author: Moore, J.

text:
    ROHDE v. WEINBERG.
    Mechanics’ Liens —Statement oe Claim — Duty to Furnish— • Forfeiture.
    The failure of a lien claimant to furnish an itemized statement under section 10717, 3 Comp. Laws, does not operate as. a forfeiture of said claims where all the statutory provisions had been complied with prior to such demand, and the bill of complaint, which had been filed and served upon defendant,, contained such statement. Frohlich v. Beecher, 139 Mich.. 278, distinguished.
    Appeal from Washtenaw; Kinne, J.
    Submitted January 7, 1909.
    (Docket No. 19.)
    Decided April 24, 1909.
    Bill by William H. L. Rohde against Fred C. Weinberg and Harry W. McClure to enforce a mechanics’ lien. From a decree for complainant, defendant McClure, appeals.
    Affirmed.

      Arthur Brown, for complainant.

      Boscoe B. Huston, for appellant.
   Moore, J.

Defendant Weinberg had a contract to erect a building for defendant McClure. The complainant filed his bill of complaint to enforce a lien for materials and labor entering into the erection of the building. From a decree in favor of complainant defendant McClure has appealed.

The only question raised in the court below and by this record is whether or not the lien of complainant was forfeited by reason of his failing to furnish an itemized statement of his account within five days after demand, claimed to have been made upon him by defendant McClure. The complainant and defendant are not agreed as to what happened when it is claimed the demand was made. In our view of the case, it is not necessary to attempt to reconcile this conflicting testimony. The record shows that the labor and material were furnished in the summer of 1907, the last of it in October of that year. On November 22, 1907, the complainant filed in the office of the register of deeds his sworn statement, pursuant to the statute, and upon the same day served a copy of such statement upon the defendant McClure. On November 30, 1907, the bill of complaint was filed, and on the same day the subpoena to answer said bill of complaint was served upon defendant McClure. The bill of complaint contained an itemized account of the claim of the complainant.

It was after the subpoena was served upon him that defendant claims he made the demand upon which he bases his claim of forfeiture by reason of the provisions of section 10717, 3 Comp. Laws. The statute relating to liens commences with 3 Comp. Laws, § 10710. The various sections following give detailed directions as to how to create, maintain, and enforce the lien. Section 10712 provides when the lien shall hold the building. Section 10714 provides for the filing in the office of the register of deeds a statement of the lien. Section 10715 provides for the service of a copy thereof upon the owner. Section 10717 contains the provisions upon which defendant McClure bases his claims of a forfeiture. Section 10718 provides that “the several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds,” etc. Section 10719 provides: “Proceedings to enforce such lien shall be by bill in chancery under oath,” etc. There is no claim that complainant did not comply with all the provisions of the statute up to this point, but it is claimed that, after the suit was begun and a subpoena served, defendant McClure made a demand for an itemized statement, and that, as it was not furnished within five days, complainant has lost his lien, though he had then followed all the provisions of the statute, and had filed his bill of complaint to enforce his lien. We think this construction of the statute is too narrow and too technical. The provisions of section 10717 do not apply to the proceedings after the bill of complaint to enforce the lien has been filed and subpoena has been issued, as provided in section 10719. The case is easily distinguishable from the case of Frohlich v. Beecher, 139 Mich. 278. In that case the demand for an itemized account was made immediately after the claim of lien was filed, and the itemized account was not furnished for 10 months thereafter. In the case at bar an itemized account was attached to the bill of complaint.

The decree is affirmed, with costs.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    WEAVER v. RICHARDS.
    1. Brokers — Action por Commissions — Depenses—Pleadings.
    In an action for commissions on the sale of certain real estate, under plea of the general issue, defendant is entitled to show that the contract alleged in plaintiff’s declaration was not the contract actually made; such defense, not being affirmative by way of confession and avoidance, need not be specially pleaded.
    3. Same —Action por Commissions —Question por Jurv —Instructions.
    Where, in such action, it appeared that the deed of the land sought to be conveyed contained a reservation of all mineral rights, etc., and there was testimony that the prospective purchasers would not have accepted the deed with such reservation, the question of whether or not they knew of such reservation was properly submitted to the jury.

      3. Mines and Minerals — Deeds—Reservations—Mineral Rights —What Included.
    A reservation, in a deed “of all minerals” includes petroleum, oil and gas. Murray v. Allred, 100 Tenn. 100.
    4. Evidence — Hearsay Evidence — Inoompetenoy—Striking Out.
    On the examination of a witness, who was the attorney for the prospective purchasers and examined the abstract and made a report to them, he was asked why no mention was made of the reservations in the deed, and was permitted to answer: That his recollection was not clear, though he thought the question of reservations was understood by the parties, and that he did not mention it for that reason, and that he so answered because of his habit to call his clients’ attention to anything which is unusual in a deed, and that if there had not been an understanding of that kind he would have called their attention to it. Held, that as there was nothing to indicate the source from which the bare impression of which he undertook to testify was derived, his statement was no evidence to show the fact, and on defendant’s motion, after the close of the testimony, such answer was properly stricken from the record.
    5. Same — Admissibility—Harmless Error.
    The admission in evidence of a letter from one of the prospective purchasers to defendant at the time when the deal was pending, if erroneous, was harmless, where the witness on the trial had testified substantially to the same effect; since the burden of proof was upon plaintiff to prove that said purchasers were willing to accept the land subject to the reservations contained in the deed.
    6. Same.
    The admission in evidence of a contract between defendant and a third person relating to the land, held, under the instructions, not prejudicial to plaintiff.
    Error to Emmet; Shepherd, J.
    Submitted January 19, 1909.
    (Docket No. 101.)
    Decided April 24, 1909.
    Assumpsit by John W. Weaver against George D. Richards for a commission for the sale of land. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Halstead & Halstead, for appellant.

      James F. Shepherd, for appellee.
   Montgomery, J.

This is an action brought to recover a commission or profit, claimed to have been earned by the plaintiff acting as defendant’s agent in the sale of a tract of land comprising about 1,000 acres. The case has been twice before the court, and is reported in 144 Mich. 895 (6 L. R. A. [N. S.] 855), and on the second hearing in 150 Mich. 20. The facts are fully set forth in these two opinions, but it may be well to briefly restate the contentions.

The plaintiff’s claim is that defendant agreed that, if he would find a purchaser for these lands at the price of $6,000 or more, he (the plaintiff) should be entitled to receive all that the purchaser was willing to pay in excess of the $6,000. It is conceded by the plaintiff that the terms upon which the sale was to be made were that the conveyance was to be of the land and timber, reserving from such sale the mineral rights belonging to, or incident to, the land. The plaintiff claims that he made such sale to Hanson and Michelson, and that the title of defendant-proved to be defective, and that for this reason, and this only, the purchasers refused to accept a deed of the premises.

The defendant’s claim is that the agreement was that he should reserve all marl or other mineral deposits, with a right to enter upon said lands at any time to prospect, explore, prepare for, and remove or manufacture, said marl or minerals, and the right for all necessary roads, railroads, canals, etc., in or through said land for the removal of said marl or mineral. Defendant further claims that the plaintiff was fully acquainted with the nature of the title which he had at the time, and that the contract was made with reference to that, and that plaintiff fully understood that it was that title with which he was familia?, and that the defendant was to convey no other. It is also claimed by the defendant that the plaintiff had failed to show that he had found a purchaser who was ready and willing to take the property on the terms and conditions named in the offer, and particularly the terms which provided for the reservation of all mineral deposits and rights.

The case was submitted to the jury in a very able and clear charge, in which the two questions were presented as questions of fact:

First. Did the plaintiff know the conditions of Richards’ title at the time he entered into the contract ?
Second. Were Hanson and Michelson ready and willing to accept a conveyance of the property at the price stated, subject to the reservation of all the mineral rights ?

The jury found a verdict for the defendant, and the plaintiff brings error.-

It is contended that the defense that plaintiff knew of the state of the title was not open under the pleadings; it being asserted that it is» in the nature of an affirmative defense. We do not take this view of the defense. The plaintiff asserted that he entered into a certain contract with the defendant. What that contract was depended upon whether the defendant agreed with the plaintiff to convey a full title to the property, or only agreed to convey to the purchaser such title as the plaintiff knew he had. It was a part of the contract, and the defense was not by way of confession and avoidance, and amounted to an assertion that the contract which plaintiff alleged was not the contract which was made between the parties. See Drake Coal Co. v. Croze, 149 Mich. 60.

It was determined on the former hearing of this case (150 Mich. 25), by the approval of the charge of the circuit judge, that if the plaintiff knew of the condition of this title, he is presumed to have contracted with reference thereto, and could not recover. The testimony in the present case on the part of the defendant tended to show that the customers, Hanson and Michelson, never agreed with plaintiff to become the purchasers of this land subject to the reservation of the mineral rights. It was the . testimony of one of the parties that he understood that the marl was to be reserved, but no other mineral was included, and the testimony tended to show that they would not have accepted a conveyance reserving in full the mineral rights, with the right to enter upon and explore for the same, and the rights incident to a reservation of the mineral rights. This question became very clearly a question of fact, and it is quite evident from the record that the jury found in favor of the defendant upon this question. The instruction of the circuit judge to the jury very clearly covered the case upon this ground, unless there was error in the instruction complained of, as follows: That the use of the words “mineral” or “minerals,” without any qualification, would include both oil and gas, and therefore that a reservation of minerals in place in the earth would include both gas and oil, coupled with the instruction that a reservation of such minerals would imply the right to prospect, explore for, and remove these minerals.

It is contended by the plaintiff, on the authority of Dunham v. Kirkpatrick, 101 Pa. 43, that the use of the words “all minerals ” is not sufficient in a reservation to include petroleum, oil, or gas. So far as our examination goes, this case stands alone. The weight of authority is decidedly in favor of the construction given by the trial judge. A well-considered case is that of Murray v. Allred, 100 Tenn. 100 (39 L. R. A. 249). In this case the authorities are collected, and need not be here repeated. The reasoning of the court is convincing, and its criticism of the case of Dunham v. Kirkpatrick is, we think, justified. The ruling of the circuit court upon this point was correct.

Mr. Alexander, the attorney who examined the abstract for Hanson and Michelson, and who made his report to them, was asked why no mention was made of the contents of the deed. His reply was as follows:

‘ ‘ Why, I believe I can; but I want to say, in fairness to all parties, that my recollection is not perfectly clear, but I have some recollection, and that is that the question of the reservations in the deed had been understood between the parties, and therefore I did not refer to it. I speak with more confidence because of my habit to call my clients’ attention to anything which is unusual in a deed of that kind; and, if there hadn’t been an understanding of that kind, I most certainly think I should have called their attention to it.”

Upon motion of the defendant’s counsel at the close of the testimony, this testimony was stricken out, the court saying that “his answer, being so indefinite as to the source of his information that he might have had — it might have been purely hearsay and unauthorized — that it is not competent evidence for the jury to consider.” We think there was no error in this ruling. There is nothing to indicate the source from which the bare impression which the witness undertook to testify to was derived, and his statement was no evidence to show the fact.

Objection was made to the introduction of a letter addressed to the defendant Richards by Mr. Hanson on the 22d‘of October, 1901, in which he stated that he would take the lands at $8 per acre, but would want the land, timber and all, and that Mr. Richards might reserve the marl, and containing this language:

“ What we want, is a straight warranty deed, and we will give you a contract for the marl bed if there is any.”

Hanson was a witness for the plaintiff, called for the purpose of showing that Hanson and Michelson were ready to purchase the land at the price of $8,000 as claimed by the plaintiff. It was also incumbent upon the plaintiff to show that they were ready to accept the land subject to the reservations which the defendant proposed to make. As bearing upon this question, it was competent, in cross-examination, to show this declaration, made by the witness while the negotiations were still pending between him and Richards, as to the terms upon which he was willing to accept a conveyance. At the most this may be said to have been harmless error, for Hanson testifies earlier, substantially as stated in this letter, that the reservation which was talked of between himself and Richards, and the only one which he expected he was to be called upon to consent to, was a reservation of the marl.

Error is assigned upon the introduction of a contract between McIntosh and Richards relating to these lands. It is impossible for us to conceive how, if this should be said to be not material, it could, in view of the court’s charge to the jury, have been in any way damaging to the plaintiff’s case.

On the whole record we are convinced that the plaintiff had a fair trial upon the questions of fact, that the questions involved on this, trial were questions of fact resolved by the jury in favor of the defendant, and that no error to plaintiff’s prejudice was committed.

The judgment will be affirmed.

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


text:
    SPRING v. PERKINS.
    1. Executors and Administrators — Administrators de bonis non — Authority for Appointment.
    An instrument, guaranteeing the payment of a loan, was executed to an administrator after the filing of the inventory of the estate, and was not included in the final settlement of such administrator. After the death of the maker of said instrument, claimant petitioned for the appointment of an administrator de bonis non for the purpose of presenting said instrument as a claim against decedent’s estate, and stated that it, by agreement of the parties interested, had been withheld from administration and had not been paid and was still due the estate. Held, that as the claim was not collected or distributed by the general administrator, it still remained a part of the estate, and the appointment of an administrator de bonis non was therefore authorized.
    2. Statute of Limitations — Estates of Decedents — Part Payment-Person to Whom Made.
    A payment, in order to tole the. statute of limitations, must be made to the creditor or to the one interested; and a payment, made for the very purpose of preventing the running of the statute, to one who represented all the interested parties, is sufficient, although such person had been discharged as administrator of the estate to which the debt was due.
    3. Estates of Decedents — Claims — Interest — Computation— Instructions.
    Error cannot be predicated upon an instruction that interest could be computed from the date of the execution of an instrument guaranteeing the payment of a loan, the consideration for which was an assignment at an earlier date of a policy of insurance pledged by the insured for the payment of said loan; since from the language of the instrument itself interest might have been computed from the earlier date.
    4. Witnesses — Examination—Exclusion of Testimony.
    On the trial of a claim against an estate for a debt which the claimant contended was revived by a payment made by the debtor, a question to a witness (who claimed to have been present at the time of such payment, and stated that he knew of the hearing before the commissioners) as to why he did not attend such hearing was properly excluded; no evidence appearing upon the record that the witness had been requested or subpoenaed to appear at such hearing.
    5. New Trial — Newly Discovered Evidence.
    A claim of newly discovered evidence cannot be maintained upon affidavits to the effect that the evidence of a witness upon the trial was not the same as that given by him upon the hearing before the commissioners; no reason being given in said motion why this evidence was not adduced on the trial in impeachment.
    Error to Kent; Wolcott, J.
    Submitted January 11, 1909.
    (Docket No. 48.)
    Decided April 24, 1909.
    John G. Spring, administrator de bonis non of the estate of Jared S. Spring, deceased, presented a claim against Willis B. Perkins and Peter Doran, executors of the last will and testament of Henry Spring, deceased, for the amount of a loan the payment of which had been guaranteed. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant, and contestants bring error.
    Affirmed.

      Peter Doran and Willard Kingsley, for appellants.

      McKnight & McAllister, for appellee.
   Montgomery, J.

This action is brought by the claimant as administrator de bonis non of the estate of Jared S. Spring to recover upon an undertaking entered into by Henry Spring in his lifetime, reading as follows:

Know all men by these presents, that I, Henry Spring, of the city of Grand Rapids, Michigan, for and in consideration of the assignment to me by J. G. Spring, administrator of the estate of Jared S. Spring, of the assignment of policy 151,662 in the Northwestern Mutual Life Insurance Company for the sum of $4,000, which was assigned February 2, 1887, to Jared S. Spring, by John A. Spring, I hereby assume and guarantee the payment of a certain loan of $4,000 made by Jared S. Spring and John A. Spring of Grand Rapids Fire Insurance Company and which is now owned by the estate of said Jared S. Spring. There has already been paid on the above loan by me the sum of $1,000, leaving a balance due of $3,000 and interest.
[Signed] “Henry Spring.”
Dated July 13, 1892.

On the trial of the case before a jury a recovery was had in favor of the claimant, and the case is brought here for review on error.

The points of error alleged are that the written memorandum upon which the action was based was withdrawn from administration, and therefore that it was not an asset of the estate of Jared S. Spring, deceased, and that the statute of limitations has run against the claim. There are also errors assigned on the subject of the admissibility of testimony and on the refusal to grant a motion for a new trial. It appeared on the trial that the instrument in question was executed after the inventory of the estate of Jared S. Spring. In the petition for the appointment of an administrator de bonis non, made by John G. Spring, who had been the general administrator, the following occurs :

“ I represent, further, that at the time of my discharge, I held for the benefit of all the estate and as a part thereof which was by the agreement of all the parties interested therein withheld from administration, the obligation of Henry Spring, one of the distributees of said estate, amounting to $3,000 or thereabouts, which said Henry Spring had agreed in such writing to pay to the other distributees as therein agreed. I further represent that said obligation has not been paid and is still due the estate of said Jared Spring, and said Henry Spring is now deceased, and his estate is now being administered in this court.”

On the trial, the evidence tended to disclose the assent of the other heirs of Jared S. Spring that Henry Spring should make payment to John G. Spring, who should then make a distribution of the proceeds, excluding one of the brothers who was understood to have received more than his share of the estate. It is urged, therefore, that the authority which John G. Spring had to collect this claim was as agent of his brothers, and that it no longer belonged to the estate of Jared S. Spring.

One serious objection to this assumption is that there is no proof in the record that Henry Spring ever agreed that this should not remain and constitute a part of the estate of Jared S. Spring. It is true that, in the petition for letters of administration, the statement is made that the petitioner held, for the benefit of all the estate and as a part thereof, which was by agreement of the parties interested therein withheld from administration, the obligation of Henry Spring, one of the distributees of said estate, which said Henry Spring had agreed in such writing to pay to the other distributees as therein agreed. But this is to be read in connection with the further statement that “said obligation has not been paid and is still due to the estate of Jared Spring,” and, when the instrument to which reference is made is appealed to, it shows that the obligation which Henry Spring assumed wns not an obligation to pay this $3,000 to the individuals who were the other distributees of the estate of Jared S. Spring, but was a guarantee of payment of the amount and a statement that the claim was owned by the estate of Jared S. Spring, so that upon payment to the representative of the estate of Jared S. Spring, Henry Spring or his estate would be entitled to share in the proceeds. The most that can be said is that the parties withheld this claim, which was not in force at the time the inventory was made, from final distribution ; that is to say, the fund was not collected or distributed by the general administrator. It never ceased to be a part of the estate of Jared S. Spring, and the appointment of an administrator de bonis non was therefore authorized.

The next question arises over the statute of limitations. It appears by the testimony that Henry Spring in 1903 made a payment to John G. Spring, when there was a vacancy in the administration, to apply on this obligation, and, if the testimony is credited, for the sole purpose of Treeping it alive. It is said in the brief of counsel that John G. Spring was a private person, and not invested with any official capacity, and acting solely as agent for parties whose interests were adverse to the general estate itself, and that under such circumstances a payment by Henry Spring did not operate to give the outlawed claim a renewed legal existence or restore it as a lawful asset of the closed estate of Jared S. Spring, deceased. The case of Kisler v. Sanders, 40 Ind. 78, is cited to sustain this contention. That was a case of a payment to the plaintiff before she was appointed administrator, and it was said:

“Was such a payment sufficient to take the case out of the operation of the statute of limitations? We think that it was not. * * * The very decided weight of the modern decisions is that the payment must be made to the creditor, or to some one lawfully acting in his behalf. * * * When the defendant paid the $5 to her she had no lawful right to receive it, and from such a payment a new promise cannot be inferred.”

The learned trial judge, in commenting on this case and distinguishing it from the present, said:

“It seems to me that it is distinguishable from this case here. Mr. J. G. Spring had been regularly appointed administrator of this estate. There is evidence to the effect that he had it in his possession, and, if it was a valid claim, was one of the assets of the estate, one that he should under his letters of administration have collected or accounted for, but he failed to do it. Now, it seems to the court that, being a son of the deceased, the administrator of his estate, one of the beneficiaries, he stood in a different attitude than a stranger. If the debts were paid, he was one of the four beneficiaries, and one to whom this money should go. He had a personal interest in it, and, if the evidence here is to be credited, at least there is some evidence to show of a claim made that he was acting and authorized to act for the other brothers, the other beneficiaries, in collecting this money on this note or agreement. ”

We think these circumstances very clearly distinguish the case from the Indiana case cited. It is undoubtedly true that a payment in order to tole the statute of limitations must be made to the creditor or to the one interested. In the present case it appears that John G. Spring’ was authorized by his brothers to receive this payment. He was the representative of all the parties in interest except Henry Spring, the payor, so that, with the very purpose of preventing the statute of limitations from running,, Henry Spring, the payor, paid to a representative of all the other parties in interest a sum of money to revive the debt. The relation of John G. Spring to this obligation was such that an effective promise of payment, might be made to him.

The case of Robertson v. Burrill, 22 Ont. App. 356, is very strongly in point. In that case it was held that, an acknowledgment of indebtedness by letter written-after the creditor’s decease by the defendant to the person who was entitled to take out letters of administration to the creditor’s estate, and who does, after the receipt of' the letter, take out such letters, is a sufficient acknowledgment within the' statute of limitations. The opinion of the majority court contains a review of the English cases, and is instructive. Maclennan, J. A., dissents, apparently upon the ground that, while the husband at the time the promise was made was entitled under the law to take out letters of administration, yet he was entitled to one-half of the distributive estate only, and—

“It might, however, have been that the intestate’s estate was insolvent and that creditors were entitled to it all, and so that the plaintiff had in reality no interest whatever. In such a case it might be a creditor to whom administration would ultimately go.”

He adds:

“ I do not see how it could be held that a payment to the husband before administration could be good or'would bind the estate, much less a mere acknowledgment.”

The present case, however, meets the objections of the dissenting opinion. Here all the parties interested in this estate, the debtor and those who were entitled to share with him in the proceeds- of the payment, were represented in this transaction. We think the acknowledgment was good.

It is next contended that the court erred in permitting interest to be computed upon this obligation. We think it very clear, from the reading of the obligation itself, that it was understood that the claim bore interest. The language is:

“ There has already been paid on the above loan by me the sum of $1,000, leaving a balance due of $3,000 and interest.”

It might have been urged with much force that interest was due upon the obligation from the date of the assignment of the $4,000 claim February 2, 1887, but this claim was waived in the court below. That the obligation bore interest is manifest.

Jared S. Spring, Jr., a son of John G. Spring, was a witness to the payment by Henry Spring of the $4.50 which was shown to have revived this claim. He testified, on cross-examination, that he knew there was a trial to be had of this matter before- the commissioner on claims, and answered the question, “But there was a hearing before commissioners on claims before Mr. Renihan, and Mr. Powers ? ” thus:

“ I knew there was something; yes, sir.
“Q. You knew that they went down there to testify in that case, your father and your uncle Dan ?
“A. Yes, sir.”

Thereupon defendant’s counsél asked witness the following question:

“Q. Why didn’t you go down there ? ”

This was objected to and excluded. We think there was no abuse of discretion in refusing to receive this answer. It had not been made to appear that the witness had been requested to appear before the commissioners,, much less that he had been subpoenaed, and he could not well know any reason which his father had for not subpoenaing him. It may have been that he, the father, thought the testimony sufficient without that of the son. Had the father been the witness on the stand and the question as to why he did not subpoena or produce the son, a different question would be presented.

The motion for a new trial was based upon the legal questions heretofore discussed, and also upon a claim of newly discovered evidence material for the defense. Affidavits were filed on behalf of the contestants made by Mr. Doran, one of the attorneys in the case, and by others, setting up that on the hearing before the commissioner on claims John G. Spring had testified that at the time of the payment of $4.50 at Rockford in 1903 no one else was present, thus contradicting the testimony of the son, Jared S. Spring, Jr., that he was present on that occasion. The learned trial judge, in disposing of this question, said:

“ The claim of newly discovered evidence cannot be maintained on the showing made. It consists of the affidavit of Mr. Doran, the attorney in the case for the estate of Henry Spring, and who also represented that estate on the hearing before the commissioners on claims. The affidavit is to the effect that the evidence given by one of the witnesses for the claimant was not the same before the commissioners on claims as in the court. The other affidavits are by the commissioners on claims to the same effect. No reason is suggested why this evidence was not adduced on the trial in impeachment. In no sense can it be deemed newly discovered evidence.”

The disposition made by the trial judge of this question was very clearly within the previous rulings of this court. See Gray v. Barton, 62 Mich. 186, and Canfield v. City of Jackson, 112 Mich. 120.

The judgment of the circuit court will be affirmed.

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


text:
    STODDARD v. HIBBLER.
    Principal and S urety — Building Contracts — Bonds—Mechanics’ Liens — Liability op Surety.
    A building contractor agreed to build a house and to furnish all labor and material and provided a bond conditioned that the principal should “well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions of said contract on the part of the said principal to be performed.” Held, that such bond is broad enough in its terms to bind the surety for losses sustained through the payment of mechanics’ liens; since simply contracting for the materials, etc., and leaving the owner of the premises to pay for them is not furnishing them in any substantial sense.
    Error to Wayne; Donovan, J.
    Submitted January 14, 1909.
    (Docket No. 86.)
    Decided April 24, 1909.
    Assumpsit by Edgar Stoddard and another against William H. Hibbler, principal, and the Title Guaranty & Surety Company, surety, on a building contractor’s bond. There was a judgment for plaintiff on a verdict directed by the court, and defendant surety company brings error. Affirmed.

      human W. Goodenough, for appellant.

      Ari E. Woodruff and Frank W. Atkinson, for appellees.
   Montgomery, J.

The defendant Hibbler entered into a contract with the plaintiffs, by the terms of which he promised and agreed, for and in consideration of the sum of $3,700, to furnish all labor and material necessary to build and complete, according to plans and specifications furnished by party of the first part, a two-family double house. Plaintiffs undertook, in consideration of the premises, to pay the consideration price in installments. Upon the execution of this contract the defendant Kibbler, as principal, and the defendant company, as surety, executed a bond in the sum of $2,000, reciting that the principal had entered into a certain contract with the obligee, describing it, and a copy of which was attached to the bond, and conditioned that the principal “shall well and truly indemnify and save harmless.the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of said contract on the part of the said principal to be performed.” The defendant Hibbler abandoned the work after entering upon it, leaving unpaid in the hands of the plaintiffs about $1,300, of which $987.32 was expended in completing the work, but liens amounting to $1,595.94 were filed against the property. This action is brought to recover the amount of these liens. The circuit judge directed a verdict for the plaintiffs, and the defendant surety company brings error.

The sole question raised is whether the surety company is bound by its obligation to indemnify the plaintiffs against loss arising from the payment of mechanics’ liens. It is strenuously insisted that the bond of the defendant is not broad enough to make it liable for mechanics’ liens. Defendant cites, as sustaining this contention, City of Sterling v. Wolf, 163 Ill. 467; Gato v. Warrington, 37 Fla. 542; Boas v. Maloney, 138 Cal. 105; Hughes v. Smith, 114 La. 297; L'Hote Lumber Manfg. Co. v. Dugue, 115 La. 669; Dunlap v. Eden, 15 Ind. App. 575. The case of City of Sterling v. Wolf presents the single question of whether, under a provision in a contract between the city and a sewer contractor that he should furnish all materials, his surety became liable to a third person for materials furnished him. This question was answered in the negative. The case of Hughes v. Smith was an action brought to recover because of the failure to take a sufficient bond as required by the statute of the State. It was held that the bond accepted was not a compliance with the terms of the statute. It throws no light upon the question involved in this case. The same thing is true of the case of L’Hote Lumber Manfg. Co.v. Dugue. The case of Dunlap v. Eden was likewise an action brought by a third person, not a party to the bond, and it was held that its terms were not such as to authorize an action brought by such third person. It is obvious, therefore, that none of the cases so far referred to bear . directly upon the question presented.

The case of Gato v. Warrington does give some support to the claim made. In that case one McClatchy entered into an agreement with the appellant by which he agreed to erect, finish, and deliver, on or before January 1,1891, in true, thorough, artisan, perfect, and substantial manner, certain buildings, according to plans and specifications attached. The appellant agreed on his part to pay the sum of #8,260 as follows, viz.: As the work progressed the said J. McClatchy was to submit his weekly pay rolls, duly signed and receipted, also for such material as might be on the ground. McClatchy secured Warrington and Kernan as sureties. They entered into a separate obligation on the same date, whereby they acknowledged themselves held and bound in the sum of #2,000 upon condition that McClatchy would fulfill in every particular the said contract for the erection of the buildings according to plans and specifications, and to deliver the same on or before the date mentioned in the contract, finished in a thorough, artisan, perfect, and substantial manner. It appeared in the case that appellant had not, in making the payments, insisted in all cases upon the pay rolls being presented signed and receipted, and had not limited his payments to material which was on the ground. This departure was urged as one ground of defense. It was also claimed that the bond did not obligate the sureties to indemnify the appellant against liens of mechanics and others. The court said:

“The sureties have a right to stand upon the strict terms of their engagement, and we discover no specific agreement on their part to indemnify appellant against liens for work done and material furnished in the construction of the buildings, nor is such a liability contained in the reasonably necessary import of the terms of the obligation.”

Whatever may be said of this reasoning, there was another and sufficient reason given by the court for the conclusion reached. That was, that it was apparent from the contract that, in paying for the construction of the buildings, appellant reserved the right to pay McClatchy, as the work progressed, upon signed and receipted weekly pay rolls, and for material on the ground; and the proof showed that appellant advanced over $3,000 to McClatchy to pay laborers, and not on receipted pay rolls. If appellant paid this rhoney in disregard of the contract, he could not hold the sureties responsible for it, as any material departure from the agreement had the effect of releasing them.

The case of Boas v. Maloney may also be said to be in point. In that case the contract provided that, in consideration of the sum of $2,850, to be paid in certain installments as designated in the contract, Maloney was to furnish the necessary labor and materials, including tools, implements, and appliances required, and perform and complete in a workmanlike manner all the new work and repairing, plumbing, painting, plastering, etc., according to the plans and specifications. The bond given, after reciting certain conditions of the contract, provided:

“ Now, therefore, if said P. Maloney shall well and truly perform, observe, and abide by each and all of the covenants, provisions, and obligations contained in said contract, then this obligation shall be discharged and of no further force or effect, but otherwise it shall remain in full force or effect,” etc.

The court said:

“The sureties are to be held according to the strict terms of their contract, and it cannot be extended by implication so as to make them liable beyond its terms. Maloney agreed to build and construct the house for $2,850. He did the work according to the contract, and has not claimed any more than the $2,850. He furnished the labor and materials, and did not pay for them, and hence the liens were filed. The amount due for the labor and materials was due by Maloney, and not by the plaintiff. The bond did not provide that the building should be delivered up free from liens. The plaintiff did not require, nor did Maloney put such clause in the bond. The fact that the debts due by Maloney became, by virtue of the statute, liens upon plaintiff’s property, did not make the sureties liable. They had not agreed to pay such liens, nor to be responsible therefor.”

The court cited to sustain this contention the case of Gato v. Warrington, supra. The reasoning of these cases does not commend itself to the court. In view of the statute of this State, which entitles laborers and materialmen to liens, it seems to us a most narrow construction to say that, when the contractor agrees to furnish all labor and material necessary to build and complete a house, he may comply with this requirement by simply placing the material on the ground, engaging the labor, and leaving the owner to pay for it, or to permit a lien to stand against his property. This is not furnishing the material in any substantial way, and we find that other courts have taken a very different view from that expressed in the cases referred to.

In the case of Mayes v. Lane, 116 Ky. 566, the court had this question under consideration. The court said:

“ Under the contract the sureties bound themselves that Lane would furnish the material and build the church ‘ in strict accordance with the plans and specifications furnished,’ and ‘in accordance with the terms and conditions of said contract.’ * * * The sureties guaranteed that Lane would furnish the material and erect the building. In the erection of the building, Lane had to perform the labor himself, or to employ some one to do it. It follows that the sureties guaranteed that the necessary materials and labor would be furnished to erect the building. But it is urged on behalf of the sureties that the terms of their bond were complied with when the material and labor were furnished; that their contract did not require them to protect the church against the cost of the material and labor. Reduced to the last analysis, their claim is that Lane complied with his contract by furnishing the material and labor, although the church was compelled to pay for such part for which Lane failed to pay. Lane did not comply with his contract when he furnished the material and labor, unless he paid for it, or released the building from liability therefor.”

The case of Kiewit v. Carter, 25 Neb. 460, is directly in point. In that case Kough, the contractor, agreed to build a frame cottage, and he further agreed to furnish all the material, such as lumber, hardware, brick, lime, sand, paints, oils, etc., as might be necessary to complete the house according to the plans and specifications, and agreed to furnish a bond for the faithful performance of his contract. This bond was, in all substantial respects, identical with that in the instant case, and was conditioned that said J. S. Kough would faithfully perform all the covenants and agreements contained in the building contract made between J. S. Kough and James Carter. Of the contention that is here made, the court said:

“ The plaintiff in error contends that the bond given by him and others does not provide for mechanics’ liens; that he is a mere surety, and is not bound beyond the strict terms of the bond. The second paragraph of the contract provides that Kough is ‘to furnish all the material, such as lumber, hardware, brick, lime, sand, paint, oils, etc., as may be necessary to complete said house according to the plans and specifications.’ If Kough failed to pay for such materials therefor, and the plaintiff below was required to pay the same, Kough and his sureties would be liable on the bond. Had Kough paid for these articles, no mechanics’ lien would have been filed. The lien is not a cause, but a consequence, flowing from the nonpayment of the materials. In other words, it is merely a mode of enforcing payment for materials used in the erection of a building.”.

This case was cited with approval in Friend v. Ralston, 35 Wash. 430. The same question was presented to the court in Closson v. Billman, 161 Ind. 610. In that case a contract was made by one Worley to furnish Bill-man all lumber, doors, frames, sash, and all other materials for the erection of said house, and to build and construct said residence in accordance with certain plans and specifications. It was also provided that Worley should furnish a bond for the faithful performance of the obligation in said contract. Such bond was given, conditioned that, if the said Worley should build, construct, and complete the said residence according to his contract with said C. D. Billman, and according to the plans and specifications therein referred to, and within the limit of time thereinafter provided, then the bond should be null and void, otherwise in full force and effect. It was contended that no breach of the bond was shown, as it was not alleged that Worley did not construct and complete the house in accordance with the plans and specifications. The court held that the provision of the bond that Worley should build, construct, and complete the said residence would alone seem sufficient to require him to furnish and pay for the necessary materials, so as to deliver them free of lien. The court added:

“ When we look to the contract, however, it is plainly provided that he is to furnish the lumber, and the provision concerning the payment of $250 on presentation of receipted bills for materials furnished and delivered upon the lot makes it clear that it was contemplated that said Worley should pay for the materials he was to furnish. The bond provides that Worley is to build, construct, and complete the residence ‘according to his contract,’ and it was as much his duty to deliver the house free of liens on account of materials as it was to use materials which belonged to him. To hold, in the face of the bond and contract, that the construction and completion of the building in accordance with the plans and specifications was a compliance with the bond, although the owner would be compelled to pay out large sums in excess of the amount stipulated in the contract to discharge liens for the purchase price of materials, would be to keep the word of promise to the ear, but break it to the hope.”

See, also, 5 Current Law, p. 472; 9 Current Law, p. 436.

It will be seen that the weight of authority sustains the holding of the circuit judge; and, as in our view the bet. ter reasoning also supports this holding, the judgment will be affirmed.

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


author: Grant, J.

text:
    CURRY v. BACKUS.
    1. Taxation — Notice to Redeem — Service.
    Evidence of the service of a notice to redeem from a sale of land for taxes, held, sufficient to support a finding that said notice was personally served upon the owner of said land.
    2. Same — Notice to Redeem — Persons to be Served.
    The tax law as amended by Act No. 142, Pub. Acts 1905, requiring the service of a notice to redeem from the sale of land for taxes upon the actual occupant of said land, does not apply to a sale and execution of the State’s deed before the passage of the act; such construction imposes an additional burden upon the purchaser and impairs the obligation of the contract. Weller v. Wheeloelc, 155 Mich. 698, distinguished.
    Appeal from Alcona; Connine, J.
    Submitted January 13, 1909.
    (Docket No. 83.)
    Decided April 24, 1909.
    Bill by Walter J. Curry against Sarah J. Backus and others to quiet title to land. From a decree for complainant, defendant Backus appeals.
    Affirmed.

      Jahraus & Bawden, for complainant.

      Washington I. Bobinson (J. S. Canfield, of counsel), for appellant.

      This bill was filed by complainant to quiet his title to the lands therein described. The judge made a finding, and made a very concise statement of the case, as follows: Complainant claims under tax deeds for the taxes of 1897, 1898, and 1899, which he purchased from the State, on February 17, 1905. His tax deeds were executed on February 27, 1905. The bill does not ask for possession. Defendant Sarah E. Backus is the holder of the original title, being the grantee in the last recorded deed in the regular chain of title. Defendant Curran was in actual possession of the land, as tenant, under Sarah Backus, during the whole of the year, 1905. No question is raised by defendants against the validity of the tax deeds vas such, nor is it claimed that they did not convey title to complainant. The defense set up is that the bill should be dismissed for the following reasons:
    (1) Because the statutory notice of reconveyance was not personally served upon defendant Sarah Backus, as set forth in the officer's return of such service; and that there was no service upon her, and the officer’s return to that effect is false.
    _ (2) Because defendant Curran was in the actual possession of the land during the whole of the year 1905, when the notice to redeem was served, and that he was not served with the notice; that he had a right to be served, under Act No. 142, Pub. Acts 1905, which took effect on May 25, 1905; that until he was served defendant Sarah Backus had the right to redeem, which right has not yet expii’ed; and that defendant Sarah Backus can take advantage of the failure to serve defendant Curran with the notice.
    Defendant Curran did not answer the bill, and claims no individual rights in the case. No question is raised as to the sufficiency of the notice to redeem, as a notice, under the statute. From the officer’s return on the notice to redeem, and from the proofs in the case, it must be found that the return is true, and that the notice was personally served on defendant Sarah Backus on June 15, 1905, at Detroit, Wayne county, Mich. Decree was entered for complainant.
   Grant, J.

(after stating the facts). 1. We concur in the finding of the court that the notice was served upon the defendant. The officer detailed minutely all the circumstances. He went to the house. An old lady answered the bell. He asked if Mrs. Sarah E. Backus was home. After a little hesitation, she said, “No,” and closed the door¿ He then went to a drug store near by. The druggist knew Mrs. Backus well, and, after the officer had described the woman he saw, the druggist said that he thought the lady he saw was Mrs. Backus. About half an hour afterwards he went to the house again, and the defendant’s granddaughter was entering the house at the same time. The officer asked Miss Backus if Mrs. Sarah E. Backus was in. She replied, “Yes,” and pointed out the old lady, who was standing inside the door. The officer swore that he then handed the notice to the young lady and asked her to give it to Mrs. Backus, and that he saw her do so. When his testimony was taken, the defendant was present, and he identified her as the one upon whom he served the notice. The testimony of the respondent and her granddaughter does not convince us that the officer, who was entirely disinterested, is not entitled to eredit.

2. The complete answer to the claim that service upon Philip Curran was necessary is that the act (Act No. M2, Pub. Acts 1905) was passed after the complainant obtained his tax deeds. The law as it stood at the date of these deeds prescribed the persons upon whom the notice should be served, and did not include occupants. The above act added a new class of persons, to wit, those in the actual possession of the land. This case is not controlled by Weller v. Wheelock, 155 Mich. 698. The change there made by the law after the tax title had been obtained related merely to the place of payment. This law adds another class of persons to be entitled to service. My Brother Montgomery in that case said:

“ It is not necessary in this case to determine whether, in so far as the amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective in that it impaired the obligation of contracts.”

This act clearly imposes an additional burden upon the purchaser and impairs the obligation of this contract. It is therefore unnecessary to determine whether Curran was in the actual possession of the land, as required by the statute.

Decree affirmed, with costs.

Blair, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    BURGESS v. HUMPHREY BOOKCASE CO.
    1. Master and Servant — Duty of Master — Safe Place to Work — Question for Jury.
    The duty of furnishing adequate steam capacity to make the operation of machinery reasonably safe rests upon the master, and is within the rule that makes it his duty to furnish reasonably safe machinery; and, under the evidence, whether he did or not, was a question for the jury.
    2. Same — Personal Injuries — Assumption of Risk — Contribu- ' tory Negligence — Question for Jury.
    Where, in an action for personal injuries, there was testimony that plaintiff, on different occasions prior to the time of the injury complained of, knew of the danger of operating the machine because of a lack of power and not from any defect in the machine itself, and on the day of the accident had been assured by defendant’s foreman that there was then sufficient power to operate the machine safely, held, that the questions of whether he assumed the risk and was guilty of contributory negligence were for the jury.

      3. Same.
    In such action, whether or not said foreman was a vice principal is not considered; since if plaintiff did not assume the risk, it was because, from information received from whatever source, he honestly believed, and had just reason to believe, that the capacity of the boiler was adequate, and that there would.be no repetition of such fault.
    4. Appeal and Error — Instructions.
    Error cannot be predicated on a confusion in the instructions to the jury in regard to the defenses to an action for personal injuries, where both defenses were based upon the same alleged facts, and if one was found to exist the other would of necessity follow.
    5. Same.
    An instruction that if the jury should find from the evidence that the plaintiff complained of the defective condition and working of said machine, and that assurances were made to him that it would be so altered that the defect complained of would cease to exist, that plaintiff had a right to continue to work at such machine for a reasonable time without assuming the risk of injury, was erroneous, since there was no proof that the foreman was a vice principal and could therefore bind the master by a promise to increase the capacity of the boiler which was the defect complained of — such promise, if made, being that of a fellow-servant.
    Error to Wayne; Mandell, J.
    Submitted January 7, 1909.
    (Docket No. 42.)
    Decided April 24, 1909.
    Case by Clarence Burgess, by next friend, against the Humphrey Bookcase Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      George F. Monaghan and Peter J. Monaghan, for appellant.

      Clarence P. Milligan and Washington I. Bohinson, for appellee.
   Hooker, J.

The plaintiff was injured on the defendant’s planer, which was admittedly in good condition and running order. His hand was drawn upon the knives and cut, and the cause was the failure of proper velocity in the machine. He recovered a substantial judgment in an action for negligent injury, and defendant has appealed.

There is but one explanation of the accident, and that must have been apparent to the plaintiff, or anyone else, viz., that there was a want of steady, adequate power at the machine to give the necessary velocity to make the revolving knives cut. The result was they stuck in the wood and the plaintiff was hurt. The plaintiff claims that this was due to a want of pressure from the boiler, and the testimony tends to show that the fault was first noticed about the time that the steam pressure was kept down to 40 pounds by direction of the boiler inspector, ■which was three or four days before the accident. It had previously been as high as 70 pounds. On the other hand, the defendant produced testimony tending to show that, when the pressure was reduced, it directed that the load be reduced in proportion by stopping about half of the machinery, and therefore the unsteadiness was not due to the change in pressure. The want of power at the planer was manifestly due to a want of power at the boiler, for it could not well be due to any other cause; the planer being in good running order. This may be accounted for upon the ground that at 40 pounds pressure the boiler did not furnish sufficient steam to run the machines which defendant directed to be run, or was caused by the negligence of the firemen in firing, or the disobedience of men in running more machines than directed by defendant. All of these are ways in which the slowing down may be explained. If the lack of capacity in the boiler was the cause, the fault was the defendant’s; if disobedience of others, it was the fault of plaintiff’s fellow-servants, though no such claim is made in the case, and we need not discuss it.

Plaintiff has rested his case on the claim that there was insufficient boiler capacity, at 40 pounds pressure, to run this planer safely with such other machinery as was kept running by defendant, and we are of tbe opinion that there was evidence from which this might be inferred. We cannot say that the testimony conclusively shows that a proportionate amount of machinery was put out of use when the steam was reduced, nor can we say that enough was taken off to leave the power at the planer undiminished if all was discontinued that defendant claims. Moreover, we are not justified in assuming, though the jury might have been in finding, that there was adequate power before the pressure was reduced. The duty of furnishing adequate steam capacity to make the operation of machinery reasonably safe rests upon the master, and is within the rule that makes it his duty to furnish reasonably safe machinery, and whether he did or not was a proper question for the jury.

Plaintiff’s right of recovery was contested on two other grounds, besides the want of negligence upon the part of defendant:

(1) That the plaintiff knew of the erratic running of the machine, and chose to use it notwithstanding, and therefore assumed the risk.
(2) He was guilty of contributory negligence in using the machine.

We will discuss these together. The plaintiff was fully conscious of the danger of erratic motion, and he must have known that it was due to want of power at the machine. If it was negligence on the part of a master to have a machine run under such circumstances, it was also negligent for one to run it, with a knowledge of such danger, and he would be guilty of contributory negligence if he did so, and could not recover. There are doubtless few who have not seen the machinery in a water mill slow down and start up from a varying load. The same thing can be seen when steam power is used, unless the engine is under a governor to keep it steady, and, even where it is, if the load is in excess of the power plant. We understand that a governor was used on defendant’s engine, but the contention of plaintiff’s counsel is that the power plant was inadequate to the maximum load. We have often said that a manufacturer is not required to discard expensive machinery because not up to date. He is at liberty to use it if he can find persons willing to operate it, and in this case, if this plaintiff knew that there was inadequate power and danger therefrom, whatever the cause, he assumed the risk when he used it. Defendant’s counsel insisted that his own testimony shows that he did use it with such knowledge, and allege error on the failure of the trial judge to direct a verdict. His testimony does show that he knew on the 10th that the machine slowed down for want of power, and he stopped using it. He did the same on the 12th. Again on the 13th he found this to be true. There is testimony from which a jury might conclude that he continued to work after such discovery on the 13th, when, if he had stopped, he would not have been hurt, or they might infer that the discovery and the injury were the same instant. Therefore this last question was clearly one for the jury. It is clear, however, that he knew it before that day, and that was notice enough to him, unless ñe had a right to suppose that the difficulty had been corrected. He knew the machine was all right. The foreman assured him that the machine would be all right, i. e., that it would run steadily. Was not this enough to justify a belief that sufficient power was being furnished ? Of course, if he knew of the lack of boiler capacity, no amount of such assurance would excuse him from the assumption of the risk. These were questions for the jury.

In saying this, we eliminate all questions relating to the subject of vice principal. Ordinarily a foreman of a shop is not a vice principal, as we have often said, and there is nothing in this case to indicate that he was charged with the performance of any of the duties of a vice principal. Counsel for the plaintiff make the point that he promised to repair the machine, and said it had been repaired, etc., and apparently claim that this justified plaintiff in going to work, and relieved him from the assumption of risk. We think otherwise. If he did not assume this risk, it was because, from information obtained from whatever source, he honestly believed, and had just reason to believe, that the capacity of the boiler was adequate, and that there would be no repetition of the fault. These things were also for the jury.

In this connection we allude to a question raised upon the charge of the court. Counsel say that the judge confused the jury by commingling his instructions as to assumption of risk and contributory negligence. We have examined this question. Both defenses depend upon the same facts, viz., that plaintiff went to work with the planer in the face of known danger from want of power. If he deliberately chose to do this, it was an assumption of the risk, and, if it was not in that case also contributory negligence, it is difficult to see how defendant was injured by its being called such. If there was any contributory negligence, it consisted in plaintiff’s using the planer with knowledge. This was also an assumption of risk. No injury was suffered from this charge, and in saying this we do not intend to imply any impropriety in the instructions.

The court left the plaintiff’s claim to rest on one point, i. e., that he was not provided with a reasonably safe machine, and there is no indication that he excluded any of the defendant’s defenses. We are constrained to say that the court did err in giving the following request to charge:

“ I charge you, if you believe from the evidence in this case that the plaintiff complained of the defective condition and working of this machine — that is, the machine in question — on which he was injured, and that assurances were made to him that the machine would be so altered that the defect complained of would cease to exist, then the plaintiff had a right to continue to work at the machine a reasonable time after such assurances, without assuming the risk of injury.”

This is so because there is no proof that the foreman was the vice principal. Had the machine been defective, and had it appeared that the foreman was charged with the duty of inspecting and repairing it, he might have charged the master by a promise to repair, and a representation that he had repaired; but the defect was a want of boiler capacity. The foreman may have had the duty as fellow-servant of getting the power from the boiler if it could be done; but there is nothing to show that he had authority to' get a new boiler, or to promise to do so, or that plaintiff either supposed or was told that he could or would. A promise to have sufficient power was merely the promise of a fellow-servant, and a failure to keep the promise was a fellow-servant’s neglect. Shackelton v. Railroad Co., 107 Mich. 16.

The judgment is reversed, and a new trial ordered.

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


text:
    C. H. BARRETT CO. v. AINSWORTH.
    Contracts — Breach—Injunction—Covenant Not to Engage in Competing Business.
    Defendant sold to complainant’s assignor a grain elevator and storehouse, and, as a part of the consideration, agreed not to engage nor become interested in a competing business within a specified territory and for a specified time.. Subsequently he advanced money and indorsed notes for his son and another to enable them to engage in a competing business within the prohibited territory; gave their business the benefit of his experience and advice; and there was testimony tending to show that he actively engaged in buying grain for them. Held, that on such evidence, the court was justified in granting an injunction.

      Appeal from Shiawassee; Wiest, J., presiding.
    Submitted January 18, 1909.
    (Docket No. 94.)
    Decided April 24, 1909.
    Bill by the C. H. Barrett Company to enjoin Hiram N. Ainsworth from engaging in a competing business in violation of a written agreement. From a decree for complainant, defendant appeals.
    Affirmed.

      Kilpatrick & Pierpont, for appellant.

      Chandler & Friegel, for appellee.
   Moore, J.

This is an appeal from a decree enjoining defendant from doing certain things. The following quotations from the decree will indicate some of the questions involved:

“ The court finds that on May 10, 1906, the defendant, Hiram N. Ainsworth, and Clair H. Barrett, the assignor of complainant, entered into a contract, as follows:

1 ‘ ‘ This agreement made this 10th day of May, 1906, between Hiram N. Ainsworth of Owosso, Mich., of the first part, and Clair H. Barrett of Jackson, Mich., of the second part, witnesseth as follows: The said party of the first part, in consideration of the sum of ten thousand dollars to him to be paid by said party of second part as hereinafter stated, truly agrees to grant, bargain, sell, transfer and set over to said party of the second part and to his heirs, representatives and assigns, the frame grain, hay and bean elevator and storehouse with office and all structures used by first party in connection therewith on lots, * * * together with all the machinery, tools and all personal property connected therewith and now in use in and about the grain, hay, and bean business carried on at and on said premises by said first party.
“‘And the said first party for the consideration aforesaid further agrees to assign, transfer and set over to said second party the lease from the Ann Arbor Railroad Company of and t.o the premises above described on which said elevator and elevator business now is situated.
‘ ‘ ‘ That said party of the second part hereby agrees that he will pay said first party for said elevator and all of its belongings above agreed upon and intended to be conveyed by said first party to said second party and the assignment of said lease, the sum of ten thous- and dollars on or before the first day of August, 1906.
“ ‘And the said first party hereby further agrees that upon the receipt of said money or moneys and stock hereinafter mentioned, shall and will assign said lease and make-the necessary conveyance and transfer of said elevator and elevator property to said second party, his heirs or assigns.
“ ‘And it is further agreed that in case said party of the second part shall, on or before said first day of August next, form or cause to be formed a corporation under the laws of the State of Michigan for carrying on the business of buying and selling grain, feed, beans, seeds, hay and so forth, at said elevator and carrying on said elevator business on said premises, said party of the first part agrees to accept the sum of two thousand, five hundred of said ten thousand dollars in the stock of such corporation at par, provided the capital stock of such corporation shall not exceed $15,000.00.
‘“The said party of the first part for and in consideration of said sum of ten thousand dollars, agrees that in case of the payment of the same and the transfer of said property and the good will of said business as above agreed, he will not engage in said business or like business as now carried on by first party in said city of Owosso, nor within twenty miles of said city at any time within the next twenty years, nor become interested in any business of like nature without the written assent of second party. * * *
‘“In witness whereof we have hereunto set our hands and seals, this 10th day of May, 1906.
“‘Hiram N. Ainsworth. [L.]
“‘Clair H. Barrett. [L.]
“‘For a valuable consideration herein acknowledged, I hereby transfer and assign all my interest in the above agreement to the Barrett, Porter Co., its successors and assigns.
“ ‘Clair H. Barrett.’
“And the court finds that the purchase price for said property was fully paid, and that at the time of the filing of the bill of complaint in this cause said agreement was a valid, subsisting agreement, and that such agreement and the benefits to be derived therefrom were duly transferred to and owned by the complainant in this cause, and the court further finds that before the filing of said bill of complaint the defendant had violated said agreement, in that the said Hiram N. Ainsworth had reengaged in like business and had become interested in a business of like nature in the city of Owosso against the legal and equitable rights of complainant as stated in said contract.
“It is therefore ordered, adjudged, and decreed that the defendant, Hiram N. Ainsworth, be and is hereby permanently restrained from being in, or continuing or conducting any business, directly or indirectly, of buying, selling, and shipping grain, hay, straw, beans, feed, flour, and wool, or like business in the city of Owosso, nor within 20 miles thereof at any time within 20 years following May 10, 1906. It is further ordered, adjudged, and decreed that the question of damages for the breach of said contract is hereby reserved from this decree, and the complainant shall have the right to an action at law to recover such damages as complainant may have sustained by reason of such violation of said contract.”

The important question in the case is whether defendant has violated his agreement. He claims that the competing business was that of Clapp & Ainsworth; the last name appearing in said firm name being that of his son. The defendant was a witness in the case. On the cross-examination he testified in part as follows:

“ I am 52 years old. Have been working at the grain business for 30 years. Before I came to Owosso I was in Chesaning, which is about 15 miles from Owosso. After I came to Owosso I think some of the old customers on the dividing line came to Owosso to trade with me. I was in Chesaning two years. I then sold out and moved to Owosso. I was at Flushing before I went to Chesaning. Was there 15 years. Flushing is on the edge of Shiawassee county, and is about 18 to 20 miles from Owosso. I had a fair trade there, from the townships of New Haven and Hazelton in Shiawassee county, and after I moved to Owosso some of those customers on the dividing line came to Owosso to trade with me. I always got my share of the trade and tried to have a good prosperous business, and I think my good will in business was as good as the average dealer. I started in Owosso seven years ago. I was with Mr. Hamner in business something over 2 years. * * * Mr. Hamner and I had $20,000 capital invested in the business. We bought wool, hay, and stuff of that kind. We bought flour in the retail way. When Mr. Hamner went out I bought out what there was. * * *
“ Q. After you started in there, how much capital did you have ?
“A. I had something over $10,000.00, and increased that from time to time until I sold out to Barrett, Porter Company, when I was using in the business from $5,000 to $25,000 according to the season of the year. This was in addition to the buildings and equipment. This was used in buying and selling coal, wood, hay, grain, wheat, beans, and stuff that was handled generally in an elevator, not much barley, some rye, but not much, some flour. After we had run a few years, we put in a small feed grinder and ground our own feed and sold it. All kinds of bran were handled, and generally sold seed of all kinds to the farmers. We bought all kinds of things a farmer had to sell, except potatoes, vegetables, etc. We bought everything in the grain line, and wool, corn, and coal and wood. That was the line of business we were in at the time we sold to Barrett, Porter Company. * * * I finally made up my mind to sell out and quit the business entirely. That was my intention when I sold to Barrett, Porter Company, to turn everything over to them, including the good will of the business, and I reserved no part of the business in any way. He had the business, and he has got it yet for anything that I know of. That business has been continued by the Barrett, Porter Company and the C. H. Barrett Company so far as I know. * * *
“ Q. When was it you were reminded to help your son go into business ? I see those deeds are dated the 26th of September ?
“A. Well, it was along the 10th or 15th of September, some time in the month of September, I would not say the dates. My son was in Chicago, and he wanted to go into business, and come home in the summer of 1907.
“Q. What were the steps you took to assist your son first? What did you do?
“A. Why, he and Clapp wanted to buy that mill property, and I proposed to let him have $1,500 to start it, and I would indorse their paper for what they wanted to use. By the mill property I mean the mill, elevator, and cooper shop — what was there. There had been a mill and elevator there ever since I had been in town and before.
“Q. Then at that time, in order to help your son and Clapp in that business, as you claim, you put in somewhere about $7,500, did you not ?
“A. No, sir.
“Q. You claim you gave $1,500 of it to your son ?
“A. He put that in, that $1,500 I gave him.
“Q. But it came from you as you understood it ?
“A. Yes, sir.
(iQ. Your son had no money ?
“A. He had no money. I gave this $1,500 right out.
“Q. You understood what he was to do with it at the time you turned it over to him ?
“A. Yes, sir.
“Q. Yes. You gave that, and then you put in this other money for the purpose of starting this business ?
“A. Didn’t put in any other money.
“Q. You put in your credit, didn’t you ?
“A. I indorsed a note with these parties.
“Q. Did you or did you not put in your credit for the purpose of starting this business ?
“A. You may call it credit or what you wish; I indorsed a paper.
“Q. Was it for the purpose of starting this business ?
“A. Yes, sir; it was to be used in that business.
“Q. That was planned out between you and your son and Clapp, that you should do it that way, was it ?
“A. That was the way it was agreed. .
“Q. You understood at that time, did you not, that without you did put that amount into it and be the bottom and backing of it that that business would not start in that name of Clapp & Ainsworth, didn’t you ?
“A. I don’t think it could. * * *
“Q. From the time you-put that money in there until the present time, you have been practically the sole backing and financial part of that concern, have you not ?
“A. I have backed them for what money they wanted to use. I think I have. * * *
“Q. It was your credit, and the $1,500 that you furnished and the thousand that Clapp furnished, that has carried on that business and run that business from the time the deed was made to the present time ?
“A. That is what has run it; yes, sir. * * *
“Q. Have you told now all that you did to help your son, Harry, besides furnishing him the capital to run the business ?
“A. That is the only thing that I think of.
“Q. Did you give him your counsel, the benefit of your experience in the business ?
“A. If he asked me for it, I did.
f‘Q. Did you?
“A. Occasionally he has asked me about things. I have told him what I thought of it.
“Q. How long a time has that conduct on your part continued, giving him the benefit of your experience, and counsel in the business ?
“A. Since he has been in the business.
“Q. What.?-
“A. Since he started.
“Q. Ever since he started in business?
“A. Yes, sir.
“Q. Have you explained to him about buying, how to buy stuff ?
“A. I have; yes, sir. I told him how to buy. I have not kept him posted on prices. He understands that himself. He had some experience with me, but not a great deal, before I sold out.
t(Q. He had neither money nor experience when he went into the business there ?
“A. The only experience he had was with me in the business.
“Q. You supplied him with both, as far as you thought he needed it, did you ?
11 A. Yes. I could have supplied him with more.
Q. How much money did you put into the common fund there in the manner which you explained to Mr. Kilpatrick ?
“A. I didn’t put any into the common fund.
“Q. Well, in your account in the business?
“A. Sometimes I would have a hundred, sometimes I would have a thousand, sometimes more, sometimes less.
“Q. About how touch of the time did you have a thous- and to your account there ?
“A. I couldn’t say.
“Q. When you had a thousand to your account there, do you know whether or not that was used in the business of buying and selling, the same as the other ?
“A. I expect it was. I don’t know what they did with their money when I put it in.
“Q. Was that your understanding that was the way it was done?
‘‘A. Yes. * * *
“Q. Witness, you said something about advising Clapp & Ainsworth in regard to the board of trade deal. Did they follow your advice ?
“A. They did.
“Q. In such matters when you told them ?
“A. Sometimes.
liQ. Did they usually ?
“A. They did in that ease.
“Q. Well, didn’t they, considering the fact of your experience with markets and with quality of goods and seasons and the country trade, do you not think they generally accepted your judgment ?
“A. I think they did. * * *
“Q. That was the horse you claim was the delivery horse ?
“A. Yes, sir. At the time the business started up they commenced hiring a delivery horse down there. I said to them one day: ‘ I have a horse up there in the barn,
if you can use him in the business, you can do so, if you want to furnish oats and bedding for him.’ They said, ‘All right,’ they would be glad to do so. * * *
“Q. Was there some misunderstanding at the time Mr. Clapp quit, between you and he ?
“A. There was no misunderstanding. I did not think he did right in taking the books and money, and he told me it was nothing to me, as I was not interested there; but I told him as long as I was indorser on their paper I had some interest in the way things were run. After Clapp drew his thousand dollars out, no one had anything in there except my son, and the money borrowed at the bank. * * *
“Q. After Clapp drew out his $800 to $1,000 that was there, there was nobody had any interest in it but you, except the money which you said that you let your son have, isn’t that right ?
“A. Why, they had money they were using that they got from the bank.
“Q. Well, any other money than what has been spoken of, upon your indorsement ?
“A. Not that I know of.
“Q. When Clapp drew his $1,000 out, who had any money in there except what you had enabled them to get on your indorsement or put in there, as you have stated ?
“A. Nobody that I know of.”

There was a good deal of testimony that defendant had been on the street buying grain for the competing business. This testimony, which it is not necessary to recite in detail, taken in connection with the cross-examination of defendant, shows very clearly that the conclusion of the circuit judge that defendant had violated his agreement is justified. He should be enjoined under the following authorities: Timmerman v. Dever, 52 Mich. 34; Reber v. Pearson, 155 Mich. 593, and the authorities cited therein.

The other questions argued by counsel have been considered, but we do not deem it necessary to discuss them.

The decree is affirmed, with costs.

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


author: McAlvay, J.

text:
    BREVOORT v. PARTRIDGE.
    Compromise and Settlement — Conoltjsiveness.
    A contract whereby the parties agree that it is made "in full settlement of all matters between them ” is conclusive of all claims existing prior to such agreement, in the absence of any showing of fraud, concealment or mutual mistake.
    Error to Wayne; Donovan, J.
    Submitted January 19, 1909.
    ( Docket No. 102.)
    Decided April 24, 1909.
    Assumpsit by Henry N. Brevoort against Charlton E. Partridge for money had and received. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Moore & Moore, for appellant.

      Stellwagen & MacKay, for appellee.
   McAlvay, J.

The plaintiff sued the defendant upon the common counts, filing a bill of particulars. The plea was the general issue, with notice of tender. Plaintiff’s testimony tended to show that he had been in partnership with defendant’s father in the fire insurance business. On July 1, 1901, defendant’s father died. On July 5, 1901, defendant offered to and did collect for the plaintiff certain renewal premiums on policies about to expire, and he continued to collect these renewal premiums until August 20, 1902. The business was transacted through the plaintiff’s office, and the books containing the record of the transactions were kept in plaintiff’s office. During the period between July 5, 1901, and August 20, 1902, defendant, instead of receiving the money for all renewals delivered by him, and for which he accounted, seems to have permitted the insured to pay for the insurance by contra account; some of them against his deceased father, and some against his mother, for current supplies during that year. This he claims to have done with the knowledge and consent of the plaintiff. On September 7, 1902, a contract was entered into between plaintiff and defendant, by the terms of which the defendant agreed to continue to solicit insurance for the plaintiff until his commissions reached the sum of $2,000, which sum was to be used towards reducing the indebtedness of his father to the plaintiff herein. This he undertook to do voluntarily, inasmuch as he was not responsible for his father’s indebtedness, and the contract so recites. The closing paragraphs of the contract are as follows:

“The said party of the first part hereby agrees to pay to the said party of the second part the regular commission allowed agents by board officers on all business that he, the said party of the second part, shall bring into the office of the said party of the first part, and the said party of the first part further agrees that he will apply all commissions earned by him on business turned into his office by the said party of the second part towards the reducing of said indebtedness hereinbefore referred to, and shall permit the said party of the second part to have access to his books for the purpose of ascertaining when said $2,000 has been earned; and in this connection it is agreed between the parties hereto that no contra accounts shall be accepted by the said party of the second part in payment of any premiums.
“It is further agreed between the parties hereto, that this contract is made between the parties hereto in full settlement of all matters between them.”

This contract was drawn by Ralph B. Wilkinson, an attorney, was fully discussed between plaintiff and defendant, after having been in the plaintiff’s possession for a day or two, and was finally executed by the parties after a long conference regarding its terms. It is the claim of the plaintiff that, although he had in his possession the books relating to the business, an examination of which would have disclosed the fact that the defendant had settled various insurance premiums by contra accounts against his father’s estate, or his mother, he did not make such examination, and at the time of the execution of the contract was not aware that such allowances had been made by the defendant. . Plaintiff, therefore, claims that he should have been permitted to go to the jury upon the question of fact raised by the defendant’s denial of his assertion.

The circuit judge was of the opinion that the contract of September 7, 1902, in part above quoted, was a binding settlement as to all matters between the parties up to that date, and submitted to the jury the question of the balance of plaintiff’s claim. In this ruling we are of the opinion that the circuit judge was correct. The plaintiff makes no claim of fraud or concealment on the part of the defendant, but rests his right to go to the jury solely upon , his statement that, although he had the means under his hand to determine accurately the condition of the account between himself and the defendant, instead of availing himself of those means, he chose to execute the contract of settlement in ignorance of the facts. The contract was not executed hurriedly, but after full discussion, and the lapse of a day or two after it came into plaintiff’s possession. This is not a case of mutual mistake. Under these circumstances, we cannot say that the mistake on the part of the plaintiff in its execution is such an one as will permit him to avoid its binding effect upon him three years after it became operative. Lauzon v. Belleheumer, 108 Mich. 444. See, also, Pratt v. Castle, 91 Mich. 484, 487; 8 Cyc. p. 524, and cases there cited.

Judgment affirmed.

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


author: Brooke, J.

text:
    GOW v. McFAEREN.

    Taxation — Sale—Passing of Title.
    Where, in a contract for the sale of certain logs, payment is to be made on delivery f. o. b. oars at places stated, the title does not pass so as to make the buyer liable for an assessment for taxes until the delivery of the logs according to the terms of the contract.
    Error to Kalkaska; Chittenden, J.
    Submitted January 19,1909.
    (Docket No. 121.)
    Decided April 24,1909.
    Replevin by James Grow and John Campbell, copartners as Gow & Campbell, against J. Marvin McFarren. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      William Carpenter and J. L. Boyd, for appellants.

      Ernest C. Smith, for appellee.
    This is an action of replevin brought by the plaintiffs, a copartnership, with residence, office, and place of business at Muskegon, Mich., against the defendant as township treasurer of the town of Clearwater in Kalkaska county, Mich. The plaintiffs were engaged in buying logs from the various settlers, and other persons having them for sale, in the town of Clearwater in the years 1905 and 1907. Two of the contracts under which the logs were purchased were in writing and were as follows:
    “This agreement, made this 20th day of November, A. D. 1906, by and between James G. Getty of Barker Creek, Mich., of the first part, and James Gow and John Campbell, a copartnership under the name of Gow and Campbell, of Muskegon, Mich., of the second part,
    “Witnesseth, the said party of the first part covenants and agrees to and with the party of the second part in consideration of two hundred dollars ($200) this day advanced to said first party by said second party to purchase the land described as the northeast quarter of the northwest quarter of section thirty-three (33), town twenty-eight (28) north, of range eight (8) west, to deliver all the timber on the above-described lands, of the following kinds, and at Clay, on the P. M. R. R., f. o. b. cars, as hereinafter stated, to wit: The, dead hemlock at $8.00 per thousand feet, cedar at $9.00 per thousand feet, maple at market price per thousand feet, beech at market price per thousand feet, ash at $11.00 per thousand feet, basswood at $15.00 per thousand feet, birch at $9.60 per thousand feet, on or before April 1, 1907, and live hemlock at $10.00 per thous- and on or before June 15, 1907. Cars to be furnished by first party and logs to be scaled at reasonable intervals. The loading conditioned on ability to get cars. Payment to be made as follows: $3 per M. ón skids and balance, after reserving the $200 advanced and $1.50 for loading on'cars, when logs are on the banking ground.
    “ It is mutually agreed that said deed shall be deposited with Wayne Simmons, to be delivered to said first party ■on delivery of timber as above described.
    “And the said party of the second part covenants and agrees to pay unto the said party of the first part, for the same, the above schedule of prices in dollars, lawful money of the United States, as follows: When delivered on board of cars reserving therefrom the said $200 heretofore advanced.
    “J. G. Getty. [Seal.]
    “Gow & Campbell,
    “By C. E. Johnson, Agt. [Seal.]”

      “Muskegon, Mich., July 2, 1906.
    “I, the undersigned, have today received one hundred and fifty dollars from Gow So Campbell to apply on about ninety thousand feet logs, 50,000 feet hemlock, 40,000 feet hardwood, to be delivered f. o. b. cars at Barnes Siding, P. M. R. R., the coming winter season by April first, 1907. The timber is now standing in its natural state of condition on the N. E. J of N. E. i, .Sec. 36, 38-8 Clear-water township. Logs to be scaled in wood when cut and sided. The market price to be paid for logs when scaled and delivered on cars. One-half of the price per M feet to be paid when the logs are cut and sided and scaled, less the amount advanced, above mentioned.
    “Simeon Wat.”
    It was testified to on behalf of the plaintiffs, and not denied by the defendant, that all the other logs assessed were purchased by the plaintiff’s agent by oral agreement, upon terms similar to those of the Getty contract. Some of these logs being piled along the railroad track in 1905 and 1907, the supervisor assessed them to Gow So Campbell. The taxes not having been paid, the township treasurer made a levy on the plaintiff’s logs in Kalkaska county in April, 1908. The plaintiffs, claiming that there was no lawful authority for the 1905 and 1907 assessments, replevined the logs.

       Rehearing denied May 25, 1909.

   Brooke, J.

(after stating the facts). It is the plaintiffs’ claim that, the logs in question, assessed to them in 1905 and 1907, having been purchased by them from the original owners to be delivered f. o. b. cars at the various sidings, title did not pass to the plaintiffs until such delivery, and that therefore the directed verdict against them should be reversed. The question involved in this case was fully considered in the case of Grand Rapids Bark & Lumber Co. v. Township of Inland, 136 Mich. 131. In that case this court said: mained to ascertain the quantity and quality, and the presumption that the intention was not to pass title remains. Lingham v. Eggleston, 27 Mich. 324; Wagar v. Farrin, 71 Mich. 370; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299 (55 L. R. A. 301).”

“Did the title pass to the plaintiff at any time before delivery on the cars? As to the lumber manufactured from logs cut from Anderson’s own lands, we think it is clear that the title did not pass. As to this lumber, it re-

It is quite clear that the title to the logs assessed did not pass to the plaintiffs until their delivery f. o. b. cars according to the terms of the contract. Under the testimony disclosed by the record the plaintiffs were entitled to a directed verdict.

Judgment reversed, with costs of both courts, and a new trial ordered.

Grant, Montgomery, Hooker, and Moore, JJ., concurred. •