behalf of the estate, upon the ground that during the years from 1893 to 1907 Hooper’s services were worth, to the association limited, at least $25,000 per year. That the sums he drew each year in excess of $5,000 and dividends upon his stock were paid to him by the concern on account of salary, and that, instead of Berry Bros, having a valid claim against the estate of Hooper, that estate was entitled to receive from Berry Bros, the sum of $300,000.
    Upon the trial in the circuit court, claimant proved the accuracy of its account against Hooper and rested. The balance, with interest, amounted to $42,188.20.
    On behalf of the defendant estate, the character and value of Hooper’s services were shown. To support the claim that the $5,000 paid Hooper annually was not in full compensation for salary, the estate offered in evidence three letters written by W. G. Smith, the treasurer of Berry Bros., to Hooper. These letters were, in part, admitted by the learned trial judge. They follow:
    “Detroit, April 28th, 1905.
    “Mr. Alfred Hooper,
    “Detroit.

      “Dear Sir:

    “The books of this association show that you are the owner of $100,000 of the capital stock of the association.
    “The books show a surplus as of November 30th, 1904, of $2,657,390.00. In this surplus there are some items which have been carried on the books for some years and upon which the full value may not be realized.
    "Yours very truly,
    [Signed] “W. G. Smith, Treas.”
    "Detroit, August 24th, 1907.
    "Mr. Alfred Hooper,
    "Detroit, Mich.

      “My Dear Sir:

    “Referring to my letter to you of April 28th, 1905, I wish to state that the items referred to in that letter, upon which Berry Bros., Limited, did not expect to realize full value, were particularly those accounts of Leonard Laurence & Co., and your own account.
    “These matters were often a matter of discussion between the late Joseph H. Berry and myself and it was well understood that they were subject to adjustment.
    "Yours very truly,
    [Signed] “W. G. Smith, Treas.”
    “Detroit, November 19, 1907. “Mr. Alfred Hooper,

      “My Dear Sir:

    “Referring to my letter to you of April 28th, 1905, relative to the items charged to your account upon the books of Berry Bros., Limited, I am entirely familiar with the. account from the inception of it until Mr. Berry’s death.
    "Mr. Berry and I often talked of this account as well as other accounts which were on the books of Berry Bros., Limited, and it was distinctly understood that they were matters for future adjustment.
    "I may say that the advances made to you from time to time were done with the full knowledge of Mr. Joseph H. Berry and were considered and treated as on account of compensation. You know as well as .1 do how kindly Mr. Berry felt towards his associates who were with him from day to day during the larger portion of his business career. It was not in Mr. Berry’s nature to say, ‘Well done, good and faithful servant;’ but you know that he took other means of showing his appreciation, but he had his own way and ideas as to the method of compensating them. I know he expected, and I think he got the very best efforts from his associates and I know that he felt very kindly towards them. Unfortunately for you, your matters pertained entirely to the business of Berry Bros., Limited, and they were left open to be adjusted when Mr. Berry got around to arranging the disposition of the surplus of Berry Bros., Limited, which was a matter he and I often discussed to put off from time to time as he was very much disposed to do with matters of that kind. While we carried the balance of your account as an asset of Berry Bros., Limited, in making out our financial statement, it was not so considered by Mr. Berry and myself as I have already said, it being understood that it would be disposed of in the large surplus which had accumulated.
    “Yours very truly,
    [Signed] ,“W. G. Smith, Treas.”
    The position taken by the defendant estate is fully disclosed by the following request to charge:
    “(1) I charge you that the testimony is uncontradicted that Mr. Hooper was serving Berry Bros, in his lifetime for no fixed salary; that the overdrafts in his account, which constitute the basis for the claim of the company in this case, were not considered by the company as debts owing from Mr. Hooper, but were considered by it as moneys drawn by Mr. Hooper, with the consent of the company, on account of his compensation. I charge you, therefore, that such overdrafts cannot be made the basis of a claim against Mr. Hooper’s estate, and that therefore you will deny, the claim of Berry Bros., as presented, in its entirety.
    “(2) I further charge you that the books of Berry Bros, show that the sum of $84,813.06 was credited to Mr. Hooper’s account June 16, 1908, as an extra dividend upon the stock of Berry Bros., Limited, and that the other stockholders were given their proportional share of said dividend; that, under the testimony in this case, said sum of $84,313.06 cannot be applied as against Mr. Hooper’s so-called overdrafts, but is, and has been from the date when the dividend was declared, wrongfully withheld from him and from his estate; that in consequence you will find in favor of the estate of Alfred Hooper in the sum of $104,021.27,-which consists of said extra dividend of $84,313.06 and interest thereon at the rate of 5 per cent, from the date of its declaration, June 16, 1908, to date, which said interest amounts to $19,708.21.
    “(3) I further charge you that, in addition to the amount so found in favor of the estate of Alfred Hooper, you shall add to such amount such sum as you think, under the evidence presented, will compensate his estate for his services rendered to Berry Bros., Limited, from 1893 until the date of his death, December 28, 1909; that in estimating the amount of such additional compensation, you shall take into consideration the amounts paid to Mr. Stridiron during the same period, and the fact that Mr. Stridiron was a subordinate under Mr. Hooper; also the fact that, after Mr. Berry’s death, Mr. Hooper’s salary was fixed at the sum of $15,000 a year by the board of managers. You shall also take into consideration such expert testimony as has been presented and such other facts and circumstances as have been presented, as evidence on the questions under consideration. In considering this question of additional compensation, if you should find that Mr. Hooper was entitled to additional compensation, you may not fix, under the testimony, any figure less than the amount of his claimed overdrafts during the period in question, as the admission of the company, as set forth in the letter of Mr. W. G. Smith, the treasurer, is that these overdrafts were to be considered as on account of compensation, and not as an asset of Berry Bros., Limited, or a claim against Alfred Hooper.
    “(4) I charge you that, under the law, compound interest (that is, interest upon interest) cannot be computed, in the absence of an express promise to pay such interest on interest, after the interest on the obligation has become due; that there is no evidence in this case of any agreement on the part of Mr. Hooper to pay compound interest; that therefore, whatever sums you find are due to either of the parties in this case, the same should be computed on the basis of straight interest at 5 per cent, per year to date.”
    These were all refused, and the court directed a verdict in favor of claimant for the full amount claimed.
   BROOKE, J.

(after stating the facts). The learned trial judge denied the claims of the defendant estate upon the following grounds:

(1) The statute (section 6083, 2 Comp. Laws, 2 How. Stat. [2d Ed.] § 5429), under which claimant is organized, provides:

“That no debt shall be contracted nor liability incurred for said association except by one or more of said managers, and ño liability for an amount exceeding $500.00, except against the person incurring it, shall bind the said association, unless reduced to writing and signed by at least two managers.”

It was conceded that no written contract existed between Berry Bros, and Alfred Hooper.

(2) That, while a corporate officer may recover for services outside the scope of his duties as such officer, he can do so only when he can show that such services were rendered “under circumstances indicating that both the corporation and the officer in question understood that remuneration was to be given for such extraneous service,” and that his corporate duties did not include the work' done. Under the rule adopted by the association defining the authority of its board of managers, the evidence shows that the services rendered by Hooper were within the scope of his duties as a manager of the association.

While the second position may be tenable (which we do not determine), we are of opinion that decision may be more safely predicated upon another ground. It is strongly urged on behalf of claimant that the “Smith” letters were inadmissible as evidence, and many authorities are cited upon the proposition. For the purposes of this case, however, we will assume their competency.

The record conclusively shows, indeed it is admitted by counsel for the defendant estate, that the $5,000 paid Hooper each year was as and for salary. We think it is equally clear that that sum was considered both by Hooper and the association as in full of salary. The fact that his overdrafts were, at the end of each year, carried forward to his account in the next year, and interest charged thereon with his knowledge and consent, and that this course was followed for some 15 years without protest upon his part, conclusively established the fact that the sum named was his agreed salary during the period in question. This, of course, negatives the assumption that there could have been any agreement or understanding between him and the association that he was entitled to demand further compensation for his services.

Now, what do the letters show? The first and second may be dismissed as unimportant. The third, giving to its contents the greatest probative force, merely indicates that Joseph H. Berry (one of five managers of a partnership association limited) had often told Mr. Smith that it was his intention, at some time in the future, to readjust the matter of Hooper’s compensation; that the debit balance would be “disposed of in (by a distribution of) the large surplus which'had accumulated.” Again, assuming that Joseph H. Berry had the sole power to accomplish this end, which, under the law governing the concern, he did not possess, his statements, as recorded in the “Smith” letters, import no legal liability. They indicate, at most, an intention upon his part to, at some indefinite time in the future, make a new contract with Hooper covering the question of compensation, or perhaps to forgive and wipe out the overdraft.

This promise of a new contract or a future gratuity carried with it no legal obligation and was never performed.

The record, shows that on June 16, 1908, there was a partial distribution of the surplus of the association. Hooper’s share of this surplus amounted to $84,313.06. This may have been the very method intended by Joseph H. Berry for the readjustment of Hooper’s account. We are satisfied that the verdict was properly directed.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    GLAPPA v. DETROIT, GRAND HAVEN & MILWAUKEE RAILROAD CO.
    1. Railroads — Negligence—Duty to Public — Personal Injuries —Contracts—Evidence.
    Evidence that the defendant railroad company had entered into a written obligation with a dealer in sand and lime who agreed to keep clear of materials the side track which defendant maintained in his yard, was immaterial and incompetent to defeat plaintiff’s claim for personal injuries resulting from a derailment and collision with his vehicle that was standing near the track; the accident being caused by an accumulation of sand upon the rails.
    2. Same — Evidence—Negligence—Switches.
    Freedom from negligence on the part of defendant railroad company was not established because the owner of the yard in which the private switch had been constructed had obligated himself to keep the track free from such sand or materials.
    3. Same.
    Nor did the fact that plaintiff was an employee of the owner of the yard who had so contracted, release the railroad company from liability for negligence in moving a car over an obstruction that was sufficient to derail it.

      4. Same — Contributory Negijgence — Knowledge.
    The question of plaintiff’s contributory negligence in not driving further from defendant’s switch or spur track, upon testimony that he did not know of the alleged obstruction, was properly submitted as a question of fact to the jury.
    Error to Wayne; Hally, J.
    Submitted October 14, 1914.
    (Docket No. 34.)
    Decided March 26, 1914.
    Case by Casimir Glappa against the Detroit, Grand Haven & Milwaukee Railroad Company and another for personal injuries. Judgment for plaintiff against said corporation which brings error.
    Affirmed.

      Harrison Geer, for appellant Detroit, Grand Haven & Milwaukee Railroad Co.

      Dohany & Dohany, for appellee.
    Defendant Boomer, a dealer in sand, lime, cement, gravel, and like products, maintains a yard east of and adjoining the defendant railway company’s right of way, between Forest and Garfield avenues, in the city of Detroit. A private side track was built into said yard connecting with the defendant railway under a contract between defendant Boomer and the railway, which provided:
    “The contractor (Boomer) shall * * * at all times keep the whole of said siding clear of sand, ice, and obstructions.”
    At one point along the side track Boomer had caused to be unloaded several car loads of sand. This pile of sand, the exact height of which is in dispute, sloped towards the side track. On July 29, 1909, a string of six cars stood upon said side track. Plaintiff, a teamster employed by Boomer, was engaged in shoveling crushed stone from one of these cars into his wagon, which stood alongside the car. Some of the cars were loaded, some empty. At about 2:30 p. m., defendant railway sent its switching crew to the yard to perform the necessary switching operations. Plaintiff was duly notified that the car he was working upon was to be moved, and he was ordered to drive away. He thereupon mounted his wagon and drove a very short distance, coming to a stand at a point which left the rear wheel of his wagon not more than 3 !/£> feet from the nearest rail of the side track. The cars were then slowly moved in a southerly direction. In passing the sand pile, the rear trucks of an empty car left the rails, and before the train could be stopped it had come into collision with the wagon. The jolt was a slight one, resulting in no damage to either the wagon or the car, but it was sufficient to throw plaintiff from the wagon to the ground. In falling, plaintiff suffered a double fracture of one of his legs.
    Plaintiff introduced evidence tending to show that on the night previous to the day of the accident there was a very heavy rain; that the rain washed the sand from the pile down to, over, and upon the side track to a depth of several inches; and that the cars were moved while the sand was on the rails, thus causing the derailment.
    Both defendants offered evidence tending to show that the track was cleaned before the switching operation, but offered no explanation of the causé of the derailment.
    It was conceded by plaintiff that the movement of the cars was effected in a proper and careful manner; the only negligence relied upon being that the defendant railway moved the cars without first clearing the tracks of the accumulated sand.
    At the close of the testimony, the court compelled plaintiff to elect as to which defendant he would proceed against. Plaintiff thereupon elected to proceed against the defendant railway, and a judgment was entered in favor of defendant Boomer. The court likewise directed that Exhibit 2, the agreement between the two defendants, under which the side track was constructed, should be stricken from the record. A judgment having been rendered against defendant railway, the case is reviewed in this court by writ of error.
   Brooke, J.

(after stating the facts). The first assignment of error argued by appellant is based upon the action of the court below in striking Exhibit 2 from the record and in refusing to direct a verdict in favor of the defendant railway upon the ground that, under the agreement, the duty of keeping the side track free from obstructions rested upon Boomer. There is no doubt that, as between Boomer and the railway, the latter had a right to provide that Boomer should keep the side track clear. Mann v. Railroad Co., 135 Mich. 210 (97 N. W. 721). But in an action against the railway company by a third person, based upon the alleged negligent movement of cars over an obstructed track, resulting in injury to such third person, it seems clear that the contract between the railway company and Boomer was incompetent and immaterial. The matter here to be determined is not the liability of Boomer but the liability of the defendant railway. Robinson v. Railroad Co., 135 Mich. 254 (97 N. W. 689).

It is next urged that a verdict should have been directed for defendant upon the ground that the evidence does not show negligence on the part of the defendant railway. It is said that, if there was sand upon the track which caused the derailment and consequent injury to plaintiff, it was not put there by defendant railway, nor was it the duty of the railway to remove it. It is true that, if there was sand upon the track which caused the derailment, it was placed there either directly or indirectly by Boomer, and it is equally true that it was Boomer’s duty to have caused it to be removed. It does not, however, therefore necessarily follow that the defendant railway was free from negligence. The mere presence of the sand upon the track was no menace to the plaintiff. If the cars had not been moved, the plaintiff would not have been injured. It was the alleged negligent movement of the cars over the accumulated sand which caused the injury.

Appellant insists that it owed no duty to plaintiff, because plaintiff was Boomer’s employee, and the work was carried on in Boomer’s private yard .under a contract which imposed upon Boomer the duty of keeping the track clear. We are unable to agree with this contention. Plaintiff was rightfully upon the premises where, at the time, the defendant railway, in the prosecution of its business, caused the movement of the cars under a condition which resulted in plaintiff’s injury. It was the duty of the appellant, in conducting the operation, to use reasonable care to avoid injury to those lawfully upon the premises. Whether it discharged this duty was a question for the jury.

Finally it contended that plaintiff was guilty of contributory negligence as a matter of law. It appears that there was an open space near the track, and that plaintiff could as easily have driven 40 or 50 feet away as to have stopped where he did. He was an experienced teamster and knew the conditions in the yard. He testified that he made no observations to see whether there was sand on the tracks. He was not at the time charged with the duty of clearing the track. We do not think it can be said as a matter of law that he was negligent in failing to observe the condition of the track and in stopping his wagon in such close proximity to the line of cars. The conductor of the train noted his position before giving the signal to start, and testified that he believed the plaintiff to have been at a safe distance, otherwise he would not have proceeded with the movement. This question, likewise, was for the jury and was determined by them, under the proper instructions.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    AYER v. DEVLIN.
    1. Principal and Agent — Contracts—Advertising Agency.
    A writing whereby defendant, a manufacturer, contracted with an advertising firm to place defendant’s advertising for the ensuing year in newspapers and magazines on an agreed commission, plaintiffs to furnish electrotypes, drawings, and to prepare advertising matter at cost and to secure for defendant the best terms obtainable from the publishers, created between the parties a contract of agency and reserved to the defendant the right to specify the amount, kind, and position of advertising matter to be published.
    2. Same — -Trial.
    It was correct for the trial court to instruct the jury, as claimed by defendant and supported by evidence, that if the defendant ordered various advertisements to be placed in a specified position and plaintiffs failed to carry out the instructions or omitted to notify defendant that they were unable to do so, the defendant would not be liable until he was notified that the advertisements were placed out of position.

      S. Same.
    And where plaintiffs brought an action to recover their fees for placing advertising matter, and the defendant claimed that he had directed plaintiffs to insert the advertising matter in a position next to the reading matter in certain publications, the court did not err in holding that defendant was entitled to determine the position, but plaintiffs were entitled to recover if the jury believed their testimony, that defendant had assented to the arrangements which they had made and knew that they had been unable to secure the desired position.
    4. Same — Estoppel.
    Evidence reviewed and held, not to estop plaintiffs from recovering commissions for advertising matter not placed as defendant claimed it should- have been.
    5. Same — Appeal and Error.
    The verdict of the jury finding that the defendant assented to the position of the advertising matter, as arranged by the plaintiff agency, cured any error that the trial court may have committed in charging that plaintiffs could recover for advertising placed after a given date, when he had notice of the position occupied by his advertisements and to the time of discontinuing the agency.
    Error to Wayne; Mandell, J.
    Submitted November 20, 1913.
    (Docket No. 37.)
    Decided March 26, 1914.
    Assumpsit by F. Wayland Ayer and others against George Devlin for advertising commissions under a special contract. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Bowen, Douglas, Eaman & Barbour, for appellees.
    Plaintiffs are in the business of placing advertising matter in newspapers and other periodicals. Defendant for many years has done business under the name of C. S. Dent & Go., manufacturing and selling a preparation known as “Dent’s Toothache Gum.” The following contract was entered into between the parties:
    “Place, Detroit, Mich.
    “Date, Jan. 8th, 1903.
    “Messrs. N. W. Ayer & Son,
    “Philadelphia, Pa.

      “Gentlemen:

    “We hereby agree that all our advertising in newspapers and magazines shall be placed through you during one year from the date of your acceptance hereof and during each year thereafter until either you or we shall have given at least three months’ written notice of desire to cancel this arrangement at the end of the then current year upon the following terms and conditions:
    “You are to secure for us the best terms you can make for our advertising in the various publications used and charge to our account just what you credit each paper net.
    “It is understood between us that the prices paid to publishers for our advertising shall be entirely confidential and that they will not be made known to another.
    “You are to serve us as best you can in the preparation of advertisements, charging to our account any expense which may be incurred for drawing, engraving or advertisement writing.
    “You are to furnish needed electrotypes and the necessary wrapping or boxes, charging the cost of .same to our account.
    “To the aggregate of the net charges for which provision is above made, you are to add fifteen per cent. (15%) for your service and profit.
    “Expenses incurred for the carriage of electrotypes and other advertising matter are to be charged to us at net cost to you, without the addition of commission.
    “It is further understood and agreed that in the event of the discontinuance of our advertising (with the consent of publishers) for any cause prior to the natural termination of contracts, the commission above provided for shall be charged upon the original contract prices and shall not be reduced because of discontinuance. Payments to be made monthly as 6Ern6d
    [Signed] “C. S. Dent & Company.
    “N. W. Ayer & Son.”
    The parties did business under this contract for more than two years. Early in 1905, defendant determined to cause his advertisement to be placed in daily newspapers and to that end sought the advice of plaintiffs. Mr. Buchanan, plaintiffs’ representative in the territory, conferred with defendant, and it was agreed that plaintiffs should start placing the matter in certain daily papers. Exactly what occurred at this interview is in sharp dispute. It is claimed by defendant that it was distinctly agreed at that time that the advertisement should be placed only in “full position.” In advertising parlance this term is said to mean “at the top of a column, next to reading matter or in a broken column, the first advertisement following and next to reading matter.” Buchanan flatly denies that the term “full position” was used by him in the interview. He submitted to defendant an estimated statement of the cost of the proposed advertising, but claims he told defendant that “those figures represented the best possible position obtainable in those papers.”
    Defendant’s advertisement was a small one requiring but 2y% or 3 inches of space. Because of this fact it seems to have been agreed upon between the parties that if not placed in a prominent position it would be lost in a daily newspaper, and its beneficial effects upon defendant’s business would amount to little. On the other hand, it seems to be undisputed that certain newspapers and magazines will not sell “full position” for an advertisement so small as defendant’s, and that others charge from 20 to 50 per cent, increase over regular rates for “full position.”
    After the campaign was started, defendant noticed that his advertising matter was appearing “out- of .position” in certain of the periodicals and newspapers and he wrote plaintiffs calling attention to the fact. Following this complaint and about August 17, 1905, a second interview occurred between defendant and Buchanan, and again the facts as to what occurred at that interview are in dispute.
    It is defendant’s claim that he agreed to waive the matter of “position” in two papers only and this upon condition that “full position” should be obtained in all others, while Buchanan testified that the matter of position was discussed only in reference to the “Hartford Times” and the “Providence Journal,” and that defendant then agreed that “full position” was not worth the excess price charged and announced himself as satisfied. In any event the advertising was continued for many months during which defendant wrote several letters complaining that the advertisement was not being placed according to the agreement. In the meantime defendant made various payments on account, as follows:
    Credit.
    November 18, 1905. By casb............... $342 73
    February 2, 1906. “ “ 700 00
    April 30, “ “ “ '500 00
    July 2, “ “ “ 800 00
    August 10, “ “ “ 500 00
    September 19, “ “ “ 700 00
    October 22, “ “ “ 700 00
    March 1, 1907. “ “ 700 00
    April “ “ “ ............... 344 86
    $5,287 59
    On December 2, 1905, defendant again wrote plaintiffs, asserting that he was entitled to “full position” and asking a statement as to just what position he could expect. This statement was prepared December 29, 1905, and shortly thereafter, January 6, 1906, was communicated to defendant. Whereupon defendant wrote to plaintiffs the following letter:

      “Jan. 15, 1906.
    “Messrs. N. W. Ayer & Son,
    “Philadelphia, Pa.

      “Gentlemen:

    “We fully expected to have been able to send you a check on account, before this, but collections were very disappointing in December, and January this year has been very slow in opening up, but is now coming a little better and we are looking for a fairly satisfactory January. We will send you a check at the earliest date possible and as we advised you before, it is our intention to put this account on a cash basis, even should we be obliged to discontinue some of the advertising for a time in order to do so.
    “We had a call from your Mr. Buchanan, regarding the position of our advertising in a number of the papers and note your explanation, stating that the various papers will not give position for any advertising under 3 or 4 inches. We cannot understand why such papers as the Youth’s Companion, Christian Herald and Woman’s Home Companion are now giving us inferior position, after having given us position next to reading matter for each and every insertion for several years past. Why this change in attitude toward our advertising?
    “Yours very truly,
    “C. S. Dent & Co., by.”
    Later and on February 17, 1906, defendant ordered a discontinuance of the advertisement in certain of the papers, and on March 26th, in certain others. Some advertising was, however, continued.
    On October 6th, plaintiffs wrote defendant as follows:
    “Dictated by F. W. A. October 6, 1906.
    “Messrs. C. S. Dent & Company,
    “Detroit, Mich.

      “Dear Sirs:

    “$3,542.88 is the amount of the balance shown in our first of October statement herewith. An early October remittance will add to our convenience and we are hoping that it will be your pleasure to make it as large as you can and further oblige,
    “Very truly yours.”

      To which defendant replied:
    “Oct. 20th, 1906.
    “Messrs. N. W. Ayer & Son,
    “Philadelphia, Pa.

      “Gentlemen:

    “We enclose herewith our check for $700.00 also debit memorandum amounting to $2,273.83. You can, of course, recall that we wrote you several times in reference to the matter of insertions of our advertisements out of position. According to our contract, made with your Mr. Buchanan, we were entitled to full position in all daily newspapers and next to reading matter in the Woman’s Home Companion, Youth’s Companion and Christian Herald.
    “Some months ago, you advised us that you would instruct your Mr. Buchanan to call and endeavor to adjust the matter with us, but this was never done. Your Mr. Buchanan called upon us yesterday and the writer asked him if he had ever had any instructions to take up the matter with us and he stated that he had not.
    “The debit memorandum, enclosed herewith, is made from our checking sheets, which we believe to be found correct.
    “Yours very truly,
    “C. S. Dent & Co., by.”
    Being unable to secure an adjustment in difference, plaintiffs on October 3, 1907, terminated the contract of January 8, 1903, and later brought suit.
    A judgment having been rendered against defendant in the sum of $3,801.22, he has removed the case to this court for review by writ of error.
   Brooke, J.

(after stating the facts). Appellant discusses some 50 assignments of error under 12 separate heads:

“(1) Did the court properly construe the contract between the parties and their respective rights thereunder?
“ (2) Was the charge of the court setting forth the claims of the plaintiffs regarding the contract and instructing the jury to find for the plaintiffs if they found ‘the contract was as the plaintiff claims/ erroneous?
“(3) Was the court in error in ignoring defendant’s claim of an equitable estoppel and the evidence bearing thereon?
“(4) Did the court err in excluding questions regarding defendant’s. knowledge prior to January 6, 1906, of the inability or refusal of plaintiffs to furnish full position?
“(5) Did the court err in excluding questions propounded to the witness Buchanan as to his knowledge and good faith in his attitude towards defendant?
“(6) Did the court err in charging the jury that they might find there was no proof from which they might find an agreement relative to position in the Christian Herald, Youth’s Companion and Woman’s Home Companion?
“ (7) Did the court err in his rulings regarding defendant’s liability for advertising after January 6, 1906?
“(8) Did the court err in permitting the witness Buchanan to testify regarding plaintiffs forbearing in not charging defendant commissions on discontinued advertising, and in commenting on the testimony?
“(9) Did the court err in admitting in evidence the letter of Mr. Buchanan to plaintiffs dated August 17, 1905, and in his comments thereon?
“(10) Did the court err in refusing to admit the testimony of the witness Chapin regarding the contents of plaintiffs’ check sheets?
“(11) Did the court err in his rulings upon the admissibility of testimony regarding advertising subsequent to that in controversy?
“(12) Did the court err in permitting the witness H. Eugene Wheeler to testify for plaintiffs after his deposition had been read?”

1. We are of opinion that the court properly charged that the written contract was one of agency and that it should govern so far as its terms expressed the agreement between the parties. The written contract is silent as to the amount of money to be expended and the mediums of publicity to be used. It is clear that (under the written contract) defendant had the right to specify as to the amount and character (position) of the advertising to be done. There is no doubt that defendant and plaintiffs’ agent, Buchanan, had a conference at which a plan of campaign was agreed upon. Each party seems to have remembered the agreement differently.

It is contended that the court permitted the jury to construe the contract. A careful perusal of the entire charge upon this point is, we think, a sufficient refutation of this claim. The various claims of the parties were outlined by the court and the jury were instructed to determine, from the evidence, what the actual agreement as regards “position” was and further:

“If Mr. Devlin ordered the various advertisements to be put in the various publications in full position and Ayer & Son did not place the advertisements in full position in the various publications or notify Mr. Devlin that they could not do so, then Mr. Devlin is not responsible for advertising not placed in full position until he received such notice that the advertisements were out of position.”

It appears to us that the controlling issue in the case was whether in fact defendant had contracted that his advertisement should be placed in the selected newspapers in “full position” only. This issue was presented to the jury fairly and under very plain instructions. They determined the fact to be contrary to defendant’s contention.

2. The next point discussed refers to clause 2 of the contract. It is contended that the sentence “You are to secure the best terms you can make for our advertising” means simply that plaintiffs should secure the lowest rates possible considering the time, space, and nature of the same, and that it conferred no power upon plaintiffs to determine position. Inasmuch as the court predicated plaintiffs’ right to recover upon the fact (if so determined by the jury) that defendant had not contracted for “full position,” thus recognizing defendant’s right to control the matter of “position” under the contract, we cannot see how defendant’s rights were in any way prejudiced. Nor do we think it was improper for the court to direct the jury that plaintiffs could recover if the jury believed plaintiffs’ version of the contract as to “position.”

3. It is contended by defendant that the letters written by him to plaintiffs so clearly indicated his understanding that he was to have “full position” for his advertisement, that the failure of plaintiffs to at once correct his misunderstanding should now be held to estop plaintiffs from denying the contract as defendant claims to have understood it. The principles invoked are not in dispute. The question is whether they apply to the facts in this case. The communications between the parties are not limited to the correspondence.. There were at least two or three personal interviews between Buchanan and defendant in the course of which the matter was discussed. What was said at these interviews was detailed to the jury by both parties. From an examination of all the correspondence and the testimony as to the interviews and in view of the fact that defendant knew from the outset that his advertisement was not appearing exclusively in “full position” and yet failed to order its discontinuance, we are of opinion that the court properly refused to instruct the jury that plaintiffs could not recover for any “misplaced” advertising, prior to a reasonable time after January 6, 1906, at which time it is admitted defendant had full knowledge as to what could be secured in the matter of “position.”

4, 5, 6 require no discussion.

7. Inasmuch as defendant ordered no discontinuance of his advertisement until February 17, and March 26, 1906, we think the court properly charged that in any event defendant would be liable for all advertising after January 6, 1906. But the matter is wholly unimportant under the determination of the jury as to what the agreement between the parties was.

The remaining assignments of error relate to the admission or rejection of evidence.

A careful examination of-the record convinces us that no reversible error was in this respect committed.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    CUSICK v. TAMARACK MINING CO.
    Master and Servant — Risks Assumed — Rope—Insufficient Appliances — Negligence.
    Where an employee and his superior servant, selected a rope from a number that their employer provided, and the employee twisted the rope so as to tighten it and knew how much strain he was putting on it, he assumed the risk of injury from its subsequent breaking while it was being used as a guy.
    Error to Houghton; Cooper, J., presiding.
    Submitted November 13, 1913.
    (Docket No. 105.)
    Decided March 26, 1914.
    Case by Daniel Cusiek against the Tamarack Mining Company for personal injuries. Judgment for defendant, upon a directed verdict. Plaintiff brings error.
    Affirmed.

      A. W. Kerr (Albert T. Streeter, of counsel), for appellant.

      Allen F. Rees (Rees, Robinson & Petermann), for appellee.
    One Martin acted in the capacity of surface boss and carpenter boss at defendant’s shafts Nos. 8 and 4. Plaintiff was the foreman of a gang working upon the surface at those shafts, under Martin. It was desired to take down the shaft house at No. 4. This house stood about 200 feet distant from the engine house. From a drum in the engine house to a pulley upon the top of the shaft house ran a steel hoisting cable which was supported upon four pulley stands (single 12x12 upright timbers morticed into a frame at the base), of varying height; the one nearest the shaft house being about 45 feet high. This stand was guyed to the shaft house by a wire cable. To take down the shaft house it became necessary to remove this guy cable. As a consequence it became necessary to otherwise support or guy the pulley stand nearest the shaft house.
    Under the direction of Martin, plaintiff with three or four of his crew went to the rope room, and there a rope was selected. It was a nearly new hemp or manilla rope, 1% inches in diameter. Plaintiff participated in its selection, though Martin seems to have finally directed plaintiff and his men which rope to take. There were many other ropes in the storeroom from which the selection was made. The rope was fastened to the top of the pulley stand, carried to the shaft house, and there tied to a timber at the mouth of the shaft. It was drawn as tight as possible by the men, but they were unable, by the exercise of mere strength unaided by mechanical means, to make it taut enough to serve the purpose. Whereupon plaintiff, himself, with one of his men took a “swifter” (an iron bar 6 feet long), and taking a bight in the rope twisted upon the bar until the rope was made sufficiently-taut. The “swifter” was then made fast. After the selection of the rope, Martin does not appear to have been present. This work was done about 9 o’clock in the forenoon. A gin-pole was then erected near the shaft house and was guyed, one of the guys running from the pole to the engine house. This line got caught under the platform on top of the pulley stand nearest the shaft house, and it became necessary to release it. At about 2 o’clock, plaintiff was ordered by Martin to go up and release the line. This, plaintiff attempted to do, and, when near the top, the rope parted at. the point where the “swifter” had been applied, and plaintiff was precipitated to the ground, thereby receiving the injuries on account of which he brought suit.
    At the conclusion of plaintiff’s case, the learned circuit judge directed a verdict in favor of defendant in the following language:
    “Now the first question that comes to the court for determination is right there in the selection of the guy rope. It appears from the evidence of the plaintiff -that the crew who were doing this work and who were under the immediate charge of Mr. Cusick, under the directions of the man who superintended the work and under whom Capt. Cusick was working, Capt. Martin, told them to go and get a guy rope. He went with them. Now it does appear from the evidence they all took part in looking for a guy rope to do this work with. It further appears Capt. Martin was the man who found a rope that was deemed satisfactory. He said that rope would .do, and it was selected and taken for the purpose. Now my mind is not entirely clear upon the question as to whether or not all these men were fellow-servants in the selection of this rope. They all having taken part in the work, it would appear to me, from the evidence as it appears in the case, that had Mr. Cusick found the rope in question, or another rope that seemed _ satisfactory, that rope would have been taken. Or if any one of the crew who were looking for a satisfactory rope had found one, either this or another, that that rope would have been taken. It does appear that the crew as a whole, including Capt. Martin, were simply working with a view in picking out a rope, and in doing that he was taking part with the crew and helping them to carry on this work. However, even assuming that he did act as vice principal for the company and did pass upon this rope, and that it_ was upon his judgment that it was selected and his judgment alone, nevertheless the evidence is that Mr. Cusick saw the rope, and that he had many years of experience and was able to pass judgment upon the rope himself, and understood just what rope was being used as a guy to this pulley stand.
    “Now the rope was put on as a guy, under the direct supervision of Mr. Cusick, and after it was on it was found necessary to go up the pulley stand, and, under the directions of Capt. Martin, Mr. Cusick went up. Now when he went up th,e pulley stand he knew just as much about the conditions there as Capt. Martin did or as any one could. He had seen the wire guy rope removed or loosened, and he himself had directed the putting on of the rope guy which took the place of the wire guy. He knew precisely just what that rope guy was doing. He knew the work that it was called upon to do, to hold up this pulley stand, and the other pulley stands in conjunction therewith, so far as their weight would be upon it. He was there, and he had all the knowledge that the company had, through Capt. Martin. He had the same ability to see and understand and appreciate just what the situation was there, and it seems to me that whatever danger there was in going up this pulley stand he assumed in going up.
    “Now, if in the exercise of reasonable care and diligence, Capt. Martin, acting for the company, could not have appreciated that there was danger of it coming down, then, as I understand the rule of law, the company would be relieved of liability, if he was exercising all the care an ordinarily prudent man would exercise. Insomuch as Mr. Cusick had full knowledge of all the facts and circumstances and the work that the guy rope was doing, then it seems to me that he did assume whatever risk there was in going up this pulley stand. Therefore the company is relieved from liability.
    “Now, there is no evidence in the case as to just what really did cause this rope to break, whether there was a defective rope, whether it was drawn too tight, or whether there was too much work put upon it for a rope of that size. There isn’t any evidence here from which the jury could conclude what really caused the breaking of that rope, and there isn’t any evidence, as I remember it, in the case that Mr. Cusick even did not appreciate the danger, if there was a danger, in going up the pulley stand. I think the record is silent upon that question. In any event, having every opportunity for it, knowing just what was supporting that pulley stand when he did go up it, he certainly would be held, in my opinion, to assume the risk of its falling when he was upon the stand.
    “Now it is not a case where a man is sent up who is not acquainted with the nature of the work or the danger's. Mr. Cusick was not an ordinary workman; he was a man in charge of this crew of men there, and in the absence of Capt. Martin he would have been the boss, the man in charge; and it seems to me the evidence really shows this, that when Capt. Mar-tin was there doing this work, he and Mr. Cusick worked together. They were engaged as fellow workmen in carrying on this work. But, however, even if Capt. Martin was a superior officer and represented the company, I am satisfied, under the evidence in this case, Mr. Cusick did assume the risk. For that reason, a verdict will be directed in favor of the defendant.”
    Plaintiff has removed the case to this court for review by writ of error.
   Brooke, J.

(after stating the facts). The sole question argued by plaintiff in his brief is that defendant was negligent in selecting an insufficient rope. The record contains no evidence that the rope selected was in fact insufficient for its intended use, except the fact that it broke under the circumstances indicated in the statement of facts. On the contrary, it is in evidence that the rope was new, or nearly new, and that it “looked good.” That the rope parted at the point where the “swifter” was applied might reasonably give rise to the inference that it broke because of improper use and not because of insufficiency. It is, we think, quite apparent that it would be possible, with the instrument applied, to twist a rope of this size completely off. It is not claimed that defendant was in any manner responsible for the way in which the rope was used. The method of use was wholly under the direction of plaintiff himself.

It is undisputed that in the rope house defendant had supplied a sufficient number of ropes of proper quality and size to be used as guys for the purpose for which this rope was used.

At the time of the accident the defendant was operating its .mine under the following management: Judge Haire, general manager; Mr. Uren, superintendent; Mr. Been, assistant superintendent; Mr. Martin, surface boss at shafts Nos. 3 and 4.

Under this situation it is the claim of the defendant that the selection of the rope by Martin, even if not participated in by plaintiff, was the act of a fellow-servant, for which, if negligently performed, the defendant is not liable, citing Lepan v. Hall, 128 Mich. 523 (87 N. W. 619); Erickson v. Mining Co., 130 Mich. 476 (90 N. W. 291); Page v. Pure Food Co., 142 Mich. 17 (105 N. W. 72); Argersinger v. Power Co., 164 Mich. 282 (129 N. W. 889).

It is unnecessary, however, to pass upon this phase of the defense, as we are satisfied that the direction was justified upon the ground that plaintiff had assumed the risk. The plaintiff was a man upwards of 50 years of age who had had a large experience in handling ropes of all kinds. He saw the pulley stand and, as well as any other, could estimate the amount of strain it would put upon the guy rope he intended to apply. He himself applied it and doubtless believed it to be safe and adequate when he ascended the pulley stand. Whatever danger there was was quite as obvious to him as to Martin. Indeed, in the light of the event, it may be said to have been more apparent to him than to Martin, because the rope broke at the point the “swifter” was attached, and he alone knew the strain he had applied by the use of that instrument. See Coleman v. Cartage Co., 174 Mich. 231 (140 N. W. 539), and cases there cited.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


text:
    SMITH v. MT. CLEMENS SUGAR CO.
    1. Master and Servant — Personal Injuries — Contributory Negligence — Defective Ladder.
    Where defendant’s servant had used a ladder for the purpose of adjusting a valve several times a day, during the month preceding his injury, and it was shown to be necessary to make the adjustment while the machinery was in motion, he was not chargeable with contributory negligence because he made use of a ladder which had broken and had been mended, or because he did not stop the machinery, having sustained injuries by falling into unprotected gears, about three feet to the left of the ladder which gave way.

      2. Same.
    Nor was the employer entitled to complain of instructions which submitted the question to the jury whether the gearing that was situated about nine feet above the floor was so safeguarded by reason of its position as to adequately comply with Act No. 285, Pub. Acts 1909, § 15 (4 How. Stat. [2d Ed.] § 4023).
    3. Same — Proximate Cause.
    It could not be determined as a question of law that the breaking of the ladder, not the failure to safeguard the gears, was the proximate cause of the injury.
    4. Damages — Loss oe Arm — Excessive Verdict.
    $3,800 was not an excessive verdict in favor of a plaintiff who had an expectancy of more than 12 years, for the loss of a portion of his arm, unfitting him for manual labor, by which he had been accustomed to support himself, also causing him present and probable future pain and humiliation.
    Error to Macomb; Tucker, J.
    Submitted November 26, 1913.
    (Docket No. 93.)
    Decided March 26, 1914.
    Rehearing denied June 4, 1914.
    Case by George W. Smith against the Mt. Clemens Sugar Company for personal injuries. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      Thomas A, E. Weadoek, for appellant.

      John A. Weeks, for appellee.
    Plaintiff, a man 63 years of age, was employed by defendant company during the campaign of 1911 to look after the juice pumps at its factory. These pumps, four in number, were located upon the ground floor of the factory in a room 20x70 feet. Each pump was connected with a tank 8 feet high, situated on the same floor. Above the tanks there was installed a lime conveyor — an iron trough 2% feet in diameter, through which ran a spiral attachment, which pushed the refuse lime into the mixer where it was discharged into the sewer. In order to facilitate the movement of this refuse matter, a on'e-inch stream of water was permitted to flow through the conveyor. The flow of the water was controlled by a valve about 9 feet above the floor and about 2% or 3 feet from a cog gearing which was located on top of one of the tanks and through which power was supplied to the conveyor. Plaintiff, who worked upon the night shift, found it necessary to increase the flow of water through the conveyor, as the refuse was not moving freely towards the outlet to the sewer. To enable him to accomplish this purpose, he placed a ladder against the top of one of the juice tanks; the foot of the ladder resting against a column in the aisle. He then mounted the ladder, reached the valve, and turned on the water. Letting go his hold upon the valve, he started to back down the ladder, when one of its sides gave way, causing him to fall. He threw out his right hand to grasp the shaft. The left hand was instantly drawn into the gear and was so mutilated as to render amputation, between the wrist and elbow, necessary.
    The accident happened December 9th, some two months after the campaign for that season opened. Plaintiff had worked for defendant some five seasons, but, in care of the juice pumps at the station where he was injured, he had started at the opening of the 1910 or 1911 campaign. He introduced evidence tending to show that, when he entered upon his new employment, Anderson, who had the day shift, was told by the superintendent to instruct him in his duties; that Anderson showed him how to manage the pumps and told him to turn the water on and off in the conveyor as occasion required; and, further, that Anderson showed him how to place the ladder in order to reach the valve controlling the flow of water. The power operating the gear in question was transmitted through a friction clutch. Evidence was introduced tending to show that this clutch was frequently out of order, and that on the night in question plaintiff had attempted to operate it without success ; that its faulty condition had been frequently reported and futile attempts made to repair it. Defendant introduced evidence tending to show that it was intended that the water should at all times pass through the conveyor (except when the factory was closed or the machinery was stopped), and that it was no part of plaintiff’s duty to meddle with the valve in question.
    The declaration contains many allegations of negligence, but the case was submitted to the jury upon a single issue, viz., whether the defendant was liable for failure to properly guard the gears in question under the provision of section 8 of Act No. 113 of the Public Acts of 1901, as amended by Act No. 285, § 15, of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §4023). The particular language follows:
    “All gearing or belting shall be provided with proper safeguards, and whenever possible machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set-screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector.”
    Upon this question the court charged as follows:
    “I think it was the duty of the factory owners, under this law, to cause to be safeguarded, or covered, all gearing situate in any place where the duties of the workmen about the premises require them to come into the close vicinity of the gearing. I do not think that the statute requires, or is intended to require, the covering or safeguarding of the gearing when so situated as to make it obviously safe so far as the workmen are concerned. It then becomes a question of fact in this case for you to determine what the duties of the plaintiff were. If his duties, as you find them to have been, and the duties of other workmen about the premises, require them to frequently ascend to the top of these juice tanks in the vicinity of this gearing, for the purpose of performing their accustomed service, then I think this gearing should have been covered. If, on the other hand, you find as a matter of fact that it was no part of this plaintiff’s duty, or that of other workmen, to work about the gearing in question in such a way as to possibly endanger their safety, then it would be no part of defendant’s duty to cause this gearing to be covered, or to safeguard it, and in this connection you are instructed that, while an employee must ordinarily be held to have assumed all risks incident to his employment, he cannot be required to assume the risks of injury from gears which the statute requires should be covered, and if you find, under the instructions I have given you, that this gearing was so situated that it should have been covered, then you will consider that risk of injury, which might result from the absence of a guard to the gearing, was not a risk assumed by the plaintiff, when he entered upon his work in the campaign of 1911. * * * If you find that the gearing should have been protected on account of the fact that duties of employees of the defendant company required them to perform work in such close vicinity thereto as to raise a fair possibility of accident occurring to the worker, and you find that the plaintiff’s duty as laid down to him by Anderson required him to ascend the ladder in question on the night in question, or at different times, for the purpose of turning on or off the water from or into the conveyor, and you find that absence of covering or safeguard to this gearing caused the accident, then you would be justified in finding the defendant guilty of negligence, and the plaintiff would be entitled to recover, provided you also find that the plaintiff himself at the time of the accident was in the exercise of due care.”
    Plaintiff recovered a judgment for $3,800 which defendant reviews in this court by writ of error.
   Brooke, J.

(after stating the facts). It is first argued by counsel for appellant that plaintiff should be held guilty of such contributory negligence as would debar him from recovery: First, in meddling with the conveyor at all. This view is predicated upon the assumption that it was no part of plaintiff’s duty to regulate the flow of water through the conveyor. Both Anderson (who had the day shift) and plaintiff testified that they attended to the water as the conditions in the conveyor made it necessary; that several times in each shift a change was made by one or the other of them; and that this was done by Anderson in obedience to instructions from the superintendent and by plaintiff in accordance with Anderson’s instructions. Defendant denied ever having given such orders. This conflicting testimony raised an issue as to the fact which was submitted to the jury.

It is further claimed that plaintiff should have shut off the power before ascending the ladder, and, if unable to work the clutch, should have reported the facts to his superior; and, further, that he was negligent in using a ladder which had been broken and mended. The record shows, according to plaintiff’s testimony, that plaintiff had used the same ladder for the same purpose several times each night during the preceding two months, and that (the clutch being frequently out of order) it was necessary to adjust the valve while the gears were in motion. We are of opinion that it should not be said as a matter of law that plaintiff was guilty of contributory negligence. It is true that the exposed gears were in plain view, but they were about three feet to the left of the ladder. Whether a reasonably prudent man would have acted as plaintiff did was a question for the jury which was submitted to them under appropriate instructions.

It is next urged that defendant’s motion for a directed verdict should have been granted upon the ground that under the facts in this case the statute relied upon cannot apply, and therefore that no negligence on the part of defendant was shown. It is said that the gears in question, situated as they were some 9 feet from the floor, were safeguarded by their position. If, as the evidence introduced by plaintiff seems to show, it became necessary for one or other of the employees of defendant many times each day to mount a ladder and attend to a portion of the work within three feet of the exposed gearing, we think it can scarcely be said, as a matter of law, that the “position” was an adequate safeguard. Indeed, it may well be doubted whether an exposed gearing can be placed in any position which as a matter of law would be considered as an equivalent to the statutory safeguard. Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653). But at all events the charge upon the subject quoted supra was as favorable to defendant as it was entitled to demand.

We have examined the cases from New York cited and relied upon by defendant; but, in view of our own decisions under this statute, we must decline to follow them.

It is claimed that the breaking of the ladder was the proximate cause of plaintiff’s injury, and as the court below held that plaintiff used it, in the absence of negligence on the part of defendant, he should not have been permitted to recover. This claim is untenable. See Selleck v. Railway Co., 93 Mich. 375 (53 N. W. 556, 18 L. R. A. 154); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110).

Were the damages ($3,800) excessive? Upon this point defendant relies upon the case of Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500), where a judgment for $10,000 was reversed unless the sum of $6,500 was remitted. Plaintiff has an expectation of life of more than 12 years. He has lost a portion of his arm. He is unfitted for all kinds of manual labor, by which alone he has heretofore maintained himself. He testified to continued pain and suffering. Added to these facts, it should be borne in mind that, for the balance of his life plaintiff must suffer from the humiliation of going about among his fellows in a mutilated condition. While the judgment is a liberal one, we do not think it should be called excessive within the legal meaning of that term.

Errors are assigned upon the admission and exclusion of certain testimony. These have been examined and have been found to be without merit.

The judgment is affirmed.

McAlvay,- C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.


author: Kuhn, J.

text:
    GRIFFIN v. HOVEY.
    1. Judgment — Estates of Decedents — Executors and Adminis-
    trators — Claims—Allowance—Equity—Collateral Attack. The allowance of a claim against a decedent’s estate cannot be attached collaterally by bill in equity: the remedy is by appeal to the circuit court.
    2. Equity — Executors and Administrators — Setting Aside Instruments — Deeds—Fraudulent Conveyances.
    A bill may be maintained by the executor or administrator of an estate to set aside conveyances of real property made by the decedent and for an accounting from tenants of decedent under an agreement to support him and his wife; to obtain assets sufficient to satisfy claims which have been allowed against the estate.
    3. Same — Delivery—Parol Contract.
    Evidence considered, and held, to establish a parol contract to convey lands to decedent’s son in consideration of his care and support, upon the death of the father and mother.

      4. Same — Conveyances — Life Estate — Support and Maintenance.
    There was no such inconsistency in a clause in the conveyances of decedent reserving the right to occupy and control the premises during the life of the grantors, and providing that the deeds should take effect after their death, as that the contract to convey in consideration of care and support of the father and mother was thereby invalidated.
    5. Same — Delivery.
    The grantors’ act in having the deeds recorded during their lifetime was the equivalent of and amounted to a valid delivery.
    Appeal from Shiawassee; Miner, J.
    Submitted October 14, 1913.
    (Docket No. 35.)
    Decided March 26, 1914.
    Rehearing denied June 5, 1914.
    Bill by Alonzo Griffin, as administrator of the estate of Henry 0. Hovey, deceased, against Hiram E. Hovey and Chloe M. Durham for the annulment of certain deeds. From a decree for defendants, complainant appeals.
    Affirmed.

      S. Q. Pulver (John B. Corliss, of counsel), for appellant.

      Louis E. Howlett, for appellee Hovey.
   Kuhn, J.

The bill of complaint in this case is filed in the name of the administrator of the estate of Henry 0. Hovey, deceased, for the purpose of setting aside two deeds made by Henry 0. Hovey and his wife, one of which conveyed a farm of 100 acres to the defendant Hiram E. Hovey, a son, and the other a farm of 80 acres to the defendant Chloe M. Durham, a daughter. The bill also prays for an accounting on the part of Hiram E. Hovey of the proceeds and profits of said farms from the year 1890, when he assumed the management thereof, until July, 1911, when Henry 0. Hovey died, leaving a widow and three children. Both of the farms in question were given to Henry 0. Hovey by his brother, and it does not appear that he accumulated any property himself. His health had been poor from about the time Hiram took control, being afflicted with a cancer on his face, which finally resulted in his death. The deeds in question were drawn by Dr. A. G. Cowles, a notary public, in 1892, and recorded on April 25, 1894. They were left with Cowles from the time of execution until the time of recording, then returned to him and held until the time of Henry 0. Hovey’s death. Each deed contained the following reservation :

“The parties of the first part hereto reserve the use, occupancy, and control of said premises to themselves, or to the survivors of either of them, so long as they or either of them shall live; and this conveyance is not to take effect until the death of both of said first parties.”

In addition to the two defendants, there was a third daughter, Cora M. Hovey, who had an unfortunate marriage resulting in her obtaining a divorce. She has maintained herself since that time, residing for the most part in Detroit, where she conducted a rooming house. In 1908 the father, desiring special medical treatment, came to this daughter’s home in Detroit and remained with her 24 weeks. Nothing was paid to Cora for care, room, and board of the father during this time, although Hiram paid the doctor’s bill. The widow having made no application for administration of her husband’s estate, after a period of 30 days the daughter Cora filed a petition for administration, which resulted in the appointment of the administrator and commissioners on claims. To the latter she presented a claim, which was allowed, in the sum of $360, on July 15, 1912. This bill was filed August 16, 1912, and an appeal was taken from a determination of the commissioners on September 11, 1912. The claims of the defendant Hiram E. Hovey, which present the questions raised on this appeal, are stated by his counsel as follows:

“Defendant Hovey contends as follows:
“(a) That the complainant is in no position to file this bill of complaint, inasmuch as her claim has not been finally allowed, and there being no other claims against said estate.
“(b) That he occupied and possessed these farms under an express agreement with his father, which entitled him to the rents, profits, and revenues of the farms, if any, after supporting the family, paying the taxes, repairs, and improvements of the farms, and providing all the necessities of life for the various members of the family.
“(c) That the deeds in question were properly executed and delivered, and conveyed the title to the lands. described therein to the respective grantees therein named.”

At the time the bill of complaint was filed, the claim of Cora Hovey had been allowed, and no appeal had been taken. The validity of her claim cannot be attacked in this proceeding, but must be tried on appeal in the circuit court. This court has recognized the right of an administrator to seek relief in equity for the purposes stated in this bill of complaint. Graham v. Graham, 171 Mich. 307 (137 N. W. 153).

The arrangement under which Hiram assumed the control and management of the farm, it is claimed, was made in 1890. He had arrived at the age of 18 years, and it is his claim that he was contemplating starting out in the world for himself when he made the arrangement which resulted in his remaining on the farm at the request of his father and mother. The testimony of the mother, which is uncontradicted, as to this arrangement is as follows:

“Q. Was there any arrangement between Mr. Hovey and Eben when he took charge?
“A. Well, yes.
“Q. If you will state to the court what the arrangement was.
“A. Well, of course we didn’t have anybody only as we depended on strangers, and we told him to go on and take care of things, and look after things, and take charge of everything, and take care of us, and do what he could, and all outside of keeping us and paying the debts and everything he could have.
“Q. That was the arrangement?
“A. Yes, sir.
“Q. Was there ever any other arrangement after that that you know of?
“A. No; not that I remember of.”

This arrangement seems to have met with the approval of the parties in interest. Hiram did not keep any account of the receipts of the farms or his disbursements. He was never asked to account by the father during the 21 years that they lived together, and no claim of an indebtedness was ever made by the father against him. During these years he paid his father’s indebtedness, amounting to about $800, paid his father’s doctors’ bills and all family expenses, and made considerable improvements on the farm. The daughter Chloe remained at home until she was 28 years of age, when she married, and her education and maintenance were provided for the most part from the common fund. No claim is made otherwise, and we are convinced that the father and mother received sufficient support and were provided with such comforts as they in their station in life were accustomed to. The expenses of the father’s last illness, his burial expenses, and a suitable monument over his grave have been provided for.

When contracts of this character are based entirely upon parol evidence, the proofs in support thereof-should be strong and convincing. That the agreement testified to by the mother was entered into finds its strongest support in our minds in the fact that it was acquiesced in for a period of 21 years by the parties without friction. It Is urged that the reservation in the deeds expressly negatives the intent of the father to make such a contract as the one relied upon. The provisions in the deeds are not necessarily inconsistent with the agreement. When the deeds were made, the use, occupancy, and control of the farms were reserved, which gave them the right to discontinue the agreement at any time that they became dissatisfied. The record is convincing that it was the intent of the father that the son was to have what was left after taking care of him and the mother. The son has carried out his part of the agreement without criticism, and he should not now be deprived of that which is equitably and legally his due.

The sole question as to the validity of the deeds is whether or not there was a valid delivery. Dr. Cowles testified that while he was at Mr. Hovey’s house giving him medical treatment, about two years after the execution of the deeds, he received the following instructions from Mr. Hovey:

“A. Mr. Hovey said to me, T wish you would see to having Ebe’s and Chloe’s deed recorded.’ I said, T will bring them down, and they can send them, or they can come and get them.’ Mrs. Hovey spoke again and said, 'Why don’t you have Doc and send them right to Corunna and have them recorded there? He knows how.’ I was going to Corunna the next day, and under the circumstances took the deeds, got them recorded.”

This testimony is undisputed. The deeds were recorded as directed, and this act of the father in causing the deeds to be recorded amounts to a valid delivery under the decisions of this court. Compton v. White, 86 Mich. 33 (48 N. W. 635); Glaze v. Insurance Co., 87 Mich. 349 (49 N. W. 595); Fenton v. Miller, 94 Mich. 204 (53 N. W. 957); Holmes v. McDonald, 119 Mich. 563 (78 N. W. 647, 75 Am. St. Rep. 430).

The decree of the court below dismissing complainant’s bill of complaint is affirmed, with costs.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    BEEMER v. HUGHES.
    1. Intoxicating Liquors — License—Partnership.
    An agreement among three liquor dealers to engage in the retail trade as partners, two of them signing the bond and only one partner obtaining a license, was illegal and void.
    2. Equity — Partnership—Remedies—Accounting—Illegality.
    Equity will not require an accounting of one of three partners who undertook to conduct a saloon under a license procured by one of them; the others acting as bondsmen, while the licensee paid the fee.
    3. Specific Performance — Statute of Frauds — Oral Contracts —Part Performance — Payment.
    Where it was shown that complainant, being in possession of the property under an oral contract of purchase, paid the consideration agreed upon in three installments and was recognized by defendants as the owner, paid taxes and made valuable improvements, equity has jurisdiction to enforce the parol agreement on the ground of part performance so as to take the case out of the statute of frauds.

      4. Same — Trusts—Consideration—Land Contract.
    Tbe transaction held not to create a resulting trust of tbe kind prohibited by 3 Comp. Laws, § 8837 (4 How. Stat. [2d Ed.] § 10677), defendants advancing tbe funds and taking title under an oral contract to convey to complainant when be should pay tbe consideration.
    Appeal from Clare; Dodds, J.
    Submitted November 14, 1913.
    (Docket No. 123.)
    Decided March 26, 1914.
    Bill by Oliver Beemer against Ellis Hughes and others for specific performance and an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      Quinn & Quinn, for complainant.

      George J. Cummins (C. W. Perry, of counsel), for defendants.

       On the question whether sufficiency of possession alone is ground for granting specific performance of parol gift of, or contract to convey, real property, see note in 8 L. R. A. (N. S.) 870.

   Kuhn, J.

The important facts which resulted in the present controversy are stated in the Opinion of the circuit judge, as follows:

“The bill of complaint in this cause is filed for the purpose of compelling the conveyance to complainant, by the defendants Elmer and Ellis Hughes, of two pieces of real estate situate in lot 6, block 1, and by the defendant Ellis Hughes one piece in lot 5 of said block, all in the city of Harrison. The time and circumstances of dealings by which the legal title to these three pieces of land became vested in the defendants mark them as three entirely distinct and separate transactions. With regard to the first, upon which the saloon building stands, immediately before the 1st day of May, 1903, one Ellsworth held the legal title, and had executed to one Crawford an agreement by which Crawford was to pay for the.said land $800 on or before May 1, 1903. Upon this agreement Crawford had paid $200, and had placed upon the property in question $50 worth of ice. Complainant was then in full possession of the saloon building. Complainant and Crawford were not friendly, because Crawford had bargained for the saloon property, on which complainant had carried on his saloon business for some years. Complainant and Ellis Hughes went to Temple, where Crawford resided, to negotiate for his right in said saloon property, and it resulted that Crawford, not being able to pay the remainder of the consideration on the agreement, and receiving $50 for- his ice, abandoned his right to the land, and, when the time named in the agreement had elapsed, Ellsworth deeded it to the defendants Ellis and Elmer Hughes. The bill and answer agree that the whole consideration was paid by defendants in the first instance. The claim .made in the bill is:
*‘ ‘That immediately upon their arrival in Harrison [from Temple] your orator paid the said Ellis Hughes the said $50 paid by him to said Crawford [for the ice], and the same day or the next day paid him $300 more to apply on the $600 remaining back on said Crawford contract, which said $600 had been paid by said Ellis Hughes, and a deed to said property taken in the name of Ellis Hughes and Elmer Hughes, which deed was taken in the name of said Ellis Hughes and Elmer Hughes for the benefit of your orator. That shortly thereafter and within about three or four months your orator paid the remaining $300 to the said Hughes Brothers. * * * ’

“The statement in the original answer with regard thereto is:

" ‘That about May 1, 1903, they purchased the contract interest which Thomas Crawford had, * * * and that thereafter in a few days obtained a deed for the same from said Ellsworth in pursuance to the terms and covenants of said contract, paying said Ellsworth the amount due therefor under the terms of such contract; that they paid their own money for such property, for the purpose of acquiring it for themselves, and not for the use and benefit of said complainant, or to hold it in trust for said complainant; that at the time said property was so purchased by these defendants no agreement had been had or made between them and said complainant that they were to purchase said property for his benefit and use, or that he was to have any interest therein; that said complainant never paid these defendants any money on account of their purchase of'said building or to repay them for the money which they had paid for the same; and that said complainant never had, neither has he at this time, any interest therein by reason of having paid defendants for the same or for any interest therein.’

“And in the amended answer the statement is:

“ ‘That complainant also dealt with these defendants in the store, * * * and at times was indebted to them by such trade, and that defendants frequently and continually advanced money to complainant to enable him to carry on the said saloon business and livery business, and, to secure defendants for all such advances made, and to secure them for the money which they advanced for the purpose of purchasing the buildings mentioned in the bill of complaint herein, they took the title to all such buildings in their own name for their own protection and for the benefit of all said parties, but with the express intention and understanding that when the entire business and dealings between the said parties were closed, that the complainant should have an equal share in said buildings and property with defendants subject to any amount he might owe to defendants. * * * ’ ” ■

It further appears that the complainant and the defendants, about May 1, 1903, entered into an agreement to conduct the saloon business as a co-partnership; with the complainant having a one-half interest and the defendants Ellis and Elmer Hughes owning the other one-half interest. The complainant, however, took out the license, paid for the same, and the defendants Ellis and Elmer Hughes were his bondsmen. They took out no license, State or government, filed no bond, and by their admissions on the witness stand show themselves to be deliberate violators of the law; having been engaged in the business of retail liquor dealers without having complied with the statutory requirements necessary to entitle them to engage in this business. Some controversy having arisen as to an accounting of the partnership matters, a stipulation was entered into by counsel during the hearing of this cause to have their differences as to this accounting adjusted in this litigation, and proofs were taken thereon. The trial court very properly refused to determine this matter of accounting of an illegal business. As violators of the law, they cannot obtain relief from a court of equity. Their agreement to carry on this business in this way was void. Niagara Falls Brewing Co. v. Wall, 98 Mich. 158 (57 N. W. 99); In re Beidy’s Estate, 164 Mich. 167 (129 N. W. 196).

It is contended that the entire transaction with reference to the purchase of the real estate is so connected with the establishment of, the copartnership in the saloon business that it is a part of it, and that therefore no relief should be given the complainant. The answer does not claim that the building was sold to the copartnership, and the circuit judge found that the transaction with reference to the purchase of the building in which the saloon business was carried on was not connected with the saloon business, and this conclusion is substantiated by the testimony of the witnesses. The complainant urged that the deed was taken in trust for the compláinant, but a careful examination of the testimony of complainant has satisfied us that the conclusion of the circuit judge that such was not the intent and understanding is correct. He found that the case made by the bill and substantiated by the proofs showed a parol agreement to sell the land, which had been fully performed by the vendee, and that, under the exception to the statute of frauds (section 9513, 3 Comp. Laws [4 How. Stat. (2d Ed.) § 11397]), equity should compel the specific performance of the agreement to convey. The trial judge saw the witnesses and heard them testify, and, under the- well-established rule, we will not disturb his finding, where the testimony is conflicting, unless we are satisfied it is clearly wrong. He gave credence to the testimony of the complainant. The description and price clearly appear. He testified that the defendant Ellis Hughes agreed to give him a deed of the property upon receipt of $600; that he paid $300 within a day or two after the bargain with Crawford was made, and the balance of $800 in two payments, one of $200 and the other of $100, some time later. The testimony as to payments was corroborated by the testimony of other witnesses. There was also testimony tending to show that the complainant in possession of the property was recognized by the defendants as owner; that taxes on the property were paid by the complainant, and valuable improvements made by him. In order to authorize a decree for specific performance of a parol contract to convey, etc., there must be (1) a contract, the terms of which are so clear and complete as to allow of no reasonable doubt respecting the enforcement of it according to the understanding of the parties; (2) such acts of part performance as, according to equitable principles, will justify its enforcemént; (3) payment of purchase price. Kinyon v. Young, 44 Mich. 339 (6 N. W. 835); Bartlett v. Bartlett, 103 Mich. 293 (61 N. W. 500). We are of the opinion that these necessary essentials of a parol agreement to sell land and to compel its specific performance were established. It is urged that the proofs show that the testimony of complainant is convincing that it was the understanding that the conveyance to the defendants Hughes was to be a trust deed. With reference to this, the circuit judge found:

“It is true that complainant, in his testimony, says, in a number of places, that it was to be a ‘trust deed,’ but in a number of other places he leaves out the word ‘trust,’ and the latter testimony shows that he does not distinguish between a deed which expresses the trust clause and where it rests in parol. Besides, it appears that there had been other like transactions, which he says were carried out by defendants deeding directly to third parties at his suggestion, which would not have been the case had the deed expressed the trust. I do not think that there was any fraud or mistake in making the deed; it was made as intended, and furnishes no basis under the exceptions to the statute of uses and trusts (8 Comp. Laws, § 8837).”

It is difficult to determine from the testimony of the complainant what his understanding was as to how the deed was to be taken, but we are of the opinion that the conclusion of the circuit judge that the parol agreement to convey was established is justified by the record, and therefore approve of it.

In the case of Chapman v. Chapman, 114 Mich. 144 (65 N. W. 215, 72 N. W. 131), cited by counsel for defendants, the unquestioned agreement between the parties was that the deed was to be taken in the name of the defendant, although complainant paid the purchase price, and complainant sought by the bill of complaint to'ingraft upon it a trust resulting to himself. This the court held was prohibited by section 8835, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10675). We think the facts as found in the instant case make it clearly distinguishable from the Chapman Case.

We are also convinced that the court arrived at a proper conclusion with reference to the other pieces of property in controversy. His opinion with reference thereto is as follows:

“With regard to the smaller piece known as the barber shop, the testimony is not clear either as to the contract or the payment of the consideration. It is not, however, in any way connected with the saloon business, and the dealings with it after its purchase, in that each party rented it and exercised acts of ownership over it, seem to show that it was understood to be held jointly. At any rate, the proof is not clear in complainant’s favor, as the rule requires. It must therefore be held, as admitted by defendants, that complainant owns only an undivided one-half interest. ' The Brandt property is so mixed up with the so-called saloon copartnership that even the admission of defendants of the one-half interest owned by complainant will not justify a decree in complainant’s favor without taking into consideration the whole matter of saloon accounts, which I am satisfied, under the circumstances of this case, a court of equity should not do.”

The circuit judge also found that the complainant owed the defendants $64.75, and Hughes Bros. & Co. $54.74, and decreed that these amounts must be paid by complainant. It is urged that, if an accounting is to be gone into under the stipulation made, it should be a mutual accounting, or the accounting should not be considered in any way. The complainant not having appealed from the decree, defendants should not complain of this provision, which is in their favor.

The decree is affirmed, with costs to complainant.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ. concurred.