author: Ostrander, J.

text:
    HARTWIG v. GRACE HOSPITAL.
    1. Deeds — Covenants—Building Restrictions.
    There is a violation of the restrictive covenant in a deed against the erection of anything but a residence and buildings pertaining thereto by the remodeling of an existing dwelling and using it as a hospital.

    2. Same — Building Restrictions — Presumptions.
    The character of a building restriction in a deed to land held, to raise the presumption that such restriction was intended for the benefit of subsequent purchasers, especially when the quantity of the land affected and its general location are considered.
    3. Same.
    A building restriction in a deed to land, inserted for the benefit of the land retained by the grantor, may be en- „ forced by subsequent purchasers inter se.

    4. Same — Violation of Building Restrictions — Acquiescence— Injunction.
    Long acquiescence in the violation of a building restriction in a deed to land limiting the use of the land to residence purposes by the changing of a residence thereon into a hospital will defeat the right to enjoin such violation when only by the making of expensive changes in the structure could the residence character of the building be restored.
    5. Same — Building Restrictions — “Residence.”
    A home for nurses of a hospital is not a residence within the meaning of a building restriction in a deed to land.
    Appeal from Wayne; Codd, J.
    Submitted June 15, 1917.
    (Docket No. 59.)
    Decided December 27, 1917.
    Bill by William J. Hartwig and others against the Grace Hospital to enjoin the violation of building restrictions. From a decree dismissing the bill, plaintiffs appeal.
    Reversed in part.

      Corliss, Leete & Moody, for plaintiffs.

      Angelí, Bodrrum & Turner and C. G. Dyer, for defendant. .
    Prior to September 80, 1897, the heirs of Bela Hubbard owned a block bounded by West Grand boulevard, Vinewood avenue, Lafayette boulevard, and Porter street, and other lands, in the vicinity, in a division of which lands title to the southerly 400 feet of the block was on the day aforesaid vested in Henry G. Hubbard, evidenced by a deed dated on that day, made by Collins B. Hubbard and others as grantors, and recorded. The deed contained the following:
    “Provided, however, and as a part of the consideration hereof, its conveyance is made subject to the following conditions, to wit: Up to and until the 1st day of January, 1925, no building other than a residence and buildings pertaining thereto shall be erected upon said premises. No bay window, approach, or other structure to be erected or placed within '30 feet of the boulevard and Vinewood avenue. Up to the date last aforesaid no residence building shall be built or placed on said premises, costing less than $2,500 fronting on the boulevard, or less than $2,000 if fronting on Vine-wood avenue. Upon any breach of the foregoing conditions, or any part thereof, the title hereby conveyed of the property upon which said breach is. made shall revert to and vest in the parties of the first part, their heirs and assigns, forever, and it shall be lawful for the first party, their heirs and assigns, to re-enter upon said premises, and the party of the second part, his heirs and assigns, to remove and put out.”
    After the decease of Henry G. Hubbard, his heirs conveyed the land aforesaid to Hubbard Land Company, a corporation created to sell the property, which sold it on land contract to Frank A. Reed, who in May, 1906, subdivided it, made a plat, as shown by the annexed drawing, and recorded it. No evidence of restrictions is found in the plat.

    All deeds of the lots in this plat were, made by the Hubbard Land Company as grantor. Lot 1 was deeded March 22,1906, to Jessie Kennedy, with no restriction in the deed. Lot 4 was deeded June 7, 1906, to Angus H. Cameron; the deed containing the condition following:
    “(1) No building other than one single tenement dwelling house shall be erected upon said premises, and no bay window, porch, or other structure shall be erected or placed within 30 feet of the boulevard.
    “ (2) No single tenement dwelling house shall be built or placed on said premises costing less than $3,000.
    “(3) No fences or buildings, except the one single tenement dwelling house described, shall be erected on the above-described premises while the main entrance of the house on lot 2 of the above subdivision faces the south as it now does.

      “Upon breach of the foregoing conditions, or any part thereof, the title hereto conveyed to any person or persons of the above described premises * * * shall revert to and vest in the party of the first part.”
    Lot 5 was conveyed to William R. Kales March 22, 1906; the deed containing conditions 1 and 2 as above, except that after the word “dwelling house” there is inserted, “and buildings appertaining thereto.” Lots 6 and 7 were deeded to John A. Mercier and wife March 22, 1906, the deed having the same conditions as the deed to Kales, except that the minimum cost of a dwelling house is not inserted. Lots 8 and 9 were conveyed to Etta E. Reed January 3, 1908, the deed containing conditions found in Kales’ deed, except in paragraph 2 the minimum cost of house is fixed at $2,000. Lot 10 was conveyed to Jacob Seidel and wife August 10, 1908, with the conditions :
    “(1) No building other than one single tenement dwelling house and buildings appertaining thereto shall be erected upon said premises, and no bay window, porch, or other structure shall be placed within 30 feet of Lafayette or Vinewood avenue.
    “(2) No single tenement dwelling house shall be built or placed upon said premises costing less than $2,000.”
    Lot 11 and south 20 feet of lot 12 were conveyed to James S. Park May 6, 1907, the conditions in the deed being:
    “(1) No building other than one single tenement dwelling house and buildings appertaining thereto shall be erected upon said premises, and no bay window, porch, or other structure shall be erected or placed within 30 feet of Vinewood avenue.
    “(2) No single tenement dwelling house shall be erected or placed on said premises costing less than $2,000.”
    South 20 feet of lot 13 and north 15 feet of lot 12 went to James A. Ballard and wife March 29, 1906, upon condition:

      “Provided, however, that said premises are to be used, for residence purposes only, and no house costing less than $2,000 shall be erected thereon, and no buildings shall be erected nearer than 30 feet to the easterly line of Vinewood avenue.”
    Edward L. Holmes and wife, March 29, 1906, acquired the north 15 feet of lot 13 and south 20 feet of lot 14; condition being:
    “Said premises are to be used for residence purposes only. No house costing less than $2,000 shall be erected thereon, nor be erected within 30 feet of the easterly line of Vinewood avenue.”
    Lot 15 and north 15 feet of lot 14 was deeded to William J. Hartwig December 9, 1907; the deed containing no restrictions or conditions. Frank W. Snyder and wife, March 22, 1906, acquired lot 16 upon condition:
    “No building other than one single tenement dwelling house and buildings appertaining thereto shall be erected upon said premises, and no bay window, porch, or other structure shall be erected or placed within 30 feet of Vinewood avenue. No single tenement dwelling house shall be built or placed on said premises costing less than $2,000.”
    And on October 2, 1908, lot 17 was conveyed to Goodenow and Girr, without condition, and lot 18, June 7, 1906, to August C. Schultz and wife, the deed containing same condition as in the deed to Snyder. Some of the grantees in these deeds conveyed the land by deeds containing no conditions. Kales, Mercier, Seidel, and Holmes all of them conveyed by deed containing no condition.
    Lot 2 was deeded by the Hubbard Land Company to Joseph Boyer, and lot 3 to Lafayette D. Vorce and wife; the deeds containing substantially the condition in the deed to Henry G. Hubbard. These lots were acquired by Henry M. Leland in 1911 from Boyer and Vorce, respectively, and he, by deed of gift, transferred the property to Grace Hospital July-7, 1913. Boyer’s deed to Leland and Leland’s to the defendant provide that the land shall be subject to conditions set forth in the deeds to them, but waive the same so far as they have power so to do. The family residence of Bela Hubbard stands on what is now lot 2, and was erected before any restrictions as to use were attempted.
    Lot 3 is, and has been, vacant unoccupied property. Mr. Reed, who contracted to purchase all of the land, who platted it, proposed to establish in the residence on lot 2 a school for stammerers. Public notice of this purpose was given, a sign was placed on the building, and about June 1, 1906, a substantial addition to the building was begun. He proposed to erect on lot 3 a dormitory to be used in connection with the school. Mr. Reed died in October, 1906. The building was never used for a school, and stood vacant until the month of August, 1909, when some one equipped it for a Swedish massage institute, and it was opened as such November 15, 1909. The addition to the building begun by Reed was completed. During the period from November 15, 1909, to December 25, 1910, the place was operated as a cure, containing as many as 27 patients at one time; some patients remaining as long as three months. Then, and until October 1,1913, a rooming house was conducted there — for invalids. After October 1, 1913, various changes were made, and the hospital was formally opened January 1, 1914. Early in 1914 work was begun upon an addition to the building, to be used as a surgical room, which was completed in November of that year. The building of a nurses’ home on lot 3 was projected, but not begun. In March, 1916, a written protest was made by owners of adjoining property, received, and referred to the defendant’s board of trustees. Defendant expended about $5,600 for alterations of the building. It proposes to erect on some portion of the premises, lot 2 or lot 3, a nurses’ home to accommodate 20 to 22 nurses, to be used only for a home.
    On the 16 lots, other than 2 and 3, there have been erected seven single residences and five designed for use of more than one family. Of the five, two are upon lots deeded without condition, and three upon lots restricted to a single tenement dwelling.
    Eighteen persons, who are described as owning lots 1, 4, 5, 6, 7, 9, 10, 11, 12, 13, 16, 17 and 18 of the subdivision, join as plaintiffs in a bill of complaint, which was filed June 12, 1916, in which they charge that the defendant has begun to use the residence on lot 2 for hospital purposes, and is maintaining there a general hospital for the cáre of sick and injured people, with surgical department and operating room, and is proposing to extend the said hospital so maintained on said premises by the alteration and “removal of the old building and by the erection of a large new hospital building, and that it is further proposed to extend said building upon the vacant lot 3, and intends—
    “to commence the construction of a nurse home, so-called, upon a portion of said premises, all of which said present use and such proposed extension are contrary to the restrictions upon said premises as herein-before set forth.”
    It is prayed that preliminary injunctions, to be later made permanent, may issue to restrain defendant from erecting on lot 3 any building which does not correspond with the conditions referred to, and from carrying on and maintaining on said lot a nurses’ home or hospital, and that as to lot 2 it be restrained from using it for any other than residence purposes, and from maintaining or conducting and carrying on any hospital, dispensary, or surgical department on said lot.
    Defendant answered, there has been a hearing, and a decree has been entered dismissing the bill. In an opinion delivered by the learned trial judge, he says, among other things :
    “As far as I can find from the testimony, the purchase of all the other property by plaintiffs or others in this subdivision was made after the property on lot 2 had been diverted from residence to business purposes. Under all these circumstances, I cannot believe that the plaintiffs can insist on the preservation of a restriction that has never been operative upon this property. The only other question as to lot 2 involves the use of the property for hospital purposes and a claimed nuisance arising therefrom. I cannot find from the testimony that such exists. The use of the property is hardly different than it has been for some years, and to hold in accordance with plaintiffs' claim would be to declare a hospital a nuisance per se. That I am not prepared to do. A different question is involved in the consideration of the erection of the proposed nurses’ home on lot 3. This lot has never been diverted to business use, and there is a restriction upon it. I cannot conceive, nor does the testimony disclose, that any serious detriment will come to any adjacent property by reason of this building; The question, however, resolves itself into the plain proposition: Would this proposed building be a violation of the restriction at present existing upon this lot? That the building is to be used for residence purposes is clearly shown and can hardly be in dispute. Does it comply with the term "single dwelling house;’ or, if not, has the strict construction of this part of the restriction been abandoned in this subdivision ? The undisputed testimony shows that there has been erected without protest upon this subdivision buildings that do not strictly comply with the term "single dwelling house,’ and that, too, by some of the plaintiffs in this case. There is no doubt that the use of the lot must be confined solely to dwelling purposes, but I cannot find that the building, the nurses’ home as contemplated, is any other than that purpose. I believe this case is greatly controlled by James v. Irvine, 141 Mich. 376 (104 N. W. 631).”
    Upon the hearing in this court, on appeal, it was distinctly stated that no relief was sought by plaintiffs upon the theory that defendant was maintaining a nuisance on lot 2 — upon the theory that the hospital was, in and of itself, a nuisance in a residence district.

       For authorities discussing the question as to whether a multiple residence structure is a violation of restrictive covenant, see note in 45 L. R. A. (N. S.) 726.

   Ostrander, J.

(after stating the facts). It requires no argument to prove that all of the property embraced in the Reed plat is in its use restricted to residence purposes. None is required, either, to prove that the use of the Bela Hubbard home, with or without additions thereto, for a hospital, violates the restriction, and is a breach of the condition. The Bela Hubbard house was a single residence when the partition of lands was made. No objection is perceived to including it in the general plan evidenced by the restrictive covenant since the partition. No owner of the title thereto has devoted it to any. other use until defendant acquired it, and in fact any other use of it has been, until defendant bought it, temporary. Both its form and its use have been changed in violation of the restriction. It is equally clear, I think, that it will be a further violation of the restriction if the nurses’ home is built on either lot 2 or lot 3.

The real question in this case is not whether a plain restriction has been and is proposed to be violated by defendant, the deed by which it acquired title and its use of the premises answering any suggestion to the contrary, but whether it can be brought to account therefor by adjoining proprietors, at some of whom the defendant points an accusing finger, asserting that “You did it first,” or have otherwise lost the right to complain.

Defendant says the restrictions in the deed given by the heirs of Bela Hubbard to Henry G. Hubbard cannot be enforced by plaintiffs, because, when a restrictive covenant is imposed for the benefit of the land still retained by the grantor, the restriction is not enforceable by subsequent purchasers inter se. As applied to this case, this proposition rests upon the assertion that there is no evidence that the restriction in the deed to Henry G. Hubbard was inserted for the purpose of protecting or benefiting subsequent purchasers of the land. The evidence that the restriction was intended for the benefit of purchasers of the land is patent. The very character of the restriction is evidence of the fact, especially when the quantity of the land affected and its general location are considered. The presumption is that a restricted residence district was intended. Moreover, the contention is ruled against defendant by Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726); Erichsen v. Tapert, 172 Mich. 457 (138 N. W. 330); Zoller v. Goldberg, 183 Mich. 197 (149 N. W. 989).

It is next contended that restrictions in the deeds given by the Hubbard Land Company to purchasers of lots cannot be enforced by plaintiffs in this action. The argument is that (a) the evidence does not show any general plan of improvement maintained from its inception and understood and acted upon by all in interest; (b) the plaintiffs did not, in purchasing the property, rely upon the restrictions; (c) the restrictions were inserted for the benefit of lot 2, which was to be retained by Reed, who platted and sold the property. The cases of Allen v. City of Detroit, 167 Mich. 464 (133 N. W. 317, 36 L. R. A. [N. S.] 890), and Summers v. Beeler, 48 L. R. A. 54 (90 Md. 474, 45 Atl. 19, 78 Am. St. Rep. 446), are cited. It is quite reasonable to say that the deeds given by the Hubbard Land Company recognized the restrictions in the earlier deed, and that they were intended for the benefit of any purchaser of the land. If the earlier general restriction thus recognized is enforced, it is not important in this case to spend time in debating whether those laid by the Hubbard Land Company are precisely enforceable. As has been pointed out, there is no occasion here to rely upon an advertised general plan and scheme of selling lots in order to find the intention to make a restricted district.

It is further contended, and is the contention of merit, that plaintiffs have acquiesced in a use of lot 2 for such a period of time that equity will not now grant them relief by injunction. In this connection, reliance is placed upon the fact that Reed expended money and made some changes in the residence building; Malmberg, in fitting it for a Swedish massage institute, expended a considerable sum of money; and defendant has at some expense made additional changes.

The case is not free from doubt; and while, perhaps, a doubt ought never to be resolved in favor of a covenantee who buys with purpose to breach his plain covenant, it remains that every one who, since the platting, has been lawfully in possession of lot 2, has used it visibly for other than residence purposes. The additions made to the building denote — advertise ■ — the fact that a residence is not and will not be maintained there. Owners, of adjoining property, and' some of the plaintiffs who purchased from Reed, have been advised by the record and by their deeds of the restrictions sought now to be enforced. It is to be inferred that the building on lot 2 has physically lost its character as a residence, and only by expensive changes can the residence character thereof be restored. There is fair ground for refusing to plaintiffs the injunction so tardily asked for, and it will be refused as interfering with the use by defendant of lot 2.

It is held, and has been already stated, that the proposed nurses’ home will not be a residence within the meaning of the condition, and plaintiffs may have the writ of injunction to restrain the erection of the building on lot 3.

Neither party will recover costs of this, appeal as against the other, but one-half the cost of preparing and printing the record will be borne by plaintiffs and one-half by defendant.

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


source: Caselaw Access Project

author: Brooke, JV

license: Public Domain

text:
    KRUCE v. LAKESIDE BISCUIT CO.
    Actions — Multiplicity op Suits.
    Where several claims are involved or due and payable under one and the same contract at the time of bringing suit, such claims must be sued on in one action, in order to avoid multiplicity of suits.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted October 3, 1917.
    (Docket No. 7.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by Edwin J. Kruce against the Lakeside Biscuit Company for goods sold and delivered. From an order overruling a plea in abatement,, defendant appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Angell, Bodman & Turner, and C. G. Dyer, for appellant.

      Sidney S. Cole (Henry C. L. Forler, of counsel), for appellee.

      On March. 31, 1914, plaintiff entered into a lease and agreement with defendant. By section 10 of said instrument it was agreed:
    “The lessee (the Lakeside Biscuit Company) hereby agrees to purchase from the lessor on the execution of this lease all manufactured and unmanufactured goods now located on said premises and all cans and crates on said premises and in the possession of customers, as shown on the books of the lessor, in the manner following: Lessee shall pay for all manufactured goods the inventory price thereof, less 25 per cent., and for all unmanufactured goods the price shown by invoices, and for cans and crates their cost as shown by invoices.”
    Section 14 of said instrument provides:
    “Cans and crates belonging to the lessor, as the same are returned by customers to the lessee, shall be credited upon the books of the lessee at their cost, and shall be paid for by the lessee to the lessor on or before the 5th day of each month for all cans and crates returned during the preceding month.”
    The agreement became effective April 1,1914. During several months following cans and crates which were in the possession of former customers of the plaintiff were returned to the defendant, and on July 14, 1914, $1,000 was paid by defendant to plaintiff to apply on the amount then due for cans and crates so returned. A dispute having arisen between the parties as to the number of cans and crates returned and as to the amount paid therefor, no further payments were made. On March 16, 1915, eight months after the last payment, plaintiff instituted 11 separate suits in the justice’s court for the city of Detroit, and filed bills of particulars therein in an amount totaling $5,-260.20. These suits were numbered in justice’s court from 14506-14516, inclusive. The bills of particulars so filed did not indicate the dates on which the cans and crates were returned, and the various items were divided between the several suits with no reference to the months in which the returns had been made. The defendant objected to the splitting up of the claim into 11 different suits in order to confer jurisdiction on the justice’s court, and brought the matter to the attention of the court by a plea in abatement, pleading the pendency of suit No. 14506 in abatement of the other ten suits. Upon the argument of the plea the justice ruled that the cans and crates returned during one month should be included in one suit, but that plaintiff could bring a separate suit for the cans and crates returned in each of the several months, granting the right to plaintiff to file new bills of particulars upon that basis. Plaintiff then dismissed all but five of the suits which he had started, and in those five filed new bills, of particulars as follows:
    “No. 14516. A statement of the cans and crates returned during April, amounting to $739.60, against. which he credited a sufficient amount of the $1,000 paid in July to balance the claim and dismissed that suit.
    “No.' 14515. A statement of cans and crates returned. during May, amounting to $757.70, against which he credited the balance of the $1,000, $260.40, paid in July, leaving a balance due of $497.20.
    “No. 14514. A statement of cans and crates returned during the month of June, amounting to $250.20.
    “No. 14513. A statement of cans and crates returned during the month of July, amounting to $24. ■
    “No. 14512. A statement of cans and crates returned during the month of August, amounting to $16.”
    Upon the filing of the amended bills of particulars, defendant renewed its plea in abatement, alleging the pendency of suit No. 14512 in abatement of the other four suits. This plea was overruled on July 29, 1915, and judgment was rendered in case No. 14513 in favor of the plaintiff and against the defendant in the sum of $24 and $1.75 costs. Defendant thereupon removed that suit by certiorari to the circuit court for the county of Wayne upon the ground that the justice had erred: (a) in overruling the defendant’s motion to dismiss for want of jurisdiction of the court; (b) in overruling the defendant’s plea in abatement; (e) in rendering judgment in favor of the plaintiff and against the defendant in the sum of $24 damages and $1.75 costs.
    At circuit the judgment of the justice’s court was affirmed. The case is now in this court upon writ of error.
   Brooke, JV

(after stating' the facts). It may be stated at the outset that the authorities upon the question presented are not entirely harmonious. A review of all of the law upon the question leads the writer in volume 1, Corpus Juris, p. 1112, § 287, to enunciate the rule as follows:

“The decided weight of authority is to the effect that, if an action is not brought until more than one breach of the same contract, or until more than one claim or installment is due thereunder, all such breaches or claims or installments constitute but one cause of action, and must be included in.one action, the theory being that, while the different breaches or installments give rise to separate causes of action as they occur or become due, yet all which occur or become due before action is brought are merged or consolidated into a single cause of action; and in some cases it is stated broadly that this rule applies to all claims or demands arising out of the same contract, although based upon separate and distinct covenants or stipulations thereof. There has, however, been some conflict of authority in regard to this rule, even in the decisions of the same jurisdiction, and there are accordingly decisions to the effect that separate demands, although they arise out of the same contract or transaction and are due at the time of the first action, need not be joined. Causes of action arising out of entirely separate and distinct contracts need not be joined, although they are of such a character that a joinder would be permissible, and. causes of action arising after an action is instituted need not be added by amendment.”

The cases cited support the text.

The question was before this court in the early case of Dutton v. Shaw, 35 Mich. 431. In that case Shaw had sold and delivered to Dutton several lots of staves, all at a price fixed by a contract, whereby Shaw was to deliver and Dutton to accept all the staves to be got out by Shaw in 1863. After all the staves had been delivered Shaw sued Dutton upon the contract, and the case went to judgment. During the trial Shaw failed to prove one item of 2,546 staves, and that item he withdrew. In the case considered by this court Shaw sued Dutton to recover the item thus withdrawn. This court said:

“This item, being within the former declaration, and being a part of the articles furnished under a single contract entirely executed, cannot, on any known principle, be distinguished from any other case in which a party has failed for lack of proof. It was not a distinct cause of action, and the former judgment was a final determination of the damages to which Shaw was entitled under the contract. The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities. It was intended to suppress serious grievances.”

The question was again considered in the case of Stickel v. Steel, 41 Mich. 350 (1 N. W. 1046). There Stickel bought of Steel on the same day two bills of goods, the first bill with a credit of four months from September 15th following, and the second with a credit of four months from October 1st following. The court held that the two bills constituted distinct demands, and warranted the bringing of two separate actions.

In the case of Milroy v. Mining Co., 43 Mich. 231 (5 N. W. 287), plaintiff and his minor son had worked for the defendant a period of six months, and had earned the sum of $676. Of this claim he had assigned to one Bigelow the sum of $100, which sum had been placed in judgment by Bigelow. The judgment not having been satisfied, Milroy sued in his own name for the entire sum of $676. The court held that the Bigelow judgment was a bar to the subsequent action, saying:

“There can be no question, either upon reason or authority, that a claim like the present cannot be split and cut up into separate causes of action to suit the convenience or whim of the plaintiff. If so, he could assign, after working six months, a month’s wages to an individual or firm, and so of each and every month, and thus have six separate suits commenced, or he might commence six separate actions in his own name. The assignment, and the fact that the suit was commenced in the assignor’s name for the use and benefit of the assignees, can in law make no difference. * * *
“To permit separate causes under such circumstances would be to subject the debtor to costs and expenses far in excess of the principal debt, besides the annoyance and injury which so many suits would necessarily be to him. This the law will not tolerate or permit. It gives the creditor a remedy against his debtor to enable him to collect his demand and the whole thereof, and it at the same time protects the debtor against needless and vexatious causes of action.”

In Reid, Murdoch & Co. v. Ferris, 112 Mich. 693 (71 N. W. 484, 67 Am. St. Rep. 437), plaintiff had sold to defendant various bills of goods at different times and on different terms of credit. Some of the goods were replevined by plaintiff from defendant, and an action in trover was brought for the remainder. It was held that, where fraudulent purchases are made on different occasions, each constitutes a distinct and separate fraud for which the seller is entitled to maintain a separate action.

In the case of Phelps v. Abbott, 116 Mich. 624 (74 N. W. 1010), it was held that a creditor might bring separate suits upon claims embraced in an open account subject to the penalty of loss of costs in subsequent suits where the whole of the claim upon such account is not included in one action, citing Stickel v. Steel, supra, and Reid, Murdoch & Co. v. Ferris, supra. See, also, Jensen v. Gamble, 191 Mich. 233 (157 N. W. 440).

We are of opinion that the facts in the case at bar bring it within the principle of the decisions in Dutton v. Shaw, supra, and Milroy v. Mining Co., supra, and that the cases of Stickel v. Steel, supra, and Phelps v. Abbott, supra, are distinguishable. In the case at bar the 11 suits were started as the result of successive breaches by the defendant of the same provision of a single contract. The alleged indebtedness of the defendant accrued from time to time under and by virtue of a single contract, and the entire demand was due at the time the 11 suits were brought. We conclude that, where several claims are involved, or due and payable under one and the same contract at the time of bringing suit, such claims must be brought in one action in order that the defendant may not be harassed by a multiplicity of suits.

The judgment is reversed, with costs, and a new trial granted.

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


author: Brooke, J.

text:
      In re CANTERBURY’S ESTATE. HANSEN v. MANNING.
    Wills — Execution—Signature by Mark — Validity.
    A will executed by a testator wbo can write by affixing his mark, his signature having been affixed by another, at his direction, is as validly executed as if he had himself written his signature with his own hand.

    Error to Wayne; Kendrick, J., presiding.
    Submitted October 15, 1917.
    (Docket No. 137.)
    Decided December 27, 1917.
    Sarah Hansen presented for probate the last will of Catherine Canterbury, deceased. The will was allowed in the probate court, and Hattie Manning appealed to the circuit «court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Willis O. Clarke, for appellant.

      C. Henri Lewis, Jr., for appellee.

       As to whether ability to write invalidates signature made by mark or by aid of other person guiding the pen, see note in 7 L. R. A. (N. S.) 1193.
      On the subject of signature by mark generally, see note in 22 L. R. A. 370.

   Brooke, J.

The only question raised upon this record is as to the regularity of the execution of the will of the decedent, Catherine Canterbury. The will was drawn by one George E. Smedley, who was one of the subscribing witnesses, and who, with reference to its execution by the testatrix, testified as follows:

“I wrote ‘Catherine Canterbury, her mark.’ She put her mark there. I said to her, ‘Will you write your name?’ Then she said, T will make my mark.’ Catherine Canterbury was about 60 years old when she made the will. She was in good mental condition, was able to use her arms and limbs and walk around. She could see out of one eye.”

The other subscribing witness testified that she executed the will as a witness, and gave further evidence to the effect that the testatrix was unable to write. Sarah Hansen, the beneficiary under the will, testified :

“I was in the room when the deceased signed her will. I saw her do it. She said she could not write. She says, ‘You know I do not write.’ ”

On behalf of the contestant, the testimony of three witnesses was introduced tending to show that the testatrix was able to write.

With reference to the manner of execution, the court charged the jury as follows:

“The facts in this case tend to show that the deceased was somewhat enfeebled, and that she was suffering from defective eyesight, and that she, soon after the making of this will, went to a hospital and there passed away. The signature of the will, if the party desired so to make it, could be by a cross, whether they write or not; but the fact that one does make it with a cross, or what is known as a ‘mark,’ instead of signing their name, is an element and a condition to be taken into consideration as to whether she did in fact sign the will with a cross. That would be one element to consider as to whether she did do so, if she could write; however, that in no way would invalidate the instrument, providing she did in fact ask that it be done by making her cross and did place her mark there, as has been explained.”

The will was sustained.

On behalf of contestant it is claimed broadly:

“If a man can write his name, his mark is not his signature. Any other rule would open the door too wide for fraud.”

Section 11821, 3 Comp. Laws 1915, provides:

“No will made within this State * * * shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction,” etc.

In McGinnis v. Kempsey, 27 Mich. 375, this court said:

“It is sufficient if it be by a cross or other mark by the testator as and for his signature.”

In Just v. Township of Wise, 42 Mich. 573 (4 N. W. 298), it was said:

“Where' one who cannot write directs another person to sign for him, and the latter signs in his presence, the signature is binding whether the former does or does not attach his mark.”

In the absence of any testimony to the contrary, we are oN opinion that the evidence offered on behalf of the proponent should be construed as an express direction from the testatrix to Smedley, the scrivener, to sign her name. We have no hesitation in reaching the conclusion that a will executed by a testator who can write by affixing his mark, his signature having been written by another at his direction, is as validly executed as if he himself had written his signature with his own hand.

The judgment is affirmed.

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


text:
    MATTHEWS v. LAMBERTON.
    1. Appeal and Error — Admission op Testimony — Harmless Error.
    In an action for damages for assault and battery, a question put to a physician as to whether in the treatment which he was required to give plaintiff it was necessary that he make any investigation as to whether or not the patient had a hernia and its answer was harmless error where the objectionable part of the question, as to whether it was necessary to make such investigation, was not answered.
    2. Evidence — Admissibility—Damages.
    In an action for damages for assault and battery, evidence of the conduct of plaintiff in attempting to do work after the assault is admissible to show the extent, nature and probable effects of the injury.
    3. Same — Admissibility—Opinions—Harmless Error.
    In an action for damages for assault and battery, the affirm- ' ative answer of plaintiff’s wife as to whether plaintiff after the injury had any pain about his head was harmless error, where the ruling was made by the court that the witness could state what she noticed, and she subsequently testified that while in bed he often moaned and groaned and rolled and tossed from side to side.
    4. Witnesses — Examination — Correcting Mistakes in Testimony — Question por Jury — Harmless Error.
    In an action for damages for assault and battery, it was harmless error to permit plaintiff’s counsel to take an answer of plaintiff upon redirect examination as to whether he understood a question put to him by defendant’s counsel and to correct his answer, where the court stated that it was for the jury to say whether he in fact misapprehended the question.
    5. Same — Expert Testimony — Hypothetical Questions — Appeal • and Error.
    In an action for damages for assault and battery, any error based upon a hypothetical question put to a physician, whose answer was not based upon an opinion and indicated a knowledge of the facts acquired as an attending physisian, cannot be complained' of by defendant, where no objection was made to the withdrawal of such question and plaintiff’s counsel examined the physician as to his actual knowledge of plaintiff’s condition, based upon his personal observation.
    6. Same.
    In an action for damages for assault and battery, it is not error to allow a physician testifying for plaintiff to answer a question as to whether, if plaintiff’s ear was filled with dirt, gravel and blood, as the witness found upon his examination, that would be the natural and most probable way of having germs introduced into the ear, where the answer of the witness was based entirely upon his personal observation and not upon hypothesis.
    7. Same.
    A physician who has examined a patient may, in an action for damages for assault and battery, state whether or not the patient is unable to hear.
    8. Same.
    It is the better practice to reduce a hypothetical question to writing where the facts are confusing or complicated.
    9. Same.
    There is no reversible error in the allowance of a hypothetical question not reduced to writing, where the facts are .complicated and confusing, where the jury is instructed that before they can consider a hypothetical question and its answer they must find that the assumed facts have been established by a preponderance of the evidence.
    10. Same — Instructions.
    It is harmless error to allow a hypothetical question not reduced to writing which assumes facts set forth in a prior question, where the jury was instructed after the giving of the prior question that before they could consider a hypothetical question and its answer they must find that the assumed facts have been established by a preponderance of the evidence.
    11. New Trial — Misconduct of Spectators.
    It was not ground for a new trial, in an action for damages for assault and battery, that the wife and daughter of plaintiff, witnesses in the case, wept when plaintiff’s counsel, in his closing argument, referred to the fact that plaintiff would permanently be affected in his hearing.

      12. Damages — Assault and Battery — Excessive Verdict.
    In an action for assault and battery, a verdict for $2,500 was not excessive where plaintiff lost some teeth as the result of the assault, was in bed for a week, and later went to a hospital and underwent an operation for hernia, suffered the entire loss of hearing in one ear and 50 per cent, loss in the other, and expended the sum of $337 for medical and hospital fees..
    Error to Cass; Des Voignes, J.
    Submitted October 24, 1917.
    (Docket No. 119.)
    Decided December 27, 1917.
    Case by William H. Matthews against Frank B. Lamberton for an assault and battery. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Coolidge & White and Hendryks & Hosier, for appellant.

      Wilbur N. Burns, C. H. Lyle, and Carr & Eby, for appellee.
    Plaintiff brought suit against defendant for damages alleged to have resulted from assault and battery committed upon him by defendant. Upon the first trial plaintiff secured a judgment for $1,000 against the defendant, which was reversed in this court, upon the ground that certain testimony had been erroneously admitted, and that the court had given erroneous instructions to the jury. Upon a new trial plaintiff recovered a judgment in the sum of $2,500 which is now here for review upon writ of error. A brief statement of the facts follows:
    The parties are farmers residing upon neighboring farms. It seems to have been reported to defendant that plaintiff had said that defendant had not paid his hired man, one Fred Timm, whereupon defendant, taking Timm with him, went upon the plaintiff’s farm to a field where plaintiff was plowing, some 30 rods from the highway, and asked plaintiff if he had made the statement. Plaintiff denied making the statement, but said that he had heard it down town at the hotel. An altercation between the two men followed, and finally resulted in a physical encounter, in which plaintiff was thrown down into the furrow, while defendant, who was on top of him, seems to have administered a rather severe beating. As a result of the affray plaintiff lost some teeth. He was confined to his bed for over a week, and later went to a hospital, where he submitted to a radical operation for hernia, which he claims he suffered as a direct result of the assault and battery. As a further result'plaintiff claims to have suffered the entire loss of hearing in one ear, and about 50 per cent, loss in the other. It seems to be undisputed upon the record that he expended for medical and hospital fees the sum of $337. The case was bitterly contested, and was submitted to the jury under a careful charge, to which no exception was taken. A motion for a new trial was made, based upon 18 different grounds, the first 15 upon alleged errors in the admission or exclusion of testimony, the 16th upon the assertion that plaintiff’s wife and daughter were guilty of misconduct during the trial, the 17th upon the ground that the verdict was excessive, and the 18th upon the ground that it was against the great weight of the evidence. This motion was denied.
    In this court counsel for defendant presents his argument under. 17 assignments of error; the first 15 based upon the rulings of the court upon the admission or exclusion of testimony, and the 16th and the 17th upon the refusal of the court to grant a new trial.

       On excessiveness of verdicts in actions for personal injuries other than death, see comprehensive note in L. R. A. 1915F, 30.

   Brooke, J.

(after stating the facts). The first assignment argued by counsel for defendant is the fourth. The following question was asked:

“Q. Doctor, in the treatment which you were required to give to Mr. Matthews on the occasion when you treated him, was it necessary that you make any investigation as to whether or not the patient had a hernia?”

This was objected to as incompetent, irrelevant, and immaterial. After argument the question was allowed, and was answered as follows:

“A. I made such an examination.as far as I thought advisable or necessary; there were no indications that called for any further examination. I have had occasion to treat patients suffering with hernia, and have had occasion to examine them as the hernia was caused or developed or as it was forming. I have examined them in all stages; an-enlarged incomplete hernia might be forming and afterwards become a complete hernia.”

It is asserted by counsel for defendant that this is reversible error under the authority of Maynard v. Vinton, 59 Mich. 154 (26 N. W. 401, 60 Am. Rep. 276). We are unable to agree with this contention, for the very good reason that the objectionable part of the question' was not answered. The physician did not testify whether or not it was necessary for him to make the investigation, but did testify simply as to what examination he made.

Second. It is argued under the 5th, 6th, and 8th assignments that the court erred in permitting testimony of the witnesses who had observed the plaintiff in his attempts at doing work after the fight. The argument is made that:

“If this testimony was proper, then one seeking to recover damages could go about among his friends and acquaintances and affect all sorts of complaints and injuries, and then call in these friends and acquaintances as witnesses to show the character of work that he was able to perform.”

We are of opinion that this testimony was admissible. Foster v. Krause, 187 Mich. 630 (153 N. W. 1066). See, also, 13 Cyc. p. 204, where the rule is stated as follows:

“Evidence of the conduct, general health and physical condition of the plaintiff both before and after the infliction of an injury, or a comparison of one’s health before and after such time, is admissible as tendingJx> prove the extent, nature and probable effects of the injury” — citing cases.

Third. Error is assigned upon the following question addressed to plaintiff’s wife:

“Q. During that time did he have any pain about the head and his—
“A. He did.” .

Objection being interposed, the court said:

“She can state what she noticed.”

After which the witness replied:

“A. Why, when he was in bed, he often moaned and groaned and rolled and tossed from side to side.”

In the light of the ruling of the court and the subsequent testimony of the witnesses, we are of opinion that there was no error.

Fourth. Error is assigned upon the action of the court in permitting counsel for plaintiff upon redirect examination of plaintiff to take an answer to the following question:

“Q. Now counsel asked you if you stood — if he stayed right there, and you replied that he did. Now I ask you if you understood that question, if — and just what Mr. Lamberton did as he raised his hand.”

A colloquy followed, in the course of which the witness said that he did not understand the question put to him by defendant’s counsel. After further objection the court said:

“Yes, but he says he didn’t understand the question; he has a right of course — it is for the jury, it is all before them as to whether he did understand it or not. A man always may be called back to correct anything; if he misapprehends questions, it is for the jury to say whether he did misapprehend or not; it is all before them. You may save an exception.
“A. He crowded right upon me.”

We are unable to discover any reversible error in the foregoing.

Fif th. Under this head the 2d, 3d, 10th, 11th, 12th, 13th, and 14th assignments are argued. They all relate to questions addressed to the expert witnesses Dr. Ullrey and Dr. Carr. Dr. Ullrey was the physician who treated plaintiff immediately after the affray and who had treated him for an incomplete rupture some 15 years prior to the injury complained of in this case. Dr. Carr, a physician making a specialty of eye, ear, nose, and throat, and who made an examination of the plaintiff just prior to the trial, gave testimony touching the condition in which he found him, particularly with reference to his hearing. As before recited, it was the contention of plaintiff that although he had suffered from a partial hernia some 15 years earlier, he had completely recovered from that ailment, and that the hernia for which he underwent a major operation after the affray was caused entirely by the injuries inflicted upon him at that time. On the part of defendant it was claimed, and this claim was supported by some testimony, that plaintiff was suffering from a hernia at the time of the affray.

After stating the various claims of the parties upon this point, the court charged the jury as follows:

“If you find that plaintiff was so suffering at the time of the affray from this hernia and had that hernia, plaintiff cannot recover for any alleged injury of rupture or hernia. If you find from the evidence that there had been a recovery as contended by plaintiff from this injury or threatened injury of hernia before the affray, then plaintiff is entitled to recover on that item. However, it appears from the testimony that plaintiff in January of the present year underwent an operation for this rupture or hernia, and that such operation was successful. Therefore you are not permitted to consider the element of permanent damage or injury by reason of this hernia. And upon the question of damage on this item, no damage can be rendered for causing rupture to the plaintiff, unless you find that such rupture was the direct result of blows or violence inflicted by the defendant upon the body of the plaintiff.”

The» first specific assignment under this head is based upon a hypothetical question propounded to Dr. Ullrey. Dr. Ullrey’s answer to this question indicated a knowledge of the facts acquired as attending physician, and was not based upon opinion, whereupon the court instructed the jury:

“So the hypothetical question will be stricken out, gentlemen, and what the court said in relation to it to you, you will not consider that at all. Counsel may now proceed to examine the witness anew.”

Thereafter the physician was examined as to his actual knowledge of plaintiff’s condition, based upon his personal observation. No objection appears to have been made by defendant’s counsel to the withdrawal of the hypothetical question. He cannot now complain. 1 Thompson on Trials (2d Ed.), § 722.

Error is assigned upon the following question propounded to Dr. Ullrey:

“Well, if his ear was filled with dirt, gravel, and blood, as you found upon your first examination, that would be natural — the most probable way of having germs introduced into the ear, would it not?
“Mr. Hendryx: Wait a minute, now, we object to that question as leading, and as not based — as not a properly hypothetical question, and assumes facts that are not proven, and asks for that which is not within the range of expert testimony.”

The question being answered in the affirmative, Mr. Hendryx said:

“Your honor, I move to strike that out, the question isn’t — and the answer to it — isn’t whether that would be a probable way, but it was the probable way, and for that reason it’s highly objectionable.
“The Court: This is the physician. If this testimony was received upon a hypothetical basis, your objection would be good; but here it is a physician who testifies to seeing the condition, and administering the first treatment, and I will let it stand for what it may be worth to the jury in arriving at a determination.”

A careful reading of the entire testimony given by this physician indicates that it was based entirely upon his personal observation and knowledge, and not upon hypothesis. The ruling was correct.

It is next urged that error was committed in permitting the following question to be answered by Dr. Garr, the expert who had made an examination of the plaintiff, particularly with reference to his hearing:

“State, doctor, from the condition which you found upon your examination, whether or not the plaintiff’s hearing is or is not destroyed in his right ear.”

To which the physician replied:

. “Why, I know that the hearing is destroyed in the right ear.”

Counsel criticize this by saying:

“How did he know it? He never told the jury why. Neither the question or his answer gives any reason. The reason, if any, was lodged in his own breast. How was defendant to meet testimony of this character? No facts were stated upon which the opinion was based, and he was powerless to contradict.”

A very extended cross-examination of this physician was entered upon in the course of which it was brought out that the plaintiff’s condition of health as to his deafness might be due to causes other than the injury. We presume that after examination a competent physician may be able to determine whether a patient is or is not deaf. We can see no impropriety in the course of the examination followed herein.

The next assignment of error is predicated upon the allowance of a hypothetical question asked Dr. Carr. The question, with various amendments, objections, and colloquy, covers some four pages of the record. After “stating the facts it proceeds:

“Assuming all these facts to be true, state, doctor, whether in your opinion the injuries to the ear, the head and abdomen might have been the natural and approximate results of the fight.
“A. It is my opinion that the present condition would be the natural results.”

While the better practice requires (Mayo v. Wright, 63 Mich. 32 [29 N. W. 832]; Jones v. Village of Portland, 88 Mich. 613 [50 N. W. 731, 16 L. R. A. 437]) the reducing of a hypothetical question to writing, where the facts are confusing or complicated, we are unable to find reversible error in its allowance in this case. Immediately after the question was answered the court instructed the jury as follows:

“Now, gentlemen, lest I forget it, and it would be harmless if I instruct you at this time. Hypothetical questions are permitted under the law to be asked in certain cases. But before you can consider a hypothetical question in any manner in any case, you must find as a matter of fact that the conditions as stated in the hypothetical question have been proven by a preponderance of the evidence, to wit: All of the things that enter into that question which are assumed. Before you can consider the reply or the answer of a witness to a hypothetical question, you must have found that all of the elements that enter into that question have been proved to your satisfaction by a preponderance of the evidence.”

Objection is made to another hypothetical question asked this witness immediately following that last considered. The objection is made that:

“In the question here objected to counsel does not set forth all of the assumed facts relied upon. To supply this deficiency counsel assumes all the facts which were stated in a former hypothetical question.”

In the light of the caution delivered by the court upon this point above quoted, we think there was no reversible error. The next two assignments discussed are of like character, and require no further discussion. With reference to all these assignments, it may be said generally that the testimony of Dr. Carr was merely cumulative in character. Every fact testified to by him was supported by other testimony sufficient if believed by the jury to warrant their verdict.

Sixth. It is asserted that the court should have granted a new trial because of the alleged misconduct of plaintiff’s wife and daughter in the course of the trial. Touching this allegation, the court in denying a motion for a new trial said:

“During .the progress of the trial the wife and daughter of plaintiff occupied a seat back of counsel a great portion of the time. They were witnesses in the case. The court did not observe any unseemly conduct on their part, neither did defendant’s counsel call the court’s attention or make any objection at the time. The court did notice that during the closing argument by plaintiff’s counsel when he referred to the fact that plaintiff would always be affected in his hearing that there were tears in the eyes of both wife and daughter, and they placed their handkerchiefs to their eyes, but there was no sobbing or crying aloud, or any unusual emotion noticeable to the court, and it is my opinion that it was not responsible in any manner for the verdict.”

The question here raised is one which addresses itself particularly to the sound discretion of the trial judge. We have read the affidavits in support of the motion upon this point, and are not disposed to disagree with his conclusion.

Seventh. While the verdict was substantial, and, considering the situation of the parties, might perhaps be considered large, the learned circuit judge refused to disturb it on the ground that it was excessive. Upon this record we are of opinion that his disposition of this question should not be questioned. On the whole we are satisfied that throughout the rather extended trial and under a careful charge, the rights of the defendant were fully protected. A different result would not likely be reached on another trial.

The judgment is affirmed.

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


author: BROOKE, J.

text:
    VEZINA v. SHERMER.
    1. Appeal and Error — Motion for New Trial — Scope of Review.
    Where no request was made to the trial court to file its reasons for denying a motion for a new trial by defendant, and no reasons were filed by it, and no exception was taken to the denial of the motion, the propriety of denying the motion is not available on appeal.
    2. Damages — Personal Injuries — Pleading—Sufficiency.
    In a personal injury action, a declaration stating that by “means of the premises the said plaintiff was forced and obliged and did lay out and spend a large amount of money, to wit, ?200, in and about endeavoring to be cured of said sickness, lameness, nervousness, and disorders occasioned as aforesaid,” and that he will be forced to pay out further sums in the future, and that the disabilities were permanent in character, held, sufficient to support proof as to number of visits paid by plaintiff’s doctor and the amount of his charges.
    3. Same — Personal Injuries — Ability to Work — Evidence.
    The answer of plaintiff to the question as to how much time he could work because of his injury, that he could work probably four days in the week, was not objectionable as being speculative, uncertain, remote, and a mere guess, where plaintiff was carefully examined both on direct and cross-examination as to his ability to labor.
    4. Evidence — Automobiles—Collisions—Opinion of Witness— Conclusions.
    A question put to a witness, in an action by a bicycle rider against the driver of an automobile to recover damages for personal injuries, as to whether defendant appeared to have his car under control was not objectionable as calling for a conclusion.
    5. Same.
    The exclusion of the answer of a witness to a question whether defendant had his automobile under control, on the ground that it called for a conclusion, was harmless error, where, in later examination, the witness stated that the car did not run more than six feet after the collision and that defendant put his foot on the brake and the clutch at the same time and stopped the car almost instantly.
    6. Trial — Striking Out Testimony — Opinions.
    In an action by a bicycle rider against the driver of an automobile for personal injuries sustained in a collision, the testimony of defendant’s wife that she knew defendant was not looking back because he never did look back when driving was properly stricken out.
    7. Automobiles — Highways and Streets — Crossing Accidents— Collisions — Negligence—Contributory Negligence — Question for Jury.
    In an action by a bicycle rider against the driver of an automobile to recover for personal injuries received in a collision near a street intersection occurring after plaintiff had crossed the intersecting street and defendant had turned on the latter street to go in the same direction as plaintiff, held, that the questions of negligence and contributory negligence were for the jury.

      Error to Grand Traverse; Mayne, J.
    Submitted October 10, 1917.
    (Docket No. 81.)
    Decided December 27, 1917.
    Case by Arthur F. Vezina against Philip Shermer for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John J. Tweddle, for appellant.

      Frank J. Powers, for appellee.
    On the evening of September 2, 1915, at about 7:30 p. m., plaintiff, a man 58 years of age, was riding a bicycle in an easterly direction on Front street near Division street, in the city of Traverse City. Front street runs east and west, and Division street north and south. Plaintiff had just passed the easterly line of Division street, being south of the center line of Front street when he collided with the automobile of the defendant. Defendant himself was driving the machine, and had been going north on Division street, but when he reached Front street he turned to the right to go east on Front street. The collision occurred about 20 feet east of the east line-of Division street and south of the center of Front street.
    It was the claim of the plaintiff that when he approached Division street, coming from the west, he saw defendant’s automobile coming north about a quarter of a block away; that he proceeded across Division street at a slow and careful rate of speed, and when about 20 feet east of the east line of said street defendant’s automobile overtook him, striking the hind wheel. It is undisputed that the automobile struck the bicycle, and that after the automobile stopped, within a few feet, both plaintiff and his bicycle were under the automobile. As a result of the accident plaintiff sustained a scalp wound, an injury to one of his. hands, and two broken ribs.

      It was the claim of the defendant, supported by the testimony of others, that driving north on Division street as he approached the corner of Front he had his car fully under control, and turned east on Front street at a very slow rate of speed; that júst as he was turning into Front street plaintiff came from the north side of Front street in a southeasterly direction, directly in front of his automobile, too close to permit him to stop his machine in time to avoid a collision.
    Under a careful charge the trial judge submitted the conflicting theories of the parties to the jury. At the end of the charge he said:
    “Have I covered every point, gentlemen?

      “Mr. Tweddle (counsel for defendant) : Yes, sir; I think so.

      “Mr. Powers (counsel for plaintiff) : Yes, sir; but this bicycle, your honor, will it go with the jury to their jury room or not?”
    The jury returned a verdict against the defendant in the sum of $912.83, upon which judgment was duly entered. A motion for a new trial was made based upon 15 several grounds, which motion was denied.

       On liability of owner of automobile for collision with bicyclist, see note in 28 L. R. A. (N. S.) 944.
      On rule of the road governing vehicles at intersection of streets and when turning across street, see note in 41 L. R. A. (N. S.) 346. On liability for-collision between automobiles or an automobile and another vehicle at or near corner of street or highway, see note in L. R. A. 1916A, 745.

   BROOKE, J.

(after stating the facts). The first assignment of error is based upon the refusal of the court to grant defendant’s motion for a new trial. No request was made to the trial court to file reasons for denying the motion, and no reasons were filed by the trial court. No exception was taken to the denial of the motion. • We must hold that this question is not before us on this appeal. Groat v. Railway, 153 Mich. 165 (116 N. W. 1081); Blakeslee & Co. v. Manufacturing Co., 153 Mich. 230 (117 N. W. 92); Act No. 314, chap. 18, § 63, Pub. Acts 1915 (3 Comp. Laws 1915, § 12635).

Defendant next argues his 2d, 5th, and 6th assignments, based upon the alleged erroneous admission of the testimony of the physician who attended plaintiff; the objection being that the declaration was insufficient to support proof under the rule that special damages must be specially alleged. The declaration recites:

“By means of the premises the said plaintiff was forced and obliged and did lay out and spend a large amount of money, to wit, $200, in and about endeavoring to be cured of said sickness,' lameness, nervousness, and disorders occasioned as aforesaid, and this plaintiff will be forced to lay out large sums of money endeavoring to be cured of said sickness, lameness and disorders, occasioned as aforesaid, all of which disabilities are permanent in character.”

We are of opinion that this averment in the declaration was sufficient to support proofs as to the number of visits paid by the doctor and the amount of his charges.

The 8th assignment is based upon the admission of the following testimony over objection:

“Now because of your injured condition, how much of the time can you work?
“A. Probably four days a week, four days out of six.”

The objection urged is that the testimony is speculative, uncertain, remote, and a mere guess on the part of the witness. We think the objection untenable, particularly in view of the fact that plaintiff was examined carefully both upon direct and cross-examination as to his ability to labor.

Error is assigned upon the following, John Nerlinger, a witness for the defendant, being upon the stand:

“Q. Now, whether or not Mr. Shermer appeared to have his car under control ?
“Mr. Powers: We object to that as a conclusion; let him tell what he did, and the jury will determine the other.
“The Court: Sustained.
“Q. Well, did he have his car under control?
“Mr. Powers: Of course, we make the same objection to the same question.
“The Court: Sustained.
“Q. How far did the car run after the bicycle and the car came together?
“A. Well, I should say not over six feet, but I could not be positive as to that.
“Q. What did Mr. Shermer do, if you know, to stop the car?
“A. Well, he put his foot on the brake and the clutch at the same timé, and stopped the car almost instantly.”

While we are of opinion that the court might very well have permitted the answer to the question, and that the answer would not necessarily have involved a conclusion by the witness, in view of the later examination of the witness, the exclusion of this answer is certainly not reversible error.

The 12th assignment of error is based upon the action of the court .in striking out the answer of the defendant’s wife to the following question:

“Q. Now, Mrs. Shermer, you wouldn’t know whether or not he was looking back; now is that the truth of it?
“A. Well, I know he was not because he never does look back when he drives.”

When this question and answer is read with the context, it plainly appears that the ruling of the court was proper.

The 13th, 14th, 15th and 16th assignments of error are based upon the refusal of the court to direct a verdict upon the ground that under the testimony plaintiff was clearly guilty of contributory negligence, as a matter of law. Replying to the arguments made in support of these assignments, it is only necessary to say that we have read this entire record with care, and are satisfied that the question of plaintiff’s contributory negligence as well as the question of defendant’s negligence raised issues of fact properly determinable by the jury alone.

The 18th and. 19th assignments of error are based upon alleged errors in the charge of the court. They are without merit.

The judgment is affirmed.

Kühn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows,. JJ., concurred.


text:
    ANDERS v. CLOVER.
    1. Assault and Battery — Self-Defense—Rights of Person Assaulted.
    One assaulted may justly exercise such reasonable force as may be, or as appears to him at the time to be necessary to protect himself from bodily harm in repelling the assault.

    2. Same — Evidence—Burden of Proof.
    In an action for damages for assault and battery, it is incumbent on the one starting the affray to show, by a preponderance of evidence, that defendant in repelling such assault employed more force than was necessary.
    3. Same — Evidence—Sufficiency.
    Evidence helé, sufficient to show that plaintiff started the affray.
    4. Same — Self-Defense — Evidence — Instructions — Burden of Proof.
    An instruction that the fact that the defendant pleaded guilty in a criminal proceeding started against him by his own procurement was not conclusive against his contention that he was acting in self-defense, and that it should be given such weight by the jury as they believed it entitled to, was proper.
    Error to Van Burén; Des Voignes, J.
    Submitted October 11, 1917.
    (Docket No. 91.)
    Decided December 27, 1917.
    Case in justice’s court by Albert Anders against Roll Clover for assault and battery. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      W. J. Barnard, for appellant.

      C. M. Van Riper and Thomas J. Cavanaugh, for appellee.

       On right of self-defense against assault provoked by abusive language, see note in 51 L. R. A. (N. S.) 838.
      Generally, as to the right of accused who began conflict to plead self-defense, see note in 45 L. R. A. 687.

   Brooke, J.

This case originated in justice’s court, where plaintiff filed a written declaration, claiming damages in the sum of $100 as the result of an alleged unlawful assault and battery committed upon him by the defendant. The jury in the justice’s court returned a verdict in favor of defendant. Plaintiff thereupon appealed the case to the circuit court for the county of Van Burén. At the trial in the circuit court, plaintiff did not take the stand. He called defendant as a witness, under the statute, and elicited testimony from him tending to support the following facts: Defendant was standing on the sidewalk just outside the door of a grocery store of which one McAllister was proprietor. This entrance was protected by a heavy screen door. Plaintiff in entering the door jerked the screen door open violently, striking defendant on the arm and inflicting a wound thereon of a more or less serious nature, at the same time saying to defendant: “Get out of the road, you big fat slob!” Immediately thereafter plaintiff, being just inside the doorway, seized a. small box and raised it as if to strike defendant, whereupon defendant struck plaintiff in the face, blacking one of his eyes. The parties thereafter, apparently by mutual consent, separated, and defendant requested one Olds, with whom he had been in conversation at the time the screen door was forcibly thrown against him, to accompany him to a justice of the peace and there make a complaint against him (defendant) for assault and battery. Olds made the complaint; the justice issued the warrant; the defendant was arraigned and pleaded guilty and was sentenced to pay a fine of $1 and costs of prosecution, taxed at 50 cents. Defendant immediately paid the fine and costs and was discharged. Plaintiff introduced no further evidence as to the affray, but did introduce the evidence of two witnesses who swore that they saw plaintiff within a day 'or two after the assault, and that he then had “a real black eye; a fairly black eye.”

To the plaintiff’s declaration the defendant interposed in justice’s court verbally, the plea of the general issue. In his defense, in addition to testimony given by himself when called as. a witness for the plaintiff, defendant introduced the testimony of several witnesses to the affray all tending in a greater or lesser degree to support his contention that plaintiff was not only the aggressor, having made an unprovoked assault upon him by violently jerking the screen door against his arm, but that plaintiff, at or immediately before the moment when defendant struck him, was in the act of further assaulting him with a box of some kind.

Plaintiff preferred the following request to charge:

“You are instructed that you must find a verdict for the plaintiff in this case, as the defendant cannot interpose the defense of self-defense, as no notice of such plea is set forth by defendant’s plea. The only question for you to consider is the question-of damages.”

This instruction was refused by the court, and the case was submitted to the jury under a very careful charge, in which the jury were advised that the plaintiff would recover only if he had convinced them by a preponderance of the evidence that he himself was not the aggressor, or, if he were the aggressor, that the defendant in repelling his attack had used more force than was necessary. With reference to the fact that defendant had pleaded guilty in the criminal case which was started against him by his own procurement, the court advised the jury that his plea of guilty therein should be given such weight as they believed it to be entitled to, but that it was not conclusive against his contention that in making the assault upon plaintiff he was acting in self-defense.

In this court counsel for plaintiff contends broadly that, under the plea of the general issue, matters of justification cannot be given in evidence, but must be pleaded specially. . In support of this proposition, many authorities from foreign jurisdictions are cited by plaintiff’s counsel which will be found collected in 3 Cyc. p. 1084, but which we deem it unnecessary to discuss at large. No case from this State is cited in support of the rule; but, assuming the rule to be as stated, we are unable to see how plaintiff is aided. His own testimony, or rather that offered in his behalf, shows that he made an unprovoked and unwarranted assault upon the defendant, at the same time addressing him in a scurrilous manner. There can be no doubt that one assaulted may justly exercise such reasonable force as may be, or as appears to him at the time to be, necessary to protect himself from bodily harm in repelling said assault. Assuming then, what the record conclusively establishes, that the plaintiff started the affray, it was incumbent upon him to show by a preponderance of the evidence that the defendant in repelling said assault employed more force than was necessary. Ayres v. Birtch, 35 Mich. 501. This plaintiff utterly failed to do; indeed, having established the fact of his original trespass, he offered no- excuse or explanation in palliation of his wrongful conduct.

We are of opinion that the learned circuit judge properly instructed the jury upon the question of the plea of guilty interposed by defendant in the self-induced criminal proceeding. Under the circumstances of the case as disclosed by himself, the plea could at most be considered as evidence of his guilt of the offense charged in the case at bar; the weight thereof being for the jury.

Judgment affirmed.

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


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    ROBINSON v. TABER.
    1. Taxation — Delinquent Tax List — Failure of Treasurer to File Sworn Statement — Effect.
    The failure of a township treasurer, in making his return to the county treasurer for unpaid taxes, to make the sworn statement required by law relative to such taxes, was not fatal so as to prevent the collection of taxes.
    2. Corporations — Power of Stockholders — Authority to Make Conveyances.
    The property of a corporation is not subject to the control of the stockholders and may not be conveyed by them, even though those joining in the conveyance own nearly all the stock.

      Error to Ogemaw; Sharpe, J.
    Submitted October 17, 1917.
    (Docket No. 166.)
    Decided December 27, 1917.
    Replevin by Samuel A. Robinson against Charles Taber, treasurer of Goodar township, and another, for property levied on for taxes. Judgment for defendants. Plaintiff -brings error.
    Affirmed.

      Victor Spike (Gillett & Clark, of counsel), for appellant.

      William T. Yeo, for appellees.
    In the spring of 1915, plaintiff was the supervisor of Goodar township. At the same time he was secretary and a director of the Robinson Lumber Company, and was likewise the owner of nearly one-half of the capital stock of said corporation. That company was conducting operations in Goodar township. Acting as supervisor of his township, plaintiff assessed the personal property of the Robinson Lumber Company in that township at the sum of $27,000. Included in that assessment is the following item:
    All machinery not affixed to real property, two locomotives and railroad equipment..........?3,000.00
    The amount of the tax against the Robinson Lumber Company so assessed was $766.64. The township treasurer in making his return to the county treasurer for unpaid taxes for that year failed to make the sworn statement required by law relative to said taxes. The county treasurer, however, gave him a warrant back for the collection of such taxes and this warrant was turned over by him to his successor, the defendant Taber. On September 13,1916, Taber, as such treasurer, levied on the two locomotives and certain other railroad equipment for the purpose of enforcing the codection of such taxes, and while the same was in the possession of said treasurer and after it had been advertised by him for sale, it was taken, on September 20th, by the sheriff under the writ of replevin in this case.
    While the record does not disclose the fact, it is apparent that defendants waived a return of the property, and they were awarded a judgment for the amount of the special interest therein, representing the tax lien, in the sum of $798.88.
    It was the claim of plaintiff that, while the property seized was, at the time' the assessment was made, the property of the Robinson Lumber Company, title thereto had, between the time of the assessment and the date of the seizure, passed from said company to himself. This claim is based upon the following facts:
    On the 16th day of March, 1914, S. L. Eastman, who then owned 235 shares of the Robinson Lumber Company stock, and the plaintiff who owned 230 shares thereof, having had some differences, met at the office of Gillett & Clark in Bay City, and there undertook an adjustment of their difficulties. At that time there was at least one other stockholder, W. H. Erwin, who was vice president and a director of the Robinson Lumber Company. Without notice to Erwin, or any waiver from him, so far as the record shows, an alleged stockholders’ meeting was held, where a resolution was passed, instructing the directors of said company to hold a meeting and empowering them to—
    “formulate an agreement agreeable to all shareholders and directors of said company for the final closing up of the affairs of the Robinson Lumber Company of Goodar, Ogemaw county, Mich., authorizing the president and secretary to assign, transfer, or deed any or all the property of said company necessary for the payment of the obligations of said company.”
    On the same day an alleged meeting of the directors of the Robinson Lumber Company was held by Eastman and plaintiff, without notice to or waiver from Director Erwin. At said meeting a resolution was passed by Eastman and Robinson, by the terms of which Mr. Gillett was employed to draft an agreement in behalf of said company, S. L. Eastman, and S. A. Robinson, preparatory to the dissolution of said Robinson Lumber Company and following the passage of said resolution an agreement was prepared between the Robinson Lumber Company of the first part, and S. L. Eastman and William H. Erwin of the second part, and S. A. Robinson of the third part. This agreement provides for the operation of the mill belonging to the company by Robinson at a certain price per thousand feet, and that the net proceeds of the lumber should be used for the payment and retirement of the obligations of the Robinson Lumber Company. The agreement then proceeds:
    “The foregoing arrangement is made as an adjustment of all differences between the parties, and as a preliminary step towards the liquidation of the affairs of the company, in the following manner.”
    Then follows several provisions as to the disposition of the various portions of the property of the corporation, and it is further provided:
    “It is further mutually understood and agreed that the affairs of the company shall be liquidated as soon as the logs now cut are manufactured, and the sawing contract completed, but not later, however, than November 1st, by the formal conveyance to the parties hereto of the properties hereinbefore mentioned, and by the assumption by the said Eastman of any outstanding obligations and debts of the said Robinson Lumber Company.”
    This contract is executed by neither Director William H. Erwin nor the Robinson Lumber Company, but it is executed by S. L. Eastman and plaintiff Samuel A. Robinson. By the terms offthe contract the property here in question was to be conveyed to Eastman. It is the claim of plaintiff that said personal property was conveyed by the corporation to Eastman, although no instrument of conveyance was produced. He did, however, produce a bill of sale from Eastman to himself covering the property in question and bearing date of the 3d day of November, 1915.
   Brooke, J.

(after stating the facts). The learned circuit judge held that the failure of the township treasurer to make the sworn statement required by law was not fatal, under the authority of Northwestern Cooperage & Lumber Co. v. Scott, 123 Mich. 357 (82 N. W. 76). In this we think he was correct.

He next held that the title to the property on which the levy was made was, at the time of the levy, the property of the Robinson Lumber Company, and as such liable to seizure for the payment of the corporate taxes. This conclusion was reached upon the theory that the contract of March 16, 1914, executed by two of the stockholders only, in their individual capacity, did not constitute a legal authority for the sale or conveyance of the property of the corporation, and that, if such sale was made in pursuance of said contract, it was void as against the tax levy. Upon this point the learned circuit judge cited and relied upon Rough v. Breitung, 117 Mich. 48 (75 N. W. 147), where it is said:

“Stockholders do not own the corporate property, and cannot mortgage, sell, or convey it. The title is in the artificial being called the corporation, not in the stockholders. Such property is not under the control of its stockholders, whether they act separately or collectively. The laws under which these corporations are organized provide the agencies and methods by which their property can be sold and transferred.”

Many cases are cited in support of the principle announced, among them Randall v. Dudley, 111 Mich. 437 (69 N. W. 729), where it is said:

“The mere fact that one has become the owner of all the stock of a private corporation does not entitle him to sue in his own name upon an account stated with the corporation, but his succession to its interests must be averred and proved.”

Again in Chase v. Telephone Co., 121 Mich. 631 (80 N. W. 717), this court said:

“Although one person owns a majority of the stock, or all but two shares, or all of it, he does not thereby acquire the right of acting for the corporation, or as the corporation, independently of the directors.” Citing cases.

The question has been repeatedly before the Supreme Court of the United States. See Pullman’s Palace Car Co. v. Railway Co., 115 U. S. 587 (6 Sup. Ct. 194). And in Humphreys v. McKissock, 140 U. S. 304 (11 Sup. Ct. 779), that court says:

“The property of a corporation is not subject to the control of individual members, whether acting separately or jointly. They can neither encumber nor transfer that property, nor authorize others to do so.”

We are of opinion that the corporation never legally authorized the sale of its property to Eastman, and therefore that plaintiff acquired no title thereto through the bill of sale from Eastman.

Judgment is affirmed.

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


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    SAGINAW MILLING CO. v. SCHRAM.
    1. Appeal and Error — Law of Case — Res Adjudicata.
    The decision on a former appeal is the law of the case.
    2. Trial — Requests to Charge — Instructions.
    In an action by the purchaser of hay to recover money paid on the contract with damages for nonfulfillment thereof, and in which defendant sought to recoup damages for failure of plaintiff to take the hay, including commission on resale, work and labor, storage, cost of baling hay and interest, held, that the charge sufficiently presented to the jury the theories of the respective parties on the controlling issues so that the refusal of a requested instruction was not erroneous.
    Error to Sanilac; Beach, J.
    Submitted October 16, 1917.
    (Docket No. 151.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by the Saginaw Milling Company against John Schram for breach of a contract for the sale of hay. There was judgment of recoupment for defendant, and plaintiff appealed to the circuit court. Judgment for 'defendant. Plaintiff brings error.
    Affirmed.

      E. L. Beach, for appellant.

      C. F. Gates, for appellee.
   Brooke, J.

This case upon its first appearance in this court will be found reported in 186 Mich. 52 (152 N. W. 945), where a statement of the facts will be found. We there reversed a judgment in favor of the plaintiff for $100, which had been directed by the court. In considering the questions involved it was held that the contract, being ambiguous in its terms, might be explained by oral testimony, and that evidence relating to the custom of baling hay in the vicinity was admissible. Upon a retrial of the ease it appeared beyond dispute that it was the duty of plaintiff to bale the hay or at any rate to pay for said baling. It was the claim of plaintiff that under the contract either' party could have done the pressing, and it introduced testimony tending" to show that the plaintiff’s failure to bale the hay prior to December 15th was for the benefit of the defendant in relation to his other work. Under the evidence introduced the court instructed the jury to determine—

“whether the defendant relied upon Simmons to provide the pressing or whether he was lulled into security as to the delivery of the hay by Simmons’ talk and conversation as to pressing or whether the delay was for the defendant’s own accommodation.”

Upon the question of the time of the breach of the contract and who was responsible for such breach, the court charged:

“If Mr. Schram’s conduct and acts procured the delay beyond the time for its fulfillment he would be responsible for the $100 and its return. If the milling company is responsible for the delay, if the conduct and acts of Simmons lulled the defendant, Schram, into security, supposing he could deliver his hay up to the date of expiration and beyond, if such conduct and acts did produce that feeling in Schram and he so acted upon it, and did so reasonably under the circumstances then the defendant would be entitled to his damages to be set off against the $100.”

Upon the question of the measure of damages the court charged:

“I say to you the usual rule of fixing damages is the difference between the contract price and the market price at the time and place of the breach or at the nearest market taking out the expenses of getting to the nearest market. Now, the testimony, as I say to you, is conflicting upon that question, as to whether there was a market here in January, 1913, or not. If there was a market, the market price at that time at Sandusky would govern, measuring his damages. If there was no market, and the circumstances reasonably required Mr. Schram, in order to save himself, to market this hay on commission, he would be entitled to do so, but he must do so within a reasonable time; he must use diligence after the breach of the contract to save himself and the milling company all the damages possible. Now, you have heard the testimony as to when the hay was pressed by Mr. Schram after the breach. Whether that was a reasonable time or not and whether he used due diligence in getting a sale for his hay is a question of fact for you to determine.”

The jury returned a verdict in favor of the defendant for $100.

The first 19 assignments are based upon alleged erroneous admission or exclusion of testimony. Proceeding under our opinion rendered when the case was first before us (which must be considered the law of the case), we are of opinion that the learned trial judge committed no reversible error in this regard.

The 20th assignment is based upon the refusal of the court to charge the jury as requested by plaintiff. We have quoted some portions of the charge above. Without going into the matter more fully we may say that we have read the charge in its entirety, and believe that plaintiff’s rights were fully protected thereunder. The theories of the several parties were plainly presented to the jury upon each of the controlling issues, and those issues have been determined by the jury against the contention of the plaintiff.

The judgment is affirmed.

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