author: McAlvay, J.

text:
    DELORIA v. ATKINS.
    1. Corporations — Annual Reports — Personal Liability op Directors. •
    The failure of a corporation organized under chapter 181, 2 Comp. Laws, to file its annual report with the secretary of State, renders its directors personally liable for debts contracted during its default under Act No. 282, Pub. Acts 1903, as amended by Act No. 112, Pub. Acts 1905, which provide that all corporations previously formed shall be affected by and subject to their terms.
    2. Same — Constitutional Law.
    The'legislature is authorized by Article 15, § 1, Const, of 1850, to amend, alter, or repeal laws for the formation of corporations, and the statutes named are within such authority.
    3. Statutory Construction — Penal Provisions.
    Statutes of a penal nature are strictly construed.
    4 Same — Rules op Interpretation.
    The real sense of the legislature is to be found in the terms and arrangement of the statute, interpreted without straining or refinement, in the natural and ordinary sense of the terms employed.
    Error to Delta; Stone, J.
    Submitted June 17, 1909.
    (Docket No. 40.)
    Decided September 21, 1909.
    Assumpsit by Fred Deloria and Joseph Gibbs, copartners as Deloria & Gibbs, against Frank H. Atkins for goods sold and delivered. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error, Reversed, and judgment entered for plaintiffs.

      Henry B. Dotsch and Gummiskey & Spencer, for appellants.

      F. D. Mead, for appellee.
   McAlvay, J.

Plaintiffs assign error upon a directed verdict in favor of the defendant, and in the rulings and holdings of the court in so doing, in a case brought by them in assumpsit against the defendant. The facts relied upon by plaintiffs are stipulated in writing as follows:

“ That the Escanaba Transportation Company, of which Frank H. Atkins was a director in the year 1903 and 1904, was incorporated under and by virtue of the provisions of chapter 181 of the Compiled Laws of 1897, governing corporations for commerce or’ navigation, on or about the 12th day of March, 1903; that on the 19th day of May, 1904, it filed a report in the office of the secretary of State for the year 1903, and that no annual report has' •been filed by said company since the 19th day of May, 1904; that the Escanaba Transportation Company did not file with the secretary of State in the month of January or February, 1905, a report showing the condition of said corporation on the 31st day of December, 1904, as was required by section 12, Act No. 232, of the Public Acts for the State of Michigan for the year 1903, and as amended by Act No. 194 of the Public Acts for the State of Michigan for the year 1905, and that the said Frank H. Atkins, as director of said company, did not join in the making of said report.”

It was also stipulated that for hay sold and delivered by plaintiffs and others who have duly assigned their accounts to them to the Escanaba Transportation Company during the last quarter of the .year 1904 there was due and unpaid to the plaintiff a balance of $735. Upon these stipulations and admissions plaintiffs claimed a case was made entitling them to a recovery. Defendant offered no evidence. Both parties asked for a directed verdict.

The action was brought under the statute which imposes liability upon directors for debts of certain corporations when such directors have neglected or refused to sign the required annual reports. The court directed a verdict for defendant.

Plaintiffs claim that the court was in error in such holding, and have brought the case to this court for review upon writ of error. The errors assigned all relate to the construction of the statute and its amendments given by the court in rendering judgment in favor of defendant. The facts in the case are undisputed, and the question involved is the construction of certain sections of chapter 181, 2 Comp. Laws, as amended and affected by certain subsequent enactments of the legislature.

The corporation in question was organized under said chapter 181. Section 18 of this chapter required such corporation annually in the month of February to make a report containing certain required information, to be signed by a majority of the directors and duly verified, and filed with the county clerk and secretary of State. Section 20 provided:

“If the directors of any such corporation shall intentionally neglect or refuse to comply with any of the provisions of, and to perform the duties required of them by this act, they shall be jointly and severally liable in an action founded on this statute for all the debts of such corporation contracted during the period of such neglect or refusal.”

In 1903 an act was passed entitled,

“An act to revise and consolidate the laws providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, except such as are precluded from organization under this act by its express provisions, and to prescribe the powers and fix the duties and liabilities of such corporations.” Act No. 232, Pub. Acts 1903, given immediate effect June 18, 1903.

Section 12 of this act provided for an annual report to be made by the corporation in duplicate in the months of January or February, to be made on blanks furnished by the secretary of State and filed with him within those months, and,—

“If any of the directors of any such corporation shall wilfully neglect or refuse to make and deposit the report required by this section, within the time herein specified, they shall each be liable for all the debts of such corpora* tion contracted since the filing of the last annual or special report, and subject to a penalty of twenty-five dollars, and in addition thereto the sum of five dollars for each and every secular day after the first day of March in each year during the pendency of such neglect or refusal.

# si: »

Section 12 was amended by Act No. 194, Pub. Acts 1905, by requiring the annual report in January and suspending the corporate powers of any corporation neglecting or refusing to file such report if the default shall continue ten days after February 1st, and prohibiting the maintenance by such corporation of any action upon any contract entered into during such default,—

“And any director of any corporation so in default who has neglected or refused to join in the making of such report shall be liable for all debts of such corporation contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained by it by reason of such refusal or neglect.”

This is the section now in force. Section 37 of this act provided that it should include and apply to all corporations provided for in chapter 181 and other chapters named,—

“And in addition shall repeal all other acts and parts of acts inconsistent with the provisions of this act.”

It further provided that the repeal of the foregoing acts should not dissolve any corporation formed or existing under them, and that all such corporations of this class should—

“Be deemed and taken to be organizations under this act, and all rights, obligations, and liabilities contracted, acquired or incurred by any of said last mentioned corporations thereunder, or under the provisions of any law now in force, not inconsistent with the provisions of this act, shall continue of the same force and effect as though such' acts or laws had not been repealed; and all such corporations, from and after the taking effect of this act, shall be subject to all the provisions hereof, as fully as though such organizations had been perpetual thereunder, and such organizations may continue to carry on the business specified in their articles of association under the' provisions of this act, as lawfully as if said acts mentioned in this section were not repealed.”

Sections 12 and 37 of this act are the sections under which plaintiff claims a liability was imposed upon defendant. Act No. 112, Pub. Acts 1905, did not amend section 37 in any respect material to this case.

The proposition contended for by defendant is, not that the legislation under the- Constitution might not have amended the law in respect to the liability of stockholders in this corporation, but that this is a penal provision of the statute, and it must be strictly construed, and liability under it cannot be enlarged by implication; that the revision of the laws providing for the incorporation of such institution has repealed all of chapter 181 which imposed a liability upon directors and officers for neglect of duty in the matter of. making reports; and that liability of directors and officers imposed under the acts of 1903 and 1905 applies only to corporations organized under those acts. The learned trial judge took this view of the statute, citing in support of such construction Park Bank v. Remsen, 158 U. S. 337 (15 Sup. Ct. 891). That case was an action on- two promissory notes made by a New York firm to the order of themselves and indorsed in blank. Afterwards these notes were indorsed by the German-American Warehousing & Security Company, a New York corporation, The notes were discounted by plaintiff. The warehouse company was incorporated by a special act, section 9 of which provided that:

“The corporation hereby created shall possess all the general powers and privileges, and be subject to all the liabilities conferred and imposed upon corporations organized under and in pursuance of an act entitled, cAn act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes, passed February 17, 1848, and the several acts extending and amending the same.’ ”

Section 12 of the act of 1848 required certain annual reports to be published within a certain time, for failure of which the trustees—

“Shall be jointly and severally liable for all the debts of the company then existing and for all that shall be contracted before such report shall be made.”

Plaintiff brought suit against the warehouse company as indorser and recovered judgment, which was reversed and a new trial ordered by the court of appeals of the State, on the ground that the warehouse company was an accommodation indorser and plaintiff was chargeable with notice of the character of the indorsement. 116 N. Y. 281 (22 N. E. 567, 5 L. R. A. 673). Plaintiff then sued Rem-sen, a trustee of the warehouse company, in the Federal court, upon his statutory liability under section 12 of the act of 1848. The court decided against the plaintiff, and the ease was appealed to the Supreme Court of the United States. In affirming the case Mr. Justice Brewer, speaking for the court, relative to the statute relied upon by appellant, said:

“Section 12 of the act of 1848 is not in terms re-enacted in the charter of the warehouse company. It is, as we have seen, a statutory provision of a penal character, and, before any party can be held bound by its provisions, it must satisfactorily appear that the legislation of the State has rendered him subject thereto. The contention is that section 9 of the charter of the warehouse company in effect incorporates said section 12 into such charter, but the provision of section 9 is that the corporation shall possess all the general powers and privileges, and be subject to all the liabilities conferred and imposed upon corporations organized under the act of 1848. It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation ? The officer is not the corporation. His liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation. How, then, can it be contended that a provision in a charter that the corporation thus chartered shall assume all the liabilities imposed by a general statute upon corporations carries with it a further provision of such general statute that the officers of corporations also assume, under certain conditions, the liabilities of the corporation ? Does one by becoming an officer of a corporation assume all the liabilities resting upon the corporation P Is not his liability of a distinct and independent character and dependent upon other principles ? * * * So far, then, as the decisions of the court of appeals go, they do not affirm that so much of the act of 1848 as imposes a special liability on trustees and directors was incorporated into the charter of the warehouse company by force of section 9 or otherwise; and, in the absence of any controlling decision, we are unwilling to hold that a provision of a general statute imposing a personal liability on trustees or other officers is incorporated into a special charter by a clause therein declaring that the corporation shall possess all the general powers and privileges, and be subject to all the liabilities conferred and imposed upon corporations organized under such general act. Something more specific and direct is necessary to burden an officer of the corporation with a penalty for omission of duty.”

The charter act incorporating the warehouse company contained no requirement for making reports, and no provision imposing liability of any kind upon its trustees. The entire act is furnished to the court in the supplemental brief of plaintiff. It is complete in itself, describing the corporate powers of the company, the duties of officers, liability of stockholders, etc. The section (9) which was construed contains the following words:

“ The corporation hereby created shall possess all the general powers and privileges, and be subject to all the liabilities conferred and imposed upon corporations organized under and in pursuance of an act entitled * *

The construction given to this statute by the United States Supreme Court is one based upon reason and authority. A comparison of the statute construed in that case with the one now under discussion will determine whether the cases are distinguishable.

In the case at bar the act of 1903 was a revision and consolidation of the laws then in force, providing for the incorporation of manufacturing and mercantile companies or any union of the two, and for the incorporation of companies for carrying on any other lawful business, as appears from its title. It was intended by its terms to affect and apply to all corporations theretofore organized under the nine chapters of the Compiled Laws enumerated as well as those thereafter organized under it. It repealed all inconsistent provisions contained in such chapters, and all other acts and parts of acts inconsistent with it. It preserved the lives of all such existing corporations, and provided that—

“ All such corporations from and after the taking effect of this act, shall be subject to all the provisions hereof, as fully as though such organization had been perpetual thereunder, and such organizations may continue to carry on the business specified in their articles of association under the provisions of this act as lawfully as if said acts mentioned in this section were not repealed.”

This act took effect about 90 days after the Escanaba Transportation Company was organized. An appreciation of the magnitude of interests affected by this revision and consolidation may be had from an examination of the kinds of corporations included in the nine chapters Repealed. They are all the stock breeding associations, commerce and navigation companies, land companies, warehouse companies, associations for constructing and leasing buildings, manufacturing companies, gas light companies, electric light companies, and printing, newspaper, and publishing associations. The evident intent, of the legislature in making this revision was to simplify these laws, and bring all these numerous corporations under one general statute. The purpose was a commendable one, and the operation of the statute would be for the benefit and convenience of all connected therewith and the easier supervision by the secretary of State. The provisions of the law were intended to apply to all corporations subject to it, which would include corporations organized under former acts as well as those organized under it. Section 12 indicates this intent in terms, viz. t

“Every corporation subject to this act * * * shall annually in the month of January make duplicate reports,” etc.

The legislative intent in enacting this law is clear, and a careful examination of its provisions discloses that such intent cannot be realized as to corporations organized under the chapters repealed, unless they are to be considered subject to all of its provisions.

The contention of defendant is that its requirements extended only to the body corporate and not to the officers, and that no liability was imposed upon such officers. Nearly all the statutes repealed contained provisions that the corporations should make reports annually, and imposed penalties upon officers for not performing their duties in that regard. A different obligation is imposed by this statute, sometimes less and sometimes more severe than under the repealed chapters. This is within the power of the legislature under section 1 of article 15 of the Constitution of 1850, which reads:

‘ ‘ Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All laws passed pursuant to this section may be amended, altered or repealed. * * * ”

The question, therefore, is not one of power, but of the execution of the power granted. The contention of defendant leaves this numerous body of corporations in this State without any requirement to make annual report of their financial condition. That any such intent could have actuated the legislature is beyond belief.

In Wakefield v. Fargo, 90 N. Y. 213, an act entitled, “An act to extend the operation and effect of the act passed February 17, 1848, entitled, ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,’ ” was before the court for construction. The corporation in question had been organized under this act, which provided that such corporations “shall be subject to all the provisions, duties and obligations ” of the original act. It was held that a provision of the original act making stockholders “liable for all debts that may be due and owing to their laborers, servants and apprentices for services performed for such corporation,” was made applicable to stockholders of .corporations organized under the later act. This case may be distinguished from the case of Park Bank v. Bemsen, supra, and this distinction was apparent and discussed in that case. The act was “to extend the operation and effect ” of the act of 1848. Mr. Justice Brewer, referring to this, said:

“And so it may well be that the court of appeals considered the act of 1848 as passing bodily into the act of 1863, and that all the ‘ provisions ’ (in the language of section 2) of the former became part of the latter act.”

That decision, made clearer by the Federal court in Park Bank v. Bemsen, may be cited in support of plaintiff’s contention in the case at bar. We find the statute in this case to be entirely different from the one construed in that case, and that it contains in terms provisions which the Federal court declared were essential to fix liability upon a party.

The case at bar is distinguishable from Park Bank v. Bemsen. That case was decided upon the proposition that, before any party can be held bound by a statutory provision of a penal character, it must satisfactorily appear that the legislation has rendered him subject thereto. Applying this rule to the case at bar, we can say that it satisfactorily appears that the trustees of corporations of the character of the one under discussion were rendered subject to this legislation. The weight of authority favors what is called a strict construction of statutes of a penal character. This means no more than as above stated in the paragraph condensed from Park Bank v. Bemsen. The real sense of the legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in tbeir natural and ordinary sense. Bohn v. Brown, 33 Mich. 260, 261.

Applying these rules in construing the statute of 1903, if we consider the purpose of the act as stated in the title, the requirements of section 12 relative to annual reports from “ every corporation subject to this act,” imposing a liability upon officers neglecting or refusing to comply therewith, the number and classes of corporations organized under former acts repealed by section 37 and brought subject to the act and all of its provisions by express terms and continued as though originally organized under it— we must conclude that the power admittedly granted by the Constitution to the legislature has been exercised by this legislation, and the defendant in this case has been rendered subject thereto. The court was in error in directing a verdict for defendant, and refusing to direct one for plaintiffs as requested. The facts being stipulated, no new trial is necessary.

The judgment of the circuit court is reversed, and a judgment will be entered in this court in favor of plaintiffs for the sum of $735 and interest thereon, with costs of both courts to be taxed.

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


source: Caselaw Access Project

license: Public Domain

text:
    BEATTIE v. DETROIT UNITED RAILWAY.
    1. Common Carriers — Street Railways — Alighting erom or Boarding Cars.
    A street railway company is bound to exercise the highest degree of care, or that care, which a very prudent person would have used under the circumstances, in taking on or discharging passengers.
    2. Same.
    The car must stop long enough to enable the passenger boarding or alighting from the car to reach a place of safety.

    3. Same — Negligence.
    Upon uncontradicted evidence that the plaintiff was standing with one or both feet on the lower step of a car which he was boarding, -that there was snow on the step and on the ground, which was inclined to ball up under the feet, that plaintiff had a heavy grip in his right hand and was grasping a rear hold with his left, when the conductor, knowing these facts, signaled to start the car, which moved and threw plaintiff off injuring him, warrants the instruction to the jury that the defendant was guilty of negligence per se.

    4. Evidence — Pleadings in Former Action — Judgments—ConOLUSIVENESS.
    If any error was committed on the trial in admitting in evidence pleadings from a prior action in which the declaration claimed damages for permanent injuries, and in holding that the same was conclusive upon the plaintiff, it was not prejudicial, in view of instructions permitting a recovery for such injuries on the ground that the same constituted no part of the former judgment, having been excluded therefrom by the court.
    Error to Wayne; Murfin, J.
    Submitted June 18, 1909.
    (Docket No. 88.)
    Decided September 21, 1909.

      Case by Robert Beattie against the Detroit United Railway for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      Thomas J. Mahon and J. Emmet Sullivan for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.

       As to starting!) ar before passenger is seated, see note to Louisville, etc., R. Co. v. Hale (Ky.), 42 L. R. A. 293, and note to Bennett v. Railway Co. (Ky.), 4 L. R. A. (N. S.) 558.

       As to injuries in getting on and off railroad trains, see note to Carr v. Eel River, etc., R. Co. (Cal.), 21 L. R. A. 354.

   McAlvay, J.

This is an action brought for personal injuries received by plaintiff on account of the claimed negligence of the conductor of a car of defendant which plaintiff was attempting to board as a passenger. He had stepped upon the first step of the rear platform, and taken hold of the rail with one hand, when the car was suddenly started and plaintiff thrown off. The jury found a verdict for defendant. Plaintiff urges that errors occurred during the trial on account of which the judgment against him should be reversed, and a new trial ordered.

The facts in the case are that plaintiff, a salesman of teas and coffees in Detroit, went about this business carrying a heavy grip. He was about 67 years old, 5 feet 6 inches in height, and weighed 258 pounds. In January, 1907, at the corner of Michigan avenue and Griswold street, in Detroit, he undertook to board a west-bound Baker street car which was standing still. He carried this grip in his right hand, took hold of the rail dividing the rear platform with his left hand, and stepped upon the lower step of the car. There was some snow on the [ground that day and some on the car steps. The car conductor was standing on the rear platform waiting for plaintiff to get on, and when he got in the place and position above described, as the conductor claims, standing with both feet on the step, he signaled the motorman to start the car, which was done, and thereupon plaintiff was thrown or fell from the car step. The conductor testifies that plaintiff slipped down on the step in a sitting posture, and the car went about 10 feet when he rolled off. The conductor stopped the car and went back after him, assisting him on to the car.

Plaintiff has assigned error on the refusal of the court to charge the jury as requested:

“ The testimony in this case shows that the defendant through its servant was guilty of negligence. You will therefore have to consider the question of the amount of damages only.”

But two persons testified as eyewitnesses to the accident — plaintiff and the conductor of the car. There is not any dispute in their testimony, except as to whether plaintiff was on the step with one or both feet, at the time the car started. The conductor testified that he was watching plaintiff, knew that he was incumbered with a heavy grip; that the snow was likely to ball up under his feet; that he was grasping the rail with his left hand; that plaintiff was a man past 50 or more years of age; and that a forward start of the car would likely tend to throw the boarding passenger toward the railing he was grasping. He testified further on direct examination:

“ He stepped on the step. The car started. It had a little snow on, and he slipped off.

“Q. His foot slipped ?

“A. Yes. He went in a sitting posture on the step, and the car went maybe 10 feet or so, and then he rolled off in the snow. There was snow on the ground.”

On cross-examination he said:

“Q. How far had Beattie got on the step when he fell ?

“A. He was standing on it.

“Q. Which foot did he have on ?

‘‘A. Both feet, I guess.

“Q. Which step?

“A. First step.

“Q. One nearest the ground ?

“A. Yes.

“Q. That is the step that had the snow on ?

“A. Yes.” The negligence charged is that the car was started before plaintiff had opportunity to reach a place of safety. The degree of care required to be exercised by carriers of passengers upon steam railways in securing the safety of passengers entering or alighting is “the highest care, or the care which a very prudent person would have -used under the circumstances.” This rule is also applicable to street cars.

It is the duty of the street car to stop for the purpose of taking on or letting off passengers.

“The time of stoppage must be such as to enable the passenger attempting to get on or off to reach a place of safety, either on the street, or in the car, before it is started.” 6 Cyc. pp. 611, 615, 616, and cases cited.

See, also, Selby v. Railway, 141 Mich. 112 (104 N. W. 376); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524). The carrier is liable for injuries to a passenger caused by a disregard of this duty. We find no authority to the contrary. No question of contributory negligence of plaintiff is raised in the case at bar. On the facts, which are undisputed, there is no room for such a question.

The question to be considered, then, is whether the conductor was guilty of negligence, under these circumstances, as a matter of law. We can arrive at no other conclusion. The car was stopped for the sole purpose of taking plaintiff as a passenger. It was started as soon as he got on the lower step with his large grip in one hand and the other holding the railing. No time was given for him to even get on the platform. The car was started, and he was thrown off. There is no evidence in the case tending to show that anything else caused his falling from the car. The testimony of the plaintiff and the conductor does not warrant any other conclusion.

The disputed fact as to whether one or both feet were on the lower step is of no significance. The conductor had no right to start the car as he did. Plaintiff should have been given time to get to a safe place. Mr. Booth, in his work on Railway Law, says:

“It is clearly negligent as a matter of law to start the car with a sudden jerk while the passenger is on the step.” Booth on Street Railway Law, § 348, and cases cited.

The court was in error in refusing this request. As a new trial must be had, it will be necessary to consider only those questions which are likely to arise at that time.

It was claimed on the part of defendant that plaintiff’s claim was not a bona fide one, and also that he was seeking to recover for permanent injuries. The files and records in a former case were offered in evidence to show that a recovery had been had by the plaintiff against the defendant for a street railway injury caused by defendant’s negligence, and that damages were claimed, among other things, for permanent injuries, and that the allegations in that declaration were conclusive upon him. The objection made by plaintiff was that all the allegations made in the declaration were not conclusive against him in the case at bar, and he offered to show that they were drawn by his attorney and he knew nothing of the language used. The court had admitted the files and records in the former case, and held that the evidence offered by plaintiff was inadmissible, and that he was concluded from disputing or questioning any of the allegations contained in the declaration. An examination of the charge of the court to the jury in that case disclosed that the question of damages for permanent injuries was taken from the jury on the ground that there was no proof to sustain the claim. This fact was announced to the jury in the case at bar.

Discussion of the ruling of the court in admitting the files and records of the former case is unnecessary, as it appeared that the question of permanent injuries had been taken from the jury, and it appeared clearly that plaintiff had not recovered in the former case for permanent injuries he was claiming in the case at bar. Consequently, if any error was committed by the court in admitting these files and records and denying plaintiff the right to introduce the testimony offered, it was not prejudicial. No other questions require consideration. The greater portion of them cannot recur, and the exercise of good judgment on the part of defendant’s attorneys in addressing the jury will avoid the others.

The judgment is reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    RUMSEY v. FOX.
    1. Sales — Bills and Notes — Defenses—Fraud—Rescission.
    The purchasers of a stallion who received the property and who at no time attempted to rescind the contract, cannot question its validity on the ground of fraud in an action on notes given for the purchase price.
    2. Trial — Directing Verdict — Evidence — Appeal and Error.
    Disputed testimony cannot be considered in the light most favorable to a party who asks for a directed verdict.
    3. Bills and Notes — Negotiable Instruments — Parol Evidence —Rule—Contracts—Construction .
    Under a contract for the sale of a horse which is unambiguous and provides for the giving of joint notes by the vendees, evidence that the parties construed the contract by treating the liability on the notes as several and proportionate, is inadmissible to vary the terms of the notes and contract.
    4. Same — Release—Contracts—Joint Liability — Parties.
    A writing, by which the liability of one of the parties to the joint contract is made several and limited to his proportion, does not discharge nor alter the liability of the remaining makers of a promissory note.
    Error to Ionia; Davis, J.
    Submitted June 21, 1909.
    (Docket No. 60.)
    Decided September 21, 1909.
    Assumpsit by Chauncey J. Rumsey against John P. Pox and others upon certain promissory notes. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      A. A. & H. A. Ellis, for appellant.

      B. A. Hawley, for appellees.
   Hooker, J.

The defendants are farmers who united in the purchase of a horse from J. Crouch & Son, of Indiana, who advertise to be importers, of horses. An agent of this firm came to the neighborhood in which defendants lived, and circulated a subscription paper, at the same time exhibiting the horse. The paper, which was signed by most of the defendants, was as follows:

“We, the undersigned, realizing the necessity of improving the stock of our country, do hereby agree to take the amount of stock set opposite our respective names, for the purpose of purchasing the imported German Coach Stallion Eginhart, III, No. 1983, now being sold in Pewamo, Michigan, by J. Crouch & Son, of Lafayette, Indiana, for the sum of $2,600, in shares of $200 each, and agree to give our joint notes in payment for the said stallion, due as follows: $600 due October 1, 1904, $1,000 due October 1, 1905; $1,000 due October 1, 1906, with interest at the rate of six per cent, per annum from date of the notes or cash within two days after the stock is sold.”

Subsequently a meeting of the subscribers was held, and the notes now in suit were signed and delivered, and then or at a subsequent meeting an association was formed by the defendants to conduct their business in relation to the horse in accordance with a plan proposed by Crouch & Son, or their agents, and a paper called a stock certificate was given to each subscriber, in the following form:

“ Capital stock, $2,600; No. 6, number of shares 13.

“This is to certify that Henry A. Souder is the owner of one share of $200 in the German Coach Stallion named Eginhart No. 1983.

“Dated Pewamo, county of Ionia, State of Michigan, this 29th day of June, 1903.

“ J. Crouch & Son.”

The subscription paper dropped out of sight after the giving of the notes, apparently being considered by all as a preliminary paper. The notes were sold to the plaintiff soon after they were taken, but it is not claimed that he was a bona fide purchaser without notice. The defendants received the horse and kept him for a year or more, when he was attached and sold on execution to pay a debt of the association. This action was brought upon the notes. The defendants pleaded the general issue, and a few of them gave notice of special defenses, and all claimed that the contract between the parties was several, and not joint. To maintain this it was claimed first that all of the papers — i.e., the subscription, the notes, and the certificates of stock — should be taken together, and that they justify the construction that the notes were several, binding each signer for the amount of his subscription only, and, if this were not so, the testimony given of representations that the parties signing the notes were bound only for the amount of the stock subscribed should be considered in determining the construction. There was also a claim of fraud:

(1) In regard to representations regarding the attributes of the horse.

(2) Regarding the pecuniary responsibility of the persons whom Crouch & Son would accept as subscribers. •

(3) The giving of a release (so-called) by Crouch & Son to one of the defendants, agreeing not to hold him responsible for more than the amount of his share.

The instrument reads as follows:

“Pewamo, Mich., July 31/03.

“In consideration of O. C. Bums taking one |200 share in the German Coach Stallion sold at Pewamo, Mich., we agree to only hold him responsible for his one share of $200.

[Signed] “J. Chough & Son.”

This was delivered to Burns after he signed the note. He informed his associates of the fact some five months later. Burns was the last shareholder they secured. We understand that the subscription paper was not presented to him, and that he did not sign it, also that several persons who signed the subscription were not acceptable, and were discarded either at the suggestion of one or another of the defendants or Crouch & Son. We should add that the questions of fraudulent representation were all disputed questions of fact, except as relates to the release to Burns, which rests upon his uncontradicted testimony. Each party claimed the right to an instructed verdict. The learned circuit judge said to the jury:

“Both counsel, the counsel representing both sides, agree it is for the court in this case to construe the meaning and effect of the writings that have been brought into this case. It is not within the province of the court to pass upon any oral testimony except where it is admitted or undisputed. * * *

“The question for the court to determine in this case, the principal question, is to decide whether these papers are the joint and several undertaking of the parties who have been brought in here as defendants, or whether they are simply representing the several indebtedness of each of them; they háving all signed these papers.

“ In order to determine this question, it becomes necessary to examine the different papers that are brought into the case. It seems there was a general plan or .scheme on the part of the plaintiff and also on the part of the defendant or defendants when they were bringing about the arrangement that culminated in the giving of these papers.

“ Crouch & Son — when I say plaintiff, I should have said Crouch & Son, as the plaintiff really represents them —had a horse they wanted to sell in that vicinity, and had men employed to work among the farmers for the purpose of engaging their attention and directing their attention to this particular horse, and interesting themselves in this horse as being valuable for stock purposes, and their proposition to the farmers in that vicinity was to sell this horse for $2,600 and to divide the $2,600 the value of the horse into — rather to divide the value of the horse into thirteen shares, each to be sold for $200. Some of the parties not feeling able to buy a full share, it was agreed upon and understood that they could buy one-half a share for $100 each.

“ In connection with this I find a certificate of stock was issued to some of these men, which reads:

“ ‘ Certificate of stock. This is to certify that Henry Souder (for instance) is the owner of one share of two hundred dollars in the German Coach Stallion named Eginhart No. 1983, etc.

‘“June 29, 1903.

“ ‘ J. Crouch & Son.’

“I find in addition to that a subscription list. Iam now talking about the subscription list that it is claimed on the part of the plaintiff was entered into. There is a dispute upon the proposition. The defendants claim there was no heading to the paper upon which their names were either placed by themselves or by the agent of Crouch & Son, but for the purpose of disposing of this motion the plaintiff is entitled to have it considered. The subscription list they have offered in this case reads:

“ ‘We, the undersigned, realizing the necessity of improving the stock of our country, do hereby agree to take the amount of stock set opposite our respective names for the purpose of purchasing the imported German Coach Stallion Eginhart III, No. 1983, now being sold at Pewamo, Michigan, by J. Crouch Sc Son, of Lafayette, Indiana, for the sum of $2,600 in shares of $200 each, and we agree to give our joint notes in payment for said stallion, due as follows: First note, October 1, 1904 (that I believe was changed as shown by the testimony the notes were dated a different time), with interest at the rate of six per cent, per annum.’ etc.

“In addition to that and prior to the operation of these so-called notes, and before it was put into circulation by being delivered, I find this paper:

‘“Pewamo, Michigan, July 31, 1903.

‘“In consideration of O. C. Burns taking one $200 share in the German Coach Stallion sold at Pewamo, Michigan, we agree only to hold him responsible for his one share of $200.

“ ‘ J. Crouch & Son.’

“These were the papers included in the transaction and the scheme on the part of Crouch & Son was to dispose of this horse for $2,600.» Under the undisputed testimony as claimed by the plaintiff, it was to be divided into these 13 respective shares and sold to the various farmers.

“ From this certificate it appears that the intention was on the part of Crouch & Son to give to the party that paid $200 one share or one-thirteenth part of the horse. The scheme or plan on the part of the defendants was to purchase this horse for $2,600 and become responsible for $200 as evidenced by the acceptance of the paper itself, receiving that paper and according to the undisputed testimony, and putting their names down and giving the number of shares and value.

“In addition to that, there was a bargain made in writing according to the testimony of the plaintiff, and, • according to this paper, that a joint note should be given.

“Now, in the judgment of the court, these papers, so-called notes, were not the joint and several undertaking of these defendants at the time this suit was brought. Mr. Crouch released Burns, one of the makers, and had changed the relations of all the parties, had released one from his liability if it was ever a joint note, or, if intended by the parties to be so, they had changed it voluntarily, and should find no fault if the defendants desire to continue the same relation in which he himself had voluntarily placed them.

“All of the papers taken together as a matter of law according to the findings make and constitute this as a several undertaking on the part of these various parties, and not a joint contract or undertaking or bargain. Not upon the theory the defendants are to avoid or evade the payment of what belongs to them, but that suit should have been brought against each of them, and not against all of them jointly. It must be construed these three papers are simply a bargain to pay for what they bought, and for no more, and not a promise on the part of each one to pay $2,600 and part pay just exactly what Crouch & Son certified they bought, and what they were to pay in the certificate.

“Therefore the jury will be instructed to return a verdict of no cause of action, or rather for the defendants.”

A verdict in accordance with this instruction was rendered, judgment followed, and plaintiff has appealed.

We can eliminate some of the questions discussed.

(os) The defendants cannot on this record question the validity of the contract on the ground of fraud, as they have never attempted to rescind the contract. Hodge v. Smith, 130 Wis. 326 (110 N. W. 192).

(b) We cannot consider the oral testimony of the defendants in connection with the construction, for the reasons that all of such testimony is disputed, and it would therefore be a question to be submitted to the jury. We must take the testimony of the plaintiff as true.

Coming to the question of construction, we are constrained to say that there is nothing uncertain in the language used. Upon the face of the subscription, the defendants expressly and explicitly agreed to give their joint and several obligations for the horse, and while-standing alone it was not a contract, because not signed by Crouch & Son, it was a step in the proceeding showing the preliminary understanding upon which the horse was sold. Had it been signed by both parties and the horse delivered under it, it would have created an obligation on each signer to sign a joint promissory note for the full purchase price. It admits of but one interpretation. In the present case it does not appear that it was signed by Crouch & Son, but it is one of the circumstances of the bargain which was made complete by the giving of the notes in question and the delivery of the horse. That these defendants gave their joint and several notes in payment for a horse which was then or subsequently delivered is undisputed. The notes are unambiguous and need no explanation. Such instruments cannot be altered by parol evidence. Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Seckler v. Fox, 51 Mich. 92 (16 N. W. 246); Dunham v. Provision Co., 100 Mich. 75 (58 N. W. 627); Cline v. Hubbard, 31 Mich. 237; Jones v. Phelps, 5 Mich. 218; Spence v. Bowen, 41 Mich. 149 (1 N. W. 959); Johnson v. Cranage, 45 Mich. 14 (7 N. W. 188); Baker v. Morehouse, 48 Mich. 334 (12 N. W. 170); Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665); Rough v. Breitung, 117 Mich. 48 (75 N. W. 147); Sheley v. Brooks, 114 Mich. 11 (72 N. W. 37); Bowins v. English, 138 Mich. 178 (101 N. W. 204); McEwan v. Ortman, 34 Mich. 325; Kulenkamp v. Groff, 71 Mich. 675 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283); Aultman & Taylor Co. v. Gorham, 87 Mich. 233 (49 N. W. 486); Hutchinson v. Hutchinson, 102 Mich. 635 (61 N.W. 60); Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 143); First State Sav. Bank v. Webster, 121 Mich. 149 (79 N. W. 1068); Central Sav. Bank v. O’Connor. 132 Mich. 578, 139 Mich. 82 (94 N. W. 11, 102 N. W. 280, 102 Am. St. Rep. 433).

From the foregoing authorities it seems obvious that these joint and several notes which are unambiguous on their faces are not subject to a different construction by reason of any parol evidence in the case, tending to show that the parties .did not so understand them. Furthermore, if they could be differently construed in the light of such testimony and the circumstance (which we do not intend to imply), such testimony, being contradicted, made it improper for. the court to direct a verdict for the defendants.

Counsel for the defendants has cited several cases which he claims to be authority for the proposition that on the face of this contract the notes were not joint, but several. Two of them are decisions of this court. Davis v. Belford, 70 Mich. 120 (37 N. W. 919); Western Wheel Scraper Co. v. Locklin, 100 Mich. 339 (58 N. W. 1117). Of these cases it is enough to say that in each there was a. contract signed by both parties, and suit was brought upon it. Neither of these indicated a joint liability, and in each, was found language plainly implying an understanding that the liability should be several and fully justifying; such a construction. See, also, Davis & Rankin Building & Manfg. Co. v. Murray, 102 Mich. 219 (60 N. W. 437); Byrne v. Werner, 138 Mich. 330 (101 N. W. 555, 69 L. R. A. 900, 110 Am. St. Rep. 315). The same may be said of most of the other cases cited by defendant’s counsel.

There is another question in the case. It is urged that the writing given by Crouch & Son to Burns should be treated as a release, and that for that reason the direction was right. It is enough to say of this that, if this contention is sound (which we do not decide), it did not dis~ charge the full obligation.

The judgment is reversed, and a new trial ordered.

Ostrander, Moore, Me Alva y, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
      In re SIMON’S ESTATE. APPEAL OF SIMON.
    1. Estates of Decedents — Advancements—Contracts—Release.
    . The probate court is authorized by statute to determine all questions of advancement made by a deceased to his heirs or distributees.
    2. Same.
    An heir may by contract agree not to claim a share in the estate of his ancestor, and is thereby estopped from claiming any share of the estate.
    Case made from Kent; Perkins, J..
    Submitted June 21, 1909.
    (Docket No. 69.)
    Decided September 21, 1909.
    Petition by Mathias Simon to share in the distribution of the estate of Joseph Simon, deceased. The petition was denied in the probate court, and petitioner appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by petitioner on a case made.
    Affirmed.

      Rodgers & Rodgers, for appellant.

      Lombard & Hext and Thompson & Temple, for appellee.
    On June 29, 1874, the day that Mathias Simon was 21 years old, his father, Joseph Simon, paid to him $1,000, and Mathias executed and delivered to his father a writing here set out:
    “ Byron, Kent County, Michigan, June 29th, 1874.
    “I, Mathias Simon, of Jamestown, Ottawa county and State of Michigan, do hereby acknowledge to have received of my father, Joseph Simon, of Byron, Kent county, Michigan, the sum of one thousand dollars, which sum is paid to and received by me under the following, agreement and understanding, that my father has advanced the same to me in full for my distributive share out of his estate whatever the same may be at his decease. And for and in consideration of said sum to me so paid and received as aforesaid, I hereby agree that neither myself nor my heirs will take, claim or receive anything further out of the estate of the said Joseph Simon at or after his decease. This paper shall be a receipt in full in the hands of the administrator, executor or legal representative of the estate of the said Joseph Simon after his decease, for my right share and interest as an heir of said Joseph Simon, and shall forever cut off any claim of heirship by me or my heirs forever.
    “Mathias Simon.
    “Witness, James Miller.”
    Joseph Simon died February 26, 1906, intestate, and there survived him his wife and four children, of whom Mathias was one. His real estate was valued at $8,000 and his personal estate at $15,544.39. Disbursements and commissions were $3,455.03. Mathias in the probate court asked that the value of the personal estate be increased by the sum of $1,000 “ advanced to me on, to wit, the 29th day of June, A. D. 1874, by my said father, Joseph Simon,” and that in the distribution of the estate be be given a one-fourth interest in the real and personal property, subject to the interest or share of the widow.
    “In other words, I ask that in the division and distribution of the personal estate left by the said deceased that I be given such an amount which, added to the advancement already received by me as aforesaid, will give me my full share of,said personal estate.”
    In the probate court and in the circuit court, to which an appeal was taken, it was determined that Mathias was not entitled to any share of the estate. It was found by ' the circuit court that the value of the estate of Joseph Simon at the time of his death was substantially three times its value at the date of making the said advancement. The provisions of our statute (3 Comp. Laws, §§ 9069-9074) upon the subject of advancements here set out are to be found also in the Rev. Stat. 1838, pt. 2, tit. 2, chap. 1.
    “ (9069) Sec. 6. Any estate, real or personal, that may have been given by the intestate in his lifetime, as an advancement to any child or other lineal descendant, shall be considered as a part of the estate of the intestate, so far as it regards the division and distribution thereof among his issue, and shall be taken by such child or other descendant towards his share of the estate of the intestate.
    “(9070) Sec. 7. If the amount of such advancement shall exceed the share of the heir so advanced, he shall be excluded from any further portion, in the division and distribution of the estate, but he shall not be required to refund any part of such advancement, and if the amount so received shall be less than his share, he shall be entitled to as much more as will give him his full share of the estate of the deceased.
    “ (9071) Sec. 8. If such advancement be made in real estate, the value thereof shall, for the purposes mentioned in the preceding section, be considered a part of the real estate to be divided; and if it be in personal estate, it shall be considered as part of the personal estate; and if in either case it shall exceed the share of real or of personal estate, respectively, that would have come to the heir so advanced, he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal to those of the other heirs who are in the same degree with him.
    “ (9072) Sec. 9. All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant.
    “ (9073) Sec. 10. If the value of the estate so advanced shall be expressed in the conveyance, or in the charge thereof made by the intestate, or in the acknowledgment of the party receiving it, it shall be considered as of that value, in the division and distribution of the estate; otherwise, it shall be estimated according to its value when given, as nearly as the same can be ascertained.
    “(9074) Sec. 11. If any child or other lineal descendant so advanced shall die before the intestate, leaving issue, the advancement shall be taken into consideration, in the division and distribution of the estate, and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced, in like manner as if the advancement had been made directly to them.”
   Ostrander, J.

(after stating the facts). This court has never decided, and it seems has not before had presented for decision, the precise question which is involved. It is claimed that upon the authority of First Nat. Bank of Durand v. Phillpotts, 155 Mich. 331 (119 N. W. 1), it must be held that the instrument executed by Mathias is ineffectual to bar his right to a share of the real estate. But in that case it did not appear that the alleged advancement was asserted in probate court, which court is expressly authorized (3 Comp. Laws, § 9457) to determine all questions as to advancements made or alleged to have been made by the deceased. The estate was assigned to the heirs as if no advancement had been made. The order assigning the real estate was recorded. The effect of an assignment of the real estate made in recognition of the advancement upon a levy made upon the interest of an heir before the estate was assigned is not discussed in the opinion. The legal effect of the instrument executed by one of the heirs and claimed to evidence an advancement to him in full of his share of the estate is somewhat discussed, but there is nothing said which may be considered as decisive of the point presented in the case at bar.

The property of one dying intestate goes, by operation of positive law, by distribution, or by inheritance, to certain persons in certain shares. The devolution of the property is independent of the wishes or the actions of the persons appointed by law to take it. The provisions of the statute concerning advancements are a part of the law governing the devolution of such estates. Until the death of the ancestor the heir as heir or as distributee has no interest in the estate. And it was the rule of the common law that a release by a child of an interest in the estate of his parent, if made during the life of the parent, was inoperative, because all interest in the estate was then in the parent.

I have here stated, in' substance, the grounds of the argument made in behalf of the appellant, in which it is contended that the statute furnishes the exclusive and unavoidable rule for the devolution of intestate estates, as well where advancements have been made as where they have not been made. It must be conceded there is some reason and very respectable authority to support this contention. At first blush, it seems a simple enough matter to say that the statutes of descent and distribution are framed so as to secure equality of interest of those entitled to an intestate property that the owner may, if he chooses, change the statute devolution by his will, but not otherwise, and that if he makes a gift and characterizes it as an advancement, and dies intestate, it must, by virtue of mandatory provisions of the law, and no matter upon what terms the advancement is made, be considered as a payment pro tanto of the share of the child advanced. But such a rule appears less reasonable when it is considered that advancements are not necessarily enforced according to a theory of partial or total non-devolution of the estate to the person advanced. The legislative conception of the matter seems rather to have been that they would be enforced as a present payment for that which might otherwise later belong to the heir. The estate actually belonging to the intestate at the time of his death is enlarged by -the advancement theretofore made. It is the actual estate, plus the advancement, which is regarded. And, as an advancement is considered, to have been a portion of the patrimony already distributed or assigned, the theory of administration in such cases is one of set-off and adjustment rather than one of avoidance either of the statute of descents or of distribution. To the suggestion that a considerable inequality of interest may be, in fact, the result of accepting an advancement as in full for the statute share, it may be well replied that in most cases it will be uncertain whether any advancement will not result in inequality. The ancestor, after advancing a child or children, may accumulate or may lose property. Other children may be born. The statute does not expressly forbid one to receive in advance his full share of the estate and to acknowledge it as such. If he does so receive it, it is his promise or agreement or covenant, and not the mere voluntary act of the ancestor, which creates the bar. And if it is conceded, as upon both reason and the weight of authority it must be, that in the absence of the statute provisions concerning advancements the heir may, the ancestor living, bar his right to a share in his estate, not indeed by a present release or conveyance, but by a contract or covenant not to claim the interest when, if ever, it has vested, then the statute provisions must be construed with reference to such a right.

It seems to have been the rule of the common law that, if an heir released with warranty, it barred him when the right descended. 2 Coke upon Littleton, p. 265a. To this effect are many decisions of the courts, some of which will be later referred to. No particular form of words is required to constitute such a covenant, and it is no longer important that any particular ceremony accompany or evidence the making of such a covenant. The precise question involved has been many times decided, though not always in the same way. It is unnecessary to cite the large number of authorities which have been examined. They are well collected in McCall v. Hampton, 33 L. R. A. 266, 278 (98 Ky. 166, 32 S. W. 406), note, and in Headrick v. McDowell, 65 L. R. A. 578 (102 Va. 124, 45 S. E. 804), note. The subject of advancements is treated in 1 Am. & Eng. Enc. Law (2d Ed.), p. 760, and in 14 Cyc. p. 162.

The weight of authority recognizes the right of the heir who has attained majority to accept presently in advancement his full share of the estate of the parent. Whether the arrangement is called a contract not to take, or a release to take effect in the future, the principle is the same. When the estate is cast by the death of the ancestor, it operates to estop the heir to take what he has agreed he will not claim. A leading case in which the rule is announced is Quarles v. Quarles, 4 Mass. 680. The statute in force in Massachusetts when this decision was rendered (1808) was substantially the statute, originally adopted from that State, now in force in this State. In Illinois, where a similar statute is in force, the same rule is adopted. Simpson v. Simpson, 114 Ill. 603 (4 N. E. 137, 7 N. E. 287). See, also, Jones v. Jones, 46 Iowa, 466; Trull v. Eastman, 3 Metc. (Mass.) 121 (37 Am. Dec. 126); Coffman v. Coffman, 41 W. Va. 8 (23 S. E. 523); Curtis v. Curtis, 40 Me. 24 (63 Am. Dec. 651); Power's Appeal, 63 Pa. 443; In re Lewis' Estate, 29 Ont. 609.

We are satisfied that it is the better rule, and that the court below was not in error in adopting it. Nor do we need to consider whether such an undertaking may be given effect in courts of law. It has been pointed out that probate courts, which in the settlement of estates proceed largely according to equitable theories of rights, are expressly authorized to determine all questions concerning advancements. In this case the receipt given by Mathias to his father is, as he. agreed it should be, produced on the part of the estate to estop him from asserting any right to share therein. There is no reason why the probate court should not have determined, as it did, its legal effect.

The judgment is affirmed. /

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


author: Brooke, J.

text:
    SCHNIDER v. MONTROSS.
    1. False Imprisonment — Arrest Without Warrant.
    An arrest without a warrant, on a charge of selling meat without a license, in violation of a village ordinance, is unlawful.

    3. Same.
    An officer may arrest without a warrant only in cases of felony or breaches of the peace.
    3. Same — Damages—Malice.
    Actual damages may be increased for reckless or malicious conduct of the officer making the unlawful arrest.
    4. Malicious Prosecution — Justification under Process — Probable Cause.
    No recovery can be had for a subsequent arrest under a warrant fair upon its face, where a conviction in justice’s court resulted; probable cause being established by the conviction.
    Case made from Oakland; Smith, J.
    Submitted June 22, 1909.
    (Docket No. 87.)
    Decided September 21, 1909.
    Case by C. Ralph Schnider against James Montross for false imprisonment and malicious prosecution. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on a case made.
    Reversed.

      Austin E. Richards, for appellant.

      Andrew L. Moore, for appellee.
    The plaintiff is a meat peddler in Oakland county and particularly in the village of Leonard, in said county. The defendant, upon the date of the commission of the alleged wrong to plaintiff, was the proprietor of a butcher shop in said village. On April 24, 1908, there was in force in said village Ordinance No. 26$, making it unlawful for any person to “ peddle goods, wares, and merchandise, without a license.” Upon the same day the village clerk issued to the firm of C. Ralph Schnider & Co. license No. 4, authorizing plaintiff’s firm to “sell meats and meat products from a wagon or otherwise ” from July 1, 1908, to June 30, 1909. The village adopted another ordinance (No. 30) which took effect July 13,1908, by the terms of which the license fee was raised from $15 to $50. On July 16, 1908, defendant at his own solicitation was by the village council appointed marshal, and on the morning of July 17th the plaintiff entered the village and offered his meats for sale after the marshal had ordered him to desist, under the claim that he'had a right to do so by reason of his license dated April 24, 1908. The defendant without a warrant arrested plaintiff and confined him in the village lock-up. In the afternoon of said day a complaint was made by defendant before a justice of the peace upon which a warrant was issued and the plaintiff was arraigned thereon, charged with violation of Ordinance No. 30. He pleaded “not guilty,”an adjournment was taken for six days, and he was taken by defendant to the county jail at Pontiac, where he remained until the following morning. Plaintiff was convicted before the justice of the peace, and upon appeal to the circuit court was discharged. Thereupon he brought suit against defendant for false imprisonment and malicious prosecution in the circuit court for Oakland county, upon the trial of which a verdict was directed in favor of defendant.

       As to liability of officer for making arrest without warrant, see note to Leger v. Warren (Ohio), 51 L. R. A. 193.

   Brooke, J.

{after stating the facts). The first question presented is whether or not the original arrest, without a warrant, was justified. This must be answered in the negative. It is elementary that an officer may arrest without a warrant only in cases of felony or breaches of the peace. Tillman v. Beard, 121 Mich. 475 (80 N. W. 248, 46 L. R. A. 215), and cases there cited. The defendant is therefore clearly liable to plaintiff for all actual damages flowing from the original arrest, to be computed by the jury under proper instructions from the court. Those damages may be increased if defendant acted recklessly or wantonly or with a malicious desire to injure plaintiff.

Is defendant liable for the consequences of the second arrest (under the warrant), the plaintiff having been convicted before the justice of the peace and acquitted upon appeal ? No action for false imprisonment can be based upon an arrest under a warrant fair upon its face. The plaintiff cannot recover under his count for malicious prosecution because of his conviction before the justice of the peace, that conviction furnishing conclusive proof of probable cause unless procured by false or fraudulent testimony or other unlawful means. The record discloses no facts which would take this case out of the operation of the rule. Thick v. Washer, 137 Mich. 155 (100 N. W. 394), and cases there cited. The plaintiff’s recovery must therefore be limited to the damages flowing from the original arrest.

The judgment is reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and Me Alva y, JJ., concurred.


author: Moore, J.

text:
    HACKETT v. McILWAIN.
    Estates oe Decedents — Attorney and Client — Persons Interested in Estate — Proceeds of Judgment for Negligence.
    No recovery can be allowed in equity to the estate of a deceased person from an attorney who prosecuted an action in behalf of the widow of deceased, in the name of the administrator, for negligence causing death, under an agreement with her for a contingent fee, where the attorney had compromised the cause of action and paid to the widow her share as agreed; it appearing that the widow alone was pecuniarily affected by the death, and the administrator consented to the arrangement.
    Appeal from Wayne; Hosmer, J.
    Submitted June 21, 1909.
    (Docket No. 19.)
    Decided September 21, 1909.
    Bill by Percy Hackett, administrator of tbe estate of Ralph Hackett, deceased, against John .B. Mcllwain for an accounting. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      James Swan, for complainant.

      Frank T. Wolcott (William T. Mitchell and Alex. J. Gf-roesbecle, of counsel), for defendant.
   Moore, J.

The bill of complaint was filed in this case August 29, 1907. In it is recited the appointment of the complainant as administrator in May, 1898, of the estate of Ralph Hackett, deceased. It contains the following averments:

“Second, That part of the assets of said estate was a claim for damages arising out of the death of the said Ralph Hackett, against the Wilson Transit Company.

Third. That complainant employed the defendant herein, John B. Mcllwain, as his attorney for the purpose of prosecuting a suit against the said Wilson Transit Company under the arrangement whereby the said Mcllwain was to receive 50 per cent, of whatever was collected in said suit if suit was necessary, and 40 per cent, if the matter was settled before a trial.”

It further avers a commencement of suit, a settlement thereof, an entry of judgment, its satisfaction by defendant, and his refusal to account therefor. The important parts of the prayer are :

“ That this court require an accounting to be made by him (defendant) of the moneys collected by him in said cause and wilfully appropriated to his own use.

“Thatthe court decree how much of the moneys so collected by the defendant in said cause shall be properly payable to him as administrator of said estate, and that he be decreed by this court to pay the same.”

The bill of complaint contains no averment as to who constituted the family of Ralph Hackett at the time of his death, or to whom or in what proportions the money obtained by the defendant should be distributed.

The defendant filed an answer, in which he denied that a part of the assets of the estate of Ralph Hackett was a claim for damages growing out of his death, and averred that the only person pecuniarily interested in his death and entitled to claim damages on account of his death was his widow. The answer contains the following:

“ (3) Defendant denies that complainant employed him as his attorney for the purpose of prosecuting a suit against the Wilson Transit Company, as set forth in paragraph 3, and says he never saw the said Percy Hackett, complainant, and was never employed by him, except as hereinafter set forth. The defendant says: That he was employed to .prosecute said suit by the widow of Ralph Hackett, who was the only person pecuniarily damaged by his death. That the estate of Ralph Hackett, deceased, had been subsequently closed, and whatever property he had had been divided under the statute. That the widow desired to bring a suit against the Wilson Transit Company for her benefit for damages arising out of the negligence of the said Wilson Transit Company and its servants, resulting in a collision between the boat of .which the said Ralph Hackett was master, and one of the boats of the Wilson Transit Company in the St. Clair Flats Canal, causing the death of the said Ralph Hackett, and also of the lookout. That the wheels-man on the boat Torrent, being the boat on which Ralph Hackett was master, had disappeared to parts unknown, and the claim for damages against the Wilson Transit Company could not be proven without the testimony of the widow of Ralph Hackett, who was on board at the time. That considerable friction arose between the widow of Ralph Hackett and his next of kin, including complainant, arising out of the settlement of his estate, and the said widow refused to have anything.to do with the prosecution of said case against the said Wilson Transit Company in case any o£ the next of kin were in any manner connected with it. That this defendant advised the widow that it would be necessary to bring a suit in the name of the administrator of the estate to recover for her, and this defendant was advised by her that the administrator, Percy Hackett, complainant, after closing up the matters of the estate, had offered to resign and let her be appointed for the purpose of prosecuting her suit against the Wilson Transit Company, in order that she might fully control the same. This defendant advised her that he could fully control said case, and that he would guarantee her that, while he would bave to bring the suit in the name of the administrator, he would make all settlements directly with her, as said suit was prosecuted solely for her interests, and with that understanding the widow employed this defendant to prosecute said suit under an arrangement by which defendant would advance all moneys necessary in the prosecution of said suit, and in case of recovery the expenses were to be deducted and the balance to be divided equally between this defendant and the said widow. That this defendant advanced money — all the money in the prosecution of said suit, and neither the complainant nor any other person contributed a cent to the expense thereof. It further avers that defendant then had a talk with the attorney for said estate, who approved of the arrangement, and agreed that no proceedings should be taken to discharge the administrator and close the estate until such time as the said suit could be tried and determined.”

The answer sets out in detail defendant’s version of the litigation and settlement, and avers that the attorney of the estate was advised of what was done. It also avers a payment of all the expenses and costs of the litigation and settlement with the widow and a payment to her of her full share of the judgment. After issue was joined, the case was tried, and a decree entered in favor of complainant for $1,250 and interest. The case is brought here by appeal.

There is some conflict in the testimony given by the attorney for the estate and the testimony of Mr. Mcllwain, which can be largely accounted for because of the lapse of time. There are certain things, however, that are clearly established:

First, that Ralph Hackett left a widow and left no children, and it is not established in the record that at the time of his death anyone was dependent upon him except his widow.

Second, that another man was hurt at the time of his death, for which suit was successfully prosecuted by Mr. McIlwain.

Third, that Mr. McIlwain made a written contract with the widow for the prosecution of the suit prior to July, 1899.

Fourth, that Mr. McIlwain consulted with the attorney for the estate before the suit was brought, and received from him a letter, as follows:

“Detroit, Mich., July 13, ’99.

“Mr. McIlwain, Atty.,

“Port Huron, Mich.

* ‘Dear Sir: I today received a letter from Mr. Hackett, the administrator, in which he informs me that he has had a conference with the other members of his family, and in which they permit me to make the arrangements with you on the lines laid down at our conference. They expressly provide that they will not have to lay out any money in the matter and will not assume any risk or any liability for costs in case the matter is lost.

‘‘ Yours respectfully.”

Fifth, that after the case was settled Mr. McIlwain paid all of the expenses of the litigation, and paid the balance over to the widow, as he had agreed. Notwithstanding the conflict in the testimony, we think the defendant has established his version of the transaction, and that the complainant has not shown a case calling for the intervention of a court of equity.

The decree of the court is reversed, and the bill of complaint is dismissed, with costs.

Ostrander, Hooker, McAlvat, and Brooke, JJ., concurred.


text:
    SHEFFER v. FLEISCHER.
    1. Trial — Directing Verdict — Evidence.
    A motion to direct a verdict in favor of the plaintiff must be determined on the basis of the testimony most favorable to the defendant.
    2. Bills and Notes — Execution—Delivery.
    Notes signed and left where the payee might take them, are not valid in the hands of a holder in due course unless there was a delivery. Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497).

    Error to Charlevoix; Mayne, J.
    Submitted June 23, 1909.
    (Docket No. 99.)
    Decided September 21, 1909.
    Assumpsit by Allen Roswell Sheffer against A. B. Fleischer upon certain promissory notes. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      J. M. Harris, for appellant.

      Lisle Shanahan (Halstead & Halstead, of counsel), for appellee.

       The notes in question were dated November 4, 1901, and therefore are not governed by the Negotiable Instruments Law (Act No. 265, Pub. Acts 1905). — Reporter.

   Hooker, J.

The undisputed evidence shows that six notes, bearing the genuine signatures of the defendant as maker, in suit in this case, came to the hands of the plaintiff as a bona fide purchaser, for value. The defense made is that the notes made were not delivered to the payee or any other persqn. The jury found a verdict for the defendant, and the plaintiff has appealed.

The transaction is in dispute, and, as plaintiff has appealed upon the ground that the circuit judge should have directed a verdict in his favor, we must dispose of the question upon that version of the testimony most favorable to the defendant. It is, in substance, that one Hirschberg came into his store and attempted to sell him some optical. goods, representing the LeMaire Optical Company, of which he testified that he was treasurer and authorized to negotiate and indorse promissory notes owned by it. They practically agreed orally upon an arrangement, which Hirschberg had or was to put in the form of a contract, but which was not signed by defendant. The defendant was to order certain goods; but defendant says that he had not signed the order. He had signed the notes, however, and they lay on the showcase or counter, and Hirschberg was to make a copy of the order for the defendant. The defendant was called away to wait on a customer, whereupon, in his absence, Hirschberg took possession of all of the papers and left the store. Thereupon defendant immediately wrote the payee repudiating the transaction, and later refused to receive the goods.

The only question in the case is whether a verdict should have been directed for the plaintiff. The learned circuit judge left but one question to the jury, viz., whether there had been a delivery of the notes, and obviously the jurors found that there was not. Plaintiff’s contention here is that, by leaving his signed notes on the counter, he placed it in the power of Hirschberg to purloin and negotiate them. We think the case within the rule laid down in Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Cressinger v. Dessenburg, 42 Mich. 583 (4 N. W. 269); Laprad v. Sherwood, 79 Mich. 525 (44 N. W. 943); Portsmouth Sav. Bank v. Village of Ashley, 91 Mich. 681 (52 N. W. 74, 30 Am. St. Rep. 511).

The judgment is affirmed.

Ostrander, Moore, McAlvat, and Brooke, JJ., concurred.


text:
    PULPWOOD CO. v. PERRY.
    Contracts — Construction—Performance—Modifications.
    The plaintiff and defendant entered into a contract for the purchase and sale of pulpwood at a fixed price. The defendant agreed to furnish 40,000 cords of pulpwood and was to receive an advance of 83 a cord when it was cut and piled. Upon a default in the performance of his contract by the defendant, a modification was made affecting the price and time of performance as fixed by the contract, and providing that unless the defendant should perform the modified agreement the contract should remain in force unmodified by the terms of the supplemental agreement. Sureties were provided for in the original contract and were not consulted about the changed provisions. In an action to recover damages for a breach of the contract and to recover advances made, held, that the defendant, having failed to perform the modified contract by delivering the specified quantities of pulpwood, was bound by the original agreement and by the price fixed therein.
    Error to Chippewa; Steere, J.
    Submitted June 24, 1909.
    (Docket No. 75.)

    Decided September 21, 1909.
    Assumpsit by the Pulpwood Company against Frank Perry on a contract for the sale and delivery of certain wood. A judgment for plaintiff on a verdict directed by the court for less than the amount claimed is reviewed by plaintiff on writ of error.
    Reversed, and judgment entered for the amount claimed.

      Sharpe & Handy (Moses Hooper, of counsel), for appellant.

      Warner & Sullivan (Shaw, Warren, Cady & Oakes, of counsel), for appellee.
   Moore, J.

On September 25, 1903, plaintiff and defendant entered into a contract whereby defendant was to deliver 40,000 cords of pulpwood to plaintiff between the first day of April and the first day of November in each year, for the years 1904, 1905, 1906, 1907, and 1908. The Pulpwood Company was to pay therefor $9 per cord, delivered on board cars at the mills of the Pulpwood Company. The Pulpwood Company was to advance $3 per cord on this pulpwood when it was cut and piled. For the fulfillment of this contract Perry executed a bond to the Pulpwood Company in the sum of $350,000 with sureties. On April 11, 1904, the contract was modified with the assent of the sureties. In December, 1905, the contract was again modified with the assent of the sureties. On April 39, 1907, the contract was again modified. Mr. Perry failed to carry out this contract.

This action was brought to recover from Mr. Perry money advanced to him, and for damages for failure to deliver the pulpwood according to the contract. Defendant gave notice of set-off and recoupment, and claimed damages on account of an alleged violation of the contract by the Pulpwood Company. Before the trial of said cause a stipulation was signed by the parties to this suit, in which it was agreed that the following were the undisputed facts:

“(1) Plaintiff and defendant executed and delivered, each to the other, the written agreements set out in the declaration.

“ (3) Prior to April 39, 1907, defendant had failed to deliver pulpwood according to the terms of the contracts, and plaintiff had purchased approximately five thousand cords of pulpwood along the line of Duluth, South Shore & Atlantic Railway, between the headwaters of the Taquamenah river and Sault Ste. Marie, Mich., which defendant claimed to be within the territory reserved to him under the provisions of the eighth paragraph of the contract of September 35, 1903.

“(3) After April 39, 1907, the defendant delivered to plaintiff about twenty-one thousand (31,000) cords of pulpwood, and no more.

(4) After April 39, 1907, plaintiff credited defendant upon its books, and issued to defendant credit statements for all pulpwood delivered, as fast as delivered, at the price of $9.50 per cord, with place of delivery at Long Tail Point, as provided in the contract of April 29, 1907.

“ (5) Plaintiff is entitled to judgment herein upon consideration of all the claims put in issue by the pleadings herein, as follows:

(a) In any event, in the sum. of $120,265.54.

“(6) If defendant is entitled to credit for pulpwood delivered after April 29, 1907, according to the original contract only, and not according to the contract of April 29, 1907, then in the sum of $151,147.

“Dated March 1, A. D. 1909.”

Upon filing this stipulation both parties rested, and the court directed a verdict in favor of the plaintiff in the sum of $120,265.54.

The only question is whether the court should have directed a verdict in favor of the plaintiff in the sum of $151,147. The answer to this question will depend upon the construction to be given to the contract as modified April 29, 1907. It does not appear that the sureties were consulted as to this modification. At the time it was made Mr. Perry had not fully performed the agreement in the existing contract. Advances had been made to him in large amounts. The new contract gave him additional time in which to perform his contract. It modified in his favor the lengths of the pulpwood. It increased the price $1.40 a cord. It concluded as follows:

“Otherwise than above specified, said contract shall stand and be in full force and said Perry and his sureties shall be liable for all damages, on account of nonfulfillment of said contract, unless the conditions of said contract, as herein modified, are fulfilled. But if said contract, >as herein modified, shall be fulfilled, such fulfillment «hall be accepted as full performance and discharge of said original contract.”

It is the contention of plaintiff that this made the contract a conditional one, in that it allows Mr. Perry the bonus of $1.40 per cord only on condition that he delivers the full amount of pulpwood under the contract; that if the defendant is entitled to recover the additional amount of $1.40 per cord, whether he delivers the full amount specified in the contract or not, then there can be no purpose in inserting this paragraph.

It is the contention of defendant—

‘ ‘ That the necessary inference is that the modification does not displace the original, in the one particular of the liability for damages, except upon performance; that the intent of the sentence was to save the right to damages in the event of failure, and it should be construed as though there were added to it:

“ ‘ And said Perry and his sureties shall thereby be released from any liability for damages for nonfulfillment of said original contract. ’

“ Such a construction does no violence to the language, is grammatical, in harmony with the previous extensions of the contract, which in every instance have been carefully drawn so as not to release the sureties, and does not work a forfeiture. In addition to all this it is according to the practical construction placed upon it by the parties themselves.”

It is further claimed — ■

“That the contract in question is divisible; that there has been partial performance by defendant, accompanied by payment on the basis of $10.40 per cord for 21,000 cords of pulpwood; that the payment was voluntary; that the defendant has relied upon such payment, and plaintiff is estopped from attempting to recover the amount in dispute.”

There is no doubt the modified contract was based upon sufficient consideration. See Blodgett v. Foster, 120 Mich. 392 (79 N. W. 625), and the cases there cited. If it had been -fully performed, the parties thereto would have been bound by its terms. It has not, however, been performed. It was stated on the argument, and apparently conceded, that Mr. Perry has abandoned the contract with a large part of its agreements unfulfilled. Is he entitled to have the modified agreement, though unperformed by him, so construed as to entitle him to receive $1.40 a cord more for the wood delivered by him after the modified contract was made than he would have received under the original contract? The modified contract states:

“ Now, therefore, in consideration of the premises and at the request of the said Perry, and in consideration of one dollar paid by said Perry to said Pulpwood Company, said original contract is hereby further modified in respect to time of delivery, price to be paid and point of final scale, as follows.”

An examination of the original contracts will show that each of these modifications made it easier and more profitable for Mr. Perry than did the terms of the existing contracts. If the last paragraph of the modified contract is to be construed as relating simply to the release of Mr. Perry and his sureties from any liability for damages for nonfulfillment of the original contract, it would seem to be a very unbusinesslike contract. It is evident the plaintiff wanted pulpwood, and was anxious to have Mr. Perry furnish the amount he had agreed to furnish, and was willing to give him additional time and an increased price if he would do so. We think it equally clear from the language of the modified contract that it was not expected by either of the parties that Mr. Perry should have the increased price unless he substantially performed the modified agreement.

The judgment is reversed, and one may be entered here for the amount stated in the filed stipulation, with legal interest added.

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


text:
    FOLSOM v. STATE VETERINARY BOARD.
    Physicians and Surgeons — Veterinary Board — Registration —Requirements.
    The requirements of Act No. 244, Pub. Acts 1907, that an applicant for registration as a veterinarian shall be a graduate of a State institution having a curriculum of at least three sessions of six months each, is not met by an applicant who obtained a diploma in a State institution which had adopted such a curriculum, the applicant having taken a two years’ course with equivalent studies.
    Mandamus by Edward G. Folsom, Jr., to compel the State veterinary board to register relator under the provisions of Act No. 244, Pub. Acts 1907.
    Submitted July 6, 1909.
    (Calendar No. 23,449.)
    Writ denied September 21, 1909.

      Silas B. Spier, for relator.

      John E. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   McAlvay, J.

Relator asks for a writ of mandamus to compel respondent board to register him as a veterinary surgeon in this State, and that they issue to him a proper certifícate of such registration, according to law. There seems to be no dispute as to the facts presented in the case. The question before us is one of construction of the statute under which relator claims he is entitled to registration. He is a citizen of Michigan over the age of 21 years, and has presented to the board a diploma issued direct to him by the “Ontario Veterinary College, Ltd.,” dated April 4, 1908. By certain exhibits attached to his petition it appears that this college, in October, 1907, “adopted a course of three sessions of six months each,” and that “said college required personal attendance of its pupils.” It also appears that relator’s diploma was issued to him after such requirements went into effect.

The relator urges that this showing entitles him to registration under section 5, Act No. 244, Pub. Acts 1907, which provides:

“No person shall be registered by the State veterinary board as a veterinarian or veterinary surgeon, until he shall have furnished satisfactory proof of his identity, and that he is the lawful and regular possessor of a diploma from a regular veterinary college or veterinary department of a State institution of learning or college of medicine having a curriculum of at least three sessions of six months each, * * * and that said diploma was issued * * * direct to him. * * * ”

Respondent board answers—

“ That relator did not attend or complete a course of three sessions of six months each, * * * and that this relator only attended and completed the two years’ course. ”

Relator does not dispute the truth of these statements, and makes no showing by his petition that he personally attended and completed a course of three years. He relies entirely upon the fact that, at the time his diploma was granted to him by this college, its curriculum of three sessions of six months each had been adopted and was in force. In his brief he says that,—

“Because of said enactment in Michigan, said college in October, 1907, changed its curriculum so that its college course was of three sessions of six months each. The same studies were required in the two years’ course as were required in the three years’ course.”

The legislative intent in raising the requirements for registration was obviously for the purpose of raising the standard of proficiency of those who should enter upon practice as veterinarians or veterinary surgeons. Our construction of the statute is that it requires of the applicant personal attendance at a reputable institution, and the completion of a course of three sessions of six months each. The action of this institution in declaring the courses of study and sessions required is not controlling in this case. Respondent board under this statute must find that an applicant is qualified for registration according to its requirements. Relator’s construction of this law would nullify the express intent of the legislature to raise the standard of eligibility for registration. The action of respondent board upon the application presented was justified, and is approved by this court.

The writ is denied.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Hooker, J. Brooke, J.

text:
    BONNEVILLE v. CITY OF ALPENA.
    Municipal Corporations — Highways and Streets — Excavations — Lights and Barriers — Negligence.
    Under charter provisions of the city of Alpena placing the construction of sewers and drains under the superintendence of the street commissioner, the city is liable for the negligence of a plumber, who, in constructing, with the permission of the street commissioner, a sewer connection to a residence, left the trench in the street unlighted, so that plaintiff drove into the excavation and was injured.
    Error to Alpena; Emerick, J.
    Submitted January 19, 1909.
    (Docket No. 120.)
    Decided October 4, 1909.
    Case by Antoine E. Bonneville against the city of Alpena for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      O'Brien & Francis, for appellant.

      Joseph Cavanagh (Henry K. Gustin, of counsel), for appellee.
   Hooker, J.

Chisholm is a paved street in the city of Alpena. Bertrand, the owner of a house on the east side of said street, being desirous of connecting the same with the sewer, which was near the curb on the opposite side of the street, employed a plumber to do the work. To do this, Maynard, the plumber, employed men and opened a ditch part way across the street, having first obtained permission to do so from the street commissioner, whom he notified of his intention a day or so before he began work. The trench was left open by Maynard’s men without placing lights to indicate danger. Early in the evening one Collins while riding a bicycle ran into the trench. He immediately went to the police station, and notified an officer, who said he would look after it, which he did, placing lights there, but in the interim the plaintiff drove into the trench, and was injured. The court directed a verdict for the defendant for the reason that there was no failure to place danger signals as soon as its officers had notice that the trench was open.

We held in Monje v. City of Grand Rapids, 122 Mich. 646 (81 N. W. 574), under charter provisions not differing materially from the charter of Alpena, that the responsibility for sewer and sewer connections rested upon the city, and that it could not escape liability for an accident caused by an unprotected trench for a sewer connection under the excuse that it was not liable for the negligence of a licensed plumber. Sewer connections are parts of the sewer.

The case of sidewalk construction differs under the charter of West Bay City, Act No. 442, Local Acts 1897, giving authority to the city not to itself build sidewalks (except in certain contingencies) but to require the owners of adjacent property “to build, rebuild, and maintain them.” See Thompson v. City of West Bay City, 137 Mich. 94 (100 N. W. 280); Wright v. City of Muskegon, 140 Mich. 215 (108 N. W. 558).

The judgment should be reversed.

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

Brooke, J.

{dissenting). On September 30, 1907, the plaintiff, a physician, in the city of Alpena, at about the hour of 7:30 p. m., was driving at an ordinary gait along Chisholm street, one of the principal paved streets of the defendant municipality. One Bertrand was the owner of premises on the easterly side of Chisholm street. He desired to connect his premises with the sewer in Chisholm street, which lies under the westerly edge of the pavement. For this purpose he employed one Maynard, a plumber. A few days before the happening of the accident Maynard applied to William Stout, defendant’s street commissioner, for permission to put in the sewer, which was given, but Stout was not advised by Maynard when he was going to put it in. The trench was dug on the morning of September 30th about half way across the street. It was about five feet deep and two feet wide. The blocks from the surface of the pavement were piled as a barrier about three feet high at the side of the trench. William McDonald, defendant’s sidewalk and paving inspector, was present, and instructed Maynard how to take up the blocks in the morning. It is probable he was likewise there in the afternoon. Maynard, after the trench was dug part way across the street, went away, leaving the men working in the ditch. When evening came, the trench, partially unfilled, was left unprotected except by the barricade. No lights were exposed. About 7 o’clock one Collins, who was proceeding along the street on his bicycle, ran into the barricade, and fell partly into the ditch.. As soon as he got out, he went immediately to the police station and notified Dan Stout, a policeman, of the condition of the ditch, who stated that he would look after it, which he did. In the meantime, however, and before the lights were placed upon the barrier, the plaintiff drove into the ditch and was injured. At the conclusion of the plaintiff’s case the defendant moved for the direction of a verdict, which motion was granted by the learned circuit judge.

It is the plaintiff’s claim that this case is ruled by Hayes v. West Bay City, 91 Mich. 418 (51 N. W. 1067), and Monje v. City of Grand Rapids, 122 Mich. 646 (81 N. W. 574). The defendant claims it is ruled by Thompson v. West Bay City, 137 Mich. 94 (100 N. W. 280), and Wright v. City of Muskegon, 140 Mich. 215 (108 N. W. 558). We think that the contention of the defendant is correct.

In Thompson v. West Bay City, supra, this court said:

We go as far as we are justified, and farther than defendant would concede, in saying that the evidence proves that defendant knew that the walk was being constructed. We could not say that it proves that defendant knew that the walk was guarded by unsafe barriers. - It cannot be held as a matter of law that this evidence justifies a court in directing a verdict for the plaintiff without assenting to the proposition that due diligence on the part of the municipality requires it, after knowledge that a walk is being constructed, to itself guard said walk by proper barriers. This proposition is equivalent to declaring that it is negligence for the municipality in such a case to assume that the person building a walk will perform the duty which requires him to properly guard it.”

In Monje v. City of Grand Rapids, supra, the liability of the municipality was predicated upon the fact that—

The city has the responsibility of constructing sewers and their connections, under the charter, whether it be done by its own employés or by persons licensed to dig up its streets.”

An examination of the charter of the city of Alpena discloses the following provision:

The street commissioner shall under the direction of the common council superintend the making, grading, * * * of all streets, * * * drains, and sewers within the limits of the city, in such manner as he may from time to time be required. * * * ” Act No. 249, Laws 1871, § 53.

It will be noted that the foregoing charter provision is silent as to sewer connections, and, in the absence of a positive statutory duty, we are unable to say that the municipality should respond in damages for the default of a private contractor when he is engaged in constructing for a private citizen a sewer connection, and escape such liability when the like default is made by a private contractor in the construction of a sidewalk. The most that can be said in the case at bar is that the defendant through its officers knew that the sewer connection was being constructed. We do not think that because McDonald, the sidewalk and paving inspector, was present, and instructed Maynard how to take the blocks out, it can be said that he was supervising the work in such a manner as to bring this case withiii the rule laid down in Hayes v. West Bay City, supra.

The judgment should be affirmed.