text:
    MENARD v. CAMPBELL.
    1. Wnis — Heirs—Conveyances—Devise.
    A devise to a person for life with remainder over to his heirs does not convey a title to the devisee in fee simple, since the rule of “Shelley’s Case” is abolished in Michigan: 3 Comp. Laws, § 8810 (4 How. Stat. [2d Ed.] § 10650); the heirs derive title from the testatrix through the will.
    2. Same — Deeds.
    The word heirs has a technical meaning, and as such describes those who succeed to the ownership of real estate upon the death of the owner.

      3. Same — Husband and Wife — Estates of Decedents.
    Where, by statute, a married woman takes an absolute interest in the real estate of the deceased husband, the word heirs, as employed in a will, properly includes the widow.
    4. Same — Mabkeage.
    Where no intention appeared on the part of the testatrix to build up an estate in her family, and the will provided for an early final disposition of her estate by sale or absolute devise, except certain property to her sons for life, a devise of a life estate to one son and at his decease to- the heirs surviving him in equal shares, vested title in his widow and a surviving child after his death, in equal shares.
    5. Estoppel — Deeds—Husband and Wife.
    Since a married woman is not held liable on her covenants in a deed executed by herself and husband, in the absence of statutory provisions creating such liability, the wife was not estopped by a joint deed of conveyance with full warranties executed by herself and husband, so as to cut off the estate thereafter vesting in her under the will of the testatrix, and without testimony tending to disclose her purpose in joining in the conveyance, or that the consideration was paid to her, the signature of the wife was a nullity.
    Appeal from Chippewa; Fead, J.
    Submitted April 15, 1914.
    (Docket No. 42.)
    Decided June 1, 1914.
    Bill by Eugene Menard as executor of the estate of Harriet Lauzon, deceased, against Louise Nault Campbell for the construction of the will of decedent. From a decree for defendant, complainant appeals.
    Affirmed.

      Warner & Sullivan, for complainant.

      M. M. Larmonth, for defendant.
   Kuhn, J.

The bill of complaint in this case is filed, to obtain a construction of a clause in the will of Harriet Nault Lauzon, who died at Sault Ste. Marie, in this State, on the 28th day of June, 1897. The will, which was dated on the 21st day of April, 1897, contained the following clause:

“Sixth: I give, devise and bequeath to my beloved son, Joseph Honoré Nault, and his heirs surviving him, as follows: To said Joseph Honoré Nault the right to improve, let, or use and occupy as a home during his natural life, all that part of private land claim number 110 in said Sault Ste. Marie, Michigan, lying north of Portage avenue south of the water line of St. Mary’s river and west of a line drawn parallel with the west line of Sova street and 96 feet distant west therefrom, and at his decease to his heirs surviving, the absolute title in fee to said premises, share and share alike.”

Joseph Honoré Nault, who was unmarried at the death of his mother, subsequently married. He died September 3, 1911, leaving surviving him his widow and one child, Genevieve H. Nault. On May 16, 1906, Joseph Honoré Nault made a lease of the lands in question to the Union Carbide Company for 75 years; but the lease also provided that it was to terminate at his death. On the same day he made an absolute conveyance thereof by warranty deed to the same party, and in this conveyance Louise Nault joined as his wife. The complainant was appointed administrator of the estate of Joseph Honoré Nault, deceased, and also guardian of the person and estate of Genevieve H. Nault, the said minor child. The complainant was authorized by the probate court to sell the property in question, which he did, for the sum of $6,000. While this proceeding was pending in the probate court, the defendant claimed to be an heir at law of Joseph Honoré Nault, deceased, and entitled, under the clause of the will above set forth, to one-half of the proceeds of the sale of said lands. This suit was brought to determine the merits of this claim, and the circuit judge made a decree in favor of the defendant. Complainant appeals. The question therefore is: Is the defendant, or was she at the time of Ms death, an heir at law of Joseph Honoré Nault, her husband, and, also, if she was, did she convey her prospective interest in the lands by« the deed of May 16, 1906? The defendant contends that she became an heir at law by virtue of Act No. 286 of the Public Acts of 1909, which provides, in part, as follows:

“Section 1. When any person shall die seised of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for thedife of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner:
“First. One-third to his widow and the remaining two-thirds to his issue, and if he leaves no widow then the whole thereof to his issue, and if all the said issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take according to the right of representation;
“Second. If the intestate shall leave a husband or widow and no issue, one-half of the estate of such intestate shall descend to such husband or widow and the remainder to the father and mother of the intestate in equal shares, and if there be but one of the parents living, then to the survivor alone; and if the intestate shall leave no issue, husband or widow, his or her estate shall descend to the father and mother in equal shares, and if there be but one of the parents living, then to_ the survivor alone; and if the intestate shall leave no issue, father or mother, Ms or her estate shall descend, subject to the provisions herein made for the widow or husband, if a widow or husband sur-' vive the deceased, to his or her brothers and sisters and the children of deceased brothers and sisters, and if such persons are in the same degree of kindred to the intestate, they shall take equally, otherwise they shall take by right of representation: Provided, however, if such intestate shall die under the age of twenty-one years and not having been married, all the estate that came to such intestate by inheritance from a parent, which has not been lawfully disposed of, shall descend to the other children and the issue of deceased children of the same parent, if there be such children or issue, and if such persons are in the same degree of kindred to said intestate they shall take equally, otherwise they shall take by right of representation.”

The claims of the complainant are stated as follows:

“That Act 286 of the Public Acts of 1909 does not operate to make the widow an heir of Joseph Honoré Nault for the reason that, under said act, the widow becomes an heir only when the husband dies seised of lands or an interest therein in fee simple or for the life of another; that such was not the instant case, because Joseph Honoré Nault had merely a life estate in the premises, and, because of the lease and the conveyance given by him to the Union Carbide Company, he had conveyed his whole estate, and had no interest whatever in the property at the time‘of his death. That it appears from the will that the testatrix intended the estate to inure to the benefit of her immediate family only.”

The circuit judge has given us the benefit of a written opinion, which states his conclusions as to these questions, and with which we agree. We therefore incorporate them as a part of this opinion:

“By virtue of the provisions of section 8810, Comp. Laws 1897 (4 How. Stat. [2d Ed.] § 10650), abolishing the rule in Shelley’s Case, the word 'heirs' as used in the will is a word of purchase to designate the persons who are to take the estate lipón the death of the life tenant. It is not a word of limitation to define the estate. The heirs do not take by inheritance from Joseph Honoré Nault, nor do they acquire any title through or by virtue of his right of possession. Their title is derived entirely from the testatrix by virtue of the provisions of the will. Consequently the disposition made by Joseph Honoré Nault of his life estate becomes unimportant.
“The will expressly defines the estate to be taken, a remainder over after an estate for life, and designates the persons who are to take the remainder, but by a generic term. It requires no construction to ascertain the estate. It requires construction only to determine the particular persons who belong to the designated class. Who are the heirs of Joseph Honoré Nault, surviving him?
“It is assumed by both the parties hereto that the heirs of Joseph Honoré Nault must be ascertained as of the time of his death, rather than of the time of the death of the testatrix. This assumption is in accordance with both the principles of law and the intent of the testatrix as expressed in the will.
“The word ‘heirs’ has a technical meaning, and as such it describes those who succeed to one’s ownership of real estate on his death. Fullagar v. Stockdale, 138 Mich. 367 [101 N. W. 576] ; 2 Blackstone’s Comm. 201 (Cooley’s); Bailey v. Bailey, 25 Mich. 188.
“Where by statute, the husband or wife takes an absolute interest in the estate of the deceased consort, they come within the technical definition of ‘heirs.’ 40 Cyc. p. 1463; Turner v. Burr, 141 Mich. 111 [104 N. W. 379] ; Proctor v. Clark [154 Mass. 45, 27 N. E. 673], 12 L. R. A. 721.
“When the words, ‘heir,’ ‘heirs,’ ‘unlawful heirs,’ or the like are clearly used, not to define the estate given, but to designate the persons who are to take, whether heirs of the testator or of some other person, they mean the person or persons who would by law succeed to the real estate of the person named if he had died intestate, unless an intention to express a different meaning appears from the context of the will and the circumstances of the case. Rood on Wills, §449.
“The statute of descent (Act 286, supra) designates the defendant and the child as the persons who would be entitled to succeed to any real estate, or interest therein, of which Joseph Honoré Nault might die seised, in the absence of devise, and are therefore his ‘heirs.’ They are the persons who come within the class mentioned in the will, and are therefore entitled to the property in question, unless, from the will, it appears that such was not the intention of the testatrix.
“In construing the will, to ascertain the intent of the testatrix, the language of the will must govern.
“The intent is to be gathered from the language used, for the object of construction is not to ascertain the presumed or supposed, but the expressed, intention of the testator; that is, the meaning which the words of the will, correctly interpreted, convey.’ Allison v. Allison [101 Va. 543, 44 S. E. 906], 63 L. R. A. 924.
“A will cannot be construed by mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind. 40 Cyc. p. 1389.
“The plain intent of the testator as evinced by the language of the will must prevail. The intent must be gathered from the ‘four corners of the instrument.’ Wales v. Templeton, 83 Mich. 179 [47 N. W. 238].
“A careful examination of the will has failed to reveal to me the expression of any intention on the part of the testatrix that her property should inure to the benefit of her immediate family, to the exclusion of any of the legal heirs of Joseph Honoré Nault.
“If we assume that the testatrix reviewed the then existing provisions of law relative to the descent of property and the determination of ‘heirs,’ and considered the different situations which might exist at the death of Joseph Honoré Nault, we must conclude she knew that, in the event of his death married, but without issue, the widow and his brothers and sisters would be his heirs. By the use of the term ‘heirs surviving,’ the testatrix then must have known and intended that the widow of her son should, under such circumstances, take part of the property.
“If, on the other hand, we assume that the testatrix had in mind only the situation as it now exists, in order to hold that she intended to give all the property to the child, and to exclude the widow, it is necessary to apply some rule of construction or discover some language in the will which would warrant us in finding that she intended the ‘heirs surviving’ should be ascertained by the facts as they might exist at the time of the execution of the will or of the testatrix’s death.
“I know of no rule which would justify such a construction, nor can I discover any language in the will which points to such an intention. The construction to be given, in my judgment, is that both the fact and the law as they existed at the time of the death of Joseph Honore Nault must control in determining his 'heirs surviving/ Lincoln v. Perry [149 Mass. 368, 21 N. E. 671], 4 L. R. A. 215; Gray v. Whittemore, supra [192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246].
"This ruling, moreover, appears to be in full accord with intention of the testatrix as it may be gathered from the will.
"There is no indication of a desire to build up a landed property in the family. The will provides for the early final disposition of the entire estate, either by sale or absolute devise, except the descriptions in which the sons take their respective life estates.
“After providing for the support of her mother, and for her grandchildren in being, the testatrix divides the rest of her estate among her four children, the three sons and one daughter. While the value of the particular descriptions of land specifically devised does not appear, the whole tenor of the will indicates that it was the intention to give the children equal portions.
“She placed no restraint of alienation upon the estate given the daughter. By making him an executor and trustee under the will, the testatrix evinces confidence in the integrity and ability of her daughter’s husband, which doubtless accounts for the absolute devise and bequest to the daughter, in whose hands, under the counsel and management of the husband, the mother felt that the property would be conserved.
“The unqualified disposition of the entire estate, except the life interests given the sons, and the unhindered devise to the daughter, would appear to negative the idea that the testatrix wished to keep the property in the immediate family, to the exclusion of any legal heir.
“For. some reason, however, the testatrix deemed it expedient to restrict the control of the sons over their portions. The provision relative to their receiving only the income, or part of it, of their shares of the residue of the estate for ten years, and the one regarding the possibility of their not paying the taxes and insurance premiums on the property in which they had life estates, would seem to indicate that she did not have full confidence in their business ability, experience, or providence.
“In the event of the death of a son before the expiration of the ten-year period, his share of the residue, then converted into money, was to go to his heirs. The remainder over after the expiration of the life estate was to go to-his heirs. In neither instance is there the expression of any restriction as to whom such heirs should be.
“It was the evident purpose of the testatrix to divide her estate equitably among her four children; but she felt it necessary to restrict the power of each of the sons to dispose of his share, not with the idea of keeping the property in the immediate family, but to insure those dependent, or who might become dependent, upon such son, an estate undissipated by incompetence, improvidence, or inexperience. And in the meantime the son should have full use of the property as though he were the sole owner.
“It therefore appears, and is so determined, that the defendant is an heir of Joseph Honoré Nault, and as such heir is entitled to one-half interest in the property in issue. As such property has been sold under agreement of parties, this determination shall apply to the proceeds of such sale.”

Did.the future interest of the wife pass by way of estoppel under the warranty deed of May 16, 1906? This doctrine' of estoppel has been applied in certain jurisdictions where a married woman joins her husband in the execution of a warranty deed and after-wards acquires a title through a foreclosure sale of a mortgage existing at the time of the conveyance (George v. Brandon, 214 Pa. 623 [64 N. W. 371] ; Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408 [51 N. W. 379]) ; but the general rule is that a married woman is not liable on her covenants in a deed or mortgage made jointly by herself and husband, in the absence of a statute imposing such a liability (note to Wadkins v. Watson, 22 L. R. A. 779). In this State we have no such statute, and the rule has been repeatedly stated that the married woman’s act of 1855 confers upon the wife power only to contract and bind herself in relation to her property and estate already possessed, or referring to it, or in relation to property to be acquired by the contract, or in consideration of it. Johnson v. Sutherland, 39 Mich. 579; Kenton Insurance Co. v. McClellan, 43 Mich. 564 (6 N. W. 88) ; Reed v. Buys, 44 Mich. 80 (6 N. W. 111) ; Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595) ; Edison v. Babka, 111 Mich. 235 (69 N. W. 499). See, also, note to Mosher v. Kittle, 101 Mich. 345 (59 N. W. 497), for compilation of cases on contracts of married women. In Arthur v. Caverly, 98 Mich. 82 (56 N. W. 1102), it was held that a married woman uniting with her husband in a warranty deed of his property is liable on the covenant when she obtains all the consideration, which, in that case, was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband’s interest being simply a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument, and to prove it clearly, and to show that she had brought herself within the rule above set forth. Mutual Benefit Life Ins. Co. v. Savings Bank, 68 Mich. 116 (35 N. W. 853). This complainant has failed to do, and it necessarily follows that the wife’s signature to the instrument was a nullity, and did not bind her subsequently acquired estate.

The decree of the court below is affirmed; but, as this is an amicable proceeding, it having been deemed imperative that this court should construe the will and direct the distribution of the estate so as to protect complainant and the interests of his ward, no costs will be allowed to either party.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    CITY OP DETROIT v. WEIL.
    1. Municipal Corporations — Cities — Local Acts — Eminent Domain — Repeals.
    By the enactment of Act No. 541 of the Local Acts of 1903, providing that the city of Detroit should thereafter take private property for public use under the provisions of that statute and no other, it was intended that the proceedings should be instituted under the local act only, and no repealing statute having been afterwards passed, Act No. 149, Pub. Acts 1911 (4 How. Stat. [2d Ed.] §10155 et seg.), which did not expressly repeal the act, was not applicable.
    2. Same — Construction of Statutes — Local Law.
    There is no presumption of an intention on the part of the legislature to repeal a law to which no reference is made in a subsequent law, unless the intent is clear. Where a statute is enacted for a particular purpose, it is not to be held abrogated by subsequent general legislation, if the intent so to do is not so clear or distinct as to be unavoidable.
    3. Constitutional Law — Uniform Taxation — Special Assessments.
    The constitutional rule of uniformity of taxation does not apply to assessments for local improvements, which are governed by special rules, and are made upon the assumption that the property assessed is specially and peculiarly benefited by a public improvement.
    4. Same — Taxation—Special Assessments.
    It is within the province of the legislature to say that real estate, alone, shall be the subject of a special assessment, for the reason that special benefits accrue almost exclusively to lands, and under Act No. 541, Local Acts 1903, if the municipal council did not provide a smaller district for purposes of taxation, the entire property of the city must bear the burden.
    5. Same — Cities.
    The determination of the city legislative body that the entire real estate of the city of Detroit has benefited by 180 MlOH. — 88. a proposed improvement is final, unless fraud can be established or unless there is such a want or absence of benefit accruing to the assessed property as to indicate that the burden amounts to spoliation, not taxation.
    6. Same — Circuit Courts — Recorders Court of Detroit.
    The recorder’s court of the city of Detroit has exclusive jurisdiction of the taking of private property for public purposes by eminent domain proceedings, and a petition filed in the circuit court should be dismissed upon defendant’s plea to the jurisdiction.
    Certiorari to Wayne; Mandell, J.
    Submitted April 23, 1914.
    (Docket No. 116.)
    Decided June 1, 1914.
    Petition by the city of Detroit against Henry M. Weil and others for the taking of private property for public use, etc. From an order sustaining a demurrer to defendant’s plea to the jurisdiction, defendant Weil brings error.
    Reversed.

      John Miner, for appellants.

      Edmund Atkinson (Richard I. Lawson, of counsel), for appellee.
    Act No. 541, Local Acts of 1903, provides in part as follows:
    “An act to authorize the city of Detroit to take private property for the use and benefit of the public.
    “Section 1. The common council of the city of Detroit is hereby authorized to take private property for the use and benefit of the public within the limitation of the State Constitution, and to institute and prosecute proceedings for that purpose, and all such proceedings on the part of the city of Detroit shall be held and prosecuted under the provisions of this act and no other: Provided, that this act shall not apply to cases where petitions have already been filed in the recorder’s court under the provisions of act number one hundred twenty-four of the Public Acts of eighteen hundred eighty-three, as amended March twenty-ninth, eighteen hundred eighty-seven, July third, eighteen hundred eighty-nine, and June first, eighteen hundred ninety-five.
    “SEC. 2. Such proceedings may be commenced and prosecuted under this act whenever the common council shall have declared a public improvement to be necessary in the municipality, and shall declare that they deem it necessary to take private property, describing it, for such public improvement, designating it, and that improvement is for the use or benefit of the public, They shall, by resolution, direct the corporation counsel to institute the necessary proceedings in behalf of the municipality in the recorder’s court of said city, to carry out the object of the resolution in regard to taking private property for the city. Before the institution of such proceedings, the common council shall, if it be their intention to assess any part of the damages awarded in such proceedings upon a special or local district, declare by resolution such purpose and fix such district, embracing only such real estate as. in their opinion will be specially benefited by the improvement and they shall describe such district with reasonable certainty by well known boundaries, so that all persons owning real estate in such district may readily ascertain the facts.”
    “SEC. 15. When a verdict of the jury shall have been finally confirmed by the' court, and the time in which to take an appeal has expired, or if an appeal is taken, on the filing in the court below of a certified copy of the order of the Supreme Court, affirming the judgment of confirmation, it shall be the duty of the clerk of the court to transmit to the common council, a certified copy of the verdict of the jury and of the judgment of confirmance, and of the judgment, if any, of affirmation, and thereupon the proper and necessary proceedings in due course shall be taken for the collection of the sum or sums awarded by the jury. The common council shall by resolution determine whether the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate contained in the assessment district, already fixed and determined as hereinbefore provided, and the whole or any such just proportion so determined shall be assessed upon the owners or occupants of such taxable real estate, in proportion, as nearly as may be, to the advantage which such lot, parcel or subdivision is deemed to acquire by the improvement: Provided, that in the case of opening and widening alleys, all damages for the taking of property for such opening or widening shall be assessed upon the property directly abutting the alley, or such portion thereof ás is ordered to be opened or widened. The assessment shall be made and the amount levied and collected in the same manner and by the same officers and proceedings, as near as may be, as is provided in the charter of the municipality for assessing, levying and collecting the expense of a public improvement when a street is graded. The assessment roll containing said assessments, when ratified and confirmed by the common council, shall be final and conclusive and prima, facie evidence of the regularity and legality of all proceedings prior thereto, and the assessment therein contained shall be and continue a lien on the premises on which the same is made until payment thereof. Whatever amount or portion of such awarded compensation shall not be raised in the manner herein provided, shall be assessed, levied and collected upon the taxable real estate of the municipality, the same as other general taxes are assessed and collected in such city.”
    The common council of the city of Detroit, seeking to provide for the public an adequate approach to the new Michigan Central depot in that city, and to pay the cost thereof out of the general treasury instead of by local assessment, caused a petition to be filed pursuant to the provisions of Act No. 149 of the Public Acts of 1911 (4 How. Stat. [2d Ed.] § 10155 et seq.), which act is entitled:
    “An act to provide for the condemnation by State agencies and public corporations of private property for the use or benefit of the public, and to define the terms ‘public corporations/ ‘State agencies’ and ‘private property’ as used herein.”
    This act contains nonrepeating clause.
    The respondent and appellant is the owner of certain real estate which it was sought to condemn for said public improvement, and brings the cause to this court by certiorari to review an order sustaining a demurrer to and overruling his plea to the jurisdiction of said court. It is appellant’s contention that said Local Act No. 541 of 1903 in express terms requires all proceedings on the part of the city of Detroit to take private property for public use to be held and prosecuted under the provisions of that act, and no other, and was not repealed by Act No. 149, Pub. Acts 1911, and that the proceedings should have been instituted in the recorder’s court of the city, as provided for in the act. Counsel for the city say that, by the terms of Local Act No. 541 of 1903, the common council of the city having adopted no resolution of an “intention to assess any part of the damages awarded in such proceedings upon a speciál or local district,” as provided for in section 2, by virtue of section 15, which provides, “Whatever amount or portion of such awarded compensation shall not be raised in the manner herein provided, shall be assessed, levied and collected upon the taxable real estate of the municipality, the same as other general taxes are assessed and collected in such city,” the burden of the improvement could not be placed on all the taxable property of the city, and must be limited to the real estate; that said provision in the local act is bad, for the reason that it is in violation of the constitutional provisions that there must be a uniform rule of taxation. Section 3, art. 10, Const.; section 11, art. 14, Const. 1850. With this view the learned judge agreed in overruling appellant’s plea to the jurisdiction.
   Kuhn, J.

(after stating the facts). It is clear from the reading of the local act of 1903 that it was the intention of the legislature that all proceedings to take private property for the use and benefit of the public in the city of Detroit should “be held and prosecuted under the provisions of this act and no other.” Act No. 149, Pub. Acts 1911, containing no repealing clause, it must also be clear that it. did not repeal the local act in question. The general legal principles applicable were recently stated by this court in Hopkins v. Sanders, 172 Mich. 227, 235, 236 (137 N. W. 709), when it was said, in referring to other decisions upon this question:

“From them can be deduced the general principles that repeals by implication are not favored; that there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear, and, where an act is passed for a particular purpose it is not to be held as abrogated by subsequent general legislation, which may be sufficiently broad to include it, unless the intent to abrogate is so clear and distinct as to be unavoidable. * * *
“An examination of the authorities on repeals by implication shows clearly a tendency to sustain local acts as silently excluded from the operation of subsequent general acts, where the legislative intent is not so clear and positive as to render it impossible to do so; and only where the implication of intention to repeal necessarily flows from the language used, and discloses a repugnancy between its provisions and those of the former law so positive that it is impossible to reconcile the two by any fair construction, will repeal by implication be declared.”

See, also, Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690).

In considering the question of the unconstitutionality of the local act for the reasons urged by counsel for the city, the distinction between assessments for local benefits and a general tax must be borne in mind.

It is well settled in this State that the rule of uniformity of taxation provided for in the Constitution of the State has no application to assessments for local improvements. Woodbridge v. City of Detroit, 8 Mich. 274; Motz v. City of Detroit, 18 Mich. 495; Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76) ; Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52).

The distinction between these assessments and a general tax is clearly set forth in 2 Cooley on Taxation (3d Ed.), pp. 1153-1155:

“Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it. The' justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies. The distinction between them and ordinary taxation has thus been pointed out in a recent case:
" £A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of tbe taxpayer; it is an assessment on tbe thing supposed to be benefited. A tax is levied on tbe whole State or a known political subdivision, as a county or a town. A local assessment is levied on property situated in a district created for tbe express purpose of tbe levy, and possessing no other function, or even existence, tban to be tbe thing on which tbe levy is made. A tax is a continuing burden and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is ■ imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those on whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.’
“Not all these differences are necessarily existent in every case, but in the main the characterization is accurate as it is forcible.”

For a review of other text-books and decisions of other courts on this subject, see Arnold v. Mayor of Knoxville, 115 Tenn. 195 (90 S. W. 469, 3 L. R. A. [N. S.] 837, and note, 5 Am. & Eng. Ann. Cas. 881) ; also County of Adams v. City of Quincy, 130 Ill. 566 (22 N. E. 624, 6 L. R. A. 155, and note).

By the terms of the local act it was designed to assess the cost of such a public improvement upon the real estate of a district which might or might not, in the legislative discretion, be coextensive with the geographical limits of the municipality or political subdivision where the improvement was made. The common council having failed to provide a smaller assessment district, and having determined that the cost should be borne by the city, it becomes a burden on all the taxable real estate of the city. Special assessments, as a rule, are not levied on personal property, but generally on real estate alone. The rule deducible from reading the authorities is that it is within the province of the legislature to say that the real estate alone shall be subject to such a special assessment, for the reason that special benefits accrue almost exclusively to lands, so that generally, in works commonly classed as “internal improvements,” the real estate alone has been taxed; and that the legislative authority, either of the State, or when properly authorized, of the municipality, may determine over what territory the benefits are so diffused as to render it proper to make all lands contribute to the cost. The legislature having conferred the power on the city by the local act in question to determine how much of the real estate in the city is benefited by the proposed improvement, their determination of the area benefited is final and conclusive, in the absence of fraud, or unless the absence of benefit makes it manifest that the burden amounts to spoliation, and not taxation. Shimmons v. City of Saginaw, 104 Mich. 511 (62 N. W. 725) ; 1 Page & Jones’ Taxation by Assessment, § 555.

We are satisfied that the said Local Act No. 541 of 1903, because it provides a method of paying for public improvements by a special assessment which may or may not be upon all of the real estate of the city, as the council by proper resolution may determine, is not subject to the constitutional objection urged. The said act providing that all proceedings to take private property for the use and benefit of the public shall be brought under its provisions, and the pending proceedings being clearly of that character, it was improper not to bring them as the act clearly directs.

Appellant’s plea to the jurisdiction of the circuit court should have been sustained.

The case is remanded to the circuit court, with directions to make such an order.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    WESTCHESTER APPLIANCE CO. v. ENGLEHARDT.
    Corporations — Annual Report — Directors.
    Directors of a corporation which, filed no report in the year subsequent to its organization were not liable for debts contracted during the first year of its existence, the corporation not being in default and the liability of directors under Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543), being dependent upon a default in the filing of the annual report.
    Error to Bay; Collins, J.
    Submitted April 9, 1914.
    (Docket No. 11.)
    Decided June 1, 1914.
    Rehearing denied July 25, 1914.
    Assumpsit by the Westchester Appliance Company against John Englehardt to enforce the liability of directors of a corporation as provided by Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543). Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Stoddard & McMillan, for appellant.

      E. E. Anneke, for appellee,
   Ostrander, J.

It is the statute duty of every corporation doing business in this State to make and in January or February of each year to file a report showing the condition of the corporation on the preceding 31st day of December. For neglect or refusal to perform this duty, and after a default therein of 10 days, corporate powers are suspended, it can maintain no action in court upon any contract entered into during the period of default, and any director who has neglected or refused to join in making such report is made liable—

“For all the debts of such corporation contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained' by it by reason of such refusal or neglect.” Act No. 137, Pub. Acts 1907.

Defendant was director of a corporation organized in February, 1910, which bought goods of plaintiff during the period from February to September, 1910. For the value of the goods judgment was rendered in favor of plaintiff and against the said buying corporation January 9, 1913, and is unpaid. This action is begun to recover the debt, defendant’s liability being predicated upon the statute above referred to; it appearing that the debtor corporation, which continued to do business until the summer of 1911, and which was formally dissolved in 1912, made no reports. The court directed a verdict for defendant, upon which there was judgment.

I am of opinion that the judgment should be affirmed. It is plain, I think, that the liability of directors is by the statute made to depend upon a default ,in filing the report. Weber v. Draper, 170 Mich. 550, 556 (136 N. W. 596). The debt in question was not contracted during a period of default.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

       4 How. Stat. (2d Ed.) §9543.


text:
    MEYER v. GRAND RAPIDS CHAIR CO.
    Master and Servant — Negugence—Evidence.
    Where defendant was accustomed to oil various passageways from one portion of its factory to another, so as to slide articles of furniture readily, and it had been customary to oil the surfaces on Saturday night only, and plaintiff, its night watchman, slipped and fell on a quantity of oil that, in some unexplained manner, had been deposited or spilled on the slide or passageway during the week, not on Saturday pursuant to the alleged custom, there was no evidence of negligence or of notice to defendant sufficient to charge it with liability, no testimony being introduced to show how long the oil had been allowed to remain upon the slide.
    Error to Kent; McDonald, J.
    Submitted April 24, 1914.
    (Docket No. 8.)
    Decided June 1, 1914.
    Case by Joseph Meyer against the Grand Rapids Chair Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      George Hollway, for appellant.

      Travis, Merrick & Warner, for appellee.
   Kuhn, J.

The plaintiff was the night watchman and night fireman in the furniture factory of the defendant in the city of Grand Rapids. On the fourth floor of this factory, there were three rooms, known as the “varnishing room,” the “filling room,” and the “staining room.” The floor of the varnishing room was about 18 inches above that of the filling room, and a slideway of hard maple, four or five feet wide and seven feet long, ran from the level of the varnishing room to the filling room, and was used in sliding furniture from one room to the other, and the employees passed over it in going between the rooms. There were six similar slideways in the,factory, and the floors of the three rooms and the slide-ways between them were kept oiled in order to facilitate sliding the furniture in the process of manufacture and to keep the dust down while the furniture was being finished. There was a fire wall between the varnishing and filling rooms, and at the doorway, which was at the higher end of the slideway, there was a metal fire door, which, sliding on an inclined track, closed of its own weight. The plaintiff, in the performance of his duties, came down this slide six times every night, and, on Wednesday evening, July 27, 1910, while making his second round at 7:10 p. m., after opening the door from the varnishing room, he took one step on the slide, when his feet slipped from under him and he fell, sustaining injuries, to recover damages for which he brought this action.

The negligence relied upon is that the defendant placed a quantity of grease and oil in and upon this passageway without giving the plaintiff any warning that it had been done, it being claimed that it was the custom of the defendant, in the ordinary management of its business, to oil or grease this slideway every Saturday night, of which custom plaintiff was aware, but that it had never been oiled before this occasion on any night except Saturday night.

At the close of plaintiff’s proofs, the defendant moved to direct a verdict of no cause of action, upon three grounds: First, that no negligence on the part of the defendant had been shown; second, that the undisputed evidence showed the plaintiff to have been guilty of contributory negligence; and, third, that the undisputed evidence showed the plaintiff had assumed the risk. The learned trial judge granted the motion because of the last two reasons assigned in the motion. We are of the opinion that he might very properly have directed the verdict for the first reason assigned, viz., that no negligence on the part of the defendant was proven. The plaintiff’s own version as to how the oil eame to be there was as follows:

“On the night of the fall the other slides were not oiled, and on this one, the oil was thrown on or spilled on and run down in streaks; it was just as though you took a wet swab and threw it on and let it run down, then there was a streak. It wasn’t put on the way it was put on on Saturday. I don’t know who put it on. It looked to me as though it had been put on with a swabber, and it looked about the same as it was on Saturday night, except some places through the center there was dry places.”

There was no evidence that the defendant knew anything about the oil being there, nor that it had been there for a sufficient length of time to charge the defendant' with notice. There is no evidence to show how or by whom the slide was oiled, and no evidence that the defendant placed or caused the oil to be placed on the slide. How it came there is a matter of conjecture. According to plaintiff’s testimony, it was not spread over as usual. It was put on at an unusual time and in an unusual manner, and if there is any inference to be drawn from this testimony, it would be that the oil was placed there accidentally. There is no proof in this record from which negligence on the part of the defendant can reasonably be inferred, and hence plaintiff’s case must fail. Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850), and cases cited. Because of this conclusion, it is unnecessary to pass on the other questions raised by the motion to direct a verdict.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    CRAWL v. DANCER.
    1. Damages — Evidence—Trial—Compromise Verdict.
    Although plaintiff’s evidence showed damages amounting to $95.70, and defendant’s proofs tended to prove that no cause of action existed, a verdict for $48.50 was rightly allowed to stand, and the court correctly refused to set it aside as a compromise verdict if it did not clearly appear that the jury reached the result hy splitting differences.
    2. Trial — Conduct of Counsel — Cueing Error.
    Any possible prejudice which the defendant may have sustained hy plaintiff’s attorney’s referring to the fact that the plaintiff recovered a judgment in justice’s court, was cured on the trial of an appeal hy the charge of the court that the jury must disregard the result in the lower court and decide the case upon the evidence presented.
    Error to Eaton; Smith, J.
    Submitted April 21, 1914.
    (Docket No. 91.)
    Decided June 1, 1914.
    Assumpsit in justice’s court by Samuel Crawl against Jess D. Dancer for goods sold and delivered. From a judgment for plaintiff, defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Arthur E. Kidder (Elmer N. Peters, of counsel), for appellant.

      L. H. McCall, for appellee.
   Kuhn, J.

Plaintiff recovered a judgment against the defendant in the justice’s court of $47.80. On an appeal to the circuit court, in a trial before a jury, it resulted in a verdict and judgment for the plaintiff in the sum of $48.50.

The case is here by writ of error, and it is claimed that the trial court should have granted the motion for a new trial which was made by the defendant, because the verdict was a compromise verdict, as it should have been either for the entire amount of $95.70, the claim of the plaintiff, or, for the defendant, no cause of action. The dispute arises out of the method used in scaling certain logs sold by plaintiff to defendant. Plaintiff claims that the logs were sold with butts on, and the defendant claims that the logs were to be butted to get above certain irons and nails which had been driven into the trees. In order to have a verdict set aside because of its being a compromise, it must be clear that the jury reached the verdict by "splitting differences.” Benedict v. Provision Co., 115 Mich. 527, 531 (73 N. W. 802). We are not satisfied from this record that such an inference is the necessary one, and agree with the trial judge, who, in denying the motion for a new trial, said that the verdict might be supported by the evidence given on the trial.

Defendant also claims that it was error for plaintiff’s attorney, in opening the case to the jury, to refer to the fact that the plaintiff had recovered a judgment in the justice’s court, and the defendant had appealed. The court, in referring to this in his charge, specifically instructed the jury that they must not be governed by what happened in the justice’s court and must decide the case upon the proof offered on the trial before them.

We are of the opinion that no prejudicial error was committed in the trial of the case, and the judgment is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    REINFORCED CONCRETE PIPE CO. v. BOYES.
    1. Principal and Agent — Scope of Authority — Powers.
    It is a well settled rule in this State that the apparent scope of the authority of an agent is to he determined by the acts of the principal and not by the acts of the agent; persons dealing with the agent are bound to inquire into the extent of the agent’s authority, not from the agent, hut, in the absence of written evidence, from the principal.
    2. Same — “Holding Out” Person as Agent — Estoppel.
    The act of the principal in introducing the agent as the representative who would look after their part of the work, which included, under the written contract between the parties, only the manufacture of concrete pipe, at the place of construction, did not amount to. holding out the representative as a general agent, so as to bind the principal for changes made in the work outside the terms of the contract and extras claimed to have been authorized by the representative.
    3. Contracts — Interpretation — Reasonable Time — Directed Verdict.
    Under a contract for the manufacture of concrete pipe, of certain dimensions, not fixing a time of delivery or for completion of the work, the question of the time of performance depended on what was reasonable, and, the facts not being in dispute, the question became a question of law for the court.
    4. Same — Reasonable Time — Questions of Fact and Law.
    Evidence that the pipe specified by the written contract was ready for delivery in about two months, that over 3,000 feet was manufactured, and that the work progressed continuously from the time when it was commenced, that substantially the only delay arose from the fact that some curved pipe was required, and that the contract between plaintiff and defendant did not specify curved pipe, held, to have warranted the court in directing a verdict for the plaintiff, in an action on the contract, and against the claim of the defendant contractor for recoupment for delay.

      Error to Kent; Brown, J.
    Submitted April 27, 1914.
    (Docket No. 144.)
    Decided June 1, 1914.
    Assumpsit by the Reinforced Concrete Pipe Company against David W. Boyes and another for an amount due under a special contract. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Affirmed.

      Charles A. Watt, for appellants.

      Martin H. Carmody, for appellee.
   Kuhn, J.

The plaintiff, a corporation with its business offices located at Jackson, Mich., is engaged in the manufacture, under a patented process, of sewer pipe known as reinforced concrete pipe. The defendant Boyes, who resides in Grand Rapids, Mich., is engaged principally as a contractor in street and sewer work in that city. In the summer of 1909 he was successful in obtaining the contracts for the construction of sewers on two of its streets. After bidding on these jobs, and before receiving the contracts, knowing of the business of the plaintiff, he called at its offices in Jackson to get prices on the amount of pipe needed. After some negotiation, and after the contracts were awarded defendant Boyes, the following contract was entered into between the parties:

“This article of agreement, made and entered into this 4th day of September, A. D. 1909, by and between the Reinforced Concrete Pipe Company, of Jackson, Michigan, party of the second part, witnesseth: That the said party of the first part, for the consideration hereinafter named, does hereby promise, covenant, and agree to manufacture for the said party of the second part, approximately:
“18x20 to be manufactured or not as directed by D. W. Boyes.
“782 lin. ft. 18 in. inside diam. reinforced concrete pipe, at 65c. per lin. ft.
“296 lin. ft. 21 in. inside diam. reinforced concrete pipe, at 75c. per lin. ft.
• “852 lin. ft. 24 in. inside diam. reinforced concrete pipe, at 95c. per lin. ft.
“564 lin. ft. 27 in. inside diam. reinforced concrete pipe, at $1.10 per lin. ft..
“266 lin. ft. 30 in. inside diam. reinforced concrete pipe, at $1.35 per lin. ft.
“332 lin. ft. 33 in. inside diam. reinforced concrete pipe, at $1.50 per lin. ft.
“The said pipe is to be manufactured for said second party at the city of Grand Rapids, Michigan, along the line of sewer construction of said city, where free water may be obtained, at such places as are convenient and practicable for the manufacture thereof, and where permission may be had from the city of Grand Rapids' for the manufacture of said pipe; said places of manufacture being the place of acceptance and delivery.
“Said party of the first part further agrees to manufacture the pipe in a good workmanlike manner, using a mixture of one part Portland cement and five parts sandy gravel, and reinforce the same, using the American Steel & Wire Company’s wire reinforcement in the body of the pipe,' with the interlocking joint, as per the specifications of the reinforced concrete pipe, copy of. which is hereto attached.
“It is understood and agreed that in the manufacture of said pipe the said party of the first part shall provide such openings for house and catch basin connections as are shown by the plans of the city engineer, or the engineer in charge of said sewer construction, without extra charge, the number and sizes of such openings to be furnished by the party of the second part at the commencement of the manufacture of said pipe.
“It is further agreed and understood that the manufacture of the pipe shall be under the inspection of the city engineer or the engineer in charge of the work.
“The said party of the first part further agrees to furnish a suitable derrick and saddle for the handling and lowering of said pipe into the trench, without extra charge to the party of the second part, excepting, however, the' freight to and from Jackson to Grand Rapids, Michigan, shall be paid by the party of the second part.
“The said D. W. Boyes, party of the second part, does hereby promise and agree to and with the said party of the first part that he will accept of and receive the said pipe, when so manufactured, at the said places above mentioned, and pay to the party of the first part the prices per lineal foot as stipulated above.
“The said party of the second part further agrees to settle and pay to the said party of the first part, on the 10th day of each and every month during the time the said pipe is being so manufactured, for all pipe manufactured by said party of the first part during the previous month, that is to say, on the 10th day of each and every month after the commencement of the manufacture of the pipe, the said party of the second part shall pay to the said party of the first part for all pipe manufactured by the said party of the first part during the preceding month, and at the completion of the manufacture of said pipe the party of the second part agrees to settle in full and pay the balance due for all pipe manufactured by said party of the first part for this contract. Pipe to be paid for as estimated by the city engineer.
“In witness whereof, the said parties have set their hands and seals the day and date first above written.
“This contract is executed in duplicate.
“The Reinforced Concrete Pipe Company,
“By E. F. Lowery, Prest.”
“D. W. Boyes.”

Attached to the contract was a copy of the standard specifications for the manufacture and composition of reinforced concrete pipe. Shortly after the execution of the contract plaintiff sent on to Grand Rapids the necessary moulds, tools, and machinery for manufacturing the pipe, which was begun on September 23d, under direction of a Mr. Curran, who was the foreman in charge of the gang of workmen on the job. After the work was completed, and when plaintiff insisted on payment according to the terms of the contract, the defendants claimed certain set-offs, amounting to about $200, composed of various items — for constructing some brick sewer, for bailing, for extra cement around pipes under railroad tracks, and for city inspection charges — all of which were outside the terms of the contract. This claim resulted in the present controversy. On the trial of the case the defendants admitted the full amount claimed by the plaintiff in its bill of particulars, and claimed the benefit of Circuit Court Rule 24c, in respect to the opening and closing in the taking of the testimony and the argument on the trial of the cause. This right of a set-off was based by the defendants on two propositions, viz.:

(1) That Mr. Curran was held out to defendant Boyes as an agent having authority to charge the plaintiff for the minor changes which were made.
(2) That the pipe to be manufactured and supplied by the plaintiff under the contract was not furnished to the defendant Boyes within a reasonable time, as a result of which he suffered losses.

At the close of defendants’ proofs, the trial judge directed a verdict for the plaintiff, and whether or not the two propositions above set forth, under the proofs in this case, raised questions of fact which should have been submitted to the jury is the question to be considered in reviewing the case here.

Instead of manufacturing its pipe at Jackson and shipping the same to its customers as ordered, the plaintiff company, after making its contract for a specific amount of pipe, sends its employees to the place where the pipe is used and manufactures it there. An examination of the contract shows that by its terms the only duty devolving upon the plaintiff was to manufacture the pipe of the sizes and dimensions called for in the contract in the manner and the place provided for in the contract. As to Curran’s connection with the work, the defendant Boyes testified :

“Mr. Curran was the representative of the Jackson people, the Reinforced Concrete Company. He was introduced to me here in this city as a representative that would look after their part of the work here. He was superintendent or foreman of construction of the work here. He went to the gravel pit at different times, in with the inspector, and loaded the gravel. All I can say is that he ordered the gravel and went out different times to the gravel pit with the inspector. Other materials were purchased there — cement and slants for the pipe. He ordered them as he wanted them, always. He hired the men. Mr. Cur-ran had supervision of the work as it went along. If any changes were made in the manner of doing work as it went along, Mr. Curran made them. * * * Mr. Curran ordered that change in the form or in the pipes. He superintended the work of the men there. Mr. Curran had general charge of all work that was done in the city of Grand Rapids on those two jobs, so far as I know. I dealt with Mr. Curran, that is, in regard to the work.”

It is a well-settled rule in this State that the apparent scope of the authority of the agent is to be determined by the acts of the principal, and not by the acts of the agent. Marx v. King, 162 Mich. 258, 267 (127 N. W. 341), and cases cited; 31 Cyc. p. 1322. In Delta Lumber Co. v. Williams, 73 Mich. 86, 91 (40 N. W. 940), this court said:

“Corporations are bound by the acts of their agents to the same extent, and under the same circumstances, as natural persons. Agents may have as much or as little power as their principals see fit to give them, and one dealing with an agent is bound to inquire into the extent of his authority, not from the agent, in the absence of a written evidence of authority, but from the principal, if accessible; and dealings or engagements of the agent beyond the scope of his authority do not bind the principal. Bond v. Railroad Co., 62 Mich. 643 [29 N. W. 482, 4 Am. St. Rep. 885].”

It is urged that the statement in defendant Boyes’ testimony, “He was introduced to me here in this city as a representative that would look after their part of the work,” was a holding out of Curran as a general agent. By the terms of the contract, plaintiffs part of the work was to manufacture the tile, and the statement could mean nothing more to defendant Boyes, who was the other party to the contract, than that Curran was in Grand Rapids for that purpose, to look after plaintiff’s part of the work — to manufacture the tile. It further appears that the defendant Boyes at different times telephoned the offices of plaintiff at Jackson with reference to details of the work. In the absence of express authority from the plaintiff holding out Mr. Curran as its general agent, it was incumbent upon the defendant Boyes to make inquiry of the plaintiff, if he desired to bind plaintiff as to matters outside of the contract because of acts of Curran. It is claimed that the instant case should be governed by the decision of this court in Teakle v. Moore, 181 Mich. 427 (91 N. W. 636). We think it is clearly distinguishable from the present case, as in that case all the contracts for the different portions of the work on a building referred to the supervising architect as the agent of the owner, and it was held that this was a sufficient authorization to bind the owner to an arrangement made by the architect with a, contractor for the erection of a scaffold. We agree with the trial judge that there was not sufficient evidence to warrant submitting to the jury the question of charging plaintiff on account of expenditures made by the defendant Boyes because of alleged consent by Curran, who was plaintiff’s foreman on the job.

The contract does not specify the time in which the work was to be done. Defendant Boyes’ contracts with the city required the completion of the work by December 10, 1909. It appears that the plaintiff had manufactured and placed on the ground ready for use all pipe ordered by the defendant Boyes within the time provided in his contracts with the city for the completion of the work, although these contracts with the city were not made a part of the contract between the plaintiff and said defendant. It is claimed that the work was delayed because the plaintiff manufactured a size of pipe at first which the said defendant could not use to advantage. Nothing is contained in the contract as to which size of pipe should be furnished first. It is admitted that ten days after signing the contract the work actually began, and that, with the exception of time consumed putting in a curved brick sewer and one or two days when it was held up by the city inspector because of green pipe, there was no delay. The contract did not provide for curved pipe, and the fault of this delay must be ascribed to the said defendant in failing to provide for it. It is an elementary proposition of law that, where no time is specified in the contract for the completion of work, it must be done within a reasonable time. What is reasonable time* usually depends upon the nature of the contract and the particular circumstances. Where facts are in dispute, it presents a question of fact for the jury. Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162 (10 N. W. 183) ; Hill v. Mathews, 78 Mich. 377 (44 N. W. 286) ; Greenwood v. Davis, 106 Mich. 230 (64 N. W. 26).

When the question of reasonable time depends, however, upon the construction of a contract in writing or upon undisputed facts outside of the contract, it becomes a matter of law. 9 Cyc. p. 614. In the instant case the contract is in writing, and the only testimony offered was that of the defendant Boyes. There is no evidence showing the usage or amount of time reasonably required to manufacture the number of feet of pipe of the sizes and kind mentioned in the contract. The amount of pipe, 3,042 feet, was completed and ready for the defendant Boyes in a little over two months. We are of the opinion that there was no question of fact to submit to the jury, and that the court properly determined the question of reasonable time under the circumstances of this case to be' a question of law, and rightfully determined it in favor of the plaintiff.

Judgment affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    LERCHE v. KISHPAUGH.
    1. Gifts — Evidence—Trusts—Delivery.
    Testimony of a third person that decedent entered the house of his sister, who was then dying, and took a package containing money, saying, in her presence, that they were valuables, and that, at the time, the witness supposed the brother was speaking to him, was insufficient to show a delivery or establish a gift in trust for the benefit of certain persons mentioned in oral instructions of the sister, as alleged by the donee.
    2. Same — -Trusts—Admissions.
    Evidence of declarations and admissions of a donor are insufficient to establish a gift, and are only competent to corroborate other evidence.
    3. Same — Equity—Evidence.
    A letter written by decedent, admitting that his sister, deceased, had given him a certain sum in trust for his brother’s wife, to whom he was instructed to pay interest until the lapse of 24 years, and thereafter to divide it between the minor children of his brother, while possibly binding on the writer, was not such a declaration of trust as to bind the estate of the deceased sister.
    4. Same.
    And the fact that the deceased deposited the money in banks in his name and that of his deceased sister, jointly, tended, to disprove bis contention that there was an absolute transfer in trust, and was in recognition of the rights of the decedent.
    Appeal from Tuscola; Beach., J.
    Submitted April 30, 1914.
    (Docket No. 156.)
    Decided June 1, 1914.
    Bill by Pearl E. Lerche and others, by next friend, against Fred Kishpaugh, administrator of the estate of Charlotte M. L. Still, deceased, and another, for the enforcement of an alleged trust. From a decree for complainants, defendant Kishpaugh appeals.
    Reversed.

      Black & Roberts, for complainants.

      Terry & Parsons, for defendant Kishpaugh.
   Kuhn, J.

The bill of complaint in this cause was filed to establish and enforce a trust in favor of the minor children of the complainant and of Lillie Lerche, his wife. Charlotte M. L. Still, who lived in the village of Gaines, Genesee county, Mich., died intestate on September 11, 1912, and left surviving her a daughter, Rose Kishpaugh, and two brothers, Gustave and Henry Lerche. Gustave Lerche died on November 3, 1912. The claims of the parties are concisely stated by counsel for appellant, as follows:

“It is the claim of complainant in the original bill that said sum of $3,000 was delivered by Charlotte M. L. Still, who is conceded to have been the owner of said money, during her lifetime, to her brother Gustave E. Lerche, with oral instructions to hold said sum and pay the interest therefrom to Lillie Lerche, wife of complainant, for a period of 24 years, at the end of which period, he was to divide said money equally between the children of said complainant. It is the contention of defendant Kishpaugh, administrator of the estate of said Charlotte M. L. Still, that said money was never delivered by said Charlotte M. L. Still to said Gustave E. Lerche; that there is no evidence in the record showing any knowledge on her part that said money was being taken, or was to be, or had been taken by said Lerche, and that there is no evidence showing that she ever instructed or directed said Lerche to take said money for the purposes of the alleged trust or any other purpose; and finally, that the alleged trust, resting entirely in parol, is void under the statute of frauds.”

The administrator of the estate of Gustave E. Lerche in his answer makes no claim to said money as a part of the assets of the estate, and was subsequently ordered by the decree of the court to pay the money to the register of the court.

The only question, therefore, in the case is whether . the money in question belongs to the complainant as next friend of his minor children and to Lillie Lerche, or to the estate of Charlotte M. L. Still. The learned chancellor who heard the case sustained the contention of the complainant, and from a decree in his favor the defendant Kishpaugh, administrator of the estate of Charlotte M. L. Still, has appealed.

The only person who testified as to the taking of the money by Gustave E. Lerche was George W. Chase, whose testimony is as follows:

“Q. During the time you were there, did she say anything to you in regard to not wanting her daughter, Mrs. Kishpaugh, to have her property?
“Mr. Terry: I object to that as incompetent and immaterial.
“The Court: Taken subject to the objection.
“A. Yes, I have heard her say that she didn’t want the daughter to have the property. She said if the papers were drawn she wouldn’t allow her one dollar.
“Q. Did she want you at any time to get anybody to draw papers, make her will?
“A. She requested me one morning to get a person —to get McCann, she said.
“Q. You didn’t get him at that time?
“A. No.
“Q. How long was that before her death?
“A. About a week; I suppose, a little better than a week.
“Q. Had she her mental faculties all right up to the time of her death?
A. I believe so.
“Q. Do you remember her brother Henry Lerche being there?
“A. Yes.
“Mr. Terry: All this testimony is taken subject to our objection.
“The Court: Yes.
“A. I remember her brother Gustave Lerche coming there twice before her death. The last time he was there was on Sunday. He came on Sunday morning before she died. I can’t say what morning she died on. •
“Q. Did Mrs. Still say anything to you about wanting him to stay all night?
“A. She did.
“Q. What did she say? What reason did she give you for not wanting him to go?
“A. She said she didn’t want to think of his being on the road; afraid he was going to—
“Q. Did she tell you what he was going to do?
“A. She did not.
“Q. In the morning did you have any conversation with Gustave E. Lerche?
“A. Yes; I did. He wanted me to come in the house. He was going to take something.
“Q. Where did you go then?
“A. We went into her bedroom.
“Q. What was done after you got into her bedroom?
“A. He went in the closet and got a small hand bag or satchel and says: ‘This is the valuables. I won’t say what they are, but they are valuables.’
“Q. How far away was she at that time?
“A. About four feet, I should judge.
“Q. What did he do then?
“A. He stooped down and kissed her good-bye. He left the house at that time. She died the next morning.”

Cross-examination by Mr. Terry:

“Q. To whom were these remarks addressed: ‘These are valuables. I won’t say what they are?’
“A. I don’t know whether they were addressed to me or to her, but he was looking at me.
“Q. You supposed he was speaking to you?
“A. Yes; after Mrs. Still was buried he told Mr. and Mrs. Kishpaugh and myself that he had taken and carried away $3,000. I think he said he put it in the banks at Bay City.
“Q. What did you observe him carrying away from there that morning when he said, ‘This contains valuables?’ What did he have; what were they in? Doné up in a paper or what?
“A. I can’t say; they were in this little red satchel or hand bag, whatever you call it.
“Q. What he had was a little red satchel in his hand?
“A. Yes.
“Q. Did he have anything else in his hand, in any way, except the little red satchel?
“A. No; I don’t think so.
“Q. What he referred to in speaking of valuables, was that this little satchel contained valuables?
“A. Yes, sir.
“Q. You didn’t know what was in that satchel?
“A. No.
“Q. You didn’t know whether these valuables were his or hers or whose valuables they were?
“A. I couldn’t say.”

On the 10th day of September, 1912, the day the money was taken, Gustave E. Lerche deposited $1,000 in the First National Bank of Bay City, taking a certificate of deposit payable to G. E. Lerche or Mrs. George Still, who, it is conceded, is the same person as Charlotte M. L. Still. He also, on the same day, deposited $1,000 in the Bay City Bank of Bay City, in the savings department. The books of the bank show the following entry relative to the transaction:

“Account opened by G. E. Lerche and/or Charlotte Still. She is ill and cannot write, but has an equal interest in monéy. She is sixty-seven years old. Charlotte Still also to draw. Address, Akron, Mich. R. F. D. number 3.”

On the same day Gustave E. Lerche, who was also known as G. A. Lark, deposited $1,000 in his own name in the savings department of the Old Second National Bank of Bay City.

Complainant seeks to establish the gift and the trust by the declarations of said Gustave E. Lerche made to Frederick Kishpaugh and others and by a letter written by Gustave E. Lerche to Frederick Kishpaugh, which reads as follows:

“WlSNER, September 10, ’12.
“I have thought over the matter of this money and have come to the decision that I have no authority to pay any of this money over to anybody, only as Charlotte told me in plain words the money was left with me in trust to put on interest, the interest to go yearly to Lillie, for a period of twenty-four years, after that the money is to be divided between Henry’s children. I promised Charlotte on her deathbed to do this much for her and I am going to keep my word to her.
“Yours truly,
“G. A. Lark.”

Without these declarations and the testimony of witness Chase, the record is absolutely barren to show any evidence that Charlotte M. L. Still intended to give the money in question as claimed by complainant. At the time the money was taken, 24 hours before her death, it does not appear whether she was awake or asleep, or was conscious of what was taking place. The mere taking of the money as testified to by the witness Chase does not show a delivery of the money, and, in our opinion, is not sufficient to sustain the gift. Casserly v. Casserly, 123 Mich. 44 (81 N. W. 930). Gifts of this character, under the authorities, must be consummated by a delivery, either actual or ■ constructive, and the intention of the donor to place the property beyond his or her control must be clear. The way in which Gustave E. Lerche deposited the money in the banks is convincing to our minds that he fully recognized at the time the right of Charlotte M. L. Still to the money, and is entirely inconsistent with complainant’s claim that the money had been absolutely turned over to him in trust.

In the case of Campbell v. Sech, 155 Mich. 634 (119 N. W. 922), this court said that evidence of declarations and admissions of the donor are not sufficient to establish a gift, and are only admissible as corroborative of other testimony, citing 20 Cyc. p. 1225. The case of Kremer v. Mette, 148 Mich. 376 (111 N. W. 1086), is relied upon to sustain the proposition that the letter above set forth is sufficient to constitute a declaration of trust. It is true that, under this .authority, the letter might be used to bind the estate of Gustave E. Lerche, but, not being the writing of the conceded owner of the property, as was the case in Kremer v. Mette, supra, it is not binding upon the estate of Charlotte M. L. Still.

We are of the opinion that the proofs were insufficient to establish the gift and trust, and that the conclusion of the chancellor was erroneous.

His decree is therefore reversed, and a decree will be entered in this court directing the payment of the money here involved to Frederick Kishpaugh, administrator of the estate of Charlotte M. L. Still, deceased, but, in view of all the circumstances of this case, without costs.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    MAKI v. ISLE ROYALE COPPER CO.
    1. Master and Servant — Evidence—Presumptions.
    Where plaintiff was struck by an empty bucket which fell on him while he was employed, in the mine of the defendant, and the testimony tended to show that the bucket had been fastened to a lowering device by a knotted chain, although there was no proof that a bolt or key had not been used in fastening the chain, evidence that the use of such bolt or fastener would prevent the loosening of the knot, had a tendency to support the claim of the plaintiff, and under the established rule that the facts must be considered in the light most favorable to the party against whom it is proposed to direct a verdict, the question should have been left to a jury.
    2. Same — Sane Place — Mines—Sai-e Appliances.
    The master is required to furnish a reasonably safe place in which the servant may carry on his work, and to> maintain the appliances used in carrying it on in reasonably good repair.
    3. Same — Fellow-Servants.
    The duty to ascertain that the chain and hoisting apparatus was safe and properly adjusted was a nondelegable duty of the employer.
    Error to Houghton; Cooper, J., presiding.
    Submitted April 30, 1914.
    (Docket No. 139.)
    Decided June 1, 1914.
    Case by Jacob Maki against the Isle Royale Copper Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Le Gendre & Driscoll, for appellant.

      Rees, Robinson & Petermann, for appellee.
   Kuhn, J.

The plaintiff received injuries as the result of an accident while in the employ of the defendant, and the question here involved is how the accident occurred and whether it can be said to be attributable to the negligence of the defendant. The learned trial judge, at the close of plaintiff’s proofs, directed a verdict for the defendant, on the ground that the proofs were insufficient to show any negligence on the part of the defendant, and also that the negligent act which the plaintiff assumed there was sufficient evidence to support to require its submission to the jury was the act of plaintiff’s fellow-servant.

The defendant was operating a copper mine and a stamp mill in Houghton county. Inside of the mill were stamp heads to break the rock, the found.ations of which are made of concrete. One of these heads had become defective, and the defendant, in the spring of 1911, was engaged in reconstructing it. A hole about 35 feet deep had been mined, and fresh concrete was being put into the hole. The concrete was mixed on the floor of the mill near the top of the hole and was lowered into the hole by a half-ton coal bucket, about two feet square and high. For this purpose there was used a steam winch, consisting of a niggerhead attached to the shaft of an engine, so that the engine would turn it, a hemp rope, and two double blocks, the upper of which was attached to a carriage near the top of the mill, and the lower of which was suspended beneath the upper; the rope being passed through the blocks in such manner that between them were three thicknesses of rope. There was a hook on the lower block to which the bail of the bucket could be attached. The operations in the mill were in charge of Jim Glanville, who was the superintendent, and Jack Glanville, who was known as the mill boss and also as the master mechanic and, at the time of the accident, was the foreman of the gang on the job. On the day of the accident, he fixed up the hoisting apparatus for lowering the concrete into the hole. At first the bail of the bucket was attached directly to the hook of the lower block, but at the time of the accident, instead of the bail being attached directly to the hook, it was attached to it by means of a 10-foot chain, which was done by Jack Glanville, who had general charge of all the machinery about the mill, and whose duty it was to inspect it and keep it in repair. The plaintiff had been hired on the day before the accident as a surface hand to level ground and perform similar common labor. On the day of the accident, he and three others of the surface gang were ordered by the surface boss to go to the mill for work and were there ordered by the mill boss to go down in the hole and empty concrete from the bucket when it was lowered and spread and tamp the concrete in the hole. When they first started to work, small rocks fell down upon them, and one of their number went up and told the superintendent that they did not want to work there. The superintendent told them to go back to work, and that he would see that nothing fell on them. Planks were then placed over the hole, leaving only a space large enough for the bucket to pass through. It was at this time that the chain was used by Glanville. It had a ring at one end and was wound twice around the bail of the bucket, then passed through the ring at the end of the chain, and then passed upward to the hook of the lower block, to which the other end was attached by a double knot in the chain. After the plaintiff had been working in the hole about two hours, without any warning, the chain became unloosed from the hook of the lower block, and the bucket, while empty, fell and struck the plaintiff and caused the injuries complained of.

There was testimony to show that, if a chain were knotted in the way this chain was, it should also be bolted in order to be reasonably safe. The learned trial judge held that there was no evidence that there was no bolt in the knot in the chain in question. The testimony with reference thereto was as follows:

Witness Abramson testified:

. “I saw the plaintiff get hurt. The bucket hurt him. The bucket fell and struck him. It fell from the top.
“Q. Before it fell, was it at the place where it would hang while it was being loaded?
“A. Just the same place. It didn’t strike anything before it fell. When it fell there was a chain attached to the bail of it. That was the chain by which it had been attached to the hook on the block; I think the length of that chain was about ten feet.
“Q. And was there any hook or rings on the end of the chain?
“A. No, there was none.
“Q. Wasn’t there something on one end of the chain?
“A. At the end it was attached to the bail of the bucket, I don’t remember whether there was a ring or hook.
“Q. But there was nothing on the other end, neither ring or hook?
“A. The other end there was neither one.
“Q. And how had it been attached to the hook of the block?
“A. By a knot in the chain. When the bucket fell • the chain came with it. * * * When the bucket
fell down one end of the chain was attached to the bail of the bucket, and the whole chain came down with the bucket. There was no hook or ring in the loose end of the chain;. that is, the end opposite to the one which was attached to the bail of the bucket. There was nothing there.
“Q. Where was the block, the lower block, at the time the bucket fell?
“A. It was up there at the place where the bucket was filled in, and where it fell from. I saw the lower block right after the bucket fell. There was no hook or ring then attached to the hook of the block; there wasn’t any. No hook or ring fell. No loose hook or ring fell at the time the bucket fell into the hole.
“Q. Did you see, before the bucket fell, how the chain was attached to the hook of the block?
“A. It was attached by' a knot.”

On recross-examination he said:

“Q. You don’t remember how this chain was fastened to the bail of the bucket?
“A. I don’t remember whether there was a hook or ring, but one of those was there. It must have been a ring there. It could not have been anything else. I said I didn’t know whether it was a ring or a hook because I don’t remember just which one it was. I am not sure that it was a ring now, but I think so.
“Q. How was it fastened with this ring? Just describe how the chain was fastened to the bail of the bucket.
“A. The chain would be up through the ring and around the bail. I mean the chain would be up around the bail first, then through the ring. That was still attached that way when the bucket reached the bottom of the hole. I looked at this chain to see how it was fastened to the bucket and to the rope after it fell down and right after Maki was taken up. I looked at the manner in which the chain was fastened to the block at the time it was up there. That was about 9 o’clock in the morning. That' was before I went down in the hole. I looked this thing over before I went into the hole.
“Q. Now what was there in the block, a hook or a ring, attached to the block?
“A. Hook.
“Q. Just describe how this chain, now, was fastened to the hook. Just tell in detail just exactly how it was fastened?
“A. I don’t know; I didn’t see just exactly how it was; all I do know it was tied by a knot. The knot was in the chain. Made out of the chain and that fastened to the hook. The chain was run around the hook twice. It was a double knot. There was nothing at the end of the chain excepting the last link. There was no hook or ring. I am absolutely sure of that. Right after the accident I went up to look at the block. I went up for the purpose of looking at the block. I examined the block very carefully. * * * The block itself was all right; it was good, except that the knot got open. Wendela and Arvo looked at the chain with me down below. They both examined the chain; I helped to bring Maki up. I did not examine the chain before we brought him up, after he was taken up. After he was taken up then I went down and examined this chain, then I came up and examined the block.”

Again, on redirect examination, he testified:

“Q. What was it that caused the bucket to fall?
“A. The cause was because the knot got open and loose and it came down.”
On being recalled, he said:
“Q. You have testified that the chain was attached to the hook of the lower block by knotting it.
“A. It was knotted.
“Q. Was there any bolt through the chain or anything there to prevent the knot from slipping?
“A. That I don’t remember, if there was any.
“Q. Wouldn’t you remember it if there was one there?
“A. I don’t remember at all.
“Q. Didn’t you look at the chain after the accident?
“A. Yes.
“Q. You didn’t see any bolt on it then, did you?
“A. No.
“Q. No bolt dropped down in the hole after the bucket fell, did it?
“A. No.
“Q. And you saw no bolt around there any place? That is, no loose bolt?
“A. Nowhere. When the chain was knotted there, I could see the ends of the chain. The end of the chain was quite long, but I don’t remember if there was anything else there, but the time we came down there was nothing there then.”

. Witness Quinlan testified:

“Q. In your opinion, where a bucket of the size I have described is being used .above a place where men are working, is it safe or proper to use a chain with knots in it?
“A. I don’t consider it is. I am a little against using a chain the likes of that kind without it’s a mighty good chain. A steel tested chain and knots on a chain is very uncertain without a keeper of some kind, a bolt through the links to keep it from slipping.. The shaking and jerking loosens the chain.
“Q. If a 10-foot chain were used to connect the bail of the bucket with the lower hook (or the hook of the lower block) and was knotted, say, with a double knot, and a bolt was put through it in the way you have suggested and put in there properly, could the bucket fall away when the bucket was empty, by becoming' disconnected from the hook while hanging suspended, could the knot become loosened?
“A. Not very well, I should judge. The chain would have to break, I should judge. * * *
“Q. And, if it is so fastened, would the bucket fall away merely of its own weight; that is, of its own weight while it is being suspended empty?
. “A. It couldn’t very well fall away unless the puffer let the slack out of it the chain broke.
“Q. You have seen where the chain became unloosened from the hook after it had been fastened?
“A. I don’t think it could. I never seen one come loose with the bolt through.”

It is true that there is no positive direct testimony that there was no bolt in the knot at the time of the accident, but, having in mind the well-established rule that, in directing a verdict for the defendant, the facts in the case should be viewed most favorably to the plaintiff, can it be said that a reasonable inference cannot be drawn that the bucket fell because of the failure to furnish the knot with the necessary bolt? In this State, defendant’s negligence cannot be presumed and must be proven, but we think the reasoning of this court in Schoepper v. Chemical Co., 113 Mich. 582, 586, 589 (71 N. W. 1081, 1082, 1084), is applicable to the instant case. Justice Montgomery, speaking for the court, said:

“Defendant’s counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we take to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283 [53 N. W. 938] ; Redmond v. Lumber Co., 96 Mich. 545 [55 N. W. 1004]. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities and for drawing reasonable inferences better supported upon, one side than the other. In this case there was no direct proof of any other probable producing cause of the explosion than such as was offered by the plaintiff. * * * Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 613 [19 N. W. 549] ; Barnowsky v. Helson, 89 Mich. 523 [50 N. W. 989, 15 L. R. A. 33]. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Railway Co., 58 Mich. 458 [25 N. W. 463] ; Hagan v. Railroad Co., 86 Mich. 615 [49 N. W. 509] ; Woods v. Railway Co., 108 Mich. 396 [66 N. W. 328]. The judgment will be reversed, and a new trial ordered.”

See, also, La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353); Mirabile v. Murphy Co., 169 Mich. 522 (135 N. W. 299) ; Maki v. Mining Co., 176 Mich. 497 (142 N. W. 780).

We have, in the instant case, the testimony above set forth and the physical fact that the bucket fell while it was empty and suspended upon the chain without being subjected to any unusual strain or jar. We are of the opinion that a reasonable inference supporting the plaintiff’s theory of the case might properly be drawn by a jury, and that this question should have been submitted to the jury.

The rule that it is the duty of the master to provide his servant a place reasonably safe to work in, and that it is his duty to keep the machinery and appliances used in carrying on the work in reasonably good repair, is firmly established in this State.

Likewise that when the master delegates this duty to a servant, no matter what his grade or rank, the servant cannot be held to be a fellow-servant to relieve the master of liability. Jack Glanville’s duty to see that the chain was safe and properly adjusted was the duty of the master, and in doing so he acted for the master. In this he was the defendant’s agent and vice principal and not the plaintiff’s fellow-servant. McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426); Orso v. Engineering Works, 164 Mich. 568, 571 (129 N. W. 673), and cases cited.

It follows that the judgment must be reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.