text:
    WINES v. CROSBY & CO.
    1. Corporations — Negligence — Liability of Oeeioers and Directors — Sales—Explosive Compound.
    The president of a manufacturing corporation who actively-participated in the manufacture and sale of a stove polish containing a large per cent, of naphtha, who knew the contents of the product and took no precautions to notify purchasers of its explosive character, is liable to a purchaser injured by such negligence.

      2. Same — Evidence—Joint Dependants.
    The evidence, having a tendency to show that defendant corporation manufactured the compound, warranted a verdict against it and the president jointly.
    3. Same — New Trial.
    A new trial was properly denied by the trial court.
    Error to Wayne; Rohnert, J.
    Submitted January 26, 1912.
    (Docket No. 33.)
    Decided March 12, 1912.
    Case by Julia Wines against Crosby & Company, SixEive-Eour Manufacturing Company, and Charles E. Crosby for personal injuries. Judgment for plaintiff. On motion for a new trial, the verdict was set aside, and the motion granted as to the Six-Five-Four Manufacturing Company, and denied as to the other defendants, who bring error.
    Affirmed.

      Edwin Henderson and Alex J. Gfroesbeek, for appellants.

      James H. Pound, for appellee.

       Personal liability of officers for torts or negligence of corporation, see note in 28 L. R. A. 421.

   Stone, J.

The plaintiff, a married woman, 28 years old at the time of the injury herein complained of, brought this action against Charles F. Crosby, Crosby & Co., and the 6-5-4 Manufacturing Company, the last two named defendants being corporations, to recover damages for a personal injury received by her on June 15,1907, through a severe burning, occasioned by the alleged inflammable nature of a compound, or stove polish, known as “ 6-5-4, Self Shining Lusta,” that she was using to polish a Peninsular coal range. It was the claim of the plaintiff that the article in question was manufactured and sold by the two corporations named as defendants, and that the business was managed and controlled by the defendant. Charles F. Crosby, as an officer of said companies.

No question is raised in the case as to the sufficiency of the declaration, and it may be said that the alleged duties of the defendants are substantially as stated in the case of Clement v. Crosby & Co., 148 Mich. 293 (111 N. W. 745, 10 L. R. A. [N. S.] 588, 12 Am. & Eng. Ann. Cas. 265), and 157 Mich. 643 (122 N. W. 263).

Upon the trial the testimony on behalf of the plaintiff tended to show that the composition known as “ 6-5-4” consisted of 75 per cent, or a little more of naphtha, and that it was a highly inflammable substance, and dangerous to be used by persons ignorant of its ingredients. The plaintiff testified that she purchased from a grocer the can of “6-5-4” a few days before the injury, that this was the first can she had ever used, and that she read the directions carefully. Among the directions were these words: “ 6-5-4 will burn when brought into contact with flame.” Plaintiff further testified that when she started to polish the stove, about 11 o’clock a. m., she noticed that it was a trifle warm over the fire box; that she had been burning soft coal or coke, she did not remember which; that the back griddles and middle griddles were cold; that she put her hand on the griddle over the fire box, and that it did not burn her hand, but was warm; and that she applied the preparation with a cotton rag, which absorbed the liquid more or less. The directions were: “Use 5 cent flat bristle brush.” The plaintiff further testified that she covered the entire top of the stove, including the griddles over the fire box, and nothing happened; that the fire box was getting cooler; that she noticed a place near the stovepipe which did not suit her, and which she had skipped; that the stovepipe was in the middle of the stove, back of the two central griddles, and was not over the fire pot; that she had the can in her left hand and the rag in her right, and dipped the rag into the can to apply some of the preparation; that, as she was leaning over, some of the preparation dropped on the stove, on the griddle over the fire box, and immediately ignited, and she was very severely burned, resulting in the loss of the fingers upon one hand, and the use of the other hand. That the plaintiff has sustained severe and permanent injuries is not questioned.

We shall not quote the testimony in extenso, but it is sufficient to say that there was evidence tending to show that the defendant Crosby & Co. was the manufacturer of said “6-5-4” from 1905 down to the time of the injury complained of, and that during all of that time the defendant Charles F. Crosby had been the president of the company, and that the manufacture and sale of the article in question were under his immediate supervision, and that he knew the constituent parts of said compound and had personally made sales of the same while he was an officer of said corporation.

The defendants offered no testimony, but at the close of the plaintiff’s case the defendant Charles F. Crosby requested the court to direct a verdict in his favor for the following reasons:

“ (1) Because there is no proof in the case of any negligence on his part.
“(2) Because the compound in question was sold by Crosby & Co., a Michigan corporation, or by the 6-5-4 Manufacturing Co., and that said corporations are legal entities and responsible in law for their actions.
“(3) Because the stockholders of a corporation are not in any way responsible for the torts of the corporation.
“(4) Because the allegations of negligence contained in the declaration as to the defendant Charles F. Crosby are not supported by any evidence in the case.
“ (5) Because there is no evidence in the case that would warrant a jury in finding that Charles F. Crosby, having actual knowledge of the defects in the product of the Crosby & Co., wilfully and fraudulently placed the same on the market.
(6) Because there is no evidence supporting the theory of the plaintiff to the effect that there was any spontaneous combustion or explosion which resulted in the damage to the plaintiff as claimed by the declaration.
‘ ‘ (7) Because there are no contractual relations between the defendant Charles F. Crosby and the plaintiff, or between Charles F. Crosby and any of the parties through whom said compound was sold.”

The defendants Crosby & Co. and the 6-5-4 Manufacturing Company requested the direction of a verdict in their favor for the following reasons:

“(1) Because the allegations of negligence contained in the declaration are not supported by any evidence in the case.
“ (3) Because there is no evidence in the case that the compound in question, through the use of which the plaintiff claims she was injured, was at any time sold or manufactured by the defendants.
“(3) Because there is no evidence in the case that would warrant the jury in finding that Crosby & Co., having actual knowledge of the defects in their products, wilfully or fraudulently placed the same on the market.
“(4) Because there is no evidence in the case that the composition known as 6-5-4 ’ is per se dangerous to human life.
“ (5) Because there was no evidence supporting the theory of the plaintiff to the effect that there was any spontaneous combustion or explosion which resulted in the damage to the plaintiff as claimed by the declaration.
“ (6) Because all the proof in the case shows that the compound in question could not ignite except when brought in contact with a flame or that which amounted to a white heat, and that plaintiff testified that there was no such flame or heat present.”

These requests or motions were refused, and the case was submitted to the jury under the charge of the court, and the jury returned a verdict for the plaintiff against all of the defendants in the sum of $12,000. A motion for a new trial was made by the defendants, which was granted as to the defendant the 6-5-4 Manufacturing Company, and denied as to the defendants Crosby & Co. and Charles F. Crosby. The last-named defendants duly excepted to the reasons denying said motion, and they have brought the case here on writ of error.

There are 22 assignments of error, but counsel for appellants have only argued and called attention to the eleventh, twelfth, and twenty-second.

The eleventh assignment of error is to the effect that the court erred in refusing to direct a verdict for defendant Charles F. Crosby for the reasons set forth in his motion to direct a verdict. Appellants’ counsel state the rule to be that “an officer or director of a corporation is not liable for its torts, unless he has participated therein.” They cite in support of this doctrine 21 Am. & Eng. Enc. Law (2d Ed.), p. 880, and cases there cited. We think that the rule of law stated is correct, but it is also true that the converse of the proposition is the law where there has been such participation.

Upon this branch of the case the trial court charged the jury as follows:

“You can only find against Mr. Crosby if it appears and you find it is a fact that he had knowledge of the dangerous character of this compound, and that he was actively promoting the manufacture and sale of this compound, as an officer with authority in the corporation. If you find that he was not actively promoting the manufacture and sale of this compound, knowing it to be dangerous, as an officer of the corporation, you cannot find against him.”

We think that the learned circuit judge stated the rule correctly, and that he did not err in refusing to direct a verdict for said defendant. We are of opinion that there was sufficient evidence upon this point, as to this defendant, to carry the case to the jury. The following cases

are in point here: Favorite v. Cottrill, 62 Mo. App. 119. In this suit plaintiff sued the defendants for the destruction of his business as bill poster in the city of St. Louis. The defendant corporation was engaged in the same business, and its codefendant was its president and general manager. As to joint liability, the court said:

“The English rule, as declared by Lord Holt in the case of Lane v. Cotton, 12 Mod. 488, is that, for the neglect of the servant, third persons can have no remedy against him, but that the master alone is chargeable; but for a misfeasance or actual tort an action will lie against the servant because he is a wrongdoer. The general principle is that those who participate in the commission of a trespass by counseling, aiding, or abetting it, are equally liable with the person who actually committed it.”

The doctrine of this case seems to be that, when a trespass or tort has been committed by a corporation, both the corporation and the agent under whose direction it acted are jointly liable therefor. Peck v. Cooper, 112 Ill. 192 (54 Am. Rep. 231). This action was brought to recover for damages claimed to have been sustained by plaintiff by being forcibly ejected from an omnibus controlled and operated by the defendant. The court said:

“The fact that appellant was the president of the corporation is no protection to him in the commission of an illegal act, and, where an officer of an incorporation performs an illegal act resulting in an injury to another, he is liable. Nor does it exonerate him from such liability because the corporation may also be liable.”

Cameron v. Commercial Co., 22 Mont. 312 (56 Pac. 358, 44 L. R. A. 508, 74 Am. St. Rep. 602). This case goes to the extent of holding that the directors of a corporation are personally liable for the death of one killed by an explosion of powder unlawfully kept in the corporation’s warehouse, though they had no knowledge thereof, for, by exercising ordinary diligence as directors, they could have known that the warehouse contained an unlawful amount. This action was brought jointly against the company and the directors. Nunnelly v. Iron Co., 94 Tenn. 397 (29 S. W. 361, 28 L. R. A. 421); Davenport v. Newton, 71 Vt, 11 (42 Atl. 1087). In this case the doctrine is stated that, to make a director of a corporation personally liable for its torts, he must have done something through his acts also. The mere fact that he is one of the board of directors is not sufficient. Referring to Nunnelly v. Iron Co., supra, the court said:

“ The only question of which there can be any serious doubt in this class of cases is whether the officer or agent has participated in the wrong so that it may be justly regarded as his act; that if he has, his liability is indisputable.”

See Hewett v. Swift, 3 Allen (Mass.), 420. In Fanning v. Osborne, 102 N. Y. 441 (7 N. E. 307), action was brought against D. M. Osborne & Co., a corporation, and David M. Osborne, its president. The court said;

“ It appears that Mr. Osborne was president of the corporation, but it is not known that he advised or approved, either in his individual capacity or as trustee, of the acts of the corporation. The point that he was not shown to have personally intermeddled in the matter was specifically taken, and, upon the case as presented, we think the judgment against him individually is erroneous.”

Westervelt v. Demarest, 46 N. J. Law, 37 (50 Am. Rep. 400). This case holds that the publication by savings bank directors that “directors and stockholders are personally responsible for its debts,” if the statement is false, lays foundation for an action for deceit against the persons making the representations. Montfort v. Hughes, 3 E. D. Smith (N. Y.), 591; Phelps v. Wait, 30 N. Y. 78; Suydam v. Moore, 8 Barb. (N. Y.) 358; Bell v. Josselyn, 3 Gray (Mass.), 309 (63 Am. Dec. 741); Greenberg v. Lumber Co., 90 Wis. 225 (63 N. W. 93, 28 L. R. A. 439, 48 Am. St. Rep. 911); 10 Cyc. pp. 824, 920, 933.

The twelfth assignment of error is to the point that the court erred in refusing to direct a verdict for defendant Crosby & Co. for the reasons set forth in its motion to direct a verdict. The argument in support of this assignment of error is to the effect that the testimony absolutely failed to show that the compound sold to plaintiff as claimed was manufactured by the defendant Crosby & Co. We cannot agree with this contention, and we have already referred to the testimony tending to show such fact. We are of opinion that there was sufficient evidence upon this point to carry the case to the jury.

The twenty-second assignment of error is that the court erred in refusing to grant the defendants Crosby and Crosby & Co. a new trial for the reasons set forth in their motion for a new trial. The argument in support of this assignment of error is that the verdict against Charles F. Crosby was clearly against the weight of evidence. Counsel find no fault with the charge of the court upon that subject, but quote from it with approval, claiming, however, that there was no testimony to support a verdict as to said defendant. We do not agree with counsel in this claim, as already peinted out. The general doctrine as to liability of the manufacturers in cases of this nature is discussed in Clement v. Crosby & Co., supra, and we need not repeat it here.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    DURYEA v. EDINGER.
    1. Drains — Equity Jurisdiction — Parties—Injunction—Waters and Watercourses.
    As against proceedings for the construction of a drain which would result in casting a large quantity of water on lands of complainant who was not a party thereto, without providing any adequate means of outlet, an injunction was properly granted until sufficient means to caryy off the water were provided.
    3. Same— Equity— Certiorari— Adequate Remedy at Law— Statutes.
    Under 2 Comp. Laws, g 4846, as amended by Act No. 272, Pub. Acts 1899, parties to proceedings by a drain commissioner have an adequate remedy by appeal to the board of review and certiorari to the circuit court, and cannot enjoin the proceedings in equity.

    Appeal from Hillsdale; Chester, J.
    Submitted January 29, 1912.
    (Docket No. 114.)
    Decided March 12, 1912.
    Bill by Theron Duryea and others against Joseph H. Edinger, drain commissioner, and others, for an injunction against the construction of a drain. From a decree for complainant Louisa Reynolds, but dismissing the bill as to the other complainants, they all appeal.
    Affirmed.

      F. A. Lyon, for appellants.

      Paul W. Chase, Prosecuting Attorney, and C. A. Shepard (B. E. Sheldon, of counsel), for appellees.

       Liability of counties for injury to real property from drains, see note in 39 L. R. A. 69.
      Duty and liability of municipality as to drainage, see note in 61 L. R. A. 673.

   Stone, J.

This case was commenced in the circuit court for the county of Hillsdale, in chancery, by complainants, asking for an injunction to restrain the defendant Edinger, both individually and as drain commissioner, and other defendants as contractors, from constructing a proposed tile drain in accordance with certain plans and specifications adopted by said drain commissioner.

Upon the issue formed by the pleadings, testimony was taken in open court before the circuit judge, and a decree was entered, finding all the material facts alleged in the complainants’ bill of complaint true, in so far as they applied to complainant Louisa Reynolds, but finding, as to complainants Theron Duryea and Augusta Murdock, that they had not been established. A decree was therefore entered in favor of the complainant Louisa Reynolds, enjoining the defendants from constructing this drain—

“ Until they shall have fully constructed and completed, in good, legal, and substantial manner, a good and sufficient outlet over and across the lands of the said Louisa Reynolds, described in said bill of complaint, sufficient in all respects to conduct the waters from said proposed drain over and across said lands, without the same in anywise spreading or overflowing the said lands, or any part or parcel thereof, and so that the same will in no wise damage the said Louisa Reynolds, and that in determining the sufficiency of said outlet the same shall be reported to this court with good and sufficient proofs of such sufficiency, or by the written acceptance thereof by and from said Louisa Reynolds before said defendant shall be authorized to commence work upon the drain in question in this cause.”

This decree also dismissed the bill of complaint as to the complainants Theron Duryea and Augusta Murdock, with costs in favor of the defendants. Prom this decree, all the complainants have joined in an appeal to this court. The complainants claim:

First. That, by the construction of the proposed drain in accordance with the plans and specifications, a large amount of country will be drained over and across the lands of said complainants Theron Duryea and Augusta Murdock and others, and emptied upon the lands of complainant Louisa Reynolds, which never should have gone in that direction, and which by nature do not belong there, and that, too, without providing any outlet or means of escape for these waters, leaving them to spread over and upon the lands of Mrs. Reynolds, to her irreparable damage.
Second. That by the construction of the proposed drain in accordance with the plans and specifications, placing a continuous tile from a certain water hole on the premises of one Jacob Woods at the extreme north end of said drain, through, over, and across these lands, and covering it up to the depth which is proposed with clay and hardpan, will form a compact and effectual dam or barrier to the waters flowing from the surrounding country in and upon the lands of complainants Theron Duryea, Augusta Murdock, and others, and thus and thereby prevent such waters from flowing off through this drain as they had been in the habit of doing for many years.
Third. That in order to properly construct such tile drain so as not to dam the waters and hold them upon the lands of complainants Duryea and Murdock, it would be necessary to put in a larger tile through a certain high embankment on the southerly part of the farm of complainant Duryea, and, across the lowland, to put in silt basins or openings to conduct these waters directly into this tile, and that without such silt basins or openings these waters would of necessity be held upon these lowlands for a long space of time, and only be conducted away by seeping through this hard plastic clay or soil, or evaporating by the sun’s rays, which in either case would take a long space of time and greatly injure complainants’ land.
Fourth. That the inevitable result of the construction of this drain in accordance with the plans and specifications would be to flood the lands of (a) complainant Louisa Reynolds and (b) to hold the waters and set them back upon the lands of the other complainants, and thereby flood these lands; in either case, taking private property for public purposes without due process of law, and without just compensation.

This record fails to set forth fully the proceedings that led up to the institution of this suit. It does appear, however, that certain proceedings were had in the probate court. The complainants offered in evidence certain files produced, being the oath of the special commissioners, notice by drain commissioner to special commissioners, the order'of the probate court establishing, etc., the order of the probate court appointing the time and place for meeting of special commissioners, the order of the probate court appointing day for hearing upon application for appointment of special commissioners, citation of the probate court to be served upon resident owners of land, affidavit of posting notices, proof of notice of letting drain contract, proof of service of notice of drain contract upon Augusta Murdock and Theron Duryea and others.

There was also offered in evidence the apportionment of benefits by the drain commissioner, the petition in the matter of establishing and locating this drain, the special drain assessment roll, marked “Filed the 3rd day of March, 1910also the final order of determination and certain releases of right of way, not including any of the complainants.

The proceedings in this drain matter seem to have progressed to the letting of the contracts for the constructing of the drain. No part of the drain has been constructed. No notices were served upon the complainant Mrs. Reynolds.

So far as this record shows, the proceedings leading up to the establishment of this drain are complete and regular in every particular, and complainants, with the exception of Louisa Reynolds, had full and legal notice thereof at every step. It is very evident that the defendants should not be permitted to construct this new drain in accordance with the plans and specifications, thereby casting upon the lands of Mrs. Reynolds a largely increased flow of water, without providing her an adequate outlet and means of escape of such water, without damage to her farm. The circuit court seems to have reached this conclusion, and has so decreed, as we have above shown; and none of the defendants having appealed, that decree stands in full force as to her. She was not a party to this drain proceeding, nor did the drain traverse her land, but left the waters where it would overflow it; and it is very clear that the decree of the circuit court as to her was in accordance with the holdings of this court. Bruggink v. Thomas, 125 Mich. 9 (83 N. W. 1019); Smafield v. Smith, 153 Mich. 270 (116 N. W. 990); Harris v. Boutwell, 156 Mich. 455 (122 N. W. 179). She, having been fully protected by the decree of the circuit court, has no equitable standing in this court as an appellant.

As to the other complainants, the circuit judge seems to have listened to the testimony, and upon the merits of the case dismissed the bill as to them. In our opinion, the trial court might well have dismissed the case upon the ground that the questions involved had been fully passed upon by the statutory tribunal — the special commissioners. See Act No. 272, Pub. Acts 1899, §§ 3 and 5, providing for an appeal and board of review, and containing the language:

“ The action and decision of said board shall be final.”

And see, also, the provision for review by certiorari. It must be held that the other complainants, not having invoked the statute, are in no condition to complain in this court. They were parties to the drain proceeding; and, the proposed drain crossing their lands, they should have availed themselves of the statutory remedy, and we think the trial court properly dismissed the bill as to them, with costs to the defendants.

The statute already referred to provides, that:

*'If no certiorari be brought within the time herein prescribed, the drain shall be deemed to be legally established, and its legality shall not thereafter be questioned in any suit at law or equity.” Act No. 272, Pub. Acts 1899, amending 2 Comp. Laws, § 4346, etc.

See the following decisions of this court, bearing upon this subject: Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Township of Swan Creek v. Brown, 130 Mich. 382 (90 N. W. 38); Wilson v. Woolman, 133 Mich. 350 (94 N. W. 1076); Strack v. Miller, 134 Mich. 311 (96 N. W. 452); Horn v. Livingston County Supervisors, 135 Mich. 553 (98 N. W. 256); Crandall v. McElheny, 146 Mich. 191 (109 N. W. 261); Township of Clinton v. Teachout, 150 Mich. 124 (111 N. W. 1052); Jones v. Gable, 150 Mich. 30 (113 N. W. 577); Grandchamp v. McCormick, 150 Mich. 232 (114 N. W. 80).

The decree of the circuit court is, in all things, affirmed, and the defendants will recover their costs in this court against all of the complainants.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Blair, J.

text:
    WAYLAND CREAMERY CO. v. DEAN.
    1. Easements — Drains—Cesspool—Nuisance.
    Clauses contained in a deed of land to complainant giving the right to construct sewers and drains required to carry off waste product from complainant’s creamery and to enter upon defendant’s land for such purpose and to keep the same in repair, construed with a subsequent quitclaim deed granting to complainant the right to construct “cisterns, reservoirs, cesspools or any other receptacle, above or below the ground for the purpose of storing and disposing of all whey, refuse, waste materials,” etc., do not authorize the discharge of refuse on the surface of the ground, creating a menace to health and a public nuisance.
    3. Pleading — Equity—Cross-Bill.
    Defendant’s cross-bill, specifically praying only for relief to which he was not entitled under the evidence, should have been dismissed without granting an injunction.

      Appeal from Allegan; Padgham, J.
    Submitted January 30, 1912.
    (Docket No. 137.)
    Decided March 12, 1912.
    Bill by the Wayland Creamery Company against Calvin Dean for an injunction and the construction of certain deeds granting complainant rights of easement. From a decree for defendant granting relief upon his cross-bill, complainant appeals.
    Modified and affirmed.

      Smedley, Linsey & Lillie, for complainant.

      John B. Stockdale (Chas. Thew, of counsel), for defendant.
   Blair, J.

On the 29th day of March, 1899, Joseph Burlingame (being the owner of the N. E. ^ of section 6, Wayland township, Allegan county), and Laura, his wife, conveyed to complainant by warranty deed—

“All that certain piece or parcel of land situate and being in the village of Wayland, county of Allegan, and State of Michigan, and described as follows, to wit: Commencing at a point in the center of Elm street, forty (40) rods west of the center of North Main street, said village and township of Wayland. Running thence north ten (10) rods, thence west ten (10) rods, thence south ten (10) rods, thence east ten (1Ó) rods, to the place of beginning, containing in all one hundred (100) square rods of land, and being a portion of the northeast quarter (N. E. £) of section six (6), in township three (3) north, range eleven (11) west, in said county and State. And said second party has a right, said right being hereby given, to make and construct any and all drains and sewers that said second party may deem necessary for the proper drainage of said creamery, and for the purpose of keeping said creamery clean, and carrying off any and all refuse or waste material in and about running their said creamery. And may and shall have the right to enter upon any lands now owned by said first parties on said northeast quarter (N. E. i) of said section six (6) aforesaid, at any time or times said second party may so desire, to construct or build said drain or sewer, and for the purpose of keeping the same in repair.”

On the 29th day of June, 1900, the Burlingames granted to complainant by quitclaim deed—

“The right to construct cisterns, reservoirs, cesspools, or any other receptacle, above or below the ground, for the purpose of storing and disposing of all whey, refuse, waste material and washings from their said creamery, upon any and all lands owned or occupied by said first parties, on the northeast quarter of section six (6), in township three (3) north, range eleven (11) west. And shall have the right to go upon any part of said premises, at any time, to repair or build anew, for the purposes aforesaid.”

In the winter of 1907, the Burlingames conveyed to the defendant Dean by warranty deed 80 acres of said N. E. £ of section 6 adjoining the creamery property and upon which there was at that time a creamery drain. The creamery plant was constructed in 1899 on the land purchased of Burlingame, and a tile drain was constructed from the creamery to a low place on the lands afterwards purchased by defendant, some five rods from the creamery property. Some two or three years afterwards, a cesspool was put in, with which the drain was connected. This cesspool was not a success, but filled up, and the contents of the drain were discharged upon the surface of the ground. The tile was some three feet underground at the creamery, but came to the surface where it discharged into the cesspool. Defendant and others, prior to 1909 and afterwards, complained of the stench coming from the decaying matter deposited upon the surface of the ground. In the summer of 1909, defendant forbade complainant’s employés coming on his land to deposit lime on the refuse, claiming that it endangered his stock. • In July, 1910, defendant dug up the tile on his land and took them out. In the same month, defendant and his wife conveyed to complainant a strip of land two rods wide, upon which complainant, under the advice of the State board of health, constructed a septic tank and cesspool, which did not, however, meet the difficulty, and in August, 1910, complainant filed its bill of complaint for a construction of its rights under its deeds and to restrain defendant from interfering with its replacing the tile and discharging the refuse as theretofore.

Defendant answered, denying the right of complainant to discharge its refuse—

“Upon the open field and not into any cesspool or structure, either under or above the ground, for the reception of the drainage from the said creamery, thereby causing great nuisance and endangering public health as well as the health and convenience of the occupants and owners of said land.”

He further alleged that the drain as operated was a public and private nuisance and claimed the benefit of a cross-bill. The circuit judge, in his opinion for a decree, said:

‘ ‘ I am fully satisfied by the proofs in the cause that the act of complainant in discharging its refuse from the creamery upon the open ground in such close proximity to dwellings and the homes of people in the village, and especially the dwelling of defendant, created, became, and was a nuisance, both public and private, and should be abated; that if the said drain is continued, either on defendant’s land, or on the land of complainant’s two-rod strip, the refuse from said creamery must not be left on the open ground, but must be conducted to cisterns, reservoirs, cesspools, or other receptacles, above or below the ground, in such way that it shall not be a menace to public health. I am of the opinion that, at the time complained of by the complainant, the acts of the defendant were justified in abating a nuisance, where no breach of the peace was committed, and no claim is made that there was any such breach of the peace.”

A decree was entered, dismissing the bill of complaint—

“And that the relief prayed for in the cross-bill of the defendant be granted; that the said complainant be and hereby is forever restrained from discharging its refuse from its creamery upon the open ground belonging to said defendant; that if any refuse is drained upon the grounds of said defendant, it must be conducted through cisterns, reservoirs, cesspools, or other receptacles, in such a way that it shall not be a menace to the public health.”

From this decree complainant appeals to this court.

We are of the opinion that, construing the twó deeds together, they did not authorize complainant to discharge its refuse upon the surface of the ground, but only in cisterns, reservoirs, cesspools, or other receptacles. The bill of complaint was therefore properly dismissed.

The cross-bill should also have been dismissed. The only specific relief prayed for therein was specific , performance of an alleged contract to release to defendant, in part consideration of the conveyance of the two-rod strip, the right to construct the drains, etc. Defendant’s proofs failed to establish such an agreement.

As modified by this opinion, the decree is affirmed, without costs to either party.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    BAILEY v. SIBLEY QUARRY CO.
    1. Master and Servant — Salary—Term of Contract.
    In an action for damages for breach of a contract of employment, testimony of tbe employé that he was hired by the year at a salary of a thousand dollars, that no times of payment were specified, that he afterwards received payment twice a month, tended to support his claim that the employer committed a breach of the contract by discharging plaintiff after the beginning of the sixth year.

      2. Same — Witnesses.
    Plaintiff was not bound by the testimony of the agent who hired him, although plaintiff called the agent as his own witness.
    8. Same — Waiver of Breach.
    The court properly submitted to the jury the conflicting evidence that plaintiff consented to a termination of his employment.
    Error to Wayne; Hosmer, J.
    Submitted February 1, 1912.
    (Docket No. 139.)
    Decided March 12, 1912.
    Assumpsit by James Bailey against the Sibley Quarry Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      G. K. Latham, for appellant.

      James H. Pound, for appellee.
   Blair, J.

Plaintiff brought this action to recover a balance of salary alleged to be due under a contract of hiring by the year, which contract, he alleged, was wrongfully terminated by defendant before the end of a yearly period. The defendant contended that plaintiff was not employed for any fixed period, but subject to discharge at pleasure, and that he consented to the termination of the contract. The circuit judge submitted the case to the jury upon the two issues presented by defendant, and the jury found a verdict in favor of plaintiff.

Defendant insists in this court that there was no evidence to sustain the plaintiff’s claim of a hiring by the year, but that, on the contrary, his own testimony shows an indefinite hiring, and the court erred in submitting the question to the jury.

It is agreed that plaintiff entered the employ of defendant January 1, 1903, and continued therein until May 1, 1909. Plaintiff testified, as to the terms of his employment, that he was employed by Mr. Sundstrum, general manager and treasurer of the defendant:

“ He offered me a thousand dollars a year, including house rent, heat, and light (that is, for a year); that is all there was at that time.
“ Q. And at that time did he say anything else as to the future ?
“A. Why, he mentioned the fact that, excepting that, there was to be $1,000 the first year, with a promise of an increase after that. * * * I received pay twice a
month, the 15th and the last; that was the custom to pay half monthly. My service was terminated on the 80th day of April, 1909. * * * The bargain between me
and the defendant company was finally made between me and Mr. Sundstrum. * * * When I made this bar-
gain, I was in the Michigan Central Railway depot. He made the first proposition. He said that if I would take the position the salary would be a thousand dollars a year, and I would have heat, light, and fuel, and in case the store would close, would change hands, that the company would see that I did not lose anything by giving up my position; that is practically the language he used. Rent could also be included in that.
e'Q. Did he say anything to you about how often you would be paid ?
“A. No. He said nothing to me about how often I would be paid; we started out to pay every two weeks from the first, practically the same as the Quarry Company was paying their men, every two weeks. It was a custom of defendant to pay all its men every two weeks.
“Q. Wasn’t that what he said; that you would be paid semi-monthly at the rate of a thousand dollars for the first year?
“A. He said I was to get paid at the rate of $1,000 a year.
“Q. Yes; at the rate of $1,000 a year?
“A. $1,000 a year.
(‘Q. And there was not, so far as time was mentioned, there was no other mention of time, was there, in that bargain ?
“A. I was hired by the year at $1,000.
(‘Q. Didn’t he say that he would give you at the rate of $1,000 a year for the first year?
“A. He said I would receive $1,000 a year.
“Q. Then, did he say anything about a year — but simply that he would pay at the rate of $1,000 a year ?
“A. No, sir.
“Q. I want to get at the exact words.
“A. No, sir.
“Q. Did he say this: We will pay you at the rate of $1,000 a year?
“A. No, sir.
“Q. Give his exact words, if you can.
“A. I said, we would — my salary was to be $1,000 a year.
“Q. Well, and was there any number of years mentioned ?
“A. No, sir.
e'Q. And one year was not mentioned even, as it?
“A. No, sir.
“Q. Nor two years?
“A. No, sir.
SCQ. Nor five years, nor six years, nor 100 years ?
“A. No, sir.
“Q. No years was mentioned at all ?
“A. None whatever.
“Q. He simply said he would give you $1,000 a year?
“A. $1,000 a year.
“Q. Didn’t he say at the rate of $1,000 a year ?
“A. No, sir.
(‘Q. And he said — and he did not state it to be semimonthly payments ?
“A. No, sir.”

Mr. Sundstrum testified:

“ I said to Mr. Bailey that I came over to ask him if he would accept a position with the condition of a payment at the rate of — the payment of salary at the rate of $1,000 a year and free room and free light. * * * Mr. Bailey said at the beginning he did not know; he had a good place at Sibley as railroad station agent, and that he did not know just at that moment — if the company for some reason or other shut down the store in the near future, he would be without occupation. I replied that if the store was shut down in the near future we would see about it that he would be taken care of in some way. * * *
“Q. Did you employ him for any definite time whatever?
“A. I never employed Mr. Bailey for any definite time.”

Although Mr. Sundstrum was called by plaintiff, his testimony, if inconsistent with plaintiff’s, did not conclude him, and we think plaintiff’s own testimony, considered as a whole, fairly supports his claim of a hiring by the year.

There was a sharp conflict of testimony on the question whether plaintiff consented to the termination of his contract, which required its submission to the jury. The other points presented in the appellant’s brief do not, in our opinion, require discussion.

The case was properly submitted to the jury, and the judgment is affirmed.

Moore, C. J., and Steere, Brooke, and Stone, JJ., concurred.


author: Steers, J.

text:
    WANNER v. WAYNE CIRCUIT JUDGE.
    1. Depositions — Affidavits—Witnesses—De Bene Esse Testimony — Jurisdiction to Enforce — Contempts—Circuit Court Commissioner.
    No affidavit of the facts rendering it necessary to take the testimony of a witness de bene esse is required in proceedings under 3 Comp. Laws, §§ 10136, 10142, but it is sufficient if the notice to opposing counsel states the reasons.

      2. Same — Trial—Evidence.
    Before any depositions so taken can be read in evidence at the trial of the cause, it must be made to appear satisfactorily to the judge that the reasons stated in the notice for taking the testimony existed at the time it was taken.
    3. Same.
    When a witness who has been served with a subpoena for that purpose appears at the time and place specified before the commissioner named to take the testimony, and makes denial of those facts under oath, and refuses for that reason to take the stand and testify, it manifestly becomes the duty of the commissioner to return the proceedings to the court to take such steps as justice may require.
    4. Same — Witnesses.
    In reaching a conclusion, the trial court is entitled to consider the surrounding circumstances, the good faith of the parties, and the character of the interrogatories.
    6. Same.
    Under contradictory affidavits, on a petition for an order to show cause why the witness should not be punished for contempt of court, the finding of the trial judge that reasons alleged for taking testimony of a witness were not satisfactorily made to appear was not an abuse of discretion, where the court found, upon evidence contained in affidavits, that the witness was not about to leave the State as alleged and that h© resided in Michigan.
    Mandamus by Blanche Peck Wanner against Henry A. Mandell, one of tbe circuit judges for the county of Wayne, to compel respondent to issue an order to show cause why one Lester J. Stevenson should not be punished for contempt of court.
    Submitted February 29, 1912.
    (Calendar No. 24,802.)
    Writ denied March 12, 1912.

      McHugh, Gallagher & McGann, for relator.

      Thomas A. E. Weadock, for respondent.
   Steers, J.

In this proceeding relator seeks a writ of mandamus to compel the respondent, a judge of the Wayne circuit court, to grant a petition, heretofore presented to and denied by him, for an order directed to one Lester J. Stevenson to show cause why he should not be punished for contempt in declining to be sworn and testify, pursuant to a subpoena issued by a circuit court commissioner of Wayne county and duly served on him, in a certain cause then pending between relator, as plaintiff, and one Madeline Clements, defendant. Said cause, in which it was sought to take the testimony of said Stevenson, de bene esse, was commenced by summons on June 21,1911, in an action of trespass on the case to recover damages from defendant for alienation of the affections of Charles Wanner, former husband of relator. Said Stevenson, who was not a resident of Wayne county, being deemed a material witness for plaintiff, was interviewed in the Tuller Hotel, Detroit, where he was temporarily stopping, on June 26,1911, by the attorneys for plaintiff, who make affidavit that he stated to them he did not wish to get mixed up in the case and was about to leave the State, not intending to return until the case was disposed of, whereupon steps were taken to secure his testimony, de bene esse, under section 10136, 3 Comp. Laws, and a subpoena was forthwith served on him to appear the next day, on June 27, 1911, at 12:15 p. m., before a circuit court commissioner of Wayne county, and give testimony in said suit. On June 27, 1911, notice of the taking of such testimony was served upon defendant’s attorney, “for the reason that said Lester J. Stevenson is about to go beyond the jurisdiction of this court and is a necessary and material witness for said plaintiff.” At the time named in the subpoena Stevenson appeared with defendant’s attorney before said commissioner and filed the affidavit of said Stevenson, stating that he was then, and had been for 25 years last past, a resident of Flint, Mich.; that he was in Detroit on business and was about to return to his home on that day and had no intention of removing from his home in Flint. Said attorney for defendant in that connection stated:

“Witness declines to be sworn for the reason, and the only reason, that the commissioner has no jurisdiction to take his testimony.”

Counter affidavits were filed by the attorneys of relator, telling of their interview with Stevenson the day before, in which he had declared his intention to leave the State so as not to be mixed up in the case, and stating on information and belief that the residence of said Stevenson is in Providence, R. I. To properly lay a foundation for any steps counsel might desire to take, the commissioner made a formal order for said witness to take the stand, which was respectfully declined under instruction of defendant’s counsel, for the reason that the commissioner had no jurisdiction, and it was desired to test the matter. Thereafter said commissioner certified the proceedings to the circuit court for Wayne county. A petition based on said proceedings was presented to the respondent herein, Hon. Henry A. Mandell, circuit judge, asking for an order against said Stevenson to show cause why he should not be punished for contempt in so refusing to be sworn and testify before such commissioner, which petition, after a hearing thereon, was denied, following which an application was made to this court for a writ of mandamus as stated.

No question is raised as to the regularity of the proceedings taken to bring the witness before the commissioner to testify. He appeared before the commissioner at the time and place for which he was subpoenaed, but declined to take the witness stand, and filed affidavit denying and putting in issue the facts upon which the right to take his testimony in that manner was based. The proceedings were properly certified by the commissioner to the court where the cause was pending in which the proposed testimony was to be taken and used. This court is asked to compel that court to take steps looking to punishment of the witness for contempt in refusing to take the stand and testify before the commissioner in a preliminary proceeding to secure testimony for use in a case in that court. In his answer to the order to show cause respondent says, in part:

“He has no knowledge and no showing was at any time made before him that Lester J. Stevenson was a necessary and material witness for and in behalf of said plaintiff, any further than the same appears in the statement contained in the papers.”

The only statement contained in the papers returned by the commissioner is found in the notice given to defendant’s attorney of taking the testimony, which states that said Stevenson “is a necessary and material witness for plaintiff.” Respondent further answers that he—

“Has no knowledge of the matters set forth in the fourth paragraph of relator’s petition, except from the papers presented to him, from which it appeared to .him that Lester J. Stevenson, the person named therein, was a resident of Flint, Mich., and it did not appear that he was about to leave the State, and not return in time for the trial of said cause, which had been commenced only five days before said subpoena was issued; * * * that no order was asked requiring said witness to attend and testify before said commissioner at any future time, and he did not believe it was necessary to take the deposition of said Stevenson as proposed. * * * And he denied said order to show cause for the reason that in his opinion the statute providing for the' taking of testimony of witnesses by deposition is one which must be strictly complied with, and that petitioner had not shown respondent any statutory reason for taking the deposition of said Lester J. Stevenson on the 27th of June, 1911, and, on the contrary, said Lester J. Stevenson had shown by his own affidavit that he was not about to leave the State of Michigan and that he resided therein at Flint aforesaid. * * * It further appeared to him that there was no competent showing that the residence of said Lester J. Stevenson was not in said State, nor that he could not be subpoenaed as a witness in the regular way when said trial was reached in due course, * * * . and this respondent believed that said Lester J. Stevenson had not been guilty of any contempt, and that the showing made for the order to show cause was not sufficient; no showing having been made before this respondent that the testimony of Lester J. Stevenson was material.”

Section 10142, 3 Comp. Laws, provides, relative to taking testimony de bene esse:

“The court shall have power to regulate the use, to prevent abuses thereof, and may order the retaking of testimony, or the production of the witness, if within the jurisdiction, notwithstanding that his deposition has been taken.”

In a proceeding to take testimony under said section 10136, no affidavit of the facts essential to give jurisdiction is required. It is sufficient if they are set out in the notice. Patterson v. Railway Co., 54 Mich. 91 (19 N. W. 761); Colton v. Rupert, 60 Mich. 318 (27 N. W. 520).

Before any depositions so taken can be read in evidence at the trial of the cause, it must be made to appear satisfactorily to the judge that the reason stated in the notice for taking the testimony existed at the time it was taken. An undisputed affidavit to that effect would establish it prima facie; but, where contradicted under oath, the court must pass upon the issue, and the reasons for taking the depositions must be shown as a matter of fact to have existed at the time, before they can be used at the trial. Patterson v. Railway Co., supra.

When a witness, who has been served with subpoena for that purpose, appears at the time and place specified before the commissioner named to take the testimony and makes denial of those facts under oath, and refuses, for that reason, to take the stand and testify, it manifestly becomes the duty of the commissioner to return the proceedings, as was done in this case, to the court under which and for which it was proposed to take the depositions, to the end that whatever steps justice requires may be taken by the trial court. The act itself imposes on the trial court the duty of regulating its use and preventing abuses. This court has, accordingly, recognized that these matters are to be committed, to a large extent, to the good judgment and sound discretion of the trial judge, with his larger opportunities, from closer contact, to see and know conditions as they develop in the progress of a case through his court. In Drosdowski v. Order of Chosen Friends, 114 Mich. 178 (72 N. W. 169), in ruling that it was discretionary with the trial court to determine what was a reasonable notice under the statute, the court said that:

“The trial court in coming to a conclusion must be governed somewhat by the circumstances surrounding the case. The circuit judge knew better about the surroundings of this case than we do.

In Young v. Kent Circuit Judge, 116 Mich. 10 (74 N. W. 206), it was said that the question of good faith is involved in proceedings under this act, and to be considered by the court in passing upon the rights of a party to take depositions. In St. John v. Wayne Circuit Judge, 161 Mich. 302 (126 N. W. 219); wherein the discretionary act of the trial judge was sustained, it was said:

“We do not feel called upon to determine whether, if the witness had refused to attend, the court in compelling attendance might have acted upon the showing which was made, or whether it would have been improper to require a further showing.
“When a court is asked to bring before it, ny its process, a witness who has refused in another place to answer questions, for the purpose of meeting charges of misconduct and contempt in so refusing, the court may consider the character of the interrogatories to which answers were refused.”

We think the court, under such circumstances, may also consider whether the facts necessary to give jurisdiction for taking testimony de bene esse are established, and in his discretion determine, from the showing made, if the interests of justice demand punitory proceedings. With the parties before him, the court decided and returned that petitioner did not show any statutory reason for taking the deposition of Stevenson. On the contrary, the court found and held that he was a resident of the State; that it was not made to appear his testimony was material, or that he was about to leave the State; that there was no competent showing that he could not be subpoenaed as a witnesss in the regular way when the trial of the cause was reached in due course; and that, in the judgment of the court, it was not necessary to take the depositions of said Stevenson as proposed. In so finding, the court necessarily passed upon the facts put in issue by the conflicting affidavits of the parties, and, apparently, came to his conclusions “governed somewhat by the circumstances surrounding the case.” The respondent makes official return that it was not made to appear satisfactorily to the court that the cause stated in the notice, for taking the depositions of the witness, existed.

We are not prepared to hold that he abused his discretion in refusing the order.

The writ of mandamus is denied.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Ostrander, J.

text:
    NORTHERN ASSURANCE CO. v. HOUGHTON CIRCUIT JUDGE.
    1. Trial — Findings op Fact and Law — Demand.
    An oral demand for findings, on a trial by the court without the aid of a jury, is insufficient. Circuit Court Rule 26.
    2. Same — Appeal and Error.
    No duty is imposed on the court to answer letters of attorneys, prepare and enter orders that will preserve their right of appeal, and take action on amendments to his findings never brought to his attention in the manner required by rule.
    3. Same — Mandamus—Term op Judge.
    Mandamus does not lie to secure amendments to findings of a circuit judge after the expiration of his term of office.
    4. Same — Extension op Time to Settle’ Exceptions — Motions.
    An extension of time to settle exceptions to the findings of the trial court cannot be granted except upon cause shown on special motion and notice to opposing counsel.
    Mandamus by the Northern Assurance Company to compel Albert T. Streeter, Houghton circuit judge, to grant an extension of time to settle a bill of exceptions, approve relator’s proposed bond on appeal, to render a decision upon amendments proposed by relator to certain findings of fact and law, and vacate an order denying further time.
    Submitted February 29, 1912.
    (Calendar No. 24,803.)
    Writ denied March 12, 1912.

      Schmalzriedt, Spaulding & Herald (Fred H. Aldrich, of counsel), for relator.

      Burritt & Burritt for respondent.
   Ostrander, J.

The relator began an action at law in the circuit court for the county of Houghton. On the issue joined therein a trial was had before the court without a jury on November 25,1910. On December 23,1910, a judgment was entered in said cause against the plaintiff and in favor of the defendant. The attorneys for plaintiff resided in the city of Detroit, and they were advised on or about the 23d of December, 1910, that judgment had been rendered in said cause, that a stay of 70 days had been entered for settling a bill of exceptions or moving for a new trial, and that the circuit judge would file a statement if the attorneys desired him to do so. On the 29th of December, 1910, the attorneys for plaintiff wrote to the said clerk acknowledging receipt of his letter and asking that a finding of law and facts in the cause be made. Afterwards, on January 30, 1911, a finding was made and filed, of which fact attorneys for the plaintiff had notice on February 2, 1911; a copy thereof being served upon them on that date. Amendments to the said findings were prepared, and on February 2d were served by mail, at which time also a letter was addressed to the said circuit judge, stating that a request for further findings of fact and law had been made, asking him to examine them and approve those that were believed to be warranted and to note counsel’s exception to the denial of any that he should deny. The court was not asked to fix a time for settling the said findings. Request was also made in this letter for ap. extension of time for settling the case and filing a bill of exceptions for 60 days. A copy of this request was mailed to the attorneys for defendant. On the 31st of March, 1911, a motion, not supported by affidavit, was entered in said cause, asking for an extension of time to settle a bill of exceptions and for the approval of a bond on appeal, and this motion was noticed for hearing on April 4,1911. Plaintiff’s attorneys were notified by letter by the clerk of the court that the circuit judge was out of the city and would not return for about six weeks and that court would convene on the 24th of May. The motion last mentioned was presented June 22d and denied. The additional findings of fact and law were not made and no opinion or reasons filed for refusing to make them. These facts, with certain modifications required by the answer, and others, are set up in the petition of relator, filed in this court in July, 1911, who asks for a mandamus compelling the said circuit judge to grant an extension of time to settle a bill of exceptions, to approve the bond on appeal filed in said cause, or to take some other action in reference thereto, to render decision upon the application made for amendments to the findings filed in said cause, or, if not compelled to render such a decision, to fix a time for the settlement of the findings of law and fact, and to vacate the order dismissing the motion for further time to settle a bill of exceptions.

The answer to this petition was made on or about December 27, 1911. On December 31st the term of office of the said circuit judge expired. At some time, not disclosed by the printed record, relator moved to amend the petition by adding thereto a statement of the fact that the term of said circuit judge, respondent, would expire December 31, 1911; that the Honorable Patrick H. O’Brien had been elected as his successor, and to amend the prayer of said petition by adding:

‘ If the term of office of the Hon. Albert T. Streeter shall expire before the final order shall be made in the matter first above mentioned, that a copy of this petition may be served upon the Hon. Patrick H. O’Brien, that he be required by this honorable court to do each and every of the things above prayed, which he as judge of the twelfth judicial circuit has power to do.
“ That the said Patrick H. O’Brien, in the case mentioned in the last paragraph, be required to settle a bill of exceptions in the said cause, in the manner prescribed by the laws of the State and the rules and practice of this court.”

It appears from the answer of respondent that after the conclusion of the trial an immediate decision of the controversy was delayed, upon request of the attorneys for plaintiff, who asked leave to submit a brief before the formal decision was made; that about December 10th a brief was submitted and later, about December 15th, a supplemental brief; that the brief submitted concluded with this sentence:

“A few incidental questions as to rules of evidence were raised at the trial; but it seemed to be substantially agreed that defendant was liable if the advances were lawfully covered by the bond, so it does not seem necessary to discuss these questions here.”

The answer denies that the proposed findings of fact and law were ever brought to the attention of the court in any manner; says that nothing appears in the files of said court to show that any notice thereof was given to attorneys for defendant, and that so far as respondent can recollect he had no knowledge that said request was filed until an examination of the files after the receipt of the order to show cause was issued disclosed them; but respondent answers that, if such proposed findings of fact and law had been properly submitted, he would not have signed them as his findings. The answer further sets out that an examination of the files discloses that a motion for an extension of time to settle a bill of exceptions was filed March 31,1911, after the adjournment of the January, 1911, term of court; that the circuit court was again in session May 22, 1911; that a notice of hearing of the motion to extend the time for settling the bill of exceptions was filed June 13, 1911, and heard and denied June 19th. The answer concludes:

“This respondent, further answering, says that time for settling a bill of exceptions was granted to the said plaintiff in the first instance, without any request therefor being made by said plaintiff, and that the actions of said plaintiff from the date of the entering of the judgment in said cause, until the filing of the petition for the order to show cause, have shown a disposition to ignore the rules and practice established by yonr honorable court.”

As to the findings of fact: The practice required to be pursued when either party to a cause tried by the court desires findings of fact and law is so plain and so easily pursued it is with some impatience that this court occupies its time with controversies arising primarily from a failure to comply with the rule. Relator asserts that an oral demand for findings was made in open court. An oral demand is not sufficient. Respondent denies that an oral demand was made. A finding was made and filed, but not until after judgment. The demand for it was made in writings — by letter — after judgment. Whether the decision of the court was made in vacation does not appear. 3 Comp. Laws, § 10260. Amendments to the finding were proposed. We must accept as true the answer of respondent upon this point and find that the proposed amendments were never brought to the attention of the court. Various letters were addressed to the respondent, personally, asking for action in the matter. They were unanswered. We have no further information. It appears to be claimed that the respondent should have replied to such letters, acted upon the suggestions made therein, notified counsel of such action, and caused to be prepared and entered such orders as would preserve the rights of both parties. Of course, no such duty was imposed upon respondent, and in this case if such communications were received and read, which does not appear, counsel were not misled into believing that any such duty would be assumed. .

Finally, we know of no provision for securing from a judge out of office an amendment to findings made in office. We are of opinion, however, that the findings cannot be treated as a nullity. Relator requested them and did not formally and properly bring to the attention of the court objections to them.

As to an extension of time for settling exceptions: Such an extension was formally denied by the circuit court. The application made for such extension did not comply with the rule. Some of the reasons given for the extension were founded upon the record; some were not. The rule requires cause to be shown by affidavit, on special motion, after notice. Under the rule no cause was shown.

We feel impelled to say that the relator seeks relief from conditions arising out of the failure of its attorneys to reasonably observe rules of practice long in existence and well understood

The writ is denied, with costs to the defendant in the principal cause.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    LEPIRE v. KLENK.
    1. Navigable Waters — Injunction—Obstruction—Equity Jurisdiction — Nuisance—Abatement.

      A private citizen may not maintain an action for the abatement of a nuisance caused by interrupting the navigation of a navigable stream unless he suffers damage peculiar to himself and different from that suffered by the public generally.

      2. Same — Bill of Complaint — Demurrer—Waters and Watercourses — Damages.
    Complainant’s bill stated an equitable cause of action in averring that complainant owns and occupies for residence purposes land abutting upon Fox creek which flows in a southwesterly direction into Lake St. Clair, that the natural outlet is stopped up, and complainant has no way of obtaining good drinking water, ice, provisions and supplies except by connecting canals that give access to the lake, and are a public highway, necessary for complainant’s use and giving value to his property, and that defendant has obstructed the connecting canals so as to prevent complainant from using it.
    Appeal from Wayne; Hosmer, J.
    Submitted February 1,1912.
    (Docket No. 134.)
    Decided March 12, 1912.
    Bill by John Lepire against William C. Klenk to enjoin defendant from maintaining an obstruction in a navigable stream. From an order overruling a demurrer to the bill of complaint, defendant appeals.
    Affirmed.

      Lucking, Emmons & Self man, for complainant.

      Daniel P. Cassidy, for defendant.
    Complainant filed his bill of complaint praying that a certain canal connecting Fox creek with. Lake St. Clair be decreed to be a highway, and that defendant be compelled to remove an obstruction placed therein and be enjoined from further obstructing the same. The bill alleges that complainant owns and occupies for residence purposes land abutting upon Fox creek; that Fox creek flows in a southerly direction into Lake St. Clair; that for many months the natural outlet of the creek has been impassable for rowboat or launch because it is stopped up with weeds, sand, and dirt; that complainant has no way of obtaining good drinking water, ice, provisions, and supplies, except to pass in a rowboat or launch down Fox creek to the first intersecting canal, thence westerly to a canal running southerly and parallel to Fox creek, and thence to Lake St. Clair; that Fox creek and said connecting canals. which afford a means of access from complainant’s property to Lake St. Clair, are a public highway; that this way is necessary to complainant and the only water way by which complainant can obtain supplies or reach the lake; that complainant’s premises are chiefly valuable because of the water privileges afforded by Lake St. Clair and the Detroit river; that in August, 1911, defendant placed an obstruction in said canal thereby preventing complainant from using it. To this bill defendant interposed the following demurrer:
    “ (1) That complainant has not shown in his bill of complaint that he has sustained special or peculiar damage, separate and distinct from that sustained by the public at large, and therefore cannot maintain his suit.
    “ (2) That complainant has not shown in his said bill of complaint that he has any interest except that possessed by the public in general in the canal described in said bill of complaint, and therefore cannot maintain this suit.”
    From an order overruling his demurrer, defendant appeals.

       As to private right of action for obstruction of navigable stream, see note in 3 L. R. A. (N. S.) 1136.

   Brooke, J.

(after stating the facts). The only Michigan case cited by defendant’s counsel is Potter v. Railway Co., 95 Mich. 389 (54 N. W. 956). It is, we think, apparent that that case is not controlling of the case at bar. It is there held:

(1) That there is no testimony to sustain the claim that the way in question is a navigable stream.
(2) None of plaintiff’s lands adjoin it; therefore he has no interest except that possessed by the public in common.
(3) Plaintiff has shown no special damage.
(4) The canal was a private enterprise in which the public never obtained any rights by prescription or otherwise.

This decision is in accord with the weight of current authority, which holds that a private citizen cannot maintain an action for abatement of a nuisance caused by interrupting the navigation of a navigable stream unless he suffers damage peculiar to himself and different from that suffered by the public generally. 29 Cyc. p. 325 and cases cited; Esson v. Wattier, 25 Or. 7 (34 Pac. 756); Jarvis v. Railway Co., 52 Cal. 438; Clark v. Railway Co., 70 Wis. 593 (36 N. W. 326, 5 Am. St. Rep. 187).

The bill of complaint in the instant case clearly sets out facts from which it is apparent that complainant suffers private and direct damage other and different from that suffered by the public at large. It further avers that the way in question is a public highway. For the purpose of determining the question now here, that fact must be taken as admitted by the demurrer. Under the facts alleged in this bill, if sustained by competent evidence, complainant is entitled to the relief sought. Watts v. Boom Co., 52 Mich. 203 (17 N. W. 809); Turner v. Holland, 54 Mich. 300 (20 N. W. 51); Gifford v. McArthur, 55 Mich. 535 (22 N. W. 28); Board of Water Commissioners v. City of Detroit, 117 Mich. 458 (76 N. W. 70); People v. Severance, 125 Mich. 556 (84 N. W. 1089); Drake v. Paper Co., 25 Ont. App. Rep. 251; 1 Farnham on Waters and Water Rights, pp. 406-437; Smart v. Lumber Co., 103 Me. 37 (68 Atl. 527, 14 L. R. A. [N. S.] 1083).

The order overruling defendant’s demurrer is affirmed, with costs, and defendant is given 15 days in which to answer.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Bird, J.

text:
    GLEICH v. DETROIT FREE PRESS.
    1. Landlord and Tenant — Lighting Stairways — Negligence-Trial — Directing Verdict.
    The owner or landlord of a building is under no obligation to a licensee in the building to provide lights in a dark stairoase which is properly constructed with a hand rail and contains no dangerous defects.
    S. Same — Contributory Negligence.

      Held, that plaintiff was guilty of contributory negligenoe in falling down an unlighted staircase.
    Error to Wayne; Mandell, J.
    Submitted October 12, 1910.
    ( Docket No. 46.)
    Decided March 29, 1912.
    Case by Adolph W. F. Gleieh against the Detroit Free Press and Martin Campbell. A judgment for defendants on á verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Charles L. Bartlett and Charles Englehard, for appellant.
    Angelí, Boynton, McMillan & Bodman, for appellees.
   Bird, J.

The plaintiff assigns error in this case because of ,the action of the trial court in directing a verdict in favor of the defendants.

Plaintiff is a musician and during the summer of 1906 was employed by Mr. Al A. Green as a member of his military band. Green contracted with the defendant Free Press to furnish Saturday evening concerts with his military band near the Free Press building. Defendant Campbell was the owner of the Lafayette Theater, and his permission was obtained for the musicians to occupy gratis the balcony in front of the theater, which adjoins the Free Press building. The balcony was reached by means of the gallery entrance and stairs and by crossing a hall on the second floor and going through Dr. Campbell’s office. Plaintiff had no difficulty in reaching the balcony on the evening of the first concert. When the concert was over, he took his musical instrument in one hand and his music rack in the other and started down the stairs. After descending a few steps and while attempting to cross to the side where the railing was, he lost his balance and fell and sustained serious injuries. He does not make it clear what caused him to fall. He charges that his fall was. due to the negligence of the defendants in failing to sufficiently light the stairs. The only light there was in the entrance, stairs, and upper hall came through the open doors into the street and through the open door into Dr. Campbell’s office. The stairs were eight feet wide and had a midway landing; they were covered with rubber matting, and were provided with a hand rail at the side.

At the conclusion of plaintiff’s testimony, the defendants moved for a directed verdict on the grounds that no negligence on the part of defendants had been shown and because the plaintiff himself was guilty of negligence which contributed to his injury. The trial court took the defendants’ view of the case and directed a verdict in their behalf. The important question for our consideration is whether the trial court was in error in so doing.

The plaintiff went upon the premises in question by the express invitation or permission of the defendants. Under these circumstances, it was their duty to see'that the premises were in a reasonably safe condition of repair. The declaration does not allege, and the testimony does not disclose, that the injuries were incurred by reason of any structural defects in the hallway or stairs, and it is not claimed that the injuries were caused by any pitfalls or traps so far as construction was concerned, nor that there was any unusual or dangerous construction which would amount to a pitfall or trap. The negligence of the defendants is based solely upon their failure to light the hallway and stairs. In the absence of contract or statute, we think no such duty rested upon the defendants. To require the owner or landlord to provide lights, at all times at his peril, for his halls, stairs, toilets, and other places used in common by his tenants, would add an additional duty which the law does not justify. The cases in which recoveries have been sustained for a failure to light such places have been confined to those cases where the darkness has concurred with some pitfall, trap, or unusual construction to produce the injuries. We have found no authority holding otherwise. This view of the law is in accord with the holdings of the court in several States., Capen v. Hall, 21 R. I. 364 (43 Atl. 847); Gleason v. Boehm, 58 N. J. Law, 475 (34 Atl. 886, 32 L. R. A. 645); Hilsenbeck v. Guhring, 131 N. Y. 674 (30 N. E. 580); Brugher v. Buchtenkirch, 167 N. Y. 153 (60 N. E. 420); Halpin v. Townsend, 2 City Ct. R. (N. Y.), affirmed 107 N. Y. 683 (14 N. E. 611).

We are of the opinion that the trial court was not in error in holding that no negligence had been shown upon the part of defendants, and we are likewise of the opinion that no error was committed in holding that plaintiff was not free from negligence. The testimony shows that when plaintiff went up the stairs he noticed that they were not lighted. He must also have noted the construction of the stairs and the position of the hand rail. His physician testified that he was affected with presbyopia, a hardening of the lenses, making it difficult for the eyes to adjust themselves readily to the sudden changes of light. When he started to go down the stairs, if the light was insufficient to enable him to see where he was going, he should have asked for more light, or requested some one to assist him, and, if he was unsteady, he should have gone directly to the side where the railing was and taken hold of it before starting down. His failure to observe these simple precautions for his own safety constitutes negligence upon his part. Campbell v. Abbott, 176 Mass. 246 (57 N. E. 462); Gleason v. Boehm, supra.

The judgment of the trial court is affirmed.

Brooke, Blair, Stone, and Ostrander, JJ., concurred in the result. '


text:
    CURRAN v. GORDON.
    1. Logs and Logging — License—Timber as Personalty.
    A bill of sale of standing timber reciting that the grantor hereby sells to the grantee certain timber, describing the property on which it stands, creates a license to enter and remove timber.
    2. Same — Deeds.
    By such writing no interest in lands is conveyed.
    3. Same — Severance.
    Until the timber is severed no title passes, but thereafter it becomes personal property.
    4 Same — Revocation of License.
    By revocation of such a license, the grantee’s rights terminate.
    5. Same.
    A written license is not an interest in real property, and is revocable.
    6. Same — Termination by Death of Licensor.
    It is terminated by the death of the licensor before severance.
    7. Same — Assignment—Notice.
    Notice given to decedent’s heirs of the licensee’s claim to the timber in no way prevented revocation, and by their entering into an inconsistent agreement with a third party to remove the timber they effected revocation.

      8. Same — Appeal and Error.
    That the licensee has possession of the timber and premises on which it stands, avails nothing to such licensee who shows no additional rights based on it and asks for no relief on account thereof in his suit to enjoin the said heirs and their transferee from removing the timber.
    Appeal from Alcona; Connine, J.
    Submitted October 25, 1911.
    ( Docket No. 105.)
    Decided March 29, 1912.
    Bill by Phillip Curran against John A. Gordon and others for an injunction restraining defendants from cutting certain timber. Prom an order overruling a demurrer to the complainants’ bill, defendant Gordon appeals.
    Reversed.

      Albert McGlatchey, for appellant.

      Joseph H. Cobb, for appellee.
   Bird, J.

Complainant filed this bill to enjoin defendants from cutting certain standing timber in Alcona county. A temporary injunction was granted. Defendants demurred to the bill. Prom an order overruling the demurrer, the defendant Gordon has appealed.

The bill of complaint, in substance, shows: That on March 28, 1901, Sarah E. Backus was owner in fee of certain premises in Alcona county, and that on the foregoing date she sold him the timber thereon, and delivered to him the following bill of sale:

"Detroit, Mich., March 28, 1901.
"Por a valuable consideration I hereby sell to P. Cur-ran all the timber on S. E. ¿ of S. W. J Sec. 29 & N. £ of S. W. i of Sec. 28, in town 26 N. 8 East, Gustin Township, Alcona Co., Mich.
"S. E. Backus. -
"Phillip Curran.”

That since the execution and delivery of said bill of sale he has been in possession of said lands. That since said agreement was made Sarah E. Backus has died, and that her sons now claim to own title to said lands. It is further shown by said bill that early in the year 1909 Henry N Backus and Newton D. Backus entered into a contract with defendant Gordon to cut and remove the timber from said lands, and in pursuance of said contract the said Gordon was engaged in carrying out said contract when this suit was commenced. Complainant further shows that Henry N. Backus and Newton D. Backus had notice of his rights early in the year 1909, and that Gordon had notice thereof before he commenced his operations on said lands, and was forbidden to cut and remove the timber. The grounds of demurrer aro:

“ (1) Because the said bill does not show that the complainant has any interest in the subject-matter thereof.
“ (2) Because the bill of sale mentioned in paragraph 3 of said bill was in effect no more than a license to cut timber, and the subsequent allegations in the said bill show a clear and distinct revocation of such license.
“ (3) Because the complainant has not, as appears by his said bill, made out any title to the relief thereby prayed.”

The writing executed by the parties was a bill of sale of the timber with a license to enter upon the lands and remove it. The timber until it was severed was a part of the realty. The writing does not attempt to convey any interest in lands. Therefore no title to the timber would pass until it was severed from the realty. When severed, it became personal property and passed by the bill of sale. Aswassaidin Greeley v. Stilson, 27 Mich. 153, “it was the sale of a future chattel.” Such a license may be revoked at any time before the timber is severed. If that were done in the present case, as it is claimed, it concluded the complainant’s rights. Greeley v. Stilson, 27 Mich. 153; White v. King, 87 Mich. 107 (49 N. W. 518). But it is said the license was in writing, and could not be revoked.

The writing would not prevent it. A license is not an interest in real estate, and therefore may as well rest in parol as in writing. The statute of frauds is not involved.

It is claimed that the death of Sarah E. Backus, before complainant severed the timber, worked a revocation of the license. It is so held by this court. Estelle v. Peacock, 48 Mich. 469 (12 N. W. 659); Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338).

The complainant shows that he notified Henry N. Backus and Newton D. Backus of his rights to the timber after the mother’s death and before the contract was made with Gordon. This would avail him nothing, as the sons would have the same right to revoke the license as the mother had, and the act of the sons in granting to Gordon a right inconsistent with complainant’s would work a revocation of the license. 18 Am. & Eng. Enc. Law (2d Ed.), p. 1141.

The complainant alleges that he has had possession of the lands ever since the license was delivered to him. He fails to make it appear what connection there is, if any, between the fact of possession and his license. In the prayer of the bill he asks for no relief on account of such possession. The only relief invoked is based upon the license. Neither does he claim anything for it in his brief; therefore no consideration will be given to it.

The order overruling the demurrer will be reversed, and one entered sustaining it. Defendant Gordon will recover costs of this court.

Moore, O. J., and McAlvay, Stone, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    KAISER v. DETROIT & NORTHWESTERN RAILWAY CO.
    1. Corporations — Consolidation—Salk.
    It did not effect a corporate consolidation to transfer all the property of an insolvent corporation to a going company by vote of a sufficient proportion of the stock, on the sole condition that the transferee assume the bonded indebtedness of the insolvent, which covenanted that the property should be clear of all other incumbrances, debts and claims, and agreed to transfer a majority of its stock to a party to be named by the purchaser; no showing being made that the consideration was inadequate or that the stockholders of the transferring corporation obtained any stock in the purchasing company.
    2. Same — Lien op Creditor — Statutes.
    No lien upon the property of the insolvent company attached in favor of a creditor who obtained judgment for personal injuries two years after the transfer. Act No. 110, Pub. Acts 1899.
    Appeal from Wayne; Mandell, J.
    Submitted October 9, 1911.
    (Docket No. 11.)
    Decided March 29, 1912.
    Bill by Herman Kaiser against the Detroit & Northwestern Railway Company and others for the enforcement of a creditor’s lien on property of the defendants. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Washington I. Robinson and N. Galvin Bigelow, for complainant.

      Brennan, Donnelly & Van De Mark, for defendant Detroit United Railway.

      Thomas A. E. Weadock, for defendants, Detroit & Northwestern Railway Company and E. W. Yoigt.
   Moore, C. J.

December 23, 1899, complainant sustained an injury, for which he began suit against the defendant Detroit & Northwestern Railway Company, March 30, 1900. The plaintiff obtained a verdict for $3,000, upon which judgment was rendered July 8, 1903, and affirmed in this court May 17,1904. 136 Mich. 541 (99 N. W. 743). Execution was returned unsatisfied, and this bill was filed to invoke a lien which Act 110 of 1899 undertakes to give after judgment. The defendants answered, denying any liability. After a hearing, the bill of complaint was dismissed. The case is brought here by appeal.

The claim of complainant is stated by counsel as follows:

“ It is the contention of the complainant herein that the transfer of the properties of the said Detroit & Northwestern Road to the Detroit United Railway was and is void as against the complainant; that, among other claims, the transfer, while called by the companies participating therein a ‘sale,’ amounted in law to a ‘consolidation;’ that it is in fact a consolidation of the Detroit & Northwestern Railway Company with the Detroit United Railway Company; and that therefore the property taken over by the said Detroit United Railway should be subjected to the payment of the debts of the Detroit & Northwestern Railway and therefore to your complainant’s claim and judgment. Also the complainant claims that the manner in which the transfer was consummated was, as is shown by the proofs, void as against the complainant. * * * The only consideration, it would appear from the evidence in the case, for the transfer, was the guaranteeing by the Detroit United Railway of the payment of the outstanding bonds of the Detroit & Northwestern Railway Company. The inference may fairly be drawn that these bonds were owned, if not wholly at least in large part, by stockholders of the Detroit & Northwestern Railway Company. We would further call the attention of the court to the fact that after the meeting of the stockholders and directors of the Detroit & Northwestern Railway Company, at which the transfer of the property of the Detroit & Northwestern Railway Company to the Detroit United Railway was consummated, there was never any other meeting of stockholders of the Detroit & Northwestern Railway Company nor any act done by the Detroit & Northwestern Railway Company as a cor poration, and that the same practically went out of existence. It was admitted that, at the time of the alleged transfer, the Detroit <fe Northwestern Railway was financially embarrassed.”

On the part of defendants it is claimed that the Detroit «fe Northwestern Railway Company was hopelessly insolvent; that, realizing the situation, it sold its property to the Detroit United Railway Company for all it was worth; that no consolidation was effected; but that a good-faith purchase was made.

It is claimed in the answer that the defendant Voigt, who was a large stockholder in the Detroit <fe Northwestern Railway Company, advanced large sums of money to said company.

“This defendant further avers that on the 1st day of June, 1904, by the judgment of the circuit court for the county of Wayne, said E. W. Voigt, defendant herein, recovered a judgment against said Detroit <fe Northwestern Railway Company in the sum of $221,249.67, which judgment is still in full force and effect, not reversed, annulled, set aside, or appealed from.”

Some phases of litigation arising out of this transaction have been before this court in the case of Randall v. Union Trust Co., 156 Mich. 216 (120 N. W. 594).

The notice to the stockholders of the meeting at which the sale was agreed upon stated that the company was wholly insolvent, and “if this sale cannot be effected a receiver will be appointed at once and the mortgage foreclosed. The result of a foreclosure will be to wipe out entirely the unsecured debts.” Four thousand nine hundred and nineteen of the 5,000 shares of stock were represented at this meeting which authorized a sale. The material parts of the agreement made are as follows:

“ The Detroit & Northwestern Railway hereby offers and agrees to sell its railway, and all its property and assets of every name and nature as of date of May 1, 1901, to the Detroit United Railway, for the sum of eight hundred and fifty-five gold bonds of the par value of one thousand dollars each, bearing four and one-half per cent, interest per annum, payable semi-annually. Said bonds are to be part of an authorized issue of one million dollars of bonds bearing date May 1, 1901, to run twenty years, with rights of makers and its assigns to redeem part or the whole thereof at any time after ten years on paying five per cent, premium. * * * The remaining one hundred and forty-five thousand of said authorized issue of bonds are to be executed and deposited with the trustee in the mortgage hereafter referred to, and by it to be delivered to the treasurer of the Detroit United Railway, whenever requested by it, for sale, the proceeds thereof to be used for improvement and extension of the railway sold, and for no other purpose. The payment of all these bonds and interest is to be secured by a first mortgage on all the property sold, with usual and appropriate provisions to be approved by said Detroit United Railway.
The Detroit & Northwestern Railway hereby covenants :
“ (1) That it has and will sell and deliver to the purchaser subsisting rights of way and municipal grants of right of occupation in streets and highways, for the entire length of its route, and for all tracks now laid and operated by it, and that the same are not liable to forfeiture or reversion because of any act or omission on its part, prior to May 1, 1901. Abstracts of title to all real estate and copies of all grants in the streets and highways and grants of easements and rights of way shall be furnished forthwith to purchaser.
“ (2) That the property shall be free and clear from all liens and adverse rights or titles and incumbrances, and that all debts, dues, demands and claims of every name and nature against said Detroit & Northwestern Railway, or its property and assets, which accrued prior to May 1, 1901, shall be fully satisfied and discharged before delivery of the purchase price. This includes amongst all others, all claims for unliquidated damages arising out of negligent injury and other causes. This also includes immediate retirement and cancellation of all existing outstanding and authorized bonds, whether actually issued or not, and the discharge and cancellation of any and all mortgage on said property.
“ (3) That the proposed sale shall be consented to by not less than $489,300.00 of the capital stock of said Detroit & Northwestern Railway, and not less than $489,300.00 of the capital stock shall be transferred to such person or persons as said Detroit United Railway may direct. The purchaser shall also be indemnified by E. W. Voigt against any and all claims that may be made by or on behalf of any stockholder not consenting to such sale, on account of said sale, or any matter connected therewith, or arising therefrom, or any claim for the value of said non-consenting stock. Said indemnity shall be included in a certain trust mortgage to be made by said Voigt to the Union Trust Company, to secure advances to him to pay floating and unsecured indebtedness of said Detroit & Northwestern Railway. * * *
“The Union Trust Company, Detroit, The Preston National Bank, Detroit, and W. J. Haynes & Sons, of Cleveland, all being creditors and holders of now outstanding bonds of said Detroit & Northwestern Railway, shall eotemporaneously with the execution and delivery of this agreement, execute and deliver to the purchaser a joint and several guarantee of the peformance of covenant number two hereinbefore set forth. The said guarantee to be as follows: Whereas, the Detroit &• Northwestern Railway has this day agreed to sell, and the Detroit United Railway has agreed to buy, all of the railway property and assets of said Detroit & Northwestern Railway, upon the terms, covenants and conditions set forth in the agreement to which this is attached and made a part; and whereas, said Detroit & Northwestern Railway is financially embarrassed and unable to pay its debts or the interest thereon and is insolvent, and the undersigned are creditors and bondholders thereof: Now, therefore, in consideration of the premises and of one dollar to us in hand paid by the Detroit United Railway, and other good and valuable considerations, we, the undersigned, do hereby guarantee the faithful performance by said Detroit & Northwestern Railway of the covenant number two (2) in said agreement, that is to say: That the property when sold and delivered to said Detroit United Railway shall be free from all liens, adverse rights, titles and encumbrances, and that all debts due and demands and claims of every name and nature against said Detroit & Northwestern Railway, on its property for which it was liable May 1, 1901, shall be fully paid, satisfied and discharged before the delivery of the purchase price, and to save the Detroit United Railway and such vendee as it may designate harmless on account thereof. This includes all claims for negligence or other injury, also the retirement and cancellation of all existing outstanding or authorized bonds, whether actually issued or not, and the discharge and cancellation of any mortgage on the property or any part thereof.
“(6) The property shall be conveyed and delivered on the said terms aforesaid on or before June 1, 1901. Inasmuch as the property is to be taken over, as of May 1, 1901, it is agreed: That immediately upon the execution of this agreement, the Detroit St Northwestern Railway shall put, and continue thenceforward, the operation of said line in the full and absolute control, management and operation of such person or persons as the Detroit United Railway shall designate, with power to receive and control all earnings and moneys accruing or otherwise coming to said Detroit & Northwestern Railway. The Detroit United Railway hereby agrees to acquire and take over the property hereinbefore described and referred, to, on the terms aforesaid.” '

The guaranties referred to were executed and the property turned over to the Detroit United Railway Company. It is not shown that the $855,000 of bonds guaranteed were not the full value of the property. It is not shown that the stockholders of the Detroit & Northwestern Railway ever received anything for their stock, either cash or stock of the Detroit United Railway.

It is contended by counsel for complainant that the case is within Grenell v. Detroit Gas Co., 112 Mich. 70 (70 N. W. 413), Shadford v. Railway, 130 Mich. 300 (89 N. W. 960), and Green v. Railways Co., 159 Mich. 58 (123 N. W. 607). A reference to those cases will show they are easily distinguishable. The instant case is more like Chase v. Telephone Co., 121 Mich. 631 (80 N. W. 717), and O. W. Shipman Co. v. Railway, 140 Mich. 589 (104 N. W. 24). It will be noticed the sale of the road was made more than two years before complainant obtained his judgment. It is not until the judgment is obtained that the statutory lien attaches.

The decree is affirmed, with costs.

McAlvay, Blair, Ostrander, and Bird, JJ., concurred.