author: BROOKE, J.

text:
    LA VASSER v. CHESBROUGH LUMBER CO.
    1. Certiorari — Appeal and Error — Plea in Abatement — Review.
    While certiorari is the remedy by which to review the overruling of a plea in abatement, the court, on appeal, may pass upon the merits of the case, notwithstanding the impropriety or irregularity of a review by writ of error.
    2. Judgment — Abatement oe Action — Breach op Contract.
    A judgment in a suit brought by the plaintiff for failure of defendant to make advancements under the provisions of a lumbering contract, thereby compelling plaintiff to abandon performance of the same, was a complete' bar to a subsequent action, counting upon the same contract, for damages sustained by reason of its breach in the form of lost profits.
    3. Same — Remedies—Election.
    Under a contract for the carrying out of a timbering arrangement, the contractor may bring suit for the breach, or, in his option, ignore the contract, and sue for labor or services which he may have expended in its performance; but the cause of action is not divisible, and a judgment for such labor barred any further action.
    4. Res Judicata — Judgment—Conclusiveness.
    A prior judgment bars a subsequent action upon the same facts as to all matters which might have been tried under the issues made. Plaintiff, having recovered on the quantum meruit for advances which had been made and labor performed under a contract, was not entitled afterwards to recover profits which he might have lost by reason of its breach.
    Error to Chippewa; Fead, J.
    Submitted January 14, 1916.
    (Docket No. 111.)
    Decided March 30, 1916.
    Assumpsit by Philip La Vasser against the Chesbrough Lumber Company, a corporation, for breach of a lumber contract. Defendant filed a plea in abatement, which, was overruled. Defendant brings error.
    Reversed.

      John W. Shine, for appellant.

      F. T. McDonald, for appellee.
   On March 27, 1912, plaintiff entered into a written contract with the defendant by the terms of which he undertook and agreed with said defendant to cut all of the pine and hemlock timber standing and lying on the lands described in said contract, and to deliver the same into the Tahquamenaw river, Chippewa county, Mich., which timber was estimated to be about 5,000,000 feet. The tract to be lumbered was a large one extending back from the Tahquamenaw river a distance of 3 or 4 miles. Under the terms of the contract plaintiff was to receive $7 per thousand feet for all timber cut and delivered into the river, and it was. agreed that approximately 2,500,000 feet should be so delivered during the summer of 1912. Operating under the contract, plaintiff, during the summer of 1912, cut and delivered into the river approximately 1,500,-000 feet of logs, and banked on the banks of the river something over 800,000 feet. On February 2, 1913, plaintiff quit work under said contract and abandoned it, claiming that defendant had breached the contract in that it had failed to make payments to the plaintiff in accordance with the terms thereof, which breach on the part of the defendant rendered it impossible for the plaintiff to continue his operations under the contract because of lack of funds. On March 1, 1913, plaintiff filed a proper statement of lien under the so-called log lien law, 3 Comp. Laws, § 10756 et seq. (3 Comp. Laws 1915, § 14843). This action on thd part of the plaintiff was followed by the filing of a declaration in assumpsit on June 24, 1913. By his declaration in this case plaintiff sought to recover for the value ■of his work and labor performed under the contract, and by an amendment to the declaration the contract was made a part thereof. The defendant filed a plea, and gave notice therein that it would show that plaintiff had abandoned his contract without just cause, and that it (defendant) had sustained certain specified damages by reason therfeof. The issue so framed came an to be tried before a jury. In that case the court charged:

“However, if you find that the plaintiff was endeavoring to fulfill the contract according to its terms, that he had banked sufficient timber so that he had some money due him from the defendant on the contract, that he demanded such money from the defendant, notifying the defendant that he could not proceed with the work without such money, and that defendant gave him a draft or check in payment thereof, which draft was not paid, and that, by reason of its nonpayment, and by reason of the fact that the defendant did not pay the plaintiff at that time, under those circumstances the plaintiff found it impossible to proceed with the work, he cannot be held to have abandoned his contract, and would be entitled to collect for work he had done there a fair and reasonable value of the services. * * * Now, if the defendant rendered it impossible for plaintiff to perform his contract under such conditions as I have stated, then the plaintiff is entitled to recover a fair value of the work he performed, and the defendant is not entitled to recoup its damages, if it has any.
“Something has been said about the contract price being the measure of plaintiff’s damages. I charge you that the contract price does not govern the matter, the rule being that the plaintiff would be entitled to recover what the testimony shows is a fair, just, and reasonable value of the work which he performed. That you will determine from the evidence, and you must confine it within the prices stated in the evidence. * * * On the other hand, if he was prevented from performing the contract by the acts of defendant, as stated before, then he would be entitled to the fair and reasonable value of his services performed. ■ * * *
“In this case it is incumbent upon the plaintiff to' prove the amount of logs which he got out, and to prove the reasonable value of the services in getting them out by a preponderance of the' evidence.”

Under this charge the plaintiff had verdict in the sum of $4,642.98, which judgment has been paid in full.

On December 18, 1914, and after the suit outlined above had proceeded to judgment, plaintiff filed another declaration counting upon the same contract involved in the first case and averring its breach. The first count of said declaration is based on loss of profits which plaintiff would have derived from the completion of the contract. The second count is based upon loss of profits covering the value of certain steel rails and cars used in part performance, and intended for use in completing the contract. The third count is based upon loss of profits for lumbering certain lands mentioned in the’ contract under the claim that the defendant did not own the timber thereon, and for the expense of moving camp by reason thereof.

To this declaration, which is the one under consideration in the suit at bar, defendant filed a plea in abatement, setting out the proceedings in the earlier suit, and claiming that the judgment in the earlier suit constitutes a bar to the prosecution of the second action. Issue was joined upon the plea in abatement, and defendant offered in evidence the files and records in the earlier action and rested, whereupon an order was entered overruling defendant’s plea in abatement and granting to it the usual time to plead. In this court, defendant reviews said determination by writ of error.

BROOKE, J.

{after stating the facts). On behalf of the plaintiff it is contended primarily that defendant has mistaken its remedy, and that review should have been-sought by certiorari instead of by writ of error. Under the late decision of City of Sault Ste. Marie v. Railway Co., 184 Mich. 681 (151 N. W. 649), it appears that certiorari is the proper method of reviewing an order overruling a plea in abatement. That case, however, which was a review of a similar order overruling a plea in abatement was there considered upon its merits, and inasmuch as the case at bar has been carefully briefed upon both sides, we will here, as we did there, pass upon the merits of the controversy.

In the case of Hemminger v. Assurance Co., 95 Mich. 355 (54 N. W. 949), it is said:

“The general rule is well settled that a party to a contract where labor is to be performed, upon the breach of that contract by the other party, has two remedies open to him. He may sue upon the contract, and recover damages for its breach, or he may ignore the contract, and sue for services and labor expended, and expenses incurred, from which he has derived no benefit [citing cases].”

In Jungnitsch v. Iron Co., 121 Mich. 460 (80 N. W. 245), it is said:

“The cause of action was not divisible, and the cause of action here set out was within the issue presented by the former case. The rule is settled that a prior judgment is a bar to all the matters that might have been tried under the issue made [citing cases].”

In Andreas v. School District, 138 Mich. 54 (100 N. W. 1021), this court said:

“The principle that an indivisble cause of action cannot be split up is well settled in this court [citing cases].”

There is no doubt that under the established law of this State a prior judgment is a bar to all matters that might have been tried under the issue made. Detroit, etc., R. Co. v. McCammon, 108 Mich. 368 (66 N. W. 471), and cases there cited; Carr v. Brick, 113 Mich. 664 (71 N. W. 1103); Kellogg v. Thompson’s Estate, 115 Mich. 618 (72 N. W. 893); Jungnitsch v. Iron Co., supra; Burgess v. Stribling, 134 Mich. 33 (95 N. W. 1001).

It cannot be doubted that the case at bar is planted upon the same contract which was counted upon in the earlier case, and it is clear that in the case at bar plaintiff seeks to recover damages for the same breach of that contract, proof of which breach was necessary to his recovery in the earlier case. Defendant having breached the contract, plaintiff then had a choice of remedies. He had the right to ignore the contract and recover on the quantum meruit, which he did, or to sue upon the contract, recovering damages for its breach. It will be readily seen that the two remedies are inconsistent. If he brought suit under the contract, his recovery for work and labor performed would be limited to the amount specified for such work and labor in the contract, whereas when by defendant’s default he is prevented from performing and sues upon the quantum meruit, he may recover the value of such services, entirely irrespective of the limitations of the contract. Recovery under this measure of damages, under the charge of the court set forth in the statement of facts, the plaintiff has had, and a judgment based upon such recovery has been paid. Under the authorities cited, he is precluded from now bringing a second action where a different measure of damages would be applicable. It is no answer to this proposition to say that proceeding under the statute which gave to the plaintiff a lien for work and labor upon forest products, he was limited to a recovery upon the quantum meruit. He still had his election. In other words, he was not obliged to proceed under the statute, but might have sued upon the contract, recovering damages for the breach thereof.

The order overruling defendant’s plea in abatement is reversed, and the case is remanded to the circuit .court where an order will be entered sustaining said plea. Defendant will recover costs of both courts.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    KNOWLES v. SMITH.
    1. Trover and Conversion — Demand—Sale of Property.
    Where plaintiff stored a quantity of machinery in the building of a corporation, of which one of the defendants was treasurer, paying an agreed amount for storage, and' a fire occurred that damaged the machinery and some property of the corporation, and, on learning of it, plaintiff went to the building to get his machinery, but found the premises in charge of a watchman who refused to let him remove the property, afterwards writing the . official in charge, but receiving no response, and the defendant sold all the personal property that was later removed, there was no necessity of a demand before suit, and, hence, a letter which plaintiff wrote to the defendant in relation to getting back his machinery was not essential to plaintiff’s case. Held, also, that the action of the aforesaid defendant who participated in the sale could not be treated as merely in a clerical capacity.
    2. Same — Agency;—Liabiijcty.
    An agent, as well as his principal, may be held liable for conversion. „
    3. Same — Evidence.
    And an agent who tried to determine whether ■ or not plaintiff owned the machinery, as he claimed to do, deciding that the claim was unfounded, and disposing of the machinery for his principal, was chargeable in trover.
    Error to Calhoun; North, J.
    Submitted January 6, 1916.
    (Docket No. 43.)
    Decided March 30, 1916.
    Trover by Elmer F. Knowles against William J. Smith and others for the conversion of certain machinery. Judgment for defendants, on a directed verdict. Plaintiff brings error.
    Reversed.

      R. G. Leitch, for appellant.

      Albert C. Kingman and Joseph L. Hooper, for appellee.
   This is an action in trover brought for the conversion of certain machinery. The record discloses the following material facts:

Prior to the year 1911 the Norka Food Company, Limited, was in business in Battle Creek. It appears that it went out of business in that year owning a factory, and .certain machinery and equipment located therein. The defendant William J. Smith was treasurer of the company. One C. C. Beach was also interested in the company. It seems that Beach held a mortgage upon the property of the company and secured the title to the machinery in question under foreclosure. Some time after the mortgage foreclosure, and probably in the year 1911, the plaintiff purchased a considerable amount of the machinery located in the building from Mr. Beach through a Mr. Griswold, Mr. Beach’s son-in-law. Plaintiff testifies that there were 10 separate sales, aggregating $405. Having no customer for the machinery at the time, plaintiff testified that he entered into an agreement with Mr. Griswold to the effect that the machinery might remain in the .building until the building was sold or rented, and upon the happening of either of said events plaintiff was to have sufficient notice so that he might remove his property. Later plaintiff entered into a further agreement with Mr. Griswold by the terms of which he was permitted to store in said building certain other machinery, paying for said privilege the sum of $1 per month. A short time after plaintiff had stored his machinery in the building the Commonwealth Power Company rented the building and stored therein several carloads of Portland cement, piling it on the machinery in such manner as to make it impossible to remove it. After the cement was placed in the building a fire occurred, damaging the building to some extent, and plaintiff’s machinery in a lesser degree. After the fire the plaintiff went to the building with the intention of taking his machinery therefrom, but found the building in charge of a watchman and was refused permission to take his property. Pie thereupon went to Mr. Beach, who referred him to Mr. Griswold. Plaintiff testifies that he endeavored to see Mr. Griswold and wrote him, but was never able to secure any answer to his letters, or obtain an interview with Mr. Griswold. No notice was ever served upon plaintiff to take his property from the building, where it remained until the fall of 1913. The record discloses that on the 29th day of October, 1913, defendant Smith, acting as agent for Beach, sold to one Silas Miller certain of the personal property located in the building. The sale was evidenced by the following memorandum:

“Battle Creek, Michigan, October 28, 1913.
“I hereby agree to purchase from the Norka Food Co., Ltd., all the salvage belonging to said company as result of their fire one year ago and to remove same from the premises.
“In consideration of the above, I am to pay the Norka Food Co., one thousand dollars ($1,000.00), as follows: Three hundred (300) dollars to be deposited to this account on November 6; two hundred (200) dollars on December 1; five hundred (500) dollars on or before January 7.
“On paying the-three’ hundred dollars ($300) I am to have the privilege of removing the brick from the preMses, but I hereby hold myself bounden and obliged to the Norka Food Co. not to remove any other material of. any name or nature from the premises until the entire amount of one thousand ($1,000.00) dollars has been paid in full.
“I hereby agree to leave the premises free and clear of all debris and rubbish of every name and nature, and will remove the building entire to the foundation wall. This is to be left intact ready for the construction of a new building, and all brick and other debris now in the cellar is to be removed so that the premises will present a clean appearance.
“Signed and sealed this 29th day of October, A. D; 1913.
[Signed] “Silas A. Miller. [L. S.]”

Plaintiff, learning that Miller claimed to be the owner of the property in the building which he had bought, and desiring to buy an oven which had not been included in his former purchase, went to see Mr. Smith in reference thereto. Plaintiff testified:

“I went to see Mr. W. J. Smith about the oven. I wanted to see if it was satisfactory to make payment for the oven to Si Miller. Mr. Smith told me that whatever terms I made with Mr. Miller would be satisfactory, but the payments should be made to him there at the bank, and he would give Mr. Miller credit for it. Mr. Smith told me that he had sold this property to Mr. Miller. He made no reservation of any property that was left out in his sale to Miller. Mr. Smith said he had sold everything to him; that is, everything that was in the factory. He stated that Mr. Nichols, and Mr. Bush and himself and Mr. Beach owned it, but that he was- the agent of it, or to that effect. I paid Mr. Smith for machines purchased from Mr. Miller by check made payable to the Norka Food Company. The check was indorsed by "Silas Miller’ and ‘Norka Food Company, by W. J. Smith, Treas.’ I didn’t at that time tell Mr. Smith that I had some property in the Norka Food building. As soon as I asked Mr. Smith about that oven, he turned and went off somewhere else. He was in a hurry, and as to my dealings, as I have good authority for dealing with Mr. Gris-wold, I did not know as it would help me any to get it all complicated. I saw Mr. Smith about my property a short time after that; it might have been four or six weeks.-. Mr. Miller and I were both present at this conversation about the machinery. Mr.. Miller claimed at that time that Mr. Smith had sold it to him. Mr. Smith did not deny it. The conversation was an endeavor to clean the matter up between the three of us amiably. I made no settlement of the matter then. I received no pay for any portion of it. I have lost my property by reason of the sale to Mr. Miller- by Mr. Smith and these gentlemen. The property has been moved from the Norka building. I wrote to Mr. Smith concerning my interest in that property. I never got any reply to that letter. That is the letter which I wrote to Mr. Smith concerning my property there.”

Subsequently Miller sold portions of this property to one Natchez under a written contract as follows:

“Battle Creek, Mich., March 4,1914.
“Mr. Shay Natchez agrees to buy all iron of the Norka building, steel, cast iron and wrought iron, also to take the engine where it stands, and get it out himself. All other iron is to be put out of the building in yard. Miller to reserve as many straight eye beams as he likes and six iron posts and some piping at eight dollars per 2,000 lbs. — $100.00 to be paid down, and balancé to be paid as; iron is taken away.
“Shay Natchez.
“Silas A. Miller.”

And a further portion under a second written contract as follows:

“Battle Creek, Mich., April 7, 1914.
“This agreement made between Shay Natchez and Silas A. Miller. This agreement is to take the place of an agreement made March 4, 1914, for iron at the Norka plant. Shay Natchez is to pay six hundred ■dollars ($600.00) for the iron at the Norka plant, Silas A. Miller to reserve the oven and all fixtures pertaining to oven, the boiler and all fixtures belonging to it and water heater, also all soil pipe and water pipe and galvanized pipe, the balance of the junk to go to Shay Natchez. ($300.00) Three hundred dollars check to be given today which is guaranteed to be good, and ($300.00) three hundred dollars to be paid from the cast iron which is to be shipped to Nichols & Shepard Co. and an order given on them to pay Silas A. Miller ($300.00) three hundred dollars. No iron to be removed except as above till ($600.00) is paid in full.
“Shay Natchez.
“Silas A. Miller.”

It appears to be undisputed that the property purchased from Miller by Natchez included at least a portion of the machinery which had been sold by Griswold to plaintiff, and it is undisputed that the money paid by Natchez to Miller, was immediately turned over by Miller to Smith, and by Smith credited to the account of the Norka Food Company, Limited, in the Old National Bank of Battle- Creek, of which Smith is vice president. Mr. Smith on cross-examination admitted that plaintiff made a claim of ownership of the property which he (Smith) under the direction of Beach had sold to Miller. He testified:

“I told Mr. Knowles I would investigate the matter with Mr. Beach. I saw Mr. Beach, and said: ‘A gentleman named Knowles was introduced to me the other day, and he says that he has $50 worth of stuff there, and that either the Norka Food Company or Mr. Miller should pay him $50/ He said: T will have to take it up with Fred/ So I took it up with him and asked him about it a few days later' when he came into the bank.
“Q. That is Mr. Griswold?
“A. Yes. He said: T have asked Fred about that, and Fred says he don’t remember that stuff or whether he took it away at the time he bought it, and at the time of the fire he could not have had at any rate more than $150 worth of stuff, and that was left there at his own risk subject to everything that went on/ I gave the matter no further attention, because Mr. Beach was a man of truth and veracity in this community, and I paid no more attention to it.
“Q. Remember telling me that the reason you would do nothing about this matter was that you had nothing but Mr. Knowles’ bare word for the fact that he owned anything?
“A. That is all I did have, but I don’t remember telling you that, but I remember telling Mr. Knowles that at the time he asked for the $50.
“Q. Would you say that that was a sufficient answer to a man whose property you had sold?
“A. I had no knowledge of anything belonging to Mr. Knowles.
“Q. But if you had sold it?
“A. If I had I should have answered him differently. I did not say that directly to Mr. Knowles. I know various people have purchased things up there, and, so far as my having proof of the things, I would not know any more about it than if half a dozen people came up there and said they had purchased something and left it there. I said: ‘That is no disrespect to
youj but you have no proof of it any more than any one else who would have the same claim.’
“Q. Did you know at the time that you accepted the check for $300 that Mr. Knowles was claiming some machinery out of the Norka building?
“A. I knew nothing more than what Mr.'Knowles told me at the first conversation.
“Q. The claim Mr. Knowles made to you was some time prior to the time when you accepted the $300 check? " *
“A. Yes; Mr. Knowles made his claim, I think, within two or three weeks. Mr. Miller had not even moved any of the property when Mr. Knowles was introduced to me. I never paid very much attention to this matter.***
“Q. And, in fact, none of the property was allowed to be removed until the money was put in your hands ?
“A. So far as I know, the deposits were made satisfactorily; that is all.
“Q. The selling price of the property was $1,000?
“A. Yes, sir.
“Q. It has been all paid?
“A. All been paid; yes, sir. * * *
“Q. Your knowledge of the claim of Mr. Knowles was acquired before the money was paid to you by Mr. Miller in this case, wasn’t it?
“A. I think so. I think Mr. Miller paid down some $300, and I think Mr. Knowles afterward paid, but I have no record of the dates. I was only concerned in one thing, and that was that the property be paid for, and that was all. * * *
“Q. Did you ever inform Mr. Natchez that there was any dispute about the property there in the plant?
“A. -No, sir; I do not recall meeting Mr. Natchez, only, as I stated before, when he came in with Mr. Miller with some kind of a contract, and I was too busy to look at it, and I said: ‘That is all right so far as you gentlemen are concerned. I don’t know anything about your affairs, and all that I am concerned in is that you pay for the property, whoever gets it/
“Q. You knew that he was purchasing this property of Mr. Miller?
“A. Well, I wouldn’t know that only as he told me, or he and Mr. Miller came in and said they were°negotiating. *
“Q. You did not warn him that there was some property down there that belonged to Mr. Knowles?
“A. No, sir.
“Q. You knew what Mr. Knowles claimed?
“A. I knew what he claimed, but I investigated, and Mr. Beach said he did not think there was any, and that was all there was of it.”

A verdict was directed in favor of defendants in the following charge:

“The record may show that the motion to dismiss as to the defendants Nichols and Bush is granted, and that I think is conceded by counsel on both sides of the case is probably the proper disposition of them. As to the other defendant, Smith, I am also going to direct a verdict; and I will explain to the jury that it is a trover case, and the counsel for the defendants have raised the question that at least as to the two defendants Bush and Nichols there is no showing whatever that they were connected with the receipt or sale of the property which was a matter of which they had no knowledge; it was entirely foreign to their affairs, and there could be no liability on their part. As to the other defendant, William J. Smith, the testimony in the case shows that whatever was done in the way of selling the property which might have belonged to the plaintiff in this case that was done through Mr. Beach and Mr. Smith’s connection with it was only in a clerical capacity, in which he dictated the memorandum or contract Exhibit 5 in this case, and even in that instrument, which is the only instrument containing the terms of the sale, it is provided that the goods purchased by Mr. Miller were those that belonged to the Norka Food Company, Limited, as follows, ‘all salvage belonging to the Norka Food Co., Ltd.,’ so, of course, it did not contain the property of Mr. Knowles, so that there was no sale of the property of Mr. Knowles. Further than that, whatever money, if any, has been paid for any portion of that salvage was paid to the Norka Food Company, and of course passed through Mr. Smith’s hands simply as treasurer, and he had nothing more to do with it than the postman who carries an envelope where it is addressed with a check in it, so that he cannot be held on the theory that he received a portion of the purchase price. It all comes to this, that if there was a conversion, it was not a conversion for which Mr. Smith was responsible, but some other party. Besides that, there is another legal reason in regard to whether or not there was a proper demand against one who had come legally into possession of property, and the evidence does not show such a demand as required by law.”

Plaintiff seeks a reversal of the case in this court under two assignments of error:

“First. That the trial court erred in sustaining the defendant’s objection to the plaintiff’s tender of proof relating to a demand on the part of the plaintiff; the error being the court’s refusal to permit Exhibit 2 to be read in evidence.
“Second. That the court erred in directing a verdict for the defendants or either of them.”

Brooke, J.

(after stating the facts). Wé find it unnecessary to consider the first assignment for two reasons: (1) Because Exhibit 2, a letter from plaintiff to defendant Smith written on July 6, 1914, was written after the alleged conversion, and cannot properly be construed as a demand; (2) because, under the circumstances of this case, we are of opinion that no demand was necessary before commencement of suit. Galvin v. Brass & Iron Works, 81 Mich. 16 (45 N. W. 654); Kenney v. Ranney, 96 Mich. 617 (55 N. W. 982); and Crozier v. Partrick, 98 Mich. 349 (57 N. W. 174).

The holding of the learned circuit judge that defendant Smith could not be held liable because he acted simply in a clerical capacity is, we think, unwarranted by the facts as disclosed in the record. While it is true that Mr. Smith testified that he dictated the memorandum of agreement for the purchase of the property, which Miller signed, his connection with the matter did not there cease. After that memorandum was made and executed by Miller, Smith was notified by plaintiff that he claimed to .own a portion of the property sold to Miller. Smith undertook to investigate the truth or falsity of said claim, and became satisfied that it was groundless, and thereafter himself received the money for the property sold by Miller to Natchez. That an agent, as well as' his principal, may be held liable for conversion in an action of trover, is settled in this State. McDonald v. McKinnon, 92 Mich. 254 (52 N. W. 303). See, also, 38 Cyc. p. 2056, and cases cited in note 38; 2 C. J. pp. 824, 827, and cases cited; 1 Am. & Eng. Enc. Law, p. 1131, and cases cited.

We think under the evidence a conversion was fairly made to appear on the part of defendant Smith. Daggett v. Davis, 53 Mich. 35, 38 (18 N. W. 548, 51 Am. Rep. 91); Gibbons v. Farwell, 63 Mich. 344 (29 N. W. 855, 6 Am. St. Rep. 301); Crane Lumber Co. v. Bellows, 116 Mich. 304 (74 N. W. 481).

A verdict was properly directed in favor of defendants Bush and Nichols, as there was no evidence tending to connect thdm with the unlawful conversion.

The judgment is reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, SteEre, and Person, jj., concurred.


text:
    MORRIS v. KUHN. (MORRIS v. VYSE.)
    1. Appeal and Error — Plea.
    An appeal does not lie from an order overruling a plea, not to tbe merits, but of a dilatory nature.
    ' 2. Equity — Multifariousness—Demurrer.
    Tbe point that plaintiff’s bill is multifarious cannot be raised by a plea; it is properly presented by demurrer, only.
    Error to Wayne; Hosmer, J.
    Submitted January 6, 1916.
    (Docket No. 42.)
    Decided March 30, 1916.
    Bill by Joseph C. Morris, administrator de bonis non of the estate of Charles L. Fish, deceased, against Maud A. Kuhn, Tillie Vyse and Mary A. Richards to impress a trust upon certain real estate and for an accounting. From an order overruling the plea of defendants Kuhn and Richards, they appeal.
    Affirmed.

      William E. Henze, for complainant.

      Wilkinson, Boutier & Hinkley, for defendants.
   Brooke, J.

This case was before the court on a former occasion. Morris v. Vyse, 154 Mich. 253 (117 N. W. 639, 129 Am. St. Rep. 472). A sufficient statement of the facts involved will be found in that opinion. We there overruled defendants’ demurrer, and granted to them the usual time in which to answer. Instead of answering simply, they filed a plea and answer. The plea is based primarily upon the ground that the petitions filed in the probate court for the county of Wayne for the appointment of Ruggles as administrator, or for the appointment of Morris (complainant) as administrator de bonis non of the estate of Fish, did not set forth sufficient facts to warrant the appointment of either of said persons as administrators, in that they did not allege that defendant Vyse was insolvent, or that defendants Richards and Kuhn were in any way concerned in the fraud alleged to have been perpetrated against Fish, or that it was necessary for the preservation of the estate to impress a trust upon the property in Wayne county, and that said petition did not state that defendants Kuhn and Richards are holding the property, for the use and benefit of the said Vyse, and in furtherance of the perpetration of the fraud practiced by defendant Vyse upon Fish, by means of which she obtained the money in question. The second ground of the plea is based upon the alleged fact that the bill is multifarious. The plea raises no issue of fact. Arguments were had upon the plea, and the same was overruled by the trial court. Defendants have removed the case to this court for review.

We have lately held that a plea which does not affect the merits of the entire controversy is not a final order, and therefore not appealable. All the cases bearing upon this question are examined and harmonized in the case of Hagar v. Schliess, 183 Mich. 610 (149 N. W. 1058).

With reference to the alleged fact that the bill is multifarious, We need only say that under our own decisions this point can be raised only by demurrer. Snook v. Pearsall, 95 Mich. 534 (55 N. W. 459); Burnham v. Dillon, 100 Mich. 352 (59 N. W. 176); Miner v. Wilson, 107 Mich. 57 (64 N. W. 874). .

The order overruling defendants’ plea is affirmed;

Stone, C. J., and Kuhn, Ostrander, Bird, Moore,Steere, and Person, JJ., concurred.


text:
    HARBAUGH v. CITIZENS TELEPHONE CO.
    1. Teeegeaphs and Telephones- — -Neglect to Furnish Service— Tort Action — Assumpsit.
    A declaration in trespass on the case against a telephone corporation, setting up a contract for service with the defendant telephone company, and alleging that the defendant wrongfully, maliciously, unjustly, carelessly and negligently refused to connect plaintiff’s telephone with the city exchange of the defendant during a week named, charging loss of business, inconvenience, etc., sounded in tort and stated a recognized cause of action for which damages were recoverable.
    2. Damages — Contracts—Telephones.
    In such an action compensatory damages include all other damages than punitive, thus embracing not only special damages, as direct pecuniary loss, but injury to feelings, annoyance, etc., and, without proof of malice or reckless interruption of the service, plaintiff could not recover punitive damages. But the actual damages might properly include just compensation for such annoyance and inconvenience as he had suffered.
    3. Damages — Loss of Profits — Evidence.
    The testimony of the subscriber that his profits decreased, and about how much, and testimony what his profits were before, during and after the interruption of service, if supplemented by testimony that no other cause contributed to the decrease, was admissible; the question of damages for profits last should have been left to the jury by the trial court, under proper instructions.
    4. Telegraphs and Telephones — Breach of Contract.
    Under the terms of a contract for telephone service that provided the subscriber might, by paying an amount in addition to the regular rental, on or before the 20th of the second month, adjust his quarterly charge, the defendant was not entitled to remove his telephone before that date for nonpayment of the rent.
    Error to Kent; McDonald, J.
    Submitted January 11, 1916.
    (Docket No. 96.)
    Decided March 30, 1916.
    Case by Verde D. Harbaugh, doing business as the Electric Service Company, against the Citizens Telephone Company, a corporation, for the breach of a telephone contract. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Shelby B. Schurtz (H. Monroe Dunham, and John M. Dunham, of counsel), for appellant.

      Colin P. Campbell, for appellee.
   Plaintiff in this case declares against defendant “of a plea of trespass on the case.” He charges in his declaration that the defendant is the owner and proprietor of a telephone exchange in the city of Grand Rapids; that on the 15th day of October, 1914, he entered into a contract with said defendant for one year’s service of a business telephone at the rate of $36 per year, to be paid in quarterly installments in advance. The rent was paid to January 1, 1915. ' The contract provides:

“The subscriber agrees that if he does not make said quarterly payment at the company’s office on or before the twentieth (20th) day of first month of the quarter that he will pay an additional 75 cents as compensation for the additional cost of collecting and handling the account, and with the further understanding that if he does not pay said quarterly rental and the additional 75 cents on or before the twentieth (20th) day of the second month of the quarter, that said Citizens’ Telephone Company may, without further notice, discontinue his service and remove the telephone and the apparatus covered by this contract.”

It is further charged that on the 5th day of February the defendant company “wrongfully, maliciously, unjustly, carelessly, and negligently refused to connect said plaintiff’s telephone with said defendant’s exchange in the city of Grand Rapids, Mich., from Friday, February 5, 1915, up to Friday, February 12, 1915,” at which time service was restored. Plaintiff avers that by reason of said unlawful act of the defendant he “suffered great inconvenience, annoyance, humiliation, and loss of business, and was totally unable to send or receive telephone messages from February 5, 1915, to February 12, 1915, and was utterly unable to transact his usual business” to his damage, $5,000. To this declaration the defendant interposed a plea of the general issue. Upon the trial the plaintiff gave testimony, showing the discontinuance of his service during the eight days mentioned in the declaration. The telephone in question was what is known as a “business telephone,” plaintiff being engaged in electrical work. Several witnesses were sworn on behalf of the plaintiff, who testified that they had endeavored, but unsuccessfully, to secure communication with plaintiff by telephone, and that they were informed that the telephone had been taken out. One customer gave evidence to the effect that, failing to communicate with plaintiff by telephone, he went to his place of business, whei;e he personally gave the order which he had intended to give by telephone. On direct examination plaintiff was asked:

“Q. Have you learned of any contracts since February that you did not get by reason of not having a telephone? '
“A. No, I don’t know of any I did not get; I learned of some, but people come to me and told me about them and then I got them. I don’t know a thing I did not get.
“Q. Have you learned from any one of orders being telephoned to your house — I am asking you from February 5 to February 12th — that you did not get and which went to somebody else, and that you had nothing to do with by reason of your phone not being in?
“A. No, sir.”

Prior to the giving of the foregoing testimony, counsel for plaintiff had endeavored to show plaintiff’s damages by inquiring what his profits were prior to February 5th, what they were between February 5th and February 12th while the service was discontinued, and what they were after February 12th. Under objection this line of inquiry was excluded by the court who said:

“You cannot show it [loss of profits] by showing he made so much the week before or so much the week later, or average up his business to show that he lost so much that week; that would not be the correct way to measure the loss of profits during that week. But if he knows that he lost a third of his business, for instance a third of his profits during that week, that must be based upon some orders of which he has knowledge. If he can show how he lost that third, I will allow you to do so.”

Counsel for plaintiff then said:

“To be brief, I will state my position in this matter, and that is this: In the measure of damages as determining the loss of profits, it is my theory and contention that I have a right to go fully into his business prior to February 5th and his business to February 12th after that, and as to how it varies from February 5th to 12th, the loss of that service affected the profit at that time and subsequent to that, a general inquiry. I think the court ruled it out yesterday. * * * I will offer * * * to show inconvenience and annoyance to this plaintiff, and that during this period men who had telephoned to him orders previously came to his house because of the fact that his phone was out of order and all orders that he has since learned he-did not get by reason of the phone cut out.”

The court said:

“That includes some things that you would be allowed to prove if you could make proper proof of them. So far as they offer to'show annoyance and inconvenience and humiliation, as you state in your declaration that offered, that proof will be excluded. In order to make the record plain, I will state that if you can show what profits you lost during that week, I will take it. That is the measure of damages. What would be one of the measures of damages would be what you lost on the profits of your work during the, time you didn’t have any phone, but you must show that in a proper way. It cannot be speculative. You cannot speculate in regard to what he probably lost; but if you know what orders he lost and can show what his profits would have been, you may do so. I want the record to state plainly that I did not exclude it.”

Plaintiff then gave the testimony quoted above, showing that he knew of no orders which he did not get by reason of interruption of the service. Under the ruling of the trial court, there was, of course, no evidence of loss of profits, nor of annoyance, inconvenience, or humiliation. The court offered to direct a verdict in favor of the plaintiff for the amount of the rental covering the period of seven days, which offer the plaintiff declined, his counsel saying:

“That is. not our theory, our claim at all. We do not claim to be able to recover for that.”

The court thereupon directed a verdict for defendant, and plaintiff has removed the case to this court for review.

Brooke, J.

(after stating the facts). Counsel for plaintiff state that:

“The only points in dispute in this case are: First, does this right of action sound in tort; and, second, what is the proper measure of damages?”

It is plaintiff’s claim that the action, though based upon a breach of the contract, nevertheless, is one sounding in tort. It is pointed out that the duty of the defendant to furnish telephone service to the plaintiff is fixed by statute (Act No. 206, Pub. Acts 1913 [2 Comp. Laws 1915, § 6691]), and that the contract between the parties simply measures the terms upon which such service is to be rendered.

Reference is made to the discussion of the question by Mr. Cooley in his work on Torts (3d Ed.), pp. 156, 159, where he says:

“Indeed in many cases an action as for a tort or an action as for a breach of contract may be brought by the same party on the same state of facts. * * * There are also in certain relations duties imposed by law a failure to perforrh which is regarded as a tort, though the relations themselves may be formed by contract covering the same ground. A case of the common carrier furnishes us with a conspicuous illustration. The law requires him to carry with impartiality and safety for those who offer. If he fails to do so, he is chargeable with a tort. * * * So in cases of telegraph companies. For negligence in sending a message, either contract or tort will lie.”

In the case of Church v. Anti-Kalsomine Co., 118 Mich. 219 (76 N. W. 383), plaintiff sued in tort for the fraudulent destruction of profits, which should have accrued to plaintiff. A demurrer to the declaration was overruled by this court. We there said:

“While it is true the cause of action arose because of the contract relations between the parties, a considerable part of the case of the plaintiff rests upon matters outside of the contract, not a part of it, but connected with and dependent upon it, growing out of the duty which defendant owed to plaintiff” (citing cases).

Actions in tort under similar circumstances have been upheld in several jurisdictions. Rose v. Telephone Co. (Sup.), 147 N. Y. Supp. 1021; Southwestern Telegraph, etc., Co. v. Danaher, 102 Ark. 547 (144 S. W. 925); Glawson v. Telephone & Telegraph Co., 9 Ga. App. 450 (71 S. E. 747). See, also, Rich v. Railroad Co., 87 N. Y. 382.

In the case of Carmichael v. Telephone & Telegraph Co., 157 N. C. 21 (72 S. E. 619, 39 L. R. A. [N. S.] 651, Am. & Eng. Ann. Cas. 1913B, 1117), plaintiff sued in tort for damages growing out of the wrongful interruption of telephone service from Saturday night until the following Monday morning. In the lower court a judgment was directed for the plaintiff in the amount of $3, the sum wrongfully exacted from him as a condition precedent to the restoration of service. The appellate court reversed the judgment and ordered a new trial holding that:

“ ‘Actual,’ in the sense of compensatory damages, is not restricted necessarily to the actual loss in time or money. The claimant may be confined to this, if the jury so determine; but more than this is contained in the term, and more than this is covered by the issue.”

And again: ■

“ ‘Compensatory damages include all other damages (than punitive, thus embracing not only special damage as direct pecuniary loss, but injury to feelings, mental anguish,’ etc., citing 18 Am. & Eng. Enc. Law (2d Ed.), 1082; Hale on Damages, pp. 99, 106.”

In Cumberland Telephone, etc., Co. v. Hendon, 114 Ky. 501 (71 S. W. 435, 60 L. R. A. 849, 102 Am. St. Rep. 290), it was held that" the measure of damages for wrongfully disconnecting a telephone because of mistake as to the payment of rent is the amount which will compensate the patron for the injuries caused by the breach of contract. In Cumberland Telegraph, etc., Co. v. Hobart, 89 Miss. 252 (42 South. 349, 119 Am. St. Rep. 702), it was held that such damages may include compensation for the pecuniary loss, and also for inconvenience and annoyance occasioned by being without the use of the telephone, since the damage sustained by the loss of a telephone in its very nature is largely composed of inconvenience and annoyance. See, also, cases cited in the note in 39 L. R. A. (N. S.) page 651. A further discussion of the matter will be found in the note in Am. & Eng. Ann. Cas. 1915A, 986.

A review of all the cases upon the subject leads us to the conclusion that in the absence of evidence that the defendant acted recklessly, negligently, or maliciously in interrupting the service, the plaintiff cannot recover punitive damages. His actual damages may, however, include a just compensation for such annoyance and inconvenience as he may be able to show he suffered by reason of defendant’s unlawful act.

The testimony excluded by the court relative to the plaintiff’s profits before, during and immediately after the interruption of service, we think, should have been admitted under proper safeguards. If plaintiff’s testimony tended to show that his profits fell off during the period of interruption, it would be necessary for him to supplement such testimony by evidence that such diminution of profits was due to no other cause than failure of his telephone service. It is recognized that such testimony is, at best, unsatisfactory. We are, however, of opinion that plaintiff should not be denied recovery for the wrongful act of defendant because of his inability to show his loss with absolute exactness and certainty.

Under the evidence and proper instructions from the court the question must finally be addressed to the common sense and good judgment of the jury.

The contention of defendant that plaintiff was in arrears at the time the phone was removed is not tenable. The contract itself provides that by paying 75 cents additional, the subscriber may pay his quarterly rental not later than the 20th of the second month (February in this case). The removal occurred on the 5th of February, and was therefore unwarranted according to the terms of the contract. The cases cited by counsel for defendant will be found digested in the notes hereinbefore referred to.

The judgment is reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.


author: Brooke,'J.

text:
    GRACE HARBOR LUMBER CO. v. ORTMAN.
    1. Mechanic’s Liens — Payment — Application of Amount Received — Election.
    A payment made by tbe general contractor to one having a lien, or right to claim a lien, for materials or labor which entered into the construction of a building, may be applied by the recipient as he may elect and if treated as in satisfaction of an amount due for other matters disconnected from the building no objection could be raised by the owner unless the contractor had in some manner stipulated as to the manner in which he wanted it applied.

      2. Same — Solicitor’s Fees — Expense of Suit.
    Since the statute permits the court to award solicitor’s fees in its discretion (3 Comp. Laws 1915, §§ 14807, 14816), $50 to each claimant could not be held to be excessive in amount for a hearing which lasted about eight days.
    3. Constitutional Law — Class Legislation — Mechanic’s Liens.
    The statutory provisions authorizing the award of solicitor’s fees to the successful parties in proceedings for the enforcement of mechanic’s liens were not invalid and the objection that it was class legislation could not be sustained.

    4. Mechanic’s Liens — Claim, Amount of — Good Faith — Equity —Parties.
    Complainant, in a mechanic’s lien proceeding, claimed that the contractor owed it a balance' of $1,486.14, which the court reduced, by allowing an agreed discount, to $1,363.19. Other claimants filed claims in excess of the total which was due and they were reduced ten per cent, or upwards by the court. Among the parties to the proceeding was included the surety company which had guar^ ' anteed the contractor’s performance. The bond provided that if the principal should pay or cause to be paid any . sum for which the obligee might obtain judgment the obligation should be void. Held, that the aforesaid claims filed viere not so excessive in amount as to indicate bad faith. Held, also, all rights could be considered add adjusted in the one cause and the bonding company was properly made a party.
    Appeal from Wayne; Murphy, J.
    Submitted January 13, 1916.
    (Docket No. 129.)
    Decided March 30, 1916.
    Bill by Grace Harbor Lumber Company, a corporation, against Ferdinand C. Ortman and others to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Wilkinson, Routier & Hinkley, for complainant and cross-complainant Bartlett Supply Company.

      E. S. Clarkson, for defendant Ortman.

      James H. Pound, for defendant Smilansky.

      As to constitutionality of statute giving attorney’s fee in suit to enforce mechanic’s lien, see note to 20 L. R. A. 565.- Also as to effect of filing excessive mechanic’s lien, see note to 29 L. R. A. (N. S.) 305.

   The bill in this case is filed for the purpose of enforcing a mechanic’s lien. Prior to the filing of the bill, the owner, Louis Smilansky, had released the liens of the complainant and the cross-complainants, the Bartlett Supply Company and Ferdinand C. Ortman, by filing a bond with the county clerk upon which bond William Friedman, Henry M. Weil, and Max Smilansky became sureties. Upon filing the bill the complainant made the three individuals who had signed the surety bond parties defendant, which course was followed by the cross-complainants. The principal defendant, Louis Smilansky, in his answer set out the following:

“There remained in the hands of this defendant the sum of $800, which this defendant has now on hand and which, if required by the decree of this court, after a hearing, he stands ready to disburse and pay as directed by such decree.”

The answer contains the following further averments:

“This defendant says, however, that the said dwelling houses, by reason of the default of the said Latham, under his said contract for the erection of the same, as aforesaid, were delayed in the completion, and were not erected, constructed, and completed in accordance with the contract and the plans and specifications forming a part thereof, and that in consequence thereof this defendant was put to great trouble, annoyance, and expense, and the said dwelling houses, by reason of said delay and of inferior material and workmanship, became and were of less value than they otherwise would have been, and the same were afterwards .sold at a price very much less than they could have been sold for if the same had been erected and constructed in accordance with said contract. Whereby, and by reason thereof, this defendant suffered a loss, and was deprived of profits, rents, and advantage, to the amount of $4,000 and upwards, which he might and could have recouped under the law against said Latham. But this defendant waived said claim, in order that all who, according to the best information he could get, had furnished material or labor entering into the construction, might be paid at an early date, and so this defendant paid said Latham accordingly.”

A very extended hearing was had in the court below, and the court, after the testimony was all in, visited the premises and made an examination thereof. We insert certain excerpts from the opinion of the learned circuit judge.

“I want to hear your argument on certain phases of the matter, and I want to decide it while the testimony is fresh in my mind. I want to make a view of the premises at 2 o’clock, accompanied by counsel, and you might take up the argument now. There are certain phases of the matter that I do not care to hear any argument about, and I think I will state one phase, of it now, into the record.
“I find as a matter of fact that there was no agreement entered into between Mr. Latham and Mr. Smilansky by which Mr. Latham was to be charged with the interior decorating and the other items involved. I accept Mr. Latham’s testimony upon that proposition as establishing the facts, it is borne out by the whole circumstances of the situation, it is most improbable, in my view, looking at the whole situation, under the testimony of Mr. Smilansky and Mr. Latham on that proposition, that any such agreement was made, and to my mind no such agreement was made. That will simplify the argument in some respects. We can take up half an hour now, with the argument. I will hear first from the Grace Harbor Lumber Company, what you claim as to their claim. * * *
ST think I should now state one other conclusion of fact at which I have arrived, so that counsel may be advised of it, in their presentation of their claim. In. my view I am satisfied from the testimony that Mr. Smilansky was fully apprised of the situation in which Mr. Latham found himself. The testimony shows that Mr. Smilansky was the dominating force in the construction of these buildings, and that the general contractor, Latham, was very much under his control and influence, and accepted his leadership, and I might also say his dictation, and it seems most improbable that Mr. Smilansky, in view of his situation in the premises, would have proceeded, without full knowledge of Latham’s situation. Latham says that he advised Mr. Smilansky fully of his (the former’s) situation, that he (Latham) gave his books to, and laid all these matters in detail before, Smilansky. I believe that is true. I believe that was the fact, and that Smilansky was very fully advised by Latham of the state of his (Latham’s) accounts with his materialmen and with his subcontractor, Klump. * * *
“The defendant Lofiis Smilansky may, for the purposes of this suit, be regarded as the owner of the premises involved herein. This litigation grows out of the construction by him, or under his direction, of three apartment buildings upon the land described in the bill of complaint. The complainant, the Grace Harbor Lumber Company, furnished material, which went into those buildings, as did the cross-complainant Ferdinand C. Ortman, and the Bartlett Supply Company. The general contractor for the erection of the building was the defendant Chas. C. Latham. The defendant and cross-complainant Wm. K. Klump was a subcontractor, having taken from Latham the contract to do the necessary mason work. These three buildings were to cost, according to the contract price, the sum of $13,200. The defendant Smilansky has paid out, according to the terms of his answer, the sum of $12,400, and admits having on hand the sum of $800, which he is willing to apply as the court may direct. Under the testimony given by him, however, he claims to have paid out on this job the sum of $12,778.35.
“A statutory bond has been given by him in lieu of any lien that may be decreed, by which he obligates himself to pay over any moneys found to be due under the final decree to be entered.
“Liens are sought to be enforced by the complainant, the Grace Harbor Lumber Company, and by the Bartlett Supply Company, and by F. C. Ortman. * * *
“Let us pass now to a consideration of the facts ■which are necessarily to be considered, in order to arrive at a correct determination of the issues to be presented by the lien claimants above referred to. What I said this morning before the argument commenced, and what was said during the course of the argument, does not need to be repeated, but should be kept in mind in passing upon this aspect of the case. Being satis-' tied, as I am, that no such agreement was entered into with Mr. Latham as Mr. Smilansky claims, by which Latham was to assume the cost of the interior decorating of buildings and certain other items of expense, it follows that the moneys so expended and charged by Smilansky against Latham’s account upon the cost of the buildings are improperly so charged. What 'are these items? I will detail them. They include the T. B. Rayl item of $3.39; the Robertson item of $10.29; the Randolph item of $24.50; the A. & W. Cooper item of $57.20; the Hughes item of $80; the Bennett item for interior decorating of $474.50; paper returned of $1.40 paid in cash by Mr. Smilansky; the Bailey item of $4.60 for cleaning windows, which was not a charge which could properly be made against the general contractor; the item of $51.90 being concededly the additional cost for pressed brick at $3 per thousand; the item of $120 for 12 mirrors at $10 each; the fence at the cost of $55; the item of $300 for moneys which he had charged against work done but not finished upon the property situated on the corner of Willis avenue and Brush street in this city, that being begun by Latham for Smilansky, but abandoned; speaking tubes to the value of $18 — these items aggregating the sum ■of $1,200.78. As to the Hughes item of $80, I am satisfied from the testimony that Mr. Hughes made a contract with Mr. Smilansky for the alterations of the porches. The A. & W. Cooper item, $57.20, is for brick for the porches, made necessary by their reconstruction at Mr. Smilansky’s instigation.
“This may be an appropriate time to deal with the reasons for reconstructing these front porches. I think the plans clearly show that the grade line upon them bears no necessary relation to the sidewalk. The tracing and blueprints give a grade line which might be at any elevation above the sidewalk. The facts are that the grade line was fixed by Mr. Smilansky in conformity with the building immediately to the north, and with some reference also, I believe, to the buildings immediately opposite and upon the west side of Brush street. I find no reason for charging the general contractor, Latham, with any improper workmanship in the construction of these front porches. The grade line was fixed by Mr. Smilansky, and the plans followed by Mr. Latham, due regard being had to the fact, which is clearly shown by the testimony, that the ground upon which these buildings was constructed was not level, but was on a slight incline towards the south.
“As was said earlier today, I find that Mr. Smilansky had actual notice of the state of Latham’s account with his materialmen, his subcontractor Klump, and with his laborers. Mr. Klump testifies that a day or two prior to April 10th he fully apprised Mr. Smilansky of the state of his (Klump’s) bill, and Mr. Smilansky does not deny this. I believe the fact is that he (Mr. Smilansky) was fully advised of the situation in which Klump then was. It is very significant that the statutory sworn statements in evidence here were all prepared in Mr. Smilansky’s office, by his stenographer or some one in his employ. All the circumstances satisfy me very convincingly that he had full, actual notice of the real situation which obtained between Latham and Klump and their respective materialmen and employees. It is insisted by Mr. Smilansky that no payments were made by him until receipt was had of statutory sworn statements. It is claimed by him and denied by cross-complainant Ortman that a sworn statement was received prior to the payments made on April 10, 1912. Mr. Smilansky explains the absence of this statement by saying that there has beén a dissolution of the partnership of which he was then a member, and that; he has subsequently removed his office, and that this statement has become lost. I am satisfied that he received sworn statements before making payments which were made. But were these sworn statements of such a character as to have the benefit of the statute accrue? I do not think so., I believe that, in giving the note of $400, upon April 10th, Mr. Smilansky was fully advised of the indebtedness then owing from Klump to the Bartlett Supply Company for materials which went into this job, just as he was aware, on June 22, 1912, what the real situation was when he received the sworn statement of that day. I say that one must act in good faith in the reception of the statutory sworn statements, if one is to be protected by them, and I do not believe that either of these two statements were received in good faith. In my view it follows that the cross-complainant Ortnian is therefore entitled to a decree in his favor in the sum of $154.49.
“Coming now to the claim of the Bartlett Supply Company, it appears that $250 of the note for $400, given upon April 10th, was credited by that company upon other accounts which Klump had with it. It is the option of a debtor, in making the payment, to direct what application shall be made of moneys which he pays. Where no direction is given, the option accrues to the creditor to make such application as he wills. No direction was given by Mr. Klump to the Bartlett Supply Company, for the application of the $250 which he (Klump) received out of the $400 face value of the note upon this (the Smilansky) job, and in fact it was otherwise applied by the Bartlett Company. That company was within its rights in making that application. The claim of the Bartlett Supply Company aggregates $394.62. Under the testimony given by Mr. Klump, this claim should be reduced by the sum of $35.26, leaving a balance of $359.36, for which, in my judgment, the Bartlett Supply Company is entitled to a decree.
“Passing now to the claim of the Grace Harbor Lumber Company, it is contended by Mr. Smilansky that there was such collusion upon its part with the general contractor, Latham, as should preclude it, in any event, from any decree in its favor. I do not think this claim established. Its claim is for $1,486.18. $25 should be deducted from this claim for material delivered upon the premises in question, but used elsewhere, leaving a balance of $1,461.18, for which the Grace Harbor Lumber Company is entitled to a decree.
“When I have said the lien claimants, the Grace Harbor Lumber Company, F. C. _ Ortman, and the Bartlett Supply Company, are entitled to decrees in the amount mentioned, I have said so without any computation of the amounts which will be due from Mr. Smilansky when the sums involved have all been canvassed. The actual amount, as heretofore stated, which he paid out upon these buildings, was $12,778.35. From this should be deducted the sum of $1,200.78 above detailed. This leaves a balance actually paid out by him upon these buildings of $11,577.57. Deducting this last sum from the contract price of $13,-200, a balance remains of $1,622.43. This, I take it, is the amount available to be prorated between these three lien claimants.”

A decree was entered against defendant upon the footings of the opinion. The last two paragraphs of the decree follow:

“It is further ordered, adjudged, and decreed that complainant do recover his costs in this cause to be taxed, together with a solicitor’s fee of $50, and that said cross-complainant Bartlett Supply Company do recover its costs in this cause to be taxed, together with a solicitor fee of $50, and that cross-complainant Ferdinand C. Ortman do recover his costs in this cause to be taxed, together with a solicitor’s fee of $50, and that the same may be made a personal claim against the said defendant Louis Smilansky, and that they have execution therefor; that defendant Friedman, having raised the question that the sureties on the bond are not a proper party, and the court agreeing with said Friedman, the other sureties not raising the point, it is ordered that the bill of complaint be and the same is hereby dismissed as against William Friedman without costs to either party.”

All of the parties appeal; complainant and cross-complainants because a decree was not entered against the bondsmen as well as against the owner; the principal defendant and owner because: (1) The amount found by the circuit court to be due is excessive. (2) That the claim of the defendant and cross-complainant Bartlett Supply Company was allowed at an excessive sum. (3) That clause of the decree allowing $50 solicitor’s fee to the complainant and to each of the cross-complainants was erroneous. (4) A further claim is made on behalf of the defendant owner that the variance between the amount of the lien filed and the amount actually due, in the case of the complainant and the cross-complainant the Bartlett Supply Company, is sufficient to defeat those liens.

Brooke,'J.

(after stating the facts). We will first consider defendants’ claims.

The conflicting claims of the parties were presented in great detail in the court below, and the conclusions of the trial jpdge were reached only after a. most careful and painstaking invéstigation with the aid of able counsel. In view of the state of the pleadings and in the light of the testimony, which we have examined with cape, we are of opinion that in the statement of the account between the parties there is not only testimony to support the findings of the learned trial judge, but that they are established by a preponderance of the evidence. As to some matters there was a sharp conflict of testimony, and it is obvious, from that portion of the opinion of the trial court quoted in the statement of fact, that many of the claims of the defendant owner were disregarded; the evidence in support thereof not having convinced the mind of the trial judge of their righteousness. In cases of this nature, we have frequently said that much weight should be attached to the opinion of the trial judge, who had the advantage of seeing the witnesses upon the stand and hearing their testimony. We have no difficulty in reaching a conclusion upon this point that the decree is sustained by the testimony.

The contention of the defendant under this point arises out of the following state of facts: Defendant Smilansky gave to Latham, his principal contractor, a note on account for $400. Latham, the principal contractor, went to the office of the Bartlett Supply Company, where the note in question was turned over by Klump to, the Bartlett Supply Company without instructions as to how it should be credited. The Bartlett Supply Company, instead of crediting it to Klump on account of material furnished upon the Smilansky job, credited $250 upon accounts Klump owed them upon other jobs. It is not claimed by defendant Smilansky, or by the contractor Latham, or by Klump the mason contractor, that any instructions were given as to how the money represented by the note was to be credited. While in this case there would seem to be an apparent hardship growing .out of the application (of the rule that a debtor may elect as to which of two or more debts his payment shall apply, but if he does not so elect the creditor may elect (Blair v. Carpenter, 75 Mich. 167 [42 N. W. 790]; Van Sceiver v. King, 176 Mich. 605 [142 N. W. 1069]), the result is due to the failure of the defendant Smilansky to see, as he might have done, that the payments made by him to his principal contractor were properly applied.

The statute covering the allowance of solicitors’ fees is as follows (section 10721, 3 Comp. Laws; 3 Comp. Laws 1915, § 14807):

“The court shall examine all claims that shall be presented, and shall ascertain and determine the amount due to each creditor who has a lien of the kind before mentioned upon the estate in question, and every such claim that is due absolutely and without any conditions, although not then payable, shall be allowed, with a rebate of interest to the time when it would become payable. The court may, in its discretion, allow a reasonable attorney’s fee when judgment shall be rendered in such proceeding, in favor of the parties succeeding therein.”

See, also, section 10730, 3 Comp. Laws (3 Comp. Laws 1915, § 14816).

In the case of Wisniewski v. Nawrocki, 153 Mich. 523 (116 N. W. 1065), it was held in a mechanic’s lien case, under the section quoted, that the complainant was entitled not only to a reasonable solicitor’s fee, but to actual disbursements.

Considering the time consumed in the trial of the cause (some eight days), it cannot be said that the allowance of $50 each to the complainant and cross-complainants is excessive, or amounts to an abuse of discretion on the part of the trial court. Nor do we understand that this is the claim made on behalf of the defendant. As to that, counsel for defendant says:

“I insist that this claimed legislation is class legislation of the most pronounced class, and that it is also in violation of Amendment 14 of the Constitution' of the United States, which holds that all citizens must be treated with equality.”

It must, we think, be said (and apparently it is so conceded by counsel for defendant) that the statute which permits the court in its discretion to allow reasonable counsel fees “in favor of the parties succeeding therein,” if constitutional, is a sufficient warrant for the action of the court.

Counsel for defendant cites the case of Toms v. Williams, 41 Mich. 552 (2 N. W. 814), as authority for his proposition that the statute is unconstitutional. The only matter determined in that case pertinent to the question under consideration is that in Michigan there is no authority for charging an estate with the expenses, beyond taxable costs, of an appeal in equity by heirs at law from the construction of a will.

The case of Wilder v. Railway Co., 70 Mich. 382 (38 N. W. 289), is likewise cited. It was there determined that Act No. 234, Pub. Acts 1885, allowing the plaintiff in a suit against a railroad company to tax as a part of his costs an attorney fee of $25, was unconstitutional. The court held the legislation in question in that suit to be class legislation, and the imposition of a penalty upon the defendant, because in case the railroad company was successful in defending it could collect from the plaintiff only the statutory fee of $10; whereas, if it were defeated it would be compelled to pay an additional penalty of $25. No such defect is apparent in the legislation under consideration. The court’s discretion in the fixing of solicitor’s fees may, under this statute, be invoked for the successful parties whether complainants or defendants.

The case of Davidson v. Jennings, 27 Colo. 187 (60 Pac. 354, 48 L. R. A. 340, 83 Am. St. Rep. 49), is upon principle similar to Wilder v. Railroad Co., supra. The statute there under consideration provided:

“In all suits for the foreclosure of liens provided for in this act in which the plaintiff shall obtain a judgment and decree of foreclosure against the property described in said lien, there shall be taxed as costs in addition to the costs already provided for in such cases, a reasonable sum as attorney fee to be fixed by the court at the time of rendering such judgment and decree.”

The Colorado court held this act unconstitutional because it denied to the defendant, if successful, a reciprocal right.

In the case of Atkinson v. Woodmansee, 68 Kan. 71 (74 Pac. 640, 64 L. R. A. 325), the court had under consideration a statutory provision for the allowance of attorney fees under a mechanic’s lien act. The provision, like that in Colorado, was in favor of the plaintiff only, and it was held bad as being a denial of the equal protection of the laws, and therefore unconstitutional.

The statute considered in Openshaw v. Halfin, 24 Utah, 426 (68 Pac. 138, 91 Am. St. Rep. 796), was subject to the same infirmity as those just considered. It provided for the payment of a reasonable attorney’s fee to the plaintiff only. The court cited many cases in support of its decision, and quoted from Coal Co. v. Rosser, S3 Ohio St. 12 (41 N. E. 263, 53 Am. St. Rep. 622), as follows:

“Upon 'what principle can a rule of law rest which permits one party, or class of people, to invoke the action of our tribunals of justice at will, while the other party, or another class of citizens, does so at the peril of being mulct in an attorney fee, if an honest but unsuccessful defense should be imposed? A statute that imposes this restriction upon one citizen, or class of citizens, only, denies to him or them the equal protection of the law.”

The cases of Manowsky v. Stephan, 233 Ill. 409 (84 N. E. 365), and Durkee v. City of Janesville, 28 Wis. 464 (9 Am. Rep. 500), are similar in character to those just considered, and determination in each is based upon an application of the same principle.

In no case cited by counsel for the defendant did the court have under consideration a statute permitting the allowance of discretionary attorneys’ fees to the successful party whether complainant or defendant.

Complainant cites Stimson Mill Co. v. Riley, 42 Pac. 1072; Sweeney v. Meyer, 124 Cal. 512 (57 Pac. 479); Armijo v. Electric Co., 11 N. M. 235 (67 Pac. 726) — in none of which was the constitutionality of the statute questioned or considered. A further line of cases cited in the supplemental brief are pertinent to the question under consideration. Peckham v. Fox, 1 Cal. App. 307 (82 Pac. 91); Dell v. Marvin, 41 Fla. 221 (26 South. 188, 45 L. R. A. 201, 79 Am. St. Rep. 171); Robertson v. Moore, 10 Idaho, 115 (77 Pac. 218); Duckwall v. Jones, 156 Ind. 682 (58 N. E. 1055, 60 N. E. 797); and Title Guarantee Co. v. Wrenn, 35 Or. 62 (56 Pac. 271, 76 Am. St. Rep. 454).

We are of opinion that the statute is constitutional, and that the discretion exercised by the learned trial judge thereunder was fair.

The variance'between the amount claimed by the several liens and the amount allowed by the court was slight. Complainant’s lien was filed for $1,486.14. The amount awarded by the court was $1,363.19. The difference between the amount claimed and the amount allowed was due largely to the fact that a certain discount had been agreed upon- between the complainant and the principal contractor, and this agreement for discount had been disregarded at the time the lien was filed. The Bartlett Supply Company lien was filed for $369.63, and allowed at $339.45. Some small portion of the material for which the lien was claimed was delivered upon the defendant owner’s job, but was shown to have been used upon another job. The variance between the amounts actually due and those for which the lien was claimed are small in each instance, and the record contains no evidence of bad faith. Under such circumstances, the variance should be disregarded. Perkins v. The Golden Girl, 185 Mich. 200 (151 N. W. 660), and cases there cited.

The statutory bond filed by defendant Smilansky to secure a release of the liens contains the following condition:

“Now, therefore, the condition of the obligation is such that if the above-bounden principal shall pay or cause to be paid to the above-named obligee, any sum for which the said obligee may obtain judgment or decree upon the demand for which statement of account was filed, either against the said principals or against the foregoing described property, then this obligation to be void, otherwise to remain in full force and virtue.”

The exact question here presented has never been considered in this court, although the case of C. HLittle Co. v. L. P. Hagen Co., 185 Mich. 316 (152 N. W. 95), is very closely in point. We there said:

“In the instant case we have before us the owner, the original contractor, the subcontractors, the material-men, and the bonding company which gave a bond, not only to the owner, but 'to all persons who may become entitled to liens under the contract.' Is there any valid legal or equitable reason why the respective rights of the parties should not be settled in one proceeding? We think the answer should be in the negative."

The rule is well settled in the State of New York that the remedy to enforce the obligations of the sureties to such a bond is not by an action at law upon the bond, but by an action in equity in which all persons interested, including the sureties on the bond, are made parties, and it is not a condition precedent to the bringing of the action that the lienor shall exhaust his remedy against the landowner by recovering a judgment of foreclosure in form against the property described in the notice of lien. It is there held that the complaint should be in the usual form, and, instead of asking judgment of sale of the premises, it should demand relief against the persons executing the bond. Morton v. Tucker, 145 N. Y. 244 (40 N. E. 3). See, also, 27 Cyc. p. 283, and cases cited.

We can see no reason why litigation should be multiplied by compelling complainant to have recourse to an action at law upon the bond in order to realize the amount of the lien established by the decree in equity. A decree making the bondsmen liable, as well as the principal, is the most direct method of collection, and denies to the sureties upon the bond no substantial right. As parties defendant they may appear and protect themselves from the establishment of any unjust claim.

The decree should be amended fixing the liability of the sureties as well as the principal upon the bond. Otherwise it will stand affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    CURRY v. LAKE SUPERIOR IRON CO.
    1. Taxation — Mines and Minerals — Estates—Tenants in Common — Statutes.
    The several estates constituting the fee to real property in mineral lands must be assessed together, regardless of the number of owners, and, hence, an assessment of mineral rights and the fee in one tax, against the land as a whole, is valid, it being immaterial whether the assessment has been made to one or all of the co-owners. 1 Comp. Laws 1915, §§ 3995-6, 4021.
    2. Same — Tax Rate — Mineral Lands.
    As the duty to pay the tax rests as well upon the owner of the mineral rights as upon the holder of the fee, he may not buy in the tax title to the fee at tax sale and enforce the right to the entire property, though he may enforce contribution for the proportionate amount that the other tenant ought to Lave paid.
    Appeal from Marquette; Flannigan, J.
    Submitted January 7, 1916.
    (Docket No. 71.)
    Decided March 30, 1916.
    Bill by Solomon S. Curry against the Lake, Superior Iron Company, a corporation, to set aside certain tax deeds procured by defendant. From a decree for complainant defendant appeals.
    Affirmed.

      Charles M. Humphrey, for complainant.

      Frank A. Bell, for defendant.
   BROOKE, J.

The learned circuit judge properly and concisely states the facts involved in this case as follows:

“The bill of complaint by which this suit was commenced was filed to set aside certain tax deeds of lot 32 of the plat of S. S. Curry’s addition to the city of Ishpeming, Marquette county. The material facts are admitted. The government title to the lot in question, except the ores and minerals therein, is in the complainant, and to the ores and minerals, is in the defendant, together with the right to enter on the lot and, by payment of the damages, if any, to the surface improvements occasioned thereby, to explore for, mine, dig, and carry away all such ores and minerals. While the government title so stood, the lot, by proper legal description, and without exception of the ores and minerals, was assessed to the complainant for taxes for upwards of 30 years. During all those years the records in the office of the register of deeds of Marquette county showed the ownership of the ores and minerals in the defendant, and the lot, except the ores and minerals, in the complainant. ' The taxes levied for the year 1899 and for the years 1902 to 1909, inclusive, were not paid, and for their nonpayment the lot was sold under tax proceedings in all respects regular on their face. At such tax sales the lot was bid in by the defendant, and subsequently the auditor general executed and delivered to it the tax deeds in question. After receiving the tax deeds, and in November, 1914, the defendant served on the complainant a notice in the accepted form, demanding payment within six months of the amounts bid at such sales, plus the usual penalty and fees. The complainant refused to pay the amounts demanded, but, on various occasions, offered to contribute his fair share of the amounts bid by the defendant and interest thereon. The defendant refusing to accept for a quitclaim of the complainant’s surface estate, less than the amounts demanded by its notice, this suit was instituted.”

Upon this state of facts the court below based a decree, holding that the tax each year was levied partly on the property of the complainant and partly on the property of the defendant; that by reason of this fact it was. as much the duty of the defendant to pay the tax as it was that of the complainant; that in allowing taxes to become delinquent, the defendant, as well as the complainant, was in fault, and as a result the defendant could not obtain title to the property of the complainant under a tax sale which resulted in part from its default. There is a further holding to the effect that where the owner of either estate pays the entire tax, the estates being separate though assessed together, the one who pays may pursue the owner of the other estate for contribution. From this decree the defendant appeals.

It is urged by the defendant that the question is an open one in this State, and that we are at liberty to adopt that rule which most nearly conforms to equity and good conscience, and, this being true, it is urged that the rule adopted in Minnesota should be followed. The case cited and relied upon by the defendant is Washburn v. Gregory Co., 125 Minn. 491 (147 N. W. 706), decided in 1914. It involved a tax sale for the taxes of the year 1907. In the year 1905 the legislature of Minnesota passed an act (sec. 1, chap. 161, Laws of 1905 [Gen. St. 1913, § 1973]), as follows:

“That whenever any mineral, gas, coal, oil or other similar interests in real estate are owned separately and apart from and independently of the rights and interests owned in the surface of such real estate, such mineral, gas, coal, oil or other similar interests may be assessed and taxed separately from such surface rights and interests in said real estate and may be sold for taxes in the same manner and with the same effect as other interests in real estate are sold for taxes.”

During all the years in which the lands in question in the case at bar were sold for taxes and conveyances made by the auditor general to the defendant, the law of this State bearing upon the question was as follows:

1 Comp.. Laws, § 3824 (1 Comp. Laws 1915, § 3995): “That all property, real and personal, within the jurisdiction of this State, not expressly exempted, shall be subject to taxation.”
1 Comp. Laws, § 3825 (1 Comp. Laws 1915, § 3996): “For the purpose of taxation, real property shall include all lands within the State, and all buildings and. fixtures thereon, and appurtenances thereto, except such as are expressly exempted by law.”
1 Comp. Laws, § 385Ó (1 Comp. Laws 1915, § 4021) : “The words ‘cash value,’ whenever used in this act, shall be held to mean the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained therefor at private sale, and not at forced or auction sale. In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits known to be available therein and their value.”

The understanding of the law anji the practice of the taxing officers of the State is set forth in the edition of the general tax law compiled by the auditor general’s office for the year 1907. The note at page 43 of the compilation is as follows:

“In determining the true cash value of land, the value of standing timber should be included. Fletcher v. Township of Alcona, 72 Mich. 18 [40 N. W. 36]. The rule should be applied universally. If another than one holding the title to the land or possession thereof claims an interest in standing timber or other products or deposits on the land, the owner or person in possession must secure relief from the burden of taxation through mutual agreement between himself and the owner of such products or deposits; the assessor cannot consider such claims.”

While the foregoing is of no binding force, it indicates the construction put upon the statute by the administrative officers of the State charged with the duty of levying and collecting taxes under the law. Under section '3850, supra, it would seem that no other method of assessment would be possible. In this State, therefore, we have this situation: All of the estates in any particular description must be assessed together, and it is unimportant whether the assessment is made to all or to but one of several owning interests or estates therein. Fletcher v. Post, 104 Mich. 424 (62 N. W. 574); Auditor General v. Keweenaw Ass’n, 107 Mich. 405 (65 N. W. 288).

It must be presumed that the assessing officer, in obedience to the statutory mandate, each year included in the assessment against the complainant the value of the estate owned by the defendant in the description. This being true, it was no more the duty of the complainant to pay the entire tax, a portion of which was assessed against the defendant’s estate, than it was the duty of the defendant to make such payment of the entire tax a portion of which was properly chargeable against complainant’s interest. The owner of neither estate could protect his own property without paying an obligation properly chargeable against the owner of the other. ' This situation presents a theoretical difficulty, but in our opinion not a practical one. If the owners of the several estates in a particular description are unable to agree upon the proportionate share of the tax assessed that each should pay, either may pay the whole thereof and pursue the other for contribution. The right to secure contribution being assured, we are of opinion that agreement between the owners of the several estates will not be found to be difficult.

The question really presented by the case at bar is whether the ruling laid down in cases involving joint tenants and tenants in common should be extended to include cases such as the one now under consideration. While the statute (1 Comp. Laws, § 3829 [1 Comp. Laws 1915, § 4000]) permits undivided interests to be assessed to the separate owners, and section 3876 (1 Comp. Laws 1915, § 4049) permits one owning an undivided share or other part or parcel of real estate assessed in one description to pay on the part ■owned by him an amount having the same relation to the whole tax as the part on which the payment is made has to the whole parcel, and while the statutes which relate to the assessment of mineral estates afford no means by which the owner thereof may have his interest segregated and assessed separately to himself, we are yet of the opinion that the reasoning which prevents one tenant in common from refusing to pay the taxes on the whole, and thereafter securing a tax title covering his cotenant’s interest in the estate, is equally applicable to the situation presented by the case at bar. Page v. Webster, 8 Mich. 263 (77 Am. Dec. 446); Cooley v. Waterman, 16 Mich. 366. In the latter case it is said:

“The duty to pay springs from ownership, and not from the relation subsisting between two or more owners, and it is just as imperative in the case of a single owner as in that of tenants in common; and the default or violation of duty is as palpable in the one instance as in the other. Whether the estates of the parties are in the same parcel, or in severalty in two adjoining parcels, can make no difference in the prim ciple. If the two parcels, separately owned by the parties, are so placed as to be involved in the same default and the same sale, as in this instance, the case must be governed by the rule applied under the like circumstances when the estates of the parties are in the same parcel.”

See, also, Dubois v. Campau, 24 Mich. 360; Sleight v. Roe, 125 Mich. 585 (85 N. W. 10), and Dahlem v. Abbott, 146 Mich. 605 (110 N. W. 47).

It is perhaps worthy of note that the legislature in 1911, by the enactment of Act No. 51, Pub. Acts 1911, changed the settled policy of the State, by directing, that all mineral rights in lands should, after the passage of said act, be assessed separately. After remaining in force for four years this act was repealed in 1915 by Act No. 119, Pub. Acts 1915. While all the taxes which are the subject of the controversy in the suit at bar were levied before the passage of the act of 1911, and therefore the question is not affected by that legislation, the fact that the State has returned to its former method of assessment is significant. In the case at bar the respective interests of the complainant and defendant were fixed by stipulation, and the decree was made in accordance therewith.

The decree is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.