author: Stone, J.

text:
    HUNT v. TOWNSHIP OF DOUGLASS.
    1. Highways — Municipal Corporations — Ditches—Townships— Negligence.
    Evidence tending to show that plaintiff fell into an open, unguarded ditch, along the side of the highway, in the dark, and that the highway commissioner who dug -the ditch had failed to erect any barriers to protect the public, is sufficient to support a verdict that defendant township was negligent.

    2. Same — Contributory Negligence.
    And a showing that plaintiff who knew of the ditch and after being blinded or bewildered by a flash of lightning, but not realizing that she had gone out of her way, fell into the ditoh, presents a question for the jury as to her contributory negligence.

    3. Same — Trial—Charge.
    But defendant was entitled to have its request submitted to the jury, to the effect that if she .realized she had lost her way, and continued on her way blindly, she was guilty of contributory negligence.
    Error to Montcalm; Davis, J.
    Submitted January 6, 1911.
    (Docket No. 45.)
    Decided March 31, 1911.
    Case by Rizpah A. Hunt against the township of Douglass for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      George E. Nichols and Frank A. Miller, for appellant.

      R. A. Hawley, for appellee!

      As to liability of municipal corporation for defects or obstructions in streets, see note in 20 L. R. A. (N. S.) 513.

      For contributory negligence as affecting liability of municipal corporations for defects or obstructions, see note in 21 L. R. A. (N. S.) 614.

   Stone, J.

This is an action on the case against the township to recover damages for a personal injury sustained by the plaintiff — a married woman, about 55 years of age — by falling into a ditch or drain in one of the public highways of said township on the night of August 14, 1909. At that time the plaintiff resided with her husband on the S. E. ¼ of the N. E. ¼ of section 10 in said township, and had lived there for many years. Her son-in-law, Harvey Lee, lived, as he had for some time prior thereto, on the N. E. ¼ of the N. E. ¼ of the same section, and about one-quarter of a mile north of plaintiff’s home. The highway between the two places runs north and south, and has been a public highway, under the supervision of the township authorities, for more than 25 years. In August, 1908, the highway commissioner, for the purpose of improving the highway, constructed a drain or ditch along the east side of the highway opposite Mr. Lee’s house, and continuing north of his house several rods where it crossed the road. The dimensions of this drain in front of Mr. Lee’s house, as given by the plaintiff’s husband, were as follows: Width on top 11 feet 10 inches, bottom 4 to 5 feet; depth in deepest place 6 feet 6 inches. Mr. Lee’s house was 71 feet west from the drain or ditch and stood on a rise of ground 2 or 8 .feet higher than the wrought portion of the highway. A path led from the front of the house down to the road, and on each side of the path, a short distance from the house, were lilac bushes. There was no fence between the house and the highway. Some two or three rods south of the house, and on the west side of the road, there was a large maple tree, and just opposite this tree on the bank of the ditch was a large white rock. There were no barriers or fences between the ditch and the highway at the time of the injury. The plaintiff was familiar with the situation as above outlined, and with the location of the ditch, and had been there many times, both in the evening and day, on visits to his daughter, Mrs. Lee.

On the evening in question, plaintiff made a visit to her daughter, arriving at the house about half past 6 o’clock, remaining there until about half past 8. Upon this branch of the case we quote from the plaintiff’s testimony on direct examination:

Q- When you went there, what was the condition of the weather ?
“A. It was cloudy; not as cloudy as it was when I started from there. It wasn’t dark when I got there, but when I started away it was. It was some cloudy when I went there, not so much as it was later on. While I was there, it rained about 15 minutes. Finally, I left there about 8:30. It was dark when I left there. The lamps had been lighted in the house about half an hour. It was dark and cloudy when I left there. I came out of the light room. There are two lilac bushes, one on the left side and one on the right side. I got off my path and run into that lilac bush. The lilac bush was on the left-hand side of the road — of the path. I got around it. Just then there was such a great flash of lightning — it was almost round, great, large flash that bewildered me, so I didn’t know just where I was going. I didn’t know until I went into the ditch head first.
“Q. How far had you gone after the flash of lightning, before you went into the ditch ?
“A. It couldn’t have been over four or five steps. It was dark there. The room being light, I couldn’t see plain at all after I got out of the dark, and I think it was from the effects of the room being light.
“Q. At the time after you got out of the lilac bush, and this flash of lightning occurred, did you realize at that time that you were confused or bewildered ?
“A. I didn’t. I was attempting to go on the right-hand side of the track towards the maple tree. I'tried to see the maple tree. It was so dark I couldn’t see it; just dazzled me so I couldn’t see anything after the lightning came. It blinded me so, I didn’t have in mind the stone on the east side of the road. I didn’t see the stone. I was on the lookout for the ditch, for I always went on the right-hand side of the road when I started for home. I didn’t see the ditch, or know I was anywhere near it until I went into it.
“Q. You knew there was a ditch, there ?
“A. I knew the ditch was here, of course.
“Q. Did you know of the exact location of the ditch?
'‘A. Why, I did until that night. It was so dark I couldn’t see.
“Q. I say, did you know of the exact location of the ditch ? Did you ever notice it distinctly, locate the exact location of it ?
“A. No; I never did.
“Q. When the flash of lightning occurred, in fact, from the time you ran into the bush there, did you have in mind the exact location of the ditch ?
“A. No; I didn’t. I wasn’t going very fast, because it was so dark I couldn’t see. When I started out, I couldn’t see the path.
“Q. How were you going, feeling your way along, or otherwise ?
“A. I couldn’t tell you just exactly whether I was or not. I was going slowly, so as to get into the road. I went into the ditch headlong. I struck in the bottom of it oh the left shoulder and side of my head. It stunned me.”

In our view of the case, the subsequent cross and redirect examination of the plaintiff upon the subject of her confused condition became important. On cross-examination she testified:

"Q. When you got into this lilac bush, as your son-in-law said, you got tangled up in it ?.
“A. Yes, sir.
“Q. In getting out of that, and away from it, you lost the sense of direction, did you ?
“A. I did.
“Q. So you couldn’t tell where you were going?
“A. I could not tell where I was going.
“Q. About the time you got away from the lilac bush, then came this blinding flash of lightning ?
“A. Blinding flash of lightning. It was in the south, but it was an awful large sheet of lightning.
“Q. That, I suppose, blinded you, and confused you again?
“A. It did.
“Q. So for those reasons, on account of the lilac bush and the lightning, etc., you entirely lost all sense of direction and became confused ?
“A. Yes, sir. ,
Q. And didn’t know where you were going ?
“A. I didn’t know where I was going.
“Q. It seems to you you went four or five steps and fell into the ditch ?
“A. I couldn’t have went over four or five steps.
“Q. What do you mean, from the time you got out of the lilac bush ?
“A. Yes, sir; or from the time I got into the road.
“Q. Did you know when you struck the highway; that is, the worked portion of the road from the dirt ?
“A. I didn’t sense anything after I got out of the lilac bush until I struck the bottom of the ditch.
“Q. You didn’t stop and try to locate where you were ?
“A. No, sir.
“Q. Just stumbled along ?
“A. Stumbled along.
“Q. Confused, not knowing what you were doing ?
“A. Confused, not knowing what I was doing.
“Q. That condition of mind was brought about by the trouble you had with the lilac bush and the flash of lightning?
“A. Yes, sir.
“Q. You knew, didn’t you, that there was a strip of sod between the traveled track and the ditch. You have seen that a good many times?
“A. Why, I have, but it was all — just had been — all dry and burned kind of.
”Q. It wouldn’t have made any difference probably in your condition of mind if the grass had been a foot deep ?
“A. I presume not. I was so confused I didn’t know which way I was going.
Q. So it didn’t make any difference so far as your condition of mind was concerned exactly where the ditch or anything else was. You kept going and thought you were going right.
“A. I did. I thought I was going right.
“Q. I understand you, before that time you were perfectly familiar with the situation; had traveled it both night and day ?
“A. Yes, sir.
Q. Without any trouble in any way, shape, or .manner ?
“A. Yes, sir; a good many times.
“Q. The first thing that you came to sense or realization was when you found yourself in the bottom of the ditch ?
“A: Yes, sir.
Q. That space of time intervening from the time that you ran into the lilac bush until you struck the bottom of the ditch is a matter of entire confusion in your mind ?
“A. Yes, sir; it was.
“Q. It is now wholly indistinct as to how it happened; how it occurred ?
“A. Yes, sir.
"Q. You couldn’t tell anything about it?
“A. I couldn’t tell you anything about how it happened. When my son-in-law came there, I couldn’t see him as he approached. I didn’t see him when he came into the ditch. He called to me to know where I was, and he kept calling, and I kept telling where I was until he got to me. I was in the ditch. I fell in. I felt my foot slip a little. I thought I was going right. My foot slipped, and I just supposed I stepped outside of the track and was slipping back in. Instead of my slipping back into the road, I went right off into the ditch.
“Q. Did you try to gather yourself when your foot slipped?
“A. No; I didn’t know what—
“Q. Didn’t know what it was ?
“A. No; I didn’t know what it was, I couldn’t—
“Q. Then, as a matter of fact, after you ran into the lilac bush, if you were that confused that you didn’t know what you were doing, of course, you didn’t attempt to locate any landmark; locate the maple tree or stone or anything ?
“A. I was thinking of the right way of the road. I was so confused with lightning — if any one saw lightning of that kind that bewildered them they would have some idea of what it was. It was so sharp it blinded me.
“Q. And so, on account of your confused condition of mind the lightning, and the difficulty with the lilac bush, you were not in a condition of mind, and you didn’t attempt, to locate any of these landmarks ?
“A. No, sir.”

Redirect examination:

“Q. When you got out of the lilac bush that night did you realize or appreciate the fact that you were confused or bewildered to any extent ?
“A. I realized it; yes, sir.
“Q. When you got out, or since that time, when was it you first realized it ?
“A. Since I got out.
“Q. Did you realize it before you got into the ditch that night ?
“A. No.
“Q. That you were bewildered or that you had lost your way, or that you were confused ?
“A. I was confused and bewildered. I didn’t know where I was going, or like that.
“Q. Did I understand you, you attempted to see the maple tree, to discover that ?
“A. The tree I kind of thought — because if I would go along on the right-hand side, and that was on the right-hand side of the road, and realize how—
“Q. I asked you if you attempted to discover it after you got out of the lilac bush ?
“J. No; I didn’t attempt it then. * •* *
“Q You used the word ‘landmarks.’ I don’t know whether the witness understood it or not. She testified on the direct examination she tried to see the maple tree and couldn’t see it. I want to know when it was.
“A. It was after I got out of the lilac bush.
“Q. That was after you got out of the lilac bush ?
“A. It was after I got out of the lilac bush that I tried to see where the maple tree was.
“Q. Could you see it ?
“A. No, sir; I couldn’t.
“Q. Do you remember whether you tried to see where the maple tree was after that flash of lightning ?
“A. No; I was so confused I didn’t know anything after I got tangled from being up in the lilac bush.
“Q. You didn’t know anything; did I understand you you tried to see the maple tree after you got out of the lilac bush ?
“A. Yes; but after the flash of lightning came that bewildered me so I didn’t know where I was going.
“Q. Now, did you have any idea at that time, did you realize at that time that you didn’t know where you were going, or have you discovered that since ?
“A. I have discovered it since. I didn’t realize at that time that I didn’t know where I was going.
Q. Where did you think you were going at that time; that is, on which side of the road ?
“A. On the right-hand side; that would be on the west side of the road.
"Q. Did you realize at that time that you had lost your way ?
“A. Why, yea.
“Q. Or that you had lost your sense of direction. Did you realize at that time ?
“A. No; I didn’t realize it at all.
“Q. When did you first come to that conclusion, that you must have lost your sense of direction ?
“A. After I got into the ditch, or else that made me notice.
"Q. Did you discover that before? Did you realize it before the time you got into the ditch that you had strayed from where you supposed you were ?
“A. No; I didn’t.”

Recross-examination:

“Q. When did you first come to the conclusion that you didn’t know where you were going, when you left the lilac bush ?
“A. After I got in the ditch.
“Q. You testified in answer to my question, that you were so confused when you left, got loose, from the lilac bush, that you didn’t realize where you were going ?
“A. I didn’t.
“Q. You didn’t realize where you were going; so you didn’t think anything about where you were going, did you ?
“A. I don’t know as I thought anything about only that I had started for home; that is all.
“Q. Now, this is all there is to the story, isn’t it; you came out of the house, down the steps, felt your way down ?
“A. I felt my way down the steps.
“Q. Your vision was dazzled somewhat, blinded by coming out of a light room into a dark night ?
“A. Yes, sir.
“Q. Consequently it was that dark, although the window curtains were up, you were so affected you had to feel your way down the steps ?
“A. Yes, sir.
“Q. Then, after disentangling yourself from that, you became confused as to. the direction ? What you were doing ?
“A. Yes, sir.
"Q. Then that was immediately followed by this flash of lightning ?
“A. Yes, sir.
“Q. You became so confused then you didn’t know where you were going ?
“A. No, sir.
“Q. Now, you didn’t think anything about it one way or the other, did you, you were, just starting away ?
“A. After I got tangled up in the bush and kind of got started out, I thought of going into the road of the tree along there, but I didn’t — flashed up and bewildered me so I didn’t know where I was going.
‘'Q. Now you have got it right. You didn’t know where you were going. You didn’t think anything about it, either, where you were going, did you ?
“A. After I got out from that lilac bush, I don’t just know how I was thinking what — my way. Just after I got out of the bush this lightning came and bewildered me' so I couldn’t—
“ Q. You were still in your son-in-law’s yard at the time of the lightning flash, weren’t you ?
‘ ‘A. I don’t really know whether I was — just got out of the bush. I can’t tell just how far the bush is frqm the road.
“Q. It is quite a little ways. I don’t know just how far. You don’t know whether you were in your son-in-law’s yard or not ?
“A. I think I must have been close to it, if not quite.
“Q. In the yard?
“A. Yes, sir; I felt after I got out I was going right.”

Redirect examination:

“Q. When did you first realize that you were a little confused as to your sense of direction, or that you were out of the way at all ?
“A. It was when the lightning bewildered me, you know.
“Q. Did you realize at that time you had lost your way, or at some other time. When was it you first realized you had strayed away from the west side of the road ?
"A. When I fell in the ditch.
“Q. Up until the time you felt yourself slipping and going into the ditch, where did you suppose you were ?
“A. I supposed that I had just stepped simply outside of the road, and I was coming all right.
“Q. On which side of the road did you think ?
“A. On the right-hand side. I always went on that side.
“Q. When you say you did suppose you were just slipping back in the road, what do you mean by that? Where had you slipped from ?
“A. There is a kind of a little incline up there. I thought I had got up on there.
“Q. Where is that incline with reference to the maple tree ?
“A. About a quarter of the way between the tree and where that lilac bush was. When X stepped on there, my foot slipped, and I supposed I was going back in the road, just stepped outside and was going back in the road. Of course, I couldn’t save myself at all. I don’t know where I was going. When X slipped back, I just went right on in. I didn’t stop at all.
“Q. Up to the time you landed at the bottom of the ditch, where did you suppose you were?
“A. I supposed I was in the road near the maple tree.”

Recross-examination:

“Q. As a matter of fact, you know when you struck. I understand you, you know when you ran into this lilac bush, you were on the north side of the path ?
“A. Yes, sir.
“Q. Now the maple tree is, according to the statement of your husband, 35 feet south of the path ?
“A. I should think it was. I don’t know.
“Q. And the lilac bush is about eight feet north of the path, according to his statement ?
“A. I couldn’t tell you; something like that.
"Q. He so states, and I don’t dispute it. So you would have to travel a distance of 43 feet to get to the maple tree ?
“A. I couldn’t tell you.
“Q. You thought you had taken. You don’t believe now you had taken only four or five steps before you were in the ditch ?
“A. Four or five steps before I was in the ditch.
“Q. You couldn’t possibly have gone that distance in four or five steps, could you, from where you were to the tree ?
“A. I was making for that way.
Q. Now, as a matter of fact, isn’t it true, when you got out of that lilac bush, and was blinded by this flash of lightning, that your first statement here you lost your sense of direction and was confused and bewildered, was true?
“A. After I got out of the lilac bush, I had started. I supposed I was on the right-hand side. I always go on the right-hand side of the road, west side of the road, along where that maple tree is. I supposed I was going that way.
“Q. As a matter of fact, did you think anything about it at all ?
“A. I did.”

From the foregoing lengthy excerpts from the testimony of the plaintiff, it will be seen that the question whether she was conscious of her confused condition before she fell into the ditch was by counsel deemed an important one. At the close of the plaintiff’s case, counsel for defendant moved for a directed verdict in its favor, which was denied; the court holding that under all the circumstances and conditions as they appeared in the evidence it became a question of fact for the consideration of the jury whether it was the duty of the defendant to have erected barriers to the ditch, in order to make the highway reasonably safe and fit for public travel; and that the questions of contributory negligence and proximate cause were also for the jury. The case was submitted to the jury under a very full charge, and they found a verdict for the plaintiff.

The defendant has alleged error in the charge of the court. We have examined the record with much care, and are of opinion that the court did not err in denying defendant’s motion for a directed verdict. One assignment of error urged by appellant is the refusal of the court to give the defendant’s tenth request to charge. It was as follows:

“ If you find that the plaintiff realized that she was confused and bewildered, and did not know where she was going, continued blindly on after she had become disentangled from the lilac bush upon the premises of Mr. Lee, then I charge you, as a matter of law, that she would be guilty "of contributory negligence, and not entitled to recover in this action, and your verdict will be for the defendant, no cause of action.”

Upon this branch of the case counsel for the plaintiff in his brief says:

“Upon this question I think that if it had appeared conclusively and indisputably from the testimony of the plaintiff that after getting out of the lilac bush, or after the flash of lightning of which she testifies, and in view of her knowledge of the location of the ditch in question, she had continued to walk along in full realization of the fact that she had lost her way and her sense of direction, and without making any attempt to locate the ditch or any landmarks whereby she might guide her course, that she could justly be said to have assumed the risk, and to have taken her chances of the outcome, or to have been guilty of negligence that contributed to the result.”

But counsel contends that it does not so appear. In view of the testimony of plaintiff’s son-in-law that she told him that she got confused and frightened and lost her way, and in view of her own testimony that she became confused and lost all sense of direction, and stumbled along, “confused, not knowing what I was doing,” although later qualified in her redirect examination, this question became one of fact for the consideration of the jury under a proper direction. In other words, this question was so emphasized by counsel in the examination of the plaintiff that the defendant was entitled to have this phase of the case distinctly submitted to the jury. While the court charged the jury generally upon the subject of contributory negligence, it did not call their attention to the point covered by defendant’s tenth request, which request was justified by the testimony .of the plaintiff.

The question whether the plaintiff realized at the time that she was confused and bewildered, and did not know where she was going, and continued blindly on, knowing that there was a ditch near by, and the effect of such condition of mind, was not called to the attention of the jury. Most certainly if such was her condition of mind, and she made no attempt to locate the ditch or any landmarks, she would be guilty of contributory negligence. In Black v. City of Manistee, 107 Mich., at page 61 (64 N. W. 868), Justice Hooker said:

“Where a person actually sees the danger before the accident, there is as great reason for him to avoid it, as there is for the municipality to provide against it beforehand.”

In Smith v. City of Jackson, 106 Mich. 136 (63 N. W. 982), this court said:

“In view of plaintiff’s own testimony, we think that the court did not err in holding, as a matter of law, that plaintiff, in continuing at a trot along this street, upon a dark night, within four or five feet of a recognized danger signal, was not in the exercise of ordinary care. If he had slackened the speed of his horse, and felt his way, it might have been said that he was in the exercise of some degree of care in the presence of a warning of danger, but he does not seem to have taken any precaution except to avoid driving over the light.”

See, also, Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844); Irion v. City of Saginaw, 120 Mich. 295 (79 N. W. 572); Cloney v. City of Kalamazoo, 124 Mich. 655 (83 N. W. 618); Hodge v. City of St. Louis, 146 Mich. 173 (109 N. W. 252); Sargeant v. City of Detroit, 156 Mich. 291 (120 N. W. 792). It often occurs that a charge adapted to the particular evidence in the case will have weight with the jury, while a general abstract proposition of law will pass unnoticed by them. We cannot say that the giving of defendant’s tenth request, or the substance of it, would not have changed the result. The refusal was in our opinion prejudicial error. We find no other error in the record.

For the error pointed out and discussed, the judgment below will be reversed, and a new trial granted.

Ostrander, C. J., and Bird and Blair, JJ., concurred. Hooker, J., concurred in the result.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MICHIGAN TRUST CO. v. McNAMARA.
    1. Interpleader — Pleading — Sufficiency of Bill of Complaint.
    On demurrer to the jurisdiction of equity, a bill of complaint sufficiently avers facts that warrant a judgment of inter-pleader, by showing that complainant is administrator of an estate against which one of the defendants had recovered a judgment, that several attorneys who were successively employed by defendant claim liens on the judgment and on funds in complainant’s hands, that said administrator is in doubt as to the priority of said liens, and, having no interest in the fund, is willing to pay the same to the persons entitled to it, that one suit is pending relative to the rights of certain defendants and that other litigation concerning the fund is likely to be instituted.
    2. Same — Words and Phrases.
    A bill of interpleader is intended to protect persons from whom several claimants demand the same thing, debt, or duty, and who have incurred no independent liability to any of them.
    Appeal from Kent; McDonald, J.
    Submitted January 10, 1911.
    (Docket No. 61.)
    Decided March 31, 1911.
    Bill by the Michigan Trust Company, as administrator of the estate of Mary McNamara, deceased, against Mary McNamara and numerous other defendants, praying that defendants may be required to interplead. From an order overruling a demurrer of defendant Mary McNamara, she appeals.
    Affirmed.

      Thomas P. Bradfield (Kleinhans & Knappen, of counsel), for complainant.

      A. A. & H. A. Ellis, for defendant McNamara.
   Moore, J.

This case is an appeal by Mary McNamara, one of the defendants, from an order overruling her general demurrer to a bill of interpleader, so-called, filed by the complainant the Michigan Trust Company, administrator of the estate of Mary NcNamara, deceased. A reference to the cases of McNamara v. Michigan Trust Co., 148 Mich. 346 (111 N. W. 1066), and Id., 155 Mich. 585 (119 N. W. 1074), will aid in understanding the situation.

The bill avers defendant recovered a judgment against the estate of Mary McNamara for $11,217, and that the Michigan Trust Company now seeks to pay into court the amount due on this judgment; that in the course of this litigation against the estate of Mary McNamara she has employed attorneys, some of whom claim she has not paid them for their services, and have filed notices of lien in the circuit court and with the Michigan Trust Company, the complainant, notifying the trust company not to pay the money due on this judgment to the defendant Mary McNamara. The bill sets out an attempt to pay the judgment ; that the appellant refused to receive the money due on the judgment, although the administrator has ever since that time and until notices of other liens than that of McKnight and McAllister been ready and willing to pay the judgment and interest at the legal rate, subject only to its statutory right to offset the costs taxed against the defendant Mary McNamara.

The bill of complaint sets up in full the amount of the costs taxed against the defendant Mary McNamara, as shown by the records of the Supreme Court and the records of the Kent circuit court. The bill further sets out that the administrator has never since the 21st day of July, 1908, when the letter was written to the defendant Mary McNamara, claimed any right, title, or interest in or to the amount of the judgment, excepting its right to set off the costs taxed against the defendant, and that the administrator does not know and cannot ascertain the rights of the different defendants under the judgment and notices of liens set up in the bill, and cannot without danger and hazard to itself undertake to decide between the defendant Mary McNamara and the other defendants; that on account of the suit in aid of execution by McKnight and McAllister, the administrator has already been put to considerable expense and involved in litigation on account of the conflicting claims of the defendants; that it fears it will become further involved in other litigation and suffer other expense, and be put to further and other costs, trouble, and expense on account of these conflicting claims. The bill denies collusion, and sets up the fact that the suit is commenced by the administrator of its own accord, with the consent of the probate court of the county of Kent, for the sole purpose of paying the amount due upon the judgment into court, and the administrator offers and proffers and asks leave to pay the amount due upon said judgment into court, and asks that the conflicting claimants be required to settle their respective claims among themselves, so that the administrator may not be compelled to suffer unnecessary loss or expense, or pay the judgment more than once.

All of the defendants excepting the defendant Mary McNamara have answered the bill of complaint. The answers all tend to show a disagreement or contest, more or less violent, between the defendant Mary McNamara and the other defendants, and in some cases a contest between the attorney defendants as to the priority of their alleged liens. The defendant Mary McNamara filed a general demurrer, containing 25 reasons why the bill should be dismissed, the important one of which is the first:

“First. The defendant Mary McNamara demurs because the circuit court for the county of Kent in chancery has no jurisdiction of the fund, which the demurrant claims is under the exclusive jurisdiction of the probate court, thus giving the administrator an adequate remedy at law.”

The demurrer came on to be heard before the circuit judge, and, with the files of the ease and the records of his court before him, Judge McDonald, after hearing the arguments and considering the briefs submitted, overruled the demurrer, giving the depaurrant leave to answer upon the usual terms.

The case is argued at length in the briefs, and was argued fully orally. We think the trouble with the contention of the appellant is that it is based upon the assumption that the claims of the various persons who have notified the complainant not to pay over the fund are claims against the estate of Mary McNamara, deceased, when, in fact, they are claims against the living Mary McNamara, who has obtained a judgment through the agency of the various courts against the estate of Mary McNamara, deceased, the amount.of which judgment is in the hands of the complainant ready to be paid over to defendant Mary McNamara, if her creditors had not laid claim thereto. The theory of the bill is that complainant is in doubt as to who is entitled to the money, and wants that doubt solved so that the money can be paid over safely by her. In 1 Words and Phrases, p. 779, the following occurs:

“A bill in the nature of an interpleader is one in which the complainant asks some relief over and above a mere injunction against suits by the contesting parties, and states facts which entitle him to such relief independent of the fact of the adverse claims of the several defendants. Van Winkle v. Owen, 54 N. J. Eq. 253 (34 Atl. 400, 401).”

At page 789 of the same volume -occurs the following:

“A bill of interpleader is a bill filed for the protection of a person from whom several persons claim, legally or equitably, the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter. The equity is that the conflicting claimants should litigate the matter amongst themselves without involving the stakeholder in their dispute. McDonald v. Allen, 37 Wis. 108, 111 (19 Am. Rep. 754) [citing Adams, Eq. 202]. * * * A bill of interpleader is a bill filed for the protection of a person from whom several persons claim, either legally or equitably, the same thing, debt, or duty, but who has incurred no independent liability to any one of them, and does not himself claim an interest in the matter. The object and effect of the bill is to compel such claimants to litigate the question among themselves, so that it may be determined which one of them complainant is under obligation to. The bill will not lie where the complainant has incurred any independent liability by means of an express agreement with any one of the defendants. Sprague v. Soule, 35 Mich. 35.”

In School District v. Weston, 31 Mich. 85, which was a bill in the nature of an interpleader, there is a very full discussion of the subject of bills in the nature of inter-pleader. Justice Christiancy, speaking for the court, used the following language, which we think is germane to the instant case:

“The district, since the money became due, has always been ready and willing to pay, whenever it can be ascertained, in this labyrinth of counterclaims, to whom it ought or can safely pay. The contest is one purely between the respective claimants of portions of this fund, no one claiming the whole fund, but some claiming their entire debts without abatement, others their pro rata, according to arrangement between Potter and the district. Under the circumstances, the district says by this bill:
“ ‘While we are ready and anxious to pay over this money to the parties really entitled, it is impossible for us to ascertain who these parties are. We are mere naked trustees, without interest— mere stakeholders. We have no objection to your litigating or settling your respective claims to this fund between yourselves. We are ready and anxious to comply with such judicial determination, or such settlement, and to pay over the fund accordingly. But we object to being forced, not only to participate in the battle between you, and its risks and embarrassments, but especially to occupying a position between your respective lines, where your thrusts of each can only reach the other through us. This is your own battle, not ours. We ask to be permitted to step aside, and allow you to aim your blows directly at each other, and take upon yourselves all the risk and responsibilities incident to the contest. We ask to be allowed to place the fund which you are all endeavoring to reach, in the hands and custody of the court, who may regulate and direct the contest between you in such manner as shall be found best to secure your respective rights, allowing us to retire from the contest with our costs of this litigation to come out of the fund, which we have till this time held in good faith, for the benefit of the parties who may be found entitled to it, or any portion of it.’
“This, under the circumstances of this case, would seem to be but a reasonable request on the part of this school district; and if no method had yet been invented or recognized by courts of equity,- by which the district could be allowed to retire from the contest in which it. has no interest, and by placing the funds in the hands of the court, where the contest may be carried on by the parties really interested, and their rights determined, without holding the complainant liable to this multiplicity of suits, and the risks and embarrassments of protracted litigation, we should have to admit a degree of infirmity in courts of equity, a want of adaptation in the remedies they have contrived to meet the exigencies of business and the adjustment of rights, which would be far from creditable.”

The demurrer, of course, admits the truth of the averments of the bill. Treating these averments as true, we think they establish a case for a bill in the nature of interpleader. See Maclennan on Interpleader, p. 341.

The decree is affirmed, with costs.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    CURRAN v. BARTLETT.
    Trusts — Implied and Resulting — Subrogation.
    Where a trustee, after his appointment pursuant to the provisions of a will, filed a bond in less than the amount ordered by the probate court, which never approved the bond, and where the trustee sold lands from the trust estate, without the order or sanction of the probate court, obtaining thereby funds that he employed to discharge certain mortgages on the trust property, and to purchase other lands, his acts were invalid and the beneficiaries being infants and incompetents who could not affirm or disafiirm his acts, the purchasers of the land from the estate were entitled to a lien on the lands bought by the trustee from their funds, and were entitled to be subrogated to the rights of the mortgagees that had received payment therefrom.
    Appeal from Genesee; Wisner, J.
    Submitted January 12, 1911.
    (Docket No. 76.)
    Decided March 31, 1911.
    Bill by Hugh Curran and Daniel Kurtz against Charles L. Bartlett, trustee of the estate of Matilda P. Hitchcock, and Effie A. Gibney, Alice M. Gibney, Lyman Gibney, and Thomas J. Allen, to establish a resulting trust. From a decree granting a part of the relief claimed by complainants, all parties appeal.
    Affirmed.

      Jasper C. Gates, for complainants.

      Homer J. McBride and John H. Farley, for defendants.
   Moore, J.

A reading of the opinion in Gibney v. Allen, 156 Mich. 301 (120 N. W. 811), will aid in understanding the questions involved here.

The bill of complaint in the instant case avers the death of Mrs. Hitchcock, the leaving of a will by her which was duly probated, the appointment of Mr. Allen as executor, and the various other proceedings as stated in the' opinion before referred to. The bill avers that complainant Curran on January 2, 1903, bought of the said Allen, as trustee of said estate, the “Webster 10 ” for $2,000; that on January 21, 1903, complainant Kurtz bought from Mr. Allen the “ Chittenden 50 ” for $2,000; that both complainants acted in entire good faith supposing Allen had the power to sell. The bill further avers that April 11, 1902, the said Allen bought from Mr. and Mrs. Noble the “Beebe 10” for $1,500, upon which land there was a mortgage running to Mary L. Young for $665.59; that to pay for the “Beebe 40” Mr. Allen borrowed from Mr. Brown $2,000 and gave a mortgage on the “Beebe 40” and other lands. The bill of complaint further avers that, out of the inoney paid by Mr. Curran to Mr. Allen, the latter paid the Young •mortgage, amounting to $665.59, and procured its discharge of record. The bill further avers that, out of the moneys obtained from Curran and Kurtz, said Allen paid the Brown mortgage, amounting to $2,100, and procured its discharge of record, The bill avers:

“(16) And your orators further show that the whole of the consideration which said Thomas J. Allen either individually or as such trustee paid to said William H. Noble and wife, as a consideration for the conveyance of said ‘ Beebe 40 ’ to said Allen, as above set forth, was furnished by your orators to said Allen, and was paid by said Allen out of the money received from your orators in the manner hereinbefore specified.”

The bill of complaint avers the commencement of certain ejectment cases to recover the lands bought by complainants. It avers that the Gibneys by accepting the money of complainants and taking the title to the “ Beebe 40 ” ratified and confirmed the sale and conveyance by Mr. Allen of the lands deeded by him to complainants. The bill prayed for a restraint of the ejectment suits, or, in the alternative, that the purchase of the “ Beebe 40 ” be decreed to be for the benefit of the complainants or as a third alternative relief that complainants be subrogated to the Browp mortgage and the Young mortgage. Defendants answered fully and denied that complainants were entitled to any relief. The case was heard in open court.

The record shows the following occurred upon the trial:

“ It was thereupon agreed between counsel that the files and records in the ejectment suits described in paragraphs '13’ and ‘ 14’ of the bill of complaint, in this cause shall be considered as in evidence. It was also agreed between counsel that the order discharging Thomas J. Allen, as executor of said estate, described in paragraph ‘ 2 ’ of the bill of complaint, in this cause, shall be considered in evidence. It was also agreed between counsel that his final account as such executor was thereupon presented to said probate court and upon due notice and hearing was allowed.
“Mr. Gates: I will say to the court and counsel I am not endeavoring to make a claim as to the validity or power of Mr. Allen, strictly speaking. I recognize that the decision in Gibney v. Allen, holding that Allen never was trustee, would be fatal to a claim on our part to .hold the ‘Webster 40’ and ‘Chittenden 50’ by virtue of any power under the will.
“Mr. Farley: Or the letters of trusteeship?
“Mr. Gates: That is not my theory. The theory of my bill is that Mr. Bartlett has the right to elect whether he will disaffirm or ratify. If he disaffirms, as I understand him to do by his answer, that we are then remitted to such remedies as we are able to make effective. I recognize that you have disaffirmed it. If you stand by it, we cannot hold under the deeds.
“Mr. Farley: If it is admitted that, Mr. Allen having been discharged as executor and having failed to qualify as trustee, his acts in making the various mortgages and of making the various deeds were void, why, of course, I do not care to cross-examine him.
Mr. Gates: I am not claiming under those. I will say, in order that there may be no misunderstanding, that my claim will be that we entered under those deeds in entire good faith and made certain improvements; that some allowance should be made to us for these improvements by the court in its final decree.
Mr. Farley: I do not see the necessity of making a lengthy record by even putting in these orders and petitions, except as you say that something was done by which he might have thought he was authorized to act; is that what you claim ?
“Mr. Gates: My claim is that he was acting under the color of letters of trusteeship. He thought he had power to deed and take our money. Now, inasmuch as the act is disaffirmed by his successor, we are seeking to follow the proceeds. We claim that the ‘ Beebe 40 ’ is the proceeds. That is where the case is now. I recognize that we cannot hold the title to the ‘Webster 40’ and ‘Chittenden 50 ’ under the decision in Gibney v. Allen. My position is that the consideration upon which we paid $4,000 —that is, Mr. Kurtz paid him $2,000 and Mr. Curran $2,000 — that consideration has failed. That we now by this suit are endeavoring to follow the money. I expect to follow it into the ‘ Beebe 40 ’ to show that it was paid for entirely with our money. From that my claim will be. that there is an implied trust to convey to us the property which was bought and paid for by our cash.”

After the case was argued, the court expressed himself as follows:

The Court: It seems as though the court ought to be in a position to dispose of the entire matter, both the ejectment cases and this matter. But it seems there is some question of improvements in the ejectment cases, and there is no proof before the court so that the court would make any intelligent decree in respect to them. But I am clearly of the opinion that the court would not have authority to turn over that specific piece of land. I do not believe that would be within the power of the court, because there is no proof as to its value. It may have appreciated in value to such an extent that these complainants would not only get their money back, but would make a profit besides. I can’t say. I know that property in that vicinity has greatly appreciated. Perhaps there is some portion of that Hitchcock estate that has appreciated pretty near a hundredfold in the last five or six years. But I am clearly of the opinion that this estate ought not to get the land back that it has deeded and also retain the land that was actually paid for the money. These complainants paid for the pieces they supposed they were buying, and I think the decree of the court should be that these complainants be subrogated. I think each of them paid $2,000. I think they should be subrogated to the rights of the mortgagee in the Young mortgage and to the rights of the mortgagee in the Brown mortgage to the extent of $1,500, and that those two mortgages should be revived in their favor. That would make something over $2,165. The $1,500 would bear interest from the time it was paid to Noble. Now, the details of the decree, of course, you will agree upon. I find that it is a fact that the money paid by them was used to wipe out the Brown mortgage to the extent of $1,500, and the Young mortgage to the extent of whatever was due upon it — $650 and some cents. With regard to the ejectment cases, it seems to me that you should have made some sort of an effort to secure an adjustment of the matter. There was no use of that litigation going on, because certainly these complainants cannot hold the land under the decree of the Supreme Court in the other case. Cannot you gentlemen agree ? There ought to be now no more expense made in this matter. Complainants’ lien in this matter will be $2,165.59, and that will bear interest from the time their money was used to pay up those mortgages. They are entitled to be subrogated as of that date.”

Later a decree was prepared and entered, from which decree both parties appeal; counsel for defendants saying they appeal because the complainants did. It is claimed that it was understood there was to be no appeal. That claim is denied. In his certificate to the transcript the circuit judge expresses himself as follows:

“Ido further certify that upon the settlement of the decree in said cause the parties thereto by their respective solicitors did agree, upon the rental value of the ‘ Beebe 40 ’ and ‘ Chittenden 50 ’ above referred to, during the period of time in which the same was occupied by said complainants, and did agree upon the value of the improvements put upon said land respectively by said complainants and the amount of the taxes thereon paid by them respectively, for the purpose only of getting an adjustment of said matter in said cause and to avoid further litigation, and further that said decree does not embody or fix a compensation for improvements, rental value, or taxes for the year 1910 and subsequent years. I further certify that at the hearing in said cause the records and files in the case of Gibney v. Allen, reported in 156 Michigan, at page 301 (120 N. W. 811), were considered by me as part of the evidence, having been made so by the bill of complaint herein. Wherefore I have duly settled and signed this transcript containing the substance of all the evidence in said cause, except the records and files in the case of Gibney v. Allen above referred to, this 3d day of September, 1910.”

It is the claim of the defendants that the opinion in Giney v. Allen, 156 Mich. 301 (120 N. W. 811), decides the case against the contention of complainants; that if they have any relief it is against Mr. Allen; and that the bill of complaint should be dismissed. We think a reading of the opinion will show the contention of counsel, as to the money of the complainants which can be traced to the “Beebe 40” which was bought by Mr. Allen, cannot be sustained.

Counsel for complainants make the following claims (we quote from the brief): -

“ (1) By avoiding Allen’s sale to us of the ‘ Webster 40’ and the ‘Chittenden 50,’ and thus depriving us of these lands for which we paid Allen an aggregate of $4,000, ‘defendants ’-must be held to have elected to avoid all of Allen’s transactions in this regard. Therefore they will not be permitted to claim the benefit of his purchase of the ‘ Beebe 40.’
“(2) Without our knowledge or consent, Allen paid the whole purchase price of the ‘Beebe 40’ with money belonging to us; a resulting trust therefore arises in our favor entitling us to this property.
“(3) If no such resulting trust arises, then we should be subrogated to the rights of the mortgagees in the Young mortgage ($665.59), and the Brown mortgage ($2,100), which Allen paid up and discharged with our money.”

Taking up these propositions in the order presented:

1. There would be force in this proposition if the Gibneys were all in a position to affirm or disaffirm, but, as was shown in the opinion in Gibney v. Allen, they are not.

2. It is a mistake to say that Mr. Allen bought the “Beebe 40” with money furnished by complainants. The payment to Mr. and Mrs. Noble was made with money borrowed of Mr. Brown,' secured by a mortgage not only upon the Beebe 40, but upon land belonging to the Hitchcock estate. It is true the mortgages were afterwards discharged with money from complainants.

3. Doubtless the reason why the circuit judge limited complainants’ recovery to $1,500 of the Brown mortgage and the amount of the Young mortgage was because only $1,500 of the Brown mortgage entered into the purchase of the Beebe 40. So far as appears, the balance of it was used by Mr. Allen either for the estate or for his own use. The record is clear that the money of the complainants to the amount of #1,500 and #665.59 was used to clear the liens from the Beebe 40,” and that as to those amounts the complainants should be subrogated. See Morris v. Vyse, 154 Mich. 253 (117 N. W. 639, 129 Am. St. Rep. 472).

We think the court below made a right disposition of the case.

The decree is affirmed. As both parties appealed to this court, neither will recover costs in this court.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    STOCKBRIDGE ELEVATOR CO. v. BOOTH.
    1. Evidence — Parol Evidence Rule — Contracts.
    Plaintiff, after purchasing a car load of rye from defendant by telephone, sent a confirmation of the sale, stating, among other terms, that weight and grade were guaranteed by the defendant, who proceeded to ship the merchandise according to directions Payment was made and accepted. The weight and grade proving deficient, plaintiff brought action on the guaranty. Defendant offered evidence of the conversation over the telephone, for the purpose of modifying the effect of the guaranty clause. Held, that the contract was written and unambiguous and that parol evidence to vary or contradict its terms was incompetent and properly excluded.
    3. Same — Secondary Evidence — Collateral Subjects — Damages.
    Secondary evidence of the terms under which plaintiff resold the rye was admissible, as it affected a contract collateral to the issue, and had a tendency to prove only one element of plaintiff’s damages.

      3. Same.
    And the phrase in such confirmation of the sale, “Our terms . with you as usual i' was properly construed by the trial court to have referred to the conditions of payment.
    Error to Lapeer; Smith, J.
    Submitted January 18, 1911.
    (Docket No. 109.)
    Decided March 31, 1911.
    Assumpsit in justice’s court by the Stockbridge Elevator Company against Robert Booth. Defendant appealed to the circuit from a judgment against him. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Herbert W. Smith, for appellant.

      B. F. Heed and A. H Perkins, for appellee.
   McAlvay, J.

Plaintiff is a Michigan corporation having its business office at Jackson. Defendant did. business at Drydeb, Mich. Both parties were engaged in the business of buying and selling grain, and from time to time had business dealings with each other. This suit is brought to recover damages for a breach of warranty by defendant as to the grade of a car load of rye sold by him to plaintiff.

The facts relating to this sale are: That defendant having rye for sale wrote to plaintiff as follows:

“Dryden, Mich., Aug. 16,1905.
Gentlemen: If you want a car of strictly number two rye, call me up in the morning or wire me your best offer. It is in good shipping condition, thoroughly dry.
“Yours respectfully,
“Robert Booth.”

After receiving this card, Mr. Shelden, secretary of plaintiff company, on the following day called defendant by telephone, as requested, and a purchase of the car of rye was arranged. On the same day plaintiff filled out and mailed to defendant a blank “confirmation of purchase ” used by plaintiff for such purpose. Omitting the formal parts, it reads:

“We confirm purchase of you this day by phone, 1 car number two rye at 57£ f. o. b. your station, less weighing and inspection fee 50c, weight and grade guaranteed by you at destination, shipment within 10 days. You may draw bill of lading attached, or we will send check for value of car less, to cover any contingencies. Balance to be remitted when car is unloaded. Our terms with you as usual.
“Shelden.
“If the above is not in accordance with your understanding, wire or telephone us immediately.
“Stockbridge Elevator Co.,
“ Per Shelden.”

This was received by defendant on the day after, together with written shipping instructions, and defendant immediately loaded and shipped the car of rye according to such instructions, and forwarded the bill of lading and invoice to plaintiff. This invoice was paid to defendant by plaintiff by check of $485.68, dated August 19th, which was the date of the invoice. This car was sold by plaintiff the day it was purchased. On arrival in Pittsburg, the destination, to which it was shipped by defendant, it was rejected as under grade. Defendant was notified of that fact, and later was notified that the car could not be disposed of in Pittsburg, and he was requested to handle it and give another car. Defendant did nothing in regard to the matter, and finally the car was sold by plaintiff in Baltimore, and plaintiff settled with its vendee, at a loss of $124.23. Defendant refused to settle, and suit was brought in justice’s court, where defendant pleaded the general issue, and no question of fraud or mistake was raised. Plaintiff recovered a judgment. On the trial in the circuit court, to which defendant appealed, a verdict for plaintiff was instructed by the court, for the amount claimed. The facts stated are not disputed.

The errors relied upon by defendant are: First. That he should have been permitted to testify to the conversation between the parties over the telephone at the time of the sale. The contention of the defendant is that this should have been allowed for the purpose of explaining "the clause in the confirmation of purchase, “Weight and grade guaranteed by you at destination.” It was claimed ..that the clause in the writing, “our terms with you as usual,” required explanation by showing former dealings between the parties. The court construed this word “ terms” to refer to the condition of payment, and refused to allow defendant to show the terms of other tranactions. The record shows that all of these offers were in fact made to contradict the guaranty clause. It is undisputed that this writing was received and accepted by defendant without comment or objection.

The question first presented is whether it is of such a character that no parol evidence is admissible to vary or contradict it. Plaintiff claims that this is a written stipulation between the parties which cannot be varied or modified by parol evidence. The trial court accepted this construction, and we are in accord with such conclusion. From the facts of this case, it appears that no binding agreement was made between the parties in the conversation over the telephone. The written confirmation by the purchaser, received, accepted, and acted upon by defendant, made this a valid, enforceable sale. It is more than a mere memorandum. It is complete as to the subject-matter, quality, price, time of shipment, and both grade and quality guaranteed by defendant at destination; everything is mentioned, except time of payment, about which there can be no question raised, for the reason that payment in full was made at once and accepted by defendant. The entire undertaking was fully executed by both parties. There was no ambiguity as to any of its terms. The record shows that the sole object of introducing the testimony relative to the conversation over the telephone was to contradict and vary the unambiguous clause, “Weight and grade guaranteed by you at destination.” This court in a very similar case has held that this cannot be done. Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665), and cases cited and digested.

Second. Error is assigned upon the admission of secondary evidence to show the terms of the written contract of sale between plaintiff and its vendee. The contract in question was collateral to the issue and was only important for the purpose of proving one element of plaintiff’s damages. This evidence was admissible. 1 Greenleaf on Evidence (16th Ed.), § 89; Foster v. Railway Co. (C. C.), 56 Fed. 434.

Third. That the court erred in refusing to allow an explanation of the confirmation of purchase. We have already held that this writing was such a one as • comes within the rule that its terms cannot be contradicted or varied by parol evidence, and have covered most of the matters here discussed. It is claimed that, because this was partly printed and partly written, there is a conflict between the written and printed parts which required explanation, etc. There is no ambiguity or conflict between the writing and printing of this instrument, and we agree with the court in the construction of the clause, “Our terms with you as usual.” There appears to be no error in the case.

The judgment is affirmed.

Ostrander, C. J., and Bird, Hooker, and Moore, JJ., concurred.


author: Ostrander, C. J.

text:
    PETERS v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Fellow-Servant—Foreman.
    A foreman in charge of several employes, engaged in removing wrecked cars from the track by means of a derrick, having authority to hire and discharge the men, and to direct their work, was not defendant’s vice principal for whose negligence it would be liable in ordering plaintiff to take hold of the greasy and slippery spokes of a wheel connected with the drum of the derrick, plaintiffs injuries resulting from his hand slipping from the wheel into revolving cogs of the apparatus.

    Error to Bay; Collins, J.
    Submitted January 16, 1911.
    (Docket No. 91.)
    Decided March 31, 1911.
    Case by Porter E. Peters against the Michigan Central Railroad Company for personal injuries. Judgment for -plaintiff. Defendant brings error.
    Reversed.

      Cooley & Hewitt (Humphrey, Grant & Baker, of counsel), for appellant.

      De Vere Hall, for appellee.

       As to vice principalship considered with reference to the rank of the superior servant, see note in 51 L. R. A. 513.
      For vice principalship as determined with reference to character of act causing injury, see note in 54 L. R. A. 37.

   Ostrander, C. J.

The plaintiff, being then 21 years old and employed by the defendant, was injured July 24, 1906. He was one of a number of men employed as laborer in constructing a branch line of road. The foreman of these men, acting by direction of his superior, took them, or some of them, including the plaintiff, to a place where certain cars of defendant had been derailed and wrecked on the main line of defendant’s road, to act as a wrecking crew. A flat car, which carried a derrick operated by hand, was a part of the wrecking outfit. Sent upon this car to assist in operating the derrick, plaintiff claims he received an order from the foreman to take hold of the spokes of the larger of the two wheels — the wheels having intermeshing cogs on the outer side of their circumferences — in obeying which order, the spokes being greasy, plaintiff’s right hand slipped and was caught in the cogs. The foreman had authority to hire men and to discharge them. The trial court was of opinion,- and ruled, that the foreman was a vice principal of defendant, and the issue submitted to the jury and the rules given for their instruction and guidance appear, sufficiently for the purposes of this opinion, in that portion of the charge which is here set out:

“The specific claim of plaintiff is, that a few days before his injury he was employed by defendant, through one Edward Bovine, its foreman, as a member of an extra crew of men to be engaged in extending and constructing a line of track from said Lewiston branch, northerly, and that while so employed, and that on July 34, 1906, the day of his injury, he and others of such crew were withdrawn by said Bovine from such work and taken to the main line of said Lewiston branch, and directed by him to assist in removing such wreck; that such derrick or crane was an appliance with which plaintiff was unfamiliar, designed for lifting heavy loads through the use of a hand crank attached to a cogwheel operating a larger of such wheels; that plaintiff was set to work by said Bovine to assist in operating such wheels through the use of said crank; that just about dark of said day he was directed and ordered by said Bovine to remove such crank and take hold of the spokes of said larger wheel and operate the same through the same by the use of his hands applied to said spoke; and that unknown to plaintiff said spoke was covered with a black-colored grease or oil, disguised by color and a covering of dirt; and that as he took hold of such spoke to operate such larger wheel, while in the exercise of due care, his right hand suddenly and unexpectedly slipped from such wheel and passed between the cogs of said two wheels, injuring him as hereinafter stated. * * *
“I charge you as a matter of law that if said Bovine did direct and order plaintiff to take hold of the spokes of such larger wheel, and operate the same through the use of his hands applied thereto, and that such manner of operation was one not designed to he adopted and carried on, and that plaintiff was ignorant of the manner of use of such derrick or crane, and that said Bovine knew or should have known of the presence of such grease or oil upon said spokes, if the same was there, hidden by dirt, and relying upon such direction and order and not knowing that said spokes were covered with such grease or oil, and the same were so covered, hidden by dirt, so that he did not and should not have noticed such fact, and that he was ignorant of the danger of taking hold of the same and attempting to operate such wheel, if there was danger connected therewith, and that -such direction and order was a negligent act on the part of said Bovine, and while operating the same in the exercise of due care on the part of plaintiff, his hand suddenly and unexpectedly did slip therefrom because of the presence of such grease or oil, and without fault did pass between the cogs of such two wheels, injuring him as claimed, then he is entitled to recover such damages as he is shown to have sustained by such injury.
"You may as well understand, gentlemen, at this time as well as at another time, that if Mr. Bovine did not direct plaintiff to take hold of the spokes, as claimed by plaintiff, then the plaintiff cannot recover, and a conclusion on your part to that effect would end the case. I charge you, as a matter of law, that if said Bovine did direct and order plaintiff to take hold of the spokes of such larger wheel and operate the same through the use of his hands applied thereto, and that such manner of operation was one not designed to be adopted and carried on, and that the plaintiff was ignorant of the manner of use of such derrick or crane, and that said Bovine knew or should have known of the presence of such grease or oil upon said spokes, if the same was there hidden by dirt, and relying upon such direction and order, and not knowing that said spokes were so covered by such grease or oil, and the same were so covered, hidden by such dirt, so that plaintiff did not and should not have noticed such fact, and that he was ignorant of the danger of taking hold of the same and attempting to operate such wheel, and if there was danger connected therewith, and that said Bovine failed to advise and warn plaintiff of the presence of such grease and oil and of the danger connected therewith,' if there was such danger, and that such direction and order of said Bovine and such failure on his part to so advise and warn plaintiff were negligent acts on the part of said Bovine, and, while operating such wheel in the exercise of due care on the part of plaintiff, his hand suddenly and unexpectedly did slip therefrom because of the presence of such grease or oil, and without fault did pass between the cogs of such two wheels injuring him, as claimed, then plaintiff is entitled to recover such damages ;as he is shown to have sustained by such injury. If said Bovine did give plaintiff direction and order to take hold of such wheel, then I charge you that the plaintiff would have the right to presume that there was no hidden or unknown danger connected therewith that the plaintiff either did not know or in the exercise of reasonable observation upon his part should not have known at the time that he took hold of the same.
“Plaintiff would not assume any risk arising from taking hold of said wheel that was not known to him or that in the exercise of reasonable observation upon his part he should not have known at the time. That I think may be broadened. If the plaintiff, by the exercise of the ordinary care of a reasonable and prudent person, could, at the time and place in question, have discovered, after he says the order was given to him, and before he took hold of the spoke, that it was covered with grease or oil as claimed by him, and notwithstanding this he took hold of said spoke, he was guilty of contributory negligence, and he cannot recover.”

In this court, the single question debated by counsel is whether Bovine, the foreman, was, or was not, a fellow-servant of the plaintiff.

It is proper to state that no testimony was introduced tending to prove either the incompetency of the foreman, that the derrick was not a suitable apparatus and in good order, that the foreman knew the spokes of the larger wheel were greasy or slippery, that the derrick was other than a simple machine, all of its parts being visible, or that any particular or peculiar hazard attended its operation by the men at the cranks. On the contrary, the only reasonable inferences to be drawn from all of the testimony are that the foreman was competent, the derrick in proper order and a suitable apparatus for the work to be done, the oil, or grease, if there was any, on the spokes of the larger wheel, came from the usual process of oiling the bearings, the duty assigned to plaintiff was the simple one of assisting a man to turn a crank which revolved a wheel, which, in turn, by the intermeshing of cogs, revolved a wheel, which revolved a drum upon which the rope or cable which passed up and along the arm of the derrick was wound. Four men, two at each crank, and .on opposite sides of the derrick, handled the cranks. Whether the foreman directed - plaintiff and the others helping him to take off the cranks and take hold of the spokes is disputed, and it seems to be undisputed that it was impracticable to apply energy to the spokes of the wheel for the purpose of either raising or lowering weight. Assuming the order to have been given and obeyed, it does not appear that obedience was attended with any hazard not perfectly obvious, unless it arose from a greasy or slippery condition of the spokes of the wheel.

The learned trial judge was of opinion that a distinction existed between the case presented and that of the section foreman in charge of a crew, engaged with them in a common employment, because the duties of Bovine, the foreman, in the particular instance, could not be defined or stated in advance; the method of accomplishing the desired result being left, to some extent, to his initiative and control, with respect to which he had no superior or master.

“It appears to me,” he said, “that in the character of the work done, and the character of the management of the work, Mr. Bovine occupied a distinguished position, which it appears to me makes him a vice principal for the .defendant for that business.”

We do not concur in this opinion. To use language employed by Mr. Justice Montgomery in Schroeder v. Railroad Co., 103 Mich. 213, 223 (61 N. W. 663, 666, 29 L. R. A. 321, 50 Am. St. Rep. 354):

“There was no defect in machinery. There was no negligence in the employment of servants. The injury did not result from the failure to properly instruct an inexperienced servant, nor did the injury result from a want of general rules for the management and conduct of the business.”

Nor did the foreman have complete control of the business of the master or of a disconnected branch thereof. In a sense, every section boss having orders to go to a particular point and repair track or roadbed, to clean up the right of way and to remove obstructions therefrom, is given charge of the particular work, and performance is necessarily left, to some extent, to his judgment and discretion. But he does not therefore become the alter ego of the common employer. Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737), and cases cited in the opinion.

The judgment is reversed, and a new trial will be granted.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    BRITTSON v. SMITH.
    1. Brokers — Vendor and Purchaser — Option—Contracts.
    Real estate brokers who obtain from the owner of a farm the exclusive right to procure a purchaser of it at a specified price and within a given period, any excess above the amount named to belong to the brokers, are entitled to the agreed compensation as their commission, after finding a purchaser to whom the owner refuses to convey, and although the contract is described as an option, the brokers do not stand in the relation of vendees of the property.

      2. Same — Statute of Frauds.
    Nor is such a contract within the terms or intent of the statute of frauds. 3 Comp. Laws, §§ 9509, 9511.
    3. Contracts — Interpretation.
    Contracts are to be construed with reference to all their terms.
    4. Same — Mistake—Equity—Evidence—Parol Evidence Rule.
    Evidence is admissible to show that the land described in a contract giving to brokers the exclusive sale of land, as the N. W. ½ of the N. W. ¼, and also elsewhere referred to therein as defendant’s “farm of eighty acres,” in fact should have been described as the W. ½ of the N. W. ¼, since the description indicated a probable mistake, and was ambiguous.
    Error to Shiawassee; Miner, J.
    Submitted January 19, 1911.
    (Docket No. 124.)
    Decided March 31, 1911.
    Assumpsit by Albert Brittson and Marion Smith, co-'partners, against William H. Smith. A judgment for defendant on a verdict directed by the court, is reviewed by defendant on writ of error.
    Reversed.

      Albert L. Chandler and George E. Pardee, for appellants.

      Odell Chapman, for appellee.
    The testimony for plaintiffs tended to prove that on or about November 15, 1909, they made an oral agreement with the defendant that if they would sell, or find a buyer for, defendant’s farm for such sum that the defendant would receive $6,400 for the farm, they were to have as their commission for selling the farm all of the purchase price over and above $6,400; that they found a purchaser able and willing to pay for the farm $6,400 and more; that defendant refused to complete the sale. The testimony for the plaintiffs further tended to prove that, having arrived at an agreement with the defendant with respect to the sale of the farm, it was put in writing upon a blank form which one of the plaintiffs had, as follows:

      “Owosso, Nov. 15, 1909.
    “I hereby authorize Brittson & Smith, of Mt. Pleasant, Mich., to sell or find a buyer for my farm of 80 acres, situated in Shiawassee Co., State of Michigan, described as follows, N. W. ½ of N. W. ¼, sec. 35, township Rush, 8 N., range 2 E. The undersigned owner of said property agrees also to furnish a complete abstract of title and warranty deed to us or to any one designated by us. In consideration of this option Brittson & Smith agree to advertise and make every consistent effort to sell said farm within the time herein designated. Failure to do so renders them in no way liable to the undersigned. It is also further agreed:
    “1st. This option shall run to March 1st, 1910.

      “2nd. The undersigned is to have $6,400.00, net, for said farm.

      “3rd. Brittson & Smith are to have as their commission for selling said farm all of the purchase price over net price named above.

      “4th. The said farm shall be sold on the following terms, viz., all cash, balance on time at......per cent. interest.

      “5th. In case of sale all moneys are to be deposited at Citizens’ Bank, Owosso, to the credit of the undersigned.

      “6th. Brittson & Smith reserve the exclusive right to deal with any and all customers that they may bring to said farm or that may come to said farm through their advertising.

      “7th. Brittson & Smith shall have the exclusive right to sell said farm. Possession to be given March 1st, 1910.
    “W. H. Smith.
    “Brittson & Smith.
    “ February 21st, 1910.
    “This contract continued to April 1st, 1910.
    “W. H. Smith.
    “Brittson & Smith.”
    In their declaration in the first count plaintiffs declare specially upon the written agreement, alleging that the description of the premises in the agreement is inaccurate through the negligence and fault of the defendant, and that the description in the said writing should read “west half of the northwest quarter,” instead of “northwest-half of the northwest quarter.” The damages alleged are moneys expended in railroad fares, for livery, time expended, loss of profits in and about the neglect of other business, and the difference between $6,400 and $7,400, for which latter sum it is alleged they had arranged to sell the farm. In the second count of the declaration they allege that they were authorized by defendant to find a buyer for his farm who would pay the sum of $6,400 in cash, and that it was agreed that plaintiffs should have as a commission for their services in and about the sale the difference between the said sum of $6,400 and the price at which they could sell the premises; that they procured a buyer at the price of $7,400, and for their damages they allege that they lost the commission of $1,000, and they entered into a contract with the intending purchaser for the sale of the farm to him at $7,200, which contract they have been unable to perform because of the default of defendant, and are liable to said intending purchaser for damages for a breach of their contract with him. The third count is substantially like the second count. The declaration contains also the common counts in assumpsit.
    Upon the objection of defendant, the trial court refused to receive testimony offered to prove that the description in the writing was a misdescription of the defendant’s land, that he had but one farm in Shiawassee county, that the agreement of the parties related to that farm, and at the conclusion of the trial he instructed the jury in substance that while all the equities were with the plaintiffs, and that if they were entitled to recover at all they were entitled to recover the sum of $800, that plaintiffs were not entitled to show in the face of the writing by parol evidence that it was the intention of the parties that the land for which they were to find a buyer, and for which they did find a buyer, was in fact the west half of the northwest quarter of the section, and directed a verdict for the defendant. A judgment in favor of the defendant was duly entered.

      The court called attention to and based his opinion, in part, upon 3 Comp. Laws, §§ 9509 and 9511, the first of which sections provides that no estate or interest in lands other than leases, etc., shall be created, unless by a deed or conveyance in writing; and the second, that every contract for the sale of any land shall be void, unless the contract or some note or memorandum thereof shall be in writing and signed by the party by whom the sale is to be made.
   Ostrander, C. J.

(after stating the facts). It is -apparent that the court construed the writing as counsel for the defendant construed it, as one for the sale of land, .-and not as a mere agreement to pay a commission to an agent or broker for selling land. The agreement gives to plaintiffs, for a limited time, the exclusive right to find a buyer for the farm who will pay at least $6,400 for it to the owner; the expressed inducement to plaintiffs to enter upon the work of finding a buyer being the right to retain for their services any sum greater than $6,400 which they can induce the purchaser to pay. Upon the part of the plaintiffs the agreement would be performed when they produced a person able and willing to pay $6,400 or more for the place. Upon the part of the owner, the defendant, the contract would be performed if, when a purchaser was produced by the plaintiffs and $6,400 was paid or tendered him, he conveyed the farm with good title. The intending purchaser could not compel the owner of the farm to convey it to him, or to the plaintiffs. Plaintiffs do not occupy the position of principals to a contract for the purchase and sale of lands. They did not agree with defendant to buy his farm, and he did not agree to sell it to them. Language used in the opinion in Carr v. Leavitt, 54 Mich. 540 (20 N. W. 576), is applicable here:

“This surely was not a contract ‘for the sale of any lands, or any interest in lands,’ within the meaning of the statute of frauds. * * * That statute contemplates a transaction between parties contracting with each other as principals; and this was not such a transaction.”

See, also, Waterman, etc., Exchange v. Stephens, 71 Mich. 104 (38 N. W. 685); Hannan v. Prentis, 124 Mich. 417 (83 N. W. 102); Obenauer v. Solomon, 151 Mich. 570 (115 N. W. 696).

The promise of defendant contained in the memorandum of agreement that he will “furnish a complete abstract of title and warranty deed to us, or to any one designated by us,” would be quite as binding if made orally. It is no more than any owner of land who procures the services of an agent for its sale impliedly promises to do, if a suitable buyer is produced. The ultimate purpose of such a transaction is the sale and conveyance of the property. The contract must be construed with reference to all of its terms. The word “option” which is used therein relates manifestly to the exclusive right to sell the farm within a limited time. The clear purpose of the agreement is evident. It is not one for the purchase and sale of real estate, and we dismiss from consideration arguments based upon the idea that the contract was one which the statute makes invalid, unless it is written.

- The essence of the agreement, whether the parol or the written agreement, was the procuring a purchaser for defendant’s farm. Plaintiffs offered to prove that defendant had but one farm, that it was in Rush township, contained 80 acres, and was properly described as the west half of the northwest quarter of section 35, was shown to them and to intending purchasers by defendant, and was the land they undertook to sell. So much of the description of the land as is written “northwest half of northwest quarter ” is an improbable description, indicating a probable mistake. It is not a description which government surveyors are permitted to use, and is one which could not be located by the usual monuments, minutes, and plats made by surveyors. ' The parol testimony offered did not tend to vary, contradict, or modify the written agreement, but to make certain what appeared upon the face of it to be uncertain. What has been said disposes of all reasons and suggestions which are advanced in support of the action of the trial court.

The judgment is reversed, and a new trial granted.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


author: Bird, J.

text:
    PEGG v. PEGG.
    1. Husband and Wife — Tenancy by Entirety — Joint Tenants.
    By a deed from husband to wife of a half interest in real property owned by him, a tenancy in common is created, that is. not enlarged by a clause between the granting and the habendum clause, stating that the object of the deed is to create an estate by the entirety with full rights of survivorship.
    2. Same.
    At common law it was necessary to observe the unities of time, title, interest and possession in creating an estate by the entirety.
    Appeal from Grand Traverse; Mayne, J.
    Submitted January 18, 1911.
    (Docket No. 101.)
    Decided March 31, 1911.
    Bill by Mary O. Pegg against John Pegg, James Pegg, William Pegg, Mary Pegg, and Sarah Nichols to quiet title. Prom an order overruling a demurrer to the bill of complaint, defendants appeal.
    Reversed.

      Covell & Cross, for appellants.

      Pratt & Davis, for appellee.
   Bird, J.

The bill of complaint in this cause calls for the construction of a deed made by Davis Pegg to Mary C. Pegg, the complainant. Davis Pegg was the husband of complainant, and in the year 1897 he conveyed to her, by warranty deed in the usual form, an undivided one-half interest in and to the following described premises:

“ The west half (W. ½) of the southeast quarter (S. E. ¼) of section three (3), and the west half (W. ½) of the northeast quarter (N. E. ¼) of section ten (10), in Grand Traverse county.”

In the deed, between the granting and the habendum clauses, is inserted the following clause:

"The object and purpose of this deed is to convey to said second party such an interest in said land that the parties hereto will have an estate in entirety, and that the same shall survive and vest in the survivor as a full and complete estate.”

The deed was recorded in 1901, and in 1902 Davis Pegg died. Complainant is in possession of the premises, and claims title thereto on the theory that she and her husband owned the premises as tenants by entirety, and, she being the survivor, she takes the whole. It is claimed by the defendants, who are brothers and children of deceased brothers of Davis Pegg, that Davis Pegg and complainant were the owners of the premises as tenants in common, and that upon his decease an undivided one-half of the premises descended *to them. The defendants demurred to the bill, and the trial court made an order overruling it, and they have appealed from that order.

Davis Pegg conveyed an undivided one-half interest in said premises to complainant. He retained an undivided one-half interest therein. After this was done they had distinct titles, and were therefore tenants in common. The title remained that way until Davis Pegg died. The question is, then: What became of his undivided half ? Ordinarily it would descend to his heirs, the defendants ; and it did so descend, unless the clause which was inserted carried it in a different direction. Complainant contends that it did not so descend, because she and her husband owned the premises as tenants by the entirety, and were made such by said deed, and that now, as survivor of her husband, she is entitled to the whole of said premises.

In order to own the whole, as survivor, she would have to be seised of the whole before his death. Whatever vested in her as survivor must have been owned by both her and her husband before his death, and each must have been seised of the whole. As neither one was seised of the whole, but both held by distinct titles, they could not have been tenants by the entirety. Neither were they tenants by entirety of the undivided half conveyed to her, because Davis Pegg reserved no interest in the undivided half he conveyed to complainant. The deed as a whole cannot be construed as creating a tenancy by entirety, because the law was not followed in creating it. At the common law, the unities of time, title, interest, and possession had to be observed in creating such an estate. Blackstone’s Commentaries, book 2, p. 182; 1 Washburn on Real Property (6th Ed.), p. 529. See suggestion in Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404).

The common law has remained unchanged in this respect and is now in force. In the attempt to create an estate by entirety, in the case under consideration, neither the unity of time nor title was observed. The estate was not created by one and the same act, neither did it vest in them at one and the same time. If the clause inserted can be said to be a part of the habendum of the deed, as is argued, then that part of the habendum must fail, on the ground that it seeks to enlarge an estate in common, which is granted, into an estate of entirety, without complying with the rules of law for the creation of such an estate. By reason of these considerations, the deed must be read as though the clause had been omitted. The deed created a tenancy in common between complainant and her husband, and upon his decease his undivided one-half of the premises descended to his heirs.

The order of the trial court, overruling defendants’ demurrer, will be vacated and set aside, and an order entered sustaining the demurrer.-

Ostrander, C. J., and Hooker, Moore, and Mc-Alvay, JJ., concurred in the result.