text:
    McINTYRE v. MURPHY.
    1. Pleading — Declaration — Amendment—Trespass — Statute of Jeofails.
    Where a declaration states that recovery is sought under section 11206, 3 Comp. Laws, relative to treble damages for trespass on lands, and it is conceded that the case made in the declaration is not within the section, no prejudice arises from allowing the plaintiff to amend at the conclusion of the trial by striking out the allusion to the statute, such amendment being clearly authorized by section 10268, 3 Comp. Laws.
    2. Forcible Entry and Detainer — What Constitutes.
    Where a vendor, entitled to possession for default of the purchaser, attempts by a display of force to remove the purchaser’s goods from the premises, the fact that the vendor and his employés obtained entry into the house without force does not render his conduct any the less a violation of the statute against forcible entries. Section 11153, 3 Comp. Laws.
    3. Same — Right of Action.
    Where a person not entitled to possession is evicted contrary to, the forcible entry and detainer statute, he cannot recover damages for being disturbed in his possession of the land, but he may recover compensation for any injuries done to himself or his personal property in the course of the eviction.
    4. Evidence — Personal Injuries — Materiality.
    In a personal injury case it is not error to refuse to compel plaintiff’s physician to state, on cross-examination, what treatment he gave, on the theory that the treatment might have had something to do with her condition, since, if the treatment had not been proper, that fact would not lessen defendant’s liability.
    Error to Berrien; Coolidge, J.
    Submitted June 8, 1908.
    (Docket No. 37.)
    Decided June 27, 1908.
    Trespass quare clausum fregit by Sarah E. McIntyre against Mary L. Murphy. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      James O’Hara, for appellant.

      Cady & Andrews, for appellee.
    March 4, 1907, plaintiff and defendant entered into a written contract whereby the defendant sold to the plaintiff certain land in the township of Chikaming in Berrien county for the sum of $7,000. Plaintiff paid part of this consideration and was given possession of the land. A payment became due in August, 1907. This payment was not made by plaintiff. Defendant demanded possession. Plaintiff refused to comply with this demand. By the terms of the contract this refusal entitled defendant to possession. To secure this possession, she entered the house very early in the morning of September 26, 1907, and before the family had had breakfast. The house at this time was occupied by plaintiff — who was in bed sick —her daughter, Mrs. Cheshire, and two or three children, who were not out of bed. When defendant entered the house, as she testified:
    “ I told Mrs. Cheshire I wanted to speak to her mother, and I passed into her mother’s room and sat down in a rocking chair at her head. I told her that I wanted my money, and she said that her lawyer would see to her affairs.”
    At this point defendant’s husband, his regular hired man, and two other men specially hired for the purpose, entered the house and told Mrs. Cheshire, in tones heard by the plaintiff, “we are going to move you folks out of here today; we are going to put your stuff in the street.” She said “ you ain’t going to,” and he said “ that is what we came for.” Defendant, her husband and the three hired servants thereupon proceeded to carry out their plan, notwithstanding remonstrances and forcible opposition on the part of Mrs. Cheshire. They had so far completed their undertaking that they had removed from the house practically everything except the little furniture • in the room where plaintiff was lying sick when they were compelled to desist by the opportune arrival of plaintiff’s counsel. In consequence of their conduct, plaintiff was terrified and her illness was very much aggravated. She brought this suit to recover compensation. Her declaration set forth the foregoing facts and also stated that recovery was sought under the “provisions of section 11206, 3 Comp. Laws, relative to treble damages for trespass on lands.” At the conclusion of the trial the court permitted plaintiff to amend her declaration by striking therefrom all reference to said section 11206 and instructed the jury to render a verdict in plaintiff’s favor. Defendant appeals to this court and asks a reversal upon grounds which will be referred to in the opinion.
   Carpenter, J.

(after stating the facts). First. It is contended that the trial court erred in permitting plaintiff to amend her declaration in the manner above indicated. This complaint must be overruled. It is conceded that the case made in plaintiff’s declaration was not within the section 11206, 3 Comp. Laws, and defendant was not prejudiced by the amendment which was clearly authorized by section 10268, 3 Comp. Laws.

Second. Did the trial court err in directing a verdict in plaintiff’s favor? It is contended that he did. In another controversy between these same parties we said defendant was entitled to take peaceable possession of the land in controversy. See Murphy v. McIntyre, 152 Mich. 591. The question arises, Was defendant endeavoring to take peaceable possession of this land or was her conduct prohibited by our statute prohibiting forcible entries and detainers? Section 11153, 3 Comp. Laws. That section reads:

“ No person shall make any entry into lands, tenements or other possessions, but in cases where entry is given by law; and, in such cases, he shall not enter with force, but only in a peaceable manner.”

It is urged that as defendant used no force to get into the house she did not violate this statute. This statute is substantially a re-enactment of an old English statute enacted in the fifth year of the reign of Richard II, and it has been the subject of very much litigation. We answer the contention under consideration by quoting from a recent English decision:

“Mr. Cookson says that the statute of Richard only applies to entry upon land, and that if I, who have a title, can get peaceably over the border of the land which is in the possession of a person who has no title, the possession follows the title; I am then in possession, and I may use all necessary force to put out the person who had been in possession. In my judgment that is not the law. The statute of Richard II, as I have already pointed out, prohibits an entry with a strong hand, which means, as I understand it, coming with a multitude of people or any excessive number of persons. The possession can only be taken in a peaceable and easy manner. If the operation of the statute is confined to the mere act of getting over the border, the edge, of the property in question peaceably, the statute is evidently not adequate to meet the evil which it was intended to repress, viz., the evil of persons who have a right, as well as those who have not a right, causing disturbance, inaugurating civil war, for the purpose of obtaining possession of that which is or which they claim to be their property. Accordingly, it appears to me to be clear law, and I desire to restate it, that, if an entry be made peaceably, and if, after entry made, and before actual and complete possession has been obtained, violence be used towards the person who is in possession, that is criminal within the statute of Richard II.” Edwick v. Hawkes, L. R. 18 Chan. Div. 210.

To the same effect is our own decision of Seitz v. Miles, 16 Mich. 455, where it was said:

“To constitute a forcible entry within the meaning of the statute, it is not necessary that the actual invasion of the premises should at the very moment be attended by the circumstances requisite to give it the character of a forcible entry, or be accompanied by threats, actual force or violence, or any conduct which would constitute a breach of the peace; but if the entry be obtained by stealth or stratagem, or without real violence, and the party entering evinces his purpose in having entered to have been the expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry.”

The next question is this: Did the subsequent conduct of defendant, her husband and agent characterize her entry as forcible ? It does not appear that actual violence was used toward the inmates of this house. But there was a superiority of numbers, a display of force calculated to intimidate and terrify them and it did terrify them.

‘‘But the law is, where the party, either by his behavior or speech, at the time of his entry, gives those, who are in possession, just cause to fear, that he will do them some bodily harm, if they do not give way to him, his entry is esteemed forcible; whether he cause the terror, by taking with him such an unusual number of servants, or by arming himself in such, a manner as plainly to indicate a design to back his pretensions by force.” State v. Pollok, 4 Ired. Law (N. C.), 309.
“ In this case there was, it is true, no one assaulted, nor is it necessary that there should be, to constitute a forcible entry; for, if persons either take or keep possession of either house or land, with such number of persons, and show of force, as is calculated to deter the rightful owner from sending them away, and resuming his own possession, that is sufficient in point of law to constitute a forcible entry, or a forcible detainer.” Milner v. Maclean, 2 Car. & P. 18.

To constitute a forcible entry—

“ It is not necessary that it should be accompanied with tumult or riot, directed against the person of the party in possession. It will be sufficient if the entry is attended with such a display of force as manifests an intention to intimidate the party in possession, or deter him from defending his rights, or to excite him to repel the invasion of his possession and thus bring about * * * a breach of the peace.” Ely v. Yore, 71 Cal. 133.

It is clear that under these authorities the entry of defendant was forcible and contrary to the statute.

The next question that arises is: Did this unlawful conduct of the defendant constitute a right of action ? It has been held (see Pollen v. Brewer, 7 C. B. [N. S.] 371; Ives v. Ives, 13 Johns. [N. Y.] 235) that the person evicted contrary to the forcible entry and detainer statute cannot recover damages, for being disturbed in his possession of the land. But it is also held (Newton v. Harland, 1 Man. & G. 644; Beddall v. Maitland, L. R. 17 Chan. Div. 174; Edwick v. Hawkes, L. R. 18 Chan. Div. 199) that he may recover compensation for any injuries done to himself or his personal property in the course of the eviction. This distinction which has been repudiated by very respectable authorities (see Souter v. Codman, 14 R. I. 119, and authorities there cited) seems to us sound. The evicted person cannot recover damages for injury to his possession of the land because his possession is unlawful. Beddall v. Maitland, supra. To allow him to recover in such a case would be to permit him to recover for damages to property which is not his. But very different considerations arise when he seeks compensation for injuries done to himself or to his personal property. The eviction of himself or the removal of his goods from the house is a wrongful act, made so by statute, and the damages resulting therefrom belong to him. For such a wrong there should be, and we hold there is, a right of action. Under this reasoning plaintiff was entitled to recover damages resulting to herself and to her property by the wrongful conduct of the defendant and those were the damages which she recovered in this case.

Third. The physician who attended plaintiff the day of the attempted eviction refused, on cross-examination, to state just what medicine he gave her, and the trial court declined to compel him to so state. It is urged that this ruling was erroneous because “ his treatment might have had something to do with the subsequent condition.” It is a sufficient answer to this complaint to say that, under our decision of Reed v. City of Detroit, 108 Mich. 224, this testimony would not have lessened or in any way affected defendant’s liability. We think no other complaint demands discussion.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
      CURRY v. LARKE.
    Taxation — Tax Sales — Noticie—Sufficiency.
    A notice of the sale of land for taxes which is insufficient for the reason that no State or county is named in the description in the body thereof is not aided by printed and written indorsements on the back thereof showing the State and county.
    Appeals from Presque Isle; Emerick, J.
    Submitted June 8, 1908.
    (Docket Nos. 41, 42.)
    Decided June 27, 1908.
    Bills by Walter J. Curry against Augusta Larke and Edward E. Ayer, and against Frederic Denny Larke and Edward E. Ayer to quiet title to certain land. From decrees dismissing the bills, complainant appeals.
    Affirmed.

      Jahraus & Bawden, for complainant.
   Blair, J.

The determination of both of the above cases depends upon the legal sufficiency of the notices of reconveyance served by complainant, as purchaser of certain tax titles, upon defendants. No State or county is named in the description in the body of the notice, and it is conceded that, “if that were all of the notice and nothing else appeared thereon whereby the person receiving the same could identify the lands, they would clearly be defective under Tucker v. Van Winkle, 142 Mich. 210.” It is contended, however, that these cases are distinguishable from Tucker v. Van Winkle because there was printed on the backs of the notices served the following: “ State of Michigan, County of --” and in the blank space was written, “ Presque Isle.”

We agree with the circuit judge that the indorsements upon the notices were no part of the statutory notice and the decrees dismissing the bills of complaint are affirmed.

Grant, C. J., and Moore, Carpenter, and McAlyay, JJ., concurred.


text:
    HOWLAND v. CAILLE.
    1. Pleading — Declaration—Amendment—Allowance—Propriety.
    Where a declaration on the common money counts was accompanied by a bill of particulars disclosing an intention to recover money due for land sold on a contract assigned to plaintiff, there was no error in allowing plaintiff leave to amend the declaration at the close of his case so as to set forth the case described in the bill, including an allegation that the contract had been assigned to plaintiff.
    2. Saving Questions for Review —Theory Below — Shifting Grounds.
    Where defendant’s theory below was that the declaration upon the common money counts would not authorize a recovery of money due for land sold, and that plaintiff was not entitled to recover because no assignment of the land contract to him was pleaded, and that the declaration was not amendable in these respects, a contention in this court, not presented to the court below, that plaintiff’s assignor was a mere trustee, and his assignment a nullity, will not be considered.
    Error to Wayne; Brooke, J.
    Submitted June 10, 1908.
    (Docket No. 48.)
    Decided June 27, 1908.

      Assumpsit by J. Ward Howland, administrator of the estate of Arthur D. Howland, deceased, against A. Arthur Caille and another for an amount due on a land contract. There was judgment for plaintiff, and defendants bring error.
    Affirmed.
    •. Jonathan Palmer, Jr. (Elbridge F. Bacon, of counsel), for appellants.

      Wilkinson, Post & Oxtoby, for appellee.
   Blair, J.

March 18, 1898, Harry C. Hall and wife executed a warranty deed to John Ward of three lots in the city of Detroit for an expressed consideration of $2,800. March 22, 1898, Ward and Hall executed a land contract of one of the three lots, conveying the same to Hall for an expressed consideration of $2,500. April 28, 1899, Hall assigned the land contract to William J. Gutow, who assumed its performance. September 15, 1899, at the request of George W. Meyers, a partner of Gutow, and who had constructed a house on the lot in question and had conducted negotiations for a sale of the lot to defendants, John Ward and the defendants executed a land contract in duplicate conveying the lot to defendants for an expressed consideration of $1,500, payable “Eleven hundred dollars at the date hereof and the remaining thirty-four hundred dollars in monthly payments of fifty dollars or more in each month,” etc. This contract was recorded November 27, 1899, in the office of the register of deeds and the original contract was retired. One thousand one hundred dollars was paid on this contract September 15, 1899, of which amount Meyers received $700. Three further payments, amounting in all to $200, were made to Ward, leaving a balance due January 24, 1900, of $3,200. Mr. Ward having died about this time, and his estate being indebted to Mary E. Barnard,—

“This security with perhaps two or three hundred other securities was turned over to Mr. Barnard, a good many of them the title being held in Mr. Ward.”

The contract was not formally assigned to Mr. Barnard or to his sister, for whom he acted, but, according to the books of John Ward, was placed “in charge of H. F. Barnard.” Mr. Barnard’s books contained the following entries:

“This entry is headed A. Arthur Caille and Caty A. Caille, wife, from John Ward, M. E. B. (which refers to Mary E. Barnard), April 27, 1900, September 15, 1899, 6 per cent., 15,392 (that is the page from Mr. Ward’s records).
“Q. ‘ $4,500; $1,100 down, $50 or more monthly, interest semi-annually; lot 186, William Y. Hamlyn, S. J. Brown’s subdivision of L. 3 and 4 of quarter section 57 of the 10,000 A. T. plat L. H. page 72. Said lot lying on the northerly side of Bethune avenue, between John R. and Brush streets. Insurance $2,500, Western Underwriters, March, 1901.’ Right-hand side, ‘by Smith’ entries are, ‘1900, May 1, to principal charged, $2,750. To interest charged $20.62.’
“ June 16, 1900, charged $2,600. Credited $150. September 15, 1900, charged $2,'400, credited $200. September 20th, interest to September 15th, charged $2,350, credited, principal $50; interest $80.25. January 25, 1901, received payment in full, deed given by J. Ward Howland, executor, to A. A. and C. A. Caille, credited $2,350, principal; $50.53 interest. ‘The charge column is balance $2,750, and the credit column balance $2,750.’.
“Q. Are you able to state, Mrs. Gies, whether these entries include all payments made by A. Arthur Caille or anyone for him upon this contract at your office ?
“A. Yes, sir.”

January 24, 1901, J. Ward Howland, as sole surviving executor of the estate of John Ward, deceased, executed a warranty deed of the lot to defendants, reciting and acknowledging receipt of the consideration of $4,500. Afterwards and prior to the commencement of this suit, defendants conveyed the lot to others. January 25, 1901, Barnard gave defendants the following receipt:

“Received from A. Arthur Caille, duplicate contract for lot 186 Bethune Ave. E., same having been fulfilled and canceled by deed this day of said property.”

The indorsements of payments on defendants’ copy of the contract agreed precisely with the indorsements on the Ward copy and left a balance due of $450 of principal, and, apart from the prima facie evidence of the receipts and recitals, the evidence is conclusive that such amount was still due when the deed was executed and that the deed was made by mistake. Defendants having refused to pay this balance, Arthur D. Howland, to whom the claim had been assigned, began suit November 19, 1903, by declaration on the common money counts, with the following bill of particulars attached:

“Balance of purchase price of premises situated in the city of Detroit, Wayne .'county, Michigan, described as lot one hundred eighty-six (186) of William Y. Hamlin and S. J. Brown’s subdivision of lots.three (3) and four (4), in quarter section fifty-seven (57) of the Ten Thousand Acre Tract, sold to defendants herein by John Ward, now deceased, his interest therein . having been assigned to plaintiff....................$450 00
“Interest on same from March 15, 1900, to October 1, 1903................................................ 125 57
“Total due — ..................................$575 57”

To this declaration, defendants pleaded the general issue with notice as follows:

“You Will Please to Take Notice: That the defendants will give in evidence of the general issue above pleaded and insist in their defense:
“ 1st. That the property mentioned in plaintiff’s bill of particulars in the above entitled cause, has been paid for by the defendants, receipt in full received for such payment and a deed of said property executed and delivered to said defendants in fulfillment and cancellation of the contract formerly held for said property.
“ 2d. The said plaintiff, if he ever had a cause of action against said defendants, has been guilty of laches, and has lost the same, as said property was deeded to said defendants under the contract held by the defendants for the same, and said property has since been sold and deeded away by said defendants, prior to any claim being made by said plaintiff or the commencement of this suit.”

Arthur D. Howland having died prior to the trial, the suit was revived in the name of the present plaintiff. Defendants’ counsel, throughout the trial, made objections to the admission of testimony, for the reasons that the declaration on the money counts did not authorize a recovery of the balance due on the land contract and that the declaration did not allege an assignment of the contract to the plaintiff. These reasons were repeated at the close of the testimony in a motion to strike out all the evidence, and this motion having been overruled, defendants’ counsel asked the court to direct a verdict for defendants, for the following reasons:

‘ ‘ 1. Because of the variance in the proofs and the pleadings.
“2. Because the declaration does not count upon the fact that recovery is sought for money due for land sold.
“3. Because the declaration does not allege an assignment from the vendor of the lands to the plaintiff.
“ 4. Because the plaintiff has failed to make out a case under the declaration, which has never been.amended, nor any request made for any amendment.”

Counsel for plaintiff thereupon asked leave to amend, and counsel for defendants declining to state whether he was surprised or not, the court granted such leave, against defendants’ objection, saying, among other things:

‘ ‘At the close of the plaintiff’s case, the plaintiff having rested, motion was made by the defendant for a verdict upon the ground there is a fatal variance between the pleadings and the proofs offered for the reason that the declaration does not count upon the fact that the recovery is sought for money, due for land sold, and for the further reason that the declaration does not allege an assignment from the vendor of lands to the plaintiff. It is a'pparent from an examination of the pleadings that while the declaration is defective, as pointed out, the defendant could not be at any time in doubt as to the real cause of action because the bill of particulars and the declaration fully states that the plaintiff brings suit as assignee of John Ward, or the estate of John Ward, who, in his lifetime, had made the contract with the defendant, and under which contract the alleged balance is alleged to be due and payable.”

The amended declaration which was filed was in proper form to authorize a recovery, if supported by the proofs, and obviated the objections referred to. Defendants put in no testimony and the issue of fact having been submitted to the jury, they returned a verdict in favor of plaintiff. To review the judgment entered upon the verdict, defendants prosecute this writ of error.

The assignments of error are grouped for argument in the principal brief under four heads. The assignments under the first head “ raise the question whether the allegations in the declaration were sufficient to authorize the admission of the testimony objected to.”- The second head relates to the assignments alleging error in overruling the two motions to direct a verdict and raises the same legal questions as the first. The third head alleges error in permitting the amendment:

“1. Because such amendment was permitted after plaintiff had rested his case.
“2. Because such amendment introduced a new cause of action.”

Under the fourth head it is alleged that the court erred:

“ In charging the jury as follows:
“ ‘ If you believe the plaintiff’s testimony under the pleadings as they now stand, it will be your duty to bring in a verdict for the plaintiff for the full amount claimed, $450.00, with interest, which has been computed at 6 per cent., which is $628.88. There is no possibility of any complication.’
“ This charge in effect instructed the jury that under the pleadings as amended they should find a verdict for the plaintiff for the full amount claimed. It therefore raises the questions: (1) As to whether plaintiff’s proofs made out a case against the defendants. (2) As to whether the declaration as amended was sufficient to authorize a verdict and judgment for plaintiff.”

The original declaration, in connection with the bill of particulars, so far as the defendants were concerned, served all of the purposes of a formally correct declaration in apprising them, as shown by their pleading, of the precise nature of plaintiff’s claim against them and enabling them to prepare their defense. The cause of action upon which the plaintiff attempted to declare, as indicated by the bill of particulars, was the same as the cause of action set forth in the amended declaration. Under such circumstances, the court did not err in permitting the amendment. Jones v. Pendleton, 151 Mich. 442.

It is argued in support of the assignments under the fourth head that the testimony shows: That, although the contract stood in the name of John Ward, it was held by him in trust for Mary E. Barnard, William J. Gutow and George W. Meyers, as appears by the testimony hereinbefore quoted and the following testimony of the witness Thomas, who was associated with Ward in business and remained with his executor till the estate was closed, viz.:

“Q. To whom, Mr. Thomas, did the excess that was due on this contract over and above $2,750, and the other charges you had against Gutow and Meyers belong? * * *
“A. At that time it belonged to William J. Gutow and George W. 'Meyers. * * *
“Q. What amount was due upon the Caille contract at the time it was turned over to Mr. Barnard ?
“A. $3,200. * * *
“Q. Was there any writing in regard to the amount Mr. Barnard was to collect out of the payments upon the Caille contract ? * * *
“A. Not outside the entries in our books.
“ Q. How much of the $3,200, the balance that was due upon this contract, was to be paid to the Barnard office ?
“A. $2,750.”

That as no part of the amount claimed to be unpaid on this contract belonged to the estate of John Ward and the estate had no beneficial interest in the amount due on the contract or mortgage, the estate held the naked title solely for the benefit of the owners of the fund and an assignment of the contract by the executor would be a mere nullity.

That it did not require any written assignment to transfer the debt evidenced by the contract to Mary E. Barnard, William J. Gutow and George W. Meyers, but such transfer could be made by delivery of the contract or by parol.

That the settlement evidenced by Exhibit “I” conclusively shows that Gutow and Meyers had an interest in the moneys secured by the contract, amounting to over $450.

Exhibit “ I ” is as follows:

“The John Ward Loan and Realty Office.
“61 Home Bank Building,
* ‘ Telephone M. 2282.
“ J. Ward Howland, Manager.
“Detroit, Mich., Nov. 1, 1904.
“Received of Mr. J. Ward Howland the sum of six hundred ($600) dollars, which I hereby acknowledge to be in full of any and all claims of any character and description against John Ward, his heirs, legatees or assigns growing out of transactions had between the said John Ward, George W. Meyers and William J. Gutow, or either of them, it being the intention of this instrument to finally, definitely and completely adjust and settle all matters between the said parties above mentioned.
“William J. Gutow,
“Mary Gutow.
“I, George W. Meyers, hereby disclaim any interest, right or title in any of the transactions referred to in the above instrument, I having heretofore transferred all interest to William J. Gutow above mentioned.
“George W. Meyers.”

It is clear that no such point as this was made before the trial judge. The record demonstrates that the trial judge was given to understand that defendants were insisting that plaintiff was not entitled to recover a¿ad that defendants were entitled to a verdict because the declaration did not permit a recovery and was not amendable. The instruction complained of was necessarily made with this position of defendants’ counsel in view. The questions now raised are evidently the result of afterthought. In fairness to the circuit judge, they should have been presented for his consideration, and, not having been so presented, we must decline to consider them.

The judgment is affirmed.

Montgomery, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Carpenter, J.

text:
    HOULE v. SOCIETE ST. JEAN BAPTISTE.
    1. Life Insurance — Fraternal Insurance — Nonpayment of Dues — Effect.
    Where the laws of a fraternal beneficial society provide that no member can pretend to the benefits if he has neglected during three months to pay his monthly dues, and that every member who has neglected during one year to pay dues shall, after notice, be erased from the registry of the society, a member in arrears more than three months is not entitled to benefits, though not erased from the registry.
    2. Same — Separate Benefits — Source of Funds.
    Where the members are entitled to participate in two different fun'ds, viz., a widow and orphan fund, arising from assessments, and a funeral benefit fund, arising from monthly dues, a. law providing that no member can pretend to benefits if he has neglected during three months to pay his monthly dues, applies to both funds, and a member so in arrears cannot participate in either fund.
    3. Same — Nonpayment of Dues — Excuse.
    A conversation with the secretary of defendant society, relied upon as an excuse for the nonpayment of dues, is insufficient for that purpose where, giving it the utmost effect claimed for it, it only amounted to information that the dues were paid for a certain period, a fact which was true, and the nonpayment of subsequent dues caused the forfeiture.

      Error to Houghton; Streeter, J.
    Submitted June 10, 1908.
    (Docket No. 16.)
    Decided June 27, 1908.
    Assumpsit by Emma Houle against the Societe St. Jean Baptiste on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      P. H. O'Brien, for appellant.

      Shelden & Legris, for appellee.
    The defendant is a fraternal beneficial society incorporated under the laws of this State. Its members are persons of French Canadian descent living in the county of Houghton. One of its objects — perhaps its main object— is to secure sick and death benefits to its members. Its death benefits are of two classes: one called a widow and orphan fund which is raised by an assessment of one dollar on each member; the other a funeral benefit of $50 which is paid out of the fund raised by monthly dues on the members. The laws of the order provide:
    “ The dues of members shall not be less than fifty cents per month, payable at the regular general meeting of the next month.
    “No member can pretend to the benefits of the Society if he has neglected during three months to pay his monthly dues and fines which may have been imposed.
    “ Every member who will neglect during three months to pay his monthly dues and other dues, and who will become sick, will have no right to any benefits of the Society for his present sickness, even by paying the amount which he owes to the Society.
    “Every member who has neglected during one year to pay his monthly dues and other dues, shall be after notice erased from the registry of the Society, or stricken from the registry of the Society.”
    Napoleon Houle, plaintiff’s father, was a member of said society. In 1903 he removed from Houghton county, where he formerly resided, to another part of the State, instructing one of his sons to pay his dues to the society. No dues were paid after the month of February, 1904. June 3, 1904, Houle died. The day after his death the defendant society passed a resolution declaring him in arrears. The insured left surviving a daughter, the plaintiff, and three sons. The sons assigned their interest in the insurance benefits to plaintiff and she brought this suit. It was tried in the lower court before a jury. The foregoing facts were established. For the purpose of furnishing an excuse for the nonpayment of dues, plaintiff put'upon the witness stand her brother Wilfred Houle, the son charged by the insured with the payment of the dues. He testified :
    “I met him [the secretary of defendant society] on the street and asked him how my father stood with the society, and he told me that he didn’t know exactly but he would look it up and let me know, so I didn’t see him any more, but I went for probably a month and a half or two months. I met him again and I asked him if he had looked it up and he told me that he had forgotten all about it, but he would see to it that it was all right and he would let me know for sure. Of course, then I didn’t see him any more after that, and the first thing I knew father died. * * * I testified in the lower court on the trial of this case, that I had seen Mr. Rouleau [the defendant’s secretary] with regard to my. father’s dues around January, in the first instance, and then two or three weeks after, or around the first of February. * * * What I testified to in the lower court is as near as I can tell.”
    The trial court directed a verdict for the defendant and plaintiff asks us to reverse the judgment rendered therein.
   Carpenter, J.

(after stating the facts). It is contended by the plaintiff that until the society had taken action suspending the member, or until his name had been erased from the registry, he was entitled to these benefits. This contention is directly opposed to the language of the provision:

“No member can pretend to the benefits of the society if lie has neglected for three months to pay his monthly dues. ”

It is urged that the failure to pay the monthly dues should not defeat' recovery for the widow and orphan fund, so-called, because that was not derived from the monthly dues. This argument might with propriety be addressed to the society to induce them to change their laws. But it does not aid in the duty devolving upon this court, viz., the duty of construing the laws which were made. According to the language of those laws, and their proper construction, the failure to pay dues for three months deprived a member of the benefits of the society. This does not mean one of the benefits. This means all benefits of the society.

It is contended that the conversation which occurred between Wilfred Houle and defendant’s secretary waived the payment of the dues. It is a sufficient answer to this contention to say that the dues referred to in the conversation were those which became due in January and February, and, assuming that the secretary informed Wilfred either by word or conduct that these were paid, he merely told him a fact that is established to be true by the testimony in this case. That fact did not justify a failure to pay the dues for the subsequent months, and that failure is what led to the loss of the benefits in suit.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    SHERMAN v. ALBERTS.
    Statute of Frauds — Promise to Answer for Debt of Another —Original or Collateral Promise — What Constitutes.
    Where defendants stated to plaintiff “any beef you sell M. while he is working on our logs we will pay for,” and plaintiff charged the beef upon his books to M., defendants’ agreement was a “promise to answer for the debt of another person,” which, under section 9515, 3 Comp. Laws, is required to be in writing.
    Error to Wexford; Chittenden, J.
    Submitted June 11, 1908.
    (Docket No. 80.)
    Decided June 27, 1908.
    Assumpsit by Job Sherman against Frank Alberts, Roy E. Alberts, and Earl Alberts, copartners as F. Alberts & Sons, for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Stephen H. Clink, for appellants.

      Gaffney & Miltner, for appellee.
    The defendants are copartners. They reside in Muskegon. During the winters of 1904-5 and 1905-6 they carried on lumbering operations in the county of Missaukee. They let - a contract to a jobber named McGill. Their superintendent was one Thompson. Plaintiff supplied McGill with meat for the use of his men. Before doing this, as he testifies, the following conversation occurred between him and Thompson:
    “ I asked Mr. Thompson if I sold McGill beef, would he pay for it, and he said, yes, any beef you sell Mr. McGill while he is working on our logs we will pay for.’
    Under this arrangement beef was sold during both seasons. It was charged upon plaintiff’s books, “meat sold to McGill.” It was all paid except a balance of $161 and some cents. For this balance plaintiff obtained an order from McGill which defendants refused to pay. He brought this suit and recovered a judgment which defendants ask us to reverse.
   Carpenter, J.

(after stating the facts). The important question for our consideration is this: Was the agreement testified to by plaintiff a “ promise to answer for the debt * * * of another person,” required to be in writing by section 9515, 3 Comp. Laws? We think it was. From the terms of the agreement itself, and from the construction placed upon it by plaintiff, it must be inferred that the contractor, McGill, was his debtor for these goods. Being a debtor he could have been nothing less than the primary debtor. The obligation of the defendants was, then, that of a guarantor or surety. It was a promise to pay the debt of another and void because it was not in writing. While the language used differs somewhat from that in Butters Salt & Lumber Co. v. Vogel, 130 Mich. 33, it is ruled by that case. It follows that the trial court erred in refusing to direct a verdict for defendants. No other complaint demands discussion.

Judgment reversed and new trial ordered.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Grant, C. J. Hooker, J. ■Moore, J.

text:
    CROZE v. ST. MARY’S CANAL MINERAL LAND CO.
    1. Chattel Mortgages — Foreclosure — Sale — Liability of Mortgagee — Excessive Sale.
    Defendant having seized plaintiff’s logs on a chattel mortgage and sold them in two lots for $7,713.43, the debt and expenses amounting to $7,051.71 in addition to services of the value of $700 to $800, an instruction holding it liable as for an excessive sale was erroneous, liability in such a case extending ■ only to the surplus, if any, left after the debt and expenses are paid; the mortgagee not being required to sell the logs one by one until enough is realized to pay the debt and expenses, but being entitled to sell in quantity. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.
    2. Same — Negligence of Mortgagee.
    In an action against the mortgagee of logs for negligence in caring for them after taking possession for the purpose of foreclosure, defendant is entitled to an instruction that it is not liable to plaintiff for its acts with respect to certain logs belonging to third persons which appear to have been intermingled with the mortgaged logs. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.
    3. Same — Damages—Evidence.
    Where logs covered by a chattel mortgage were commingled by the owner with others not so covered, belonging tó a third person, the mortgagor held not entitled to an instruction authorizing the recovery of damages against the mortgagee taking possession of the entire quantity for the purpose of foreclosure and negligently losing a part of them in transporting them to the place of sale, without showing what proportion of the logs so lost belonged to the several owners. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.
    4. Pleading — Declaration — Amendment — Propriety — New Cause of Action.
    A declaration in trover for the conversion of logs seized by defendant on a chattel mortgage and wrongfully removed from the place where seized, setting out certain negligent acts in transporting and caring for them, may be amended by adding a count claiming damages for the negligent acts described in the original declaration. Grant, C. J., and Hooker, J., dissenting.
    5. Chattel Mortgages — Foreclosure — Sale — Liability of Mortgagee.
    Where, in an action against a chattel mortgagee of logs for damages arising from foreclosure, there is testimony tending to support plaintiff's claim that after the debt and all reasonable expenses were satisfied there was a balance left, and that a large quantity of the logs were lost by defendant’s negligence in transporting them to market, the court did not err in refusing to direct a verdict for defendant.
    6. Same — Negligence of Mortgagee — Evidence—Sufficiency.
    In an action against a chattel mortgagee of logs for negligence in keeping and transporting them to market after seizure for the purpose of foreclosing, evidence examined, and held, that whether there was any loss of logs, and whether such loss was caused by the negligence of defendant in storing them in unsafe booms, and in attempting to tow them to market at a time of year when it was unsafe, were questions for the jury. Grant, C. J., dissenting.
    7. Evidence — Testimony at Former Trial — Admissibility—Absent Witness.
    Where a witness was beyond the jurisdiction of the court, his testimony taken at a former trial of the case was properly admitted.
    8. Trial — Instructions—Consideration as Whole.
    An excerpt from the charge should not be isolated from what preceded and followed it for the purpose of finding error.
    Error to Houghton; Streeter, J.
    Submitted June 11, 1907.
    (Docket No. 26.)
    Decided July 1, 1908.
    Trover by Joseph Croze against the St. Mary’s Canal Mineral Land Company. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Chadbourne & Rees, for appellant.

      Tarsney & Fitzpatrick, for appellee.
   Grant, C. J.

A sufficient statement of the facts in this case is found in the opinion of this court (143 Mich. 514) reversing the judgment and remanding it for a new trial.

The original declaration, as stated in that opinion, contained two counts, one being the ordinary count in trover, the other a special count in trover alleging that the defendant wrongfully converted the timber to its own use by unlawfully and wrongfully removing it from the places where seized. This part of the declaration is as follows:

“ And the plaintiff avers that the said Will C. Baudin did not pay to the said defendant said sum of $4,480 and interest thereon at seven per cent, per annum, as in said mortgage agreed and that thereafter and on to wit, the first day of September, 1901, the said defendant by its agents and servants seized and took possession of the entire quantity of logs and timber aforesaid belonging to said Will C. Baudin, including the 1,000,000 feet thereof aforesaid, which was owned by the said Baudin and not included in the terms and provisions of said chattel mortgage or affected thereby, and also seized and took possession of said 1,000,000 feet referred to in said chattel mortgage as having been sold to the Tamarack Mining Company. And the plaintiff avers that the said defendant did not then and there or at any time thereafter sell that portion thereof which was mortgaged to said defendant, at public auction after a like notice as is -required by law for constable’s sale nor did it exercise its option to sell the same at private sale without notice, as in said mortgage agreed, but unlawfully and wrongfully removed or caused to be removed a greater portion thereof, to wit, 2,500,000 feet of said hemlock logs, and to wit, 30,000 feet of said white pine logs, and to wit, 60,000 lineal feet of flat hemlock timber from the place and places where the said logs were seized and taken by said defendant and wrongfully and unlawfully converted the same to the use of the said defendant.”

The special count also alleges a damage to the timber left upon the shore at Misc.y Bay by reason of its “becoming sap rotten, sap stained, wormeaten and discolored,” and that such injury was due to the carelessness, negligence, and wrongful conduct of the defendant in not caring for and protecting said logs. Aside from the allegations of damage to the logs left upon the bank at Misc.y Bay, the declaration was based entirely upon a conversion . of the property by moving it from the places where seized -and neglecting to sell the same according to the provisions of the mortgage to satisfy the debt. Upon the second trial no claim was made for damages to the logs left at Misc.y Bay.

We held in the former opinion that there was no conversion. There was not even a hint in the original declaration of liability for negligence in rafting and towing the logs from Misc.y Bay to Portage Lake, or in their care in Portage Lake. In fact most of the logs were already in Portage Lake, having been towed there during the season in several rafts by plaintiff’s assignor, Baudin. After the former decision plaintiff asked and obtained leave to amend his declaration charging the defendant with negligence in towing the logs and in their care while in Portage Lake, alleging that the boom in Portage Lake broke on two or three occasions by which logs were lost, and that the breaking was due to the negligence of the defendant.

Since writing th6 above this court has decided Jones v. Pendleton, 151 Mich. 442. The original declaration in that case counted on a promise made by the defendant to pay plaintiff a commission on the sale of real estate. The plaintiff did not make the sale, but the sale was made through the intervention of another party. It was held that, although there was testimony tending to show that defendant told plaintiff that he should have his commission, though another party should effect the sale, he could not recover. Jones v. Pendleton, 134 Mich. 460.

Plaintiff then amended his declaration so as to include the promise that he should have the same commission though another party effected the sale. It is stated in the prevailing opinion in that case:

“ The plaintiff has but one cause of action. He failed to properly describe it. The question is, whether the court has power to permit plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration.”

That is not the situation in this case. Here the plaintiff deliberately in his original declaration set forth his right of action to be a conversion of the timber by violating the terms of a chattel mortgage. No other cause of action is even hinted at, except as to some logs left at Misc.y Bay. It contains no hint of negligence in towing or booming or care.

In Jones v. Pendleton a commission was the sole cause of action. The plaintiff improperly described it. In this case the original and amended declarations described two absolutely independent causes of action, bearing no relation whatever to each other. The original says that defendant took and converted plaintiff’s property because he had not complied with the terms of the chattel mortgage under which defendant seized it. The amended declaration says that defendant was negligent in handling and caring for the property after it had lawfully acquired possession. I think the case is clearly distinguishable from that of Jones v. Pendleton, and that this amendment was not permissible under the statute or any decisions of this court. I do not think that an action of trover for the conversion of property can, under the statute of amendments, be transformed into an action of negligence in the care of it. In the former case plaintiff is entitled to recover the value of the entire property, and in the latter only what damage has been done to the property.

It is not sufficient that the parties be the same. They are always the' saíne in cases of amendment. It is not sufficient that the property be the same. Usually the property is the same. In this case the property is not the same. In the trover case the declaration asserts that defendant converted to its own use the entire of the property. In the second case plaintiff asserts there was no conversion, but that the defendant lost a part of the property through its negligence, and for that part only must it pay damages, and that upon a cause of action to which no reference is made in the original declaration.

I think there was no evidence of any negligence in booming the logs in Portage Lake, a narrow, land-locked harbor. It was a safe and proper place. Baudin and plaintiff had hooms of some of these same logs there, which broke up before they were changed into the booms of the defendant. Their own witness testified:

“ I think there were two batches of logs down there in Portage Lake, one somewhere near the Union Brewery on this side, and the other somewhere near the Hancock Pump House, a little above Griff’s mill. They were left there until, I think, they broke up, some time in November. I didn’t intend to disturb them at all, but they broke up, and I suggested that we bring them all down here and put them near the Isle Royale mill. Those rafts that were here in Portage Lake were in the condition in which they were found up to the time they broke up. We didn’t disturb them at all. We didn’t open one of them. They were not combined with the lot we brought down at the time. The first I knew about their breaking up was, I guess, from Mr. Nichols or somebody. I suggested to Mr. Goodell and Mr. Parnall that we take them and tow them down below the bridge and put them all in one lot, and lay them in back of Isle Royale there, somewhere, for the winter. I think we picked the logs up twice. We picked them up that fall. I superintended that work and ordered it done.”

Several rafts — six in number according to plaintiff’s own testimony — had been towed from Misc.y Bay to Portage Lake by plaintiff, who was employed by Baudin, and there tied up. There is no claim that they were not stored in a safe place, or that the boom was not properly constructed. The evidence of plaintiff is that it was one of the best booms in use. Plaintiff’s own witness (Moore) testified that they were the best booms on the lake with the exception of the Nestor estate lake booms. There is no evidence that the booms used by the defendant were not sound, properly constructed and such as were in common use. The only evidence that is or can be relied upon to show negligence is the fact that the booms broke perhaps on three occasions. It is urged that this breakage was so frequent as to justify the inference that it was an improper boom. Two of plaintiff’s booms towed by his own tugs from Misc.y Bay were fastened to the shore above the Portage Lake bridge. Both these broke loose in November, and the logs so far as possible were picked np by the defendant as soon as the breaking was discovered. Would this have been sufficient to justify the jury in finding that plaintiff’s booms were in bad condition or improperly constructed ? In determining this question we must refer quite fully to the testimony. One Vaudrin testified that late in the fall of 1901 he saw a raft break loose and saw a gang of men at the bridge picking up logs. There is no testimony to show whether these logs came from one of plaintiff’s booms which had broken up, or from one of the defendant’s booms. This same witness testified that at some time — he did not say when —he saw a number of logs around Portage Lake; that some farmers hauled them up and sawed them up for wood, but he does not give any idea as to the number. Whether these came from the booms of plaintiff or of defendant there is not a scintilla of evidence to show. Plaintiff testified that defendant took out his boom and put in its own; that the logs broke loose two or three times during that fall and the next spring. But plaintiff does not testify that these logs that broke loose in the fall did not come from his own booms which were tied to the shore of Portage Lake as above stated, and which it is conceded did break loose some time in November. It appears that plaintiff brought replevin for at least parts of his own booms.

The only reliable testimony is that of plaintiff’s witness Moore. This witness testified that after the logs were stored along the shore between Snow Shoe Island and the Clubhouse—

“Nothing happened to the logs until next spring. There was a chain let loose in the spring. I got Mr. Croze’s tugs — one or two of them — and surrounded them. I happened to see them going away, and happened to be lucky to get one of Mr. Croze’s tugs, and ran a boom around them and surrounded them. That was in the spring of 1902. Nothing happened to the logs during the winter and up to the opening of navigation. There was no loss during that period. We didn’t lose any logs in towing them down there from where they were first put. There may have been a stray log lost out, but nothing more than what would be usual in towing hemlock logs.
“In the spring of 1902 the logs were taken out and sorted. There was no loss of logs during that time up to the time they were sorted. * * *
“ After the logs were sorted, the Tamarack logs were taken up to Dollar Bay; the Canal Company’s logs were taken in back of Snow Shoe Island, between Snow Shoe Island and the shore. That is a protected place. I don’t think in the towing and sorting, in taking them to the place for sorting and putting back, there was any loss of logs or timber, any more than what is usual. A log will slip out of the boom, or logs will crawl out between and over the boom chains occasionally. * * * They broke up again. I ain’t sure but we did finally tow them up through Portage Lake again for the Canal Company. They had been moved from behind Snow Shoe Island before they broke up. * * *
“ When they broke up they laid up here by the Copper Range Railroad landing. When the boom broke they notified me, and I got a tug and men there again to pick them up. The work of picking them up was done quite thoroughly. I think they got all. There might have been a stray log got away from us somewhere. We left them there in the boom again, and I think they broke again. I helped pick them up again, and we picked up until we were satisfied that we got them all, and they were put back in the boom again.”

On cross-examination he testified:

The booms broke some, a matter of two or three times, I guess. We picked up everything as far as we could.”

It appears from the plaintiff’s evidence that the breaking of rafts is not uncommon. Plaintiff’s assignor, Baudin, testified that two of his rafts from Misc.y Bay to Portage Lake ‘ broke up ” and the logs went mainly upon the shore. It is admitted that a percentage of logs is lost out of every raft, even in smooth weather. Out of the 4,600 logs above mentioned, called the beach logs, plaintiff’s own evidence shows that at least 25 per cent, of them were logs belonging to other parties and which had escaped from booms being rafted over the lake.

Under these circumstances we do not think the law justifies the conclusion that the defendant was guilty of using insufficient or improperly constructed booms. Whether boats passing up and down accidentally ran into the boom, whether some unexpected pressure by storm or otherwise had been brought to bear upon it, or whether some evil-disposed persons had broken it, no one can tell or attempts to tell. Defendant put in no testimony, and the case is determinable upon the plaintiff’s own evidence.

This boom lay in the waters of Portage Lake and was at any time subject to the examination of the plaintiff or anyone in his behalf. Its age and construction could easily have been ascertained. I cannot conceive of a more appropriate case for the application of the well-established rule that an accident of itself is no proof of negligence. The mere fact that the boom broke is not, in my opinion, evidence of negligence, any more than was the fact that a timber broke in the case of Quincy Mining Co. v. Kitts, 42 Mich. 34; or that a boiler front fell, as in Toomey v. Steel Works, 89 Mich. 249; or that a piece of machinery gave way, as in Robinson v. Wright & Co., 94 Mich. 283.

Both the defendant and the Tamarack Mining Company (the latter owning a large proportion of the timber) were as interested in properly securing and caring for it as was either the plaintiff or his assignor, Baudin, who was pecuniarily irresponsible. Their own large interests would prompt them to proper care and diligence. There must be some tangible evidence of wrong, but there is nothing, except the bare fact that on two or three occasions the boom broke, to indicate any wrong.

The case was submitted to the jury upon another theory, viz., that the defendant had sold more of the mortgaged logs than was sufficient to pay the mortgage debt. Upon this point the court instructed the jury:

“If you find that the defendant company could have sold just enough to satisfy the amount of the mortgage and reasonable expenses, and that it did sell more than enough, then you could render a verdict in favor of the plaintiff for the value of the property which you have found was sold in excess of the necessary amount.”

The mortgage authorized a public or private sale. The first sale made amounted to $5,300. I find no complaint made as to the price obtained at this sale, or the second sale. There was then due on the mortgage $4,950.40, Baudin having paid nothing. There had been paid for liens $983.02; sheriff’s fees, $57.15; the expense of sorting, scaling, etc., was $257.64; rent of booms was $440. The towing bills for delivering logs after sorting were $363.50, making the amount due, $7,051.71. These items did not include the cost of towing the two rafts from Misc.y Bay to Portage Lake, which, according to plaintiff’s own testimony, as to his charges for towing, could not be less than $700 or $800. The court instructed the jury that there was no claim that the first sale was sufficient to cover the amount due. Subsequently sales were made amounting to $2,413.43, making the total sales $7,713.43.

Under this condition of affairs, I think it was error to submit to the jury the question whether the defendant had sold more logs than it was entitled to sell under its mortgage. I think the court should have instructed the jury that the defendant sold the logs in accordance with the terms of the mortgage and was not liable for the value of any timber in excess thereof. If, after deducting from the amount of the sales all these legitimate expenses, together with the mortgage debt and interest, any surplus was left, defendant was responsible only for such surplus. It was very small in any event, and it is doubtful if there was any. The law does not require that the defendant should have sold these logs one by one until it had realized enough to satisfy the mortgage. Such requirement would be impracticable and unreasonable. It was authorized to sell them in quantities, and so long as it acted reasonably and in good faith it was liable only for the surplus left in its hands. Stromberg v. Lindberg, 25 Minn. 513; Johnston & Son v. Robuck, 104 Iowa, 523. I find no evidence of bad faith or unreasonableness in the sales which defendant made.

The court was requested to instruct the jury that:

“From the testimony of Baudin, plaintiff’s assignor, it appears that 4,600 logs, mentioned as having been left over from the year 1900, and which became a part of the mass of logs in 1901, being mingled with the new cut, were at the time of the alleged wrongs the property of the Tamarack Mining Company. They must, therefore, be eliminated from this case.”

If these logs belonged to the Tamarack Mining Company, the defendant is not responsible either to plaintiff or his assignor therefor. The court instructed the jury that the million feet of logs covered by the Tamarack contract must be deducted from the total number taken, and for which the defendant would be liable. According to Baudin’s testimony, these 4,600 logs appear to have been as much the property of the Tamarack Mining Company as were the million feet specified in the Tamarack contract. Baudin upon this point testified as follows:

“ The cut of the previous year was all sold to the Tamarack, and these 4,600 logs was a part of the contract of the year before. I was to get out another million feet the next year. These 4,600 logs had been sold to the Tamarack before this time, I think. I made the same kind of a contract that I had the second year. That was the ame kind of a contract. I had a contract of four million feet the first year, and the next year another additional million, and these 4,600 logs that I had then were a part of the first year’s contract that I did not deliver. The first year’s contract took the entire cut. It took everything that year, and the second year’s contract they only wanted the long timber. I had a different contract the first year. I have got it somewhere in my papers, — I haven’t got it here.”

Under this evidence, it is at least doubtful whether Baudin had any interest in these logs. (See opinion on rehearing, 143 Mich. 521.) We refer to this as the question may arise on a new trial.

The only other ground of negligence upon which the plaintiff could recover was for towing the logs at an improper season of the year when storms were liable to arise. The first raft, containing about 600,000 feet, was towed in safety, the weather being good. The next raft, containing about a like amount, suffered some loss. The court instructed the jury that, under the evidence, there was no loss on the first raft, and that they could not allow a loss of more than 25 per cent, on the second raft. The vice of the instruction lies in the fact that there was no testimony to indicate what proportion of the lost logs belonged to the Tamarack Mining Company, for the loss of which the defendant was not liable. It cannot be presumed that the 25 per cent, loss included only the logs covered by the mortgage. As the court instructed the jury, Baudin was responsible for the intermingling, “and the logs of the Tamarack Mining Company were so intermingled with the logs covered in the mortgage that it was unreasonable to expect them to be separated or sorted at Misc.y Bay.” It was therefore essential to tow them to Portage Lake in order to sort them. I am unable to see how there was any data by which the jury could determine how many of the plaintiff’s logs were lost in that raft. They were in any event a very small part of those for which the plaintiff recovered a judgment.

When the logs were sorted in Portage Lake, the scale showed that the Tamarack Mining Company owned 779,171 feet, and that the logs covered by the mortgage amounted to 789,358 feet. If there was any testimony from which the jury might infer that the logs were mingled in this raft in the above proportion, there might be some data from which to estimate the loss for which the defendant was responsible. I am not prepared to say that this would not be proper, but as it is not argued it'is unnecessary to determine it.

I think the judgment should be reversed and new trial granted.

Hooker, J.

I concur with the above on the first, third, fourth, and fifth points.

■Moore, J.

The first trial of this case took place in

May, 1904. The judgment on that trial was reversed by this court in an opinion found in 143 Mich. 514. A reference to that opinion will aid in understanding the questions involved here. After the reversal, counsel in the court below was allowed to amend the declaration. Defendant opposed the amendment and excepted to the order permitting the same. At the close of plaintiff’s testimony a motion was made to direct a verdict in favor of defendant. This was overruled. Defendant offered no testimony. The jury rendered a verdict in the sum of $7,137.83. The case is brought here by writ of error.

The first assignment of error demanding attention is, Did the court err in permitting the amendment to the declaration ? Counsel say that the additional counts added by the amendment set forth a new and different cause of action from that alleged in the original declaration, and that for this reason the allowance of the declaration was beyond the power of the court; that the original counts alleged a conversion of the property, while the amended declaration charges loss by reason of negligence in towing at an improper season of the year, by reason of insufficient fastenings while the logs were in Portage Lake, and also includes the claim for damage by reason of permitting a portion of the logs to remain on the banking’ ground. Also loss through negligence in conducting the; work of rafting and booming.

An inspection of the pleadings will show that both declarations refer to the same logs, the same persons, and the same acts. We think the amendment was permissible under 1 Enc. PI. &Prac.,title “Amendments,” pp. 558-564, Pratt v. Montcalm Circuit Judge, 105 Mich. 499, and City of Detroit v. Wayne Circuit Judge, 125 Mich. 634, and cases cited therein.

Error is assigned upon the admission of testimony. We think no good would come of a discussion of these assignments, indeed counsel do not lay much stress upon them. We shall content ourselves by saying we think the testimony was allowable. Error is assigned as to the argument of counsel. The statement criticised is based upon the record. It is urged that the assignment from Baudin to Croze was not broad enough to allow a recovery arising out of the negligence of the defendant. Among other things stated in the assignment is the following:

“ And I do hereby sell, assign, transfer and set over unto the said Joseph Croze all my right, title, claim and interest in and to said logs and timber aforesaid.”

We think this language, taken in connection with the rest of the assignment, was sufficient to give plaintiff the right to recover for loss arising from the negligence of defendant.

Did the court err in refusing to direct a verdict in favor of defendant ? The record shows that defendant received from the logs and timber sold $7,613.43, while the mortgage debt was $4,480. It is the claim of plaintiff that, after all reasonable expenses are satisfied, a balance would still be due him. It is also claimed that a large quantity of the logs were lost by reason of the negligence of defendant; that no man of ordinary prudence would attempt to move the logs at the time they were moved. There was testimony tending to support this claim. We think the judge did not err in refusing to direct a verdict.

Counsel say:

“Nowhere in the record is there a scintilla of evidence as to the cause of the breaking up of the rafts in Portage Lake. No witness testifies to having seen the actual breaking up of any boom, and there is nothing shown by the record but the bare fact, that on one, two or three occasions, from some cause unknown, the logs became scattered.”

And they argue that defendant cannot be held for any loss of logs in Portage Lake. The logs which were on the bank when seized were in a safe place. They were taken from there at a time of year when, according to the record, no reasonably prudent man would undertake to move them. After they reached Portage Lake the booms around them and the logs already there broke up at least three times, according to some of the testimony. It is true the agent of defendant testified he gathered up all the logs at these times, but there was other testimony tending to show that a large quantity of logs were not recovered. It is true, too, as stated by counsel, that no one testified to what caused these booms to break, but we think it became a question for the jury whether there was any loss of logs at Portage Lake, and, if so, whether it was caused by the negligent acts of defendant. We think the following cases are in point: Schoepper v. Chemical Co., 113 Mich. 582; La Fernier v. Wrecking Co., 129 Mich. 596, and the cases cited therein.

Was it error to permit the plaintiff to read in evidence the testimony of Mr. Moore ? This testimony upon the first trial was offered in evidence by the defendant. Upon the second trial it was read by the attorney for the plaintiff. Counsel say they had no opportunity of cross-examination and the evidence should not have been read. The witness was shown to be beyond the jurisdiction of the court. We think the testimony competent.

Error is assigned upon the giving of plaintiff’s requests to charge, the refusal to give certain of defendant’s requests, and upon the general charge of the court. Many of the assignments.of error in relation to the requests to charge are disposed of when we say the plaintiff made a case which it was proper to submit to the jury. Especial ' stress is laid upon an assignment of error growing out of the language in the general charge.

“The exact amount of logs banked and placed in the dam is not determined by the testimony. Estimates of the same have been given to you, but you will decide, if you can, from the testimony, what was the amount of logs at Misc.y Bay, being governed entirely by the testimony.”

We quote from the brief:

“ On what possible theory of the case can it be supposed that it was incumbent upon the jury to determine from the testimony the amount of logs at Misc.y Bay ? This amount could have no relation to the quantity of logs lost in towing. If the defendant was liable for loss in towing, the amount of that loss must be determined by itself, and under the testimony in this case the amount of logs at Misc.y Bay, banked and placed in the dam by Baudin, can in no manner be relevant to the question of the quantity of logs lost in towing. Equally true is it that this amount can have no relation to the quantity of logs lost in Portage Lake, if any such were lost. It can in no way relate to the amount of timber actually sold by defendant in excess of the mortgage debt, if there was any such sale. The charge as given was therefore erroneous and extremely prejudicial, as impressing upon the jury the necessity of finding this quantity, and it being so impressed upon them, their minds must have been charged with the notion that that quantity was the measure of defendant’s responsibility.”

Other sentences are also quoted from the charge which are objected to. We think the language quoted should not be isolated from what preceded and what followed it.

Among other things the court charged the jury: ing of possession by the defendant company very soon after that was done. He made no claim upon it for any property not covered by the mortgage, he pointed out no logs which he claimed were not covered by the mortgage. So this is a matter not for your consideration in the slightest degree.

“Had nothing been done with the property from the time it was banked the winter preceding, you would be justified in holding that the same amount still remained upon the land, but there is positive testimony in this case that certain rafts were taken by Baudin from this mass of logs, and towed down to Portage Lake. Is there testimony in this case from which you can determine what the amount was which was so taken and conveyed from Misc.y Bay by the rafts ? If there is, then you should consider that testimony in determining the amount which remained at Misc.y Bay, and which was taken possession of by the defendant. There is also testimony introduced on the part of the plaintiff as to the amount of logs which was finally left at Misc.y Bay, and testimony showing that the defendant took away two rafts from Misc.y Bay. If there is testimony in this case from which you can determine the amount which was left on the shore at Misc.y Bay, and the amount taken by the defendant in the two rafts, then you have a right to consider all that in determining the amount which was seized by the defendant at Misc.y Bay.
“In addition to that, there was a quantity seized by the defendant in Portage Lake, which amount is to be added to that taken by the defendant at Misc.y Bay, and these two together constitute the full amount of property for which the defendant is responsible. After the defendant had taken possession of the property at Misc.y Bay and in Portage Lake, it joined with the Tamarack Mining Company in appointing an agent to look after the interests of the two companies. The Tamarack Mining Company in its contract with Baudin was entitled to take possession of a million feet and to bring them down to Portage Lake and deliver them at Dollar Bay. The logs of the Tamarack Mining Company were so intermingled with the logs covered by the mortgage that it was unreasonable to expect them to be separated or sorted at Misc.y Bay.
“Acting for the two companies, their agent, Mr. Moore, took possession of the entire mass of logs; thereupon the title to the so-called Tamarack logs passed to the Tamarack Mining Company.
“ Under all the testimony in this case, you will have to determine whether it was negligence for the defendant to tow or attempt to tow the logs in controversy from Misc.y Bay in September and October, 1901, and if you find the defendant was negligent, then it is liable to the plaintiff for such loss and damage as is shown by the evidence in this case to have resulted from the towing. The testimony in the case is undisputed that the time of year was not a safe time for towing on Lake Superior, but in determining the question as to the negligence of the defendant in this case, you should take into consideration all the circumstances which have appeared bearing upon that question ; the fact that the man in charge was agent of the Tamarack Mining Company, the owner of a large portion of the logs, the situation of the logs on the shore of Misc.y Bay, and in the dam, and all other matters which have been testified to so far as they bear upon the question of the plaintiff’s negligence in removing the logs at that time of the year.
“ As I have said, the Tamarack Mining Company, at the time of the removal, was the owner of the logs. It had a right to handle them as it chose. They could not be separated from the Baudin logs where they were, and the condition of the logs at that time so far as the intermingling is concerned was entirely due to the acts of the plaintiff’s assignor. I say all these matters should be considered by you in determining the question of the negligence of the defendant, and this should be borne in mind in considering what was done after the logs reached Portage Lake.
“The defendant in this case, having the interest of a mortgagee in the property, was obliged under the law to take such care of the property as a reasonably prudent man under like circumstances would take with regard to his own property, and the situation is not one where it appears from the testimony that the defendant company had the absolute control and right to do with the mass of logs as it chose until after the sorting was done in Portage Lake in the spring of 1902.
“It is also claimed by the plaintiff that the defendant company is responsible because it sold more logs than was necessary to satisfy the mortgage and reasonable expenses of sale. On this branch of the case a good deal was said to you about the seizure of certain logs by the defendant company, which were not included in the mortgage. You are not to consider this matter at all for this reason: All the property taken by the mortgagee was in the condition in which it was left by the mortgagor, so mixed and intermingled that it was impossible for the defendant company to distinguish and take just such a number of logs as were covered by the mortgage. The situation was created entirely by the mortgagor. He knew of the tak-
“Now, in determining whether more logs were sold than were sufficient to cover the mortgage debt and reasonable expenses, you must take the situation of things as they were at that time. You will allow the defendant company all the expenses properly incurred by it in removing the property from Misc.y Bay to Portage Lake, in caring for it at Portage Lake, its expenses in the sale and delivery and such other reasonable expenses as may have appeared in the evidence in this case. You will also consider the situation of the property, nature of the property at the time the second sale was made. No claim is made in this case that the first sale made by the defendant company satisfied the mortgage. If the situation of the property remaining in the hands of the defendant company was such as to render the second sale proper in its amount, and it were such that the defendant company could not select a particular amount from the mass at fair advantage, still leaving a small residue, it had a right to sell as it did, and the recovery (should you find that this was the state of affairs) of the excess price could not be had in this action. But if you find that the situation were otherwise, and that the defendant company could have sold just enough to satisfy the amount of the mortgage and reasonable expenses, and that it did sell more than enough, then you could render a verdict in favor of the plaintiff for the value of the property which you have found was sold in excess of the necessary amount.
“Now, gentlemen, there are certain questions which you must determine positively from the testimony. The jury will determine the quantity of logs and timber put in by Baudin and banked on the shore at Misc.y Bay and in the slough in 1901.
“From the quantity of logs and timber so determined, the jury will deduct one million feet of logs, eighteen feet and upwards in length, which became the property of the Tamarack Mining Company, and need not be further considered in this case. The jury will determine the quantity of logs towed by Baudin in the summer of 1901 to Portage Lake, and the quantity thereof taken possession of by the defendant.
‘ ‘ The jury will determine the quantity of logs actually in the possession of the defendant in Portage Lake in the fall of 1901, which came from Misc.y Bay, including those towed by Baudin and those towed by the defendant.
The jury will determine the quantity of logs lost by the defendant in towing from Misc.y Bay, and the value thereof. The jury will determine the quantity of logs lost in Portage Lake, and the value thereof. If the jury find the logs and timber were lost by reason of the negligence of the defendant, either in towing from Misc.y Bay or in Portage Lake, they will determine the quantity and the value thereof, and render a verdict therefor in favor of the plaintiff.
“Default having been made by Baudin in the payment of the sum secured by the chattel mortgage in evidence, the defendant was authorized to take possession of the mortgaged property and sell so much thereof as was necessary to satisfy the debt, interest and reasonable expenses, and to retain the same out of the proceeds of such sale. The overplus or residue of said property, so mortgaged, if any, belonged to, and should have been returned to, Baudin or his assignee, the plaintiff in this suit. You will determine the amount due, the interest thereon up to the time of sale, and reasonable expenses, and the quantity of logs and timber sold by the defendant for the purpose of satisfying the same, and fix and determine the quantity of logs and timber which should have been returned to Baudin and his assignee, the plaintiff, if any, and the value thereof, and return a verdict therefor in favor of the plaintiff, together with interest thereon from the time such mortgage debt was satisfied.
“ The defendant, holding a chattel mortgage given by plaintiff’s assignor, and there having been a breach of the condition by failure of Baudin, the assignor, to pay the indebtedness secured by the mortgage, had, under the terms of said mortgage, the absolute right to take possession of the mortgaged property, and also all other property of the same nature which had been indistinguishably intermingled with those described in the mortgage, which would by such intermingling become part of the mortgaged property.
“It appearing that there were mingled with the logs covered by the mortgage, certain logs belonging to the Tamarack Mining Company under a contract of sale thereof made by Baudin to said Mining Company, it was the duty of the defendant to gather the property together at Portage Lake and that the Tamarack logs should be withdrawn and sorted out before the mortgaged property could be sold.
“ The defendant cannot be responsible in this case for' any loss or damage to any of the Tamarack logs, which logs, as described in the contract, were one million feet of hemlock logs, eighteen feet and upwards in length, and fourteen inches and upwards in diameter at the smaller end.
“ Under the allegations of the declaration in this cause, the defendant cannot be held responsible for any loss of logs except such as resulted directly from some acts of negligence of the defendant in handling the same. If you find that the defendant towed a portion of the logs in question at a season of the year when it was improper to do so, and that such towing was negligent, and showed a lack of ordinary care on the part of the defendant, the defendant then would be held responsible for any loss of logs occurring through such towing and as the direct result thereof, but could not be held for any further or additional losses.
“Under the testimony in this case you must confine yourselves to the consideration of loss resulting from the towing of the second raft towed under the management of defendant’s agent, Mr. Moore. Under the testimony, this raft contained a little more than six hundred thousand feet. As the law will not permit you to guess how much more, you are limited to six hundred thousand feet as the size of this raft. The testimony of Mr. Moore, plaintiff’s witness, shows that there was a small proportion of this raft lost, and that the loss was less than one-fourth. And there is no other testimony in the case on the subject. Under this testimony you can find no amount of loss resulting from any negligence of the defendant exceeding one-fourth of the quantity of this raft, and such loss as you may find must be apportioned between the Tamarack logs and the logs covered by the mortgage, and only so much of the loss as consisted of the logs covered by the mortgage can be chargeable to the defendant, and your verdict must be limited to the value of that particular loss. * * *
“Any damages which the plaintiff may be entitled to recover are limited to his property interest in the property alleged to have been lost. This interest could only be that remaining over and above the amount due on the mortgage, together with interest and expenses of removal, caring for and sale of the property, together with all sums paid for liens upon the logs. If you should find any loss of property for which defendant is responsible under the principles laid down to you, nevertheless the plaintiff cannot recover therefor unless such loss exceeds any -balance due under the mortgage, and this only to the extent of such excess.
“It appears'from the testimony in this case that a certain portion of the logs were towed in the summer of 1901 to Portage Lake by Baudin and remained under his charge and control until the time when the defendant took possession under its mortgage. It further appears from the testimony there was some loss of logs from this quantity. The amount of such loss is wholly indeterminate under the testimony and you will therefore eliminate from consideration all or any part of the logs which were towed by Baudin before the Canal Company took possession, since the defendant cannot, under the testimony in this case, be held responsible for any loss of any portion of said logs, even if loss did occur from such portion after it took possession.”

We do not think there is any just cause of complaint growing out of this charge. The judgment should be affirmed.

Carpenter, J. I agree with the Chief Justice that this case should be reversed upon the grounds 3, 4, and 5 stated in his opinion. Upon the other propositions discussed in his opinion and in the opinion of Justice Moore, I agree with Justice Moore.

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