text:
    GORDON v. CONSTANTINE HYDRAULIC CO.
    1. Mortgages — Milling Plant —Lien for Water Power — Notice to Mortgagee.
    Where one about to loan money visited the property, a milling plant, upon which he was to be secured, and was told that the water power was supplied to the plant under an arrangement with a local company which controlled it, upon terms of payment of which he was partially informed, though he was not told that the agreement had been reduced to writing, he was put upon inquiry as to its terms, and was chargeable with notice that it embodied a provision giving it the effect of a mortgage upon the premises.
    2. Corporations — Compromise of Claim — Ratification.
    The board of directors of a corporation, which controlled a water power, provided by resolution that, unless a lessee of the power made satisfactory arrangements for the payment of rent in arrears, proceedings for collection should be instituted. Thereafter the president of the corporation gave to the lessee a receipt for six months’ rent at a specified rate, which recited that it was with the understanding that the accrued rent should be paid at the same rate. The board of directors, at a subsequent meeting, approved of the compromise whereby the president “receipted in full for six months’ rent,” but declared that the resolution adopted at the previous meeting should remain in force. Held, that there was no ratification of the president’s attempt to fix the basis of computation for the rent in arrears.
    3. Lease — Lien for Rent — Tender—Discharge. ,
    A lessor’s lien for rent, under a mortgage clause in the lease, is discharged by a tender of the full amount due.
    4. Priority of Liens — Equity—Set-off.
    Where a mortgagee of milling property files a foreclosure bill, joining as defendant, with the mill owners, the lessor of the water power, and the latter, upon a cross-bill, establishes his right, under a mortgage clause in the lease, to a prior lien for water rentals, and it appears that the property is insufficient to satisfy both liens, the mortgagee will be permitted to avail himself of the mortgagor’s right to a set-off against the lessor for damages arising from his shutting off the water during a controversy over the rent.-
    6. Damages — Flour Mills — Water Supply — Depreciation in Wheat.
    Damages for failure to supply water to a mill according to a contract may include loss from depreciation in wheat purchased for use in the. mill, during the time the water was withheld, where it could have been saved if the water had been turned on, and the wheat manufactured into flour.
    6. Recording Laws — Improper Record — Notioe.
    Under Comp. Laws 1871, § 4226 et seq., providing that deeds and mortgages offered for record should be entered and recorded, each in the appropriate book, and properly indexed, and declaring that every conveyance not so recorded should be void as against a subsequent good-faith purchaser, an instrument relied on as a mortgage, but recorded in a book containing miscellaneous records (for which no provision was made under suoh statute), and indexed as a deed, was not within the rule as to constructive notice.
    Appeal from St. Joseph; Yaple,'J.
    Submitted January 26, 1898.
    Decided July 18, 1898.
    Bill by Alexander Gordon against the Constantine Hydraulic Company, John W. Lamb, and others, to foreclose a mortgage. The defendant company filed an answer in the nature of a cross-bill, praying that a lease executed by it, held by defendant Lamb and others, be decreed to be a mortgage and a prior lien. From a decree granting the prayer of the cross-bill, complainant appeals.
    Modified and affirmed.

      Boudeman & Adams, for complainant.

      F. W. Knowlen ( W. G. Howard, of counsel), for defendant company.
   Moore, J.

A reference to the case of Lamb v. Constantine Hydraulic Co., 59 Mich. 597, will aid in an understanding of the questions involved in this case. Complainant h^s filed his bill to foreclose a mortgage upon the mill property mentioned in the case just referred to, and to have it declared a first lien upon said property. Defendant company has filed an answer to this bill in the nature of a cross-bill, in which it claims the lease referred to in that case is a mortgage, that there are several thousand dollars due upon it, and asking to have the amount due decreed to be a first lien. The circuit judge found a decree substantially as prayed in the cross-bill, from which decree complainant appeals.

That portion of the lease which it is claimed constitutes it a mortgage reads as follows:

“This indenture further witnesseth that the said Jonathan Lantz and Sarah S. Foreman hereby sell and convey to the said Constantine Hydraulic Company, and to their heirs and assigns, forever, the said lot as aforesaid, with the appurtenances; provided, that if the said Foreman and Lantz, their heirs, executors, administrators, or assigns, shall from time to time, and at all times, well and truly fulfill and keep the covenants and stipulations herein specified on their part to be fulfilled and kept, and shall pay the rents as aforesaid as they may become due, according to the terms and conditions of this agreement, then the grant and conveyance by them of the aforesaid lot of land and premises shall be void and of no effect; otherwise, in full force.”

On the back of the lease was the following indorsement:

“Lease oe Water Power.
“Constantine Hydraulic Company
“to
“Sarah S. Foreman and Jonathan Lantz.
“Register’s Office, ) St. Joseph Comity. ) s '
“Rec’d for record May 24, 1877, at 11 o’clock a. m., and recorded in volume 57 of Deeds, on pages 632, 633, 634, and 635.
“Thomas G. Greene, Register.”

This paper was left with the register of deeds for record, and was recorded in a book containing miscellaneous records. It was labeled on the back, “ Liber 57 of Deeds.” No other record of the paper was made.

Mr. Gordon testified that, prior to making the loan, he visited Constantine and the mill property, and saw from whence the water supply for the mill came, and was told by Mr. Lamb it was furnished by defendant company, and was told something of the terms of payment. He testifies he was not informed the lease was in"writing, and did not know its terms. He was told the money furnished by him would be used to take up another mortgage, and that his mortgage would be the only one. He did not cause any search of the records to be made.

The circuit judge found that, from what Mr. Gordon said and was told about the lease, he must be deemed to have had actual notice of it, and that, whether he had actual notice of its contents or not, he had sufficient notice of the existence of the lease so that it became- his duty to learn its purport and effect. On the other hand, it is said that, while Mr. Gordon might have known the mill owners were renting water from defendant company, he would certainly not infer from that fact that a lien had been put upon the property. In deciding the inference to be drawn, we must look at the situation of the parties. Here was a large flouring mill, the sole motive power of which was water furnished by defendant company. To make the property useful and valuable, the water supply, must be continuous, and not of a temporary character. Mr. Gordon must have known this. He was informed in a general way that there was an arrangement existing between the mill owners and the defendant company. This contract related to a matter that would affect the value of the property. The right to have a water supply to the mill was an appurtenance to the mill. If furnished upon reasonable terms, it would add value to the mill. If it could be cut off, it would greatly impair its value. It could not be said that the mill owners could have the right to water without incurring some obligations upon their part. He was told sufficient so he must have known contract relations existed between these parties which affected the value of the property. It was his duty, when he learned there was a contract of this nature, to learn its terms. He could not assume he was truthfully informed about it, or that it was a contract which would not affect him as a mortgagee, about to take a lien on the property. .“A notice of a lease is notice of all the covenants and provisions contained in it.” 1 Jones, Mortg. (5th Ed.) § 573; Taylor v. Stibbert, 2 Ves. Jr. 437; Doyle v. Teas, 4 Scam. 202; Babcock v. Lisk, 57 Ill. 327.

The decree rendered in the court below was:

“That there now remains due and unpaid upon said lease, to the said Constantine Hydraulic Company, for water rentals, including interest thereon, the sum of $7,393.75, the same being ascertained and computed by the court as follows: Rental from March 1, 1885, to March 1, 1886, on 50 horse power of water at $5 per horse, with interest at 6 per cent, upon semi-annual installments therefrom, respectively, July 1, 1885, and January 1, 1886; also rental for 50 horse power at $10 per horse per annum, from March 1, 1886, to July 1, 1897, payable semi-annually on July 1st and January 1st of each year respectively, together with 6 per cent, simple interest from the respective times for payment aforesaid of each of such installments:”

It is claimed on the part of the complainant that the mill owners should have been required to pay only upon the basis of $5 a horse power, and that successive tenders had been made.of those amounts, so as to discharge the' lien entirely. The record does disclose that tenders were from time to time made by the mill owners upon the basis of $5 a horse power, and those tenders were accompanied by a demand for a receipt in full. The defendant company offered to accept these payments, and give a receipt for the amount paid, to apply on the amount due, and claimed the amount should be fixed by computing the rate at $10 a horse power. It was its claim that it had contracts with Mr. Dodge and others, under which they rented power, and paid at the rate of $10. In Lamb v. Constantine Hydraulic Co., 59 Mich. 597, in construing this lease, it was held:

“The lessee, moreover, is in no wise responsible for the want of a definite rule to measure the rental on the first of March, 1884. That rule must, of necessity, have depended upon the acts of the company after the agreement was entered into; and I think the agreement must remain as it is until a rule shall be established by the rental, in good faith, to other parties, at terms different from that fixed in the lease for the first seven years. By the plain terms of the lease, the rental, .after March 1, 1884, is subject to be fixed and to fluctuate annually according to the rental paid and asked by other parties. Until other parties do rent at a different rate per annum than $5 a horse power, the rental will remain as fixed by the parties in the agreement. ”

The record discloses that contracts were in existence from March 1,1886, with other parties, who agreed to pay and did pay at the rate of $ip a horse power. It is urged that these persons were actually using more power than their contracts called for, and therefore the rate was not so high as $10. The record shows the contracts called for payment at the rate of $10, and that defendant company insisted upon payment at that rate; and under the construction given this lease by the court, to which attention has been called, we think defendant company was entitled to have the computation as it was made, unless its subsequent acts should bring about a different result.

It is claimed by the appellant that Charles H. Barry, as president of the Hydraulic Company, made a settlement with Lamb & Co., by which he agreed that the rent should be $5 per horse power, and he offers as evidence receipts given by Mi\ Barry, as follows: .

“ Received of Lamb & Co. $125, for six months’ water rent, from July 1, 1893, to January 1, 1894.
[Signed] “Charles H. Barry, President.”
“Received of Lamb & Co. $125, for six months’ water rent from January 1, 1893, to July 1, 1893, with the understanding that the accrued rent from March 1, 1885, to January 1, 1893, is to be $5 per horse power, as per their lease.
[Signed] .“Charles H. Barry, President.”

It'is claimed by defendant that Mr. Barry had no authority to make any settlement upon the basis of $5 a horse power, and that, while some of the directors would have been willing to settle upon-that basis if the money were paid at the time the settlement was made, they would have been unwilling to make such a settlement and let the amount stand unpaid. The only evidence of any action taken by the board of directors in relation to what was done by Mr. Barry, as shown by their record, was taken June 11, 1895, when a motion was made and carried that the compromise made between Charles H. Barry and Lamb & Co., whereby Charles H. Barry receipted in full to Lamb & Co., for six months’ rent due said Hydraulic Company, stand approved by said board of directors. Motion was made and carried that the resolutions as they stand in the minutes of the previous meeting in relation to the collection of the money due the Constantine Hydraulic Company from Proctor and Lamb & Co. remain in force, and that the same be duly prosecuted at law or compromised, as the directors may desire. At a meeting held December 18, 1893, which was the previous meeting shown by the record, a resolution was passed which, so far as it relates to Lamb & Co., is as follows:

“ Whereas, Lamb & Co. are in arrears for rent for a large amount, and do not make any proposition in settling the same;
“ Whereas, the Hydraulic Company holds a first lien on the mill and lands of Lamb & Co. as security for the same:
“Resolved, that unless Lamb & Co. do make some satisfactory arrangement for the payment of such rent on or before the 30th day of January, 1894, that proceedings be immediately thereafter commenced for the collection of the same.”

We do not think it can be said this action authorized a settlement of the claim for the entire time upon the basis of $5 per horse power.

It is not clear that, in the computation made by the learned judge, the proper credit is given for the amounts receipted for, and that he has not charged the mill owners at the rate of $10 a horse power for the time covered by the receipt. This can be ascertained by a computation, and, if the deduction was not made, the decree will be modified in that respect.

The learned judge found that the rental from March 1, 1885, to March 1, 1886, should be at the rate of $5 per horse power. The record discloses that a tender of $315.96 was made for rental from March 1, 1885, to January 1, 1886, which tender was refused upon the ground that it was only half enough. Inasmuch as, under the finding, of the coui’t, the amount tendered was sufficient to cover the amount due, we think the effect of this tender was to discharge the lien to that amount; and this amount, with interest at 6 per cent., should have been deducted from the amount of the decree, and the decree should be modified in that respect.

The record discloses (as will appear also by a reference to the case in 59 Mich.) that the-defendant company shut off the water, and that, after the mill owners had repaired the race, they were deprived of water for a period of 43 days; and it is claimed this resulted in damages to the mill owners of $3,065, which should be set off against the amount claimed to be due. The defendant company asserts this claim is unliquidated; that it concerns nobody but the mill owners; and that, as they have taken no appeal, the decree must stand. The record discloses what was conceded on the argument, — that the property is not sufficient to pay the amounts due on both these claims. Whatever amount is included in the decree in favor of defendant company will diminish the amount received by complainant to that extent, so that whatever would properly be a set-off between the mill owners and the defendant company should inure to the advantage of complainant.- There is some difficulty in deciding just what the set-off should be. We are not satisfied from the evidence it ought to be $3,065, for the witness Lamb has not given sufficient data to allow us to say the amount fixed by him was properly reached. We have no difficulty in saying it is not equitable for the defendant company to refuse to furnish water, and at the same time to be charging for it as though it was furnished. The defendant company should not have been allowed any rental for the 43 days it did not furnish water, and that amount should be deducted, with interest. It does appear that at the beginning of the 43 days the mill owners had 3,000 bushels of wheat on hand; that, during the time the defendant company refused to furnish water, it dropped in price 25 cents a bushel. The mill owners had contracts for all the flour they could make out of all their wheat, and they testify they could have saved this loss if they could have had the water turned on. This testimony is not contradicted. It was a loss for which the defendant company was responsible, and we think it equitable it should account for it. This would amount to $750, upon which interest should be computed from September 15, 1884, the time when this loss occurred.

In relation to the question whether the record of the lease was sufficient to put Mr. Gordon upon inquiry, it is claimed, when a paper is left with the proper recording officer, the person leaving it has done his duty, and that it cannot affect the rights of the mortgagee if the recording officer fails to properly record. There are very respectable authorities sustaining that position, but ' we think it is not sustained by the weight of authority. When this paper was recorded, the Compiled Laws of 1871 were in force. Section 4226 provides for the keeping by the register of an entry book for deeds and an entry book for mortgages. It did not provide-, as now, for any entry book of miscellaneous records. Section 4227 provides that the register shall enter in the entry book of deeds “all deeds of conveyance absolute in their terms, and not intended as mortgages,” and in the entry book of mortgages he shall enter ‘ ‘ all mortgages and other deeds intended as securities,” etc. Section 4228 provides that different sets of books shall be provided by the register of deeds for the recording of deeds and mortgages, in one of which sets all deeds required by the preceding section to be entered in the entry book of deeds shall be recorded at full length, etc., and in the other all such instruments as are required to be entered in the entry book of mortgages shall in like manner be recorded. Section 4230 provides that the register of deeds shall keep a proper general index to each of the sets of books, in which he shall enter alphabetically the name of every party to each and every instrument recorded by him, with a reference to the book and page where the same is recorded. Section 4231 provides that every conveyance of real estate within this State which shall not be recorded as provided in this chapter shall be void as against every subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, etc., whose conveyance shall be first duly recorded. Sections 4236 and 4237 make the terms “purchaser” and “conveyance” embrace a “mortgagee” and a “ mortgage.” The language used seems to be plain that a paper intended as a mortgage should be recorded as a mortgage. If one is to get the benefit of the constructive notice growing out of the recording act, he must comply with its terms. See Thompson v. Mack, Har. (Mich.) 150. Wade on the Law of Notice states the rule as follows:

“Section 186: Instruments Should be Filed for Record in Their True Character. Another important requirement in regard to the registry of instruments, in order that they may operate, ns constructive notice, is that they should be registered in their true characters. Otherwise, they may fail to give notice, not only of the estate or interest they are intended to affect, but of that which they on their face purport to convey. As where an instrument is drawn and executed in the form of an absolute deed, which is intended -only to take effect as a mortgage, it should be registered as a mortgage, and not as an absolute deed. The reason of this is that, the instrument not, being an absolute conveyance of the property, its registry as such cannot charge any one with notice of its contents. It being in reality a mortgage, it should be recorded where the searcher for mortgages would be most likely to find it, — in the record of mortgages.
“Section 187: Deed with Defeasance is Mortgage. So, where there was a written defeasance to an absolute deed, and the deed was recorded among the absolute deeds, but the defeasance was unrecorded, the two instruments were treated as one, and that one a mortgage, which, not being properly recorded, through the negligence of the parties interested, was postponed to the lien of a subsequent judgment.
Section 188: Defeasance Must be Recorded as Mortgage. So, also, where a separate defeasance was recorded, but in the same book with the deed instead of in the record of mortgages, it was held not to amount to constructive notice to a creditor, for the reason that it would not lie in his way if examining the record for mortgages.”

An examination of the index of mortgages would have given no clue to this paper, which is now claimed to be a mortgage, and which must be so regarded if the Constantine Hydraulic Company is to have any standing in court. I do not think it can be said Mr. Gordon must be deemed to have constructive notice because of the record of the lease.

This decree should be modified as indicated, and affirmed. Complainant should have costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    UNION TRUST CO. v. DETROIT MOTOR CO.

    1. Bonds — Mortgages—Contract oe Guaranty — Construction.
    A default in the payment of interest on bonds, whereby, under the terms of an accompanying mortgage, the principal sum becomes immediately due and payable, does not impose upon guarantors, whose undertaking is to pay the principal sum and interest “at the time specified in the bonds,” a liability for the payment of the principal sum before maturity, although the bonds, mortgage, and'guaranty were executed at one and . the same time.
    3. Same — Application oe Security — Equity.
    The general rule of equity that the proceeds of a mortgage given to secure several items of indebtedness'are to be applied to the debt, or portion of the debt, first maturing, will not control the decree in a case where the effect of its application would be to work injustice by depriving complainant of additional security. So held where, after default in the payment of interest upon bonds, but before the maturity of the principal, the representative of the bondholders having filed a bill to foreclose a collateral mortgage, under a provision therein declaring that the principal should become immediately due upon default in payment of the interest, certain persons, made defendants as guarantors, of payment of both interest and principal, sought to have the proceeds of the sale applied to the interest before being applied to the principal.
    3. Same — Conduct of Obligee — Release of Guarantor.
    Persons who have guaranteed the payment of the principal and interest of bonds ‘ ‘ at the time specified in the bonds” are not released from liability, either as to matured interest or as to the principal sum when due, by an election of the representative of the bondholders, under a provision in the mortgage securing the bonds, to declare the principal immediately due for default in interest; such election being ineffectual as to the guarantors, and in no way varying their contract.

      4. Same — Foreclosure of Mortgage — Parties.
    Under 3 How. Stat. § 6704, providing that, where a mortgage debt is secured by the obligation of any third person, such person may be made a party to the bill to foreclose, relief may be had against the guarantors of payment of bonds in a suit to foreclose a mortgage securing their payment.
    5. Same — Amount Falling Due Pending Suit — Decree.
    Where a suit is brought against the guarantors of the principal and interest of bonds before maturity of the principal, and the principal matures pending the suit, it may be included in the decree.
    Appeal from Wayne; McMahon, J., presiding.
    Submitted April 7, 1898.
    Decided July 18, 1898.
    Bill by the Union Trust Company against the Detroit Motor Company, William C. Maybury, and others, to foreclose a mortgage and to enforce the liability of guarantors. From the decree rendered, all parties appeal.
    Modified and affirmed.

      Russel & Campbell, for complainant.

      George W. Radford, for defendants.

      Rehearing denied October 3, 1898.

   Montgomery, J.

March 1, 1892, the Detroit Motor Company issued 100 coupon bonds, of $1,000 each, payable March 1, 1897, with interest at 6 per cent., payable semi-annually. Each bond states upon its face that it—

“ Is secured by first mortgage to the Union Trust Company of Detroit, Michigan, as trustee, bearing date the 1st day of March, 1892, and conveying to said trustee the real estate, franchises, and plant of this company, located at Detroit, Wayne county, Michigan. This bond is further secured by an instrument in writing of even date herewith, duly executed by J. Huff Jones, William C. Maybury, F. A. Blades, Waring H. Ellis, T. B. Rayl, Charles W. Casgrain, and Ellwood T. Hance, all of Detroit, Michigan, aforesaid, to said trustee, guaranteeing the payment thereof as herein provided.”

* The mortgage bears the same date as the bonds, is in the usual form, recites the bonds, and contains the following provisions:

“And it is hereby expressly agreed by and between said parties that should any default be made in the payment of said interest, or any part thereof (or any installment of principal, or any part thereof), on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrears for the space of 30 days, then and from thenceforth — that is to say, after the lapse of the said 30 days — so much of the aforesaid principal sum of $100,000 as remains unpaid, with all the arrearage of interest thereon, shall, at the option of the said party of the second part, its successors or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired; anything hereinbefore or in said bonds contained to the contrary thereof ■in anywise notwithstanding. * * *
‘ ‘ This mortgage and the bonds accompanying the same, and to which it is collateral, is guaranteed as to payment by a certain instrument in writing, bearing date March 1, 1892, inuring to the benefit of the said second party, and is signed by the persons comprising the board of directors of the said first party.”

The guaranty, which bears the same date as the bonds and mortgage, recites the issuing of the bonds, the execution of a first mortgage to the trust company to secure them, and proceeds as follows:

“Now, therefore, for the purpose of further securing the payment of said bonds, and of each of them, and of the interest due thereon, in accordance with the terms and conditions of said bonds, the parties of the first part hereby agree to and with the said party of the second part, for the benefit of those who may become holders of said bonds, and to and with each of the holders of said bonds, that the said bonds, and each of them, and the interest thereon, shall be paid in accordance with the terms thereof; and they hereby guarantee the prompt payment of the same, both principal and interest, at the time and times specified in the bonds, and in each of them.”

Interest being in default for more) than 30 days, the Unioil Trust Company, at the request of the bond-holders, declared the whole amount of said bonds due, and filed its bill of foreclosure upon May 28, 1896. The guarantors were made parties, and a personal decree was sought against them. Proofs were taken, and a decree entered against the Detroit Motor Company for the full amount of the principal and interest. The decree also held the guarantors personally liable for the amount of interest which was past due at. the time the bill was filed; but the court refused to render a decree against the guarantors for the amount of the principal, upon the ground that the guarantors’ liability should be strictly construed, and not extended beyond the terms of their agreement; that their agreement was to pay the bonds according to their terms;. and that as the bonds upon their face were not payable-until March 1, 1897, there was no liability except for past-due interest. From this finding, complainant appeals. Defendants also appeal.

Counsel for complainant state their- contention as follows:

“Only one question is raised by this appeal: Were the guarantors bound by the, provision of the mortgage that, in case of default in the payment of interest, the 'trustee might declare the principal due forthwith ? ”

Defendants contend that, under the terms of the guaranty, the individual defendants were only liable for the payment of the principal of the bonded debt at its maturity, and that by reason of the complainant’s declaring the ■whole amount due, and proceeding against them in this suit nine months before the date of maturity, their contract was thereby varied, and they were, released from liability; and that, if the guarantors be held liable for the interest which had matured on the bonds, tti^ proceeds of the sale of the property under the decree should be first applied to the satisfaction of their liability, inasmuch as the unpaid interest was the portion of' the debt first maturing.

The complainant invokes the,rule that where several instruments are made at the same time, between piarties, they should be construed together. This rule is too well established to require citation of authorities; but does it necessarily determine the question here involved? We think not. The contract of a surety or guarantor is not to be extended beyond its express terms. Johnston v. Township of Kimball, 39 Mich. 187 (33 Am. Rep. 372); Bishop v. Freeman, 42 Mich. 533; Black’s Appeal, 83 Mich. 513; Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112. The undertaking of the guarantors in this case was that the bonds, and each of them, and the interest thereon, should be paid in accordance with the terms thereof, and in terms they guaranteed the payment thereof “at the time and times specified in the bonds, and in each of them.” It would be an enlargement of this undertaking to treat it as an engagement to guarantee the payment of these bonds at any other or different times. At the time the bill was filed in this case, the guarantors were not liable to pay the principal of these bonds.

Assuming that the liability was limited to the interest, should the decree have provided that, the proceeds of the foreclosure sale should be first applied to the payment of such interest? We are at a loss to understand upon what equity such a direction should be made. It is suggested that, as a general rule, the application should be made to the debt or portion of the debt first maturing. This is the general rule, but it should not be invoked to work injustice. In this case the complainant supposed it had a double security. It could, as to the interest money due, have pursued either the principal or guarantors. An action might have been maintained on the guaranty, or the mortgage have been foreclosed at law.. The guarantors could not have been subrogated to the security without paying the full amount for which the security was held. Wilcox v. Fairhaven Bank, 7 Allen, 270. Does the fact that the complainant has sought its remedy in equity entitle the guarantors to greater rights, or entitle them to be relieved from their undertaking? We think not. See Mathews v. Switzler, 46 Mo. 301; Wood v. Callaghan, 61 Mich. 402 (1 Am. St. Rep. 597); Noble v. Murphy, 91 Mich. 653 (30 Am. St. Rep. 507).

Did the action of complainant in declaring the whole amount of the bonds and mortgage due release the defendant guarantors from the payment of the matured interest ? As before stated, to the extent of the matured interest, the liability of these guarantors had become fixed before the bill was filed or any steps taken to declare the whole amount due. The defendants’ counsel invokes the well-understood rule that any variation of a contract will discharge the surety or guarantor. But how has this contract been varied ? An attempt has been made to declare the bonds due before the date fixed in the bonds for their maturity. This, as to the guarantors, was ineffectual. As to the motor company, it was effectual, as the action taken was within the express terms of the undertaking in the mortgage. Not only is this true, but the guarantors had notice of this right, and contracted with reference to it. While we hold that this obligation cannot be enlarged beyond its terms, we do not hold that an indebtedness may not mature as against the principal at one date, and a guarantor be liable on such indebtedness only in case the default continues to a later date, if the parties see fit to so contract. The election authorized by the terms of the mortgage, which were known to the guarantors, did not operate to discharge them from liability on the matured obligation.

Did this action of complainant operate to discharge the guarantors from their liability to pay the bonds at maturity ? The undertaking of the principal and that of the guarantors was distinct; The election to proceed to declare the whole amount due as between the complainant and the motor company could not have the effect to change the contract of the guarantors, nor should it be held to release the contract. The contract of the guarantors still remains in force, notwithstanding the unavailing attempt to declare the whole amount due as against them. The contract expressly provides for such election, and the election, when made, did not extend the time or shorten the time for payment, as expressed in the terms of the contract between the motor company and the mortgagee. Nor was the ineffectual attempt to declare the whole amount due as against the guarantors of great effect. The force of this action was not different than that of a premature suit, which it cannot be maintained would discharge a debtor, be he principal or guarantor.

It is contended that relief cannot be had in this suit against the guarantors, but we think the statute (2 How. Stat. § 6704) authorizes the joining of guarantors of payment with the principal debtor in foreclosure proceedings. Johnson v. Shepard, 35 Mich. 115; Michigan State Bank of Eaton Rapids v. Trowbridge, 92 Mich. 221.

The principal of the bonds having matured. since the suit was instituted, the decree should pass against the guarantors for the full amount due. Johnson v. Van Velsor, 43 Mich. 215; Jehle v. Brooks, 112 Mich. 131; Hanford v. Robertson, 47 Mich. 100.

The decree below will be modified as indicated in this opinion. The complainant will recover costs of both courts.

The other Justices concurred.


author: Grant, C. J.

text:
    CHAPEL v. CLARK.
    Architects — Mistake in Plan — Liability.
    An architect who possesses the skill and knowledge of the average member of his profession, and uses ordinary care and diligence in their exercise, cannot be held liable for damages resulting to his employer from a mistake of judgment in the draughting of plans.
    Error to Kent; Adsit, J.
    Submitted April 8, 1898.
    Decided July 18, 1898.

      Assumpsit by William A. Chapel against Melvin J. Clark for services as architect. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, an architect, executed plans and specifications for the defendant for a large building erected in the city of Grand Rapids. The arrangement rested in parol. The testimony as to its terms was in direct conflict, plaintiff testifying that defendant expressly agreed to pay him well for his services, and defendant testifying that plaintiff solicited the job, saying that it would be a great help to him in starting out in his business, and offered to do all the architect’s work without charge. Plaintiff was also employed by defendant to superintend the construction of the building, for which he was paid. Before the building was completed, a difficulty arose between them, and plaintiff was discharged. He thereupon instituted this suit to recover the value of his services in drawing the plans and specifications. -The defendant, with the plea of the general issue, gave notice that plaintiff had not performed his work with due and necessary skill and care; that his plans, and specifications were faulty, defective, and”unskillful; and specified the details wherein they were faulty. Plaintiff recovered verdict and judgment.

      Wolcott & Perkins, for appellant.

      McKnight & McAllister, for appellee.
   Grant, C. J.

(after stating the facts). Defendant requested the court to instruct the jury that if they found the contract as claimed by plaintiff, and they should further find that, by mistake of the plaintiff, the defendant had been caused unnecessary expense in the construction ■of the building, they should determine the amount of such unnecessary expense, and deduct it from the value of the services rendered. This was refused, and the court instructed the jury as follows:

“The notice of defendant, which I have called your attention to, alleges that the plans and specifications drawn by the plaintiff were unskillfully drawn, whereby the alleged damages resulted. A person who holds himself out to the public in a professional capacity holds himself to be possessed of average ability in such profession, and ihe law implies that he contracts with his employer (1) that he possesses that requisite degree of learning, skill, and experience which is ordinarily possessed by the profession in the same art or science, and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business; (2) that he will use reasonable and ordinary care and diligence in the exercise of his skill — in the application of his knowledge — to accomplish the purpose for which he is employed; (3) in stipulating to exert his skill and. apply his diligence and care, an architect, like other professional men, contracts to use his best judgment. If you shall find that the plaintiff was qualified to that degree which the law required him to be in his profession, then the question as to whether or not he did the work unskillfully is a question which you are to determine under the rule I have just given you. If he made any mistakes by which the defendant was damaged, and it was through negligence or from incapacity, he is liable for such alleged specific damages as you may find from the evidence grew out of such negligence or incapacity. If, from a mistake growing out of the exercise of his best judgment, he possessing the reasonable degree of learning, skill, and experience in his profession required by law or implied by law, then, in such case, he would not be liable for any damage resulting therefrom. A mistake in judgment does not excuse negligence or ignorance.”

The request does not correctly state the law. It makes the architect a warrantor of his plans and specifications, although they might be justified by the knowledge and experience of those ordinarily skilled in the business. The law does not imply such a warranty, or the guaranty of the perfection of his plans. The result may show a mistake or defect in them, although he may have exercised the reasonable skill required. Plans, now considered safe, experience and advanced knowledge of the science may hereafter show to be unsafe. The law requires only the exercise of ordinary skill and care, in the light of present knowledge. Coombs v. Beede, 89 Me. 187 (56 Am. St. Rep. 406); Shipman v. State, 43 Wis. 381; Smothers v. Hanks, 34 Iowa, 286 (11 Am. Rep. 141); 2 Am. & Eng. Enc. Law (2d Ed.), 818. The above authorities seem to hold that the responsibility of an architect does not 'differ from that of a lawyer or physician. When either possesses the requisite skill and knowledge, and in the exercise thereof has used his best judgment, he has done all that the law requires. The question was, Had plaintiff exercised that degree of care and skill and that judgment which are common to the profession or business ? The defects alleged to exist in the plans were in the construction of the sewer, the cornice and coping for the towers, the stairway and elevator, and the flue of the chimnéy. If the plans and specifications for these parts of the building were justified by the common knowledge upon such matters at the time, and met the judgment and approval of those then ordinarily skilled and experienced in their construction, the plaintiff had complied with his contract. We think that the jury must so have understood the instructions.

Plaintiff gave defendant the following receipt:

“Grand Rapids, Mich., Dec. 8, 1894.
“ I hereby acknowledge full payment and satisfaction for all services heretofore rendered, or hereafter to be rendered, in and about the preparation of plans for the business block to be built by M. J. Clark on South Ionia street, and in looking after the building of said block, to its completion. W. A. Chapel.”

Error is assigned upon the following instruction:

“If the circumstances under which the receipt, so called, was given by the plaintiff, were as testified to by the plaintiff, it was given at the request of the defendant, under a promise by him that, as between them, it was to have no effect, and the defendant would, in fact, pay to plaintiff all that his services should be worth, — ‘would pay him well for his services,’ in his own language.”

The objection is that there was no testimony on which to base the instruction. The case evidently was tried by both parties upon the theory that this receipt was open to explanation. Plaintiff testified that defendant, just before leaving home for California, asked for this receipt, saying that it would make no difference with their agreement, and that he was going to pay him well for his work. There was a clear dispute as to the circumstances and reasons for giving this receipt, which made it a proper subject for the determination of the jury.

Several errors are assigned upon the admissibility of testimony. We find nothing in this testimony which we think was prejudicial to the defendant.

Judgment affirmed.

The other Justices concurred.


text:
    HAUSER v. BURBANK.
    Drains — Application—Objections.
    The names of certain owners of land traversed by a proposed drain were omitted from the application to the probate court. The parties omitted did not complain. A release was given the drain commissioner, by an adjoining owner, of a sufficient quantity of land to accommodate the entire ditch at that point. Held, that other owners could not complain.
    Error to Berrien; Coolidge, J.
    Submitted April 8, 1898.
    Decided July 18, 1898.

      Certiorari by Joseph W. Hauser to review the action of John E. Burbank, drain commissioner of Berrien county, in laying out and establishing a drain. From a judgment setting aside the proceedings, defendant brings error.
    Reversed.

      James O’Hara and Gore & Harvey, for appellant.

      George W. Bridgman and Edward Bacon, for appellee.
   Montgomery, J.

This case presents the same questions as are found in No. 11 of the April term, of the same title (Hauser v. Burbank, ante, 463); and one additional question is raised, which is that the names of two owners of land traversed by the proposed drain were omitted from the application to the probate court. The return to the certiorari shows that the survey was made at a time of high water, and that, as the thread of the stream was then located, the line of the proposed ditch did not traverse the land of these parties. The commissioner returns that he does not know that the lands of the parties were traversed, but that a release has been given him by the adjoining owner of a sufficient quantity of land to accommodate the entire ditch and the deposits of earth therefrom. The parties who are alleged to be owners of the land traversed are not complaining, and it is apparent that a right of way has been acquired substantially on the line surveyed. We think the plaintiff in certiorari is not therefore in position to complain.

The judgment of the circuit court is reversed, with costs of both courts to defendant in certiorari.

The other Justices concurred.-


author: Hooker, J. Montgomery, J.

text:
    WHITNEY v. FOSTER.
    1. Banks — Authority of Cashier.
    The execution of an instrument on behalf of a bank by its cashier is shown to have had the authority of the officers, by evidence that the bank’s attorney, one of the directors, was consulted and approved the instrument, that the cashier’s acts in similar transactions were invariably acquiesced in, and his own testimony that the act in question received the directors’ approval. Montgomery, J., dissenting.
    3. Same — Equitable Mortgage.
    A bank purchased of a depositor a building under a land contract, and paid a part of the consideration. Thereafter the bank took the depositor’s check for the amount of his deposit, and executed with him an agreement in writing, acknowledging its indebtedness to him upon the contract in a sum covering the amount of the check and the balance of the purchase price. Held, that, upon the bank’s becoming insolvent, the instrument would be given effect as an equitable mortgage of whatever interest the bank had in the property.
    Appeal from Ingham; Person, J.
    Submitted April 19, 1898.
    Decided July 18, 1898.
    Petition by Edwin H. Whitney against Seymour Foster, receiver of the People’s Savings Bank of Lansing, Michigan, to establish a lien upon the building occupied by the bank. From a decree denying the prayer of petitioner, he appeals.
    Reversed.

      S. L. Kilbourne (Edwin F. Conely, of counsel), for petitioner.

      Cahill & Ostrander, for defendant.
   Hooker, J.

In July, 1896, the People’s Savings Bank closed its doors, and a receiver was appointed at the instance of the state banking commissioner. The petitioner, Whitney, has intervened in the proceeding, and asks that the receiver be required to recognize a lien in his favor to the amount of $11,000 and upwards upon the building occupied by the bank. In its more prosperous days the bank purchased this building from the petitioner upon a land contract, and paid the consideration, except the sum of $5,000, and some interest which was in arrears on March 12,1896. At that time the petitioner was a depositor of the bank, and had a credit for about $6,000, which he proposed to withdraw for investment elsewhere; but, at the solicitation of the cashier, he consented to loan said-sum to the bank at 6 per cent., the same to be secured upon this real estate. Accordingly he gave the bank a check for the amount, and took a writing of which the following is a copy:

‘ ‘ This memorandum of agreement, made this 12th day of March, 1896, by and between Edwin H. Whitney, of Lansing, Michigan, party of the first part, and the People’s Savings Bank, of the same place, party of the second part, witnesseth: That, for a valuable consideration to the party of the first part, the payments due on contract of April 6, 1894, between the parties hereto, have been-extended until January 1, 1897. It is also mutually agreed that the amount now due on said contract is the sum of $11,348, with interest at 6 per cent, per annum.
“ In witness whereof the parties hereto have set their hands and seals the day and year first above written.”

Stamped on the paper is “The People’s Savings Bank, Lansing, Michigan, by C. H. Osband, Cashier,” and “L. S.,” and then the seal of the register of deeds who recorded the contract, and “Edwin H. Whitney, L. S.”

Two questions are raised by the receiver. He contends —First, that the instrument is void for want of authority upon the part of the cashier to execute it; and, second, that the instrument is ineffective for the purpose.

An examination of the evidence convinces us that this loan had the approval, implied, if not express, of the officers of the bank. Mr. Osband, the cashier, so testifies, and Mr. Lee, the attorney and a member of the discount committee of the board, was consulted, and approved the instrument. Mr. Beal, the president, is not certain that he was not informed, and admits that there was “talk about making a loan of Whitney.” Mr. Robson stated that he did not know of it until after the bank failed, but he admitted that for a long period-it was the practice of Mr. Osband to obtain loans wherever he could, and that his action was invariably acquiesced in, if not always approved. This same land contract was previously hypothecated by Mr. Osband, and this was formally approved by the board, when brought to its attention by request of the officers of the City National Bank, to which it was pledged.

As to the instrument given, we have no hesitancy in treating it as an equitable mortgage of whatever interest the bank had in this property.

In our opinion, the prayer of the petitioner should have been granted. The decree of the circuit court is reversed, and one will be entered here granting the prayer of the petitioner, with costs of both courts.

■ Grant, O. J., Moore and Long, JJ., concurred with Hooker, J.

Montgomery, J.

(dissenting). In my opinion,- the cashier was not shown to have authority to execute the paper in question.

The decree should be affirmed.


author: Long, J.

text:
    BISSELL v. DOWLING.
    1. Principal and Agent — Authority to Collect Mortgage.
    After an unrecorded assignment of a mortgage given to a mortgage company, the company continued to collect the interest, ' and eventually collected and receipted for the principal, the mortgagor supposing it still to own the mortgage, which in fact was in the possession of the assignee. The amount paid was credited by the company to the assignee’s account. The assignee, not being informed of the payment of the mortgage, wrote soon after, urging the company to collect or foreclose the same. The company had previously collected large amounts, both of principal and interest, for the assignee, and had often reinvested the moneys so collected at its discretion. In the course of his correspondence with the company, he had urged collections on his mortgages generally, and had made inquiries indicating that the power to collect and discharge his mortgages was assumed by the company with his approval. Held, that the company was the general agent of the assignee, and authorized to receive payment of the mortgage in question.
    2. Same — Ratification.
    The owner of a mortgage ratifies the payment of the mortgage to a mortgage company as his agent, by accepting property from the company to apply upon a balance in his favor in his account with the company, to which he was aware the amount of the mortgage had been credited, and by claiming in receivership proceedings against the company that the money collected on the mortgage should be treated as a trust fund for his benefit.
    Appeal from Osceola; McMahon, J.
    Submitted April 21, 1898.
    Decided July 18, 1898.
    Bill by John H. Bissell against Thomas Dowling, Ella F. Dowling, and the First State Savings Bank of Evart, to foreclose a mortgage. The defendants filed answers in the nature of cross-bills, praying the discharge of the mortgage and the cancellation of notes collateral thereto. From a decree for defendants, complainant appeals.
    Affirmed.

      John H. Bissell (Charles A. Withey, of counsel), in pro. per.

      C. H. Rose, for defendants.
   Long, J.

March 26, 1888, defendants Dowling executed and delivered to Walker & White, of St. Johns, a mortgage of $300, due in five years, with.interest at 7 per cent., payable semi-annually. There was a commission mortgage also, and the whole debt evidenced by one principal and 10 coupon notes, payable at the office of Walker & White. ' July 13, 1888, this mortgage was assigned to ■complainant; but the assignment was not put on record until February 6, 1894, and the mortgagors continued to pay the interest to Walker & White until 1889, when the firm of Walker & White was merged into the Michigan Mortgage Company; and interest thereafter was paid by the mortgagors to that company. At each of those payments of interest, the coupon notes were marked “Paid,” and surrendered to the mortgagors, either by Walker & White or by the Michigan Mortgage Company. The mortgage became due in March, 1893, and the Dowlings borrowed the money from the defendant bank to pay it. To secure this loan, the Dowlings gave to the bank a mortgage on the same lands. The bank sent the money forward to the Michigan Mortgage Company, and it was receipted for by the company. This money the Michigan Mortgage Company credited up to complainant on its books of account at the time it was received, in March, 1893. No discharge of the mortgage was ever made. In February, 1894, the Michigan Mortgage Company failed; and a receiver was appointed, who took charge of the business. The Dowlings supposed, at the time this mortgage was paid by the loan from the bank, that Walker & White or the Michigan Mortgage Company owned the mortgage, as they had never heard of the assignment, and their coupon notes were always canceled by one or the other, and returned. About one year after the Michigan Mortgage Company failed, the complainant wrote Mr. Dow-ling, asking him to pay the mortgage. This was refused; and this proceeding was commenced to foreclose it, the complainant claiming that no interest had been paid upon it since September, 1892. The defense to the mortgage is:

1. That the Michigan Mortgage Company was the agent of complainant, and received the moneys on the mortgage for him.

2. That the complainant ratified the action-of the Michigan Mortgage Company in receiving this money in discharge of the mortgage.

3. That the complainant is estopped by his own conduct from claiming that the mortgage has never been paid.

The court below filed a written opinion, in which he discusses several of the questions raised. On the question of agency that court says:

“During all the years from the time the mortgage was given until it was paid, the mortgage company was doing a large amount of business for complainant, and during that time handled for him over $100,000. Some of this money belonged to the complainant, and some to clients of his. During all this time the mortgage company collected large amounts of money, both of principal and interest, for complainant, and often reinvested it for him at discretion, with his full approval and consent. Sometimes these collections and reinvestments were made by order of complainant, and often without it; but, as far as the evidence discloses, whatever the company did was cheerfully ratified and approved by complainant. He wrote the company and Walker many letters during the period of five years from March, 1888, to March, 1893, concerning his mortgages, urging their prompt collection, and inquiring as to their status and the probability of payment being promptly made. At times he urged the company to collect in money on any of his mortgages generally, alleging that he was in need of money. On September 12, 1892, he wrote the company:
‘ ‘ ‘ Inclosed find for collection the following coupons, amounting to $450.20. I shall be glad to have a remittance now when anything is collected, as I am unusually short. I would like to have a little pushing done on some old delinquents, to get the pay or the land, or to have live renewals.’
“On July 6, 1891, he sent several coupons for collection, and then says:
“‘The principal of several of these are due, and I should like other securities, or payment and discharge.’
“ In another letter he writes:
“ ‘I am obliged for your favor of the 31st, covering statement of' new securities for 89,864.80.’
“In September, 1890, he writes:
“ ‘Will you please send me memorandum showing whether the following mortgages are foreclosed or not.’
“Again:
“ ‘In case of S. L. Eandall mortgage, have you any record of a discharge, as I have in my hands the note, mortgage, and assignment ? I ask the same question with reference to Thomas Dowling. ’
“On November 20, 1893, he wrote:
“ ‘If paid this week, or before December 1st, I should be glad to have them.’
“Shortly before the failure of the company, he wrote:
“ ‘You will notice that there are in this list ten that are past due [mentioning among them the Dowling mortgage]. I shall hope on my return to have notice that a good share of them are either paid or renewed or foreclosed. Any collections that can be made between now and the 10th of February I shall be very glad to have promptly.’
“This letter was written after the Dowling mortgage had been paid to the company.
“I cannot attempt to set forth in this opinion all the letters introduced in evidence. There was a very large number of them, of about the same general tenor as those above quoted, and copies are hereto attached.
‘ ‘ The mortgage company kept an account with complainant on its books, crediting him with all moneys received from him or collected by it, and charging him with all securities taken. This account showed a balance in complainant’s favor of from sis to thirteen thousand dollars for a long time prior to the failure of the mortgage company. The complainant says he knew,nothing of this account, and this is true in the sense that he had never seen it. But he certainly knew that an account was being kept, for in one of his letters he says:
‘“I have your letter with the Mayville papers, §500 to the New-ell estate. I assume that the difference between it and the §350 of the Olds mortgage will be charged to our account.’
“Bissell was informed, a few days before the failure of the company, as to the situation, and obtained from the company a deed of lands valued at $6,000, which he accepted and had credited to his account. The Michigan. Mortgage Company paid complainant money collected by it for him at the rate of about $1,000 per month, both before and after the Dowling mortgage was paid to the company. Between January 1,1892, and February 6, 1894 (the date-of the failure), the mortgage company collected for Bis-sell $23,900 of the principal of mortgages, besides large-amounts of interest. It was more than a year after he discovered that the company had received payment of this, mortgage before complainant made any claim that Dowling must pay it again to him, and after failure he filed a. petition in the circuit court at St. Johns, asking that the-amount of money received on this mortgage be paid to-him as a trust'fund in the hands of the receiver.”

We think this statement is in the main borne out by the record, and from which the court below was of the opinion that the Michigan Mortgage Company was the general agent of the complainant for the purpose of collecting money and investing it again, and consequently dismissed complainant’s bill. We do not overlook the fact that the letter of January 26, 1894, referred to an inclosure of coupons. In this, we think, the court was not in error.

But, aside from this, it appears that, after complainant knew that Dowling had paid the mortgage to the Michigan Mortgage Company, and the moneys had been credited to him in his general account on the books of the-company, he took a deed of $6,000 worth of property from the company, and applied that amount upon the account with the company. Complainant also thereafter-filed a claim in the circuit court for Clinton county, in chancery, in the receiver proceedings, asking that this money which the Dowlings had paid be declared a trust fund in the hands of the receiver. This claim must have been based upon the proposition that the Dowlings had paid the money to the proper parties, and was a recognition of the agency of the Michigan Mortgage Company.

It is claimed by the complainant’s solicitor that complainant at all times held the notes and mortgage after the assignment to him. We are not satisfied that the record shows this; but, if that were true, still we think the evidence was quite conclusive that the mortgage company was the general agent of complainant, and authorized to receive this money, and that that action was ratified.

This case is not governed by Church Association of Michigan v. Walton, 114 Mich. 677, as suggested by counsel for complainant. In that case the moneys received by the mortgage company were credited on the company’s books to the mortgagor, and did not go into the general account of the mortgagee, as in the present case. There are many other points of difference in the two cases. We think the case is governed by Wilson v. La Tour, 108 Mich. 547.

We think the court below was not in error in his findings, and the decree there entered must be affirmed.

The other Justices concurred.


text:
    BOND v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Accident at Crossing — Contributory Negligence.
    Plaintiff, who lived a short distance south of a crossing, approached it from the north, riding in a covered buggy with closed curtains. She was partially deaf. Before reaching the crossing she heard the whistle of a train, but, supposing it to be upon another railroad, drove on without stopping her horse. While she claimed to have looked through a narrow ■opening at the top of the curtain, and to have been unable to see the track because of obstructions, she admitted that she did not keep a constant watch, and failed to controvert in any positive way the testimony of other witnesses that the approaching train was visible from the highway for some distance north of the crossing. Held that, upon plaintiff’s own showing, she was guilty of negligence, precluding a recovery for injuries received from being struck by the train.
    2. Same — Crossing Signals — Evidence.
    The positive testimony of a train crew and a third person, that the whistle was sounded and the bell rung on approaching a crossing, is not’sufficiently contradicted to justify the submission of tlie question to the jury, by the testimony of the person injured, who was partially deaf, and whose situation was in other respects unfavorable to hearing such signals, that she did not hear them, although she was listening, and the testimony of a boy whose attention was not directed to the matter, that he did not hear them.
    Error to Washtenaw; Kinne, J.
    Submitted April 21, 1898.
    Decided July 18, 1898.
    Case by Hattie M. Bond against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff claims that while she was riding south from Ann Arbor, in a public highway, her carriage was struck by the engine of a freight train going west on the defendant’s road. The accident happened September 22, 1894, and she commenced this action August 19, 1896. She recovered verdict and judgment. She was 66 years old, was alone, and driving with one horse and a covered buggy. The curtains were closed. She claims that she was ignorant of the approach of the train until she heard the alarm whistle and saw the approaching train; that she was then so near the track that she did not dare to stop, and therefore whipped her horse in an attempt to get across. Her buggy was overturned in a ditch from 20 to 40 feet from the track. The Ann Arbor Railroad crosses the defendant’s road, 2,523-) feet east of the highway, at a place called “Pittsfield Junction.” The highway runs nearly north and south. The railroad runs southwesterly. A small one-story house and barn, owned by a Mr. Ukle, were situated near the corner, upon the land between the railroad right of way and the highway. The house was to the south of the barn, and the distance from the house' to the track was about 200 feet.

      C. E. Weaver ( Geo. C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Lehman Bros. & Stivers, for appellee.
   Grant, C. J.

(after stating the facts). Plaintiff was guilty of contributory negligence, under her own testimony. She had lived -for 15 years a short distance south of this crossing, and crossed it many times, and was entirely familiar with the situation. She was partially deaf in her left ear, which was towards the east, the direction from which the train was approaching. In a written statement, made a few weeks after the accident, she said that she was entirely deaf in that ear. When plaintiff reached a point near Mr. Ukle’s house, she heard a train at the east which she supposed was on the Ann Arbor road. She knew that a freight train on the defendant’s road was due sometime before she reached the crossing. She thought it had gone, but in fact it was behind time., She testified that she slowed the speed of her horse, but did not stop to listen; that she looked through an opening three or four inches wide between the top of the curtain and the covering above; that she leaned forward and looked, and that she listened. She thought there must have been some small trees or something growing on defendant’s right of way beside the fence, because she could not see the track.

Plaintiff had no means of determining whether the train she heard was on the defendant’s road or the Ann Arbor road. Aside from the fact that a railroad crossing is of itself warning of danger, she was further warned by the noise of a train which might be, and in fact was, on the defendant’s road. Travelers upon a highway are charged with notice that trains are liable to pass at any time, and the law requires them to exercise the same degree of care at all times. If it were a fact that trees or bushes obstructed her view, it was her clear duty to stop and listen. It is evident, from her own statement, that she could have heard the train had she done so. On her redirect examination, she testified: “I think I heard the train at the jdnction start out.” In her statement above referred to she said: “When I first heard'the train I thought it was on the Toledo & Ann Arbor road, and the next thing I heard was the feai’ful whistle of the engine.” She also said in that statement: “I did not stop to listen or look to see where the train was.” She admits that she made the statement, that it was read to her, and that she signed it. There is no evidence of any unfairness in procuring it, or that she was not mentally competent to make and understand it. The only explanation she gives is: “I was very sick, and did not place my mind on it.” She denies no part of it, except to say: “I don’t think I used the language, ‘ I didn’t stop to listen or look to see where the train'was.’ I have no recollection of giving him any such statement.” The conclusion is irresistible that, had she stopped and listened, the accident would have been ■avoided.

It is also conclusively established by the evidence that there was no obstruction to her vision from the time she passed Mr. Ukle’s house until she reached the track, and that during that entire distance she could have seen the train from the time it started from Pittsfield Junction. Mr. Walker, who lived in the first house south of the track, was working in a field to the north. He came out into the road with his team about 30 rods north of the track, and saw Mrs. Bond coming 10 or 15 rods behind him. He heard the customary crossing signals, and saw the train. Said he could not help seeing it after passing to the south of Mr. Ukle’s house. “From there on to the railroad there was nothing to prevent my seeing it.” He testified that plaintiff was sitting on the right side of the "buggy, with the curtains up. Other witnesses equally positive corroborate Mr. Walker as to the absence of obstructions to the vision, and there is no testimony to the •contrary except the statement of Mrs. Bond. Upon this point her testimony is as follows:

“(On direct examination.)
Q. How close to the right of way fence, or Mr. Ukle’s land, are there any bushes or shrubbery, or anything of that kind ?
“A. I think there must have been some. I was not very particular to notice, but I know I could not see through.
Q. State whether or not, when driving along, you tried to look down towards the station.
“A. I tried to.
‘ ‘ Q. State whether or not there were any small trees or anything growing on defendant’s right of way inside the fence.
“A. I think there was.
Q. Why do you say that ?
“A. Because I could not see the track.
“(On cross-examination.)
Q. Then you could see down the track ?
“A. I could not see much until I got on the track. I could not see any train until I got on the track. Could not tell how far down the track I could see. Could not see to the depot.
Q. What was in the way ?
“A. Because I was looking; I could not see.
Q. Was there anything in the way between there and the depot?
A. There were things growing beside the road — right of way, — -I think, inside the right of way.
“Q. What was growing there ?
“A. I think there were trees and shrubs there, so that I could not see. Did not see anything until the horse was on the track. * * * I don’t know as I looked all the while. I looked until I thought there was no train on the road.”

We think it is clear that there is no such conflict in this testimony as to justify its submission to the jury.

Many allegations of negligence were made in the declaration, but upon the trial all were eliminated except the failure to blow the whistle and ring the bell. Upon this point there was no real conflict in the evidence. The engineer, fireman, one brakeman, the conductor, and Mr. Walker swear positively that the whistle signals were given. The engineer, fireman, and brakeman swear positively that the bell was rung. There is nothing to impeach or weaken this testimony. The only testimony claimed to contradict it is that of the plaintiff herself, and a boy, then 10 years old, as to the whistle, and herself alone as to the ringing of the bell. Plaintiff testified that she “heard no whistle or bell or anything.” It is true she testified that she was listening, but it was with at least partial deafness in one ear, with her horse and carriage moving, herself sitting in the carriage, closed on both sides and the back, and the train approaching from the northeast and behind her. She testified on cross-examination :

“Q. What was it you heard when you heard the train?
“A. I heard the noise it makes when it starts from the station, — the whistle. I don’t know what you call it, but the noise it makes when it starts up, — a sharp tooting from the engine.”

She further testified: “I could not tell whether the bell was rung or not.”

She thus described the usual whistles for the crossing. It is not customary to blow a whistle when starting from a station. The only testimony upon this point was brought out by the cross-examination of the engineer and fireman. The engineer testified:

“I do not recollect whether I sounded the whistle when I left the station. Do not make a practice of it. We ring the bell when we start, and do not use the whistle. That is my invariable practice. Do not think I whistled on this occasion. Did not whistle at all until I whistled for the highway crossing.”

The fireman testified that the engineer did not whistle on starting from the junction, and that it is not customary to do so.

When the train started from the junction, the engine stood 15 or 16 car lengths west of the station house. It will thus be seen that there was a very short distance to go before giving the crossing whistle. It was a freight train, and would therefore move slowly at first. It is very evident that the whistle she heard was that for the crossing. ■ '

The boy Ukle was at the station house when the train started, and walked after it down the track. He testified that he did not hear the whistle, but “could not tell whether it did whistle or not. I was not paying any attention to know whether it whistled or not.” This was not sufficient contradiction of the testimony of the defendant to justify its submission to the jury. Shufelt v. Railroad Co., 96 Mich. 327, and authorities there cited; Urias v. Railroad Co., 152 Pa. St. 326; Bohan v. Railway Co., 61 Wis. 391. Many other cases might be cited holding the same rule.

Judgment reversed, and new trial ordered.

The other Justices concurred,


author: Grant, C. J. Moore, J.

text:
    WESLEY v. CITY OF DETROIT.

    Municipal Corporations — Sidewalks—Ioe and Snow.
    Upon paving a street, defendant lowered the sidewalk, so that it lay 18 inches below a sidewalk on an intersecting street, with which it had previously been level. About three feet of the intersecting walk, which lay six inches above the ground, being cut off, the earth gradually wore away, so that the earth ' walk inclined 12 inches in the three feet. Upon this inclined walk, ice and snow collected, and plaintiff, attempting to pass over it, slipped and was injured. Held, that the walk, except for the ice and snow, was in a reasonably safe condition, and that the case was within the rule that a municipality is not liable for accidents caused by the natural accumulation of ioe and snow upon its walks. Moore and Montgomery, JJ., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted April 26,1898.
    Decided July 18, 1898.
    Case by Henry Wesley against the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff .brings error.
    Affirmed.

      May & Moloney, for appellant.

      John J. Speed, for appellee.

       Rehearing denied December 28, 1898.

   Grant, C. J.

I think the court was correct in directing a verdict. The sidewalk was in a condition in which the city had a right to leave it. If there had been a plank or stone walk of the same incline as the ground, it would have been equally, if not more, dangerous. It was not unsafe or dangerous in its original condition. It was made unsafe solely by the accumulation of ice and snow. Sidewalks and streets must have inclines, and, whatever may be the decisions of the courts of other States, it is settled in this State that municipalities are not liable for accidents caused by the natural accumulations of ice and snow. Gavett v. City of Jackson, 109 Mich. 408 (32 L. R. A. 861); Hutchinson v. City of Ypsilanti, 103 Mich. 12. See, also, authorities cited in these two cases. All inclined sidewalks become dangerous for pedestrians when covered with ice. All the law requires is that the municipality shall keep them otherwise in a reasonably safe condition.

The judgment is affirmed.

Hooker and Long, JJ., concurred with Grant, C. J.

Moore, J.

(dissenting). Perry street intersects Grand River avenue at right angles. Until the‘fall of 1892 the sidewalks on the two streets were on the same level. Late in the fall of 1892 the two streets were paved, and the cross-walks on both streets were lowered, as was the sidewalk on Grand River avenue. This left the walk on Perry street about 18 inches higher where it joined the sidewalk on Grand River avenue than the sidewalk on the last-named street. About 3 feet of the sidewalk on Perry street was cut off, leaving a drop from the top of the plank to the ground of about 6 inches. Prom the end of the walk as cut off to the walk on Grand River avenue the earth was left exposed, and the earth wore away, so it became inclined. The incline reached to the Grand River avenue walk. The drop in the earth was about 12 inches in the 3 feet. The city authorities knew of the condition of this walk for some time before the accident occurred. The plaintiff lived on Perry street. He did business on Grand River avenue, and knew the condition of the walk. He necessarily passed over it in going to and from his home,unless he went two or three blocks farther to reach his home. This was a much-traveled highway. This portion of the sidewalk became partially covered with snow and ice. In February, 1893, plaintiff attempted to pass over it. He slipped and fell, and sustained injuries for which this action was brought. The learned trial judge directed the jury to return a verdict in favor of the city, upon the ground that the proximate cause of the injury was not the defect in the walk, but was the natural accumulation of ice and snow. The plaintiff brings the case here by writ of error.

It is the contention of the counsel for the city that the action of the circuit judge is justified by the cases of McKellar v. City of Detroit, 57 Mich. 158 (58 Am. Rep. 357); Kannenberg v. City of Alpena, 96 Mich. 53; Rolf v. City of Greenville, 102 Mich. 544; Hutchinson v. City of Ypsilanti, 103 Mich. 12; Gavett v. City of Jackson, 109 Mich. 408 (32 L. R. A. 861). An inspection of these cases shows that none of them are like the case at bar. In none of them was there any claim that there was any defect in the construction of the sidewalk or street where the accident occurred. The effect of these decisions is that there is no liability on the part of municipalities for injuries resulting from the accumulation of snow and ice where there is no defect in the construction of the street or walk where the injury occurred. Here it was the claim of the plaintiff that the walk was defective and dangerous. He gave proof tending to show this was true. He also offered testimony tending to show that it was the declivity and slope that made him fall, and, if it had not been for the slope, he would not have slipped. In Perkins v. City of Fond du Lac, 34 Wis. 435, it is said:

“ The mere slippery condition of a sidewalk, arising from the ordinary action of the elements [as snow and ice], is not a defect which renders the town or city liable; but if the walk is in other respects unskillfully or improperly built, so as unnecessarily to increase the danger of persons walking thereon while it is covered with snow and ice, this will render it defective or insufficient, within the meaning of the statute.”

In Hill v. City of Fond du Lac, 56 Wis. 242, it is said:

“ Under the evidence, the question was not whether the mere sudden declivity in the sidewalk, in the absence of any storm or freezing, would have been dangerous, nor whether the mere storm and freezing weather, in the absence of the walk in question, and with a walk differently constructed, would have caused danger; but whether that walk so constructed, with such ice and snow as would ordinarily accumulate upon it, during such severe storms and freezing weather as ordinarily occur at that season of the year, at the place of the injury, would be unsafe for travelers upon it. If in that condition and under such circumstances it was unsafe, then it was defective, and it was the province of the jury to determine that question.”

See, also, Grossenbach v. City of Milwaukee, 65 Wis. 31 (56 Am. Rep. 614); City of Atchison v. King, 9 Kan. 550; Pinkham v. Inhabitants of Topsfield, 104 Mass. 78; Adams v. Inhabitants of Chicopee, 147 Mass. 440; Hampson v. Taylor, 15 R. I. 85; Lindsay v. City of Des Moines, 74 Iowa, 111.

We think the question should have been submitted to the jury as to whether or not the walk, at the time of the accident, was in such a defective condition as not to he reasonably safe and fit for travel.

It is urged on the part of the city that, as plaintiff knew the condition of the walk, he was guilty of negligence in attempting to pass over it, and for that reason cannot recover. This feature of the case has frequently been before the courts of this State, and it has been held that, because one knows a walk is in a defective condition, it does not follow he must not pass over it. The rule is stated in Schwingschlegl v. City of Monroe, 113 Mich. 683, where there is a collation of the authorities.

Judgment should be reversed, and a new trial ordered.

Montgomery, J., concurred with Moore, J.


text:
    WATTLES v. WAYNE CIRCUIT JUDGE
    1. Garnishment — Action on Judgment.
    An. action on a foreign judgment is an action upon contract, within the meaning of 3 How. Stat. § 8058, providing that a writ of garnishment may issue in all personal actions arising upon contract, express or implied.
    2. Same — Affidavit—Amendment.
    An affidavit for garnishment may be amended to correct a clerical error in its date.
    3. Same.
    Nothing can be reached in the hands of a garnishee which had its origin in transactions subsequent to the issuing of the writ of garnishment.

      Mandamus by Greenleaf C. Wattles and Oliver H. Wattles to compel Willard M. Lillibridge, circuit judge of Wayne county, to quash a writ of garnishment.
    Submitted June 7, 1898.
    Writ denied July 18, 1898.

      J. A. McLennan, for relators.

      Griffin, Clark & Russell (L. T. Griffin, of counsel), for respondent.
   Long, J.

May 27, 1897, Levi T. Griffin commenced suit in the Wayne circuit court against Greenleaf O. Wattles by summons issued out of said court. This summons was personally served on Wattles, within the county of Wayne, on June.3d thereafter. On the last-named day, Griffin filed in said court an affidavit for a writ of garnishment in said cause, to be directed to Oliver H. Wattles. This affidavit states that the summons had been personally served on the principal defendant, in an action ‘ ‘ to recover upon a judgment heretofore recovered on the 21st day of February, 1891, for the sum of $3,702.60, in the supreme court of the State of New York, * * * which is a court of civil and general jurisdiction, a transcript of •which said judgment, duly authenticated, deponent has filed in said circuit court for the county of Wayne.” The affidavit then sets out that the garnishee defendant, Oliver H. Wattles, residing in Lapeer county, has property, etc., in his hands or under his custody or control belonging to the defendant Greenleaf C. Wattles; that Oliver H. Wattles is indebted to said Greenleaf C. Wattles; that there remains due and unpaid on said judgment $3,702.60, with interest; and that said Greenleaf C. Wattles is justly indebted to the said Griffin in the sum of $5,100.22. Writ of garnishment was issued, and personally served on the garnishee defendant, who caused his appearance to be entered in said cause by J. A. McLennan. On June 19th, the garnishee defendant, by said Mc-Lennan, filed his disclosure in said cause, denying all liability. This disclosure was served on Griffin’s attorneys, who filed a demand for an examination of the garnishee on oath, and served notice requiring him to appear before a circuit court commissioner of Wayne county on July 22, 1897, which notice was also duly personally served on Oliver H. Wattles.

The principal defendant appeared by his attorneys, Messrs. Moore & Goff. Declaration was duly filed in the cause, declaring on the judgment so rendered in the State of New York. The principal cause was tried on its merits, and verdict and judgment entered in favor of Griffin for $5,216.98 on December 17, 1897. Execution was issued on said judgment, and returned unsatisfied.

In April, 1898, the attorney for the garnishee defendant made a motion in the cause in the Wayne circuit court to dismiss the garnishee proceedings, to quash the writ of garnishment, and discharge the garnishee defendant for the reasons (1) that the court had no jurisdiction to issue the writ of garnishment, and had no jurisdiction over the garnishee defendant; (2) that a former suit is pending in the county of Lapeer. This motion was denied by respondent. Mandamus is now asked to compel the respondent to set aside said order, and enter an order quashing said writ of garnishment. An order to show cause having been made in this court, the respondent has made his return thereto, as follows: That the suit was commenced by summons; that the declaration was upon a New York judgment; that this declaration was after-wards amended by adding the common counts in assumpsit.-

It is the claim of counsel for the garnishee defendant that the statute does not authorize the issuing out of a writ of garnishment in the present case, as the action does not arise upon contract, but is upon a foreign judgment. Act No. 73, Pub. Acts 1889 (3 How. Stat. § 8058), provides that—

“In all personal actions arising upon contract, express or implied, brought in the several courts or municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons, or attachment, and in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned, or upon any transcript of a judgment filed in said courts, if the plaintiff, his agent or attorney, shall file with the clerk of said circuit court * * * an affidavit, * * * a writ of garnishment shall be issued. * * * ”

But counsel for the garnishee contends that this clause refers solely to justices’ judgments, and not to foreign judgments. Whether this statute must be so construed we need not now determine, as we are of the opinion that an action brought upon a foreign judgment is an action upon contract, within the meaning of this statute. It is said by Story, in his work on Contracts (section 2), that contracts are divided into three classes:

“1. Contracts of record, such as judgments, recognizances, and statutes staple.
“2. Specialties, which are contracts under seal, such as deeds and bonds.
“ 3. Simple contracts, or contracts by parol.”

We are aware that in several cases it has been held, under the peculiar facts of the case, that the word “contract ” does not include a judgment; but it is apparent from the cases that judgments are invariably classified with contracts with reference to remedies upon them. In Meyer v. Brooks, 29 Or. 203 (54 Am. St. Rep. 790), the question arose under the statute in reference to the remedy by attachment; and it was held that a judgment for money creates a legal obligation on the part of defendant for its payment, and an action on such judgment is one upon a contract, express or implied, within the meaning of the statute authorizing attachment in such actions. This same rule of construction was also laid down in Gutta-Percha & Rubber Manfg. Co. v. City of Houston, 108 N. Y. 276 (2 Am. St. Rep. 412); Childs v. Harris Manfg. Co., 68 Wis. 231; First Nat. Bank v. Van Vooris, 6 S. Dak. 548.

It is next contended that the court had no jurisdiction, because the affidavit for" the writ of garnishment was dated June ’3, 1895. It was made to appear that this was a clerical error; that the affidavit was in fact sworn to on June 3, 1897; and the date of the year was permitted to be amended. The record itself showed that it was a clerical error, and it was properly amended. Emerson v. Steel & Spring Co., 100 Mich. 127.

The point made that there is a former suit pending in the Lapeer circuit court has no force. Nothing could be reached in the hands of the garnishee which had its origin in transactions subsequent to the issuing of the writ of garnishment.

The writ of mandamus must be denied, with costs against relators.

Grant, O. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.


text:
    VILLAGE OF HIGHLAND PARK v. McALPINE.
    1. Municipal Corporations — Statutes—Repeal.
    The general act for the incorporation of villages (Act No. 3, Pub. Acts 1895) provides (chapter 14, § 7) that all general or special laws by virtue of which villages have theretofore been incorporated are thereby repealed. Held, not to repeal a special act authorizing a village previously incorporated to> bond itself for public improvements.
    3. Same — Elections—Notice.
    Section 33, chap. 9, Act No. 3, Pub. Acts 1895, provides Tor the holding of elections to authorize villages to raise money for corporate purposes in excess of the amount provided for under other provisions of the charter, and section 33 directs the time and manner of giving notice of such elections. The general act did not repeal Act No. 353, Local Acts 1893, which authorized a vote in a certain village upon a bonding proposition, without prescribing the notice to be given. The council of such village gave the notice prescribed by section 4, chap. 3, of the general act, for general elections. Held, that the notice was sufficient; that section 33 of the general act had no application; and that, the statute being silent, the council had the right to determine the notice to be given.

      Certiorari to Wayne; Lillibridge, J.
    Submitted June 7, 1898.
    Decided July 18, 1898.

      Mandamus by the village of Highland Park to compel Wilbur W. McAlpine, president, and J. William Brenkert, clerk, of said village, to execute certain municipal bonds. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      Clifton D. Gordon (H. H. Hatch, of counsel), for relator.

      Corliss, Andrus & Leete, for respondents.
   Grant, C. J.

The electors of the relator, acting under the authority of Act No. 352, Local Acts 1893, voted $60,000 for the purpose of raising money to construct public sewers. The respondents, the president and clerk of the village, refused to issue the bonds. The relator thereupon applied to the circuit court of "Wayne county for the writ of mandamus to compel execution. That court granted the writ, and the case is now before us on certiorari. Two questions are presented:

1. "Was the special act of 1893 repealed by the general village act of 1895 ? The relator was incorporated by a special act in 1889 (Act No. 371, Local Acts 1889), which provided that it should in all things, not in said act otherwise provided, be governed, and its powers and duties defined, by Act No. 62, Pub. Acts 1875. Act No. 3, Pub. Acts 1895, provides for the incorporation of villages. Section 7, chap. 14, provides:

“All villages heretofore incorporated under any general or special law of this State are hereby reincorporated under and made subject to the provisions of this act, such reincorporation to take effect on the twenty-fifth day of February, A. D. eighteen hundred ninety-five, and all general or special laws by virtue of which such villages have been incorporated are hereby repealed from and after the said twenty-fifth day of February, A. D. eighteen hundred ninety-five.”

The village authorities took no action under the special act of 1893 till 1897, when, upon the assumption that that act was still in force, the common council, at the general election, submitted the question of the issuance of these bonds.

Section 7, above quoted, does not expressly repeal the special act of 1893. It in express terms confines the repealing clause to general or special laws incorporating villages. The last section of the act of 1895 has no general repealing clause, but expressly repeals certain acts, naming them. Section 22, chap. 9, is as follows:

“Should any greater amount be required in any year for the purchase of grounds for erecting public buildings, or for other necessary corporate purposes, than can be raised by the council under the foregoing provisions of this chapter, such amount may be raised by tax or loan, or partly by tax and partly by loan, if authorized by a two-thirds vote of the electors voting upon the question at an annual or special village election. The amount that may be voted or raised in any year, under the provisions of this section, shall not exceed two per cent, of the assessed valuation of the property in the village, as shown by the last preceding tax roll made therein.”

The act of 1875 controlled the action of the village in raising money, and contained the same limitation as ife found in section 22 of the act of 1895. The assessed valuation of the village was about $1,000,000. The purpose of the act of 1893 was to authorize the village to raise money beyond the 2 per cent, limitation. We need not cite authorities to the rule that repeals by implication are not favored, and that only when two acts are so incompatible that both cannot stand does the latter repeal the former. There is nothing incompatible in the two acts, and nothing in the latter to indicate an intention to repeal the former. Suth. Stat. Const. § 158; End. Interp. Stat. § 233; Regents of University v. Auditor General, 109 Mich. 134.

2. Was the requisite notice given to the electors? It is urged by the respondents that section 23, chap. 9, Act No. 3, Pub. Acts 1895, controls the notices to be given in such cases, and that requires notices to be posted in six of the most public places, at least two weeks before the election at which the vote is to be taken. As already stated, the vote was taken at the general election, and the same notice was given as is required by law for that election. The notice was given under section 4, chap. 3, which reads as follows:

“Notice of the time and place of holding any election, and of the officers to be elected, and the questions to be voted upon, shall, except as herein otherwise provided, be given by the clerk, at least eight days before such election, by posting such notices in three public places in the village, and by publishing a copy thereof in a newspaper in the village, if any is published therein, the same length of time before the election; and in case of a special election, the notice shall set forth the purpose and object of the election as fully as the same are required to he set forth in the resolution appointing such election.”

The notices to be given under section 23 relate exclusively to the provisions of section 22, above quoted. It does not refer to the notice under this special act of 1893. That act does not define what notice shall be given. Where the law is silent as, to the notice, the common council possesses the authority to prescribe the method of notifying the electors. The council gave the notice required for the general election, and it must be held sufficient.

The judgment is'affirmed.

Hooker, Moore, and Long, JJ., concurred. Montgomery, J., took no part in the decision.