text:
    LANNING v. PALMER.
    1. Drains — Cleaning—Notice on Letting Contracts.
    Act No. 227, Pub. Acts 1885, as amended by Act No. 203, Pub. Acts 1893, provides ( chapter 8, § 1) that, whenever a drain shall need widening or extending, the same proceedings shall be had as in case of locating and constructing a drain in the first instance. The same section provides for the cleaning out of established drains upon the application of a majority of the owners of lands assessed for the original construction, and makes it discretionary with the commissioner to fix the assessment in such case on the same basis as for the original construction. Held, that service of personal notice of the time and place of letting contracts for the cleaning out of a drain, upon persons whose lands are subject to assessment therefor, is unnecessary, where the drain is not to be deepened. or widened as well.
    2. Same — Application—Averments.
    The fact that a petition for cleaning out a drain suggests also its deepening does not make it incumbent upon the commissioner to follow the procedure prescribed by the statute with respect to the deepening and widening of drains, where it is clear that cleaning only is contemplated by the petitioners.
    3. Same — Jurisdiction.
    Where the petition in proceedings under the drain law is in due form, the commissioner has jurisdiction, regardless of subsequent irregularities.
    4. Same — Irregularities—Certiorari.
    Proceedings for cleaning out a drain will not be set aside on certiorari for mere irregularities, after the work has been completed, at the suit of property owners who made application for the improvement and acquiesced in the work.
    Error to St. Joseph; Yaple, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Certiorari by Ezra Lanning, John Ealkenstine, Jr.,. and others, to review the proceedings of Charles A. Palmer, county drain commissioner, in the matter of cleaning out a drain. The circuit court dismissed the writ, and plaintiffs bring error.
    Affirmed.

      Hugh P. Stewart and Burritt Hamilton, for appellants.

      George H. Arnold, Prosecuting Attorney (Alfred Akey, of counsel), for appellee.
   Long, J.

Certiorari to review the proceedings of the defendant, as county drain commissioner, to clean out what is known as “Section Sixteen Drain” in St. Joseph county. The cause was heard in the circuit court, and comes into this court by writ of error. The court below dismissed the writ of certiorari'.

It appears that on March 1, 1897, all the plaintiffs in the writ of certiorari but Falkenstine petitioned the county drain commissioner, stating in the petition that—

“The said drain needs cleaning out from the north line, south'170 rods or more, to the half-section line; that such cleaning out and deepening is a necessity by reason of agricultural purposes. And your petitioners do hereby make application, and respectfully request, that said section sixteen drain may be cleaned out, in accordance with the provisions of Act No. 227 of the Public Acts of 1885, as amended.”

Such proceedings were thereafter had that contracts were let, the drain cleaned out, and an assessment made for the cost of the work.

While several grounds of error are set out in the affidavit for the writ, we shall notice those only which are discussed in the brief of plaintiffs’ counsel.

It is claimed that no notice was given, as required by the statute, of the time and place of letting, by serving personal notice upon every person whose lands were affected by such assessment. The proceedings were had under the provisions of Act No. 227, Pub. Acts 1885, as amended by Act No. 203, Pub. Acts 1893. Section 1 of chapter 8 of the latter act provides for the cleaning out of established drains upon the application of a majority of the owners of the lands assessed for the original construction; that the assessment for the work in cleaning out the drain may, in the discretion of the commissioner, be upon the same per cent, fixed for the original construction thereof. This same section provides that, whenever any such drain shall need widening or extending, the same proceedings shall be had throughout in every respect as provided in the act for locating and constructing a drain in the first instance. "While the petition suggests the deepening of the drain, yet the petition and the subsequent proceedings show that it was intended to ask only a cleaning out of the drain; and the commissioner returns to the circuit court in his return to the writ of certiorari that—

“This defendant, acting under the petition, did not deepen said drain, and in cleaning out said drain did "not go to the depth as established by William McLoughlin, when he was called out in 1892 as aforesaid, and did not dig as wide as said McLoughlin had then established; and that he fixed the assessments in the same proportion as was fixed by McLoughlin.”

As the statute of 1893 provided, it was only when widening or extending that the same proceedings were necessary as in the construction of the drain. The commissioner did not widen or extend the drain. It was the evident intent of the legislature that, in the cleaning out of the drain, the commissioner need not take the same steps as in the original construction of it. The land had been already condemned for that purpose. In cleaning out, the commissioner was simply working upon land already appropriated for the drain. Had this been an original proceeding to construct the drain, then the notice would have been necessary. As the defendant was not constructing a new drain, it was not necessary to take the steps required by the act in such cases. A petition was filed with him, as required by the act, and he let the contract to the lowest bidders to clean out the drain. The petition was in due form, and conferred jurisdiction upon the commissioner. Hall v. Slaybaugh, 69 Mich. 484.

The other questions raised relate to mere irregularities in the proceedings. The original drain was legally laid out. The contracts for cleaning out were carried out, and the work is completed. The plaintiffs here petitioned for the cleaning out, and now seek to avoid the payment of the expenses by having the proceedings set aside. They acquiesced in the work, and cannot now be heard to complain. Tucker v. Parker, 50 Mich. 5; Whitbeck v. Hudson, Id. 86; Brady v. Hayward, 114 Mich. 326.

The judgment of the circuit court must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    REYNOLDS v. GAERTNER.
    Deeds — Reservation—Construction.
    A deed conveying a specified half of a quarter section, “except” a specified number of acres conveyed to a specified railroad company, does not entitle the grantee therein to the land conveyed to such railroad company upon its abandonment of its road, under a provision in the deed to such company that, in case the railroad should cease to be occupied for railroad purposes, the right of way granted to the company should terminate.
    Error to Monroe; Kinne, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.
    Ejectment by Edmund W. Reynolds against Herman ' Gaertner. ’ From a judgment for defendant, plaintiff brings error.
    Reversed.

      John O. Zabel and Willis Baldwin, for appellant.

      C. A. Golden and G. M. Landon, for appellee.
   Long, J.

Action of ejectment. The court below made findings of fact and law, from which it appears that on the 16th day of August, 1873, the plaintiff was in possession of, and the owner in fee simple of, the N. of the N. E. £ of section 33, town 6 S., range 6 E. On that day he conveyed the strip in dispute to the Chicago & Canada Southern Railroad Company, by the following description and terms:

•“ The right to enter upon, construct, maintain, and operate its railroad and appurtenances in and upon the following-described premises, to wit: The north one-half of the northeast quarter of section thirty-three, town six south, range six east,— and to use and occupy for its railroad a strip of land one hundred feet in width across said above-described premises, as the same is now located thereon by said company; reference being had for a more definite description of the said strip of land to the map of the route of said company on file. ”

This grant was made upon the condition that the said railroad should be completed through said premises within three years from the date thereof, or, if such railroad should cease to be occupied for railroad purposes, then the right of way granted under such conveyance should terminate. It is admitted that the said strip has been abandoned by the railroad company, and ceased to be used for railroad purposes, and that the defendant took actual possession thereof.

On March 14, 1881, the plaintiff conveyed the following premises to the defendant, to wit:

“The north one-half of the ¡northeast quarter, except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad, in section thirty-three, town six south, range six east.”

Each of the parties to this suit now claims to own the tract so abandoned by the railroad company, so excepted as aforesaid in defendant’s deed. The court found in his conclusions of law that the deed from plaintiff to defendant conveyed the fee of said strip to the defendant, and that the defendant was entitled to retain possession of the same.

The plaintiff claims that the strip in question was excepted in the deed, and that no interest therein passed to the defendant, and that on its abandonment by the company it reverted to him. The contention of counsel for defendant is that the conveyance to the railroad company was only of a right of way; — -an easement, — and that the company was not entitled to take and hold more than that, and that the plaintiff, in his deed to the defendant^ meant to except only that which was granted to the railroad company, to wit, the easement. The deed is not susceptible of such construction. The language, “except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad,” means that the plaintiff conveyed to the defendant all the land described, excepting therefrom the 2.46 acres. It is the general rule that, where a general description in a deed is followed by a clause stating the intention of the parties as to the premises conveyed, such clause will have a controlling effect upon all prior phrases used in the description. Plummer v. Gould, 92 Mich. 1 (31 Am. St. Rep. 567). In Wait v. Baldwin, 60 Mich. 622 (1 Am. St. Rep. 551), it appeared that the plaintiff conveyed the land, and inserted in the deed, after the description, the.words, “excepting timber therein.” It was held that the title to the timber remained in the plaintiff. In Vincent v. City of Kalamazoo, 111 Mich. 230, it appeared that the deed conveyed a lot in the defendant city, except so much thereof as was “set apart for sidewalk purposes.” It was held that the land excepted was not included in the deed. See, also, Reidinger v. Cleveland Iron Mining Co., 39 Mich. 30.

Under the facts found by the court below, the judgment should have passed in favor of plaintiff. Judgment reversed, and judgment entered here for the plaintiff on the findings, and case remanded for further proceedings under-the statute.

The other Justices concurred.


text:
    UNION NATIONAL BANK OF TROY v. WILLIAMS MILLING CO.
    1. Bills and Notes — Certieioate oe Protest — Requisites.
    A certificate of protest in the following form: “I, H. W., notary public, do hereby certify that I have this day duly protested for nonpayment the annexed bill,” though properly dated and signed, is insufficient; a specification of the place and manner of presentment, and the person to whom presentment was made, being necessary to bind indorsers.
    2. Same — Postdating.
    Under 1 How. Stat. § 632, making certificates of protest presumptive evidence of the facts contained therein, a certificate in proper form will be presumed to set forth the facts correctly, though dated more than six months after the actual protest.
    Error to Bay; Maxwell, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.

      Assumpsit by tbe Union National Bank of Troy against tbe Williams Milling Company, Frank D. Pierson, and George L. Mosher on a promissory note. There was a judgment against the milling company alone, and plaintiff brings error.
    Reversed.

      T. A. E. & J. C. Weadock, for appellant.

      T. F. Shepard, for appellees.
   Long, J.

This action was brought in assumpsit against the defendant Williams Milling Company (a corporation) as maker, and defendants Frank D. Pierson and George L. Mosher as indorsers, of a promissory note. The declaration is upon the common counts, to which is added a copy of the note sued upon, and a notice that the note constituted the plaintiff’s sole cause of action. Defendants pleaded the general issue. Upon the trial the defendants claimed that the notice of protest attached to the note was insufficient to bind defendants Pierson and Mosher as indorsers. It appeared that there was attached to the note the following certificate:

“United States oe America, State of New York.
“I, Henry Wheeler, notary public, do hereby certify that I have this day duly protested for nonpayment the annexed bill.
“Troy, December 14, 1896.
[Seal.] “H. Wheeler, Notary Public.”

When this note and certificate of protest were offered in evidence, the court below held that the certificate was insufficient, in that it did not show that payment of the note was demanded at the place of payment, or what the notary did, if anything, to notify the indorsers, and that plaintiff could not recover against the indorsers. The case being on trial before the court, an adjournment was given from May 13th to June 8th following, when the plaintiff again produced the note, and a certificate of protest, purporting to be made by the same notary, in due and legal form, which would have entitled the plaintiff, if attached to the note in the first instance, to hold the indorsers. It was conceded that this certificate was made out after the former partial hearing on the 13th of May, by the attorney for the plaintiff, drawn upon his typewriter at Bay City, Mich., and sent to the plaintiff bank, at Troy, N. Y., and there signed by the notary, and returned, without any change or alteration whatever being made in it as drawn at Bay City. The plaintiff then rested its case, and no other testimony was given upon the trial by either party. The court found that neither certificate was sufficient evidence of the protest of the note; that the second certificate was made more than six months after the actual protest of .the note, and was not proof of the facts therein stated. Judgment was given for the plaintiff against the Williams Milling Company, as maker of the note, and in favor of defendants Pierson and Mosher.

Section 632* 1 How. Stat., makes such certificates presumptive evidence of the facts contained therein in all courts of this State. Counsel for plaintiff contend that the first certificate was sufficient evidence of the due presentment and protest of the note.. We cannot agree with this view. The essentials of a protest are the time, place, and manner of presentment, demand, and dishonor, the person by whom and to whom presentment was made. 2 Daniel, Neg. Inst. § 950. Where a bill is payable at a hank, the protest must state a demand made there. People’s Bank v. Brooke, 31 Md. 7 (1 Am. Rep. 11); Nave v. Richardson, 36 Mo. 130. None of these requisites is shown in the first protest. The place and manner of presentment are wholly lacking, and the person to whom the presentment was made is not stated. The purpose of the statute is to avoid the necessity of calling the notary, and to make his certificate prima facie evidence. The evidence contained in the first certificate was not sufficient to warrant a judgment against the indorsers.

But counsel further contend that at least the court was in error in refusing to enter judgment after the Second certificate was received in evidence. In this contention we think counsel are correct. In Burkam v. Trowbridge, 9 Mich. 209, it was said:

“The object of this notice has always been held to be merely to bring home to the party sought to be charged information that the paper has been presented at maturity, and dishonored, and that he is looked to for payment. * * * The protest of a note includes, by natural inference, the timely demand and refusal which alone could justify it; and a notice of protest, therefore, is an inferential statement of these.”

Our statute makes such certificate of protest prima facie evidence. A proper certificate is annexed to the note, and the only objection made is that it does not bear date as of the day the presentment was made. If a note or memorandum had been made by the notary at the time he made the presentment, showing what was done, and time when, a certificate made up from that memorandum would have been sufficient. Bailey v. Dozier, 6 How. 23. In New York even this memorandum would not have been necessary, but the certificate of the notary is held to b & prima facie evidence of the facts recited in it, though the certificate be made and dated two years after the date of presentment. Cayuga County Bank v. Hunt, 2 Hill, 635. We cannot presume that the notary did not do all that is stated in his certificate, though the certificate is dated six months after the date of presentment. The presumption, under this statute, which makes the certificate evidence, is that the certificate correctly sets out the facts.

The judgment below must be reversed, and judgment entered here in favor of the plaintiff against all the defendants.

The other Justices concurred.


text:
    BLISS v. FRENCH.
    1. Equity Practice — Bill of Interpleader — Injunction — Producing Money in Court.
    Complainant in a bill of interpleader should offer to bring into court any moneys acknowledged to be due from him, and, where he asks an injunction, it should be granted only on condition of his complying with such offer.
    2. Same — Demurrer.
    The omission of such offer does not, however, render the bill demurrable.
    3. Same — Affidavit of Noncollusion — Execution by One Co-partner. .
    An affidavit of noncollusion, accompanying a bill of interpleader which states that the complainants are copartners, is sufficient, though sworn to by but one of them.
    4. Same — Case Made by Bill.
    A bill of interpleader showing that the complainants have no interest in a fund representing the price of timber purchased by them, and that it is claimed by an assignee of the seller, •and also by another person, who claims that the property belonged to him when sold, and that certain other persons assert liens thereon for labor, states a case for equitable relief.
    Appeal from Saginaw; Wilber, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.
    Bill of interpleader by Aaron P: Bliss and Willis G. VanAuken, copartners, against Myron H. and Fremont F. French, copartners, Claude E. Bedson, Wealthy A. Harvey, Joseph J. Harvey, John A. McKay, Carrie E. Bedson, James Bowers, Thomas Fowl, David Johnson, and Charles Grosvent. From an order overruling a demurrer to the bill, and denying a motion to dissolve a temporary injunction, and allowing a discontinuance as to the five defendants last named, all of the defendants, except defendants French, appeal.
    Modified as to injunction.

      Wood & Joslin, for complainants.

      James E. Duffy (William T. Yeo, of counsel), for defendants French.

      John A. McKay, for appealing defendants.
   Long, J.

March 6,-1897, defendant Claude E. Bedson entered into a contract with complainants, by the terms of which he sold to them a quantity of hemlock saw-logs, upon which complainants admit a total indebtedness of $339.60, but claim a set-off for freight of $185.51. Defendant Bedson, being indebted to defendant Wealthy A. Harvey, assigned to her all moneys due, or to become due, from complainants, and gave her a bill of sale of all logs and wood owned by him. This bill of sale was duly filed in the office of the township clerk. Wealthy A. Harvey assigned this claim to the defendant Joseph J. Harvey, who in turn assigned it to defendant McKay. It is claimed that the complainants had notice of these assignments. Defendants French & Co. demanded this money from complainants on the ground that they owned the logs sold by Redson to complainants. The other defendants filed claims upon the property for labor liens. Complainants filed this bill of interpleader, and offered to pay the fund into court! On filing the bill, an injunction was issued to -restrain the commencement of suits by the various parties. A motion was made by several of the defendants for a dissolution of the injunction. Others of the defendants demurred to the bill. The motion to dissolve the injunction, as well as the demurrer, were overruled by the court. In the meantime complainants petitioned the court to be allowed to discontinue the proceedings against the lien holders, Carrie E. Redson, James Bowers, Thomas Fowl, David Johnson, and Charles Grosvent, and this motion was granted. The defendants French & Co. answered the bill, and asked for affirmative relief in the answer in the nature of a cross-bill. An answer was filed by complainants to this cross-bill. All the defendants except French & Co. appeal.

It is contended that no injunction nor any other order in a bill for interpleader can be made until the money has been brought into court. It appears that no suits at law had been commenced when the bill was filed, and that those defendants holding labor liens were permitted by the court to perfect such liens. It is the general rule that the party filing a bill of interpleader must offer to bring the money or thing in controversy into court, and, if an injunction is asked for, it will be granted only on condition of his complying with such offer. If an injunction is not granted, it is only necessary to make the offer in the bill, and be in readiness and in a situation to comply with it whenever the court shall • direct the money or other thing to be so deposited. Here an injunction was asked and granted without making a deposit of the money in court. This should have been done before injunction issued, and the injunction must be discharged unless this be complied with. Shaw v. Chester, 2 Edw. Ch. 405; 2 Daniell, Ch. Pl. & Prac. (6th Am. Ed.) *1563, and cases cited in note 10. This omission, however, does not render the bill demurrable. 2 Daniell, Ch. Pl. & Prac. *1563.

It is next contended that the bill was not accompanied by a sufficient affidavit of noncollusion. ' The bill is sworn to by one of the complainants, and states:

“This bill is not filed in collusion with, or at the instance of, any or either of the said defendants, but merely by your orators’ own accord, for relief in this honorable court in the matters and upon the case above stated and set forth.”

The complainants were partners, and it is so stated in the bill. This is a sufficient compliance with the rules of practice. We do not intimate that this case is subject to review on this question.

We think the bill sets up matters calling for equitable relief. The complainants have no interest in the fund, to which there are several claimants. French & Co. claim it, because the timber sold belonged to them when it was sold to complainants. They forbade the payment of the money to Redson or his assignees.

No other question needs discussion. The order below overruling demurrer must be affirmed, and the case remanded for further order as to the deposit of the fund. No costs will be allowed in this court.

The other Justices concurred.


text:
    KOEGEL v. MICHIGAN TRUST CO.
    Banks — Receivers—Assignment of Rent — Set-off.
    An assignment of rent to become due from the receiver of an insolvent bank for the use of a banking office month by-month after the assignment is not subject to a set-off of a debt -which was due and payable to the bank from the assignor when the assignment was made.
    Appeal from Kent; Grove, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.
    Petition of Eva Koegel for 'an order requiring the Michigan Trust Company, as receiver of the Mecosta County Savings Bank, to pay a claim for rent. From an order granting the petition, respondent appeals.
    Affirmed.

      Dunham & Dunham (Kingsley & Kleinhans, of counsel), for petitioner.

      M. Brown, for respondent.
   Long, J.

The Michigan Trust Company was appointed receiver of the Mecosta County .Savings Bank upon the petition of the banking commissioner of the State; and on November 16, 1896, all the property of the bank was turned over to it, and it has been in possession since that time. At the time the bank failed, it was occupying a banking office in the Comstock Block, in the city of Big Rapids. The block was owned at the time of the failure, and ever since has been owned, by Daniel F. Comstock, the president of the bank. Since the receiver was appointed, it has occupied the same banking office in this block, but has paid no rent therefor. On January 9, 1897, Daniel F. Comstock, by an instrument in writing, assigned all the rent due and to become due from the receiver for the. use and occupation of this banking office to his daughter, the petitioner here, who thereafter filed her petition in the court appointing the receiver, to compel it to pay, out of the funds in its hands, her claim for the rent. It was shown that the rental value was $83.33 per month. The court below directed the payment by the receiver for the period from November 16, 1896, to September 17, 1897, at the above rate, amounting to $833.33. The receiver appeals from this order.

At the time the assignment of rent was made, it appears that Comstock was indebted to the bank in the sum of upwards of $63,000, and, in addition, was holden and liable to depositors upon about 20 shares of the capital stock of the bank; and it appears that it' will be necessary to make an assessment upon said stock to pay such liabilities. The bank also owes its depositors about $204,000; and on January 9, 1897, Comstock gave a chattel mortgage for that amount, to secure his own indebtedness to the bank and to secure the depositors. Counsel for the receiver contends that, under this state of facts, the petitioner here took this assignment of claim for rent subject to all the equities between the bank and Com-stock; and the equity he insists upon is the right to set off Comstock’s indebtedness .to the bank of $63,000 against the rent of the bank building. It is admitted by counsel for petitioner that, as a general proposition, the assignment was subject to all the equities between the debtor and the creditor; but they deny the right to the set-off in this case under the facts appearing, — that this large indebtedness from Comstock was past due at the time the assignment was made, while the rent was not due and payable at that time; that this rent became due in monthly installments during the continued future occupancy of the premises by the receiver, and was earned and became due month by month after the assignment to petitioner. In other words, the claim is that a debt which is due and payable from an assignor cannot be set off against an assigned claim which is not due and payable at the time of the assignment.

We think this rule too well settled to need discussion. The claim assigned to the petitioner was not due and payable at the time it was assigned, and therefore no set-off could be allowed against it. Waterman on Set-Off (2d Ed., § 107) lays down the rule that, until a demand becomes mature, a set-off or counterclaim may be defeated by the assignment by the opposite party of his claim, though the latter be insolvent, and his demand has not become payable when assigned. This rule was followed in Bradley v. Thompson Smith’s Sons, 98 Mich. 449 (39 Am. St. Rep. 565); Kull v. Thompson, 38 Mich. 685; Richards v. La Tourette, 53 Hun, 623; Coffin v. McLean, 80 N. Y. 563; Fuller v. Steiglitz, 27 Ohio St. 355 (22 Am. Rep. 312). See, also, 22 Am. & Eng. Enc. Law, 301.

The order of the court below must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    McLENNAN v. BOUTELL.
    Statute oe Frauds — Agreements Relating to Real Estate.
    Ail oral agreement between individuals about to form a corporation, that if one of their number would purchase a sité for a factory, build a factory thereon, equip it with machinery, and turn the property over to the corporation, he should be paid therefor in the capital stock of the company, is a contract to convey real estate, and is void under the statute of frauds.
    Error to Bay; Maxwell, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.

      Assumpsit by William N. McLennan against Benjamin Boutell and John A. McDonald for the breach of a contract to promote a corporation. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      T. A. E. & J. C. Weadock, for appellant.

      McDonell & Hall, for appellees.
   Hooker, J.

The declaration alleges that—

“The plaintiff and defendants, being desirous of forming a corporation * * * for the purpose of manufacturing furniture, * * * the defendants agreed with said plaintiff that if he would complete the erection of a building upon a piece of land which he had agreed to purchase on the line of the Bay City Belt-Line Railway Company [describing it] for the purposes of a chair and furniture factory and planing mill, and would also purchase certain machinery, proper and suitable for the purpose of manufacturing wooden chairs and furniture and the general purposes of said planing mill, and put the grounds hereinbefore described in condition for occupancy for such purpose, that the said defendants would repay to him the amount which he should so expend, in the paid-up capital stock of said company when organized, to the amount of §10,000, the balance to be paid him in cash by said company ; that, relying upon said promises, said plaintiff partially finished said building, when the articles of association of said projected corporation were made, after which the defendants urged the plaintiff to go on with the work upon said building and grounds, and the purchase of said machinery, * * * which the plaintiff accordingly did at his own expense, relying upon said promises, at a cost of $10,000, and also purchased machinery at a cost of $7,000; that the projected corporation was to have a capital of $25,000; that, in pursuance of the agreement, the articles of association were drawn and executed, and that the stock was subscribed as follows: Benjamin Boutell, 700 shares; John A. McDonald, 600 shares; William N. McLennan, 1,000 shares; Benjamin S. Trombley, 200 shares.”

The declaration states, further, that—

“ It was also agreed that McDonald was to be president, Boutell vice president, and the plaintiff secretary and treasurer, of the company, and all three were to be directors; that the articles were filed and the franchise fee paid as required by law, and that, except as aforesaid, no money has been paid in to or expended by said corporation, except by the plaintiff, as aforesaid, in erecting said building, etc.; that repeated requests for an election of officers have been made by him to said defendants, that the capital stock might- be collected, and the business for which the engagement was made and corporation organized might be entered upon, but they have at all times refused to meet with the plaintiff for such purpose, and by reason of said refusal, and the failure of said defendants to perform and fulfill their engagement, said property became useless to him, and he suffered great loss; and that thereupon the said defendants afterwards * * * promised the plaintiff to pay to him said several sums of money * * * on request, which, though requested, they have' failed to do; to his damage,” etc.

Upon the trial, after having proved the contract, and the completion of the factory, purchase of the machinery, organization of the corporation, etc., the plaintiff testified that his plant was ready to turn over to the corporation, but was not turned over; that the defendants did not let him turn it over. Thereupon the following occurred:

Q. It was not turned over, and you never made any writing to turn it over or transferred it ?
The Court: I think the corporation is fully organized' and as fully existing as any corporation, and, that being so, this action will not lie. The stock was all subscribed, and the articles of association completed, and the stockholders met afterwards, and, although there was no election, they gave him directions to go on and make the expenditures. On that showing, I will take the case away from the jury.
“Mr. Weadoek: Your honor understands we have not concluded our testimony, and, in order to have the question fairly presented, will say we offer to prove the declaration.
“The Court: You may have the benefit of an exception, so the whole question, which is an important one, may be presented to the Supreme Court.
“Mr.. Weadoek: What we will ask to recover in this ease is the damages to us by reason of the investment made upon the representations and at the request of the defendants, pure and simple, and that is the amount we have expended, less the amount that was paid upon the foreclosure of the mortgage.
The Court: Gentlemen of the jury, you will find a verdict for the defendants. (Exception taken.)”

It is obvious that the alleged contract contemplated the •sale and conveyance of real estate, and, being oral, was void, under the statute of frauds. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311), 29 Mich. 523; Liddle v. Needham, 39 Mich. 149 (33 Am. Rep. 359); Raub v. Smith, 61 Mich. 543 (1 Am. St. Rep. 619); Nims v. Sherman, 43 Mich. 45 (38 Am. Rep. 159); Rawdon v. Dodge, 40 Mich. 697; Colgrove v. Solomon, 34 Mich. 500. It follows that the judgment must be affirmed, and it is so ordered.

The other Justices concurred.


text:
    RAPID HOOK & EYE CO. v. DE RUYTER.
    1. Appeal — Evidence not in Record — Presumptions.
    No presumption, will be indulged upon appeal as to the introduction of evidence not appearing in the record, where the record purports to contain “the substance of all the evidence given.”
    2. Corporations — Promoter’s Representations — Ratification-Evidence.
    The mere testimony of the promoter of a corporation, that the corporation ratified his acts in securing subscribers to stock, is no evidence that the corporation ever ratified his representations to or engagements with subscribers.

      Error to superior court of Grand Rapids; Burlingame, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.

      Assumpsit by the Rapid Hook & Eye Company against Cornelius De Ruy ter upon a subscription to .the capital stock of the 'plaintiff. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Me Garry & Belden, for appellant.

      L. E. Carroll (McKnight & McAllister, of counsel), for appellee.

       The authorities on the liability of corporations upon contracts of promoters are considered in an extensive note to Oakes v. Cattaraugus Water Co., (N. Y.) 26 L. R. A. 544. j

   Hooker, J.

The record shows that the defendant became a stockholder in a corporation known as the Rapid Hook & Eye Company, by signing its original articles of association. Being sued for the amount due upon assessments on his stock, he has defended upon the grounds following, as shown by the testimony: Julius Berkey owned some patents upon hooks and eyes, and he proposed to organize a corporation to purchase said patents, and manufacture hooks and eyes under them. One Doty acted as promoter, and, by arrangement with Berkey (who holds a majority of the stock), induced the defendant and others to subscribe to the capital stock by persuasion and promises which are alleged to have- been untrue and fraudulent; and, among other things, it is claimed'that the defendant was promised that the company would take his stock if he became dissatisfied with it, though, in this connection, it may be said that proof of this allegation does not appear in the record, which purports to contain “the substance of all of the evidence given.” It is asserted, further, that the company ratified the action and undertakings of Doty, but we find nothing in the record justifying the statement, except the answer, “Yes, sir,” to the question asked Doty by the defendant’s counsel, “Were your acts afterwards ratified by the company in securing subscribers to stock? ” It is not claimed that the stockholders took any such action, and the witpess said that he never met the board of directors, and it is not too much to say that there is not a scintilla of evidence that the corporation ever assumed or ratified his representations or engagements. The trial judge stated his understanding of the defense as follows:

“The theory of the defense, as announced by counsel and made a part of this record, and as set forth in his notice, is that the plaintiff ought not to recover for the following reasons: First, because one Payson M. Doty, acting for and in behalf of Julius Berkey, made certain false and fraudulent representations to the defendant, which induced the defendant to subscribe for the stock in question; second, that the defendant relied upon those representations, believing them to be true; third, that he would not have subscribed for the stock had not those representations been made to him; fourth, that, if the defendant did not wish to retain the stock, it would be taken off his hands, and he relieved from responsibility; and, fifth, that the action of Mr. Doty and Mr. Berkey was ratified by the plaintiff.”

The court added:

“But the defendant relies entirely, as a defense to this action, upon the ground that the reputed false and fraudulent representations which would defeat this action were made by the promoter, Mr. Berkey, and his reputed agent, Mr. Doty, prior to the time of subscribing for the stock and signing the articles of association, and wefe subsequently ratified by the plaintiff. Upon these grounds the defendant rests his defense, and must stand or fall upon the law applicable to it.”

The case of St. Johns Manfg. Co. v. Munger, 106 Mich. 90 (29 L. R. A. 63, 58 Am. St. Rep. 468), is conclusive of the case. The crucial question was that of ratification, and, as there was no evidence tending to prove it, the jury should have been directed to render a verdict for the plaintiff.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, C. J.

text:
    BROCK v. GARSON.
    1. Fraudulent Purchase of Goods — Replevin from Mortgagee-Admissions.
    Plaintiff sold a bill of goods upon credit, in reliance on the purchaser’s representation that his total indebtedness did not exceed a stated amount, and that he was worth a given sum over and above all indebtedness. On the day the goods were delivered, the purchaser gave to defendant, as trustee for creditors, a chattel mortgage covering his stock, whereby defendant was authorized to take possession of and carry on the business. Before the trustee took possession under his mortgage, the mortgagor admitted to plaintiff that his total indebtedness prior to the sale in question was double the amount stated. Subsequently, in an action of replevin against the trustee, plaintiff was allowed to show this admission, subject to the objection that it permitted the mortgagor to demean the title which he had conveyed by the mortgage. Held, that, in view of the giving of a specific instruction that the admissions were binding only so far as the mortgagor’s interest in the stock was concerned, and did not affect the mortgagee, there was no error.
    2. Same — Falsity of Representations — Inference from Circumstances.
    A finding of the falsity of a representation by a merchant to a person from whom he purchased goods, that he was worth $4,000 or $5,000 over and above his indebtedness, is sustained,, where- there is no, direct evidence upon the subject,- by proof that, on the day the goods were delivered, he gave a mortgage for a large amount on the stock, which constituted his only property, and at once surrendered possession to the mortgagee.
    3. Same — Chattel Mortgage — Evidence—Instructions.
    One in possession of a stock of goods under a chattel mortgage ■ assigned to him by the mortgagee is not prejudiced, in an action of replevin by one claiming that a portion of the goods were purchased of him by the mortgagor under fraudulent representations as to the amount of his indebtedness, by a refusal of the court to instruct that the assignment must be presumed to have been for a valuable consideration, where the mortgage and assignment were introduced by the plaintiff solely because of their bearing On the financial condition of the mortgagor, and were used for no other purpose.
    Error to Bay; Maxwell, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.
    Replevin by Henry J. Brock and Mortimer Wiener against Isaac H. Garson, trustee for David Altman. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Plaintiffs sold to one Altman, December 23, 1896, goods which were delivered March 19, 1897. On the same day that the goods were delivered, Altman gave a mortgage to several of his creditors to secure $1,495. This mortgage was on the same day assigned to defendant as trustee. On the same day, Altman gave another mortgage to defendant as trustee, to secure an indebtedness owed to Hershberg & Garson of $2,672, and an indebtedness due Black & Meyer of $1,139, and to secure a further credit of $2,000. Under this mortgage the defendant was authorized to take possession and carry on the business at Altman’s two stores, in Bay City and Saginaw. Upon discovering the situation, plaintiffs replevied their goods, on the ground that Altman fraudulently purchased them, and that, therefore, no title had passed. The representations relied upon to avoid the sale, and to, show that Altman never intended to pay for them, were that Altman was owing no borrowed money or any indebtedness then due; that he was worth from $4,000 to $5,000 above everything that he owed; and that his total indebtedness did not exceed $2,500. The defendant introduced no testimony. The case was submitted to the jury upon the basis of fraudulent representations, and plaintiffs recovered verdict and judgment.

      T. A. E. & J. C. Weadock, for appellant.

      Van Kleeck & Anneke, for appellees.
   Grant, C. J.

{after stating the facts). Brock, a witness in behalf of plaintiffs, testified to the representations made at the time of the contract of sale, and was permitted, under objection and exception, to testify to a conversation with Altman after the execution of the mortgages, in which Altman told him that his indebtedness had increased to $5,000, and that these debts were incurred prior to the sale in question. The objection made to this testimony is that it permitted Altman to demean the title which he had conveyed by the mortgages. At this 'time Altman was in possession. The court instructed the jury that these admissions and statements made after the giving of the mortgages were binding only upon Altman so far as his interest in the stock was concerned, and did not affect the mortgagee. Under this instruction, we think, no error was committed.

Error is assigned upon the refusal of the court to instruct the jury that there was no evidence in the case “as to what Altman was worth.” The record contains all the testimony, and, while we find no positive evidence to show that Altman was not worth from $4,000 to $5,000 over and above his indebtedness at the time the representations were made, we are not prepared to say that such an inference is not legitimate. There was evidence that his property consisted of the mortgaged stock. It is not usual for merchants to mortgage their stocks of goods when they are solvent, and at once surrender possession to the mortgagee.

After the jury had been instructed, counsel for the defendant requested the court to instruct them that the assignment from Snyder & McCabe and others must be presumed to have been for a valuable consideration. The court stated that there was no proof upon the subject, and no evidence of any consideration, and declined the request. The mortgage and assignment were introduced by the plaintiffs, and it does not appear that their validity was questioned. They were introduced to show the financial condition of Altman, and were competent, and, so far as the record shows, were only used, for that purpose. No such instruction was therefore necessary for the guidance of the jury.

Judgment affirmed.

The other Justices concurred.


text:
    FULLER & RICE LUMBER & MANUFACTURING CO. v. HOUSEMAN.
    1. Novation — Essentials.
    To constitute a novation, there must be a mutual understanding that the debtor shall be discharged, and the new party alone held responsible for the debt.
    '2. Promise to Pay — What Constitutes.
    A threat to sue if a lien is placed upon one’s property, accompanied by a statement that the claimant will get his pay, though it may take some time, does not amount to a promise of payment.
    Error to Kent; Adsit, J.
    Submitted June 10, 1898.
    Decided July 12, 1898.

      Assumpsit by the Fuller & Bice Lumber & Manufacturing Company against Joseph Houseman and another for goods sold and delivered. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Edwin F. Sweet and William H. Eastman, for appellant.

      L. G. Rutherford and Joseph Renihan, for appellees.
   Grant, C. J.

When this case was here before, it was reversed, and a new trial ordered. 144 Mich. 275. On the former trial, it was submitted upon the theory of an original promise; on the second trial, upon the theory of a novation. We find no substantial difference between the testimony upon the former trial and the testimony and offers of proof upon the second: Mr. Torrey, the agent for the plaintiff, who was alone conversant with the facts, testified substantially the same as before. It is evident that there was no mutual understanding between defendants and Schuiling & Kuipers, the contractors, that the latter were to be discharged, and defendants alone should be responsible for the debt.

Counsel for plaintiff claim that it forbore to put a lien upon defendants’ property, and that this furnished a valid consideration for the promise. Mr. Torrey testified that he told defendant that the time for enforcing a lien was» about to expire, and that defendant replied:

“If you put a lien on that property, I will sue you. Nobody ever furnished any material for any of my property, or ever will, that they have not got their pay for, and you will get your pay, though it may take some time, as I may have to sell the houses first.”

This language did not take the case out of the statute-of frauds. ' It was not a promise to pay, nor does it appear that plaintiff relied upon it -as a promise, and for that reason forbore its lien.

The judgment is affirmed.

The other Justices concurred.


text:
    GROVENBURGH v. McKEOUGH.
    Lease on Shares — Forfeiture.
    A lessee of a farm on shares does not forfeit his lease by giving to a third person verbal permission to work a portion of the farm on the same terms, where the oral arrangement is abandoned without anything being done under it.
    Error to Ingham; Person, J.
    Submitted June 14, 1898.
    Decided July 12, 1898.
    Summary proceedings by Jerome Grovenburgh against Royal J. McKeough to recover the possession of land. From a judgment for defendant, .complainant brings error.
    Affirmed.
    This case was tried before the court, and a finding of facts made. The finding shows that complainant had a life estate in the premises; that on September 5, 1894, he leased them for three years to one Fox on shares, complainant to have one-third of the crops. Fox took possession, and continued therein under the lease till the fall of 1896, when he assigned the lease to defendant, who took possession, and remained therein until the commencement of this suit. Sometime between January 1 and April 8, 1897 (the latter being the date when this suit was commenced), defendant made an oral agreement with one Lounsbury, to the effect that Lounsbury should work one field of about seven acres by planting and tilling a crop of corn, which, when harvested, was to be divided,-Mine-third to complainant, one-third to defendant, and one-third to Lounsbury. When this action was commenced, Lounsbury had a right, so far as defendant was concerned, to enter upon the field for the purpose of putting in the crop. In fact, however, nothing was done under the contract, and it was not carried into effect. Complainant planted his suit upon the theory that the lease between himself and Fox was forfeited by the assignment of the lease to defendant. Upon the trial, complainant learned of the arrangement with Lounsbury, and abandoned the first theory, and urged that the lease was forfeited in consequence of the arrangement with Lounsbury. The learned circuit judge found that the original lease was not forfeited, because the oral contract with Lounsbury was never carried into effect.

      Cummins & McArthur, for appellant.

      Jason E. Nichols, for appellee.
   Grant, C. J.

(after stating the facts). Counsel for complainant insist that the case is ruled by Randall v. Chubb, 46 Mich. 311 (41 Am. Rep. 165), and Lewis v. Sheldon, 103 Mich. 102. The contention cannot be sustained. In those two cases the leases had been assigned, and the assignors had parted with all control. Complainant has not been injured: He contracted for the personal obligation of defendant, who, he now admits, stands in the shoes of the original lessee. He has that obligation still unimpaired. The abandoned oral contract did not operate as a forfeiture of the lease.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    BURRIDGE v. CITY OF DETROIT.
    1. Municipal Corporations — Streets—Boulevard Commission.
    That the control of a city boulevard is placed by legislative enactment in the hands of a commission appointed by the mayor with the approval of the council, rather than in the council itself, renders it none the less a city enterprise.
    2. Same — Defective Sidewalks — Liability for Injury.
    The Detroit boulevard is a “street” or “highway,” within the meaning of 3 How. átat. § 1446c et seq., fixing the liability of municipalities for injuries received upon any public highway or street by reason of defective sidewalks.
    Error to Wayne; Carpenter, J.
    Submitted June 15, 1898.
    Decided July 12, 1898.
    Case by Elizabeth Burridge against the city of Detroit for personal injuries caused By a defective sidewalk. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      E. H. Sellers (Cassius Hollenbeck, of counsel), for appellant.

      C. D. Joslyn, for appellee.
   Montgomery, J.

As the record shows, the sole question in this case is whether the city of Detroit is liable to respond to a person injured by reason of a defective sidewalk on the boulevard. The learned circuit judge was of the opinion that no such liability exists, and stated his reasons therefor in his charge, from which we quote. Referring to Act No. 264, Pub. Acts 1887 (3 How. Stat. § 1446c et seq.), fixing liability of municipalities for defects in ways, including sidewalks, he said:

“It seems to me very clear that this law applies to public highways where the city or the village or the township has control over them, and has neglected to do what it should have done to put them in proper condition for public travel. Now, let us see whether or not the boulevard of the city of Detroit is, according to the spirit of this act, and according to the letter of this act, a public highway. The boulevard of the city of Detroit was under the control of officials appointed by the township and by the city, because at that time, when it was first laid out, it was partly outside of the limits of the city; and that act contained an express provision that the municipal corporations concerned should not be responsible for the neglect of these commissioners, so that, if the act stated now as it did then, there could be no question. But in 1889 that law was changed, because in the meantime the boulevard had been entirely taken in the city, and it was the opinion of the legislature that some other body than the body then in existence should take care of it. By that act a park and boulevard commission was created, to be appointed by the mayor, and whose appointments were approved by. the council. Now, that act gives to those commissioners the control of these boulevards, or this boulevard, as well as the parks. It gives this commission the power to make rules and regulations as to the sidewalks, and as to their width and location, and power to prescribe the material of and manner in which they shall be constructed. In other words, thése commissioners have vested in them by this act the power to determine what kind of sidewalks shall be made, and the power to determine when those sidewalks shall be repaired; so that the city has not any direct authority over the making of sidewalks in the first instance, or over their repairs subsequently. Neither has the city reserved to it by this act any power of exercising any direct supervision over these walks. The park and boulevard commission has just as much authority within its proper jurisdiction as has the common council, so that the city of Detroit has no right of its own volition to in any wise control these sidewalks. In otherwords, wecannot suppose that the legislature intended to make the city of Detroit responsible for the care of something when it has not the power to remedy it, and that would be the effect of extending this law to it. Of course, it may be said that equitably there would be just as much reason for it. Perhaps that is true.”

We think the circuit judge was at fault in his premises. In 1889, by an act entitled “An act supplemental to the charter of the city of Detroit,” etc., the control of the boulevard was placed in the hands of the commissioners of parks and boulevards. Act No. 388, Local Acts 1889. This was a city agency, and it is error to assume that because the control of the boulevard was vested in such a. body, rather than the common council, the enterprise was any the less a city enterprise. The city may act through such agencies as the legislature directs. People v. Hurlbut, 24 Mich. 69 (9 Am. Rep. 103); Turner v. City of Detroit, 104 Mich. 326; Robinson v. City of Detroit, 107 Mich. 168; Barnes v. District of Columbia, 91 U. S. 540.

Was the boulevard a “street” or “highway,” within the meaning of this act ? At the point where plaintiff received her injuries, it is about 150 feet in width, about ■60 feet of which is graded. The remainder of the space is occupied by grass plots and sidewalks. At the time of the injury in question, the graded portion was open to travel -without distinction. Since that time heavy teaming over this way has been prohibited. It is worthy of note that in 1893 the legislature added a section to the “Boulevard Act,” so called, in which it was provided that, in case of a recovery against the city because of the dangerous condition of a sidewalk, a recovery might, under certain conditions, be had against the abutting owner. Act No. 415, Local Acts 1893. While the circuit judge justly observes that the fact that the legislators thought the law was in a certain condition does not make the law that way, unless as a matter of fact they were correct in the views they held, yet a legislative construction of previous legislation is entitled to more or less weight with the judiciary; and in this case we are inclined to adopt the same view that the legislature apparently entertained. Certainly, this boulevard had all the characteristics of a highway. It furnished all the conveniences of a street to the traveling public which an ordinary street offered, and it was equally inviting to the public. The fact that more than the usual space was devoted to lawn on either side distinguished it from the ordinary street only in degree. While no cases are cited distinctly covering this question, we think the boulevard falls within the general description of a street or highway. Elliott, Roads & S. 1, 18. It has generally been referred to by this court as a street. Commissioners, etc., v. Detroit, etc., R. Co., 93 Mich. 59; Same v. Chicago, etc., R. Co., 91 Mich. 292.

The judgment will be reversed, and a new trial ordered-

The other Justices concurred.


author: Grant, O. J.

text:
    ANDRE v. WINSLOW BROS. ELEVATOR CO.
    Fellow-Servants — Negligence.
    Plaintiff, employed to assist defendant’s foreman, was injured while in the act of handing some tools to the foreman, who was at work in an elevator shaft. The accident was due to the foreman’s failure to take proper precautions to keep the elevator from running while they were at work. Held, that they were fellow-servants, and that plaintiff could not recover.
    Error to Wayne; Carpenter, J.
    Submitted June 15, 1898.
    Decided July 12, 1898.
    Case by James A. Andre against the Winslow Brothers Elevator Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The defendant is a corporation engaged in the manufacture and erection of elevators. In 1894 it had a contract to erect five elevators in the Chamber of Commerce, Detroit. Defendant’s chief engineer, named Smith, had general charge of their erection. It had several foremen at work upon different parts of the job. Plaintiff was employed by a foreman named Presto in October, 1894, left in November, was re-employed in January by a foreman named Anderson, with whom he worked until the latter part of April. His employment was putting up the stair railings, putting on the elevator fronts, and putting the cages on the elevator cars. Another foreman’s name was Keeran, who was employed by th.e day. When Anderson was short of work, plaintiff sometimes worked under Keeran, and in April began to work steadily under him. Keeran’s work was the construction of the elevators proper, including cylinders, . tanks, pumps, sheaves, beams, and cables. In this work he Was foreman, working under the direction of Smith, the engineer, and one Carr, the general manager. The elevators were all running the last of April. Plaintiff was injured May 11th, at which time he had been working with Keeran about two weeks. The work was nearly completed, and plaintiff and Keeran were putting on the finishing touches. It became necessary to screw down four bolts in the cylinder of elevator No. 1. To do this, they were compelled to put into the elevator shaft some plank for scaffolding. About ■five minutes were requisite to complete the work. A man called a “starter” was employed to stand upon the first floor in front of the elevators, whose duty it was to direct their movements. Keeran went down to the first floor to tell the starter not to use No. 1 elevator until the work was done. The starter was not there. No. 2 elevator was idle. Keeran instructed the conductor of No. 1 to take No. 2, then reversed the power of No. 1, and closed the door, which locked automatically. He then returned to ■ his work, went in upon the scaffold, and asked plaintiff to hand him a wrench. While plaintiff was in the act of doing this, the elevator came up, struck the scaffolding, and injured plaintiff. Keeran was thrown up about eight feet, threw his arms around a post, and sat down on top of the cylinder. Shortly after Keeran left the first floor, the starter returned, and, ignorant of what had been done, ordered the conductor of No. 3 into No. 1. The conductor put his hand through the elevator cage, unlocked the door, and started up with the elevator, thus causing the accident. The court directed a verdict for the defendant, upon the ground that Keeran and plaintiff were fellow-servants, and that defendant was not liable for the negligent act of Keeran.

      T. E. Tarsney and W. G. Fitzpatrick, for appellant.

      Wells, Angell, Boynton & McMillan, Edwin F. Conely, and Orla B. Taylor, for appellee.
   Grant, O. J.

(after stating the facts). The case is so well stated by Judge Steere in setting aside the first ver-' diet that we quote it:

“After carefully reading the testimony, which has been furnished by counsel, I am forced to the conclusion that the doctrine of ‘ fellow-servant ’ applies in this case; and on the undisputed testimony, taken most strongly in favor of the plaintiff, there can be no recovery. At the time of the accident, Keeran was only a working foreman, in charge of the final adjustment of the elevators. He was taking part with Andre in the performance of that labor. The elevators were then constructed, and the plant installed. The situation is the same as though these men had been sent to do that work, and make repairs, after a break in the machinery, which had been in operation for a long period. No claim is made that an incompetent foreman or fellow-servant was employed. Keeran was a man of skill and experience in his business, was working with his hands, with Andre as a helper, and they were co-laborers in the same line of employment, each depending for his safety on the care and skill of the other. The power which Keeran had to hire and discharge men and direct details of the work is not the test, for the work he was performing when the accident occurred did not necessarily belong to the employer.”

The statement of Judge Carpenter in directing a verdict is equally cogent.

Plaintiff and Keeran were fellow-servants. Keeran possessed none of the authority of a vice principal. He had no greater authority than the foreman of a section gang upon a railroad, or a foreman in a shop. He worked with plaintiff at the same work, and with like tools. He was only above plaintiff in that he directed how the work assigned them should be done. At the time of the accident, he had gone into the place to do the work himself. We have discussed this doctrine so often and so fully, especially in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266), and Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321, 50 Am. St. Rep. 354), that we refrain from discussing it now. This case is ruled by these cases, as well as by Findlay v. Russel Wheel & Foundry Co., 108 Mich. 286. We find that several cases of the federal courts, decided within the last two years, fully support the above decisions. Central R. Co. v. Keegan, 160 U. S. 259; Northern Pacific R. Co. v. Peterson, 162 U. S. 346; Alaska Mininy Co. v. Whelan, 168 U. S. 86; Cleveland, etc., R. Co. v. Brown, 20 C. C. A. 147, 73 Fed. 970; Batch v. Haas, 20 C. C. A. 151, 73 Fed. 974. .

The rule of duty to furnish a safe place has no application here. The place was as safe as any places of that kind are. Proper tools and machinery and competent workmen had been furnished. The accident resulted from the failure to take the proper precautions to stop the elevator.

Judgment affirmed.

The other Justices concurred.


text:
    VAN WERDEN v. WINSLOW.
    1. Appeal — Assignments oe Error — Directing Verdict.
    An assignment of error based upon the refusal of the court to direct a verdict cannot be considered where the record does not contain all the evidence.
    2. Lease — Entry oe Lessor under Mortgage . Clause — Trespass and Conversion — Damages.
    Where a lessor of celery land, upon the lessee’s falling in arrears for rent, enters and takes possession of the crops under a chattel-mortgage clause in the lease, he can be held liable to the lessee in an action of trespass and conversion only to the amount of the excess value of the property converted over the amount due for rent.
    3. Same — Evidence—Instructions.
    It appearing in such action that the lessor entered upon but one of two pieces of land covered by the lease, he is entitled to an instruction that he is not responsible for any injury or loss to the crop upon the parcel which he did not enter.

      4. Same — Preservation oe Crops — Due Care.
    It being the lessee’s theory that the action of the lessor in opening trenches and exposing the plants to the air occasioned loss, the lessor should be permitted to show by the testimony of skilled growers that the treatment was customary and proper; a chattel mortgagee in possession being responsible only for reasonable care in protecting the property.
    5. Same — Damage Occasioned by Plaintiff’s Act.
    If injury resulted from the lessee’s fault in ordering away the lessor’s employés when they came to look after the crop, and then leaving it himself without any protection or care, he cannot recover in such action.
    Error to Kalamazoo; Buck, J.
    Submitted June 15, 1898.
    Decided July 12, 1898.
    Trespass de bonis by Peter Van Werden against Amos J. Winslow. From a judgment for plaintiff, defendant brings error.
    Reversed.

      The declaration alleges that defendant “entered plaintiff’s close of celery land, and pulled up, carried away, and converted and disposed of said celery to his own use, and pulled down and removed the soil from the crop of celery growing thereon.” Defendant was the owner of the land, consisting of two parcels, one containing 1 acre, and the other 2£ acres, and had leased it to plaintiff for one year, for $115. The rent was past due, and plaintiff had paid only $25. The lease contained a chattel-mortgage clause giving defendant a mortgage on all the crops grown, as security for the rent, and, in case of default, authorized defendant to enter upon the land, seize the goods, and sell them at public vendue, upon giving the usual notice of sale.
    Plaintiff gave testimony tending to show that defendant demanded the rent November 23d; that there was some conversation about turning out the celery in payment of the rent; that no agreement was reached; that on November 25th defendant claimed to take the celery by virtue of his mortgage, and told plaintiff not to enter on the land again or take away any more of the celery; that on the 26th two men went upon the piece containing 2£ acres, and opened the trenches in which the celery had been placed, and removed the earth from the tops; that the weather had been warm, and the trenches were opened for the purpose of giving the celery air and letting the steam out from the trenches, to prevent it from rotting; that, when these men had about finished uncovering this piece, he ordered them to leave, threatening them with arrest if they did not, and told them not to come back on the land, and the men left; that the one-acre piece was not disturbed; that on the 27th the weather became colder, and on the 28th these same men went upon the land, and commenced to cover up the celery; that he forbade them to touch it, and ordered them off the place; that plaintiff did not take out or sell any celery after November 23d, because defendant had ordered him not to; that he did not want others to go on, and had ordered them not to; and that the celery froze in consequence of exposure, and became worthless and unfit for market.
    Defendant gave testimony tending to show that on the 23d of November he made a parol agreement with plaintiff to take the two pieces of celery in payment for the rent; that on the 25th he asked plaintiff to sign a release which defendant had prepared, releasing the crops and waiving a public sale; that plaihtiff refused, and defendant thereupon took possession under his chattel mortgage, and advertised and sold the celery. That part which was' uncovered brought 50 cents. The part that remained covered brought $30.
    The case was submitted to the jury, who rendered a verdict for the plaintiff for the full amount of the entire crop.
    Howard, Roos & Howard, for appellant.

      Alfred S. Frost (Alfred J. Mills, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). Error is assigned upon the refusal of the court to direct a verdict for the defendant. The record does not contain all the testimony, and therefore this assignment cannot be considered.

The court erred in refusing to instruct the jury, as requested, that plaintiff could not in any event recover to exceed the value of the celery less the amount due for rent. Counsel for plaintiff concede this to be the rule in actions for trover under the like.circumstances. The declaration charges conversion as well as trespass. Defendant had a right to enter and take possession under his mortgage. We find nothing upon the record to show that he did not lawfully enter. It quite conclusively appears, even from plaintiff’s own testimony, that defendant, in removing the earth, was taking a proper course to protect the property from injury. A conversion being charged, we think that the request should have been given. Brink v. Freoff, 40 Mich. 610; Rall v. Cook, 77 Mich. 681; 5 Am. & Eng. Enc. Law (2d Ed.), 998. Whether plaintiff could avoid this rule by an action quare clausum fregit, —quaere.

Defendant was not responsible for any injury or loss to the celery upon the one-acre piece, which he did not touch, and the jury should have been so instructed.

The court erred in rejecting the testimony of skilled celery growers that it was customary and proper to open the trenches in warm weather, in order to prevent the celery from heating. If defendant was in possession under his chattel mortgage, it was his duty to use reasonable care in protecting the property; and, if he exercised such reasonable care, he was not liable for any loss. Jones, Chat. Mortg. (4th Ed.) § 697; 5 Am. & Eng. Enc. Law (2d Ed.), 1006.

Defendant urges that the injury resulted from plaintiff’s own fault in ordering defendant’s employés away, and then leaving the celery without any protection or care. Since this question may arise upon a new trial, we will dispose of it. The jury should have been instructed that if defendant took possession under his chattel mortgage, and placed these men in charge, and plaintiff ordered them away after the trenches were opened, and then neglected to take proper care of the celery, he cannot recover. This would permit him to take advantage of his own wrong.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    RUDELL v. OGDENSBURG TRANSIT CO.

    1. Carriers — Contract op Shipment — Agent’s Authority.
    It is only when a proposed contract with the shipping agent of a common carrier is of an unusual and extraordinary character that the shixoper is put upon inquiry as to the agent’s authority.

      2. Same — Agreement as to Time op Delivery.
    It is within the general authority of a carrier’s shipping agent to contract with a shipper to deliver his goods at the place of destination by a stated time, allowing the usual time for the trip.
    3. Same — Bill op Lading — Conclusiveness.
    The terms of a bill of lading handed by a carrier to the shipper’s clerk, and never brought to the shipper’s attention, will not prevail as against a verbal contract of shipment previously made by the shipper with the carrier’s authorized agent.
    Error to Wayne; Carpenter, J.
    Submitted June 15, 1898.
    Decided July 12, 1898.
    Case by James H. Rudell and another against the Ogdensburg Transit Company for the breach of a contract of carriage. From a judgment for defendant, plaintiffs bring error.
    Reversed.
    Plaintiffs, commission merchants in Detroit, shipped a quantity of potatoes and onions by the defendant’s line to Chicago. Plaintiffs had sold them to merchants in Chicago, at a certain price, provided they were delivered there by the 12th of July, 1894. This was during the great railroad strike, when prices for produce in Chicago were very high. Plaintiffs gave evidence tending to show that they made the contract of carriage with Mr. Chesebrough, the local agent for the defendant in Detroit, on the morning of July 9th; that defendant agreed to deliver them in Chicago by noon of the 12th, barring shipwreck and fire; that the goods were delivered to the defendant at the time agreed upon; that the defendant failed to deliver the goods until the 14th; that meanwhile the price had fallen; that the consignees refused to accept; and that the goods were sold at the best price obtainable, which was much less than the contract price. Defendant denied that it guaranteed to deliver at a fixed time. Mr. Chesebrough admitted informing plaintiffs that the boat would leave about 10 o’clock on the morning of the 10th; that it would arrive at Chicago within 50 hours; and that the goods were shipped on that understanding. The case was submitted to the jury, who found a verdict for plaintiffs. One of the defenses was that Mr. Chesebrough had no authority to make the contract of guaranty that the steamer would arrive at a certain time. It was stipulated that .this question might be further argued upon a motion for a new trial, and that, if the court should then determine that no such authority was shown, the verdict might be set aside, and judgment rendered for the defendant, and that, if upon appeal to this court that decision was reversed, judgment might be rendered here for the plaintiffs. The court did set the verdict aside, and rendered judgment for the defendant.

      Bowen, Douglas & Whiting, for appellants.

      Wisner & Harvey, for appellee.

       Rehearing denied September 27, 1898.

   Grant, C. J.

(after stating the facts). The jury settled the contract in behalf of the plaintiffs. The sole question, therefore, is the authority of defendant’s agent to make the contract. A shipping agent of a com- ' mon carrier has general authority to make all reasonable ■contracts of shipment. Any undisclosed limitation does not bind the shipper. Has such an agent authority to agree to deliver goods at the place of destination at a particular time ? Only when contracts are of an unusual and extraordinary character is the shipper put to inquiry as to the agent’s authority. Hutch. Carr. § 267; 5 Am. & Eng. Enc. Law (2d Ed.), 351. A guaranty to a theatrical troupe that it would arrive at a given time is held valid. Foster v. Railway Co., 56 Fed. 434. One writer says:

“As common carriers, especially at the present day, transact the greater part, if not all, of their business with the public through agents and servants, it is plain that the public have alright to assume that they are authorized to do whatever they attempt to do.” Lawson, Contracts of Carriers, § 229.

This rule does not include contracts so unusual and extraordinary that they cannot reasonably be included within the general authority. Delays sometimes occur, both on land and water. Many cases like the present and that of the theatrical troupe are constantly arising, where delivery at a certain time is essential. When the shipper and the carrier agree, through its agent, upon a date of delivery at destination which gives the usual time to make the trip, such contract cannot be held unusual or extraordinary, and is within the general authority of the agent. The carrying business of the country is mostly done by corporations, which act through agents, who, as in this case, frequently solicit business; and, when the contract is a reasonable one, it must be upheld, in the absence of notice of lack of authority.

It is urged that the customary way of carrying on the business of a common carrier is by issuing bills of lading, which constitute the contract between the parties. This custom is not conclusive of the authority of the agent, or of the reasonableness of the contracts he assumes to make. Plaintiffs testified that they knew nothing of a bill of lading in this case, and had never seen any before the trial. Defendant introduced a bill of lading, which it claims was given to plaintiffs’ clerk at the time of or soon after the delivery of the goods to it. The contract was made before, and defendant could not change it by handing a receipt or bill of lading to a clerk.

The judgment is reversed, and judgment entered in this court for the plaintiffs, with costs of both courts.

The other Justices concurred.


text:
    DITTMER v. BATH.
    1. Mechanics’ Liens — Contractor’s Statement — Termination oe Lien.
    Section 9 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891), as amended by Act No. 199, Pub. Acts 1893, declares that the liens provided for by the act shall terminate at the expiration of six months after the statement of lien is filed with the register of deeds, unless proceedings to enforce the same are commenced within that time. Section 4 of the law makes the service upon the owner by the contractor of a sworn statement, giving names of subcontractors, etc., a prerequisite to his right to sue. Held, that, where a contractor brought suit without having served the required statement, it was premature, and the lien terminated at the expiration of the statutory period.
    2. Same — Waiver by Owner — Adverse Lienors.
    Even if the owner, under such circumstances, can subsequently waive the omission to serve the statement (a question not determined), his attempt so to do will not be effectual as against a mortgagee of the premises.
    Appeal from Wayne; Carpenter, J.
    Submitted June 15, 1898.
    Decided July 12, 1898.
    Bill by Herman Dittmer against Charles Bath and Cornelia R. Schenck to enforce a mechanic’s lien. From a decree subjecting the lien to a mortgage held by defendant Schenck, complainant appeals.
    Affirmed.

      Flowers, May & Moloney, for complainant.

      Fred A. Hunt, for defendant Schenck.
   Hooker, J.

The complainant erected a building upon premises owned by Bath, finishing the same upon December 10, 1893, his contract having been made on October 2, 1893. On December 1, 1893, and while the complainant was at work under his contract, Schenck took a mortgage upon the premises. On January 30, 1894, complainant filed a lien upon the premises for $373. A stipulation was filed at the hearing, dated March 30, 1896, signed by the solicitor of the defendant Bath, admitting the regularity of all proceedings to enforce the lien, and consenting to a decree for the sum of $333, with interest from February 1, 1894, and costs; and a decree was entered accordingly against Bath. We discover no evidence that the complainant had served upon the landowner, Bath, a statement under oath of the number and names of the subcontractors and laborers in his employ, and of those furnishing materials, and the amount due or to become due to them; and the decree indicates that there was no such testimony, as it contains a finding that the service of the same was waived by defendant Bath. The court held that the mortgage of the defendant Schenck was a prior incumbrance to complainant’s lien, and the decree required the sale to be made subject to the mortgage, and costs were awarded to Schenck against the complainant, who has appealed.

The briefs discuss but one point, viz., whether the failure to serve the notice required by section 4, Act No. 179, Pub. Acts 1891, was a sufficient ground for the holding of the circuit judge that the mortgage should have priority over the lien. We have held that a failure to comply with section 4, Act No. 179, Pub. Acts 1891, is fatal to proceedings to enforce alien. Wiltsie v. Harvey, 114 Mich. 131. This is upon the ground that compliance with such section by serving a sworn statement must be shown, or at the least waived, to warrant the commencement of an action or proceedings to enforce a lien. Martin v. Warren, 109 Mich. 584; Barnard v. McLeod, 114 Mich. 73. Under section 9 of the lien law, as amended by Act No. 199, Pub. Acts 1893, a lien terminates at the expiration of six months after the statement or account is filed with the register of deeds,- unless proceedings to enforce the same be commenced within that time. In the case before us, there was no service of the statement within such period, and, as the suit brought before the expiration of the time was prematurely brought because of the nonperformance of the condition precedent, the lien was at an end as to the defendant Schenck, who had a right to avail herself of any irregularity destructive to complainant’s lien, as she was directly benefited thereby. This was held in the case of Wiltsie v. Harvey, supra. The alleged waiver was not made until March 30, 1896; and if this was effective to support the decree against the defendant Bath, which we do not find it necessary to determine, as he has not appealed, it cannot have such effect against defendant Schenck. Wiltsie v. Harvey, supra.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    PEOPLE v. DOW.
    Factory Inspection — Interference with Inspector.
    The general manager of a factory is not guilty of interfering with the factory inspector in the discharge of his duty, within the meaning of Act No. 184, Pub. Acts 1895, imposing a penalty for such interference, by refusing to let him enter the part of the factory which he desires to inspect through a door that only indirectly leads to that portion, at the same time indicating the regular door, which would give him complete access thereto.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted June 16, 1898.
    Decided July 12, 1898.

      Alexander Dow was convicted of violating the factory inspection law.
    Reversed.

      Wilkinson, Post & Oxtoby, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and William H. Turner, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was prosecuted for a violation of Act No. 184, Pub. Acts 1895, known as the “Factory Inspection Law.” This law provides (section 12) that “the commissioner of labor * * * and deputy factory inspectors shall be factory inspectors in the meaning of this act, and are hereby empowered to visit and inspect at all reasonable hours, and as often as practicable or required, the factories, workshops, and other manufacturing establishments in the State,” etc. A further provision is that any person who violates or omits to comply with any of the provisions of the act, or any person who interferes in any manner with the factory inspector in the discharge of his duties, shall be punished, etc.

The charge preferred against this respondent is that he did unlawfully interfere with one Otto Reinhardt, a deputy state factory inspector, in the discharge of his duties, “by Refusing him access to the machinery department of the Edison Illuminating Company, of which said Alexander Dow was then and there the general manager. ” The evidence on the trial disclosed that the inspector visited the premises of the Edison Illuminating Company, and was referred by the person in charge of the office to the engineer. The office was upstairs. He then went downstairs, and found a door which he assumed to be the door leading into the engine room. It appears by the undisputed testimony that, as a matter of fact, this was not the regular door used for that purpose; that, while it led indirectly to the engine room by means of a flight of steps, yet there was a regular door to the engine room. While standing near this door the respondent entered the other door. The parties are not agreed as to just what the conversation was, but both do agree that respondent directed Mr. Reinhardt to the engineer, and directed him to go around to the other door. This the inspector refused to do, but demanded admission at the door in question.

The prosecuting attorney in his brief says that the question to be decided is whether the factory inspector or his deputy has the right, at all reasonable times, to enter at any door or entrance that is open, and through which access may be gained to the machinery, in any factory that the duties of the factory inspector or his deputy, as set forth in the statute under which the warrant in this case was issued, may call him, or whether the factory inspector or his deputy may be compelled to enter such factory through such opening or door as the proprietor or person in charge may ■see fit to designate. We have no hesitancy in answering this question, and affirming that it is the duty of the factory inspector to observe the reasonable regulations of the proprietor. The authority conferred by this statute is extraordinary, and due regard to the rights of others would suggest to the officers that the authority be exercised in such a way as to avoid collison with the owner or occupant, if possible. It is not suggested that the door to which this factor inspector was directed did not afford access to the department which he sought to inspect. This being so, it cannot be said that the respondent interfered with the inspector by refusing him access to the machinery department of the company, unless it be held that the inspctor is to be the judge of the aperture through which he is to enter. It would, of course, be a physical possibility to enter through an open window, but, if the proprietor had provided a door to admit persons to the premises, he would not be bound to permit the inspector to enter at the window. The case would have been quite different if the refusal had been captious, or if the door to which the inspector had been directed would not have afforded him full access to all parts of the factory which he desired to inspect. The provisions of the law are wise and salutary, and we would by no means be disposed to place such a construction on the statute as would be calculated to unnecessarily hamper officers in the discharge of their duty; but, on the other hand, the power to enter upon private premises for the purpose of inspecting property is a delicate power, and should be exercised with great caution.

We think the evidence in this case did not warrant a conviction. Judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. CARTER.
    1. Criminal Law — Assault—Intent—Instructions.
    Where the court instructed the jury fully as to the specific intent which must he found before they could convict of assault with intent to do great bodily harm less than murder, and that in determining the intent they must consider all the circumstances, it was not error to refuse to instruct that if the firing of the pistol, upon which the charge was predicated, was not shown, by further proof than the presumption attaching to the act, to have been with the intent charged, ’ the jury should acquit.
    2. Same — Special Defense — Appeal.
    The defense of intoxication to such a degree as not to be able to entertain a criminal intent charged should be brought to the attention of the trial court, and instructions thereon requested, in order that alleged error in failing to submit such defense may be considered on appeal.
    Error to recorder’s court.of Detroit; Chapin, J.
    Submitted June 16, 1898.
    Decided July 12, 1898.
    Douglass Carter was convicted of assault with intent to do great bodily harm less than murder.
    Affirmed.

      Henry M. Cheever, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Byron S. Waite, Assistant Prosecuting Attorney, for the people.
   Grant, C. J.

Respondent was convicted of assault with intent to do great bodily harm less than the crime of murder. Several errors are assigned upon the rejection and admission of testimony. To state and discuss them would not establish precedents of any value. We have examined them, and find no error in the rulings.

Error is assigned upon the refusal to give the following request:

‘ ‘ The intent to do this great bodily harm is the gist of this crime, and in this case, although, if you should find that the prisoner intentionally fired the pistol at Williams, the presumption that he intended to do great bodily harm would be a very important circumstance, and very strong in making the proof necessary to convict, still this is not conclusive nor alone sufficient, but should be supplemented by other testimony to avoid the reasonable doubt, and, if there is no other testimony tending to show such intent, you should acquit.”

The court instructed the jury fully as to the specific intent which must be found before they could convict, and that in determining the intent they must consider all the circumstances of the case. Respondent testified that he was drunk and that the crowd were all drunk. He, however, seemed to have a very clear recollection of all that occurred, and did not give any testimony to show that he was so intoxicated as not to comprehend what he was doing. He was the only witness to testify to the intoxication of any one. His counsel argues that, by the refusal to give this request, respondent was deprived of his defense of intoxication to such a degree as not to be able to entertain the intent charged. If his counsel desired to make this defense, he should have called the attention of the court to it, and requested an instruction. Having failed to do this, the point cannot now be raised. People v. Baher, 92 Mich. 165 (31 Am. St. Rep. 575). We think the request was properly refused.

We have examined the other assignments, and find no error.

Conviction affirmed.

The other Justices concurred.