author: Steeee, C. J.

text:
      In re GOULD.
    1. Habeas Corpus — Appeal and Error — Certiorari.
    On certiorari to review habeas corpus proceedings for the custody of a minor, the court cannot review findings of fact of the trial judge determining what is for the best interest of the child.
    2. Same — Adoption—Res Judicata.
    Where a minor ohild had for several years following the death of his mother, resided with his grandparents, being abandoned by his father, who was addicted to drink, and who made no attempt to claim the ohild, but after proceedings had been instituted in juvenile court to determine the right of the grandparents to custody, consented in writing to his sister and her husband adopting the child, and where proceedings were meanwhile instituted in probate court of another county for the adoption of the infant by such sister and husband, this proceeding being resorted to for the purpose of surreptitiously forestalling the action of a court of co-ordinate jurisdiction, the rights conferred by such consent and adoption were no greater than the father had; the principal question being, what do the best interests of the infant require.
    3. Same — Custody of Minor.

      Prima facie the father is entitled to the custody and control of his child; subject, however, to considerations affecting the welfare and best interest of the infant.

      4. Same.
    While the statute (Act No. 121, Pub. Acts 1911), requires the consent of a minor to his adoption if he is upwards of ten years of age, there is no rule preventing the court from considering the wishes of a young child in passing upon a proposed change of custody.
    5. Same.
    In the absence of evidence that the infant would benefit by a change of custody, or that its best interests required a change, held that the grandparents were entitled to the right.
    Certiorari to Ingham; Collingwood, J.
    Submitted November 21, 1912.
    (Docket No. 158.)
    Decided April 8, 1913.
    Habeas corpus by Nina L. Robinson against George Graham and Lydia Graham to determine the right of custody to George Graham Gould, an infant. An order awarding the custody of the child to petitioner is reviewed by respondents on writ of certiorari.
    Reversed.

      Edward Cahill and Cummins & Nichols, for appellants.

      C. W. & W. 8. Foster, for appellee.

       As to the denial of the custody of a child to parent for its well-being, see note in 41 L. R. A. ( N. S.) 564.

   Steeee, C. J.

This case is presented by a writ of certiorari to review the action of the Ingham county circuit court in certain habeas corpus proceedings involving a contention between aunt and grandparents over the custody of their nephew and grandson, George Graham Gould, a boy nine years of age.

On August 19, 1912, said George Graham Gould was in the care and custody of, and resided with, his grandparents, George and Lydia Graham, at Lansing, Mich., when his aunt, Nina L. Robinson, of Detroit, Mich., presented a petition to, and obtained from, the circuit judge of Ingham county a writ of habeas corpus to inquire into the cause of his detention by his grandparents, alleging in her verified petition that she and her husband had legally adopted him and were by law entitled to his care and custody. The grandparents made return to said writ, admitting that the boy was in their custody and under their control, alleging their right thereto, and stating, among other things in substantiation of their claim, that, upon the death of the mother of said child, he was abandoned by his father, Durell L. Gould, since which time he had lived with, and been cared for by, them, they standing in the relation of parents to him; that they had never consented to his adoption by petitioner or any other person; and denying that petitioner had any legal right to the custody of their grandchild.

A hearing was had in open court upon the petition, writ, and return, all the parties in interest being present, and a small amount of testimony was then taken. Petitioner rested her right to the custody of the child on adoption papers issued to her and her husband by the Wayne county probate court, produced and properly proven, showing that on November 6, 1911, she and her husband, William O. Robinson, had, with the written consent of the father, adopted the child according to the statute authorizing such proceedings. At the conclusion of said hearing, the circuit court determined that petitioner and her husband were, by such adoption, the legal parents of the child, and ordered that he be surrendered to them by his grandparents, who thereupon obtained a writ of certiorari from this court to review such determination and order.

A contention over the custody of this boy between the same parties in fact and purpose, but not in form, was before this court under a different guise in the case of Graham v. Ingham Probate Judge, 171 Mich. 540 (137 N. W. 223). The facts in this case are conceded by counsel to be the same as in that case, so far as they go, and are so well stated there that repetition here is unnecessary. A small amount of additional evidence, taken in this case, consists of proof of the adoption proceedings heretofore referred to, and the testimony of petitioner and the grandmother, supplementing in detail certain matters only presented in a general way in the former case, which adds little of importance to what there appears, but will be adverted to later, so far as material.

In the case of Graham v. Ingham Probate Judge, supra, the grandparents, as result of some friction which had arisen over the custody of the boy, in which the aunt and grandmother each thought that the other had taken undue advantage of permission given for him to visit the other, instituted proceedings before the probate judge of Ingham county, under Public Act No. 6, extra session of 1907, as amended by Act No. 310, Public Acts of 1909, for the purpose of having the boy adjudicated a dependent and neglected child, on the theory that the court might and would thereafter make an order legally awarding his care and custody to them. They had him with them and were tenderly caring for him at that time. The probate court, circuit court, and this court were unable to find that the child had become destitute, homeless, abandoned, or dependent upon the public for support, or habitually begged, or was without proper parental care or guardianship, within the meaning of that act, because it appeared that the petitioners themselves had at all times given him the best of parental care, support, schooling, training and guardianship, and therefore denied the relief prayed for, saying:

“It is undisputed that he has an excellent home with his grandparents, who have heretofore cared for, and are anxious to care for him in the future..”

It is the contention of petitioner’s counsel that said decision thoroughly adjudicated the status of the father in relation to his child and determined that the father not only had not abandoned or neglected his offspring, but was entitled to his custody, and, therefore, as surviving parent, could legally consent to and authenticate the child’s adoption by the petitioner and her husband. This view appears to have been taken by the trial court in passing upon the questions raised in that proceeding.

The right of the father to the child as against the grandparents was not involved in that case as a controlling question, and was not directly passed upon. The case was not, in its true legal aspect, a proceeding to determine between contending parties who should have the custody of the child. It did not raise the question of his being taken from where he was, by a contending claimant, but called upon the court to first determine whether or not he was of the class of children mentioned in the statute, and, if so, then, under the statute, the court was asked to confirm existing conditions and leave him where he was, in the custody of his grandparents. The determination that he was not of that class was not based upon anything the father had done or not done with or for his child. There is little dispute over the facts in the present case. The trial court in awarding the custody of the child did not, as a matter of fact, determine that the best interests of the child made it imperative that he should be awarded to the petitioner and her husband, but concluded that, as a matter of iaw,under the letters of adoption, it was imperative to make such award.

Had the court found, as a paramount consideration, that the welfare and best interests of the child did in fact demand that he be taken from the grandparents and turned over to the petitioner, this court could not in this proceeding review the trial court’s finding of facts in that particular. Corrie v. Corrie, 42 Mich. 509 (4 N. W. 213); In re Sneden, 105 Mich. 61 (62 N. W. 1009, 55 Am. St. Rep. 435); Carpenter v. Carpenter, 149 Mich. 138 (112 N. W. 748). But the judgment was not based on conflicting evidence, and the questions presented for determination here are questions of law applied to undisputed facts. The decision of the trial court was:

“ The papers showing the adoption of George Graham Gould by William O. Robinson and Nina L. Robinson, his wife, are legal and binding.”

Therefore we are to consider whether the adoption papers obtained by petitioner and her husband from the Wayne county probate court control the disposition of the child under the undisputed facts in this case. It is undisputed that they were obtained without the knowledge or consent of the boy or his grandparents, who at the time practically stood, as this court held in the former case, temporarily, at least, in loco parentis to him; that he and they then were in, and residents of, Lansing, Ingham county; and the juvenile court of the latter county, with jurisdiction to act, was, at the very time the adoption papers were obtained in Wayne county, engaged, with the boy before it, in a judicial inquiry as to his legal status. Those proceedings were pending from November 11 until December 7, 1911, and the petition for adoption was filed and order made by the Wayne county probate court on November 16,1911. The latter proceeding was manifestly resorted to for the purpose of surreptitiously forestalling the action of a court of co-ordinate jurisdiction in determining the status of the child. It can with reason be urged that the father could and should have first asserted his authority and demanded an adjudication as to his parental right, and the award to him of his son, in the court first taking and then exercising jurisdiction, before going to another court to give him away.

It is shown that the boy is the only child of the only daughter of his grandparents, in whose home he was born, where he resided much of the time until the death of his mother; that on her death she was buried from their home, at their expense, and, after the funeral, the father went away leaving the child with them, without making any arrangements regarding him or any provision for his care and maintenance; that the child has lived with, been cared for, and supported by them since as their own child, and has only been absent twice, for a comparatively short time, on visits to his aunt, the petitioner, where he went with his father with their consent; that the father never contributed anything for the child’s support during this time, exercised no care or supervision over him, but visited the home of the grandparents occasionally and saw him, being absent most of the time and his whereabouts unknown; that he is inclined to drink to excess, has no home of his own and no property, and at different times appealed to the grandparents of his son for money. The father now personally makes no claim to his son, and could not. So far as he has asserted himself at all, he has declared he does not want him by signing consent to his adoption and forever foreclosing all paternal rights. The only figure he cuts in this contention is to assert himself to the extent of assigning what might be likened to a chose in action for his son to petitioner, and leaving it to her to litigate and make the most of. By merely signing the common form of consent to adoption, he is attempting to take his offspring from one doorstep and drop him on another; to take him from'a proven home where he once left him, and where the testimony shows he was tenderly cared for and nurtured during his early childhood, and transfer him to another, possibly equally good, but new and untried. The father’s legal and equitable rights, if equity is to be thought of in that connection, are limited, so far as the proofs show, to having begotten the child in lawful wedlock. All the rights the petitioner has come to her from the father and can be no greater than he had.

Prima facie the father was, and by the adoption to which he consented petitioner is, entitled to the custody of the child. The law recognizes the rights of the father because it recognizes the natural duties and obligations of the father. The father’s right to and authority over Ms child are secure and inviolable so long as he properly discharges the correlative duties.

But the absolute power of the father over his infant children, to treat them as property and dispose of them as he sees fit because they are his, which was once recognized under the Roman law of patria potestas and in the codes of early nations, no longer obtains. Paternal authority is Subordinate to the supreme power of the State. Every child born in the United States has, from the time it comes into existence, a birthright of citizenship which vests it with rights and privileges, entitling it to governmental v protection—

“And such government is obligated by its duty of protection, to consult the welfare, comfort, and interests of such child in regulating its custody during the period of its minority.” Mercein v. People, 25 Wend. (N. Y.) 64 (35 Am. Dec. 653).

The power of parental control, though recognized as a natural right and protected when properly exercised, is by no means an inalienable one. When the “right of custody ” is involved between respective claimants for a child, the courts, though in the first instance recognizing prima facie rights of relationship, in the final test are not strictly bound by demands founded upon purely .technical claims or naked legal rights, but may and should, in making the award, be governed by the paramount consideration of what is really demanded by the best interests of the child. Corrie v. Corrie, supra; In re Heather Children, 50 Mich. 261 (15 N. W. 487); Chapsky v. Wood, 26 Kan. 650 (40 Am. Rep. 321); Richards v. Collins, 45 N. J. Eq. 283 (17 Atl. 831, 14 Am. Dec. 726).

It is a well-settled rule that the personal attachments and wishes of children, when of sufficient capacity to form them, are important elements to consider where a parent seeks to reclaim a child voluntarily allowed to live for any considerable time in the family of others, and thus form home ties and an affection for those who have cared for it there. Richards v. Collins, supra. In this case the boy was not consulted in the matter of his adoption, and what his desire may have been is not disclosed. He was then between 8 and 9 years of age. Had he been 10 years old there could be no adoption without his express consent. Section 2, subd. “ h,” Act No. 121, Pub. Acts 1911. He will reach that age next August, having been bom August 30, 1903. While the statute fixes the age of consent at 10 years, it in no way precludes the court from considering and giving weight to the wishes and attachments of an intelligent child under that age, when passing upon a proposed change of the child’s custody.

This is not a case where the father, unfortunately separated from his offspring for a time by adverse circumstances, now, prompted by a parent’s love and yearning for the companionship of his only child, seeks his custody that he may, by association in the relation of father and son, strengthen the blood ties of closest kinship, himself offering to care for, support, educate, and rear his son for the mutual benefit and happiness of both. Were that the proposition before the court, and were the father shown to be a moral man of fit character with not only the disposition, but the ability and means, to properly discharge his parental obligations, a very different and much more delicate and difficult problem would confront the court. But this father asks nothing of the kind, in fact, asks nothing, and is only in the case as a transmission line to help out his sister, for reasons, if any, which are not shown.

It is shown that petitioner is a married woman with one child, a daughter, living in Detroit with her husband in a good home of her own, and the finding of the probate court of their home county that they are of good moral character and sufficient ability to support and educate said child, their home being a suitable one for him, is not questioned. Neither is there any reason to question her sincerity. She evidently has taken a fancy to the boy, wants him as a companion to her daughter that the two cousins may grow up together, and to that end is ready and willing to assume the burden with all its responsibilities.

The ability and fitness of the respective contending parties is not seriously questioned in the record. We may assume petitioner and her husband give every assurance that the child would be properly cared for in a suitable home if they were given his custody. It is conclusively shown that the grandparents have done so and are doing so. In their case it does not rest in probabilities. While with them, the boy, during the earlier years of his tender childhood has lacked nothing which a child should have. He has been patiently and affectionately nurtured and tended and all his wants provided for. When he was small and helpless and the burden of his rearing heaviest, they faithfully and freely discharged every parental duty towards him. With the passing years of patient watching over him as the little child of their dead daughter, he grew in their affection and became to them as their own child.

Not only do the interest and affection they have shown, and the care and support they have given him, entitle them to some consideration as against a prospect, but they give assurances for the future. What they have done tends to show what they are willing to and will do. Their pecuniary condition is ample to enable them to provide for his maintenance and education during minority, and much more if so inclined. There is nothing to indicate any financial advantage to him in a change of custody, or that he will in any way be better educated, trained, or treated, or his welfare in any particular be promoted if he is taken from his present home and compelled to go with petitioner. He is well provided for now, and, in the language of Justice Brewer in Chapsky v. Wood, supra,

“ ‘ Let well enough alone ’ is an axiom founded on abundant experience.”

The case of Pool v. Gott, 14 Law Reporter, 269 (a Massachusetts case apparently not regularly published in the reports of that State), is instructive, well in point here, and involves a very similar issue. Pool, the petitioner for writ of habeas corpus, had married the only daughter of respondents, and, she having died, their infant child was left by petitioner in the custody of its grandparents — a course agreeable to all parties, but without any definite arrangements being made as to length of time the child should remain or who should provide for its maintenance. The grandparents supported and cared for the child as their own. Some years later Pool remarried, and, having established a home for himself, sought to reclaim his child. The opinion in that case, delivered by Chief Justice Shaw, radiates the prevalent tone of our best authorities on the interesting and delicate subject of the right of custody of infants as between near relatives. On a review of the whole case from every angle, it was held that the child should remain in the custody of its grandparents, to whom it was devotedly attached and with whom it preferred to live; the leading principle being that, when the right of the parent is not clear and imperative, the best interests and happiness of the child must always control the decision of the court.

Under the undisputed facts in this case, petitioner’s letters of adoption do not, as a matter of law, make it imperative for the court to grant the writ and order the child from his present home into her custody.

The judgment is reversed, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    CASE v. RANNEY.
    1 Mortgages — Deed Given as Security — Remedies.
    At law, in order that a mortgage may esist, an indebtedness to the grantor is essential; it is not sufficient that a third person is entitled to the benefit of the defeasance.
    2. Same — Redemption—Equitable Interest.
    In order that a plaintiff may recover in an action on the case for neglect of his attorney or agent to protect his interest in property subject to a mortgage debt, plaintiff must show that he had some equity of redemption or other recognized interest, and a showing of an oral arrangement to convey to plaintiff made by the record owner does not support such action.
    3. Attorney and Client — Contracts — Capias ad Respondendum.
    Upon a writing executed by defendant to plaintiff acknowledging liability to his client, the plaintiff, in a specified sum, for neglect to apply rentals received on an incumbrance against property entrusted to his management, only an action of assumpsit would lie: the right to a capias ad respondendum could not be based on the written instrument.
    4. Same.
    On testimony showing that defendant was an attorney and real estate dealer, that plaintiff consulted him as an attorney and placed property in his hands to collect rentals and manage, that defendant who claimed he never held himself out or practiced as an attorney, had written letters to plaintiff on a letterhead describing him as attorney and real estate dealer, the question whether defendant acted in a professional capacity within the meaning of the statute authorizing the arrest of persons acting in professional capacity for neglect, etc., 3 Comp. Laws, § 9996 (5 How. Stat. [2d Ed.] § 12659), was properly submitted to the jury as a question of fact.
    5. Same — Rents—Personal Property.
    While rentals from real estate may be an interest therein before they are collected or converted into money, after collection they become personal property and are assignable by parol.
    6. Same — Estoppel.
    Where defendant arranged with plaintiff to collect rentals from real estate which plaintiff claimed to own by virtue of a parol agreement with his son, who gave plaintiff full charge and executed a deed in blank, the grantee’s name to be thereafter inserted by plaintiff, who, in pursuance of the arrangement, added defendant’s name as grantee, and where plaintiff twice sued defendant in justice’s court for a part of the rental collected, which defendant paid without claiming that the son was the true owner, not raising such contention until an action was commenced by plaintiff to recover for defendant’s negligence in failing to apply rentals on a mortgage against the property, held, that defendant was estopped from disputing plaintiff’s claim to rents paid to and received by defendant as plaintiff’s agent.

      Error to Wayne; Murphy, J.
    Submitted January 8, 1913.
    (Docket No. 26.)
    Decided April 8, 1913.
    Case by George F. Case against Frederick T. Ranney for negligent loss of property by foreclosure of a mortgage on which defendant neglected or failed to pay rents collected as plaintiff’s attorney or agent. Judgment for plaintiff. Defendant brings error.
    Reversed unless plaintiff remit part of the judgment.

      Lucius H. Gollins and Stewart O. Van Z)e Mark (Geers WilliamSs Martin & Butler, of counsel), for appellant.

      A. B. Hall, for appellee.
   Steere, C. J.

In this case plaintiff recovered a judgment against defendant in the Wayne county circuit court for the sum of $4,099 in an action of trespass on the case for misconduct in professional employment, breach of trust, and fraudulent conversion of funds. The action was commenced by writ of capias based on affidavits made by plaintiff and his then attorney, was duly indorsed by one of the circuit judges of Wayne county with an order to hold to bail in the sum of $3,000, and was issued November 28, 1910. Bail was furnished, pleadings perfected, and the case brought to trial in said court before a jury in October, 1911, resulting in a verdict and judgment in plaintiff’s favor as stated, and defendant has now brought the proceedings here for review on a writ of error.

Defendant was a member of the bar of Wayne county, and engaged in the real estate business in the city of Detroit. The litigation arose over his conduct in connection with certain real estate situated in said city, which had been conveyed to him under an arrangement that he should remortgage it for the purpose of paying off a former mortgage, then past due, assume the management of said property, and sell it when possible. The property, valued at about $7,000, was located at the southwest corner of Milwaukee avenue and Sixteenth street. It consisted of two and a fraction lots upon which were three brick veneered eight-room houses, which together brought a monthly rental of from $58 to $60. Plaintiff testified that he bought or procured this property in a trade prior to 1907, it then being subject to a mortgage of $3,500, and caused it to be deeded to his son John W. Case in consideration of “past favorsj” that while living in Detroit his son had managed it himself, but later, when he went away to Illinois to live, had left it in charge of plaintiff to collect the rents and sell it if possible; that plaintiff thereafter, having also decided to leave Detroit and permanently make his home in Georgia, where he had been living more or less for several years, put the property into the hands of defendant, whom he had known for 15 years, and to whom he went, when he decided to leave Detroit, “to consult him as my attorney and as a man who would take care of the property. My son had moved away, and left it all to me to handle, and I was going away, so I left it to Mr. Ranney.”

It is undisputed that the mortgage for $3,500, which was against the property when it was deeded to plaintiff’s son, John W. Case, remained, was past due, and payment was being insisted upon. Plaintiff was desirous of raising money to pay this off by a new mortgage on the property, and appealed to defendant to assist him. This the defendant undertook to do. As a result of their negotiations at that time plaintiff turned over to defendant a deed of the property from his son. This deed had been delivered to plaintiff, duly witnessed, executed and acknowledged, but with the space for the grantee’s name left blank, so that in case of a sale the name of the purchaser could be quickly inserted, and the deal closed without delay. It bore date October 8, 1907. Plaintiff inserted defendant’s name in the deed as grantee, and delivered the instrument to him.

Plaintiff testified this was done at the suggestion and by the advice of defendant, who represented it would thereby become more convenient and expeditious for him to control, manage, and sell the property. This defendant denies, claiming plaintiff took such action of his own accord, without suggestion and for the reason, as stated by plaintiff, that he was going away, and desired defendant to have full control of the matter. They agree that defendant was to secure and assume a new mortgage, pay off the old, manage and negotiate a sale of the property as soon as possible. It appears undisputed that he did borrow $3,500 from a man named Brabb, secured by a new mortgage given by him on the property, and with the money thus obtained he paid off the old mortgage.

Plaintiff went away to Georgia, leaving the matter in defendant’s hands. Defendant collected the rent from October 1, 1907, to July, 1910,. amounting to $1,599.50, when the property passed out of his hands by reason of the equity of redemption having expired on foreclosure of the Brabb mortgage, which he had given and on which he had defaulted, having paid no interest nor principal on said mortgage, nor taxes on the property. On December 10, 1909, he paid plaintiff $50, and later, under pressure of plaintiff’s attorney, paid $350 more. According to his own statement of accounts, he expended in repairs on the property, for water tax, and general maintenance an amount which, deducting 2 per cent, for negotiating the mortgage loan of $3,500 and 5 per cent, for collecting rent, left in his hands $537.87, which he testifies he did not apply in payment of interest on the mortgage or taxes nor pay over to plaintiff, because he was hard up, owing to some other matters, and could not raise it, and also because plaintiff had promised to raise money and pay off the mortgage defendant had given, but did not do so. After putting the property in defendant’s hands, in October, 1907, plaintiff was absent in Georgia until 1909. He corresponded with defendant, but could obtain no remittances nor a satisfactory account of the condition of the business, and in August, 1909, on returning to Detroit, and after interviewing defendant, he consulted Mr. Codd, an attorney, and later put the matter in his hands, because, as plaintiff testified, he could get no money and no satisfaction out of defendant. As the result of advice given by Mr. Codd, plaintiff, while in Detroit in August, 1909, obtained a written statement from defendant acknowledging that the deed of October 8, 1907, from John W. Case to himself was not an absolute conveyance, but in the nature of a mortgage to secure an indebtedness of $3,500, and that he was obligated to reconvey the title upon payment of said indebtedness on or before October 8, 1910, and to account for all rents and profits from said property between October 8, 1907, and October 8, 1910. Plaintiff also obtained from defendant at about the same time a statement showing a balance due from defendant on August 25th of $182.46. In this were credited items of interest and taxes amounting to over $500 which defendant in fact never paid. After plaintiff returned to Georgia, in the latter part of 1909, Attorney Codd, in his behalf, had numerous interviews with defendant, urging him to adjust the matter and pay up what was owing, at one time bringingsuit against defendant in justice’s court, which resulted in a payment of $200. Two payments were thus collected from defendant, the one $200 and a later one of $150.

On April 20, 1909, Brabb filed a bill to foreclose the mortgage for $3,500 given to him by defendant on the property. This foreclosure was first learned of by Attorney Codd in the latter part of January, 1910. Plaintiff testified that he learned of it in October, 1909, from some one sending him a clipping of the legal notice, which he mailed to Codd. The sale took place in January, 1910, after which there remained yet six months in which to redeem. Codd had numerous interviews with defendant after this time, which finally resulted in the following letter, written after the equity of redemption had expired:

“Detroit, Michigan,
“ July 25, 1910.
“George P. Codd, Esq.,
“Detroit, Michigan.
“Dear Sir:
“ In reference to any proceedings against me in behalf of your client, Mr. George F. Case, I beg to assure you that I shall be in a position, on the 15th day of August, 1910, to meet any and all obligations to Mr. Case, and recognizing the loss of his property through my actions, I agree that, if you and Mr. Case will postpone any action regarding same, I will pay Mr. Case for his equity in the property the sum of #3,000 in cash, on said day, together with such amounts as may be due to him from moneys which I have collected from said property during the time the same was in my hands. In making this statement I will give complete vouchers for all expenditures, and a statement of all receipts, and I am only to be credited with such amounts as have been paid out; in other words, the amount of taxes, insurance and interest which I have heretofore credited myself with are not to be allowed, and these amounts are to be paid to Mr. Case, in addition to the #3,-000. In other words, the actual balance of receipts and expenditures, as shown by vouchers to be furnished by me, is to be struck and accounted for to Mr. Case.
“ F. T. Ranney.”

Defendant never paid the $3,000 or any part of it, as he had agreed to do by the terms of said paper. He testified that it was signed under duress, as the result of threats to commence suit by capias and pressure brought to bear in various ways by the attorney. This Codd denies. The claim of duress, at most, would be a question of fact for the jury.

The various questions raised under the numerous assignments of error are concentrated in the briefs of counsel to the following contentions on behalf of defendant:

“ (1) If any obligations exist on the part of defendant, they are not to plaintiff, but to his son John W. Case, the owner of the property and who conveyed the same to defendant.
“ (2) That the capias should have been quashed in this case, not having been legally issued under section 9996, Comp. Laws 1897, because it conclusively appears defendant was not acting in the capacity of an attorney, but merely as a real estate agent and dealer, conducting his office and advertising himself as such only.
“(3) Because the deed from John W. Case to defendant was only a mortgage for $3,500, which said John VV. was under obligations to pay, and neither he, nor plaintiff, nor any one else for him, ever paid or tendered that amount on or before October 8,1910, or at any other time, in default of which defendant was under no obligations, by reason of his writing of August, 1909, or otherwise, to advance the money and redeem said property from the foreclosure sale under the Brabb mortgage, or to reconvey said property, or to account for results therefrom.
“ (4) Because there was a variance between the allegations in the affidavits for the writ of capias and the evidence introduced at the trial.”

While plaintiff testified that the property was his, he also testified that he had it conveyed direct from the former owner to his son for “past favors that he had extended to me;” that his son took and cared for it and collected rents until he left Detroit, when he turned it back to plaintiff to collect rents and sell it if possible. Plaintiff never held title to the property. It was conveyed to his son by his direction for a valuable consideration from the son to him, he having but partly paid for it, there being a mortgage of $3,500 yet against it which plaintiff is not shown to have legally assumed, or paid; neither did he ever assume or agree to pay the second mortgage given by defendant, to secure payment of which defendant held from John W. Case, the owner of the fee, a deed conceded to be in its nature a mortgage. The evidence fails to show that plaintiff was ever indebted to defendant.

“ At law, to constitute a mortgage, the grantor himself, and not a third person, must be entitled to the benefit of a defeasance.” 2 Devlin on Real Estate ( 2d Ed.), § 1101.

In Heaton v. Gaines, 198 Ill. 479 (64 N. E. 1081), it is said:

“ In order to establish the fact that a deed absolute upon its face is a mortgage, it must appear that a debt existed due from the person, claimed to be mortgagor, to the person, claimed to be mortgagee. ‘ It is an essential element of a mortgage that some obligation should exist to be secured.’ * * * The evidence in the present case does not show, that there was any indebtedness existing from Heaton to appellee, which it was the intention of the parties to secure by the deed of December 21, 1883.”

In the case at bar, while it is claimed in a general way that plaintiff had some equitable interest or ownership in this land, he testifies positively that he had it deeded to his son for a valid consideration. When the son, on leaving Detroit, turned the yet mortgaged property over to him to collect the rents and sell, if possible, together with a deed of the same, leaving the name of the grantee blank, plaintiff avoided taking any tangible title to himself or assuming any indebtedness in that connection, so fixing the title as to be himself immune, and the indebtedness a matter of record between his son and defendant. We do not think he has shown any equitable interest in the land entitling him to redeem, or which can be recognized in a court of law as a basis to recover damages for a lost equity of redemption. As a general proposition, the equity of redemption appertains to and goes with the title to the real estate, and is in law the property of the owner of the fee. It is an interest in land, and as such cannot be orally conveyed to another. It being conceded the deed to defendant was a mortgage, the title in fee was in John W. Case, the plaintiff’s son, and defendant’s acknowledgment of the same contained a stipulation to “reconvey” upon the payment of the indebtedness of $3,500, which defendant never assumed, on or before October 8, 1910.

The letter of defendant to Attorney Codd of July 25, 1910, recognizing the loss of the equity of redemption through defendant’s delinquencies and promising to pay a stated sum for such loss, is not sued upon, and could not be made a ground of recovery in this action, sounding in tort and begun by capias. An action to recover under that agreement must necessarily he ex contractu in assumpsit on waiver of the tort.

We think the question of whether or not defendant acted in whole or in part as an attorney in this matter is clearly an issue of fact, and the court was not in error in submitting it to the jury under proper instructions. Professional services in the legal profession are not limited to litigation. In the matter of giving advice, managing a business, devising plans to meet contingencies, effect results and make collections, the professional services of an attorney often combine with services which ordinarily are not classed as strictly professional, and yet the employment as an entirety and the services as a whole are to be recognized as professional. Whether in any case an attorney is professionally employed depends on the relations and mutual understanding of the parties, on what was said and done, and all the facts and circumstances of the particular undertaking. Defendant was a member of the bar, but testified that he was not employed by plaintiff as such, had never engaged in the practice of the profession, nor advertised himself as an attorney; that he was employed only as a real estate agent and dealer and exercised no professional calling. Plaintiff testified that he had known defendant for 15 years; that he went to consult him about this business as his attorney and as a man who would take care of the property; that he had consulted with him on legal matters before that time, always deemed him an attorney, and thought defendant had written plaintiff as such. In verification of the latter statement he produced a letter signed by defendant, with a heading describing him as “Attorney, General Dealer in Real Estate,” dated July 17,1908, relative to a judgment of plaintiff’s in a certain matter, inclosing an affidavit for plaintiff to sign and swear to, stating it was—

“ To be filed in your case requesting the Wayne circuit court of this State to substitute me as attorney of record, on account of the decease of Mr. Kudner, the original attorney of record.
“ It is essential that this be done before I can take any binding legal steps in the premises.
“ If I cannot effect a satisfactory settlement without further procedure in the courts then I shall cáuse to be filed a judgment creditor’s bill therein seeking the appointment of a receiver.”

As to the money actually collected by defendant and wrongfully devoted to his own use, the trial court instructed the jury as follows:

“ If you accept the defendant’s version of the transaction, it would still follow, under the conceded facts of the case, that the plaintiff is entitled to a verdict for the sum of $599 against the defendant; for, under the admitted account obtaining between the plaintiff and the defendant, there is a balance of at least $599 owing from the defendant to the plaintiff.”

We think that this statement, computing interest, is borne out by the record. The only suggestion to the contrary is the technical contention that the rent for which this money was collected was an interest in the real estate belonging to John W. Case, who held the legal title, and could not be orally assigned to plaintiff. This money collected by defendant was, when wrongfully converted, personal property, an ascertained and liquidated amount, confessedly collected for, claimed by, and then admitted to belong to plaintiff. Conceding that rents and profits are an interest in real estate before they are collected and converted into money, when collected the money is personal property, just as trees standing upon the land and a part of the realty become personal property when cut and severed from it.

In Spalding v. Archibald, 52 Mich. 365 (17 N. W. 940, 50 Am. Rep. 253), it was said of an oral contract for the sale of standing timber “as fast as the trees were severed from the realty by the cutting, the contract of sale attached to them as chattels, and the parties cutting were entitled to remove them as their own.” Plaintiff’s testimony that the possession, control, and right to rents and profits of this land was given back to him by his son is undisputed. Defendant dealt in relation to this property only with plaintiff. He collected the rent for him, accounted to him, and paid what he did pay to him. When sued by plaintiff in justice’s court for part of it, he made no defense, and ultimately paid the judgment. He repeatedly by word and deed admitted plaintiff’s ownership, and never questioned it until he raises it now in this suit as a technical defense to escape the payment of money collected by him and fraudulently misappropriated. The-equitable doctrine of estoppel can be legally and most appropriately applied under the facts relating to that branch of the case.

Should plaintiff elect to remit the judgment down to $599, with legal interest from the time it was rendered, the same will stand affirmed; otherwise the judgment must be reversed and a new trial granted. Appellant will recover costs in this court in either event.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Moore, J.

text:
    SCHROEDER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Railroads—Fright—Damages.
    As an element of damages for carrying a female passenger upwards of a mile past her destination and compelling her to re- ' turn along the tracks in the rain and darkness, fright is a proper subject of compensation in an action against the carrier.

      2. Same — Pleading—Damages—Special Averments — Declaration.
    Allegations in the declaration as to plaintiff’s fright, humiliation, accompanied by averment that she became wet, chilled, exhausted, humiliated on account of the wrong of defendant, and suffered physical and mental pain, and great mental anguish and humiliation, justified the admission of evidence that she suffered physical discomfort and took cold.
    8. Same — Damages—Verdict.
    Under the circumstances disclosed by the testimony, plaintiff’s judgment of §435 was not excessive.
    Error to Shiawassee; Miner, J.
    Submitted January 10, 1913.
    (Docket No. 51.)
    Decided April 8, 1913.
    Case by Etta Schroeder against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      A. L. Chandler and George Pardee, for appellee.

       The authorities on the measure of damages for carrying a passenger beyond destination are collated in notes in 17 L. R. A. (N. S.) 1336 and 41 L. R. A. (N. &.) 745.
      As to what injuries may be deemed the proximate result of discharging passengers at improper place or one not his destination, see note in 7 L. R. A. (N. S.) 1177.

   Moore, J.

Miss Etta Schroeder brings this action to recover damages for being carried beyond Burton station on the evening of October 26, 1911. Plaintiff was 29 years of age, a domestic servant living in the city of Detroit. Her nephew, Jonah Cook, telephoned her from Burton on the day in question that a brother of hers was at the point of death. Arriving at defendant’s Milwaukee Junction station, she inquired of the ticket agent as to whether it would be possible for her to reach Burton that evening, and was informed that the local train had gone, but that she could take the fast train and change to the local at Durand. She purchased her ticket for Burton and boarded the fast train, and when they reached Du-rand got off and boarded the local train for Burton. The conductor of the local train took up her ticket and put a slip with a capital B thereon in the window of the seat where plaintiff was sitting. Burton was not a regular stop for the local train, but it did stop upon flag to discharge and receive passengers. The train, through a mistake of the conductor, did not stop at the station, but ran something over a mile west thereof, where it stopped, and the plaintiff alighted.

Her version of what occurred is as follows:

“ I did not see him, the conductor, again until the train stopped. It was my understanding that we had then arrived at the station.
C‘Q. What did he say to you or do when you saw him next ?
“A. He opened the door, and I supposed I was at the station, and he got down to help me down. At Burton.
,('Q. You say he opened the door. What did he do, if anything, then towards motioning or beckoning you to get off ?
“A. Well, he opened the door and looked in, and I went to the door; he beckoned to me to come, and I supposed I was at Burton. The conductor helped me off, and after doing so said, ‘ I am sorry, madam, but I have taken you past your station.’ I asked him how far, and he replied, ‘ Oh, two or three rods.’ The train stopped there just an instant. Then the conductor and brakeman got back on the train, and it went on. It was a cold, wet night, and had been snowing. I had a suit case and a parcel with me. The conductor helped me off with my package. I should think the suit case should weigh probably 35 pounds. It was a load to carry.
Q. When he put you off there, or assisted you to get off there, you say it was cold and sleety. What was it as to being light or dark there at that place ?
“A. It was very dark.
“Q. Explain to the jury how it was as to your seeing the fences or the track.
“A. I could not seethe fences.
“Q. When he put you off there, and the train had gone so you could realize where you were, how did you feel then? Just describe to the jury your feelings.
“A. I started to walk up the track, carrying my grip and parcel. I looked in different directions to see whether there were any lights. I could see none. 1 could not tell the exact distance I walked before I saw a light or met any one. I think it was fully five minutes before I saw a light. I walked about as fast as I could go. I saw a light up the track in the direction I was going. It seemed to be far away. I kept on going, hurrying as fast as I could. I walked until I was almost opposite the light. I then began to call out as loud as I could. I called five or six times. I was then answered. Some one opened the door of the building, which I afterwards learned was a celery house, located one mile west of Burton. I was carried on that train between a quarter and a half mile west of that celery house.
“Q. What is the character of the country there?
Mr. Williams: I object to it as incompetent and immaterial.
“Q. As to whether or not there are any houses around it.
“A. There is not. * * *
“Q. How is that country along immediately adjoining the railroad on either side where you were put off ? What kind of a country is it ?
“A. There is a swamp on either side, and there isn’t a road for half a mile from the track.
“Q. On either side of the railroad, what is there there ?
“A. There is a ditch on both sides. * * *
“Q. Did you state what the condition of the weather was?
“A. I think I did.
“Q. As to raining?
“A. Raining. My feet were soaking wet before I reached the celery house. I was cold, chilly, and my clothing was wet. I was cold, wet and damp when I arrived at Burton. I had no umbrella or anything to protect me against the storm. The conductor had a lantern, and could see how I was dressed.
“Q. At that time, while you were exposed to the storm and the cold that you spoke of, what other thing, if anything, added to your discomfort ?
“A. Well, I was anxious about my brother.
“Mr. Williams: I object to that as fully incompetent and immaterial.
“Q. I am not asking about that. Any other pain or suffering which you experienced during the time you were suffering from this cold and wet you were speaking of until you got back to Burton ?
“A. No; nothing more, I guess.
“Q. I will ask you whether or not you suffered any pain or suffering from your condition ?
"A. No; only just cold, chilled.
“Q. How did you feel, what were your feelings, as you were walking along there, cold and chilled, as you spoke of, there upon the railroad ?
“Mr. Williams: I object to that. I think your honor is, perhaps, correct. She can recover for the inconvenience ; that is the cold. Her feelings wouldn’t be a proper measure of damages. Any pain she suffered because of being cold would, perhaps, be a measure of damages, but her feelings when she was walking along would not be an element of damages. * * *
“Q. Witness, what were your feelings by the inconvenience which you were put to during the time which you were walking from the place there in the dark until you got to the depot ?
“ Mr. Williams: I object to that as not proper element of damages in this case.
The Court: She may answer that.
“A. Why, I was frightened.
Mr. Williams: I object to that, and move to have the answer stricken out.
Mr. Chandler: I object to that.
The Court: I will leave that at the present time and think about it.
“ Mr. Williams: We may have an exception ?
“ The Court: Yes; you may have an exception. That rule gives you an exception to all of this, Mr. Williams.
“Q. Witness, what else, what other inconvenience or feeling, did you suffer ?
“A. I was exhausted.
“Mr. Williams: I object to that for the same reason, not a proper element of damage.
“ The Court: You may answer. (Exception for defendant. )
“A. Why, I was exhausted, tired, humiliated.
“Mr. Williams: I move to have the answer stricken out as not a proper element of damages.
“Mr. Chandler: I object to it.
“The Court: It may stand. (Exception for defendant.)
“Q. Witness, when you arrived at this house or this place where you saw the light, did you see anybody there that you knew ?
“A. No, sir; I did not.
“Q. When the man came out there, whoever it was, how far did he come with his lantern before he came where you were ?
“A. Oh, possibly four rods. I didn’t meet any one I knew at the celery house. The man that assisted me had to come possibly about four rods. He was a stranger to me. I explained my situation to him. It was Mr. George DeWitt, as I learned afterward.
"Q. Witness, when you arrived there before you got to the place where the man was with the lantern, you may tell the jury whether or not you had to cross cattle guards.
“A. I did.
“Q. You may tell them whether or not you could see where you were walking or what you were doing ?
“A. I got on the cattle guard, and then I called to him, and he came with a lantern so I could see to get across. I could not tell where I was when I reached the cattle guard. I think the celery house was about four rods from the cattle guard. The men were on the inside of the building. Mr. De Witt offered to take me to Burton.
“Q. At the time you were at the cattle guard and Mr. De Witt came there and spoke to you, after you informed him your situation and condition there, will you tell what your physical condition and mental condition was at that time ?
“Mr. Williams: I object to anything about mental condition. The physical condition might be proper.
The Court: I think, Mr. Chandler, that is a little too broad. I think it should be on account of her being compelled to travel a distance in the dark, in the rain, and over the road she did.
“Q. I will add from the fact that you have been compelled to travel that distance in the dark and over the road in a storm, as you did.
“Mr. Williams: I object to that as not a proper element of damages.
“ The Court: She may answer that. (Exception for the defendant.)
“A. I was humiliated to think I had to call on strangers to help me out of the plight I was in.
“Mr. Williams: I move to strike that answer out.
“The Court: Wait until she gets the answer finished.
“Q. Go on and tell your condition.
“A. I was glad of assistance to—
“Q. No; tell your own condition.
“The Court: You may answer that. (Exception for defendant.)
“A. Well, I was wet, muddy, cold, and tired.
“Q. How were you as to being nervous. (Same objection.)
“The Court: Objection overruled. (Exceptionfor defendant.)
“A. Yes; I was very nervous.
“Q. How were you as to being exhausted or not ?
“Mr. Williams: These certainly are leading. We may have an objection and exception to all this class of testimony without taking it.
“ The Court: Objection overruled.
“Mr. Williams: I say we may have an objection to all of it ?
The Court: Yes. (Exception for defendant.)
“Q. Lady, won’t you tell? (Question read.)
“A. I was; I was very tired. I could hardly go any farther.
“Q. But your feelings; how did you feel ?
“A. I was humiliated.
“ The Court: Mr. Chandler, you must connect that, as I have stated, or I shall sustain the objection.
“Q. Witness, do you understand that we are asking now what was your condition in your mind and feelings, physical condition, coming or arising from the tramp there in the dark and in the storm and under the conditions that you were in there? If you can tell, tell it; if you can’t, let’s get along.
“A. I was frightened, scared; I didn’t know what I was going to step into any moment; I couldn’t see.
“ Mr. Williams: This is all subject to my objection.
“ The Court: It may be. (Exception for defendant.)
Mr. De Witt had a top buggy.
“Q. What conveniences or protection did you have against the elements ?
“A. A wet blanket.
“Q. Ahorse blanket?
“A '. Yes, sir. The roads were in fairly good condition; it hadn’t rained very long. The storm continued, but it wasn’t raining as hard.
“Q. After you had been walking this distance and carrying your grips, getting into the buggy in the condilion that you have described, how did you feel then ? (Same objection. Objection overruled. Exception for defendant.)
“A. Wet, cold, and chilled, nervous.
“Q. On your trip from the time you got in the buggy until you arrived at Burton, you may state whether or not you suffered any excitement or mental anguish from the position which you were in. .
“Mr. Williams: I object to this as not a proper element of damages in this case for the reasons heretofore given.
“The Court: Objection overruled. (Exception for defendant.)
“A. I was nervous; I was anxious to get to my destination.
“Q. How were you as to being excited or otherwise ?
“A. I was very excited.
“Mr. Williams: I move to strike that out, if your honor please, the fact she was anxious to get to her destination.
“Mr. Chandler: I consent; she was anxious to get to her destination be stricken out.
“The Court: That may be stricken out.
“Mr. Williams: I move the rest of the answer be stricken out.
“The Court: That may stand; that is, if it was the result of this. (Exception for defendant.)
UQ. Witness, you may state whether or not you suffered any mental anguish from your situation.
“A. I did.
“Mr. Williams : I move to have the answer stricken out; the same objection which I have made.
“The Court: It may stand. (Exception for defendant.)
“The celery house was a mile from Burton, and is located on the north side of the railroad. It is east of the swamp or low land. I did not meet my relative at Burton, but did meet him about one mile and a half north of there. Mr. DeWitt took me that far.
“Q. Well, as to whether or not the effects of your feelings, cold, chilled, and wet, and so on, continued with you up until the time you met your nephew ?
“A. It did.
“Mr. Williams: Same objection, and move to have the answer stricken out.
The Court: It may stand. (Exception for defendant.)
“Q. How were you at that time as to feeling better or worse from your cold and wet which you received ?
“A. I didn’t feel any better.
Q. What was your condition at that time as to being exhausted or not ?
“A. I was about all in.
“Q. When you arrived — whereabouts was it — did you finally get where your brother was ?
“A. I did.
Mr. Williams: I object to it as incompetent and immaterial.
The Court: Objection overruled. (Exception for defendant. )
“Q. What was your condition when you arrived at that place, with reference to the way you had been all along your route ?
“A. Well, I was in the same condition.
“Mr. Williams: Same objection.
“The Court: It may stand. (Court reads from the case of Chamberlain v. Railway, 122 Mich. 477 [81 N. W. 339]).
“Mr. Chandler: It seems as though, in a case of this kind, we would have a right to the same kind of damages that we would if a person spit in another person’s face.
“The Court: You have; you have exactly; but if a person didn’t spit in his face, but threatened to — he didn’t spit in his face, but he thought he was going to — he couldn’t recover any damages. That would be mental suffering, and he couldn’t recover damages; but if he did spit in the face there would be mental damages, accompanied by physical damages as a result of the physical damages. That is what I am permitting you to recover in this case.
“Mr. Chandler: The difference is we claim when they allowed this lady or invited her off into this position it is the same as assault and battery.
“The Court: Judge Grant seems to hold against you. That is the only trouble that I can find. You may proceed. (Question read. Exception for defendant.)
“The Court: You say all along the road. What do you mean, Detroit ?
“Q. I mean from where you alighted from the train after you got wet and chilled. Had you got dry ?
"A. No.
“Q. Or relieved from your distress in any way at that time?
“A. No, sir.
“Q. How did you feel at the time you were there? You may tell the jury whether or not you had any suffering from your wet and inconvenience.
“A. My feet were wet and cold.
“Q. Had you changed your shoes yet, clothing ?
“A. No; I had not.
“Q. When you arrived at that place, did you stay overnight ?
“A. I did.
“Q. From that exposure, wet clothes, you may state whether or not you suffered in your health.
“A. I got a terrible cold.
“Mr. Williams: I move to have the answer stricken out. I don’t think it is covered by the pleadings.
“The Court: Anything in the pleadings to cover that ?
“Mr. Chandler: I didn’t draw them; it is Mr. Chapman’s case.
“Mr. Williams: This amended declaration is yours, isn’t it ?
“Mr. Chandler: I don’t know whether you call it mine or not. It is Mr. Chapman’s, with some additions to it.
“Mr. Williams: I see nothing about having taken any cold. I move to have the answer stricken out.
“Mr. Chandler: It says she was chilled.
The Court: The answer may stand. It says ‘being compelled to walk, became wet, chilled, and exhausted.’ I think that taking cold would be a question for the jury, whether that is the natural result or not. (Exception for defendant.)
“Q. Witness, what was your condition that night ?
“A. I was nervous; I didn’t sleep all night.
“Mr. Williams: Same objection. I move to have the answer stricken out as not a proper element of damages.
The Court: It may stand.
“Mr. Williams: I think it is improper, as not a proper element of damages, and there is nothing to show the reason she didn’t sleep. It is not competent. She might have been sitting up with her brother; she might have been nervous over her brother. I think it is improper anyway, but I offer that as another reason why it might be improper.
11 The Court: It may stand for the present. (Exception for defendant.)
“Q. What was your condition at that time as to being excited and exhausted or otherwise ?
“Mr. Williams: It is leading; I object to it for the reason it is leading, and also for the reason I have given as to the other question.
The Court: She may answer. (Question read. Exception for defendant.)
“A. I was very excited when I reached my destination.
“Q. What was the difficulty; why was it you couldn’t sleep, if there' was any ?
“A. Well, I was nervous; I would try to go to sleep, and I couldn’t.
“Q. How is it at the present time? You may state whether or not you have recovered from it yet.
“A. No; I have not.
“Mr. Williams: Same objection. They do not allege in the declaration she sustained any physical injury.
“Mr. Chandler: Suffered physical and mental pain, great mental anxiety; that she became chilled, wet, and exhausted. That would be something in the line of physical injury.
“Mr. Micks: There is no injury to her health alleged in the declaration.
“The Court: The allegation of damages says: ‘That she then and there became wet, chilled, exhausted, humiliated ; on account thereof she has suffered physical and mental pain.’ (Question read:) ‘ Witness, how long did the effects of the injury you sustained from this cold and trip that evening after you left the train, how long <|id those effects last ? (Answer read.)
“The Court: I think that answer may stand. (Last answer and question read.)
“The Court: The answer may stand upon this theory: A cold would be the natural result of being wet, chilled, and exhausted. I think they have a right to show how long. That may stand. Anything said as to her cold, the results of that, I think may be stricken out.
“Mr. Williams: What do you strike out ?
“The Court: Just what I stated. Proceed.”

A lengthy cross-examination followed, which did not materially change the testimony of plaintiff.

As has already appeared, counsel for defendant admits there is a liability on the part of defendant. From a judgment in favor of plaintiff for the case is brought here by writ of error.

We quote from the brief:

“We rely in this brief:
“ (1) Upon error upon the part of the trial judge in admitting testimony as an element of damages of fright, humiliation, nervousness, and mental anguish and in refusing to give our requests to charge covering these matters.
‘ * (2) In permitting plaintiff to testify that she contracted a severe cold; that she was nervous after her experience, and has not recovered from that yet.
“ (3) In overruling our motion for a new trial, for the reason that the verdict rendered by said jury was excessive in amount.”

Each of these groupings is discussed at length.

1. Upon this subject the trial court charged the jury, among other things, as follows:

“ Fright, unaccompanied by physical injury, cannot be madé the basis of recovery for damages.”

Again:

“ Or, in other words, if you find that she has not suffered any physical injury in this matter, then she could recover only nominal damages, which would be six cents.”

Again:

“ Gentlemen, as I said to you in the first place, fear, unaccompanied by physical suffering, is not a subject for damages. So in this case if you should find that she did not suffer any physical injury, then she could recover only nominal damages.”

Again the court charged:

“ I charge you that fright must be accompanied by some actual injury caused thereby and traceable directly thereto to be a subject of damages. Mere fear, unaccompanied by injury, not accompanied by injury therefrom, cannot be made a subject for recovery of damages. So the question is: What did she suffer from any injury she may have received ? When you determine that, that should be your verdict.”

Counsel cite in support of their position a number of cases, and among them is the case of Nelson v. Crawford,, 122 Mich. 466 (81 N. W. 835, 80 Am. St. Rep. 577). We have examined these cases, and do not find any of them controlling, though there is a clear intimation in them that if the fright is accompanied by physical injury it is an element of damage.

In volume 3, Sutherland on Damages (3d Ed.), at page 2774, appears the following:

“Damages for Physical and Mental Suffering. — The carrier must make compensation according to the nature of the injury, when the proper action is brought; such injury may consist of personal inconvenience, sickness, loss of time, bodily and mental suffering, loss of capacity to earn money from personal injury, pecuniary expenses, disfigurement or permanent physical or mental impairment. There is no precise rule by which the extent of recovery for pain and suffering can be measured; but it is well established they are to be compensated when they result from injuries received by the party suing from the wrongful acts or culpable negligence of the defendant. The determination of the amount is committed to the judgment and good sense of jurors, subject to practical revision by the court to correct and relieve from manifest excess; and it is now established that not only bodily pain, but, connected with it, mental suffering — anxiety, suspense, fright, sense of wrong from insult or indignity,— may be treated, when the facts will justify it, as an element of the injury for which compensation should be allowed ” — citing a large number of cases.

See, also, volume 3, Thompson on Negligence (2d Ed.), § 2782; Pennsylvania Co. v. Hoagland, 78 Ind. 203; Louisville, etc., R. Co. v. Quick, 125 Ala. 553 (28 South. 14).

2. Counsel say:

“ The trial judge erred in permitting plaintiff to testify to physical injury; the same not having been alleged in the declaration.”

The declaration is not a model one, but it contains, among other statements, the following:

“But notwithstanding the duty aforesaid, said defendant wholly disregarded this duty and carelessly and negligently carried said plaintiff beyond said station of Burton about one mile and a half into a swamp, where the conductor of said train stopped said train, and in the presence of other passengers, who were on the same car with plaintiff, directed and compelled her to leave said train and go forth in the night-time, and while it was raining and otherwise a cold, disagreeable night, * * * and on account of the actions and doings of the defendant and violation of the duty aforesaid, said plaintiff was compelled to walk back towards said station of Burton through said swamp in the storm and darkness along the line of the railway track of said defendant, and said plaintiff was in great fear lest in the darkness of the night she might step off from the embankment of said railway and fall into said swamp where it is filled with mud, muck, and water, and also said plaintiff was placed in great fear and suffered great terror lest she might be overtaken by men and meet tramps and hoboes who frequent defendant’s railway track in their travels through the country; that said plaintiff walked back eastward toward said station about one half mile, where she then saw a light some distance from the track, and called for help; that assistance was brought her by parties who were at work near said light, and who provided her with a rig and drove her the balance of the way to Burton, and plaintiff says she was greatly humiliated and chagrined at being compelled to cry out for assistance, and to be found in such a plight by those rendering her such assistance, and being compelled to call upon people for help and to accept the same; that she then and there became wet, chilled, exhausted, humiliated, and on account thereof has suffered physical and mental pain and great mental anguish and humiliation.”

We think these statements are sufficient to permit testimony of the physical discomfort suffered by the plaintiff and that she took cold, as we may take notice of the fact that colds frequently follow exposures of the character stated here. See Baldwin on Personal Injuries (2d Ed.), § 612; Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Snyder v. City of Albion, 113 Mich. 275 (71 N. W. 475); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).

3. Counsel say:

“ The trial judge should have granted our motion for a new trial, for the reason that the verdict of the jury was excessive in amount.”

Under this head a number of cases are cited by counsel. We have examined them, and none of them is controlling. The case of Humphrey v. Railways Co., 166 Mich. 645 (132 N. W. 447), where a verdict of $500 was reduced to $100, is mentioned. A reference to the case will show it to be very different from the instant case. In Light v. Railway Co., 165 Mich. 433 (130 N. W. 1124, 34 L. R. A. [N. S.] 282), where a young man was evicted from a train at about 6 o’clock in a July evening, this court reduced the verdict from $500 to $250. If that amount was permitted to be recovered under the facts disclosed by that record, we do not think the verdict in the instant case should be set aside because it was excessive.

The judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Brooke, J.

text:
    SWANTEK v. JARMOZSKI.
    Certiorari — Costs—Reversal—Recovery of Costs Paid.
    While plaintiff in certiorari is entitled to recover back costs paid by him on a judgment in the circuit court that was declared void and reversed on error, his remedy is by a new action; the circuit court has no jurisdiction, on motion to dismiss the proceedings in certiorari, to enter an order requiring the repayment to plaintiff of costs which he was compelled to pay to avoid a levy.

      Error to Kent; Brown, J.
    Submitted January 10, 1918.
    (Docket No. 58.)
    Decided April 8, 1913.
    Assumpsit in justice’s court by Peter Swantek against Stephan Jarmozski for services rendered. Defendant appealed to the circuit court and later took out a writ of certiorari. The Supreme Court having held the writ of certiorari void, plaintiff moved in the lower court to dismiss and demand a judgment for costs previously paid by him to defendant to avoid execution levy. An order denying such relief is reviewed by plaintiff on writ of error.
    Affirmed.

      Carroll, Kirwin & Hollway, for appellant.

      Hatch, McAllister & Raymond, for appellee.
   Brooke, J.

This case has been before this court upon two former occasions (159 Mich. 99 [123 N. W. 573]; 162 Mich. 617 [127 N. W. 800]). A perusal of those opinions will advise the reader of the facts necessary to a full understanding of the question now raised. It appears that, after the decision of this court (162 Mich. 617 [127 N. W. 800]), the parties went to trial upon the merits, with the result that a verdict of no cause of action was rendered. It further appears that the circuit court had, prior to the decision (162 Mich. 617 [127 N. W. 800]), entered judgment for costs against this plaintiff (in the certiorari proceeding) amounting to $38.95; that execution was issued upon said judgment; and that plaintiff was forced to and did pay said sum in order to avoid a levy. This court held, in reviewing the judgment rendered in the case upon appeal, that the judgment rendered in the certiorari case was void for the reasons set out in the opinion (162 Mich. 617 [127 N. W. 800]).

It is therefore clearly apparent that plaintiff was compelled to pay the sum of $38.95 by means of a process of court issued upon a void judgment. It is equally clear that he is entitled to recover this sum from the defendant.

After the last decision of this court, and on April 27, 1911, the circuit court vacated the judgment theretofore rendered against plaintiff in the certiorari case. This action was taken upon motion of the plaintiff and left the certiorari proceeding pending exactly as if no judgment ever had been entered therein. On March 27, 1912, plaintiff (defendant in the certiorari case) brought the case on for hearing and moved for judgment dismissing the writ, with costs, and for the restitution of the sum of $38.95, paid by him to defendant under the void judgment. This the court declined to do, saying:

“I think it is within my right and authority to take notice of the fact that the proceedings are entirely null and void, and to enter an order dismissing the proceedings, and in that dismissal I will authorize the defendant, who is the plaintiff in the original suit, to tax a motion fee of $10; and, in order to get the matter on the record, I will make such a disposition of the case and enter an order dismissing the case and requiring the plaintiff in this certiorari to pay the defendant a motion fee of $10.”

An order was thereupon entered as follows:

“ In this cause the order of the court is that these proceedings be dismissed with an attorney fee of $10 to the defendant in certiorari, Peter Swantek, and against the plaintiff in certiorari, Stephan JarmozsM.”

The plaintiff reviews this judgment by writ of error, contending that he should have been given judgment for restitution of the $38.95, costs which he had already paid under the void judgment.

While this disposition of the matter would have been entirely equitable, we are unable to discover any legal warrant for making it. The statute (1 Comp. Laws, § 951, 5 How. Stat. [2d Ed.] § 12397), provides just the remedy the plaintiff seeks in cases where a justice’s court judgment has been paid and is afterwards reversed in the circuit court. The legislature, however, has not seen fit to extend the operation of this statute to void judgments pronounced by circuit judges, which after payment are reversed. We are of opinion that plaintiff’s only remedy is to bring an independent action for the money which he was required to pay under the void judgment.

The judgment herein is affirmed.

Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    STOLL v. LAUBENGAYER.
    Negligence — Proximate Cause — Streets.
    Defendant left his team standing at the side of a city street, across a foot path used by pedestrians, without hitching the horses. Children were accustomed to use the street for coasting, and on this date the road was covered with snow and ice. No sidewalk had been constructed on the side of the highway in question. A child of five years of age started her sled at the top of the incline; it entered upon the path across which the team stood, and carried the child under defendant’s wagon, and against the heels of the horses which kicked her or started and caused a wheel to run over the infant, fatally injuring her. Held, that the act of defendant in leaving his team unguarded across the foot path was not the proximate cause of the injury.
    Error to Washtenaw; Kinne, J.
    Submitted October 15, 1912.
    (Docket No. 66.)
    Decided March 20, 1913.
    Rehearing denied November 3, 1913.
    Case by George A. Stoll, administrator of the estate of Stella Barbara Stoll, deceased, against Herman Laubengayer for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed. New trial denied.

      Arthur Brown and Otto Haáb (Fdson It. Sunder-land, of counsel), for appellant.

      Frank A. Stivers and Frank O. Cole, for appellee.
    In the city of Ann Arbor, Lincoln street runs east and west. At its westerly terminus it intersects with Main street. From Main street running easterly there is a considerable downward grade. The traveled portion of Lincoln street is slightly "crowned,” and no sidewalk has ever been built along the northerly side thereof. In the place where the sidewalk would be, if constructed, there runs a path for the use of foot passengers.
    Defendant’s mother, on January 24, 1911, occupied the dwelling at the northeast corner of Main and Lincoln streets. On that day defendant, who resides in the country, desiring to get some crocks from his mother, drove his team easterly along Lincoln towards the rear of his mother’s house. Here he turned off of the traveled portion of the highway toward the north and stopped his horses near a large tree standing upon the lot line. It is contended by the plaintiff that the wagon and horses were standing facing the northeast diagonally across the path in question. Defendant testified that his wagon and horses were altogether north of the lot line and upon his mother’s premises, and that he remained- beside them. On the day in question the ground was covered with snow and ice, and Lincoln street from Main street running east afforded the children of the vicinity an excellent opportunity for coasting or riding down hill on hand sleighs. Foot passengers desiring to go east on Lincoln street, if they came from the south on Main street, had beaten a path through the snow, across from the middle of Lincoln street to the path along the north side of Lincoln street. These two paths formed a juncture near the rear of Mrs. Laubengayer’s house, some 60 or 65 feet east of Main street, approximately at the point where defendant had stood his team.
    Plaintiff’s intestate, a little girl five years and four inonts of age, started from Main street to coast down the incline on Lincoln street. When part way down the incline, her sleigh struck and entered the diagonal path leading to the north side of Lincoln street. The sleigh carried her down this path, under defendant’s wagon, and against the heels of his horses. The horses kicked and sprang forward, but were stopped by the large tree in front of which they were standing. Plaintiff’s intestate was either kicked by one of the horses or run over by the wheel of the wagon. She suffered a fracture of the skull, from the effects of which she died a week later. Defendant’s negligence is predicated upon the alleged fact that he stood his team diagonally across the path, left it unguarded, and failed to give warning to plaintiff’s intestate of the danger of coasting down the path. Two eyewitnesses of the tragedy, who were sworn as witnesses for the plaintiff, testified that, when the sleigh in its downward course struck the diagonal path, the little girl lost control of it and was carried down the path and under the feet of the horses. The only other eyewitness (defendant’s mother) testified on behalf of defendant that the sleigh maintained its position in the center of the road until opposite the horses, when it suddenly turned to the north, running under the horses’ heels.
    At the close of the testimony, defendant moved for a directed verdict upon the following grounds:
    “(1) That there is no evidence in said cause showing the defendant to have been guilty of any negligence therein, and hence your verdict should be no cause of action.
    “ (2) That it fully appears, from the undisputed evidence in said cause, that the cause of the accident to plaintiff’s intestate was due to a cause other than the negligence of the defendant, and therefore your verdict should be for the defendant.
    “ (B) That the proximate cause of the injury to plaintiff’s intestate was the fact that she lost control of her sled or coaster and ran under the horses’ feet, and not to any negligence on the part of defendant, and therefore your verdict should be no cause of action.”
    This motion was denied, and the case was submitted to the jury to determine whether the defendant was guilty of negligence, and, if so, whether such negligence was the proximate cause of the injury to plaintiff’s intestate. A judgment was rendered in favor of plaintiff, which defendant reviews in this court by writ of error.
   Brooke, J.

(after stating the facts). The single meritorious question raised upon this record is whether, assuming defendant to have been negligent in standing his team over the path, as claimed by plaintiff, that act can be considered as the proximate cause of the injury suffered by plaintiff’s intestate. If it can be so considered, the jury by their verdict have determined the relation of tiie act to the injury against the contention of the defendant.

Much learning has been displayed in attempting to accurately define the words “proximate cause.” No general or authoritative definition has been evolved; the applicability of the accepted or announced definition in each case being determined by the peculiar facts or circumstances of the case. A collection of definitions, gathered from a great number of jurisdictions and a multitude of cases, will be found in 32 Cyc. p. 745. The definition favored by the compilers of 21 Am. & Eng. Enc. Law (2d Ed.), p. 485, is:

“A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred.”

The Supreme Court of the United States, in the case of Milwaukee, etc., R. Co. v. Kellogg, 94 U. S. 469, defines the term as follows:

“It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. * * * We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. ^ In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.”

While this court has never apparently attempted to accurately define the term “proximate cause,”it has in many cases applied the principle as enunciated in the authorities to the particular facts under consideration. An early case is Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790). Here the question is discussed at large, and numerous authorities cited and examined. See, also, Selleck v. Railway Co., 58 Mich. 195 (24 N. W. 774).

In Beall v. Athens Township, 81 Mich. 536 (45 N. W. 1014), it is said:

“An injury caused by negligence, and an accident not being prevented by negligence, are very distinct in operation and effect.”

In Borck v. Nut Works, 111 Mich. 129 (69 N. W. 254), it was announced that:

“ The damages to be recovered in an action must always be the natural and proximate consequences of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote.”

Again in Iamurrir. Gas Co., 148 Mich. 27 (111 N. W. 884), the court, speaking through Mr. Justice Mc-Alvay, said:

“ When a particular consequence results from a wrong, it may be said that the wrong is the proximate cause of that consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a cause. If such cause intervenes, it may be said that the wrong of the defendant is too remote to be made the basis of an action. It is in such case a condition and not a cause.”

See, also, Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479).

In our opinion it makes little difference to plaintiff which of the many definitions examined is selected. It is, we believe, obvious that the act of defendant in permitting his team to stand over the path in question (conceding such act to have been wrongful and negligent) was not, within the reasoning of our own decisions, the proximate cause of the injury to plaintiff’s intestate. The immediate cause is found in the act of the child herself, who voluntarily started her sleigh down the incline. But for this act of hers (subsequent to defendant’s alleged negligent act, and therefore proximate to the injury) no accident could have occurred. Whether she voluntarily followed the diagonal path, or her sleigh took that course against her will, is a matter of no consequence, though the testimony fairly leads to the conclusion that her course down the path was brought about against her will, “because she lost control.” Whether wilful or accidental, it was still proximate — the immediate efficient, direct cause preceding the injury.

' This unfortunate occurrence, with its fatal result, is to be deplored. As was said in Hargreaves v. Deacon, 25 Mich. 1;

“ There is some danger, in dealing with these questions, of confounding legal obligations with those sentiments which are independent of the law, and rest merely on grounds of feeling, or moral considerations.”

The judgment must be reversed, and there will be no new trial.

Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    KINSEY v. DICKINSON.
    1. Brokers — Contracts—Phrases—Net Rentals.
    Under terms of a broker’s contract to secure tenants for real property for $500 and 10 per cent, of the net rentals, the phrase “net rentals” included the entire sum received for rent of the property less expense of maintenance, plaintiffs conceding that taxes and insurance should be first deducted.
    2. Same.
    Defendant was not entitled to deduct the cost of certain partitions and improvements to the building and premises required to make the same fit for the purposes of the tenant, although such cost was added to the annual rent in sums sufficient to reimburse the landlord for the outlay.
    Error to superior court of Grand Rapids; McDonald, J., presiding.
    Submitted January 8, 1913.
    (Docket No. 21.)
    Decided April 8, 1913.
    Assumpsit by William H. Kinsey and another against Albert G. Dickinson for broker’s commissions. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Travis, Merrick & Warner, for appellant.

      Smedley, Linsey & Lillie (Sheridan F. Master, of counsel), for appellees.
   Ostrander, J.

Plaintiffs produced testimony tending to prove the facts now to be stated. As one of them testified, they are in the real estate business. They learned in the year 1906 that defendant was contemplating the purchase of land and the erection thereon of a building for his own business, to be occupied when his term in other premises, a period of three or four years, had expired. They learned also that temporarily, but for a probable period of three or more years, the Federal government desired to lease premises in Grand Rapids for a post office, for the holding of court, and for other purposes. They suggested to defendant that he buy real estate, erect his building, and lease the premises to the Federal authorities for the aforesaid purposes. They procured, with his approval, an option on suitable ground and were active in securing from the government a contract for a lease of a building to be erected thereon at an annual rental of $12,500, payable quarterly. For their services, if no lease was made, plaintiffs were to receive no pay, and defendant was to pay the necessary expenses of the effort. If the lease was secured, plain-, tiffs were to be paid $500 and 10 per cent, of the net annual rent as it was received from the government; defendant paying necessary expenses of securing the contract. Defendant paid the expenses, purchased the land and built the building, paid plaintiffs $500, and later $250. The building was occupied by the government, and, when this suit was begun, defendant had received upon his lease the sum of $34,375. Because he declined to make further payments, plaintiffs sued defendant, claiming there was due to them $3,206.89. A jury returned a verdict in their favor for $2,775, for which sum a judgment was entered,

The testimony offered by defendant tended to prove the facts already stated, except the fact of an existing agreement to pay plaintiffs a percentage of the net annual rental; his theory being that the sum of $500, which he paid to them, discharged all obligation on his part. It is a part of his contention, supported by his testimony, that it was understood, when negotiations were opened with the government, that he would be required to furnish heat, light, water, and janitor service for the building, and that, feeling unable to attend to such matters personally, it was contemplated that plaintiifs would attend to them, act as custodians of the building, supervise its construction, and receive for their services, including the securing of the option on the land, $500 and 10 per cent, of the net rent, but that it was learned later that such maintenance would not be, and it was not, required, and plaintiifs were not required to supervise construction. In consequence, plaintiifs had not earned, and were not entitled to receive, a percentage of the rents. Whether there was an existing agreement and the terms thereof were questions submitted to the jury after a trial, in the course of which various exceptions were taken by defendant, which will be later on referred to. Beyond this it is contended by defendant that, if an agreement to pay a percentage of the net rentals was established, the amount of the net rent received by defendant was a question of fact, and that the court erred in declining to submit that question to the jury.

Defendant moved for a new trial; one ground of the motion being that the court erred in not instructing the jury, as requested by defendant’s counsel, that, if they found for the plaintiffs, they were to determine the amount of net rentals within the meaning of the contract, and that, in arriving at the amount, it was within their province to deduct an item of $9,500 for the cost of certain partitions, wiring, etc. In denying the motion, the court said the refusal of such requested instruction was proper because—

“The cost of the partitions was no part of the maintenance, and, in determining the net rentals, there would be no more reason for deducting the cost of partitions than for deducting any other item for the cost of the construction of the building.”

The testimony disclosed the fact that, for the use of the Federal authorities, certain partitions were required and certain fixtures and wiring had to be provided, not useful to other tenants, and not of value to the building after the termination of the lease. It had been suggested by some one that the cost of these specially designed and constructed fixtures be added to the rent demanded. In the first propositions made by defendant, one for rental with maintenance and one for rental without maintenance, the sum of $9,500 was included in the first year’s rent. That is to say, in the proposition submitted January 23, 1907, for rental without maintenance, is the following:

“Including cost of necessary partitions specified, $19,000.00 (nineteen thousand dollars) for the first year; $9,500 (nine thousand five hundred dollars) for each year thereafter.”

Concerning this matter, one of the plaintiffs testified in part as follows:

“We made a difference of $9,500 per year in the first year on account of that item of partitions, etc. The same thing was true with reference to the second proposition. We made the same difference of $9,500 the first year for the same reason. * * *
“On the proposition for rental without maintenance, we had the same net figure (that is, $9,500 per year for rental proper) ; the additional amount of $9,500, which goes to make up the $19,000 of the first year, being to cover these items of partitions, wiring, etc. The contract, as finally made, was for $12,500 per year at a uniform rental; the government not to pay any more for the first year than they did for the second or third or any subsequent year. The cost of the items included in the $9,500 were scattered along through the three years, although that was not an arbitrary figure in making the price at $12,500 instead of getting $9,500 a year net rental after we got the $9,500 back the first year, according to our original proposition. We got $12,500 per year, but had to get back that $9,500 out of that. It was figured that way, although I don’t think it cost $9,500. That is the figure we used for that purpose. We figured a larger rental at one time before we went to Chicago for the first year than we did subsequent years, because we did not know but what possibly the government might only take it one year and did not want to throw away these partitions and things; I mean, we did not want to lose the cost of them. * * * I cannot say where the idea came from in the first place to include an allowance for those items in the first year’s payments. Possibly it came from the architect. We did not discuss in detail just what items should be deducted in figuring net rental; but the idea was to figure them on the amount which Mr. Dickinson might realize net as rental of the building. The only two items of detail that were spoken of being maintenance and interest, that should be taken as a charge against the proposition. The $9,500, which was to repay Mr. Dickinson for these partitions, etc., was not to come out. I did not discuss that matter with him, but there was no figuring produced where that was ever figured in that shape at all. On the contrary, it was just the opposite.”

Defendant testified that for certain reasons it was deemed best to distribute these items over a period of years, and that it was supposed that the lease would run for a longer period than three years. He further testified;

“As to Mr. Kinsey’s testimony that he thought there were some figures made at some time in which the 10 per cent, was figured on and included this sum of $9,500 which we were to get from the government for the partitions, etc., there were no figures whatever of that sort. It was never talked between us that I should pay him 10 per cent, on that amount. The 10 per cent, clause, if it took effect, was to be on the net rentals. * * * If this 10 per cent, clause applied, it was to be 10 per cent, on the net rentals after deducting items of necessary outlay, such as maintenance, taxes, insurance. Now it is true that the building was let without maintenance; but, before the government went in, we had to incur outlay of that precise nature. * * * I also had to pay Mr. Ward, who owned the property on the north, $200 for the privilege of a light-well during the time the government occupied my building. This $200 payment was for an agreement on the part of Mr. Ward not to construct anything on the space covered by it during the time that the government occupied my building. The privilege was discontinued when the government discontinued occupying the building.”

In substance, I have stated the foundation for the claim of defendant that it was error not to submit to the jury specifically the question of what was the amount of the net rental. Plaintiffs conceded that the gross sum received for rent should be diminished by the amount paid by defendant for taxes and for insurance, and computed the sum due to them accordingly.

It seems to me to be obvious that, in the original arrangement which the'parties made, the term “net rental” was used with reference to the gross rental, less the sum expended for maintenance, and that, when maintenance was eliminated, the word “net” was without significance. In this view, and I think decision of the question may be rested here, the court was not in error in refusing to charge as requested. Aside from this consideration, defendant demanded and received $12,500 yearly as rent for his premises, constructed as they were constructed. This was the net rental, unless otherwise agreed. There is no testimony tending to prove that it was otherwise agreed. I conclude that the court correctly instructed the jury.

It is a contention of defendant that the verdict which was returned cannot be justified by the testimony, and is apparently a compromise verdict, for which reason it should have been set aside. It appears that the jury was out one night and a part of two days, from which it may be inferred that an agreement was not reached without difficulty. It does not necessarily follow from these circumstances that the verdict was the result of a compromise. Attention has been called to the testimony of defendant to the effect that he paid $200 annually to the owner of adjoining premises to secure light for his building. The concession of plaintiffs, with respect to taxes and insurance, may have affected .the judgment of the jury with respect to this item. Whatever the item allowed by the jury may have been, it is in reduction of the plaintiffs’ demand, and it does not appear positively, or by necessary inference, that the result was not the deliberate conclusion of the jury, based upon testimony. Errors are assigned upon exceptions to rulings admitting testimony, to the arguments of counsel for plaintiffs to the jury, and to an alleged attempt to bring to the attention of the jury by interrogatories, not answered, the fact that defendant was entitled to receive from the government some rent in addition to that already paid. These have received attention, but, in my opinion, none of them are well assigned.

No reversible error appearing, the judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.