text:
    BARBER ASPHALT PAVING CO. v. VILLAGE OF HIGHLAND PARK.
    1. Municipal Corporations —Bonds —Actions —Defenses —Estoppel.
    In mandamus proceedings by a contractor against a municipal corporation to compel the payment of a bond, respondent is not estopped to show that said bond was issued in reliance upon the promise of the contractor to thereafter complete the work in accordance with the contract, and that it had not done so.
    2. Mandamus — Propriety of Remedy.
    Mandamus is not a proper remedy for the collection of the amount of a bond; there being an adequate remedy at law in which defendant can properly make its defense.
    Certiorari to Wayne; Mandell, J.
    Submitted March 16, 1909.
    (Calendar No. 23,152.)
    Decided March 30, 1909.
    Mandamus by the Barber Asphalt Paving Company to compel the village and common council of Highland Park to issue a warrant for the payment of a bond. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      John J. Speed, for relator.

      Robert JBJ. Barber, for respondents.
   Blair, C. J.

This matter comes before us upon certiorari to review the order of the circuit court denying appellant’s petition for a writ of mandamus to compel payment of a paving bond issued by respondents. On August 1, 1899, a contract was entered into by the Barber Asphalt Paving Company, petitioner, and the village of Highland Park, respondent, for the grading and paving of a portion of Woodward avenue in the village of Highland Park, known as district No. 15. The contract provided that all of the work should “be done and performed to the satisfaction of the said village engineer,” and, further, that the payment of the balance of the contract price should be made “ when the said second party shall have completed all the said work to the satisfaction of the said village engineer, and when the said work shall have been accepted by the said first party,- and when the said second party shall have performed all the covenants of this contract by it to be performed to the satisfaction of the said village engineer. ”

Mr. Ashwell, the village engineer, testified:

“ In view of the fact that the Barber Asphalt Paving Company had been dilatory in getting its work started— for, although the contract was let on August 1, 1899, it was not until September 25th following that the first load of binder asphalt was delivered — it was considered about the middle of November that hard weather might set in at any time and would prevent the making of the roadway passable for some months, and that to take the men away from the roadmaking in order to remedy defects would jeopardize the completion of the roadway, and at an interview between Mr. Wright, representing the Barber Asphalt Paving Company, Dr. George R. Andrews and myself, as representing the trustees of the village of Highland Park, held on the work about the middle of November, and at which interview Mr. Wright, representing the Barber Asphalt Paving Company, acknowledged that the work was not done in accordance with the contract, and that there were serious defects in the work already laid, and put forward the statement as to what effect the delay in taking the men off the roadmaking proper might have, it was therefore agreed that, if the company would press forward this work so that the roadway should be completed (without any pretense that it was completed according to the contract and with a full knowledge and understanding that defects existed in the pavement and curb and gutter and that the work was not to be accepted until these defects were remedied the following spring), they, the Barber Asphalt Paving Company, should get their money without acceptance of the work.”

In his report to the village trustees of November 20, 1899, the following appears:

“ Several defects exist in the asphalt pavement already laid as well as in the curb and gutter. In the latter they are caused mostly by the roller when finishing the asphalt. In consequence of the lateness of the season, it has been agreed that the remedying of defects, except in case of danger, should be left till spring. The subsidence caused by the sewer connections will then have shown themselves.”

On January 2, 1900, the engineer reported as follows:

“Pinal Certificate, Special Assessment District
No.. 15.
“I have to certify that the Barber Asphalt Company, as contractors for grading and paving Woodward avenue, special assessment district No. 15, are entitled to a final certificate amounting to seventy-nine thousand three hundred and eighty-seven and 67 /100 ($79,387.67) dollars. From this must be deducted amounts already paid.”

February 26, 1900, a warrant for $1,286.79 was ordered in favor of petitioner and a time warrant for $5,000 due in four months at 6 per cent, interest. These warrants were for balance due on the contract. July 5, 1900, it was ordered that time warrant for $5,000 be extended four months at 6 per cent, interest, and a warrant for $104.62 ordered for interest on warrant dated March 1st issued under order of February 26th. October 30, 1900, warrant for $5,000 was ordered renewed for four months at 6 per cent, and a warrant for interest ordered. February 26, 1901, warrant for $5,000 ordered renewed for four months and warrant for interest. July 9, 1901, warrant for $300 to apply on warrant for $5,000, also warrant for interest and a new warrant for $4,700 to take up warrant for $5,000. November 19, 1901, warrant for $200 to apply on warrant for $4,700 ordered, and warrant for $96.35 for interest, also that a bond be issued payable to the Barber Asphalt Paving Company for $4,500, with interest annually, payable at 5 per cent, from date of bond, this bond to be given in retirement of warrant No. 87, and clerk and president be ordered to execute said bond. November 21, 1902, interest warrant for annual interest on bond. November 16, 1903, warrant for interest on bond ordered. Thereafter each six months interest was paid on the bond until petitioner’s petition was filed. The bond recites that it is issued under a resolution adopted November 19, 1901, and acknowledges the indebtedness of the village to the holder in the sum of $4,500, and is made payable out of special assessment district No. 15 fund. It states:

“The [this] bond is issued for the object of paying balance due the Barber Asphalt Paving Company for construction of pavement in special assessment district No. 15 and is payable out of special assessment district No. 15 fund.”

After the adoption of the resolution ordering the bond, a controversy arose as to the form of the bond to be given, and petitioner filed a petition for mandamus against the president and clerk, who had been ordered to execute it. This petition set forth the contract of August 1, 1899, and that the work had been completed. The defense of the petition was assumed by the village, and in the answer the allegation of the petition as to the performance of the work was admitted to be true. The contract of August, 1899, provided that the contractor “shall keep and maintain the said pavement in good condition and repair for five years from the date of the acceptance of the said pavement by the village council, and that all repairs necessary shall be made within a reasonable time after notice being given to it by said council.” The circuit judge found that the work was not performed in accordance with the contract; that it was not accepted by the village; that the warrants and bond were issued in reliance upon the agreement to put the pavement in the condition required by the contract, and were not conclusive proof of the acceptance of the work. He also held that the defendants were not estopped to question the plaintiff’s right to recover on the bond, were entitled to a trial of the questions involved, and that mandamus was not the proper remedy.

We fully concur in the conclusions reached by the circuit judge. The preponderance of the evidence is strongly in favor of the defendants’ position that the final warrant was given substantially as an advance payment in reliance upon plaintiff’s promise to complete the pavement in the spring in compliance with the contract. The testimony of the then village engineer, supported by numerous reputable witnesses and the records of the common council, show this clearly, and also demonstrate that from the time of making the agreement till after the giving of the bond the village authorities were importuning the plaintiff to make good its agreement. In the light of such facts, it could not reasonably be held that defendants were estopped to present their defense or had waived any of their rights. The facts of this case do not bring it within the principle of Schliess v. City of Grand Rapids, 181 Mich. 52, but, so far as the doctrine of estoppel is concerned, it is ruled by Field v. Village of Highland Park, 141 Mich. 69. See, also, Van Atkin v. Dunn, 117 Mich. 421. We see no reason why, under the circumstances of this case, the plaintiff may not bring its action upon the bond where defendants may properly make their defense. Even if mandamus were the plaintiff’s only remedy, we agree with the circuit judge that it ought not to be issued in this case. Van Atkin v. Dunn, supra.

The order of the circuit court is affirmed, with costs.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    POTTER v. BARRY CIRCUIT JUDGE.
    Indictment and Information — Sufficiency of Complaint — Lack of Personal Knowledge — Quashing Information.
    A complaint, which upon its face purports to be made upon the knowledge of affiant, is a sufficient compliance with the statute (sections 11839, 11840, 3 Comp. Laws), and respondent is not entitled upon arraignment to impeach such complaint by showing a lack of knowledge on the part of the complaining witness. People v. Heffron, 53 Mich. 527, distinguished.
    Mandamus by William W. Potter, Prosecuting Attorney, to compel Clement Smith, circuit judge of Barry county, to vacate an order quashing a complaint and warrant.
    Submitted March 16, 1909.
    (Calendar No. 23,257.)
    Writ granted March 30, 1909.

      William. W. Potter, in pro. per.
    1 Milton F. Jordan (Thomas Sullivan, of counsel), for respondent.
   Montgomery, J.

This is an application for a mandamus requiring the circuit judge to set aside an order quashing proceedings in the case of People v. Bert Jaques. The respondent in that case was prosecuted for a violation of the local option law in force in Barry county upon complaint regular in form made by the then prosecuting attorney. Upon being arraigned he made a motion to quash the proceedings on the ground that, although the complaint was positive in form, the affiant did not have personal knowledge of the facts stated in the complaint. This motion was overruled, and, on the case being removed to the circuit court, the defendant renewed his motion to quash, and an order quashing the complaint was made by the circuit judge. The question presented is whether, where a complaint which upon its face purports to be made upon the knowledge of the affiant is filed with the justice, it is a sufficient compliance with the statute (3 Comp. Laws, §§ 11839, 11840), and, further, whether it is competent for the respondent, on arraignment, to impeach such complaint by showing lack of requisite knowledge on the part of the complaining witness.

We do not regard this question an open one. In People v. Lynch, 29 Mich. 274, it was said:

“The complaint, upon its face being sworn to in the usual and regular manner, is amply sufficient to give the justice jurisdiction to issue the warrant and to examine the prisoner. ”

Again, in People v. Schottey, 66 Mich. 708, complaint was made of the want of jurisdiction of police court to issue a warrant without the affidavit or other proof of some person as to facts within his knowledge, and testimony was offered on the trial to show that the complaining witness, on whose oath the warrant was issued, had no personal knowledge of the facts he swore to. Chief Justice Campbell, in disposing of this question, says:

“There is no doubt of the constitutional requirement that a warrant shall not issue without legal proof of such facts as create probable cause. But, in the present case, Mr. Perry, who did not complain officially, swore posilively, and not on information and belief, that defendant kept his saloon open. The language is:
“ ‘One John. Schottey did then and there keep a saloon where spirituous, malt, brewed, fermented, and vinous liquors were kept for sale at retail, which said saloon he, the said John Schottey, did keep open, and did not keep closed, on the first day of the week, commonly called Sunday,’ etc.
“This averment is such as would be made by an eyewitness, and could only be properly made by one having knowledge. It was therefore enough, if true, to sustain a prosecution, and the police justice had a right to act upon it as true. Had it indicated that complainant had no personal knowledge, some further examination ought to have been had before issuing a warrant. But this complainant swore to positive facts, which he or any one else might have known, and, so swearing, assumed to know. The fault of a complaining witness in not adhering to the truth cannot avoid a warrant, so as to prevent jurisdiction from attaching. How far it might be assailed in collateral proceedings is not now before us.”

It is true that in this case the question was raised in the circuit court, and does not appear to have been raised before the magistrate; but, if it is a jurisdictional question, it can hardly be said to have been waived by anything that occurred in justice’s court. We do not understand the case to turn upon that question. It was held that jurisdiction attached, and, if jurisdiction attached for the issuing of the warrant, it could not be impeached any more successfully in justice’s court than in the circuit court. Again, in People v. Haas, 79 Mich. 449, the case of People v. Lynch was commented on and followed.» The case of People v. Heffron, 58 Mich. 527, is distinguishable, for the reason that the complaint in that case on its face showed that the affidavit was not made upon the personal knowledge of the affiant.

The circuit judge was in error in dismissing the case, and the writ of mandamus will issue as prayed.

Blair, C. J., and Ostrander, Moore, and Mc-Alyay, JJ., concurred.


author: Blair, C. J.

text:
    FIELD v. BOARD OF WATER COMMISSIONERS OF CITY OF MANISTEE.
    1. Municipal Corporations — Charter Provisions — Powers op
    Common Council — Supervision op Administrative Agencies.
    An amendment to the charter of a municipality, authorizing the appointment of a hoard of water commissioners, does not create of said board an independent department of the city government entirely outside of the control of the usual city government, but is an administrative agency of the city, subject to its general supervision and control, except as otherwise provided; and a provision of the charter requiring said board to submit an annual report to the council, to be audited by the finance committee thereof, while it creates a duty on the part of such board and council, does not restrict the general powers inherent in the council to investigate the performance of their duties by its officers and agents.
    2. Same — Charter Provisions — Amendments.
    An amendment to the charter of a municipal corporation is to be construed as though it was a part of the original charter.
    Certiorari to Manistee; Rose, J.
    Submitted March 16, 1909.
    (Calendar No. 23,272.)
    Decided March 30, 1909.
    Mandamus by August Field, mayor, to compel the board of water commissioners of the city of Manistee to submit its boobs of account for audit, and to require said books to be kept in the office of the city clerk. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.
    P. T. Glassmire (Smurthwaite & Alway, of counsel), for relator.

      Fowler & Withey, for respondent.
   Blair, C. J.

The city of Manistee is the owner of its waterworks system, and prior to the amendment of its charter in 1903 operated the same under the provisions of an ordinance. In 1903 the legislature enacted Act No. 422, Local Acts 1903, amending section 3 of chapter 5 of the charter, and adding two chapters thereto, to stand as chapters 33 and 34. Section 3 of chapter 5, as amended, reads as follows:

“Sec. 3. The council shall, on the nomination of the mayor, elect and appoint, by a majority vote of all the aldermen elected, a city attorney, a street commissioner, a city surveyor, a pound master, a harbor master, one assessor, one police and fire commissioner, one water commissioner, and such other officers as the council may from time to time deem necessary, to carry into effect the powers granted by this act. The mayor shall submit to the council his nominations to the above-named offices at the meeting of the council on the third Tuesday in April in each year.”

The added chapter 33 provided for “ the board of water commissioners.” Section 1 provided that the board appointed under the ordinance should continue till their terms expired “and as such shall be deemed officers of the city.” Section 2 provides for election of members by the common council on nomination of the mayor. Section 5 requires each commissioner to file a bond ‘ ‘ for the faithful discharge of his duties, which bond shall be approved by the mayor and chairman of the finance committee of the council.” Section 8 is as follows:

“ Sec. 8. Said board shall have the entire management, control and operation of the waterworks of the city, and it shall be the duty of the board to control, operate and manage said waterworks, and, except as hereinafter provided, to make and superintend all necessary repairs, ex-tensions, enlargements or improvements thereof; to employ all necessary labor to operate said waterworks; to audit and pay all expenses of operating the same, and of the repairs and improvements thereof; and to perform all such other services for the careful and economical operation of said waterworks. Said board shall also have such other and further powers not herein granted, as are given to water boards by the general laws of this State, and as are not inconsistent with the powers and rights herein granted.”

Section 9 provides the number of regular employés, and that “the number of regular employés and their salaries shall not be increased at any time without the authority of the council.” Section 11 provides that moneys collected shall be paid over to the city treasurer to be kept in a separate fund, and not to be transferred to any other fund except for the payment of waterworks bonds and the interest thereon. Section 13 authorizes the council to raise money by special tax to provide for deficiency in fund to pay bonds. Sections 14, 15, 16, 17, read as follows:

“Sec. 14. When, in the opinion of the board, it becomes necessary to increase the capacity of the waterworks, or to construct any new works, or to increase the service of said waterworks, involving a total expenditure of more than five thousand dollars in any one year, the board shall, before incurring any expense or liability therefor, prepare plans and specifications of the proposed improvement, and estimates of the cost thereof, and report the same to the council for its approval of, and consent to, the proposed expenditure.
“ Sec. 15. The said board shall, on or before March fifteenth in each year, make and file with the city clerk a full and complete report for the year ending on the last day of February, showing the income received from said waterworks and the sources thereof; the expenses of operating the waterworks; the amount expended for extensions, improvements and repairs, and in the payment of bonds and interest; the amount of money on hand, and the purpose for which held. The finance committee of the council, or other committee appointed by the council for that purpose, shall, upon the filing of said report, j audit the books of the board and compare the report with' said books, and report their findings to the council, at the first meeting thereof, after said date; and such report shall be published as part of the proceedings at said meeting of the council.
“Sec. 16. In case of any special work being required from said board by the council, such as the lowering of water mains to conform to a change of street grade, or moving any fire hydrant from one place to another, the cost of such special work shall be paid to the board by the council. Fire hydrants shall be placed wherever ordered by the council; and whenever new fire hydrants are ordered to be installed, requiring the extension of one or more water mains, the cost of such extension and hydrants shall, in the first instance, be paid to the board by the council, but as soon as sufficient revenue is derived from private consumers and hydrant rentals from such extensions, the cost of the same shall be repaid to the council by the board.
“17. The council shall have authority to enact such ordinances as they may deem necessary, for the protection of the waterworks, and any and all parts thereof, and against the violation of such ordinances may impose therein such fines, penalties and forfeitures as are prescribed in chapter nine of this act.”

The charter of Manistee in question was enacted in 1882. Act No. 48, Local Acts 1882, chap. 7, § 3, provides that the mayor “shall have authority at all times to examine and inspect the books, records and papers of any agent, employe, or officer of the corporation,” etc. Section 8 provides that:

“The city clerk shall exercise a general supervision over all officers charged in any manner with the receipt, collection and disbursement of the city revenues and all the property and assets of the city; he shall have charge of all books, vouchers and documents relating to the accounts, contracts, debts, and revenues of the corporation.”

Section 14 of chapter 8 provides, in part:

“ Sec. 14. The council shall cause all the records of the corporation, and of all proceedings of the council, and all books, documents, reports, contracts, receipts, vouchers, and papers relating to the finances and affairs of the city, or to the official acts of any officer of the corporation (unless required by law to be kept elsewhere) to be deposited and kept in the office of the city clerk, and to be so arranged, filed and kept as to be convenient of access and inspection, and all such records, books, and papers shall be subject to inspection by any inhabitants of the city or other person interested therein, at all reasonable times, except such parts thereof as, in the opinion of the council, it may be necessary for the furtherance of justice to withhold for the time being.”

On the 4th of November, 1908, the common council voted to have all of the books of the various departments of the city government audited, and soon afterwards relator, acting as mayor, made a demand for access to the books of the water board, which was refused, and thereupon he made the following written demand upon the board of water commissioners, viz.:

“Gentlemen: Owing to the fact that the finance committee of the city council, through press of business, failed to audit your books and compare your last annual .report therewith as provided by section 15 of chapter 38 of the city charter, and owing to the unfavorable criticism and comments occasioned thereby, I hereby respectfully demand under section 3 of chapter 7 of the city charter access to and the submission to me of all your waterworks books, records, and pape'rs for examination and inspection thereof by myself and the finance committee.”

The demand having been refused the common council adopted a resolution providing, among other things:

That the finance committee and the mayor be and are hereby directed to make an audit of the books of the Manistee board of water commissioners during office hours, viz., from 8 to 5, in the city offices, and to demand of the said board their books for that purpose, and, if the same is refused, then be it resolved that the mayor is hereby directed to at once commence mandamus proceedings against said board of water commissioners for the production and inspection of its books.”

To the mayor’s written demand respondent replied on December 28, 1908, in writing, refusing compliance:

“ For the reason that you have no lawful right, power or authority to make the same at this time; and this board cannot, therefore, grant your request without itself exceeding its authority and violating the provisions of the charter of this city which expressly provides that said books shall be audited at the close of the fiscal year,” etc.

Thereupon relator filed his application for the writ of mandamus to compel the respondent to afford to the mayor and finance committee of the council access to its books, etc., for the purpose of auditing them, and also to require the board to keep its books in the city clerk’s office, where they might be inspected by the mayor and finance committee, and also by any member of the council or inhabitant of the city. The respondent answered at great length, denying relator’s right to the relief sought as a matter of law, claiming bad faith on the part of relator and others, and conspiracy to destroy the efficiency of the board for political purposes, asserting that it is a co-ordinate branch of the city government, and that the city government has no control over it whatever, that the right to examine and audit its books is limited to the time fixed by section 15 of chapter 33, and that at all other times it may refuse and prevent any inspection thereof. Relator demurred to the answer for impertinence, redundancy, etc. The court struck out certain portions of the answer, treating the demurrer as a motion to strike out, and heard the case against respondent’s objection that he was entitled to 14 days’ notice of hearing upon the demurrer. After full consideration of the pleadings and the briefs of counsel for the respective parties, the circuit judge granted the writ, filing an elaborate and well-reasoned opinion fully covering the points made. Respondent has brought the matter to this court for review upon writ of certiorari, filing a printed brief of 60 pages.

In our opinion the questions of practice argued in the briefs are unimportant. The real question before the circuit court and for the consideration of this court is a question of law, presented by the pleadings upon undisputed facts, as to the authority of the common council to order an inspection and audit of the books at a different time than that provided for in section 15 of chapter 33, and to require them to be filed in the office of the city clerk so as to be convenient of access and inspection. Treating the demurrer as overruled, and the answer as originally filed, the question remains a legal question, and, conceding that the bad faith of an application may influence the discretion of the court to deny an application otherwise proper, we are of the opinion that the court’s discretion was properly exercised in this matter, and we concur in his legal conclusions. The provisions of the charter which have been quoted clearly indicate that it was not the intention of the legislature to create an independent department of city government entirely outside of the control of the usual city government. On the contrary, it appears from chapter 33 that the board of water commissioners was designed to be an administrative agency of the city corporation, the owner of the property to be administered, and subject to its general supervision and control, except as otherwise provided. The provision in section 15 of chapter 33 that the board should file its report, and that the finance committee should audit it, while it created a duty on the part of the board and the council, did not restrict the exercise of the general powers inherent in the council to investigate the performance of their duties by its officers and agents. An attempt to take from the corporation its powers in this regard with reference to its own property would in my opinion be unconstitutional. It is sufficient in this matter, however, to say that no such attempt appears to have been made. The amendments of 1903 are to be construed as though they were a part of the original charter. People, ex rel. Attorney General, v. Railroad Co., 145 Mich. 140. The commissioners are expressly declared to be officers of the city in the amendatory act, and as such officers they are subject to the authority of the common council under the provisions of section ] 4 of chapter 8 of the charter.

The order of the circuit court is affirmed.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Hooker, J.

text:
    BOUGHNER v. BAY CITY.
    1. Certiorari — Decisions Review able — Order Overruling DeMURRER.
    Under Act No. 310, Pub. Acts 1905, an order overruling a de- ' murrer to a declaration is reviewable on a writ of certiorari.
    2. Municipal Corporations — Amendment to Charter — Prospective Operation — Claims por Personal Injuries.
    Prior to bringing an action for personal injuries caused by a defective sidewalk, plaintiff served a notice and claim upon the common council sufficient under the provisions of the existing charter. Ten days later the charter was amended and given immediate effect requiring more specific details in notices of claims of such nature. Held, that, under the rule that such legislation operates prospectively only unless made retroactive by express words, or necessary implication,'plaintiff’s cause of action was governed by the terms of the charter before the amendment.
    Certiorari to Bay; Collins, J.
    Submitted October 16, 1908.
    (Docket No. 104.)
    Decided April 6, 1909.
    Case by Elizabeth Boughner against the city of Bay City for personal injuries. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.
    Affirmed.

      S. Gt. Houghton, for appellant.

      Oscar W. Baker (Lee JE. Joslyn, of counsel), for appellee.
   Hooker, J.

Plaintiff’s declaration counts upon an injury sustained by her through a fall upon defendant’s sidewalk on June 7, 1907, alleging the service of the notice hereinafter contained on September 6, 1907. The defendant demurred to this declaration upon the ground that the notice alleged was not such as the law required. The demurrer being overruled, the defendant has brought the case here by certiorari under the provisions of Act No. 310, Pub. Acts 1905. This statute is a sufficient answer to plaintiff’s claim that certiorari does not lie in this case:

“ Section 1. Whenever in any action at law in a circuit court a motion to quash the writ or declaration upon jurisdictional grounds, or the issues raised on a demurrer, plea to the jurisdiction or other dilatory plea shall be decided adversely to the party filing such motion, demurrer or plea, the decision may be reviewed by writ of certiorari forthwith. Upon the issue of such writ the Supreme Court may upon proper cause shown, stay the proceedings in the circuit court pending their decision on such writ. Or such decision may be reviewed by assignment of error under a writ of error sued out to review the final judgment in the cause in case such party shall plead over and a final judgment upon the merits shall be rendered against him.”

The declaration contains a copy of the notice served, viz.:

“City of Bay City, Mich.,
“ In account with Elizabeth Boughner, Dr.
“ June 7, 1907.
“ To damages sustained on account of injuries received by said Elizabeth Boughner from fall caused by a loose plank and a hole in a defective sidewalk situate on the east side of Adams street, about thirty feet north from the northeast corner of McKinley and Adams streets, in front of the west side of lot 7, block 86, Lower Saginaw:
“ ‘For pain, suffering and permanent physical
injuries.........-..... — ................§2,600 00
‘ ‘ ‘ Expenses incurred by said Elizabeth Boughner
in connection with said injuries........... 200 00
“ ‘ Expenses incurred by said Elizabeth Boughner for care, nursing, in connection with said injuries.................................. 200 00
$3,000 00’
“ State of Michigan, j County of Bay. f
“ Elizabeth Boughner, of the city of Bay City, Bay county, State of Michigan, being first duly sworn, deposes and says that the within and foregoing is her account against the city of Bay City for injuries sustained on the seventh day of June, 1907, as shown by the foregoing statement and account; deponent further says that she verily believes that the services claimed to have been rendered and the property therein charged for were actually performed and furnished to the city of Bay City; that the sums charged in said statement and account for damages, pain and suffering, medicines, nursing and other charges, are reasonable and just, to the best of her knowledge and belief, that the same are now due and unpaid, and that no set-off exists nor have any payments been made on account thereof, except as stated herein, in such account or claim. Further deponent says not.
“Elizabeth Boughner.
“ Subscribed and sworn to before me this 6th day of September, 1907.
“Lee E. Joslyn,
“Notary Public, Bay Co., Mich.
“My commission expires January 30, 1910.”

At the time of the accident defendant’s charter (Act No. 514, Local Acts 1903, § 204) provided:

“The common council shall audit and allow all accounts chargeable against the city, except as in this act otherwise provided; and no account, claim or contract shall be received for audit or allowance unless it shall be accompanied by an affidavit of the person rendering it, to the effect that he verily believes that the services claimed to have been rendered or the property therein charged for were actually performed or furnished to the city; that the sums charged therefor are reasonable and just to the best of his knowledge and belief, are due and unpaid, and that no set-offs exist or payments have been made on account thereof, except as stated in such account or claim; and every such account shall exhibit in detail the amount of each item making up the amount claimed. And it shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city of any description whatever, that it has never been presented to the council as aforesaid for allowance, or that the claim was presented without the affidavit aforesaid and rejected for that reason, or that the action or proceeding was brought before the common council had reasonable time to pass upon such account or claim. And all claims for damages against the city-growing out of negligence or default of said city, or any of the officers, agents, employés or boards thereof, shall be presented to the common council of said city, in the manner above provided within six months after such claim shall arise; and in default thereof said claim shall be forever barred. In any action in any court on any such claim, the claimant shall be required to show that such claim has been duly presented in the manner as in this section specified, to the council for audit, investigation and allowance.”

Ten days later said section was amended (Act No. 636, Local Acts 1907) to read as follows:

“ Seo. 204. The common council shall audit and allow all accounts chargeable against the city, except as in this act otherwise provided, and no account, claim or contract shall be received for audit or allowance, unless it shall be accompanied by an affidavit of the person rendering it, to the effect that he verily believes that the services claimed to have been rendered or property therein charged for were actually performed or furnished to the city; that the sums charged therefor are reasonable and just to the best of his knowledge and belief, are due and unpaid, and that no set-off exists or payments have been made on account thereof, except as stated in such account or claim; and every such account shall exhibit in detail the amount of each item making up amount claimed. And it shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city of any description whatéver, that it has never been presented to the council as aforesaid for allowance; or that the claim was presented without the affidavit aforesaid and rejected for that reason, or that the action or proceeding was brought before the common council had reasonable time to pass upon such account or claim. No action shall hereafter be brought or prosecuted against the city or any of its boards of officers, for any injury alleged as the result of any negligence on the part of the city or any board or officer thereof, unless the person injured shall serve or cause to be served, within thirty days after such injury shall have occurred, a notice in writing on the council of said city, which notice shall set forth substantially the time when and the place where such accident or injury occurred, and the manner in which it occurred and the extent of such injury as far as the same has become known, and that the person receiving such injury intends to hold the city liable for such damages as may have been sustained as aforesaid. All facts relating to such personal injuries shall be set forth in the affidavit made by claimant. Such affidavit shall also state the names and addresses of all the claimant’s witnesses, the name of the attending physician, or physicians if any; the amount of money, if any, expended for medical attendance; the loss of time and value thereof, and shall fully describe the nature and extent of the injury received, and the amount of compensation claimed by reason of such damage or injury. All claims for damages against the city growing out of negligence or default of said city or of any officer, board or employe thereof, shall be presented in the above manner within thirty days after such damage has been sustained or injury received, and in default thereof shall thereafter be forever barred. No action shall be maintained in any such case in any event unless the same be brought within one year after such alleged injury shall have been received.”

This act was given immediate effect, and counsel for defendant contend that it should be applied to this cause, while counsel for plaintiff deny that it should be construed as retroactive. We are of the opinion that plaintiff’s counsel are right in this, as is indicated by the following cases: Atherton v. Village of Bancroft, 114 Mich. 243; Angell v. West Bay City, 117 Mich. 685; Broffee v. City of Grand Rapids, 127 Mich. 89; In re Lambrecht, 137 Mich. 450; Davis v. Railroad Co., 147 Mich. 479.

It is suggested that the effect of the amendatory act is to repeal all provisions of the act of 1903 relating to claims for personal injuries under the rule stated in Bank of Saginaw v. Pierson, 112 Mich. 410, where it is said that it is contended that the case last cited is consistent with defendant’s theory that the amended section shows that the legislature intended it to apply to accidents previously suffered, inasmuch as it says:

“No action shall hereafter be brought or prosecuted * * * unless the person injured shall serve or cause to be served within thirty days after such injury shall have occurred a notice,” etc.

We are of the opinion that the language quoted indicates an intention that it should not apply to such, as we cannot infer that they intended to exclude cases wherein the 30 days had already expired, and where perhaps proper notices under the previous law had been seasonably served. Davis v. Railroad Co., supra, contains nothing inconsistent with this view. The rule is stated in 1 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 237:

“ The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively, according to the general rule.”

It is urged that the effect of such a repeal must be to remove all obligations as to notice, and that plaintiff’s right of action in this case is therefore unrestricted by any such provisions. The effect of this is somewhat startling. Evidently what was sought was not to remove all requirements in regard to the character of the notice required (thus throwing open wide the door to all cases not barred by the previous statute if not all cases that had accrued within the period of six years), but to impose greater ones. We have held in several cases that we would not infer an intention to bring such cases within the amendatory act, but would leave them to be governed by the law as it theretofore existed, but we think it more reasonable to infer such an intent than that the legislature designed to relieve plaintiff from all requirements as to notice. That is what defendant claims. The prevailing opinion in the case of Weller v. Wheelock, 155 Mich. 698, appears to sustain such claim, and, had it received the approval of five judges, might be held to have established such rule, though it could be applied to this class of cases only upon the theory that it had the effect of overruling the cases hereinbefore cited. Whatever may be said on that subject, no one contended in that case, and it is improbable that any of the judges approving that opinion would have been willing to hold, that the amendment of the statute then under consideration had repealed the pre-existing law, and thereby relieved purchasers of tax titles from the necessity of giving any notice whatever to original owners, though there is little opportunity to distinguish that case from this upon that point.

It is a noticeable fact that the rule from Sutherland was not applied in Bank of Saginaw v. Pierson. On the contrary, we refused to do so; saying:

“ ‘ Even in the case of statutes falling, strictly or in a general sense, under the head of penal laws, the intention of the legislature has been permitted to prevail over the rigid application of the rule.’ Endlich on Interpretation of Statutes, § 483.
“It is beyond belief that the legislature intended, by simply changing the period within which the reports were to be made, to repeal the provision imposing the liability upon the directors for failure to comply with the prior law. The provision creating the liability was not repealed, and we think that no repeal by implication arises.”

While prospectively all matter in the earlier act that is not incorporated in the amendatory act is repealed of necessity, it does not follow that such repeal is simultaneous for all purposes, but the omitted portions remain in force as to past transactions. Endlich on Interpretation of Statutes, § 196, contains this statement in reference to this question:

“Where an act or portion of an act is amended ‘so as to read’ in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. It is perfectly clear that as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal. But as to the remainder, i. e., that which in the amendatory act is declared thereafter to be its form and effect, it would seem that even an amendment in the phrase indicated does not have the effect of a simultaneous repeal and re enactment, but that of a merger of the original statute in the new, leaving the old statute no vitality distinct from the new, and of force only as to past transactions, as to which it must be deemed to be continued in force as from the time of its first enactment, whilst, as to new transactions, its whole force rests upon the amendatory statute.”

Again, the requirement of a notice in the earlier act is retained in the later one, thus plainly indicating an intention not to dispense with it in pre-existing cases. We must therefore apply the test of the earlier statute to this declaration.

Under this statute, it was not necessary to state the nature of the claim, and, in detail, the amount of each item, making the amount claimed. Davis v. City of Adrian, 147 Mich. 300. It does not require that the claim or affidavit state the particular manner in which the fall occurred nor the nature and extent of the injuries, nor the names and addresses of witnesses. The notice served does, however, state a claim for injuries sustained through a fall caused by a loose plank and hole in a defective sidewalk, describing the place. The method of stating the claim and the verification of the same are in form sufficient under the statute applicable to this case.

The order of the circuit court is affirmed, with costs, and the cause is remanded for further proceedings.

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


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    POTVIN v. WEST BAY CITY SHIPBUILDING CO.
    1. Evidence — Expert Testimony — Competency.
    A witness experienced in metallurgical analysis is competent to give expert testimony in respect to the condition of an alleged defective tool, as shown by a subsequent chemical analysis and microscopical examination.
    2. Master and Servant — Personal Injuries — Defective Tools —Evidence — Assumed Risks — Negligence — Contributory Negligence — Questions for Jury.
    Plaintiff was injured by a chip flying from a hammer, known as a “softhead,” when struck by a riveting hammer, resulting in the loss of an eye. The “softhead” was made from a riveting hammer by taking the temper from one end. The testimony in plaintiff’s behalf tended to prove a defect in its construction by reason of temper being left in the soft end, while that of defendant tended to prove that it was properly made in the first instance, but had become hardened and crystallized by use. Held, that the questions of whether or not it was a safe tool when furnished, whether plaintiff assumed the risk of his employment, or whether he was guilty of contributory negligence, were for the jury.
    3. Damages — Personal Injuries — Impairment of Earning Capacity — Excessive Verdiot — Question for Jury.
    Whether the continuance of plaintiff in the employment in which he was engaged at the time of his injury disproves the testimony of himself and his physician that the loss of an eye affected his ability to do his work, was properly submitted to the jury; and, aside from a diminution of earning power, a verdict of §3,682 is not excessive compensation for such loss. >
    4. Master and Servant — Personal Injuries — Duty of Master —Negligence—Instructions—Harmless Error.
    Where, in such action, it appeared that defendant manufactured the tools furnished to its employés — its duty to furnish safe tools being absolute and nondelegable — and plaintiff’s entire claim rested upon the proposition that defendant’s blacksmith left temper in the “softhead,” which was the proximate cause of the injury, and such act being conceded to be negligent if it occurred, the verdict of the jury established defendant’s negligence; and the action of the trial court in withdrawing a portion of the charge that “defendant did not owe plaintiff the duty of furnishing a reasonably safe tool, but only the duty to use reasonable cafe to furnish a reasonably safe tool,” if erroneous, was not prejudicial to defendant.
    5. Evidence — Admissibility.
    The admission in evidence of tools and photographs of microscopical enlargements of sections thereof was permissible to explain and illustrate the testimony of the expert and to enable the jury to understand the character of such tests and the basis of the expert’s opinion; the trial court in the charge fully protecting the defendant against harmful inferences that might be drawn from a comparison of the exhibits.
    6. Appeal and Error — Harmless Error — Opinion Evidence— Admissibility — Instructions.
    The admission of opinion evidence by one incompetent to so testify was cured by the giving of a requested instruction directing the jury to disregard it; and it will not be inferred that the jury were affected by the admission of similar testimony which was not called to the attention of the court.
    Error to Bay; Collins, J.
    Submitted January 6, 1909.
    (Docket No. 10.)
    Decided April 30, 1909.
    Case by Maxim Potvin against the West Bay City Shipbuilding Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Gillett & Clark, for appellant.

      F. W. De Foe, for appellee.
   Blair, C. J.

Action to recover damages for the loss of plaintiff’s eye, alleged to have been the result of defendant’s negligence in furnishing an unsafe tool to plaintiff for his use in riveting. At the time of his injury, plaintiff, a riveter of many years’ experience, was engaged with two others in riveting, by hand, steel plates used in the construction of a steel ship. Bloom, one of plaintiff’s gang, was holding a heavy hammer against the head of a rivet. Zybach, another member, was holding the hard face of a tool known as a “ softhead ” against the point of the rivet, and plaintiff was striking the softhead with a riveting hammer. As a result of plaintiff’s blow, a small piece of steel flew from near the center of the top of the softhead, struck plaintiff’s right- eye, and destroyed the sight thereof.

The defendant manufactured the softheads used by the riveters, employing a blacksmith for that purpose, among others. The softhead was manufactured hard in one end and soft in the other, for the one using the riveting hammer to strike against. The softhead in question was manufactured from a riveting hammer. In making a riveting hammer, both ends are tempered and the eye -is left soft.

“Q. So what would have to be done with the hammer before it would be fit for a softhead ?
“A. Have it sent to the blacksmith shop and have it annealed. By annealing I mean softening. Taking all of the temper out of a piece of metal. You would heat it in the fire cherry red. Suppose you didn’t have to cut off either end, but all you had to do was to take the temper out, you would just heat it up to a cherry red and throw it down. You would not have to heat the other end at all to take the temper out of that end. I would not reheat the whole tool.
“Q. If the blacksmith, when he heated that, did not heat it hot enough, and then he threw it down, there would be some temper left in it ?
“A. If he didn’t heat it hot enough, certainly the temper would be there just the same.
“Q. And if he left any temper in it, of course, in that way, it would not be a fit tool to be used as a softhead ?
“A. No, sir.”

The negligence alleged and sought to be proved by plaintiff was that defendant’s blacksmith, who manufactured the softhead out of the riveting hammer, either put or left temper in the end which should have been soft. The case was submitted to the jury, who rendered a verdict in favor of plaintiff for $3,682.23. Defendant brings the record to this court for review upon writ of error. The following is a synopsis of the errors relied upon:

“(1) The court should have directed a verdict-for defendant : (a) Because there was no competent evidence to show that the softhead, as manufactured and furnished, was not reasonably safe. (6) Because there was no competent evidence to show that the hardness referred to by the expert witness Zimmerschied was the proximate cause of the injury, (c) Because there was no competent evidence to connect the condition of the tool with any actionable negligence on the part of the defendant. (d) Because the risk was assumed, (e) Because plaintiff was guilty of contributory negligence.
“ (2) The court should have granted defendant’s motion for a new trial on the ground that the verdict was excessive and against the weight of the evidence.
“(3) The court should have charged, as requested, that there was no competent evidence of any impairment of plaintiff’s earning capacity.
“ (4) Prejudicial statements of plaintiff’s counsel.
(5) The error of the trial judge in defining the limits of defendant’s duty.
“(6) Admitting evidence of the comparative hardness of Exhibit A and other tools.
“(7) The admission of opinion evidence on questions that should have been left to the jury.
“ (8) The admission of the opinion evidence of the witness Zimmerschied on matters in respect to which he was not qualified.
“ (9) The admission of opinion evidence of plaintiff and Zybach.
“(10) Miscellaneous errors in connection with the charge and requests to charge.
“(11) Miscellaneous errors in the admission of evidence.”

1. The important question presented by the record is whether the blacksmith who manufactured the softhead out of the riveting hammer put or left temper in the soft end thereof. The testimony of defendant’s witnesses tended to show that:

“There ought to be no temper at all in the head of the softhead. If a man should make a softhead and put some temper in the head of it, that would not be a properly made tool.
“Q. And if the temper was put in the head of it, it would not be a safe tool either, would it ?
“A. No, sir; a man would be foolish to do it.
“Q. Why wouldn’t that tool be safe to use if there was temper in it ?
“A. Simply because it is dangerous. There would be danger of losing an eye. Piece might fly from it; get a piece in your hand, arm, or body.
“Q. When making a tool such as that, which is the harder thing to do, to get the right temper here in the face of the tool, or to leave the other end soft ?
“A. Temper the face. That is where the fine part of the blacksmith’s work comes in. We always leave the temper out of the other end. That is natural work.
“Q. You can always do that in making a tool like this; you can always work it so as to leave the temper out of the soft end of it ?
“A. Yes, sir.
“Q. There is no necessity of putting any temper, and no reason why you should at all ?
“A. No, sir.”

Defendant’s testimony further tended to show that the softhead in question had no temper in the soft end, and appeared to be and was a safe tool for a man to work with.

“Q. So you would not blame a riveter for taking the tool if the toolman handed him this tool and he went to work with it ?
“A. No, sir.
c<Q. He would be justified in using it ?
“A. Yes, sir.”

Defendant’s witnesses, in the main, were blacksmiths of long experience in the making of such tools, but without experience in the chemical analysis or microscopical examination of steel.

The sole witness to sustain the plaintiff’s allegation of negligence was Mr. K. W. Zimmerschied, an instructor in metallurgy and qualitative analysis in the State University. Prof. Campbell has charge of the department, but owing to blindness is not able to do the actual work, and, as an instructor in his department, Mr. Zimmerschied does “practically all the metallurgical analysis and all of the microscopic work along- metallurgical lines.” We regard the testimony of Mr. Zimmerschied as fully establishing his competency and qualifications to testify as an expert concerning the condition of the soft-head in question. Having testified as to the chemical analysis and microscopical examination made by him, he testified that the temper or hardness had not been sufficiently removed from the soft end of the tool in question ; that the tool was not properly made in the first instance, but was subjected to improper heat treatment.

“Q. With reference to Exhibit A, I wish you would state whether or not the degree of hardness that you found in the head of that tool could have been produced by long-continued use, such as hammering or striking upon the head?
“A. The condition of hardness ?
l‘Q. Yes, the excess of hardness.
“A. The condition found could not have been produced by long-continued striking upon the head.
Q. And when must that condition have been produced ?
“A. It must have been produced during the heat treatment of the tool.”

With reference to the chemical analysis, the witness testified that the carbon present was the ordinary percentage, but the phosphorus was “slightly above the amount that should be present;” but the excess was not serious, and “a competent blacksmith could make a reasonably safe tool from that material.”

“Q. You assume that certain conditions of cooling were present, and you assumed that from the microscopic examination ? That test is not absolutely infallible, is it ? I mean by that, that you cannot tell beyond a doubt that the tool maker in making that tool treated it as you suppose he treated it, from your examination ?
“A. I can tell beyond a doubt that the conditions of cooling were certain; as to whether he plunged it into water, the way of it, exactly in what way, I am not able to tell, or that he used water instead of brine, but the rate of cooling can be determined beyond a doubt.”

If chipping was due to the chemical composition of the metal or the heat treatment, he testified that it would he just as likely to occur the first day as afterwards.

The essence of Mr. Zimmerschied’s testimony was that, by tests which admitted of no doubt as to the result, he had determined that there was temper left in the softhead by the blacksmith who manufactured it. This, under the testimony of defendant’s witnesses, was competent proof of, and, if believed, a demonstration of, defendant’s negligence. The testimony of defendant’s witnesses tended to show that the tool was properly made in the first instance and safe when used; that the steel in the softhead, from continual hammering, would crystallize and harden and scales would form, which, by being struck with the edge of the hammer, would fly off. This was directly opposed to the testimony of Mr. Zimmerschied, and it was for the jury to say which line of testimony was correct.

In. view of the testimony of defendant’s expert witness Hennessy, that the very thing might happen which did happen, if temper were left in the softhead, and the testimony of Zimmerschied that long-continued hammering would make no difference, we do not understand how it can he contended that the evidence did not tend to show that the temper was the proximate cause of the injury. Neither, in view of the same witnesses’ testimony to the contrary, do we understand how defendant’s counsel can contend that the evidence shows contributory negligence, as a matter of law. It was conceded that the steel was proper for making the softhead, and it was for the jury to say, under the testimony of Zimmerschied, whether the excess of phosphorus, or the hardening of the head by hammering, had anything to do with the accident. If they gave credit to his testimony, and found that leaving the temper in the softhead was the cause of plaintiff’s injuries, it would naturally follow that the negligence was defend-, ant’s, since it was responsible for the negligence of its blacksmiths, to whom it had committed its duty of furnishing safe tools to its employés.

We do not think the court would have been justified in instructing the jury, as a matter of law, that plaintiff assumed the risk of a defect in the softhead which required a chemical and microscopical examination to disclose. While the testimony indicates that the flying of chips is not unusual, the testimony also justifies an inference that such flying of chips is due to foul blows, and that in case of a fair blow, such as plaintiff and Zybach testified he struck, there was no danger in that regard, with a proper softhead.

2. The contention that the verdict was against the weight of the evidence requires no further consideration.

3. There was testimony by the plaintiff and his physician that the loss of the eye affected his ability to do his work, which would seem to be almost self-evident. Whether the performance of his work and the amount earned by the plaintiff after the injury disproved his testimony, were questions properly submitted to the jury. The verdict was a very moderate one under the circumstances, and not an unreasonable compensation for plaintiff’s loss, independent of any diminution ■ of earning power.

4. We are satisfied that the remarks of counsel were not sufficiently prejudicial to warrant us in reversing the case upon that ground.

5. It is contended that the court erred in withdrawing a portion of his charge, as follows:

“Gentlemen of the jury: I stated to you in one place: ‘ Defendant did not owe plaintiff the duty of furnishing a reasonably safe tool, but only the duty to use reasonable care to furnish a reasonably safe tool. ’ I think that puts in the case a distinction too fine to be considered, and I withdraw that part. But I leave all of the other part to stand, and not' affected by what I say in withdrawing it.”

If this action on the part of the court was erroneous, it was without prejudice. The defendant was manufacturing the tools itself. Its duty was an absolute one, which it could not delegate to an employe so as to escape liability for negligence in its performance. The plaintiff’s entire case rested upon the proposition that the blacksmith left temper in the softhead, and the evidence was conclusive that, if he did, this was negligence. The negligence of the blacksmith was the negligence of the defendant, and mu£t have been found to exist.

6. A softhead was introduced in evidence, which plaintiff testified he picked out “because it was a good ham-, mer; I used it. You wanted a good hammer. I brought it up as a sample of the hammer I found to be all right.” This softhead was marked “Exhibit B,” while the one plaintiff was using at the time he was injured was marked “Exhibit A.” Both hammers were subjected to chemical and microscopical tests, and testimony given by Mr. Zimmerschied as to the results. Photographs of sections of the hammers, enlarged 100 and 1,000 diameters, were also received in evidence, as well as a similar photograph marked “Exhibit E.”

“The piece of steel from which that photograph was taken is not a part of either of the hammers offered in evidence here. The object of making that picture was to show a typical structure in annealed steel. By ‘annealed steel ’ I mean one which has been slowly cooled from a temperature above 850° in the case of carbon steel. When a piece of steel is subjected to that treatment, it will give the softest material capable of being yielded by that chemical composition.”

We think the exhibits were properly admitted in evidence for the purpose of explaining and illustrating the witness* testimony, and enabling the jury to understand the character of his microscopical tests and the basis of his opinion. The trial judge protected the defendant against any harmful inference that might be drawn from the comparison of the exhibits by giving defendant’s request to charge as follows:

‘ ‘ Plaintiff is not entitled to a verdict merely because the tool which is claimed to have caused his injury may be harder than some other tool or piece of metal. The question to decide is not whether this tool is harder or softer than some other tool or some other piece of metal, but is whether it is reasonably safe. It might be harder than some other tool and still be reasonably safe, and. in that case defendant is not liable. It is undisputed that it would not be practicable to make such tools of the softest possible metal, and that some variation in hardness is proper and usual. I therefore charge you that defendant was under no obligation to make this tool as soft as possible, or as soft as some other tool, and you cannot give plaintiff a verdict merely because it could have been made softer or because it is not as soft as some other tool, even if you find that to be the fact.”

9. Plaintiff was permitted to testify that a tool that was not hard would not chip. Any injurious effect which might have resulted from this testimony was obviated by the giving of defendant’s third request instructing the jury to disregard it. The witness Zybach was asked:

“How do you tell whether or not the steel in the head of the softhead is hard or soft ? ”

Against objection he was permitted to answer:

“You can tell by using it if there is no chip flying from it and it flattens down; that is the only way I can judge.”

On cross-examination the witness testified that he did not know anything about steel. Doubtless, if the court’s attention had been called to this testimony later on, he would have taken the same course as with plaintiff’s. In view of the direction to disregard plaintiff’s opinion, we do not think the jury could have attached any importance to Zybach’s opinion.

We have examined the other points raised, are of the opinion that they are not well founded, and the judgment is affirmed.

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


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    CANERDY v. PORT HURON, ST. CLAIR & MARINE CITY RAILWAY CO.
    1. Street Railroads — Backing Cars Across Street — Injury to Pedestrian — Negligence —Contributory Negligence — Questions for Jury.
    Plaintiff’s decedent, while crossing a street, was killed by-being struck by defendant’s car which was being backed from a switch to its waiting room. At the time he started to cross the street, the car was standing still and headed in the opposite direction, as indicated by a red light upon the rear end of the car. The testimony warranted the inference that his stepping upon the track and the starting of the car were practically contemporaneous, and that the sudden starting of the car caused him to slip and fall, and that except for such slipping he could have crossed in safety. Held, that the questions of defendant’s negligence and the contributory negligence of plaintiff’s decedent were properly submitted to the jury.
    2. Appeal and Error — Assignments of Error — Sufficiency.
    An assignment which, in effect, is that the court erred in not directing a verdict, is not sufficiently specific to require consideration.
    Error to Macomb; Law, J., presiding.
    Submitted January 7, 1909.
    (Docket No. 4.)
    Decided April 6, 1909.
    Case by Alice M. Canerdy, administratrix of the estate of John D. Canerdy, deceased, against the Port Huron, St. Clair & Marine City Railway Company for the negligent killing of plaintiff’s decedent. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Phillips & Jenks (James G. Tucker, of counsel), for appellant.

      Cady & Crandall, for appellee.
   Blair, C. J.

Plaintiff brought this suit to recover damages for loss of means of support and pecuniary injuries occasioned by the death of her husband through the alleged negligence of defendant. Immediately prior to the accident an electric car of defendant stood upon the west, or south-bound, of its two tracks upon Military street in Port Huron, about 30 feet from the south line of Pine street and just south of a switch point. Military street runs north and south, and is intersected by Pine street nearly at right angles. The car was headed south, was lighted inside, and had a red light on the rear, or, as it stood, north, end; it being the intention of defendant’s employés to back the car north on Military street to its waiting room. The accident occurred at about 6:30 p. m., February 3, 1906. There was no street light at the place in question, the night was rough, windy, cold, and squally, and there was about hálf an inch of snow on the ground. The conductor of the car, having thrown the switch, got upon the car at the rear end, and started forward; the car was started, and while he was still walking forward, the cries of plaintiff’s decedent were heard, and the car was stopped near the north line of Pine street. A passenger testified: “When the car started back, it started at pretty good speed. ” An examination the next morning disclosed “blood all the way across Pine street. It began about 3 feet from what would be the north edge of the sidewalk line on the south side of Pine street if the sidewalk was continued. * * * This blood was all on the east rail of the west track.” Ella Higgins, one of the two witnesses who saw the accident, testified:

‘ ‘ The car had started south, and I thought it was going to the barns, or going down to Detroit, so I thought I would take the car, and went over towards it. Just as I got about the middle of Pine and Military, it started to back up, and I stood still there for a minute.
l‘Q. Did you see a man go across the street ?
“JL I saw a man going; I was watching the car, but I glanced from the car to the end of it, and saw a man coming. He tripped, I thought, and then the car struck him. I thought he slipped, something like that. It is so long ago I have kind of forgotten. I don’t remember very much about it now. It seems to me he glanced back. It was all done in an instant. He sort of slipped, and before he could recover himself, the car struck him, as near as I can remember. As he was struck, he shouted, and I ran down Military street with my hands to my ears. He said ‘ Oh, Oh ’ quite a few times, it seems to me. * * * The man that I saw that was struck was coming from the east side toward the west.
Q. Did you say he turned and looked back and slipped ?
“A. Why, he looked that way as he came towards the car.
“ Q. He looked towards the car ?
“A. Yes, that way.
“Q. And as he was coming towards the car he was looking towards the car ?
“A. Yes, sir.
“Q. And as he got close to it, he slipped, you say ?
“A. As he got on the track he slipped, and the car backed down on him before he could recover himself, as near as I can remember. * * *
“Q. Mrs. Higgins, at the time you saw Mr. Canerdy step onto the track, ahead of the car, can you give us any idea how far the car was from him ?
“A. Well, I should imagine it would be about as far as from here to the table. I can’t say positively, but in my mind, that is the way I think it is; it happened so suddenly that I—
“ Cross-examination.
“Q. That would be a distance somewhere about 8 to 12 feet ?
“A. I should say so; yes, sir.”

There was testimony in behalf of defendant tending to show that the conductor was on the rear platform at the time of the accident, and also that the gong was sounded when the car was started. The testimony for plaintiff tended to controvert both these points. At the conclusion of plaintiff’s case, defendant moved for an instructed verdict on the ground that plaintiff’s decedent was guilty of contributory negligence. At the conclusion of the case, defendant presented several requests to charge, all of which required the direction of a verdict for defendant. The court submitted the case to the jury, who found a verdiet for plaintiff, and defendant brings the record to this court for review upon writ of error.

Under the circumstances, the question whether the defendant was negligent in suddenly backing the car without ringing the gong or having a lookout on the rear platform was properly submitted to the jury. Smith v. Railroad Co., 136 Mich. 224; Schremms v. Railroad Co., 145 Mich. 190. The main question in the case presented by defendant’s assignments of error and the brief is whether the plaintiff’s decedent was not guilty of contributory negligence, as a matter of law. We think this question, also, was properly submitted to the jury. The car was standing still upon the south-bound track, and headed south, as indicated by the red light upon the rear end. It remained standing during a portion of the time, at least while decedent was approaching the track, and we are of the opinion that the testimony warrants the inference that Mr. Canerdy’s stepping upon the track and the starting of the car were practically contemporaneous, that the sudden approach of the car caused him to slip and fall, and that except for such slipping he could have crossed in safety. The jury were not bound by Mrs. Higgins’ estimate of the distance separating Canerdy and the car when he stepped upon the track. Since he was between her and the approaching car, and the only light came from the car itself, her estimate of distance must necessarily be very unreliable, and in fact little more than a guess. The time required for the car to run less than its own length, at “a pretty good rate of speed,” would be so short that the jury might well find that it started at about the same time that Mr. Canerdy stepped upon the track, and ran him down because he was unable to recover himself in time after slipping. Whether Mr. Canerdy was justified in-attempting to cross the 'track, under the surrounding conditions, was a question for the jury, and not for the court. McQuisten v. Railway Co., 14? Mich. 67; Chauvin v. Railway, 135 Mich. 85; Edwards v. Foote, 129 Mich. 121; Fehnrich v. Railroad Co., 87 Mich. 606.

Another question is presented by the brief for defendant, which “arises from the testimony showing the place where, and the condition in which, the body was found, and the testimony given in connection therewith, to the effect that it was impossible for the body to have been found in the condition in which it was if the deceased had gotten under the rear end of the car as it backed down.” Upon this subject, the court instructed the jury, as follows:

“You should also consider and determine what part of the car Mr. Canerdy first came in contact with, and how he came to be in the position in which he was found under the car. In this connection the court says to you that the defendant claims the deceased was not struck by the front end of the car, but that he came up to the side of the car and slipped, and then in some manner slid under the space between the forward and rear trucks of the car. It is your province to determine the reasonableness or unreasonableness, the truth or falsity, of this theory in the light of all the evidence, facts, and circumstances. If you find that Mr. Canerdy came to his death in this way — that is, by slipping under the side of the ear — then the court says to you there can be no recovery here by this administratrix, for then his death was caused, either by his own negligence, for which he only was responsible, or by an accident for which no one is responsible.”

No exception was taken to this portion of the charge, nor is there any assignment of error based specifically thereon. The only assignment which could possibly cover the subject is the third, viz.:

“ The court erred in refusing to instruct the jury, as requested in defendant’s first request to charge.”

The first request to charge was as follows:

“Under the pleading and proofs in this case, the defendant is entitled to your verdict.”

The third assignment of error was, in effect, therefore, that the court erred in refusing to direct a verdict for defendant. Such an assignment is not sufficiently specific to require consideration. Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433; Wolfe v. Stack, 153 Mich. 445.

There are no other questions which, in our opinion, require discussion.

The judgment is affirmed.

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


text:
    RANDALL v. UNION TRUST CO.
    Trover and Conversion — Bonds—Pledge—Payment.
    In an action for the conversion of certain street-railway bonds, pledged as security for the payment of the construction and equipment of a street railway, evidence examined, and held, that the bonds were not pledged as security merely, but that plaintiff and his associates, who were the active promoters of the enterprise, occupied relations analogous to a partnership, and that defendant was authorized by an agreement with plaintiff’s associates on the final settlement of the corporate affairs to destroy the bonds.
    Error to Wayne; Mandell, J.
    Submitted January 18, 1909.
    (Docket No. 33.)
    Decided April 6, 1909.
    Trover by James A. Randall against the Union Trust Company. ' There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John J. Speed (Fred A. Baker, of counsel), for appellant.

      Russel, Campbell, Bulkley & Ledyard (Orla B. Tay lor and Henry M. Campbell, of counsel), for appellee.
   Hooker, J.

James A. Randall, the plaintiff, Seymour Brownell, and Edward W. Voigt, embarked in an enterprise of building an electric railway from Detroit to Farmington, with two branches, one to Orchard Lake and another to Southfield. In furtherance of this design, they organized a railroad corporation with a capital stock of $500,000; the three persons named being subscribers for nearly all of the stock in substantially equal proportions.

It is stated by counsel for defendant — and we discover nothing to the contrary — that no cash was put into this enterprise; it being the scheme of these parties to provide for building and equipping the road by a sale of its bonds to the public. Accordingly an issue of $900,000 in bonds was authorized and made. Substantially coincident in point of time, and as part of the plan, the same parties organized the Wolverine Construction Company, with a capital of $20,000, of which $5,000 was paid in. When the bonds were provided for, the arrangement appears to have been that $260,000 should be delivered to Randall, Voigt, and Brownell as the price of two short stub lines, which they appear to have owned and which they conveyed to the Detroit & Northwestern Company, $80,000 were to be set aside for the Southfield branch, and the remaining $560,000 were to be used to build and equip the road. It is obvious that, if this plan had not miscarried, the three persons mentioned (with a few nominal associates) would have owned all of the stock of the road and $260,000 of bonds. Accordingly the Detroit &• Northwestern Company made its mortgage of the property to the Union Trust Company, its trustee, to secure said bonds. The date of this mortgage appears to have been omitted from the record, but we assume that it was May 1st; that being mentioned in a contract of that date as the date of the bonds. That contract was executed by the Wolverine Construction Company, Randall, Randall, trustee, Brownell, and Voigt, as parties of the first part, and Frederick W. Hayes, party of the second part. It recited the execution of the bonds and mortgage, and the fact that they were owned as follows: Wolverine Construction Company, $640,000; Voigt, Brownell, Randall, and Randall, trustee, $360,000. It provided that Hayes should sell for the parties of the first part all of said bonds at prices stated. The proceeds should be paid over to the parties to whom they belonged; i. e., $640,000 to the Wolverine Construction Company and $360,000 to “the other parties of the first part, according to conditions” thereinafter contained. It also provided for compensation for this service. It provided, further, that the $360,000 bonds “belonging to parties of the first part, other than the Wolverine Construction Company,” should be delivered to Hayes at once, and they should be held by him, and the Preston National Bank, of which he was president, in part as security “for the debt” to said bank of $160,000, “for which said debt said parties of the first part other than the said Wolverine Construction Company, Ltd., are obligated to said bank. Said bonds shall also be held in part as a guarantee for the completion and full equipment of said railway.” Said contract provided:

“Out of said $360,000 face value of said bonds so delivered to the party of the second part, he shall hereafter sell, as convenient to him, and on or before January 1, 1900, a sufficient number thereof at the price above stipulated to pay to the Preston National Bank the sum of $60,000 to be applied upon certain indebtedness of $160,000, and also a further sufficient number to pay the sum of $6,000 now owing to Edward W. Voigt, from the said the Detroit & Northwestern Railway Company, provision for the payment of which is made by the delivery to said Edward W. Voigt, Seymour Brownell, James A. Randall, and James A. Randall, trustee, of its bonds, being part of the said $360,000 of bonds above mentioned. The balance of the funds in the hands of the party of the second part arising from the sale of said bonds to raise said sum of $66,000 being under $1,000 shall be by the said second party paid to the Preston National Bank upon the balance of said debt of $160,000. The residue of said $360,000 of bonds then remaining in the hands of the party of the second part, after said sale to raise said sum of $66,000 or the proceeds arising from the sale thereof, shall be by him retained until said railway is fully equipped and completed, when, if any are unsold, they shall be sold by the party of the second part at the price above stipulated, and the proceeds thereof, together with any cash in his hands arising from the sale of bonds, shall be used, first, to liquidate the balance of the said debt of $160,000; and, second, the remainder shall be paid over by the party of the second part to the parties of the first part hereto, except the said the Wolverine Construction Company, Limited, upon their joint receipt therefor.”

Other provisions more particularly relating to the Wolverine Company, its obligations and rights, are omitted, being unimportant in this connection. The contract also includes the following provision:

“ It is understood and agreed that this contract is made for the purpose of providing the necessary funds as needed to construct said extensions and improvements, and to provide the necessary material therefor, and that said the Wolverine Construction Company, Limited, has entered into contracts for materials, and will enter into contracts for the purpose of further materials and for the performance of work relying upon the proceeds of sales of said bonds to pay for the same; and, if said sales are not made fast enough to provide funds as required to purchase said materials and pay for said work, it shall be competent for said first parties to terminate this contract on that ground after such default by giving fifteen days’ notice in writing to said second party of their intention to so terminate the same on that ground, provided that within such fifteen days such default is not made good.”

The bonds were guaranteed by the Union Trust Company, and all but the $80,000 were issued. They were never issued and are of no significance in the controversy.

The road was completed and equipped, and by the end of 1900 the company was insolvent, the road having cost it upwards of $1,000,000, represented by its bonds and its debts up to that time. It is said that the bonds netted less than $450,000, and that the remainder of the cost was provided for by obligations of the company, some of which were secured by the $260,000 bonds, which belonged to the projectors of the road, collectively; the rest being carried upon the indorsement of the projectors, including Randall. It became evident that, if the projectors did not make some provisions for the outstanding obligations, the road must go under the hammer at a large loss. An arrangement was finally made for its sale to the Detroit United Railway. This agreement was in writing and is somewhat lengthy. In brief, it was that the Detroit & Northwestern agreed to sell its railway and sell its property free and clear from all debts and obligations as of date May 1, 1901, for $855,000, payable in gold bonds, the same to be part of an authorized issue of $1,000,000 of bonds of said date, to be issued by the Detroit & Northwestern Railway or a new street railway to be organized to take over the property, the payment of principal and interest to be assumed by the Detroit United Railway. It was also agreed that not less than $489,300 of the capital stock should be transferred to the Detroit United Railway. This agreement, containing a guarantee and many other provisions, was duly executed. The agreement was carried out, payment being made of all outstanding obligations; Mr. Yoigt and perhaps others paying in the aggregate $200,000 or thereabouts in addition to the $855,000 of bonds which were applied through the Union Trust Company. The outstanding first mortgage bonds were obtained either for cash or by exchanging the second mortgage bonds for them. The $260,000 bonds held by the Union Trust Company to whom they had been delivered by Hayes were destroyed. To carry out the undertaking, it was necessary to use Randall’s stock. This he assigned to Hecker, but, as he was an indorser under an agreement with his associates dated July 10, 1900, he required and obtained assurances of protection therefrom, and paid no part of the loss sustained by his associates through their payment of a deficiency of about $200,000. He also obtained the sum of $10,000 to be paid to his wife, for whom he appears to have been trustee. The matter being brought to a conclusion in the way stated, Mr. Randall made a claim that, the debts being paid, he was entitled to one-third of the $260,000 of bonds issued to his associates and himself, and brought this action against the Union Trust Company, in whose possession they were when destroyed and the mortgage discharged for their conversion. His claim was, in brief, that they were deposited as security, that they were never lawfully sold and applied, and that upon payment by the Detroit & Northwestern of its debts, for which he and his associates were mere sureties, they were discharged and entitled to their bonds, or, as stated in one of the briefs of the plaintiff:

“Under the law of sureties, Randall’s entire one-third interest in the 259 bonds was released and discharged from all liability the moment the indebtedness of $188,353.82 for which they were collateral was paid, without regard to the method or means by which the Detroit & Northwestern Railway issued the securities or raised the money to make the payments.”

If this were a case where Randall and his associates stood in the position of a mere surety to the Detroit & Northwestern Railway Company, and the Detroit & Northwestern Railway Company managed to perform the obligation for which they were sureties, there would be more force in the contention of plaintiff’s counsel that they were released from their obligation and entitled to their stock, but there is more to this case than that. If the arrangement that the three promotors entered into and maintained throughout was not sufficient to make them copartners in the enterprise, it certainly had some resemblance to a copartnership. So far as we can judge from the circumstances, they owned the stub lines in common. It is true we do not know in whose name that. property stood. We do not know whether they acquired them by purchase of stock; indeed, we do not know that those lines were ever owned by any corporation issuing stock until they were sold or turned over to the Detroit & Northwestern Company, nor how this was accomplished. These things are unimportant, hut we do know from this record that the price received was $260,000 of bonds. They do not appear to have been issued to the respective individuals, or delivered to them individually. Apparently they were turned over to the promoters. They do not appear to have been taken with the expectation of immediate division as the proceeds of a sale of property held in common. On the contrary, they were to be used in the further transactions because they were necessary to secure their joint obligations, given for the stub lines perhaps, and to help float the remainder of the $900,000 of bonds, through which they hoped to ultimately acquire practically the roads they had just sold, a new railroad, and whatever they could save of the $260,000 bonds. They continued this enterprise until their road was built and equipped and overloaded with debt, for which they were all personally liable, to a greater or less extent, by reason of their personal indorsements. Then it was that they attempted to save what they could out of the wreck. Can any one doubt that these three men were under relations to each other that required them to share the profits and losses, that they so understood it, and that a court of equity would have compelled it whether it called them co-partners or not ? We have no difficulty in finding clear evidence in this record warranting the conclusion that Randall knew and consented to this sale, and that he did not suppose that the Detroit & Northwestern Company could comply with the terms of the agreement to pay all of its debts including these bonds from its own resources. None of the parties expected it to. We believe that Randall was not ignorant of the price received, viz., $855,000, nor do we believe that he ever thought it could pay $900,000 of bonds and accrued interest, besides other debts, with that sum, which was the only property that it could have after the sale, under the terms of the contract, for it agreed to sell all. He knew that his associates must pay large sums because of their mutual indorsements, increased because of his own release therefrom, yet he would have us say that he supposed the $260,000 of bonds due to the promoters were to be paid by them also. We are unable to believe in any such understanding on the part of anybody, and we have no doubt of the justice $f the conclusion that it was expected that the $260,000 of bonds held in common by these persons were to be canceled after satisfaction of the debts they were given to secure, and that Voigt and Brownell had the right to have this done, and it is in our opinion a perfect defense to the action, as to the Union Trust Company.

We find no error, and the judgment is affirmed.

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


author: Blair, 0. J.

text:
    LATTIN v. LATTIN’S ESTATE.
    Estates of Decedents — Claims—Evidence—Sufficiency.
    In a claim against the estate of decedent, based upon certain certificates of deposits, evidence examined, and held, insufficient to support the claim, and a verdict was properly directed for defendant.
    Error to Oceana; Sessions, J.
    Submitted January 21, 1909.
    (Docket No. 160.)
    Decided April 6, 1909.
    Henry Lattin presented a claim against the estate of Sylvester Lattin, deceased, for moneys claimed to belong to claimant. The claim was disallowed in the probate court, and claimant appealed to the circuit court. There was judgment for defendant on a verdict directed by the court, and claimant brings error.
    Affirmed.

      F. E. Wetmore and Wallace Foote, for appellant.

      C. B. Stevens and Fred J. Bussell, for appellee.
   Blair, 0. J.

Claimant, a brother of deceased, filed the following claim against his estate :

“In the matter of the estate of Sylvester Lattin, deceased;
Henry Lattin, claimant.
“To money deposited in the banks in the village of Hart, on or about January 15th, 1902, and afterwards drawn out by the said Sylvester Lattin, which said money belonged to the above named claimant.............................$2,000 00
“To interest on above sum....................... 350 00
$2,350 00”

The claim was disallowed by the probate court, and an appeal taken to the circuit court, wherein the following bill of particulars was filed:

“1902, Jan. 21. To amount due claimant from said Sylvester Lattin, on account stated be-
tween them..................................$2,000 00
“1902, Jan. 21. To balance due claimant....... 2,000 00
“1902, Jan. 21. To certificate of deposit belonging to claimant, which was dated Jan. 21,
1902, which was collected by said Sylvester
Lattin, Jan. 21, 1903 _________________________ 1,000 00
“1902, March 24. To certificate of deposit belonging to claimant,, dated March 24, 1902, and which was presented and collected by the said Sylvester Lattin on the 24th day of March,
1903 ..................-........-.......... 1,000 00
“ July 19, 1905. To interest to date............. 350 00”

At the conclusion of claimants’ proofs, the circuit judge directed a verdict for defendant, saying:

“ In my judgment there is no evidence in this case which would warrant you in rendering a verdict against this estate. The claim is upon two certificates of deposit, and there is no evidence in the case that shows that those certificates of deposit or either of them ever belonged to this claimant, were ever in his possession, or that he ever had any interest in them in any way, shape, or manner, and in my judgment there is no theory upon which this claimant, under the evidence in this case, would recover, and your verdict will be for the defendant.”

Claimant has brought the case to this court for review upon writ of error, and the sole question for our consideration is whether there was any evidence to sustain the " claim which should have taken the case to the jury. Claimant put in evidence three certificates of deposit, as follows:

“Exhibit A. is:
“ ‘ Citizens’ Exchange Bank, No. 17773, Hart, Mich., Jan. 21, 1902, $1,000.00. [Then above it the figures,
“ $25.00.”] S. Lattin has deposited in this bank one thousand dollars, payable to Henry Lattin, or bearer, on the return of this certificate properly indorsed.
“ ‘A. S. White.5
“And stamped upon the face of it is: ‘ Paid Jan. 21st, 1903. Citizens’ Exchange Bank.5 And placed upon it with a rubber stamp is: ‘ Upon 30 days’ notice if desired by the bank, with interest at 2£ per cent, per annum, for all full months, if left six months. Interest to cease after one year.’”
“Exhibit B: ‘Citizens’ Exchange Bank, Hart, Michigan. January 21st, 1903. $2,000.00. S. Lattin has deposited in this bank $2,000.00, payable to Sarah Jane Stewart or bearer, on the return of this certificate, properly indorsed.
[Signed] “ ‘A. S. White,5 and on the back is, ‘S. Lattin.5 55
“Exhibit C: ‘Citizens’ Exchange Bank, Composed of , A. S. White, F. J. Russell and J. K. Flood, Copartners, Hart, Michigan, March 24th, 1902. $1,000.00. [And in ink above it, “Interest paid $25.00.’’] S. Lattin has deposited in this bank one thousand dollars, payable to the order of Henry Lattin, on the return of this certificate properly indorsed.
[Signed] “ ‘A. S. White.5 And on the face of it is stamped: ‘ Paid March 24th, 1903. Citizens’ Exchange Bank, Hart, Michigan.5 On the back appears: ‘Pay to S. Lattin. Henry Lattin’ — and below is the signature of S. Lattin.”

Exhibit A was paid by being included in Exhibit B, which was afterwards paid to Sylvester Lattin, and Exhibit C was also paid to him. The $25 in Exhibits A and C represented interest paid on the certificates.

Horace Lattin testified, in substance, that some time in the fall of 1903 Sylvester sent him to the bank with a certificate of deposit for $500, payable to Sarah Jane Stowitts (whom we take to be the same person as “Sarah Jane Stewart”), a sister, with instructions to collect the interest, but the banker counted out to him the principal and interest, and on his return to Sylvester:

‘ ‘ I said: ‘ Mr. Mathews tells me that you wrote him to pay me the within amount. ’ ‘.Well, ’ he says, ‘ Horace, I was careless. I should have said the interest on the within amount.’ And from that I says: ‘ What was the
object in putting this in Sarah Jane’s name ? ’ He says: ‘ Simply because it was hers.’
“Q. Who did you mean by Sarah Jane?
“A. Our youngest sister, Mrs. Sarah Jane Stowitts.
“Q. What further was said ?
‘A. He says: ‘ It is her money, and that is why I put it there. It is her money and not mine.’ Then I said, ‘now, this is embarrassing, but I will state it,’ I says: ‘ Did you put this money there to save taxes ?’ And he says: ‘No, sir; I put it in there because it is her money, and not mine. I put it in there for her, also, I have the same amount,’ he says, ‘in the bank belonging to our brother Henry, and also to our sister Marietta Herrick, of Carson City, Nev.’ * * * At the time I took the certificate of deposit to the bank, in the fall of 1903, and drew the interest on it, Sylvester told me that he was going to make each of us, all his living brothers and sisters, a present. I don’t think he stated the amount. He had made the same statement to me at a previous time. * * * I said that he said — at least I intended to have said these words — that he says, ‘Horace, I have put the same amount of money in the bank for our brother Henry and Marietta,’ and I says, ‘Did you do this to save taxes?’ And he says, ‘No; I did it because if is their money, and not mine.’ * * *
“ Q. How do you know that certificate that you took to the bank was made out in the name of Sarah J. Stowitts ?
“A. Because Mr. Mathews told me so, and my brother told me so after I returned to his place.
‘ ‘ Q. He stated to you at that time that this $500 that was deposited here in the name of Sarah J. Stowitts — I am not putting this exactly as I want to, but he stated that he had deposited in the bank an equal amount for Henry Lattin ?
“A. He did.”

He also testified that about 1899 he had a talk with Sylvester.

“ He told me he was loaning money for my brother Henry and for my sister Sarah Jane especially, and, it seems to me, others, and I have tried today noon to think, but I cannot remember who it was he told me, but I know he told me those two. * * *
“Q. He told you how much he was loaning for them, I suppose, at that time ?
“A. I don’t remember whether he did or not.”

Sylvester Lattin died July 28, 1904.

We concur, in the opinion of the circuit judge that there was no evidence to support the claim. The testimony of Horace does not tend to show that the certificates belonged to Henry. The most that can be claimed for Horace’s testimony is an acknowledgment by Sylvester in the fall of 1903 that he had put $500 in the bank, which belonged to Henry, and “that he was loaning money for different parties,” and an acknowledgment in 1899 that he was loaning money for Henry. The certificates of deposit never came to the possession of Henry, but were retained and used by Sylvester as though they were his own property. No checks or drafts passed through the bank between the two. There was no evidence of the payment of any interest by Sylvester to Henry, nor of any correspondence between them. The alleged conversation in the fall of 1903, although after the making of the certificates, related to deposits of $500 for Sarah Jane, Marietta, and Henry, and the books of the bank showed no such deposits. The alleged fact that in 1899 Sylvester was loaning some indefinite sum of money for Henry was not sufficient to connect the certificates of deposit with such loan, in view of the fact that they never left Sylvester’s possession, and were used as his own. It is clear that there was no executed gift of the certificates, and, apart from the alleged admissions of Sylvester of facts which, for the most part, did not exist, there was no evidence that he ever had any money from Henry.

The judgment is affirmed, with costs against the appellant.

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