text:
    Henry Brassel v. The Minneapolis, St. Paul & Sault Ste. Marie Railway Company.

      Pleading — Amendment of declaration — Carriers—Ejection of passenger-instructions — Special questions to jury— , New trial.

    1. A declaration in a personal injury case alleging; in substance, that the plaintiff purchased a ticket entitling him to a round trip between certain stations, and that, after starting on the return trip, he requested the conductor to give him a lay-over check, or allow him to stop off, at an intermediate station, which request was refused, and, because of plaintiff’s inability to pay the additional fare demanded, he was ejected from the moving train and injured, may be amended so as to charge that plaintiff was carried on the outgoing trip as far as said intermediate station, the conductor taking up the outgoing portion of said ticket, and that on the following day plaintiff entered a car of the defendant at said intermediate station to complete the outgoing trip, and, because of his inability to pay the fare demanded for transportation over that portion of the route, he was ejected from the moving train, and injured, etc.; the statute of amendments being broad enough to warrant such action.

      2. In a suit against a railroad company for injuries sustained by being unlawfully ejected from one of its trains, the declaration averred that the conductor and a brakeman forcibly ejected plaintiff from and off the moving cars, throwing him with violence from the platform of the cars to the ground, and plaintiff testified that he was pushed or shoved off while the train was in motion. The jury were instructed that unless they should find that the plaintiff was shoved or pushed, or in some way forcibly ejected, from the train while it was in motion, as alleged in the declaration and claimed in plaintiff's-testimony, he could not recover. And it is held that the jury should not have been left, as they were under said instruction, to find that the plaintiff was “in some way” forcibly ejected from the train while it was in motion, other than that shown by the evidence and alleged in the declaration, -but that the instruction should have limited them to the precise manner in which the act was committed.
    3. It was error to instruct the jury that if they should find that the conductor, or any other employé of the defendant, acting under the conductor’s orders, ejected plaintiff, or compelled him to alight, from the cars while they were in motion, as he testified to, and if he was thereby injured, the defendant was liable, there being no evidence to show that the conductor gave any such instructions or orders.
    4. Special questions were submitted to the jury in a personal injury case, covering certain facts necessary to be found in favor of the plaintiff in order to warrant a verdict in his favor. The'jury returned a general verdict for the plaintiff, but did not answer the special questions. During a conversation betwéen the court and the foreman of the jury, and after the court had stated that the questions must be answeted, and that the jury had better retire for that purpose, the-attorney for the plaintiff remarked, in the x>resence of the jury,, that he thought that, technically, the questions were not covered by the Verdict, although it practically covered them, to-which remark defehdant’s counsel excepted. The jury then answered the questions in such a way as not to conflict with their general verdict. And it is held that it is manifest that-t|ie jury did not answer the questions in the first instance for fear they would interfere with their general verdict, and that the suggestion by plaintiff’s counsel at such a time was entirely out of place, and was a clear intimation to the jury to make their answers to the special questions conform to their general verdict.

      5. While this Court, under its prior decisions, cannot interfere with the discretion of the circuit judge in refusing to grant a new trial where the motion was made before the statute authorizing exceptions to such refusal, and a review thereof on error, went into effect (Act No. 134, Laws of 1893), it can and ought to require that the trial be conducted in strict accordance with the rules of law, and cannot hold that errors such as those pointed out in this case were not prejudicial.
    Error to Schoolcraft. (Stéere, J.)
    Argued January 17, 1894.
    Decided June 16, 1894.
    Case. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.

      IS. O. Chapin and A. H. Bright,' for appellant.

      Hurst & Sullivan and J. W. McMahon, for plaintiff.

       For cases bearing upon the construction of 3 How. Stat. § 7606, which provides for the submission of special questions to the jury, see Cousins v. Railway Co., 96 Mich. 386, and note.

       See Gemberling v. Lazarus, 100 Mich. 324, holding that said act does not apply where the motion was decided and writ of error issued before the act took effect; and McRae v. Lumber Co., 102 Mich. — (60 N. W. Rep. 967), holding that the act provides that there may be incorporated in the bill of exceptions a record of all proceedings had on the motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial, and that exceptions may be taken, and error assigned on such decision; that the reasons of the circuit judge for refusing the new trial asked for in this case are not given, and, apparently, he was not asked to give them, and unless the statute is followed in this regard the Court will not review the decision complained of.

   Grant, J.

Plaintiff claims that he was unlawfully ejected from a passenger car of the defendant’s train while it was in motion, and was injured. »

In his original declaration, plaintiff alleged that—

“The said plaintiff, after purchasing the said ticket, and on, to wit, the said 19th day of November, went on the cars of the said defendant from .Manistique to Hunt’s Spur, and afterwards, to wit, entered a car of the said defendant, on one of its passenger trains, to return to Manistique; and, relying upon the representations made by the agent of the defendant at the time of the purchase of the said ticket, he requested the conductor to give him a lay-over check, or allow him to stop off, at Whitedale, and proceed to Manistique on the next train, which the said defendant, by its said agent, conductor absolutely refused to do, and the said conductor refused to carry him unless he would pay a large amount, to wit, 35 cents, as additional fare, which he was unable to do, upon which he ordered him to leave the car, which the plaintiff refused to do, upon which the conductor signaled the engineer to slack the speed of the train, and he, the said conductor, and another agent of the defendant, called a ‘brakeman,' seized violently hold of the plaintiff, and with force and violence, and against his will and resistance, not waiting for the said train to stop, and while said train was running at a high rate of speed, to wit, at the rate of 10 miles per hour, forcibly ejected said plaintiff from and off the cars, throwing him with violence from the platform of the cars to the ground, while the cars were so in motion.”

The opening of counsel to the jury was based upon this declaration.

The original declaration and the opening statement of •counsel were based upon the allegations that plaintiff was lawfully upon defendant's train; that he was in possession •of a ticket which entitled him to ride over the portion ,of ike road he was then on; that he was on the return trip; that he asked the conductor for leave to stop over at Whitedale; that the conductor informed him that he could not, without paying 35 cents extra, which would make the regular fare for the trip; and that, refusing to do this, he was ejected from the train before reaching Whitedale,— the station where he desired to stop over. After the plaintiff was sworn, and it was ascertained by his counsel, conceded, and held by the court, that he could not recover upon that declaration, under the testimony which the plaintiff gave, the plaintiff was permitted to amend his declaration by changing the date, the direction, and the train by which he was traveling. The amended declaration showed that he was not a passenger, but a trespasser, upon another train than the one stated in the declaration, and controlled by a different train crew; that he had given np the outgoing portion of his'ticket, and had nothing to show that he was entitled to ride upon the defendant's train. The conductor in charge of the train upon which he went to Whitedale had taken it up, and had not given him a lay-over check. Under the first declaration, he was unlawfully ejected; under the second, he was lawfully ejected, and there was no liability unless he was ejected while the train was in motion. The sole ground of liability, under the amendment, was an act so inhuman and wicked as to be almost beyond belief. The only thing in common between the two declarations is that the manner of ejecting in the one is the same as that in the other. It is argued by the defendant's counsel that the amendment introduced an entirely new cause of action, not permissible under the statute of amendments. There is much force in the contention, but the statute permits amendments “in substance,” and is so broad that we are not prepared to hold that the court erred in permitting the amendment.

The court instructed the jury that—

“Unless you find, by a fair preponderance of evidence, and of all the evidence, in the case, that the plaintiff was shoved or pushed, or in some way forcibly ejected, from the train while it was in motion, as alleged in his declaration and claimed in his testimony, your verdict must be for the defendant.”

The jury should not; in a .case of this character, be left, as they were under this instruction, to find that the plaintiff was “ in some way forcibly ejected from the train while it was in motion,” other than that shown by the evidence and alleged in the declaration. He had stated how he was ejected, viz., by being pushed or shoved off while the train was in motion. The, instruction should Have limited the jury to the precise manner in which the act was committed.

The court instructed the jury that—

“ A defendant railway company is always responsible for the acts of its employés when they are on duty, acting in the line of'their employment; and if you should find that the conductor, Snyder, or any other employe of this- company, acting under the conductor's orders, ejected Mr. Brassel, or compelled him to alight, from the cars while they were in motion, as he testifies to, and if he was thereby injured, the defendant is liable."

The error in this charge lies in the fact that there is no evidence in the record showing, or tending to show, that Mr. Snyder gave any instructions or orders to the brakeman, or any one else, to push or shove the plaintiff from the train. There is no testimony, outside of the plaintiff's, tending to show that any violence was used. Several witnesses on behalf of the defendant testify that the train had stopped, and that no physical force was used. The plaintiff's own testimony on this point is so contradictory that it is at least questionable whether, as a matter of láw, the court should not have directed a verdict for the defendant. In one part of his testimony, he said the conductor pushed him off; in another, “There were two brakemen, or men employed on the train, came along, and pushed me off;” and again, “I got off about two and -a half miles from Whitedale."

Three special questions were given to the jury, which they were instructed to answer:

“1. Was the plaintiff in the smoking room, next in front of the dining car, when the conductor called for His fare?
“2. Was the train at a stop when the plaintiff left the car?
“ 3. Did the conductor push the plaintiff from the caito the ground while the train was in motion?"

The jury returned into court with a general verdict, but without answering any of these questions. Upon the poll of the jury, the following conversation took place:

“Mr. Hurst: I would like to call for the special questions.
“Court: Have you the special questions?
“Foreman: Yes, but they are not signed.
“Court: Are they not answered?
“Foreman: No, sir.
“Court: Have you not taken any action in regard to them?
“Foreman: It was talked of.
“Court: What do you wish to say in regard to it?
“Foreman: That they didn’t feel like signing it, for some cause.
“Mr. Hunton: The result of this is, then, that it is no verdict at. all.
“Mr. Hurst: Are they not virtually covered by the verdict?
“Court: There would not be any object in special questions, if they were.
“Mr. Hurst: We ask that the jary go back, and, answer the questions.
“Court: These special questions should be answered, gentlemen, and I think you had better retire.
“Mr. Hurst: I think, technically, they are probably not covered by the verdict, although the verdict practically covers them.
“Court: I hardly think that is a proper suggestion to make.
“Mr. Cuntan: I take exception to that remark of Mr. Hurst.
“Mr. Hurst: I was merely making a remark to the court.”

The jury then retired, and returned, answering the first two questions “No,” and the third, “Yes.”

It is manifest t]¡iat the jury did not answer the special questions for fear they would interfere with their general verdict." No other conclusion can be drawn from their neglect to answer them until directed by the court to do so. Suggestions by plaintiff’s counsel at such a time were entirely out of place, and it was a clear intimation to the jury to make- their special questions conform to their general- verdict. Precisely why the jury should believe plaintiffs statement that the conductor pushed him from the train, rather than his other statement, which was equally clear and positive, that the two brakemen ptíshed him off, is almost beyond comprehension.

It is quite possible that a case might be presented in "which we would be justified in holding that these were not prejudicial errors. It is impossible to read the record in this case without coming to the conclusion that the jury utterly ignored the clear weight of the evidence in the case. As already stated, the finding by the jury that plaintiff was ejected from the train while ij; was in motion is based upon the testimony of the plaintiff alone. His testimony was not consistent, and there is strong evidence which casts doubt upon his credibility. If his testimony be true, then he was thrown from the train while it was running at the rate of 7 or 8 miles an hour, on rough and frozen ground, and if, in consequence of that act, he had been killed, the person or persons who pushed him off would have been guilty of manslaughter. Plaintiff produced only one witness who was in the car with him at the time of the occurrence, — Mr. Hill, — who testified that the train stopped. He said he did not see the transaction, and that, before they started up, some one said they had put a man off the train. The conductor testified that the train stopped, that he got off first, that plaintiff then stepped off, and that no physical force was used. One Woycke, who was section foreman, was hear the place at the time, and was not in the employ of the company at the time of the trial,, but had gone to farming, testified that the train was standing still when plaintiff got off, that the conductor got off ' first, and that plaintiff walked up to ' witness, and talked with him, but made no complaint that he had been pushed off, or that lie was hurt. One McCorquodale, a fuel inspector for the Weston Furnace Company, was a passenger upon the train, saw the transaction, and testified that the train had stopped, that no violence was used, and that the conductor got off first, and was followed by the plaintiff. One Stroschan was a section man working under Woycke, and testified that the train stopped; that the plaintiff then got off, and talked ' with Woycke. One Day, pui chasing agent and manager for the Ooolidge'Fuel & Supply Company, was a passenger, and testified that the train was standing still when the plaintiff got off. There was nothing tending to impeach these witnesses. In the face of this evidence, and of the improbability of the plaintiff’s story, the jury found that the conductor, Snyder, was guilty of a cowardly and criminal act.

Plaintiff claims to have been injured in one of his knees. He made no claim of injury to those who saw him immediately after, and at once walked four miles to a lumber camp. His own physician testified that he would eventually get the full motion of his knee joint, but not in less than a year. His other physicians testified 'that in their opinion he would always be somewhat lame. ■ Upon this testimony the jury rendered a verdict of $7,000.

The refusal to grant a new trial upon a verdict rendered upon such evidence is very close to an abuse of judicial discretion. While this Court, under its prior decisions, cannot interfere with this discretion, it can and ought to require that the trial be conducted in strict accordance with the rules of law, and cannot hold' that errors such as those pointed out above were not prejudicial. The motion for a new trial *in this case was made before the statute authorizing exceptions to the refusal to grant such motion, and a review thereof in this Court, went into effect.

The judgment must be set aside, and a new trial ordered.

Long and Hooker, JJ., concurred with Grant, J. McGrath, C. J., and Montgomery, J., concurred in the result.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    The Michigan Slate Company v. The Iron Range & Huron Bay Railroad Company.

      Corporations — Principal and agent — Estoppel—Evidence—Statute of frauds.

    The main features of this case involve the statement of many facts, and an examination of the entire opinion is essential to a correct understanding of the points decided. The principles found to be established in Hirschmann v. Railroad Co., 97 Mich. 384, to which reference is had, are held to have been fully established in this case.
    Error to Baraga. (Haire, J.)
    Argued June 21, 1893.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Wells, Angelí, Boynton & McMillan (Ashley Pond, of counsel), for appellant.

      Philip T. VanZile and Frank F. Robson, for plaintiff.
   Long, J.

This action was commenced by attachment to recover against the defendant company the value of certain merchandise. Plaintiff claims under a written guaranty, signed by Milo Davis, chief engineer of the rail-. road company, as follows:

“Iron Range & Huron Bay R. R. Co.
“ Milo Davis, Chief Engineer and Superintendent of Construction.
“Arvon, Mich., May 23, 1891.
■“ Michigan Slate Company,
“Arvon.
Gentlemen: Please deliver to "Wallace Dingman such
supplies as he may order for the construction of the I. R. & H. B. R. R.,» until further notice, and the same will either be taken out of his estimate from month to month, or taken from his final estimate, or, in case of his failure to complete the job, from last estimate given him, as the case may be, if not otherwise paid; and the Michigan Slate Company is hereby guaranteed against any loss from said DingmaAs failure to pay for any goods, tools, and supplies of all descriptions furnished from this date.
“ Milo Davis, Chief Engineer.”

Claim is also made upon the common counts in assumpsit for goods sold and delivered. A bill of particulars was filed, showing a claim of indebtedness of upwards of $36,000. The plea was the general issue, and there was also filed and served an affidavit of C. H. Buhl, president of the defendant company, to the effect that the railroad company never executed or caused to be executed the written agreement counted upon in the plaintifffs declaration, and that Milo Davis, chief engineer, mentioned in the declaration, had no authority to execute any such promise or agreement in behalf of the defendant company.

It appears that on June 30, 1890, articles of association of the defendant company were filed in the office of the Secretary of State. The purpose of the incorporation, as stated in the articles of association, was the construction of a railroad from some point on Huron Bay, Baraga county, Mich., through the counties of Baraga and Marquette, to the towns of Champion, Republic, and Michigamme. On July 26, 1890, a contract was made between James M. Turner and the defendant company, by which Turner agreed to undertake forthwith, and to complete within one year from the date of the contract, so much of the railroad as lay between some eligible point on Huron Bay, Baraga county, and the village of Champion, Marquette county, together with all necessary ore docks, station buildings, etc. On July 27, 1890, an agreement was signed between Christian H. Buhl and Henry Stephens, of Detroit, and James M. Turner, of Lansing, the substance of which was that, while the said Turner was to take the contract for the construction of the road in his own name, yet he was to act as much for .and in the interest of said Buhl and Stephens as for the interest of himself; and the contract then set forth the relative rights and obligations of Buhl, Stephens, and Turner under it. August 16, 1890, a contract was made between Wallace Dingman, of Battle Creek, Mich., and said James M. Turner, by which the said Dingman agreed to do all the grading, clearing, grubbing, etc., on said railroad, and to complete the same on or before August 1, 1891. Prior to the time of the organization of the defendant company, Milo Davis, a civil engineer, had been sent by Mr. Turner to make a preliminary survey of the route which the contemplated railroad was to follow. After the organization of the company, on recommendation of Mr. Turner, an arrangement was made-with said Davis by which he was to act as chief engineer of the company. It was also arranged that Mr. Charles M. Turner, who was the superintendent of the plaintiff company, should act as the auditor of the defendant company. James M. Turner was the president and treasurer of the Michigan Slate Company, and largely interested in it pecuniarily.

The claim of the plaintiff company is that it is entitled to recover against the defendant company for so much of the goods described in the bill of particulars as were furnished prior to May 23, 1891, or up to the time the written guaranty was . made, because of certain oral arrangements which it claimed to have made through its superintendent, Charles M. Turner, with Milo Davis, and approved by James M. Turner; and that for the balance of the goods the defendant company is liable by virtue of the written guaranty above set out. The written guaranty, it is conceded, though dated May 23, 3891, was not written and signed until after that date, and, as plaintiff seems to claim, some time in June or July. On the part of the defendant testimony was offered, which, it is claimed, tended to show that neither Turner nor Davis had any authority, either by virtue of the positions held by them or by virtue of any power conferred on them by the railroad company, to buy any goods on the credit of the company to be used by the contractor or subcontractors or boarding-house keepers, or to make any promises for the payment therefor; and that, if such purchases or such promises were made, they were made without the knowledge or consent or ratification of the company; that Milo Davis never had any authority to make the written agreement declared upon, and that the company had no1 knowledge that such agreement had ever been made.

The main features of the case relative to the organization of the defendant company, its contract with James M. Turner to construct its road, as well as the contract between Turner and Wallace Dingman, together with the appointment of Milo Davis as chief engineer of the defendant company and his powers and duties, are set out in the case of Hirschmann v. Railroad Co., 97 Mich. 384, and will not be repeated here. It was said in that case that—

The testimony brings the case within any one of several well-established rules:
“1. If the company relinquished to Turner the matter of the construction of this road, and Turner knew that Davis was contracting these obligations in the name and upon the credit of the company, Turner must be deemed to have adopted them. His knowledge was the company's knowledge, and the company is liable.
2. If the officers of the company were advised that Davis had incurred the June indebtedness to plaintiffs in the name and upon the credit of the company, and with •that, knowledge did not protest, but, pn the contrary, corresponded directly with the plaintiffs, and paid that account, plaintiffs were justified in relying upon that action as an assurance of Davis' authority, and extending further credit, and defendant is estopped from denying the authority of Davis.
“3. If Davis, in the exercise of the authority given to him by the contract, in view of Dingman’s inability, was prosecuting the work for and on behalf of the company, and incurred this indebtedness in such prosecution of the work, the plaintiffs were entitled to recover.
“4. If Davis was entering into contracts for the work upon the road, employing men and purchasing supplies in the name of the company and upon its credit, and the officers of the company knew of the fact, or had been advised of instances of like conduct, and remained silent, the company cannot now be heat'd to say that such person so acting was without authority.”

It is therefore to be seen whether this case falls within any of the above-mentioned principles.

Some time in August, 1890, Mr. C. M. Turner, as he testifies, commenced selling goods for the-plaintiff to Wallace Dingman. Some of these goods were paid for by Dingman, and some by Davis, for the defendant company. The account was balanced, Mr. Turner says, about March 1, 1891, all but $100, which was carried over to the March account. In that month Mr. Davis came to Arvon, and asked him why he did not sell the goods that were wanted at the camps; that a large amount was wanted. Mr. Turner told him that Dingman was in bad shape pecuniarily for so large an amount, when Davis said: “ Once you get the business, you get orders for the goods, and I will guarantee that you get your pay. I will see that you get your pay for the goods.” Mr. Turner says that on the strength of this guaranty he obtained the orders from Dingman, and furnished the goods. He further testifies that he called the attention of James M. Turner to the matter, who told him to go ahead, and furnish the supplies. Mr. Turner says that thereafter he ordered a large amount of goods from merchants with whom he dealt, and commenced at once to supply the defendant’s camps with them. He continued to do so until June 17, 1891, when he looked over the account with Davis, and settled with him for the goods so furnished to that date, and took from him a time check, showing that there was a balance due the plaintiff of the sum of $9,830.78. The statement was made out to the defendant company, Wallace Dingman, contractor, and indorsed as approved by Milo Davis, chief engineer of the defendant company.

Prior to this, and. about the 1st of May, C. M. Turner had called upon Davis for money. There was then due the plaintiff about $10,000, and he procured an order for that amount of money, as follows:

“Arvon, Mich., May 15, 1891.
“Iron Range & Huron Bat R. R. Co.:
“Please pay Michigan Slate Company the sum of $10,-029.94, the balance of amount due on account, and charge same to me.
“Wallace Dingman,
. “By Geo. L. Davis.
“Milo Davis,
“Chief Engineer.”
With this order Mr. Turner was given a letter to Mr. Peirce, chief accountant of the defendant company, as follows:
“Arvon, Mich., May 15, 1891.
“D. R. Peirce,
“ Chief Accountant I. R. & H. B. R. R.,
“ Detroit, Mich.
Dear Sir: The Michigan Slate Company is in such a
shape that they must have the amount of their bill against W. Dingman. We have barely enough money to pay the rolls, and the only way I could see to help them out was to sign an order on the railroad company for the amount of their bill.
“Yours truly,
“Milo Davis, Chief Engineer."

Mr. Turner says that at this time James M. Turner had failed in business, and the Michigan Slate Company was in need of the money. He took the order and letter, and came to Detroit to see Mr. Buhl. He testifies that Mr. Buhl told him at that time that they had made up the monthly account of estimates, and had no money on hand for that matter, and could not pay it. He says further that he thinks Mr. Buhl directed him to file the order with Mr. Peirce, but that Peirce objected to it, because at that time it was not signed by Mr. Dingman; that he took it home, and Dingman’s signature and O. K. was procured, and he then sent it to Peirce. Mr.. Turner further says that he then saw Davis, who assured him that if he continue. to sell goods he would get his pay, and that Davis agreed to guarantee the slate company against all loss arising from sales of goods to Dingman, and that Davis afterwards put it in writing. He continued to sell goods under the written guaranty until the balance of the bill was made.

The defendant’s contention is that neither Mr. James .M. Turner nor Mr. Davis had authority to bind the defendant company. The relation of Mr. James M. Turner to the company was peculiar. He was the originator of the scheme for the building of the road. The contract between Buhl, Stephens, and Turner is fully set out in Hirschmann v. Railroad Co , supra. The contract provided substantially that the parties associated for the purpose of “constructing, owning, and operating" the road, and that it was to be sold as an entirety within three years after completion. Turner was to take all the stock and bonds for building it; to give his notes for one-third of the cost, Buhl and Stephens furnishing the entire money for construction; Turner’s one-third of the stock and bonds to remain in the hands of Buhl and Stephens as security; the notes to be carried until the road was sold. It is evident that under this contract the three parties, Buhl, Stephens, and Turner, regarded themselves as the sole owners of the road, and of all the rights and interests therein, and when it was sold they were to divide the proceeds equally between themselves. Mr. James F. Joy had originally entered into„ the scheme of building the road, but Mr. Turner says he dropped out, and it was understood that the money he put in should remain in the pool, and they would make some arrangement that would be satisfactory to him about it. It appears that Mr. Joy never had anything to do about the matter after that, but that the 'three parties went forward with the scheme as though they were the sole owners. Mr. Turner did not sign the articles of association, and he claims he was left out so that he could take the contract for the stock and bonds. These three then became the sole managers of the defendant company. They consulted no one else about the management of the affairs of the company, according to James M. Turner’s testimony. They appointed Milo Davis as chief engineer, and he was directed by them to advertise for bids, and the contract for the actual construction was let to Dingman. This contract was signed by Turner. Shortly after it was executed, Davis went to the Upper Peninsula, and the work of construction commenced. On November 15, 1890, the Dingman contract was modified, Buhl and Stephens alone making the agreement of modification, and Turner afterwards approving it. No one else connected with the company appears to have been consulted, and the work was thereafter carried forward up to September, 1891. The moneys to carry on the work were sent by the company to Dingman up to some time in January, 1891, and after that time to C. M. Turner or Milo Davis, or paid out by checks directly from Mr, Peirce, the accountant at Detroit. Mr. Davis had sole charge of the work, except as James M. Turner went up from time to time to look after it. Mr. Davis had his instructions from Mr. Turner. The railroad office and Dingman's office were in the same building, and, fdr the greater portion of the time covered by the accounts, Mr. Clark acted as book-keeper for both parties. Goods-were furnished by various parties upon orders made by Ding-man, per Clark. Other goods by various parties were furnished under the direction of Davis, who had arranged that certain parties were to have goods when needed. The goods were entered upon plaintiffs books separately against each camp, and .at the end of the month the separate accounts were posted to Dingman’s account. Other parties besides the plaintiff delivered goods and posted their books in the same way. At the end of each month requisitions were made for the amounts needed to pay the various accounts, and sent along with the monthly estimates, and paid. Payments were made in this way until about May 1, 1891, when Mr. Davis gave Mr. C. M. Turner, for plaintiff, the order for the $10,000.

By the terms of the Dingman contract, the defendant company had the right at any time, if Dingman neglected or refused to prosecute the owork with a sufficient force to complete it within the agreed time, to take possession and complete it. It is also contended by plaintiff that in the fall of 1890, and before the goods in question were furnished, the defendant company, through Davis, discovered that Dingman was not competent to carry on the work and finish the contract, and' so, availing itself of the foregoing clause in the contract, the company took charge of tbe work, and finally took it fully out of Dingman’s hands, and prosecuted it by Davis, though it was nominally carried on in Dingman’s name. There are many circumstances which have a strong tendency to support that claim, though some of the letters and statements of James M. Turner are quite contradictory of that theory. However this may be, it is apparent that the matter was left to James M. Turner to manage, and that Davis, acting under Mr. Turner’s direction, went forward with the work, or at least directed and controlled it; and that, the goods for which suit is brought were furnished by C. M. Turner for the plaintiff, on the strength of Davis’' promise that they should be paid for. Testimony was given by other parties who furnished goods, showing that Davis, ordered such goods for the company; also testimony showing that some timé in April, and from that time forward, Davis hired men for the work, and gave them time checks,, which were paid by the company. It also appeared that-Davis, in the course of his correspondence with James M. Turner and with Mr. Buhl and others, generally used letter paper which contained the heading of the defendant, company, “Milo Davis, Chief Engineer and Superintend" ent of Construction,” and that Davis said from time to' time that Dingman was unable to prosecute the. work, and the company was completing it. It appeared in this case, as in Hirschmann v. Railroad Co., supra, that the June-bills, while aggregating a large amount, — over $50,000,— contained an amount going to Dingman of only $250. How the matter of the construction of the road was regarded by the parties is illustrated by the letters passing between them at the time. In a letter from Mr. Stephens to James M. Turner, dated August 5, 1890, he says:

“ If possible, I would like this letting of the construction contract to you wiped out of the organization, and the contract between ns three to read just as we have talked, viz.: Mr. Buhl and myself furnish the money, if necessary, up to $500,000. We each own one-third, for which you give us your notes from time to time, secured by your one-third of the stock and bonds. That’s all there is to it, and I am ignorant of the necessity of dragging in and lumbering up an agreement with a contract to you for the construction of the road.”

Mr. Turner, in his testimony, says:

'“Mr. Buhl, Mr. Stephens, and myself are the company; but it was thought, as the contract ran to me, that I better not appear as a stockholder, in order to have it all legal.”

We have seen that Mr. Davis held himself out as the agent of the company to various parties from whom goods were purchased, and to men whom he employed for the company, and that the affairs of the company were largely conducted by him, or under his direction, from the spring of 1891 forward.

James M. Turner was the active party for Buhl, Stephens, and Turner. .The whole affairs of the company were in their hands. Mr. Turner, while so acting, gave direction to Davis. Mr. Turner says:

“ I was to look after the building of the road up here, and employ the men to see to it. After Mr. Davis came up here, I gave him most of his orders direct from my office as between us three.”

He says further:

“Davis’ duties were to see that our men and teams were fed, and it was impossible to feed men and horses unless somebody became responsible for it.”

He also says that he said to C. M. Turner, if he would make the arrangement with Davis, and turn in the bills .at the end of each month, so as to be checked up and charged to the various persons, that the company would pay for all the supplies that he would furnish. James M. Turner also testified that when the June estimates were presented Mr. Buhl, Mr. Stephens, Dingman, and himself met in Detroit, and looked them over; that Dingman knew but little about them. Milo Davis was there, and wanted' about $50,000, aside from the pay rolls, for mercantile accounts and accounts at two banks. The accounts were all looked over and scaled down as much as possible, but some were to be paid by the company that month, and were paid. Johnston, a witness for plaintiff, testified that Mr. Buhl on one occasion told him in Detroit that “Milo Davis is our agent up there.” This «testimony, and the claims of plaintiff, are contradicted by Mr. Buhl, Mr.' Stephens, and others; but the testimony and claims of the plaintiff were proper for the consideration of the jury in determining the question raised.

The court, upon this testimony, and the claims made by the plaintiff, directed the jury substantially that if they found that Davis was the agent of the defendant company, with power to pledge the credit of the company to pay for goods of the kind in question furnished along the line of the road, and that he did in behalf of the company verbally agree that the company would pay for them, and plaintiff furnished the goods in conformity with the agreement, relying upon that agreement, and looking solely to the defendant for the price, and not to Mr. Dingman, they should find for the plaintiff for the value of the goods furnished before the time the written guaranty was made; but, if the' plaintiff looked both to the company and to Dingman for such goods, they must find for the defendant, as, in order to recover, they must find that plaintiff looked only to the company, and not to Dingman at all. As to the goods sold under the written guaranty, the court instructed the jury that, if they found that Davis was authorized to make the guaranty in behalf of the company, it would bind the company, and, if they found that Dingman failed to pay for the goods so furnished, the defendant would be liable for their value.

It is contended by defendant that the admission of testimony showing that Buhl and Stephens were the heavy subscribers to the stock of the company was error prejudicial to the rights of the defendant company, as its tendency was to impress the jury that Buhl and Stephens were the railroad company. It is true that the introduction in evidence of the contract between Buhl, Stephens, and Turner and the testimony in relation thereto may have had that tendency, and the jury may have been impressed with the idea that these parties were the company; but the evidence was competent for the purpose of showing the authority of Turner in the premises. Counsel for defendant very aptly state the questions here involved as follows:

Had Turner, by virtue of his relations with Buhl and Stephens, or by virtue of any instructions from them, power to guarantee payment to the plaintiff for the supplies in question; or had he the power, by virtue of that relation or those instructions, to authorize Milo Davis to make such a guaranty; or had Milo Davis, because of the fact that he was chief engineer of the road, or because of any authority from the railroad company, power to make such a guaranty?”

The court below directed the jury that the fact of Davis being chief engineer did not of itself imply such authority, so that question is not involved here.

It is evident from the manner in which the whole business of the construction of the road was conducted that substantially Buhl, Stephens, and Turner were the company, and their acts are binding upon the company itself. The company cannot adopt the acts that are advantageous to it and reject those which are disadvantageous. It is true that there was no formal corporate action, except the making of the contract for the construction; but by this contract Turner was to have all the stock and bonds of the company, and he made it in.the interest of Buhl, Stephens, and himself, and with the understanding that the road, as soon as constructed, was to be sold out for the benefit of the three. Much greater power was vested in Turner than was found to be vested in Smith by the Smith Middlings Purifier Company in Preston Nat. Bank v. Purifier Co., 84 Mich. 364, and there it was said:

Conceding that the president must exercise his powers of management in subordination to the board, yet when, as in this case, the stockholders, being the owners, have seen fit to vest certain extraordinary powers of management in the president, and certain other powers in the treasurer and superintendent, and the directors, with full knowledge of this, elect a man to fill all those offices, and thereafter put no restraint upon his management, the board must be held to have consented to his exercising all the power reasonably included in the language by which it was conferred. * * * * * * * * * *
What the owners consent to expressly or permissively they ought not to be allowed afterwards to deny.”

It is substantially shown that all parties connected with this enterprise agreed that the whole business should be done by and through Buhl, Stephens, and Turner; and it-was so done. No one else had any voice in it, or took any part in it. No one else seems to have put a dollar of money in to carry out the contracts. Buhl and Stephens furnished it all, except what Mr. Joy put in originally, and that appears to have been arranged for. Buhl and Stephens then empowered Turner to act for the three, and he did so act, and his acts must be held binding upon the defendant company. This is supported by abundant authority: Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332; Preston Nat. Bank v. Purifier Co., supra; Bank of Middlebury v. Railroad Co., 30 Vt. 159; Orr Water-Ditch Co. v. Reno Water Co., 19 Nev. 60; Hull v. Glover, 126 Ill. 122; People v. Sugar-Refining Co., 121 N. Y. 582. The first proposition, therefore, that was laid down in Hirschmann v. Railroad Co., supra, finds support here. Turner knew that Davis had arranged for the goods with plaintiff,, and ratified and confirmed the action of Davis.

It is contended, however, that Turner being president of the plaintiff company, and his powers being limited in the contract, which provides that “no indebtedness shall be incurred, and no expenditures made, without the full consent and co-operation of all the parties to this agreement,” Turner’s knowledge of this limitation was the knowledge of plaintiff, and therefore plaintiff is estopped from recovery. There can be no doubt that Turner could legally act both for the defendant company — for Buhl, Stephens, and himself — and at the same time for the plaintiff company. A party may act in the double relation of agent for both parties. Adams Mining Co. v. Senter, 26 Mich. 73; Colwell v. Iron Co., 36 Id. 51; Rolling-Stock Co. v. Railroad Co., 34 Ohio St. 450; Mayor, etc., v. Inman, 57 Ga. 370; Alexander v. Williams, 14 Mo. App. 27; Bank v. Iron Co., 97 Mo. 38; Kitchen v. Railway Co., 69 Id. 224; Fitzsimmons v. Express Co., 40 Ga. 330. There is nothing appearing in the case to show that Mr. C. M. Turner, who was the general manager of the plaintiff company, did not act in the utmost good faith in making the sales of the goods; and it is ajjparent that the defendant company actually had the benefit of the goods so furnished. The plaintiff company had constructed several miles of the road for the defendant company, and James M. Turner acted for both parties. The plaintiff company had furnished ties and lumber, which had been paid for, and the defendant company had placed money due the plaintiff to the credit of James M. Turner for the plaintiff. Some other deals had taken place between the plaintiff and the defendant, in which James M. Turner had acted for both parties, and no 'objection had been made by the defendant, or its officers, or by Buhl and Stephens, so far as this record shows. It also appears that the limitation upon Turner’s power as to the contraction of indebtedness was not adhered to, and he was permitted to go on with the building of the road if Dingman .failed to carry out his contract. It is not claimed that any undue advantage was taken by the plaintiff company by or through this agency, the claim being that no power was vested in James M. Turner or Davis to authorize the pxxrchase of the goods or guarantee payment therefor. Mr. Turner testified that he was to look after the building of the road, and to employ men to see to it, but that, after Davis came up, he gave him orders; Mr. Buhl says that Turner had authority to see to the building of the road under the contract; and, in addition to this, there is some evidence that Buhl and Stephens held Mr. Davis out as the agent of the company.

It is contended that certain testimony given by plaintiff under defendant’s objection was inadmissible, and error is assigned upon the ruling of the court. This testimony was to the effect that Davis made statements as to his agency, and directed supplies to be furnished by different parties, and in general' appeared to have authority and control over the matters of the company, making contracts for work, and directing the work to be done, and paying for supplies. It was held in Hirschmann v. Railroad Co., supra, that plaintiff was entitled to show xvhat powex-s had been assumed by Davis, and the extent to which he had been contracting in the name of the company; and we think the rule was there settled that this testimony was admissible.

It is claimed that the evidence does not show that C. M. Turner, as the superintendent of the plaintiff company, in selling the goods for which suit is brought, looked solely to the defendant for payment, but, on the' other hand, that he charged the goods to Dingman, and that they were sold on the credit of Dingman, and the plaintiff had no idea of looking to defendant for its pay, except in case Dingman failed to pay the debt; and that therefore the claim sued upon is void under the statute of frauds. We think it appears from the testimony of C. M. Turner that he would not sell the goods on the strength of Dingman’s credit, and he so stated to Davis before any goods were furnished. They were sold, according to Mr. Turner’s statement, solely upon the faith of the promise made by Davis that the defendant company would pay for them. This question was fairly submitted to the jury, and they have found against defendant’s contention upon the facts.

We think, under the facts of this case, the principle laid down in Bice v. Building Co., 96 Mich. 24, plainly applicable. In that case the defendant company had the right, under its contract with Wilson & Moore, at any time when the contractors failed to prosecute the work with diligence, to provide materials itself, and deduct the cost from the money due on the contract. When the defendant found that the plaintiffs would furnish no more materials to Wilson & Moore, or upon their credit, -it agreed to make the payment directly to the plaintiffs, and it was held that the case was not within the statute of frauds; citing Nelson v. Boynton, 3 Metc. 396. The Court further said:

“The object to be accomplished by the defendant company was the immediate acquisition of those materials to put into the building. The purpose was not to benefit Wilson & Moore, or to obtain any forbearance for them, but to benefit the defendant company.”

So, in the present case, the purpose of this arrangement was to get materials to carry on this work, because Dingman could not purchase goods. This was so, not only with regard to the plaintiff, but with others along the line of the road; and the goods were delivered to the railroad company’s camps, and there used. It was to benefit the company, and not to benefit Dingman, or to obtain any forbearance for him.

This rule was recognized in Calkins v. Chandler, 36 Mich. 320, and it was there said:

“But where the third party is himself to receive the benefit for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not.”

This case was cited with approval in Perkins v. Hershey, 77 Mich. 504.

We think, therefore, the principles found to be established in Hirschmann v. Railroad Co., supra, have been fully established here, and under the findings of the jury the defendant is properly held liable, not only upon the verbal arrangement made by Davis with C. M. Turner for the plaintiff, but also upon the written guaranty of Davis.

Many other errors are assigned upon this record, but we do not think it profitable to discuss them. The main features of the case involve the statement of many facts. The theory of both parties was laid before the jury in a full and fair charge, and the jury have determined the issues in favor of the plaintiff.

Judgment must be affirmbd.

The other Justices concurred.


author: McGrath, C. J.

text:
    Henry Mertz v. Thomas A. Berry.

      Homestead — Exemption—Judgment founded in tort.

    Art. 16, § 2, of the Constitution, which exempts a homestead from forced sale on execution, or any other final process of a court, for any debt contracted after the adoption of the Conslitution, must be construed as exempting the homestead from execution and sale upon all judgments, whether founded in tort or in contract.

    Appeal from St. . Clair. (Vance, J.) Submitted on briefs
    April 6, 1894.
    Decided June 16, 1894.
    Bill to set aside a levy upon complainant's homestead, and the sale 'thereunder.
    Defendant appeals.
    Decree affirmed. The facts are stated in the opinion.

      Avery Bros. & Walsh, for complainant.

      Edwin F. Gonely and Orla B. Taylor, for defendant.

       With this case as reported in 24 L. R. A. 789, is a note on exemption of homestead from liability for torts.

   McGrath, C. J.

The sole question in this case is whether, under our Constitution, the homestead is exempted from levy and sale under an execution issued upon a judgment recovered in an action of tort.

The Constitution provides (article 16, § 3) that—

Every homestead * * * shall be exempt from forced sale on execution, or any other final process from a court, for any debt contracted after the adoption of this Constitution. ”

The statute provides (How. Stat. § 7721) that—

“A homestead * * * shall not be subject to forced sale on execution, or any other final process from a court, for any debt or debts growing out of or founded upon contract, either express or implied, made after the third day of July, A. D. 1848.”

This statute was, however, passed in 1848, before the adoption of the present Constitution.

Upon examination of the proceedings of the constitutional convention of 1850, it will be observed that sections 1, 2, and 3 of this article, as first reported, read as follows:

“1. The personal property of every resident of this State shall be exempted, to the amount of not less than $500, from sale on execution or other final process of any court of law or equity.
“ 2. The homestead of every family, of not less than 40 acres, which shall not be included in any city, village, or recorded town plat, or, in lieu thereof, any lot in any city, village, or recorded town plat, shall not be subject to forced sale for any debt hereafter incurred; nor shall the owner of such homestead, if a married man, alienate the same by any deed of conveyance, without the consent of his wife, obtained in due form of law.
“3. The homestead of any family, after the death of the owner thereof, shall likewise be exempt from the payment of his debts contracted after the adoption of this Constitution, m all cases where any minor children shall survive the death of such owner, for their benefit and support during minority.” Const. Deb. 1850, p. 240.

When these sections were under consideration, it was urged that the first section was retrospective in its action; and, to obviate that objection, Mr. Pierce offered the following as an addition thereto:

“Issued for the collection of any debt contracted after the adoption of this Constitution.” Const. Deb. 1850,, p. 667.

The article was again taken from the table, when a substitute was offered for sections 1, 2, and 3. Thereupon, certain amendments were offered as a substitute for the former substitute, which amendments prevailed. The article was then recommitted, with . instructions. The committee immediately reported back the article,.“amended agreeably to instructions.” The article was then passed, and, under the rule, referred to the committee on arrangement and phraseology. Up to this time, it nowhere appears that section 2 had been amended, or that any instructions had been given respecting amendments thereto, except such as appear on pages 740 and 741, which do not relate to this subject. . The committee on arrangement and phraseology reported back the article, and, in their report, the language, "for any debt contracted after the adoption of this constitution,” first appeared as substituted for the language, "for any debt hereafter incurred.” This would appear to have been done to make the language of the three sections uniform.

The subject of exemptions was very fully discussed. The retrospective effect of the first section, as it appeared when first reported, was objected to, but nowhere was any distinction hinted at between debts founded on contract and those founded in tort; and it affirmatively appears that the language added to the first section was appended for the express purpose of obviating the objection raised. The statutes existing at that time relating to the exemption of personal property exempted the property specified from levy and sale “under any execution, or upon any other final process of a court.” The statute of 1848, relating to real property, above quoted, was clear and explicit, and clearly applies only to “ debts growing out of or founded upon contract, either express or implied, made after,” etc. The debates furnish no indication of an intention to make the constitutional provision relating to •the exemption of personal property more restrictive than the statutory provisions upon the same subject. Pending the discussion of these sections, which was a protracted one, the second section read, “ any debt hereafter incurred;” and, although the section was amended in other particulars, no reference appears to have been made to this language.

The word “debt” is one of large import, including debts of record or judgments. Gray v. Bennett, 3 Metc. 526; Insurance Co. v. Meeker, 37 N. J. Law, 301; In re Estate of Lambie, 94 Mich. 489. A judgment founded in tort is a debt. "What, then, is the office of the language which follows the word “debt?” Is it to qualify the word “ debt,” or, in other words, to indicate what class of debts the exemption was intended to include, or was it used for the purpose of making the provision prospective, instead of retrospective, — in other words, to limit the operation of the provision tó debts afterwards incurred? In view of the history recited, we are inclined -to the latter view. The word “contracted” is sometimes used in a broader sense than that contended for by defendant. A disease may be contracted, while not contracted for. The words “ liability contracted,” etc., have been said to have a broader signification than the words “debt contracted,” etc.; but a contract liability is as much a liability growing out of a contract as is a contract debt a debt founded upon contract. In either case,' if the word “ contracted ” nan be said to qualify the word which precedes it, the result is the same, so far as the limitation of the qualified word is concerned. There are a number of authorities which hold that under such a provision the homestead is not exempt from execution issued upon a judgment founded in tort. Robinson v. Wiley, 15 N. Y. 489; Lathrop v. Singer, 39 Barb. 396; Kenyon v. Gould, 61 Penn. St. 292; Kirkpatrick v. White, 29 Id. 176; McLaren v. Anderson, 81 Ala. 106; Williams v. Bowden, 69 Id. 433; Burton v. Mill, 78 Va. 468. In Indiana and Georgia the language is, “ debts founded on contract.” In Wisconsin the language is, “for any debt or liability contracted after,” etc.; and it is there held that the homestead is exempt from levy and sale upon a judgment founded in tort. Smith v. Omans, 17 Wis. 395. In Illinois the language is the same as ours, but there is another statute which prohibits an alienation of the homestead in any case by the husband, except with the consent of the wife, and the courts of that state have held that, in the light of both of these laws, it was the evident intent of the legislature to protect the homestead, as a shelter for the wife and children, independently of any acts of the husband. In Conroy v. Sullivan, 44 Ill. 451, the court say:

“He [the husband] cannot deprive them of their right to it [the homestead] without the consent of the wife, either by his contracts or his torts. There is no more reason, so far as the wife is concerned, for permitting it to be sold for the husband's tort, than for his violation of a contract, and it is the evident policy of the law to forbid its being sold under a judgment and execution in either case.”

See, also, Loomis v. Gerson, 62 Ill. 11. The Illinois cases have been criticised by some of the text writers, but we think The rule laid down by that court is sound.

As a general rule, only such property as the owner or debtor himself might sell can be taken on execution against him. Coombs v. Jordan, 3 Bland, 284; French v. Mehan, 56 Penn. St. 286; Gentry v. Wagstaff, 3 Dev. 270; Knox v. Hunt, 18 Mo. 243. It has frequently been held by our own Court that any deed, release, or mortgage, except for purchase money, of the homestead exemption, by the husband, without the signature of the wife, is void as to both. As early as the case of Beecher v. Baldy, 7 Mich. 488, 506, it was held that, where the householder is a married man, he cannot, by any waiver, consent to a sale on execution, so as to render such sale valid, without the consent of the wife. Justice Christiancy, in that case, speaking for the Court, says:

“ For, in such case, the validity of the sale would rest upon his consent, in the same manner as if he had conveyed by deed; and, if deeded by him under the like circumstances, the deed would be void, even as to him, without the signature of the wife. -Such, we think, is the effect of the express provision of the Constitution. * * * The object of the exemption was quite as much to protect the wife and family as the husband.”

Mr. Justice Campbell, in Penniman v. Perce, 9 Mich. 528, says:

“The wife has an absolute and vested interest in the homestead, which her husband has no power to discharge or affect.”

"We do not think that it was the intention of the framers of the Constitution to prohibit a voluntary alienation by the husband, and at the -same time permit an involuntary alienation. It was not intended that a mortgage executed by the husband upon the homestead without the consent of the wife should be void, but that in case the husband represented that he was not married, and that the premises mortgaged were not a homestead, a judgment founded upon the fraud, and not upon the contract, could be enforced against the homestead propérty. In view of the language employed, the light thrown upon the use of the phrase by the record of the proceedings of the convention, the fact that the language of the existing statute upon the same subject was not adopted, and the effect which has already been given to this provision as respects alienation by the husband, the provision must be construed as exempting the homestead from execution and sale upon all judgments, whether founded in tort or in contract. It may be said, also, that this Constitution has for nearly 50 years received this construction, and to give it that contended, for by defendant would be a surprise to the bar and people of this State.

The.decree is affirmed, with costs.

The other Justices concurred.


text:
    Willard VanTuyle v. Amos D. Pratt and Byron H. Pratt.

      Bills and notes — Failure of consideration — Evidence.
    1, The main question in this case is whether the consideration of the notes sued upon were the services of a stallion owned by the payee, and the privilege of returning the mares for reservice the following year if they proved not to be with foal, or the begetting of a colt for each note. And it is held that, taken in connection with the fact that one of the mares foaled, and that thereupon one of the notes was paid, and that no demand was made for the payment of the remaining notes, although nearly a year elapsed after their maturity and before the death of the payee, there was sufficient testimony in support of the latter theory to go to the jury, and that the question was properly submitted.
    2. A circular advertising the stallion, and stating that he would make the season of the year in which the notes were given at a certain price the season, and that mares not proving in foal might be returned free the following year, was properly excluded as evidence in behalf of the plaintiff, it not being shown that any copies of the circular were published, posted, or distributed, or that it, or any copy thereof, had ever been brought to the-attention of the defendants. '
    Error to Lenawee. (Lane, J.)
    Argued April 6, 1894.
    Decided June 16, 1894.

      Assiimjisit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      James W. WigMman (A. F. Freeman and Wood & Bird, of counsel), for appellant.

      Watts,' Bean & Smith, for defendants.
   McGrath, C. J.

This suit was brought upon three promissory notes, for $20 each, executed by defendants to Frank L. Silvers, two of which were payable 10 months after date, and one 3 months after date. Silvers died February 18, 1889, and the notes came into plaintiffs hands thereafter. Silvers was the owner of a stallion, and defendants were the owners of three mares, which were-served on or about the date of the notes. One of the mares foaled in 1888, and one of the notes was shown to have been paid. Two of the mares were again served in 1888, but neither foaled. The administrator sold the stallion before the season opened in 1889. The sole controversy was as to the consideration of the notes. Plaintiff contended that the service and the privilege given to return the mares was the consideration, and defendants-insisted that the consideration for each note was the* begetting ,of a colt.

We think that there was sufficient testimony — taken im connection with the fact that one of the mares foaled,, and that thereupon one of the notes was paid, and that-no demand appears to have been made for the payment of' the other notes, although nearly a year elapsed -after their maturity and before the death of Silvers — in support of defendants theory to go to the jury, and that the question was properly submitted.

Plaintiff offered in- evidence what is termed in the record, a “blue paper, which gives the pedigree of the stallion, and sets forth that the stallion “ will make the season of 1887 at Tecumseh, Michigan. Terms, $20 the season.. Mares not proving in foal may be returned free in 1888. For full particulars, address Frank L. Silvers, Tecumseh, Mich.” The exclusion of the paper is alleged as error. It was not shown that any copies of such paper were published, posted, or distributed, or that the paper offered, or any copy thereof, had ever been brought to the attention of defendants.

Plaintiff offered in evidence an entry in a certain book which had been kept by Silvers, which was rejected. The entry appears in the record, but throws no light on the question upon which the case turns.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.

       The notes were dated April 27, 28, and 29, 1887.


text:
    Thomas E. Barkworth v. Sidney M. Isbell.

      JEstoppel — Surety on appeal bond — Assignment of interest in goods as security — Lien.
    "Where a surety on an appeal bond' accepts as indemnity an assignment of the interest of the appellant in a quantity of apples in the hands of a commission merchant, in reliance upon the latter’s representations that his lien upon the apples amounts to a certain sum, and that the apples are worth enough to make the assignment good security, and the merchant sells the apples at a price sufficient to cover his said lien and the judgment appealed from, which has been affirmed and paid by the surety, the merchant is estopped, in a suit brought against him by the surety to recover the amount of the judgment, from setting up as a defense that the apples were subject to further liens growing out ofw prior dealings between him and the appellant.

      Error to Jackson. (Peck, J.)
    Submitted on briefs April 11, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Thomas A. Wilson, for appellant.

      Thomas JE. Barkworth, in pro per.

        See Dean v. Crall, 98 Mich. 591, holding that an estoppel in pais need not be pleaded in an action at law.

   McGrath, C. J.

One McKinney was engaged in evaporating apples. In September, 1887, he made an arrangement with defendant, who was a commission merchant, whereby defendant was to receive, store, and market the apples, and make advances, and upon sale he was to retain out of the proceeds his advances,- and interest thereon, and 5 per cent, commission. In November following, McKinney was sued in justice’s court, and a judgment was rendered against him.' He took an appeal to the circuit, resulting in an affirmance of the judgment. Plaintiff was surety on the appeal bond, and paid the judgment. Defendant had been asked to become surety, but declined. Plaintiff was then requested to sign the bond, McKinney offering as indemnity an assignment of his interest in the apples then in defendant’s hands. Plaintiff called upon defendant, and informed him of McKinney’s request, and that, before taking the assignment and signing the bond, he desired to know what 'amount of apples were on hand, and what lien defendant had upon the same. Defendant informed him that he had in his possession between 11,000 and 12,000 pounds of apples, upon which he had advanced six cents per pound; that the apples were worth eight cents per pound; and that the security was ample. Plaintiff thereupon took the assignment, and became surety upon the bond, with the result aforesaid. Defendant afterwards sold the apples, and plaintiff sues to recover the amount received for the same in excess of defendant’s lien of six cents.

It is not insisted that there were not from 11,000 to 12,000 pounds of apples on hand November 30, 1887,— the date of defendant’s representation, — or that the amount realized from the sale of the apples then on hand was not sufficient to pay defendant’s lien of six cents per pound, and leave a sufficient margin to pay the amount of the judgment which plaintiff had been compelled to pay. But the dealings between Isbell and McKinney covered the period between September 1, 1887, and December 3, 1887, during which time McKinney claimed to have stored with Isbell over 30,000 pounds of apples, but 1,292 pounds of which were delivered after November 30, 1887, and but 5,050 pounds had been sold before that date. It is claimed by defendant, however, that upon the entire deal there was a large shortage in weight, and that the proceeds of sales did not equal defendant’s advances. Defendant’s receipts from sales after November 30, 1887, aggregated $1,558.17, which would represent eight cents per pound on 19,477 pounds of apples, and but 1,292 pounds were received after the last-named date. ,

Plaintiff took from McKinney an assignment of specific property, which McKinney owned, and which was then in the hands of defendant, and incurred the liability upon the bond, relying upon defendant’s representation that his lien upon that property amounted to six cents per pound. Defendant sold that specific property, and received the proceeds. Plaintiff was entitled to such proceeds, less the amount of the lien disclosed, up to the amount paid by him in consequence of the liability incurred, if such an amount remained. Defendant is estopped from setting up in defense that the property was subject to further liens. Plaintiff’s suit is not grounded in an estoppel which he was bound to plead. Suppose that plaintiff had informed defendant that he was about to buy the apples, and inquired as to both amount and lien; that «defendant had told him that the amount was 11,000 pounds, and,the lien six cents per pound; and that plaintiff had purchased and paid for 11,000 pounds, and had paid or tendered the amount of the lien as claimed, — could there be any doubt as to plaintiff’s right to the property purchased, or to recover in replevin or trover, or, if the property had been sold, in assumpsit for the proceeds?

The case of Anderson v. Corcoran, 92 Mich. 628, is not in point. There, plaintiff claimed that the posts had been sold at prices less than agreed upon, and the Court held that the recovery could not be had as for money had and received. Here, the money for the apples had been actually received, and defendant sought to apply it to the extinguishment of a claim which had not been disclosed.

Tlie judgment is affirmed.

The other Justices concurred.


author: Grant, J.

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    Thomas Lynch v. Bela Hubbard, The City of Detroit, and The Detroit Steel & Spring Company.

      Municipal corporations — Defective sidewalks — Liability of lot-owner — Action.
    1. No liability exists at common law, either on the part of the municipality or the lot-owner, for the absence of á sidewalk, or for neglect to repair one which is in existence; citing City of Detroit v. Blackeby, 21 Mich. 84; Taylor v. Railroad Co., 45 Id. 74; City of Detroit v. Chaffee, 70 Id. 80.
    2. The charter of the city of Detroit provides that if a lot-owner neglects to construct or repair a sidewalk, as ordered by the common council, within the time prescribed by the notice required to be given him by the board of public works upon the making of such order, and the city is compelled to pay damages for injury to any person on account of such neglect, the lot-owner shall be liable to the city for the amount of damages so paid, and the same may be collected in an action of debt in the proper court. And it is held:
    a — That the lot-owner is not liable, unless he has failed to construct or repair the sidewalk within 10 days after notice served upon him, and after the common council has ordered its construction or repair.
    b — That the board of public works has no authority to give the notice, except upon the resolution of the common council.
    e — That the charter nowhere authorizes or contemplates that the injured party may bring suit against the lot-owner, such right of action being given to the city alone.
    Error to Wayne. (Brevoort, J.)
    Submitted on briefs April 12, 1894.
    Decided June 16, 1894.
    Negligence case. 'Plaintiff and defendant Hubbard bring error.
    Reversed as to defendant Hubbard, and judgment entered in his favor. Reversed as to defendant city, and a new trial ordered. Affirmed as to defendant Detroit Steel & Spring Company.
    The facts are stated in the opinion.

      James H. Pound, for plaintiff.

      U. E. Spalding, for appellant Hubbard.

      John J. Speed (T. T. Leete, Jr., of counsel), for defend- . ant city of Detroit.

      Wells, Angelí, Boynton & McMillan, for defendant Detroit Steel & Spring Company.
   Grant, J.

Plaintiff claimed to have been injured by falling into a hole in a sidewalk upon one of the streets of the defendant city, and opposite a vacant lot owned by the defendant Hubbard. His ground of liability against the city is the statutory duty to keep its sidewalks in condition fit for travel; against the defendant company, that it broke the sidewalk by driving its teams across it; and against the defendant Hubbard, that he was the Owner of the lot, and neglected to construct a sidewalk after service of notice upon him by the city to do so.. The jury rendered a verdict in favor of the defendants the city and the steel and spring company, and against the defendant Hubbard for the damages which they found the plaintiff had sustained.

Defendant Hubbard appeals, and plaintiff appeals frorh the judgment in favor of the city and the steel and spring company. The jury found that the steel and spring company did not break the sidewalk at the point where the plaintiff was injured. The non-liability on its part has therefore been established, and all question of its liability is eliminated from the case. There was no evidence tending to show that it caused the defect in the walk by driving its teams over it at the point where the accident occurred.

The jury evidently established the non-liability of the city upon the basis of the liability of Mr. Hubbard. The liability of the city is statutory. No liability exists at the common law, either on the part of the municipality or the land-owner, for the absence of a sidewalk, or for neglect to repair one which is in existence. City of Detroit v. Blackeby, 21 Mich. 84; Taylor v. Railroad Co., 45 Id. 74; City of Detroit v. Chaffee, 70 Id. 80.

A lot-owner in. the city of Detroit is not liable for damages resulting from the failure to construct or repair a sidewalk unless he has failed to construct or repair it within 10 days after notice served upon him, and after the common council has ordered its construction or repair. Charter, chap. 7, § 57. In this case the council had taken no action, nor was Mr. Hubbard notified to construct the walk, 10 days previous to the date of the injury. A sidewalk inspector, purporting to act in behalf of the board of public works, had served such notice' more than 10 days prior to the accident, not' upon Mr. Hubbard, but upon a Mr. Hanes, supposed to be his agent. This notice, purporting to be from the board of public works, was without authority. The board has no authority in such cases to act, except upon the resolution of the council. To hold otherwise would result in establishing the rule that the board of public works, and not the common council, may not only establish the liability for damages, but impose taxation by the construction of walks. Charter, chap. 11, § 9.

The lot-owner cannot be sued by the injured party, because neither the common law nor the statute gives him the right of action. The charter nowhere, either directly or impliedly, authorizes or contemplates that the injured party may bring suit against the lot-owner. The charter provides that if the lot-owner neglects to construct or repair a sidewalk, as ordered, within the time prescribed by the notice, and the city is compelled to pay damages for injury to any person on account of such neglect, the owner shall be liable to the city for the amount of damages so paid, and the same may be collected in an action of debt in the proper court. The sole condition of the lot-owner’s liability is its establishment by a judgment against the city in favor of the injured party, and then the right of action is given to the city alone. Taylor v. Railroad Co., supra.

There are other errors for which the case should be reversed, but as they cannot arise upon a new trial, under this decision, we need not discuss them.

It is insisted that plaintiff, upon his own evidence, is guilty of contributory negligence. 'Under the record as it now stands, we do not think it necessary to pass upon that question.

The judgment as to defendant the Detroit Steel & Spring Company is affirmed. The judgment against the defendant Hubbard is reversed, and judgment entered in this 'Court in his favor. The judgment as to the city of Detroit is reversed, and a new trial ordered. Defendant Hubbard will recover his costs in both courts; and the defendant the Detroit Steel & Spring Company, in this Court.

The other Justices concurred.


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    Kryn Dykema and Leonard Dykema v. The Minneapolis, St. Paul & Sault Ste. Marie Railway Company.

      Contract — Certainty of provisions — Damages.
    Defendant owned an elevator at Gladstone, Michigan, and com tracted with the plaintiffs to turn it. over to them, to be operated by them in the transaction of the grain business, in which they were engaged. The defendant was to pay on all grain transferred from cars to vessels one-half a cent per bushel for such transfer, and was to have the privilege, if desired, of supervising the weighing of all grain weighed from the cars to the house, and from the house to vessels, And it is held that there is no such uncertainty about the terms of the contract as was the case in Davie v. Mining Co., 93 Mich. 491, where it was held that an agreement by which miners were to work at mining the ore in a specified pit for $1.50 per ton, “as long as they could make it pay,” was not of such a character as to entitle them to damages for its breach; that here the contract is definite, and evidently contemplated the transfer of such grain as was received by the defendant in the usual course of business.
    Error to Delta. (Stone, J.)
    Argued April 12, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      E. G. Chapin and J. F. Carey (Alfred H. Bright, of counsel), for appellant.

      Mead é Jennings, for plaintiffs.
   McGrath, C. J.

In August, 1889, defendant entered into a written contract with plaintiffs, whereby plaintiffs were to operate defendant's elevator at Gladstone, and were to receive one-half a cent per bushel for all grain transferred from cars to vessels. Either party had the right to terminate the contract upon 90 days' notice in writing. Plaintiffs operated the elevator until October 8, 1890, when they received from defendant a written notice of termination, to take effect 90 days from that date. Defendant did not act under this notice, but on October 20, 1891, took possession without further notice, and this suit is brought for the breach of the contract. It appeared that after October 20, and within the 90 days, 962,864 bushels of grain had been transferred through the elevator. The court held that, under the contract, defendant was under no obligation to deliver any grain for transfer, but that, inasmuch as defendant had, on October 19, given instructions respecting the transfer of 290,766 bushels, it was left to the jury to determine whether the immediate handling of that grain was not contemplated; and the sole controversy is as to the submission to the jury of that item.

There was no such uncertainty about the terms of this contract as was the case in Davie v. Mining Co., 93 Mich. 491. Here the contract was definite, and evidently contemplated the transfer of such grain as was received by the railway company in the usual course of business.

We find no error in the record, to defendant’s prejudice, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    Albert Miller and Joseph Turner v. The Scottish Union & National Insurance Company.

      Fire insurance — Agency—Notice to insured — Scope of authority„
    Plaintiffs applied to a firm of insurance agents for $10,000 of insurance on their mill property. The agents were unable to place the whole amount in their companies, and applied to an agent of the defendant to write the excess, which he did. On examining the policy, they called his attention to the fact that the property was mortgaged, and that the mortgage was being foreclosed, and asked that an indorsement to that effect be placed upon the policy. The agent of the defendant company-replied that it was contrary to his orders to write on mortgaged mill property, but, in answer to their question whether he could not make an explanation, and get the company to carry the risk, he replied that he would submit the matter to the company, and thereupon made the indorsement, and delivered the policy to the agents, who delivered it to the plaintiffs. Plaintiffs had no notibe of this conversation, and paid, the premium to said agents. The mill was burned the second) day after the policy was delivered. Notice of the loss was-telegraphed to the defendant, and on the same day it wrote to its agent, directing that the policy be canceled, since which, it has denied liability thereon. The policy provided that, in any matter relating to the procuring of the insurance covered by it, no person, unless duly authorized in writing, should be deemed the agent of the defendant. And it is held that the plaintiffs are not chargeable with notice of the want of authority on the part of defendant’s agent to make the indorsement, and a judgment in their favor is affirmed.
    Error to Bay. (Cobb, J.)
    Submitted on briefs April 10, 1894.
    Decided June 16, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Marie Norris, for appellant.

      McDonell & Hall, for plaintiffs.
   Montgomery, J.

This is an action on a policy of insurance. The policy was issued from the agency of the company at Bay City, and was duly countersigned by George Washington, the agent at that place. The plaintiffs made application to Knaggs & Plum, insurance agents at Bay City, to place $10,000 of insurance on their mill. Knaggs & Plum, being unable to place the whole amount in companies represented by them, applied in turn to Mr. Washington to write the policy in question, which he did. On examining the policy, Knaggs & Plum called the attention of Mr. Washington to the fact that the mill was mortgaged, and the mortgage in process of foreclosure, and asked that the following indorsement be placed upon the policy:

It is understood that the mortgage on this property is in process of foreclosure, such proceedings being amicable for the purpose of perfecting the title.”

Mr. Washington replied that it was contrary to his orders to write on mortgaged mill property, but Knaggs & Plum asked if he could not make an explanation, and get the company to carry it, stating that the policy would be of no value without it. The agent Washington replied that he would submit it to the company, and thereupon made the indorsement, and delivered the policy to Knaggs & Plum, who delivered it to plaintiffs. Plaintiffs had np notice of this conversation, and paid the premium to Knaggs & Plum. A fire occurred the second day after .the policy was delivered. Notice of this was telegraphed to the company hy the agent Washington, and on the same day it wrote a letter to him, directing that the. policy be canceled, and it has since denied liability upon the policy. The policy contained the following clause:

“In any matter relating to the procuring of this insurance, no person, unless duly authorized in writing, shall» be deemed the agent of this company.''

The sole question in this ease is whether, under the facts stated, the notice of want of authority to Knaggs & Plum was notice to the plaintiffs. The circuit judge was of the opinion that the question was ruled by McGraw v. Insurance Co., 54 Mich. 145. Counsel for defendant contends that the case referred to has been since overruled in effect, and that, if not, this case is distinguishable from that, in that the present policy contains the provision,, above quoted, that, in any matter relating to the procuring of the insurance, no person, unless duly authorized in writing, shall be deemed the agent of the company.

We do not deem it necessary to decide whether the present case is distinguishable from McGraw v. Insurance Co., or whether Knaggs & Plum are to be treated as agents of the insured or the insurer. If it be assumed that they were agents of the plaintiffs, on every principle of equity the defendant is bound by the policy in suit. This is not a case where the broker has misrepresented the risk, or in which the agent of the company has been deceived in any other manner. Nor is it a case where notice of the purpose to cancel has been brought home to the broker. But the sole question is whether the plaintiffs are chargeable with notice of the want of authority on the part of the agent Washington to do what he attempted to do. We quite agree . with the. defendant's counsel that the same rule should obtain in dealing with the acts of agents to obtain insurance as is applied in interpreting the acts of agents in other business transactions, but we do not agree with counsel that any rules governing the conduct of agents will permit the defendant in this case to escape liability on this policy. There can be no doubt that, had the defendant’s agent Washington delivered the policy directly to plaintiffs, the company would be bound by his act. It was directly within the scope of his apparent authority. We think it is quite clear that the company is bound, notwithstanding the notice to Knaggs & Plum, in this case, upon precisely the same principle, viz., that, where one of two innocent parties must suffer by the wrong of the third, it should be that one which lias put it in the power of the third party to work the injury. The notice to Knaggs & Plum of want of authority was accompanied by notice to Washington, equally clear, that Knaggs & Plum had limitations placed upon their authority to bind the plaintiffs. The course of business was enough to furnish this notice. It cannot be contended that the defendant’s agent did not know that Knaggs & Plum were only empowered to furnish insurance to plaintiffs, and were not empowered to buy waste paper. Knowing this, and being also directly informed by Knaggs & Plum that, without the indorsement in question, the policy would be valueless, — a fact which he must be assumed to have known, — he intrusted the policy to them, to be delivered to the plaintiffs as a binding contract. If notice to Knaggs & Plum was notice to plaintiffs, certainly notice to Washington of the limitations of their authority w'as likewise notice to defendant. Yet with this notice he put it in the power of Knaggs & Plum to collect the premium from the plaintiffs upon a policy which he knew, from the nature of Knaggs & Plum’s employment, they had no power to accept.

It is undoubtedly a general rule that notice to an agent is equivalent to notice to the principal. Mr. Story states that the rule' is based upon the presumption that such notice is communicated to the principal (Story, Ag. § 140); and in most cases this is a conclusive presumption, resulting in the general rule that the law imputes to the principal notice of facts which the agent acquires while acting as such agent within the scope of his authority. But, as pointed out in Mechem on Agency (section 721), this rule is subject to exceptions,—

“And such notice or knowledge will not be imputed (1) where it is such as it is the agent’s duty not to disclose, and. (2) where the agent’s relations to the subject-matter, ■or his previous conduct, render it certain that he will not disclose it, and (3) where the person claiming the benefit of the notice, or those whom he represents, colluded with the agent to cheat or defraud the principal.”

In section 723 the learned author further states:

“ The rule is based, as has been seen, upon the principle that it is the duty of the agent to communicate to his principal the knowledge possessed by him relating to the subject-matter of the agency, and material to the principal’s protection and interests. This presumption, however, will not prevail where it is certainly to be expected that the agent will not perform this duty, as where the agent, though nominally acting as such, is in reality acting in his own or another’s interest, and adversely to that of his principal.”

The doctrine of the text is supported by abundant authority. See cases cited in the note.

In Innerarity v. Bank, 139 Mass. 332, it is said:

“While the knowledge of an agent is ordinarily to be imputed to the principal, it would appear now to be well established that there is an exception to the construction or imputation of notice from the agent to the principal in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy; as where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating.”

An instructive case upon this subject is Thompson v. Cartwright, 33 Beav. 178. In that case it appeared that one Montriou was the attorney of one Downes, and received a conveyance in Downes’ interest. He had knowledge of the existence of a prior incumbrance, and the question was whether his knowledge was the knowledge of Downes. The rule is very clearly stated by the master of the rolls:

“I take the rule to be, generally, that the client must be treated as having had notice of all the facts which, in the same transaction, have come to the knowledge of the solicitor, and that the burden of proof lies on him (the client) to show that there is a probability, amounting to a moral certainty, that the solicitor would not have communicated that fact to his client. The question here is whether the applicant, Mr. Downes, discharges the burden so imposed on him. Upon the whole, I think that he does. Mr, Montriou, as his solicitor, knowing of the mortgage affecting the property, prepares a deed by which the owner of the property covenants that there is no mortgage, charge, or incumbrance on it or affecting it. He prepares this deed, and causes his client, the grantor, to execute to his client, the grantee, a solemn instrument, by which he deliberately puts his hand and seal to an assertion which is false. I think that this amounts to a solemn declaration by Mr. Montriou to his client that he, Mr. Montriou, was ignorant of any charge affecting the property, and that he did not believe that any such charge existed.”

This case is not distinguishable in principle from the present. It cannot be doubted that the defendant’s agent had every reason to believe that' the policy, which was itself an assertion of his authority, would be conveyed to the plaintiffs by Knaggs & Plum as and for a binding contract. Indeed, it could have been placed in their hands by him for no other purpose. To permit the company which he represents to assert now that the plaintiffs had notice, through Knaggs & Plum, of the want of authority, would be to imply notice to the principals which defendant’s agent had every reason to anticipate would not in fact be given them. No such injustice can be sanctioned. The conclusion of the circuit judge was right.

The judgment will be affirmed, with costs.

The other Justices concurred.

       Counsel cited, in support of this proposition, Busch v. Wilcox, 82 Mich. 315, 336; Ripley v. Case, 86 Id. 263.