text:
    ROGERS v. CHIPPEWA CIRCUIT JUDGE.
    Receivers — Appointment by Federal Court — Injunction by State Court — Telephone Companies — Rates.
    Notwithstanding the provisions of chapter 866, 25 U. S. Stat. 436, § 8, a State court has no jurisdiction to entertain a suit for an injunction against a receiver for a telephone company-appointed by a Federal court, the effect of which would be to compel him to reduce the rate charged complainant for telephone service to that fixed by a city ordinance.

      Mandamus by Thomas N. Kogers to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order dismissing a bill for an injunction.
    Submitted October 27, 1903.
    (Calendar No. 20,155.)
    Writ denied November 17, 1903

      W. A. Goutts, A. B. Macdonell, and Holden & Holden ( Cahill & Wood, of counsel), for relator.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for respondent.
   Carpenter, J.

On the 16th of May, 1903, relator filed a bill in the circuit court for the county of Chippewa, in chancery, against the Union Trust Company, receiver for the Michigan Telephone Company. In that bill, relator averred that on the 23d of February, 1903, the Michigan Telephone Company was engaged in the business of leasing telephones to the public, and supplying the public with telephonic service in the city of Sault Ste. Marie; that on that day the Union Trust Company was duly and legally appointed receiver for said Michigan Telephone Company by the United States Circuit Court, Sixth Circuit, and is now, and has been continuously since the day and year last aforesaid, engaged in the business of leasing telephones to the public; that relator has for some time, not definitely stated, leased one of said telephones, and has heretofore paid therefor under protest the sum of $36 per year; that he is entitled to have said service, by virtue of an ordinance passed by the city of Sault Ste. Marie, as well as by virtue of the charges to others, at the rate of $24 per year; that he has tendered money on -this basis to the receiver; that the receiver insists that relator continue' to pay at the rate of $36 per year, and threatens to deprive him of telephonic service if such payment is not made. Relator prays in his bill for both a temporary and permanent injunction, restraining defendant from carrying out its threat.

On the filing of this bill, a temporary injunction was' issued, as therein prayed. Subsequently the receiver, without conceding the jurisdiction of the circuit court, filed therein a certified copy of its order of appointment, and of the bill upon which said appointment was based, and suggested that the circuit court for the county of Chippewa, in chancery, could not entertain jurisdiction of complainant’s suit. Still later — July 23, 1903 — the circuit court entered this order:

“The suggestion filed on the 4th day of June, A. D. 1903, in the above-entitled cause, by the defendant, questioning the jurisdiction of this court, and setting forth the pendency of receivership proceedings in the United States Circuit Court, Sixth District, in equity, having been brought on- for hearing, this court orders that the injunction awarded by an order of this court dated May 16, A. D. 1903, do stand dissolved, and all proceedings therein be dismissed; and the complainant is hereby left, without prejudice, to the United States Circuit Court, Sixth District, in equity, for the enforcement of whatever rights or remedies he may be entitled to in the premises.”

Relator applies to this court for a mandamus compelling the vacation of the order above set forth.

The right of the court below to entertain. jurisdiction depends upon the proper construction of section 3 of an act of Congress enacted March 3, 1887, as amended August 13, 1888 (chapter 866, 25 Stat. 436). That section reads as follows:

“That every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed. But such suit shall be subject'to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.”

To grant relator relief on his bill, a State court must determine that he is entitled to telephone service at a lower rate than heretofore charged him. The order of the federal court appointing the receiver contains this language :

“Said receiver is hereby authorized and directed to furnish all telephones and telephone service oh the terms and conditions and at the rates now charged by the defendant [the Michigan Telephone Company] until the further order of this court.”

' There is force in relator’s contention that it is not intended by this order to direct the receiver to continue to discriminate against any particular person. The order clearly indicates, however, what we should know without it, that the court which appointed the receiver claims the right to determine the rate upon which telephone service shall be furnished. The right to make this determination necessarily belongs to that court, and this right is necessarily exclusive. A State court has no more right to deter-' mine the rent which the receiver shall charge one person than it has to determine what it shall charge all persons. If such a determination were made, it would, under the language of the statute, “be subject to the general equity jurisdiction of the court in which such receiver was appointed.” It follows that, if the State court should issue an injunction in this case, its enforcement would depend upon the judgment of the federal court appointing the receiver. The proposition that State courts should issue such injunctions cannot be seriously entertained for a moment. No court should assume jurisdiction of a controversy unless it can make a binding decision therein.

In support of the contention that the State court should assume jurisdiction in this case, relator cites the following cases: Reinhart v. Sutton, 58 Kan. 726 (51 Pac. 221); Stolze v. Railroad Co., 101 Wis. 47 (80 N. W. 68); State, ex rel. Attorney General, v. Frost, 113 Wis. 623 (88 N. W. 912). In Reinhart v. Sutton, supra, the State court determined that a receiver appointed by a federal court had committed a nuisance in digging a ditch. Its jurisdiction to compel the ditch to be refilled, and the receiver to pay damages caused by its excavation, was upheld. That case is clearly distinguishable from the one at bar. The judgment pronounced in the State court in no way interfered with the right of administering the trust reserved in the federal court.

In State, ex rel. Attorney General, v. Frost, supra, the supreme court of Wisconsin permitted the attorney general to apply for an injunction restraining the receiver of the federal court from destroying a railroad in the State, saying:

“When there is brought to our attention by the highest law officer of the Commonwealth a state of facts from which it may be seriously argued that the federal court has, in excess of its jurisdiction, .invaded the rights and prerogatives or sovereignty of the State, this court will not hesitate to examine and decide such questions.”

We need go no further to show the distinction between that case and the one at bar.

The case of Stolze v. Railroad Co., supra, also decided by the supreme court of Wisconsin, is more nearly in point. In that case the complainants sought an injunction restraining the receivers appointed by the federal court from operating a railroad across their land before payment of the compensation to which they were constitutionally entitled. The jurisdiction of the State court to issue this injunction was upheld. It is sufficient to say of that case that it did not there appear as clearly as it does in the case, at bar that the effect of the injunction was to interfere with the power of administering and managing trust property necessarily reserved to the court appointing the receiver.

While we find no case precisely like the suit at bar, there is no lack of authority for the views expressed in this opinion. Chief Justice Fuller, in speaking of the law under consideration, said:

“As, however, the receiver, as the officer of the court, holds the property for the benefit of all who have an interest in it, and is not to be interfered with in its administration and disposal by the judgment or process of another court, the closing clause of the section, out of abundant caution, provides that, when the receiver is sued without leave, ‘such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.’” Gobleman v. Railway Co., 179 U. S. 338 (21 Sup. Ct. 171).
“ No court can interfere with the custody of property held by another court through a receiver.” Dillingham v. Russell, 73 Tex. 47 (11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753).
“No rule is better established than that a court having the custody of property through the agency of its receiver will not suffer that possession to be disturbed, either by a levy or sale under process issued by some other court, or by the bringing of an independent suit against its receiver to recover the possession of the res, or to enforce a lien thereon, or to establish any claim thereto.” Minot v. Mastin, 95 Fed. 737, 37 C. C. A. 236.
“In the case of Zimmerman v. So Relle, 25 C. C. A. 518, 520 (80 Fed. 417), and in Merritt v. Barge Co., 24 C. C. A. 530, 533 (79 Fed. 228), this court held that when a suit is brought to enforce a lien against specific property, or to marshal assets, or to administer a trust, or to liquidate an insolvent estate, and in all other cases of a similar kind, where, in the progress of the case, the court may find it necessary or convenient to assume control of the property in controversy, the court which first acquires jurisdiction of such a case by the issuance and service of process is entitled to retain it to the end, without interference on the part of any other court of co-ordinate jurisdiction.” Memphis Sav. Bank v. Houchens, 115 Fed. 110, 52 C. C. A. 176.
“ But, considering it [the law under consideration] in the light of and as in harmony with the seventh amendment of the Constitution of the United States, we must construe it as applying only to suits which seek to interfere with the receiver’s possession of property, and to process the execution of which would have that effect.” Dillingham v. Hawk, 60 Fed. 497, 9 C. C. A. 104, 23 L. R. A. 517.
“The possession of property by receivers, under the. appointment and order' of a court in a cause, is the possession of and for the court in that cause. No suit or proceeding touching the property can be maintained but in that court in that cause, or by leave of court obtained in ' that cause. This result follows from the nature and scope of the proceedings, is necessary for the purposes for which receivers are appointed, and is elementary. The statute which allows suits against a receiver ' in respect of any act or transaction of his in carrying on the business connected with such property’ does not change this as to suits affecting the property itself.”. American Loan & Trust Co. v. Railroad Co., (C. C.) 84 Fed. 917.

We therefore approve the order of the circuit judge, and decline to issue the mandamus prayed for.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    CHAUVIN v. DETROIT UNITED RAILWAY.
    1. Street Railways — Crossing Tracks —Contributory Negligence-Question for Jury.
    A driver who, before turning to cross a double-track street railway in the night, looked and saw a car approaching on the track nearest him one block away, and a car approaching from the opposite direction on the other track two blocks away, and, as he drove upon the tracks, looked first for.the car on the nearer track, and then for the other, which he saw was about to strike him, was not negligent, as a matter of law, in failing to look immediately before going upon the second track.
    2. Same.
    Where, in the exercise of common prudence, a person may reasonably think there is time to cross a street railway safely, he is not chargeable with negligence in attempting it.
    Error to Wayne; Hosmer, J.
    Submitted November 4, 1903.
    (Docket No. 84.)
    Decided November 17, 1903.
    Case by Silas Chauvin against the Detroit United Railway for personal injuries. From a judgment for plaintiff, ■defendant- brings error.
    Affirmed.
    Brennan, Donnelly & Van De Mark, for appellant.

      8. E. Engle, for appellee.
   Hooker, C. J.

The plaintiff’s team was struck by •defendant’s street car, and one of his horses was killed and he was injured. The collision occurred about 7 o’clock in the evening of October 28th, after dark. The only question raised by this record is’whether the court should have directed a verdict upon the ground of contributory negligence.

The plaintiff testified that he was driving upon Jefferson Avenue, and had occasion to cross the double track of the railroad; that, before turning to cross, he looked both ways for the cars, and saw them both; that the one going from the city was approaching on the track next him, and was about one block distant; that the one going toward the city was approaching him, and was about two blocks distant; that he turned to cross diagonally, but was struck by the latter. It is fairly inferable from his testimony that, as he drove upon the tracks, he looked again, first for the east-bound car, which was the nearer, and then for the west-bound car, when he saw that it was about to strike him-, and the collision happened at once. There was evidence that the car was running very fast, and testimony tending to show that no effort was made to stop it. In deciding this question, the testimony most favorable to the plaintiff must be assumed to be true.

Defendant’s counsel claim that it is conclusively shown that the plaintiff was negligent, because he drove upon the second track before looking a second time, and that, under the decisions of this court, one who does not look immediately before going upon a railroad track is negligent; citing Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Borschall v. Railway, 115 Mich. 473 (73 N. W. 551); Hine v. Railway Co., 115 Mich. 204 (73 N. W. 116). It is true that in some cases the negligence of a plaintiff has been clearly and conclusively shown. We think this is not such a case. The use of cars upon highways does not deprive persons of the right of walking and driving. They are constructed and operated upon the assumption that, they will be driven upon and over, and that mutual care will be taken to avoid collisions. ' Necessarily the driving public must exercise some judgment in relation to the opportunity to cross tracks, especially in places where cars are always in sight; and, as we have intimated in another case, if one were to be always chargeable with negligence for driving upon a track when an approaching car was in sight, there are places where he could never cross the track without being negligent. When, in the exercise of common prudence, he may reasonably think there is time to cross safely, he is not chargeable with negligence.

In this case two cars were in sight, one and two blocks away, respectively. Naturally he would look for the most danger from the nearer. Hence he may have looked first for that as he turned upon the track, and then for the other. It may be, as counsel seem to contend, that he should have looked soon enough to see where the car was before driving upon the second track, and that he should have stopped upon, or attempted to back from, the first track, in the face of the approaching car upon that track. The sequel has proved that he could have done so, because that car was stopped before it got to him; but it would not ordinarily be a safe thing to do, and we have said in one or more cases that, where one finds himself unexpectedly in a place of danger, that fact bears upon the question of his negligence in what he does afterwards, where he was not negligent in getting into the danger. If it is true that it was reasonable fori him to believe he could cross safely, he was not negligent in attempting it. We cannot tell how much he had to fear from the nearer car, nor how much attention he felt it necessary to give to it. It was in the night, when the rate of speed of a car two blocks away may not have been easily determinable. Under these circumstances, we are no,t justified in saying that he was necessarily negligent in what he did. It was a proper question for the jury. The case is within the rule followed in the cases of Garrity v. Railway Co., 112 Mich. 369 (70 N. W. 1018, 37 L. R. A. 529); Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Moran v. Railway, 124 Mich. 582 (83 N. W. 606); Boettcher v. Railway Co., 131 Mich. 295 (91 N. W. 125).

The judgment is affirmed.

The other Justices concurred.


author: Hooker, O. J.

text:
    ARCHER v. LAIDLAW.
    1. Courts — Jurisdiction—Bonds—Principal and Surety.
    A showing that a judgment on a bond had not been paid by the sureties is not a showing that the court rendering a judgment in favor of the sureties and against the principals for the same claim had no jurisdiction of the subject-matter.
    2. Principal and Surety — Judgment — Payment and Assignment. .
    Where the sureties on a bond furnished the money to pay a judgment rendered thereon, and had it assigned to a third person, they were entitled to recover the amount thereof from the principals, although the original judgment had not been discharged or satisfied of record.
    Appeal from Wayne; Rohnert, J.
    Submitted November 5, 1903.
    (Docket No. 96.)
    Decided November 17, 1903.
    Bill by John Archer and John C. McDonald against Thomas W. Laidlaw, James R. Laidlaw, Ada G. Strachan, and the Springfield Savings Bank, in aid of execution. From a decree for complainants, defendant Strachan appeals.
    Affirmed.

      Flowers, Moloney & Bishop, for complainants.

      William Stacey, for appellant.
   Hooker, O. J.

The facts of this case, stated in chronological order, are as follows: On July 10, 1897, the complainants became sureties on a paving bond, in which James and Thomas Laidlaw were the principals, running to the city of Battle Creek. Default was made, and Higley and other materialmen brought an action on the bond, which resulted in a judgment against the Laidlaws on October 17, 1899. On April 15, 1899, while said suit was pending, James R. Laidlaw conveyed the property involved in this cause to defendant Strachan. On November 1,1899, an execution was issued, returnable November 24, 1895}. On November 13, 1899, the judgment was assigned to Archibald Grant, at the instance of the complainants, who paid for the same, and gave the judgment creditors an agreement of indemnity against further costs, liabilities, or damages. On November 27th the execution was returned unsatisfied, and on the same day an alias execution was issued without complainants’ knowledge or authority. It was ordered to be issued by the attorneys for the judgment creditors. This execution was returnable December 20, 1899, and was levied upon the property in question on the same day of the issue. Two days later, and on November 29, 1899, the complainants commenced an attachment suit against the defendants Laidlaw, and caused the writ to be levied on the lands in question. Both defendants were nonresidents, and had no other property discoverable in Michigan, and the writ of attachment was hot personally served, but subsequently and seasonably they were personally served with notice of the attachment, and in due time they were defaulted, and judgment followed in favor of the complainants for $762.37 and costs, $31.35. Execution was issued and levied upon the property attached. The bill in this cause was then filed in aid of execution. All defendants were personally served with writ or order of publication. The bill was taken as confessed by the Laidlaws, and Strachan appeared and answered, leaving complainants to their proof of most of the allegations of the bill, but denying that the premises were conveyed in fraud of complainants’ rights, and denying that they had a right to have her conveyance set aside. She has appealed from an adverse decree. Her counsel claims that the bill cannot be sustained for two reasons; (1) The judgment is void(2) the conveyance, was not made to defraud creditors.

Was the judgment void? Counsel says this appears, because “there is no allegation or proof that the original judgment has been satisfied, while the evidence shows that it has not been, and that this was a condition precedent to a right of contribution, and because of its nonexistence the court had no jurisdiction of the subject-matter of the [attachment] suit, and its judgment is void;” citing Backus v. Coyne, 45 Mich. 586 (8 N. W. 694). That case is one where a surety sued a co-surety for contribution. It was held that no recovery could be had unless there had been payment or assumption of the demand. It was not held that the court had .no jurisdiction, nor that the judgment was void. Two other Michigan cases are cited in support of this claim, viz., Moore v. Hansen, 75 Mich. 564 (42 N. W. 981); Gadsby v. Stimer, 79 Mich. 260 (44 N. W. 606). The most that can be claimed for these is that a judgment is void where the record of a justice of the peace fails to show that he had jurisdiction of the parties. In the attachment case the record shows jurisdiction under the writ of attachment and levy. The declaration contains counts upon which the court had jurisdiction to render a judgment. There is nothing in this record to show a want of jurisdiction, or, for that matter, even that there was error in the proceeding or judgment rendered.

It is urged that the judgment in favor of Higley has not been paid, because it appears that a levy was made, and that the judgment has not been discharged or satisfied of record. We do not know what the trial court decided about this, and we have no right to assume, from that record, that the judgment afterwards taken was not based upon another and different claim. But, if it was material, the testimony in this record shows that the money was furnished by the complainants to pay the judgment, and, though an assignment was taken to Grant, it did not preclude a judgment in the attachment case.

Was the conveyance void? The defendant offered no evidence, and this question rests on complainants’ proof. If the case is not ruled by Crane v. Waldron, 133 Mich. 73 (94 N. W. 593), the proof shows to our entire satisfaction 'that the conveyance to Strachan was a subterfuge and in fraud of creditors.

The decree is affirmed, with costs,

The other Justices concurred,


author: Grant, J.

text:
      In re COLLINS.
    1. Criminal Law — Industrial School for Boys — Commitment —Approval by Circuit Judge.
    Under 1 Comp. Laws, § 2197, making it a condition to a valid commitment by a police court or justice of the peace to the industrial school for boys that it shall, upon a review by the circuit or probate judge of the proceedings and testimony, be approved by him, a certificate by a circuit judge upon a commitment in the words, “I hereby approve of the sentence as set forth in the within warrant of commitment, ” is insufficient.
    2. Same — Habeas Corpus — Amendment of Return.
    Where the indorsement of approval by a circuit judge on a commitment to the industrial school for boys, as set forth in the return to a writ of habeas corpus, is defective, the court will remand the prisoner, and permit the return to be amended so as to show the subsequent indorsement of the proper certificate. 3 Comp. Laws, § 9898.

      Habeas corpus proceedings by Hugh W. Collins to obtain the release of James and Charles Collins from the industrial school for boys at Lansing.
    Submitted November 10, 1903.
    (Calendar No. 20,211.)
    Prisoners remanded November 17, 1903.

      Edward Minock and Thomas Mulvihill, for petitioner.

      Charles A. Blair, Attorney General, and Henry E. Chase, Deputy Attorney General (Thomas Ambrose Lawler, of counsel), for respondent superintendent.
   Grant, J.

The petitioners, boys 13 years of age, were convicted of the crime of larceny before the police court of the city of Detroit, and were sentenced to the industrial school for boys at Lansing. The approval of such sentence by one of the circuit judges of Wayne county was indorsed upon the commitment irE the. following language: “I hereby approve of the sentence as set forth in the within warrant of commitment.” The petitioners are now before us on a writ of habeas corpus, claiming that such commitment is void under In re O’Leary, 35 Mich. 144, and In re Pierce, 74 Mich. 239 (41 N. W. 908). y

The approval of the circuit judge as originally indorsed is not in compliance with the statute, which, as a condition for commitment to the industrial school, requires the circuit judge to review the proceedings and testimony, and to indorse his approval or disapproval. If he approves, the boys are sent to the industrial school; if he disapproves, the justice must then pass sentence as in other cases provided by law. 1 Comp. Laws, § 3197. The petitioners should be discharged under those decisions, unless an amendment to the return be allowed permitting the circuit judge to certify that he did comply with the law, and has examined the testimony and proceedings and approved the sentence. The circuit judge has indorsed the proper certificate, and it is now before us on a motion to amend the return.

The petitioners were properly convicted. Shall the failure of the circuit judge to put his certificate in proper form in the first instance operate as an absolute discharge from the punishment imposed, or do the interests of justice require that the circuit judge correct his certificate to accord with the facts? Our statute provides that no person, after once being discharged, can again be restrained for the same cause;

“ But it shall not be deemed the same cause:
“1. If he [the prisoner] shall have been discharged from a commitment on a criminal charge,^ and be afterwards committed for the same offense, by the legal order or process of the court wherein he shall be bound by recognizance to appear, or in which he shall be indicted or convicted for the same offense; or
2. If, after a discharge for defect of proof, or for any material defect in the commitment, in a criminal case, the prisoner be again arrested on sufficient proof, and committed by legal process for the same offense.”

3 Comp. Laws, § 9898.

There is no reason in discharging criminals for defective commitments if the defects can be remedied in accordance with the facts. The rights of the prisoner are not infringed by permitting the amendment, while the rights of the public might suffer greatly if such technicalities were allowed to prevail. If the superintendent of the industrial school for boys had refused to receive the petitioners on account of the defective approval, — which he might lawfully have done, — should the criminals go free, or should the commitment be returned for the circuit judge to comply with the statute ?

The petitioners were properly convicted after a fair trial. This statutory requirement by a circuit judge is for the protection of the public as well as of juvenile offenders. We think that, under the statute and under the authorities, it is in the power of this court to remand the petitioners, and to cause the return to be amended, either in this court or in the court where the conviction was had, so as to accord with the facts. If this commitment had been made out, and under it the petitioners had been committed to the school without any approval of the circuit judge, we think it clear that the commitment should have been returned to the court from whence it issued, and the proceedings and testimony then placed before the circuit judge for his exami-1 nation and approval. In the cases relied upon by the petitioners it does not appear that any request was made to amend the certificate of the judge so as to comply with the facts, or to remand the proceedings for his examination, if none had been had. A discharge upon a defective commitment upon an order to give security to keep the peace is no bar io a second commitment in due form. In re Reinheimer, 97 Mich. 619 (55 N. W. 460). The following authorities are also in point: Ex parte Gibson, 31 Cal. 619 (91 Am. Dec. 546); State v. Bloom, 17 Wis. 538; People, ex rel. Devoe, v. Kelly, 97 N. Y. 212; Ex parte Tayloe, 5 Cow. 39; Sennott's Case, 146 Mass. 489 (16 N. E. 448, 4 Am. St. Rep. 344); State v. Plants, 25 W. Va. 119 (52 Am. Rep. 211).

Counsel for petitioners do not contest that the certificate of the circuit judge, as now indorsed upon the commitment, is in proper form. It is therefore established that the circuit judge has performed his duty; that he has examined the testimony, reviewed the proceedings, and approved the sentence.

The amendment will be allowed, and the petitioners remanded to the custody of the industrial school for boys.

The other Justices concurred.


author: Per Curiam.

text:
    KREKLER v. KENT CIRCUIT JUDGE.
    Mandamus — Question of Fact — Affidavits.
    A question of fact raised on a motion to quash, a writ of capias, and tried on affidavits, will not be reviewed on mandamus.

      Mandamus by Albert Krekler to compel Willis B. Perkins, circuit judge of Kent county, to quash a writ of capias ad respondendum.

    Submitted November 10, 1903.
    (Calendar No. 20,190.)
    Writ denied November 17, 1903.

      Kingsley & Wicks {King, Loivry & King, of counsel), for relator.

      Rodgers & Rodgers, for respondent.
   Per Curiam.

Mandamus to compel the circuit judge to quash a writ of capias ad respondendum.

The writ is denied:

1. Because the affidavit for capias states a cause of action.
2. The question of privilege was tried on affidavits, .which were contradictory, and raised a question of fact. The circuit judge passed upon this question of fact, and we cannot review his decision. The rule is the same as though issues had been settled and tried, or raised by a plea in abatement.


author: Hooker, C. J. Grant, J.

text:
    HAMILTON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Negligence—Question for Jury.
    Evidence reviewed, and held (Grant, J., dissenting) to raise a question for the jury as to whether the derailment of a railroad train was caused by the spreading of the rails, due to the rotten condition of the ties. Distinguishing Whipple v. Railroad Co., 130 Mich. 460.
    2. Same — Fellow-Servants—Engineer and Inspector op Roadbed.
    An inspector of a railroad bed is not a fellow-servant with a railroad engineer.
    3. Same — Duty to Trainmen — Roadbed.
    A railroad company must be diligent in maintaining a safe track for its trainmen.
    4. Same — Assumption op Risk — Spreading op Rails.
    A railroad engineer does not assume the risk from, spreading rails due to rotten ties or failure properly to spike the rails.
    5. Evidence — Harmless Error.
    The exclusion of evidence relating entirely to the liability of defendant was not prejudicial error, where plaintiff obtained a verdict, but complained that the, damages were inadequate.

      6. Same — Expectancy of Life — Mortality Tables — Ancestry.
    An expectancy of life beyond that given in the mortality tables cannot be shown by the opinions of experts based upon such tables and the longevity of plaintiff’s father and grandfather, whom he resembled.
    Error to Monroe; Lockwood, J.
    Submitted April 9, 1903.
    (Docket No. 15.)
    Decided December 1, 1903.
    Case by William T. Hamilton against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff for an alleged inadequate amount, both parties bring error.
    Affirmed.

      Willis Baldwin and A. W. Weier {Washington I. Robinson, of counsel), for plaintiff.

      O. JS. Butterfield {Henry Russel and Ashley Pond, of counsel), for defendant.
   Hooker, C. J.

The defendant’s passenger train left the track near Monroe, Mich., resulting in a bad wreck, and injuring one or more of its passengers, one of whom recovered a verdict, and the cáse was reviewed by this court. The outline of the circumstances can be found in the opinion filed in that case. See Whipple v. Michigan Cent. R. Co., 130 Mich. 460 (90 N. W. 287). The plaintiff in the present case was the engineer of the train, and he recovered a substantial verdict and judgment, from which both parties have appealed; defendant’s counsel contending that the court erred in refusing to direct a verdict for the defendant, while plaintiff’s counsel allege some errors relating to the question of damages.

The theory of the plaintiff is that the' rails spread, either because the ties were rotten and would not hold spikes, or because the sectionmen had failed to spike the rail properly. As an answer to this, the defendant insists that the evidence conclusively shows that the rails did not spread, and that it is conclusively shown that the wreck was caused by the intentional act of trespassers, who drew the spikes fastening down the rail a few minutes before the accident occurred. It is also said by defendant’s counsel that, “according to the theory of the plaintiff, the injury was due to the negligence of the inspectors of the track; that they were fellow-servants of the plaintiff, and no negligence is alleged or shown on the part of the defendant in respect to these inspectors.”

The present record is radically different from the former in some particulars, and it required the submission of all the questions of fact mentioned to the jury, unless it be the failure to spike the rails. We think that it does not conclusively appear that the track did not spread, and we are also of the opinion that it was not conclusively shown that the accident was due to the acts of trespassers. There is little evidence, if any, tending to show that the defendant’s sectionmen had failed to spike the rails, but the case did not go to the jury upon such a theory, and it need not be further considered. It was plaintiff’s claim that the defendant neglected to maintain a safe track, not that the accident was due to a failure to inspect; and, if it were otherwise, the inspector of the roadbed would not be considered the fellow-servant of an engineer in regard to the performance of such a duty, any more than he would be in repairing the road; and we have held that sectionmen are not in fellow service with trainmen in caring for and repairing the roadbed. It was the duty of the master to be diligent in maintaining the track. Tangney v. J. B. Wilson & Co., 87 Mich. 455 (49 N. W. 666); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585). We think, also, that the court would not have been justified in saying that the risk was assumed by the plaintiff. It follows that the court did not err in refusing to direct a verdict.

The jury having found a verdict for the plaintiff, it is evident that .the refusal of the trial judge to admit a plaster cast of a dent in the rails, though erroneous, resulted in no injury, and therefore would not justify a reversal of the case. It has' no bearing on the amount of damages.

If counsel were not permitted to show plaintiff’s earning power, any error in the exclusion of the testimony was eliminated by the concession of the defendant’s counsel that he had been able to work every day up to the time of the accident. Counsel sought to show an expectancy of life beyond that given in the mortality table, by experts who were to testify to their opinions, taking as a basis the mortality tables, and the hypothesis that the plaintiff resembled his father and grandfather, who lived to advanced ages. We think this testimony was properly excluded. Without passing upon the question of whether the longevity of the father and grandfather was competent evidence, we are agreed that when coupled with the proposition to show by experts the expectancy of life, based upon that testimony and the mortality tables, it was not competent.

A new trial should not be ordered on the other grounds alleged.

The judgment is affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred with Hooker, C. J.

Grant, J.

(dissenting in part). I am unable to agree with the opinion of my Brother Hooker. I think this case is ruled by that of Whipple v. Michigan Cent. R. Co., 130 Mich. 460 (90 N. W. 287), involving this same disaster. That case involved a passenger who was injured. This involves the engineer of the train, an employe of the defendant. I have examined the records in both cases, and find no substantial difference.' If the Whipple Case was rightly decided, I am of the opinion that the same result must be reached in this case. As in that case, so in this, the negligence relied on is the failure to maintain a safe track, on account of the rottenness of the ,ties, in consequence of which the rails spread and derailed the train. The conflict in the Whipple Case as to the condition of the ties was as sharp and as great as in this. In the Whipple Case several witnesses examined the ties at the place of the accident and in the vicinity thereof, and testified that they were very rotten, and that, in their judgment, it was not safe to run trains over them. The prosecuting attorney and the sheriff of the county of Monroe and two other witnesses examined the ties the following day, and gave similar testimony. We said in that case:

“ There was overwhelming evidence that the ties in use were sufficiently good to make a first-class track, and to hold the spikes.”

The same evidence was produced by the defendant in this case. The plaintiff did not produce any evidence any more convincing than that in the Whipple Case. The only difference between his testimony in this case and that produced in the trial of the Whipple Case is that plaintiff here introduced a few more witnesses as to the condition of the ties at the place of derailment and in the vicinity. But it is of the same character as that produced in the other case, and is no more convincing. If the result in that case depended upon the rottenness of the ties, it should have been submitted to the jury; but the point was that there was no evidence to show that the rails spread in consequence of this condition. If there is any testimony in this case more than in the other to show that fact, it' has escaped my attention. The position of the rail shows that it was not pressed outward, but inward, for it was found lying towards the other rail. The ties at the culvert over which the train ran are conceded to be sound. There were seven ties from the place of the derailment to the culvert. One of plaintiff’s witnesses testified that, on the following day, he examined the track after it had been repaired, and he saw flange marks on about half of the seven ties then in place. If this be true, it follows that there were three or four sufficiently sound to put back into the track.

We said in that case:

“There was strong and convincing evidence that the rail had been intentionally removed by taking out the bolts and lifting it out of, and over, the projecting U-bolts, which remained standing at the joint of the rail; that the outer spikes' had been driven down flush with the ties by the flanges of the wheels as they passed over them, immediately after leaving the rails, at the point where the rail was removed; that the bolts and fish-plates at the point where the solid track ended were uninjured, the threads on the bolts and nuts, which lay near by, being' perfect. It was shown by clear and undisputed evidence that immediately after the accident,- at the point where it occurred, there were found some tools adapted to the removal of nuts and bolts, the drawing of spikes, and the lifting of the rail. These tools belonged to another railroad company, near by, and had been placed in its tool-house, a mile or so distant, a few hours before the accident, and were found missing the next morning by -its men having the tool-house in charge. The house had apparently been broken open during the night. Two suspicious characters were seen, soon after the accident, hastening from the vicinity of the accident towards Toledo, who did not answer when accosted by farmers living near by.”

The evidence on the part of the defendant upon this point is the same in this case, and is uncontradicted by any evidence of probative force on the part of the plaintiff. It is a physical impossibility that the fish-plates, bolts, and nuts should have been perfect if the accident had happened in consequence of the spreading of the rails. This physical fact is not met by any evidence in this case. It conclusively rebuts any inference that these rails were forced apart by the engine passing over them on account of 'the rottenness of the ties, and therefore conclusively refutes any presumption that the rails spread. The opinion of experts or of men of experience that, where the ties are sufficiently rotten, the rails will spread, is of no force in the face of this physical fact. It needs no expert testimony to convince any one that, when ties are so rotten that they will not hold the spikes which keep them in place,. the tendency of a train passing over will be to spread the rails. A significant fact also appeared from the evidence in both cases that pounding was heard at the place of the accident shortly before it occurred, and shortly before the two men were seen going away from the scene.

For these reasons, I think the judgment should be reversed, and no new trial ordered. If, however, the majority of the court are of the opinion that a case was made for submission to a jury, I think the case should not be reversed for the errors assigned by the plaintiff. The plaster cast of the dent, which the court refused to admit in evidence, relates entirely to the liability of the 'defendant. The jury found that the defendant was negligent, and therefore liable. It follows that the exclusion of the plaster cast would not have affected the verdict in this regard.

The other error assigned relates to the measure of damages. Plaintiff showed that he was 49 years of age; that he was unusually strong and healthy; that he scarcely ever lost a day’s work; and the amount of wages he was receiving. He was then asked to state the ages of his parents when they died. The court excluded this testimony because it “entered the region of mere speculation.” Even were this testimony competent, to what extent his own life and ability to work would be prolonged by the ages of his father and mother is at least problematical. The life tables are based upon the actual experience of men found to be in good health, and whose lives have been insured after examination by physicians. Plaintiff was engaged in an employment requiring good eyesight and physical strength and endurance. There is no evidence as to the length of time engineers are in sufficient health, vigor, and eyesight to perform the important and arduous services required of them. Evidence of the ages of his parents, in my judgment, is of very little value, and, even if competent, its exclusion does not justify a reversal of the judgment, especially where the plaintiff recovered a very substantial verdict, and one which, under the evidence, a court is not justified in holding was insufficient in amount. But I am not prepared to yield my assent to its competency. In my experience in the practice of the law and upon the bench, I never knew the-question to be raised before. We are cited to but one case where such a question was raised. Chattanooga, etc., R. Co. v. Clowdis, 90 Ga. 258 (17 S. E. 88). There is. neither discussion nor ruling in the opinion of the court. The opinion simply states that error was assigned in allowing “ O’Dell, witness for plaintiff, to testify, over objection that the evidence was irrelevant and illegal and tended improperly to influence the jury, as follows: ‘I don’t know what age his [deceased’s] father lived, but he was very old, — a man up in 80 years.’” The syllabus of the case says, “ There was no error in admitting or excluding evidence.” Such a decision affords but little light on the question.


text:
    KNICKERBOCKER v. KNICKERBOCKER.
    Divorce — Evidence—Appeal.

      Held, under the evidence, that complainant had made out a case for a divorce on the ground of cruelty; defendant having failed to establish his countercharge of adultery.
    Appeal from Hillsdale; Chester, J.
    Submitted June 5, 1903.
    (Docket No. 36.)
    Decided December 1, 1903.
    Bill by Mary E. Knickerbocker against Frank J. Knickerbocker for a divorce. From a decree dismissing-the bill, complainant appeals.
    Reversed.

      F. A. Lyon, for complainant.

      Frankhauser & Cornell and Paul W. Chase (Grant Fellows, of counsel), for defendant.
   Grant, J.

Bill for divorce. In this case we are convinced that the complainant has made out her case, and that the defense has failed to show adultery on her part, or to sustain the acts charged. An extended opinion has been prepared, in which the testimony has been discussed in extenso; but, as the case turns solely upon a question of fact, we think no good purpose would be served by printing in the Reports an opinion of 20 or 30 pages, which could not serve as a precedent in any future case.

Decree is reversed, with costs to complainant.

The other Justices concurred.


author:
      Gbant, J. Hooeíer, C. J.
      Carpenter, J.

text:
    KENYON v. CHARLEVOIX IMPROVEMENT CO.
    1. Custom — Contracts.
    A custom, to be binding upon contracting parties, must be known to them, or so open and notorious that they must be presumed to have contracted with reference to it.
    2. Same — Locality.
    A custom existing only in one county will not bind a party residing elsewhere, who had no notice of it.
    3. Abstractors — Services—Copies.
    Where an abstractor agreed to bring defendant’s abstract down to date, get 400 copies of it printed, and attach his certificate that the printed copy was correct, he could recover only the customary fee for one original abstract, his necessary disbursements, and the reasonable value of his services for the clerical work in making the copies and certifying to their correctness. Per Grant and Montgomery, JJ.
    4. Same — Certificates of Correctness.
    Certificates by an abstractor that certain printed papers are correct copies of an abstract involve something more valuable than the mere clerical work in making them, and, in the absence of an express agreement as to the price to be paid therefor, he should be allowed to recover their reasonable value. Per Hooker, C. J., and Moore, J.

      5. Same.
    The plaintiff in such case should recover what his services were worth, not what an ordinary clerk' could demand for such services, nor the value of the certificates to the defendant. Per Carpenter, J.
    Error to Charlevoix; Mayne, J.
    Submitted June 3, 1903.
    (Docket No. 15.)
    Decided December 1, 1903.

      Assumpsit by Frank A. Kenyon against the Charlevoix Improvement Company for services rendered. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff is the register of deeds of Charlevoix county, and under a contract with the board of supervisors kept up a set of abstract books owned by the county. He received fees for abstracts as his compensation. Charles M. Heald was president of the defendant company, and resided in Detroit, A contract was entered into between plaintiff and defendant, through Mr. Heald, evidenced alone by the following correspondence:
    “Detroit, Mich., August 24, 1901.
    “Register op Deeps,
    “Charlevoix, Mich.
    “ Dear Sir: _ Herewith I inclose the abstract of title covering what was formerly known as the Dickson land, now Lindsay Park Addition to Charlevoix. I wish you would please bring this down to date, and then I would like to ask that you get a bid from one of your printers to print say 400 copies of the abstract, such abstract to bear your certificate that the printed copy is correct. Will you kindly give this matter your early attention, and very much oblige,
    “Yours truly,
    “ Charles M. Healp,
    “President.”
    “Charlevoix, Mich., August 27, 1901.
    “Charlevoix Improvement Company,
    “ Detroit, Mich..
    “As you requested, I have secured a price for printing 400 copies of the abstract of Lindsay Park, which is $15. I think it would be a good plan to have the certificate of the county treasurer in regard to the taxes. You didn’t mention this, but most parties require tax history with abstract.
    “Awaiting your reply, I am,
    “Very respectfully yours,
    “Frank A. Kenyon,
    “Abstractor.”
    “Mr. Frank A. Kenyon, Abstractor,
    ‘ ‘ Charlevoix, Mich.

      “Dear Sir: In reply to your favor of the 27th inst., please bring the abstract down to date, showing therein the sale of the Chicago & West Michigan Railway to the Pere Marquette Railroad, and have 400 copies of the abstract printed as per your letter. I would also be glad if you would have the certificate of the county treasurer in regard to the taxes prepared, and I will thank you very much if you will give these matters early attention.
    “ Yours truly,
    “Charles M. He all,
    “President.”
    After completion of the work contracted for, plaintiff rendered a bill therefor of $500. The defendant, considering the bill exorbitant, declined to pay it, and returned the papers. Plaintiff declined to receive the papers, and instituted this suit to recover for his services. His bill of particulars reads as follows:
    To services in revising and correcting record title to the property known as Lindsay Park Addition to the Village of Charlevoix, and furnishing 400 abstracts thereof-----------------------------------$1,000
    To furnishing 400 abstracts of title of Lindsay Park Addition to the Village of Charlevoix, at §2.50____§1,000
    To furnishing 400 tax histories of Lindsay Park Addition to the Village of Charlevoix, made by Henry C. Cooper, and by him assigned to plaintiff, at 50c. §200
    Plaintiff recovered verdict and judgment for $500.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      J. M. Harris and A. B. Nicholas, for appellee.
   Gbant, J.

(after stating the facts). The errors assigned relate exclusively to the rulings of the court upon, the measure of recovery. The usual price charged by plaintiff and fixed by the board of supervisors for making the abstract was $19.75. The printer’s bill was $30. ' This increase in- the printer’s bill over the price stated in plaintiff’s letter was due to a change after the printing was begun. He claims to have paid the county treasurer $60. If these are all legitimate charges, plaintiff recovered $390.25 for his services in reading proof, assembling, signing, and sealing 400 printed copies. Plaintiff testified that he could do this work in two days. One Adams, register of deeds of Antrim county, a witness for plaintiff, testified that he could sign and seal the 400 copies in two or three hours; that all the proof reading could be done in about an hour; and that the printer does all the rest of the work. Three witnesses, including plaintiff, all abstractors of more or less experience in the counties where they resided and did business, testified in his behalf on the value of these services, and the method of computing them. Upon cross-examination the court refused to permit the defendant’s counsel to show the value of the time spent by the plaintiff in reading proof, assembling, signing, and sealing the copies. Plaintiff rendered a bill for $500, filed a bill of particulars claiming $1,200, testified that he charged defendant $2.50 each for his work on the 400, and 50 cents each for the tax certificates, and that the original abstract was worth $19.75, making a total of $1,219.75. One of his witnesses fixed the value at $1,975, another at $770; while the expert witnesses for the defendant, including Mr. Clarence M. Burton, of Detroit, whose abstract business is the most extensive in the State, testified that they usually made no charges for such copies.

When one seeks to recover hundreds of dollars for a few hours’ work, he must be able to show either an express contract, or a custom known to the contracting parties, or so open and notorious that the parties must in law be held to have contracted with reference to it. Lamb v. Hen derson, 63 Mich. 302 (29 N. W. 732); Scott v. Maier, 56 Mich. 554 (23 N. W. 218, 56 Am. Rep. 402); Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547); Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598). If such a custom had existed locally in Charlevoix county, that would not bind a party residing elsewhere, who had no notice or knowledge of it. Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049); Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598); Hutchings v. Ladd, 16 Mich. 493. See, also, Milligan v. Furniture Co., 111 Mich. 629 (70 N. W. 133); Reynolds v. Insurance Co., 36 Mich. 131, 142. The defendant in this case had no notice or knowledge of any such custom. No custom was shown. Each witness for the plaintiff arrived at the damages upon a different basis, as is evidenced by the fact that no two agreed upon the measure of damages. One witness, when asked what 400 printed copies, like those here in issue, would be worth, testified:

“400 abstracts would come to $7,700. If I were making 400, I shouldn’t discount it less than one-tenth; making $770 as the least I would do the work for. ”

He immediately testified that he meant a discount of 90 per cent. When asked on cross-examination what was the basis for such a charge, he replied:

“Well, sir, if I were in the abstract business, I should protect my business. I would estimate or calculate that in 20 years I should abstract at least half of those lots. * * * To a certain extent I base my charge of $770 upon the earnings I would lose during the next 20 years.”

Such testimony is, of course, too indefinite and uncertain to furnish any basis for damages. If there was no custom controlling the price of such copies, the rule of damages would be their actual value. The time spent in the work and the value of such time are, in such a. case, important elements. Plaintiff arbitrarily charged $2.50 apiece for the copies. He could as well have charged any other sum. He might as well have- charged $19.75 for each as an original abstract, or $7,700 for the lot. But it is not claimed that'defendant contracted for 400 originals. He asked plaintiff to bring the abstract down to date, and to get a bid for printing 400 copies, with his certificate attached that the printed copy is correct. To this ^plain tiff replied that the printing of the copies would cost $15, and suggested that the certificate of the county treasurer should be attached. Defendant replied, in substance, to have the work done “as per your letter.” The contract is contained in these three letters. Plaintiff thereby agreed to bring defendant’s abstract down to date, to get 400 copies printed, to attach his certificate of the correctness of the copy, and to obtain the certificate of the county treasurer as to taxes. For these services the defendant agreed to pay the customary fees for the abstract, $15 for printing the copies, and a reasonable price for the other work,, as to which no price was mentioned. The contract was for one abstract and four hundred copies. Fees for making abstracts are based upon elements hereinafter referred to. Upon this no question arises. These copies had no additional value because certified by the abstractor to be correct copies. The copies would be just as valuable and useful if certified by any other person, official or layman, to be correct. The work of making copies of documents and certifying to their correctness is not enhanced in value by 'the fact that it is done by a lawyer, doctor, or abstractor. If some question had arisen upon the validity of defendant’s title under the abstract, and it had obtained the opinion of a lawyer as to its validity, and, desiring to have copies of such opinion to give to parties to whom it might sell lots, should contract with the lawyer to make a certain number of copies of his opinion, and attach his signature thereto that they were correct copies of the original, the basis of the lawyer’s charge, if no price was agreed' upon, would be the value of one opinion, and the value of his services for clerical work in making the copies and certifying to their correctness. If a doctor should give a patient a prescription, and the patient should ask him to make copies thereof, and certify to their correctness, the doctor could charge for the one prescription, and for the copies only the reasonable value of his time and services in making them. An article may be of great value to the party to whom it is furnished, but that is not the criterion of the price to be paid. A machine may be useless for want of a piece , broken or lost. When replaced by another, it enables the purchaser to make large profits. If not replaced, he t makes great losses. But the implied contract is to pay only what the piece of machinery is reasonably worth. I can see no other reasonable basis for the plaintiff’s services in this case in making the copies. It is conceded he cannot recover for them as originals. He cannot recover the value to the defendant. There is no custom or basis for an arbitrary price. He cannot recover because he or his successor may lose some abstracts in the future. If he desired to get pay for such uncertain damages, he should have declined to make the copies, or should have informed the defendant beforehand of, the price he would charge. He chose, however, to rest upon an implied contract to pay what his services were worth.

Three elements of value enter into an abstractor’s charges: (1) The use of the capital invested; (2) the services of the abstractor in preparing the abstract; (3) the liability of the abstractor to the purchaser of the abstract for damages resulting from defects in the abstract. This liability extends only to the person for whom the abstract is made, and not the grantee. 1 Am. & Eng. Enc. Law (2d Ed.), 221. This liability of the plaintiff was not enlarged by certifying to copies. This would have been the same if he had made but the one abstract. Under the rulings and instruction of the court, defendant would be compelled to pay upon a basis or custom with reference to which it did not contract, and to pay nearly $400 for not to exceed two days’ work, which required no skill and entailed no liability. It might have been $1,200 under plaintiff’s bill of particulars and testimony.

The court should have admitted the testimony as to the value of the time spent in the work; should have instructed the jury that no custom had been established; and that the prospective loss of earnings in the abstract business on account of the 4=00 printed copies was too remote and uncertain to constitute an element of value.

The judgment should be reversed, and new trial ordered.

Montgomery, J., concurred with Grant, J.

Hooeíer, C. J.

I concur in the result reached by my Brother Grant for the reason that the charge of the court left to the jury the opportunity to increase the compensation of the plaintiff upon the ground that it was the general custom of abstractors to base their charges for copies upon transfers, when no such custom was proved, even if it would have been admissible had it been proved. It was sufficient to allow the plaintiff to recover reasonable compensation for his services in regard to the printing, and the reasonable value of his certificates appended to the 400 printed copies of the abstract.

The defendant might have had these copies printed without asking plaintiff to see to it; but the judge properly refused to instruct the jury that such certificates were worth no more than the value of the time consumed in the physical labor of signing plaintiff’s name. The certificate that those copies were correct abstracts (or correct copies of an abstract, which would amount to the same thing) involved something more than the mere signing of a name. It carried with it certain evidence of value to the defendant, or any other person who should have occasion to use a copy of the abstract. It was proper for the defendant’s counsel to cross-examine regarding the amount and value of time consumed, as that was an element of value. I doubt if the case should be reversed on the ground of the rulings in relation to the latter subject, in view of what occurred upon the trial.

Judgment reversed.

Moore, J., concurred with Hooker, O. J.

Carpenter, J.

I agree that the judgment should be reversed because the court erred in not permitting defendant to show the value of the time required to make the certificates, and because the evidence did not establish a custom. I agree with my Brother Grant that the measure of recovery for the certificates made by plaintiff is the reasonable value of plaintiff’s, services, and not the value of the certificates to defendant. I cannot, however, agree, with him that the value of those services is to be measured by what an ordinary clerk could demand for similar services. I think plaintiff’s services were in fact more valuable than as if performed by an ordinary clerk; and this fact, together with the inferences that may properly be drawn from the circumstances under which the services were rendered, entitled plaintiff, in my judgment, to receive what Ms services are worth. Plaintiff was not bound, in my judgment, to take less for the time spent in reading proof and making these certificates than his time was worth in his ordinary occupation.


author: Carpenter, J.

text:
    COUNTY OF MONTMORENCY v. PUTNAM,
    1. County Treasurers — Accounting.
    Where a county treasurer and the auditor general merely exchanged receipts for moneys collected by each for the other, the treasurer, if credited with such amount on his settlement with the county, cannot complain of a corresponding charge against him.
    3. Same — Settlements—Evidence—Presumptions.
    The fact that the undisputed evidence shows the charges in a county treasurer’s settlement with the county to be incorrect affords no inference that his credits in such settlement do not include all his proper disbursements.

      3. Same — Failure to Produce Checks.
    The failure of a county treasurer to produce the checks drawn upon his account, or explain their nonproduction, does not destroy his testimony as to the credits to which he is entitled, but the credibility thereof is for the jury.
    4. Same.
    Testimony that a county treasurer deposited in a bank all sums received by him, except small sums properly disbursed from the office, that he never misappropriated or lost any money, and that the books and vouchers had been lost or destroyed, affords some evidence that'all the money received by him was properly disbursed, but none that he disbursed for the county money justly chargeable to him but which he never received.
    5. Same — Tax Sales on Credit — Liability of Treasurer.
    A cojmty treasurer is liable for the price of tax lands sold by him at private sale upon credit.
    6. Judgments — Appeal—Reversal—New Trial.
    A judgment will not be entered in the Supreme Court for the plaintiff upon the reversal of a judgment for the defendants for want of evidence to sustain the verdict, where there is no special verdict to warrant it.
    Error to Otsego; Shepherd, J., presiding.
    Submitted October 6, 1908.
    (Docket No. 3.)
    Decided December 1, 1903.

      Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. From a judgment for defendants, plaintiff brings error.
    Reversed.

      James Francis, for appellant.
    7 A. F. & J. G. Weadock, for appellees.
   Carpenter, J.

Defendant Putnam was treasurer of the plaintiff county for the years 1893 and 1894. This suit is brought against him and his codefendants, who are sureties on his official bond, to recover a balance which it is claimed he never accounted for. This is the third time the case has been before this court. It will be found reported in 122 Mich. 581 (81 N. W. 573), and 127 Mich. 36 (86 N. W. 398). The first trial resulted in a judgment for plaintiff for over $4,000. This judgment was reversed because defendants’ counsel was not permitted to argue to the jury that the settlements hereafter referred to between the parties to this suit afforded prima facie evidence of the true condition of the account. The second trial resulted in a verdict in favor of the plaintiff for $1,044. Plaintiff sued out a writ of error, and this court reversed the judgment on the ground that, according to the weight of the testimony, plaintiff was entitled to a larger verdict. The case has been tried the third time, and resulted in a verdict for defendants of no cause of action. Plaintiff asks a reversal of that judgment on the ground that, under the undisputed testimony, it was entitled to a verdict, and, if not, that the verdict should be set aside as against the weight of the evidence.

The determination of this question requires us to consider the testimony. During defendant Putnam’s term of office he made two settlements with plaintiff, — one in October, 1893, and another in October, 1894. He made another in January, 1895, after his term of office expired. In 1897 he paid plaintiff $94.65 on the claim that a subsequent investigation had shown a shortage of that amount in his accounts. According to the settlements, Putnam was charged with and accounted for $62,118.82, not including the $94.65 paid in 1897. The testimony of the plaintiff in this case strongly tends to prove that defendant Putnam should have been charged with $68,991.33 and credited with $63,795.79. The difference between the aggregate of the treasurer’s credits as stated in the settlement and as established by plaintiff is due to the fact that, as heretofore stated, he paid $94.65 in 1897, and there was omitted from his credits a payment made by him to the auditor general of $1,582.32. The difference of $6,872.51 between $68,991.33 (the amount plaintiff claims defendant Putnam to be chargeable with) and $62,118.82 (theamount with which he was charged in settlement) is due to the fact that the treasurer was not charged in the settlement with various items with which he was justly chargeable, amounting to $6,876.09, and was improperly charged with $3.58. The evidence of these items, so aggregating $6,876.09, consists of written receipts and acknowledgments made by defendant, and of records made by him. To illustrate, the largest of these items, viz., $3,406.35, payments made by the auditor general, is proved by producing receipts signed by defendant for an amount aggregating $5,219.11, of which amount only $1,812.76 was charged in the settlement.

There is nothing in the testimony of defendants in this case which indicates that these items, or any of them, were not proper charges. ' On the contrary, their testimony indicates that they were. In making this statement we do not overlook the fact that of the amount of $5,219.11, paid defendant Putnam by the auditor general, he actually received in cash only $995.53, and that the balance, $4,223.58, represents, hot cash paid by the auditor general to the county treasurer, but cash withheld by the treasurer in his settlement with the auditor general. The fact was that the State owed the county this $4,223.58 for county taxes collected by the State, and the county owed the State a like amount for State taxes collected by the county. In adjusting this account, instead of exchanging cash or checks, the county treasurer and auditor general exchanged receipts, so that both the State and the county received credit for this amount. It is a complete answer to any contention that the county treasurer should not be charged with this amount to say that he has claimed and received allowance for it among his credits. If, because the county treasurer did not receive the amount represented by these receipts in cash, he should not be charged with it, it follows that the credit side of his account should be reduced by a corresponding amount. It is obvious that the making of this change in the account would not affect the balance claimed to be due from defendants to the plaintiff. The correctness of this reasoning is supported by the testimony of defendant Putnam, as appears from the following quotation:

Q. Then, Mr. Putnam, if you received credit on the settlement for sending $8.70, — that receipt, — wouldn’t you be entitled to charge for the $8.70 that you receipted for to the auditor general ?
“A. I presume -so. * * *
Q. Now, Mr. Putnam, if in that settlement you received credit for the full amount in your hands, $1,055.81, you should be charged for the $28.05 you receipted to the auditor general for receiving from him ?
“A. I presume I should.
Q. Yes. Then, as a matter of fact, then, you have been credited in your settlement with sending to the State at that date $1,055.81, and we are correct when we charge you up with receiving $28.05, because you receipted for receiving that amount that day ?
“A. Well, if the receipts are there, it is correct.”

In our judgment, the undisputed evidence proves that defendant should be charged with receipts amounting to $68,991.33. It follows, therefore, that, unless there was evidence from which it might be inferred that defendant Putnam was entitled to other credits than those heretofore referred to, plaintiff was entitled to a verdict for the balance claimed.

Was there any evidence from which it could be inferred that there is not included in the credits given the treasurer all his proper disbursements ? The fact that his accounts were once settled with the county does not, under the circumstances of this case, afford such evidence. It is true that this court held, when this case was first here (see 122 Mich. 581 [81 N. W. 573]), that those settlements afforded prima facie evidence of the state of the account. They afforded prima facie evidence of the charges against and credits in favor of said treasurer. In that case, however, the undisputed evidence did not prove that the charges against said treasurer on said settlements were incorrect. In this case, as already shown, the undisputed evidence does prove said charges to be incorrect. Obviously, this fact makes said settlements no longer prima facie evidence of the correctness of the charges against the treasurer. The utmost, under these circumstances, that the treasurer can claim for these settlements, is that they still afford prima facie evidence of the correctness of his credits. He receives all that he is entitled to, under this assumption, when he is allowed, as he is now, all those credits.

Can we infer from any other testimony in the record that defendant Putnam is entitled to additional credits ?' He testifies that, with the exception of a small amount paid out in cash at the office, he deposited all the moneys received by him during his incumbency of the office with his sureties,- who were bankers at Lewiston; that the county seat during part of this time was at Hillman, and during the remainder of the time at Atlanta; that the moneys were deposited in the bank—

“When I went over to Lewiston, generally about once a week, sometimes not quite so often as that. * * * The moneys I took in during the week, and had in my possession on Saturday night, I took over to deposit in the bank. * * * I have never, in any shape or manner or form, used any of the moneys, of the county, or taken any of the moneys of the county. I never, in any way that I know of, lost any of the moneys of the county.”

That the account was kept in the name of Montmorency county; that included in these deposits were the treasurer’s fees, and also some money that belonged to him as the-owner- of certain tax titles; that, after paying to his successor the balance determined due by the settlements heretofore referred to, there remained in the account a couple of thousand dollars, which it may be inferred from the testimony was his individual money, and which he subsequently appropriated.

This is not the method by which one ordinarily establishes his right to additional credits. He generally establishes such right by proof of particular items. This proof is generally furnished by the production of vouchers or proper book entries. The failure to produce receipts and vouchers is explained by testimony showing their destruction by the board of supervisors by the consent of defendant Putnam. The failure to produce a book containing entries is explained by testimony that a cashbook (the only book kept by the treasurer) was lost by his successor. I am unable, however, to find in the record any explanation of the failure to produce the checks drawn by the treasurer on his account in the bank. While this failure to produce checks, or account for their nonproduction, might weaken, it does not altogether destroy, the testimony - of defendant Putnam. His credibility as a witness was still a question for the jury, and not for the court.

Could the jury, from this testimony, infer that he was entitled to additional credits ? If he had deposited in the bank to the account of the county all moneys received by him, except a- small amount properly disbursed, and if all the money that was paid from said account was properly disbursed for the county except what belonged to him individually, it follows that he disbursed for the county all •cash that came into his hands. If the treasurer did not misappropriate any of said money, if he made no mistake either in receiving or disbursing it, and if the bank kept proper books of account, the inference might be drawn that all moneys not otherwise properly disbursed were deposited in the bank; and his testimony clearly warrants the inference that all the money withdrawn from the bank was properly disbursed. The treasurer testifies positively that he did not misappropriate any money; that “he never, in any way that he knew of, lost any of the moneys.” There is no evidence that mistakes were made in counting the moneys. No claim is made that the bank did not keep proper books of account. We think, therefore, that the jury could have inferred from this testimony that all the money received by the treasurer was properly disbursed, .and, as this amount concededly exceeds the amount for which the treasurer has received credit, it follows that they might have inferred that he was entitled to additional credits.

The inference that the treasurer is entitled to additional credits for disbursements is based, it will be observed, entirely upon the assumption that money has passed into and out of his hands. We infer that money has been properly disbursed by him because it has passed into and out of his hands. This testimony does not, therefore, warrant the inference that the treasurer disbursed for the county money justly chargeable to him which never came into his hands. The testimony has no relation to such money. It appears from the uncontradicted testimony that defendant Putnam is justly chargeable with an item of $824 for the sale of lands at a private sale to one E. O. Avery, and that this money never came into his hands.. He is responsible for this amount, because he sold these-lands to Avery on credit, and Avery never paid for them. (It was this amount, with interest, which constituted the $1,044 for which the treasurer was held liable on the last trial. See 127 Mich. 36 [86 N. W. 398]). No inference can be drawn from the foregoing testimony, or from any testimony in the case, that this money was ever disbursed for the county. Respecting this, counsel for defendants, say that on the last trial “ it did not appear that Mr. Putnam had not drawn from the county moneys those funds to which he was entitled, but that the same had been permitted to remain in the county treasurer’s accounts, and that they are more than sufficient to balance the Avery deed items.” We assume that by this it is claimed that,, because the county treasurer did not draw from the-account in the bank in which the county moneys were deposited certain personal funds until the expiration of his term of office, this is to be charged as an offset against, the charge for the Avery deeds. It is sufficient to say in answer to this claim that defendant Putnam did get these personal funds at the expiration of his term of office, and the county received no benefit whatever from their being-deposited with the county moneys. Under the undisputed testimony in the case, therefore, plaintiff was entitled to a verdict for the amount of |824, the credit extended to Avery, with interest thereon. It results from this reasoning that there was no evidence to sustain the verdict of the jury, and that the trial court erred in declining, as he did, to set aside the verdict on that ground.

We are asked by plaintiff’s counsel to enter judgment for his client in this court. This we cannot do. See Central Sav. Bank v. O’Connor, 132 Mich. 578 (94 N. W. 11); Schmid v. Village of Frankfort, 134 Mich. 619 (96 N. W. 1056).

As the judgment must be reversed for'the error pointed out, and as the evidence on another trial may not be the same as that in this record, we think it unwise to,consider the claim of plaintiff that the weight of evidence entitled it to a verdict for the full amount of the balance claimed.

The judgment of the court below will be reversed, and a new trial granted.

The other Justices concurred.


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    CHASE v. AINSWORTH.
    1. Contracts — Sale—Construction of Terms.
    The expression, ‘‘he [the seller] to have advance for two weeks,” in a contract for the sale of beans, cannot, without the aid of. extrinsic evidence, he construed to refer to the market price at the end of two weeks.
    2. Same — Ambiguity—Extrinsic Evidence.
    Defendants, who contended that the phrase, “he to have advance for two weeks,” in a contract for the sale of beans, meant the market price at the end of two weeks, and who made no objection, on the ground of a patent ambiguity, to the introduction of evidence to explain it, cannot complain because the court permitted the jury to construe the phrase after hearing extrinsic evidence.
    3. Same — Opinions.
    A party to a written contract cannot testify to the meaning of an expression therein, in the absence of a showing that it has a definite trade meaning.
    4. Trial — Instructions—Statements op Claims op Parties.
    It was not error for the court to state plaintiff’s claim without also stating defendants’ claim in the same connection, where it was properly given in a subsequent portion of the charge.
    5. Same — Evidence—Purpose—Error.
    In an action for the price of beans sold at the market price at a certain time, it was not error to exclude testimony as to the difference between the price of new beans and old beans, where defendant did not state the purpose of the testimony, which was to show that the price relied upon by plaintiff was the price of new beans, while his beans were old.
    Error to Shiawassee; Smith, J.
    Submitted October 9, 1903.
    (Docket No. 42.)

    Decided December 1, 1903.

      Assumpsit by Almon L. Chase against Hiram N. Ainsworth and William Hanmer, copartners as Ainsworth & Hanmer, for goods sold and delivered. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Selden 8. Miner, for appellants.

      John T. McCurdy, for appellee.
   Carpenter, J.

October 1, 1902, the parties to this suit made an agreement by which the plaintiff sold to the defendants a quantity of beans. At the conclusion of their negotiations the following memorandum was made by defendants and delivered to plaintiff:

“Owósso, Mich., Oct. 1st, 1902.
“Bought A. L. Chase about 400 bu. beans @ 1.80 bu. Shrink them what they pick, and he to have advance for two weeks; to be delivered at any time in two weeks, if the roads are good; if not good, have longer time.
“Ainsworth & Hanmer.
“Advance $25.”

Part of the beans sold were delivered October 9, part October 14, and the remainder October 22, 1902. This suit is brought to recover the balance unpaid for said beans. The sole dispute relates to the price per bushel. Plaintiff claims that he is entitled to receive the highest market price during the two weeks between October 1st and October 14th, which was $2.10 per bushel. Defendants claim that he is entitled to receive the market price at the end of two weeks, October 14th, or $2 per bushel. Under plaintiff’s claim the balance due him was $166.45; under defendants’ claim that balance was $130.95. On the trial, without objection, each party testified freely to the conversation which occurred October 1st, before the memorandum in question was signed. Plaintiff testified that in this conversation defendants agreed to pay for the beans the highest market price during the next two weeks, while defendants’ testimony indicated that in the conversation they used the exact words stated in the writing.

After the testimony was all in, defendants requested the court to instruct the j ury as follows :

“The rise in the price of beans under the contract, Exhibit 1, if you find such contract was made, refers to the market price of beans on, to wit, the 14th day of October, 1902, and not to the price on a day before the 14th, or at a time when plaintiff did not notify defendants that he would accept the market price.”

The court refused to give this request, and charged the jury that the memorandum in writing heretofore referred to ‘ ‘ was not, in itself, a contract; it does not stand as a contract alone; it is only a part, or integral part, of the contract they claim to have made there;” and told the jury, in substance, that they were to determine from the conflicting testimony of the parties whether the price was to be the highest market price during said two weeks, or the market price on the 14th day of October. The jury found a verdict for the plaintiff for the full amount. We are asked now to reverse the judgment of the court below, on the ground that, the contract between the parties having been in writing, tbe court erred in permitting the jury to determine its construction.

If the written contract could, on its face, be construed as contended by defendants, this point is well taken, and the judgment should be reversed. But, in our judgment, the contract cannot, without the aid of extrinsic testimony, be construed as contended by defendants. We cannot say that the expression, “he to have advance for two weeks,” refers to the market price at the end of two-weeks. This language is quite as appropriate to indicate the highest advance during the said two weeks, as it is the advance at the end of said two weeks. We are bound to say either that this expression is so ambiguous that it cannot be construed by the court without extrinsic testimony, or that, properly construed, it fixed the compensation at the highest market price during those two weeks. If it fixed the highest market price during those two weeks, plaintiff was, as a matter of law, entitled to the verdict he received, and therefore defendants can complain of no error. If, on the other hand, the language is so ambiguous that it cannot be construed without the aid of extrinsic evidence, defendants are in no position to complain of the verdict. They did not make the point in the court below that, as the ambiguity appeared on the face of the writing, it could not be explained by extrinsic evidence. Neither did they object to the character of the extrinsic evidence introduced. Without objection on their part, plaintiff testified to the conversation which occurred just before the writing was made, and defendants gave like testimony.. Nor did defendants offer proper evidence of any other character. It is true, one of the defendants was asked, “You may state to the jury what is the meaning of the term, ‘he to have advance for two weeks,’ in your business.” As there was no showing, or offer to show, that this expression had any definite trade meaning, this testimony was incompetent, and was properly excluded. See Althouse v. McMillan, 133 Mich. 145 (93 N. W. 941). The case was therefore tried, as well by the defendants as by the plaintiff, upon the assumption that, if extrinsic evidence was competent to explain this phrase, evidence of the character introduced was competent. It was the duty of the court, therefore, either to instruct the jury to render a verdict for the plaintiff, upon the assumption that the contract, properly construed, entitled him to the damages claimed, or to leave the question to the jury; and defendants cannot complain that he took the latter course.

In submitting the case to the jury, the court stated the plaintiff’s claim and his testimony, and error is assigned because he did not state “ defendants’ claim in connection therewith.” There is no merit in this complaint, for subsequently in the charge the judge stated, “On the other hand, the defendant claims under his version of the contract,- namely, that the last day of the two weeks was to control.”

Other complaints are made of the charge. It is sufficient, however, to say that, under the views announced in this opinion, none of them are well grounded.

Error is also assigned because defendants were not permitted to state the difference between the price of old beans and new beans on October 1st, 7th, 9th, and 14th. It is now,claimed by defendants that the purpose of this testimony was to prove that plaintiff could not rely on the market price of $2.10 per bushel, as the_beans sold at that price were new beans, and plaintiff’s were old beans. It is a sufficient answer to this contention to say that defendants never apprised the court of this purpose, and certainly that purpose could not have been inferred. The court was justified, in the absence of any explanation, in assuming that this question raised an entirely immaterial issue.

The judgment of the court below will therefore be affirmed, with costs.

The other Justices concurred.