text:
    FILLMORE v. VAN HORN.
    1. Statutes — Attacking Validity — Title to Office — Suit to Compel Delivery of Official Papers.
    Where, in a proceeding under 3 Comp. Laws, chap. 272, to compel the' delivery to relator of certain books and papers claimed by him as respondent’s successor in a public office, relator claims that the act under which respondent was appointed was repealed by the act under which relator was appointed, respondent may attack the constitutionality of the latter act.
    2. Same — Enactment—Title.
    The title to an act is required by the Constitution, and is as much a part of the act as the body thereof; and if it appears from the legislative journals that an act was passed by the respective houses under different titles, it follows that the act is void.

      3. Same — Barbers’ License Law — Constitutionality. '
    Act No. 335, Pub. Acts 1901, relating to the examination and licensing of barbers, was passed in the senate under a title which had been amended to read as follows: “A bill to provide for the examination and licensing of barbers by a state board; prescribing the powers and duties of said board; to regulate the management of barber shops; and to repeal Act No. 313 of the Public Acts of 1899, entitled * * The bill was transmitted to the house, however, under the title as it stood before being amended, — i. e., “ A bill to provide for the examination and licensing of barbers, and to regulate the management of barber shops,” — and was there passed under the latter title, and returned to the senate, with sundry amendments to the body of the bill, in which the senate concurred. Held, that the act was invalid, the title not having been agreed to by both houses, and therefore the prior act, which it sought to repeal, remained in effect.

      Certiorari to Berrien; Coolidge, J.
    Submitted November 13, 1901.
    Decided December 3, 1901.
    Proceeding by Ransom M. Fillmore against Frank M. Van Horn to compel the delivery of books and papers held, by the latter as secretary of the state board of examiners of barbers. From a judgment for respondent, relator brings certiorari.

    Affirmed.
    Relator brings this action under chapter 272, 3 Comp. Laws, which requires every person, when removed from office, or after the expiration of his term, to deliver over on demand to his successor all books and papers in his custody as such officer. Upon refusal such successor may institute a proceeding before any judge of a court of record or circuit court commissioner to compel such delivery. Relator claims to hold title under Act No. 235, Pub. Acts 1901, entitled “An act to provide for the examination and licensing of barbers, and to regulate the management of barber shops.” He was elected secretary and treasurer. Respondent was elected secretary of the board of examiners of barbers under Act No. 212, Pub. Acts 1899, entitled “An-act to provide for the examination and licensing of barbers.” His term of office would expire on September 1,1903. The act of 1901, if valid, repeals the act of 1899.
    The original bill was introduced in the senate, and known as “Senate BilLNo. 47,” and entitled:
    “A bill to .amend sections 3, 4, 5, 6, 7, and 9, and to repeal sections 8 and 10, of an act entitled ‘An act to provide for the examination and licensing of barbers/ being Act No. 313 of the Public Acts of Michigan for the year 1899, approved June 1, 1899, and to add thereto seven new sections, to stand as sections 8,10, 11,13, 13, 14, and 15 of said act, and to amend the title of said act so as to read as follows: ‘An act to provide for the examination and licensing of barbers, and to regulate the management of barber shops, and to provide a penalty for violation of the provisions of this act.’ ”
    The bill was referred to the senate committee on state affairs, and was reported back to the senate with the request that it be printed, which was agreed to. On April 34th the-eommittee reported the bill to the senate under the same title as that above given, and a substitute therefor, entitled “A bill to provide for the examination and licensing of barbers, and to regulate the management of barber shops.” On April 35th the senate journal reads as follows:
    “Senate bill No. 47 (file No. 183), entitled ‘A bill to provide for the examination and licensing of barbers, and to regulate the management of barber shops/ was read a third time, and passed, a majority of all the senators elect voting therefor by yeas and nays. The question being on agreeing to the title, Mr. Groodell moved to amend the title so as to read as follows: ‘A bill to provide for the examination and licensing of barbers by a state board; prescribing, the powers and duties of said board; to regulate the management of barber shops; and to repeal Act No. 313 of the Public Acts of 1899, entitled “An act to provide for the examination and licensing of barbers.” ’ The motion prevailed, and the title was so amended. The title as amended was then agreed to.”
    A motion to give the bill immediate effect having failed, it was laid upon the table. On May 1st it was taken up, and ordered to take effect June 1, 1901.
    On May 3d the secretary of the senate sent the following communicatioñ to the speaker of the house of representatives:

      “Sir: I am instructed by the senate to transmit to the house the following bill: Senate bill No. 47 (file No. 183), entitled ‘A bill to provide for the examination and licensing of barbers, and to regulate the management of barber shops,5' — and to inform the house that the bill has passed the senate, and has been ordered to take effect Juné 1, 1901. In this action of the senate the concurrence of the house is respectfully asked.55
    The bill was then referred to the house committee on state affairs. On May 9th it was reported by the committee to the house under the same title as given in the message of the secretary of the senate, with sundry amendments thereto, recommending that the amendments be concurred in, and that the bill so amended do pass. The ’ amendments were concurred in. The bill was ordered printed and placed on the general order.
    May 37th a member moved to discharge the committee of the whole from the further consideration of said bill, entitled “A bill to provide for the examination and licensing of barbers, and to regulate the management of barber shops,” and it was passed by the house. Certain amendments were made, and the bill was then referred to the committee on labor. May 38th it was reported back to the house by the committee, passed, given effect June'1st, and returned by the clerk of the house to the senate by the same title as last above stated. The amendments were concurred in, and the bill was referred to the secretary for printing and presentation to the governor. -
    The circuit judge denied the relief asked, and the case is before us on the writ of certiorari for review.

      Horace M. Oren, Attorney General ( Charles W. McGill, of counsel), for appellant.

      Humphrey S. Gray ( G. W. Bridgman, of counsel), for appellee.
   Grant, J.

(after stating the facts). 1. The act is attacked as not constitutionally passed, because the title was not agreed to by both houses of the legislature, and because the bill was not introduced during the first 50 days of the session. A preliminary question is raised by the attorney general that its constitutionality cannot be attacked in this proceeding; citing Curran v. Norris, 58 Mich. 512 (25 N. W. 500). That was a case where the office existed, and the question was who was entitled to fill it. It was held that the writ of certiorari could not be used to delay the proceedings, “ unless such officer has proceeded without jurisdiction, or has acted in gross violation of the statute.” If there is no law, there is no office. An unconstitutional act is.no law. There must be an office de jure to fill or there can be no officer de facto to fill it. Relator asserts the existence of an office, and his right to it. If the law under which he claims is unconstitutional, he has no standing. Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102); Carleton v. People, 10 Mich. 250; Norton v. Shelby Co., 118 U. S. 425 (6 Sup. Ct. 1121). In the last case it is said, at page 442:

“The idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law.”

Therefore the constitutionality of the act is the issue.

2. This brings us to the main question. The title to an act is required by the Constitution. It is as much a part of the act as the body thereof. A law cannot be enacted by the legislature without a title. The legislative journals must control; and if those journals show that the senate passed an act by one title, and the house by another, it must follow that the act is void, because no title has been agreed to by both houses. Simpson v. Stock-Yards Co., 110 Fed. 799. In that case the legislative journals showed that a bill for the regulation of stock-yards was passed by both houses by the same title. The clerk made a mistake, in engrossing and enrolling the act, in using the title by which the journals showed it had been read a first and second time in the house. The court said it was undoubtedly a clerical error, but held the act void notwithstanding. See, also, Chicago, etc., R. Co. v. Smyth, 103 Fed. 376; State v. Brookhart, 113 Iowa, 250 (84 N. W. 1064).

In this case the secretary of the senate undoubtedly made a mistake in transmitting the bill to the house by a wrong title. But the house never agreed to the title to the act to which the senate had agreed, and the senate did not agree to the title to the act as it came back from the house. One enacted a title to repeal, the other enacted no such title to the bill passed by it. The house made some amendments to the body of the bill, and those were concurred in by the senate; but the title was a different one in each house. The bill was sent to the governor for his approval, and was signed by him with a title to which both branches of the legislature had not agreed. This appears conclusively by the journals, which must control.

The judgment of the court below is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PAGE WOVEN WIRE FENCE CO. v. POOL.
    Note in Possession op Dependant — Pleading — Suing as por Lost Note — Production.
    The payee of a note sued the maker, declaring on the common counts, with notice that he would give the note in evidence. Defendant pleaded payment, and on the' trial admitted that she had the note in'her possession, but declined to produce it, though plaintiff had given her notice to do so. The court refused to order the production of the note, and directed a verdict for defendant, on the ground that plaintiff should have sued as on a lost note, or have pleaded his claim as to the manner in which it came into defendant’s hands. Held, that, as one who knows where a note is may not sue as on a lost one, and as, whether the note was negotiable or otherwise, the sole issue was whether defendant had paid the note, the court’s action was erroneous. McKinney v. Hamilton’s Estate, 53 Mich. 497, distinguished.
    Error to Montcalm; Davis, J.
    Submitted November 13, 1901.
    Decided December 3, 1901.

      Assumpsit by the Page Woven Wire Fence Company against Phoebe M. Pool on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff brought an action of assumpsit. The declaration was upon the common counts, with notice attached that plaintiff would “give in evidence a certain promissory note, copy of which is given below.” The note and indorsement read as follows:
    “8200.
    “Grand Rapids, State of Michigan, Sept. 28, 1899.
    “Ninety days after date, I, of Lakeview post-office, residing in the town of Cato, county of Montcalm, State of Michigan, for value received, promise to pay to the order of the Page Woven Wire Fence Co., or bearer, without default, two hundred dollars, payable at Lakeview Bank, with exchange and collection charges. Interest at seven per cent, per annum until paid.
    “Residence 4-J- miles S. E. Lakeview of post-office.
    “Phcebe M. Pool.”
    Indorsed as follows:
    “ E. E. Metcalf.
    [Two two-cent revenue stamps, canceled.]
    “Pay to the order of any bank for collection and remittance to Page Woven Wire Fence Co., Adrian, Mich.”
    Under plea of the general issue, defendant gave notice that she would give in evidence—
    ‘ ‘ That from and after the 27th day of December, A. D. 1899, said plaintiff did not hold any promissory note signed and executed by defendant, and that on the 1st day of January, A. D. 1900, said plaintiff did not hold any such note, and that said plaintiff did not at the date of the commencement of this action, and does not at this date, hold any promissory note signed and executed by this defendant, and that defendant does not owe said plaintiff, on any note or otherwise, any sum of money whatever; that defendant has no knowledge of the promissory note copy of which is given in plaintiff’s declaration, but defendant admits the execution of a promissory note identical in form to the copy set forth in said declaration, which said promissory note so given by defendant as aforesaid has been fully paid, and is now, and since the 2?tli day of December, A. D. 1899, at which time this defendant paid the same in full, has been, in defendant’s possession, as receipt and evidence of the payment thereof; and that, if plaintiff now holds any note against defendant, it is only a copy or forgery, as the note paid by defendant, and now in her possession, is the identical note executed to plaintiff, and the only note executed and delivered by defendant, to plaintiff.”
    To this was attached her affidavit setting forth the same facts.
    In opening the case to the jury, counsel for plaintiff stated that, before the note became due, plaintiff forwarded it to a bank at Lakeview for collection, as its agent supposed; that in that letter the name of defendant was given as Philo M. Pool; that on the same day it wrote a letter to Philo M. Pool, stating that the note was sent to the bank for collection; that afterwards, discovering its mistake in the name, it wrote to the bank and defendant, correcting the mistake, and informing her that her note was in the bank for collection; that she called at the bank to see about the matter; that' when it became due she did not call at the bank, and has never paid it; that the first time plaintiff’s agent or attorneys saw the note afterwards it was in defendant’s hands; that she has it now; that plaintiff never authorized any one to collect the note except the bank; and that plaintiff did not know how it came into her possession. Plaintiff had given defendant notice to produce the note. After the opening to the jury, plaintiff’s counsel asked defendant’s counsel to produce it. Her counsel admitted that they had the note in court, but declined to produce it except upon the order of the court. The reason given by counsel was that plaintiff had given notice that it would give in evidence the note declared upon, that it had no such note in its possession, and that it had not sued upon a lost note or given indemnification. The court sustained defendant’s contention, and directed a verdict for her.

      Robertson & Clark and L. C. Palmer, for appellant.

      V. H. & H. H. Smith, for appellee.
   Grant, J.

(after stating the facts). The court said there were two theories upon which plaintiff might have proceeded: (1) That the note was lost; and (2) that, if it was not lost, the declaration ought to apprise defendant of the plaintiff’s claim of the manner in which the note came into her hands. Before bringing suit plaintiff knew that defendant had the note in her possession. The payor of a promissory note cannot be subjected to a suit, and compelled to accept a bond of indemnity under the statute, when the payee knows where the note is, and has it in his power to produce it in court. It is not necessary to determine whether the note is negotiable or nonnegotiable. The suit is between the payee and the payor. No third person is interested. The note, which is only evidence of the debt, was in the possession of the payor, the defendant. The declaration does not allege that plaintiff is in possession of the note, but only that it will give it in evidence upon the trial. Plaintiff took the proper and legal steps to do so, and they resulted in the production of the note in court. The sole question for determination was, Had it been paid ? Undoubtedly the possession of the note by the payor made a prima facie case of payment, and threw the burden upon the plaintiff to prove nonpayment. If defendant had not paid it to an authorized agent of plaintiff, the question would be, Was it paid by defendant to some one under such circumstances that the law protects her in doing so ? The court below based its decision on McKinney v. Hamilton’s Estate, 53 Mich. 497 (19 N. W. 263). That case does not apply. The note there was in the possession of a third person claiming title to it, and having the usual marks of ownership. The holder of the note was not made a party litigant, and the estate might have been subjected to two suits, and to two judgments against it. It was held that the claimant must be prepared to produce the note in court upon the trial, so as to be properly marked and impounded. In the present case the nóte is in court, and under its control. All the parties interested are in court, and are parties to the suit. Plaintiff asserts ownership, nonpayment, and that the note did not come lawfully into the possession of the defendant. The declaration asserts ownership and nonpayment. The defendant in her plea asserts payment. The issue is clearly drawn by the pleadings, and both parties understood it. The ruling of the court was erroneous.

Reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    COE v. DICKERSON.
    Equity — Contract for Support — Part Performance — Relief.
    Complainant deeded a farm to a son, in consideration of his agreement to pay his parents’ debts, care for them during life, and pay certain sums to his brothers in 10 years, for which he gave notes. After complying satisfactorily with the conditions for several years, the son died, leaving a widow, but no children; whereupon complainant filed a bill against the widow to set aside the deed on the ground of nonperformance. The court granted such relief on condition that defendant take a lien on the premises for 5500, and that complainant restore to her the notes given by her husband to his brothers. Held, that such condition was proper and equitable.

      Appeal from Oakland; Smith, J.
    Submitted November 15, 1901.
    Decided December 3, 1901.
    Bill by Edward Coe against Anne (Coe) Dickerson to set aside a deed. Erom a decree granting conditional relief, complainant appeals.
    Affirmed.

      Lewis Severance, for complainant.

      John H. Patterson, for defendant.
   Hooker, J.

In the spring of 1891 the complainant deeded to his son John Coe a farm of ?9 acres, in consideration that he pay all of their debts, and give to him and wife good care during the remainder of their lives, and decent burials, and, in addition thereto, pay to each of two other sons of the complainant the sum of $200 within 10 years, for which sums John gave to said sons his promissory notes, upon one of which it is claimed a portion was paid. The complainant took back a life lease of the premises. John and his wife had lived upon the premises with his parents for several years, and continued to do so, and the testimony indicates that during the two years that he lived thereafter he faithfully worked the place and cared for his parents. It does not appear that he paid any debts after the deed was made, if he did so before. John died in November, 1893, leaving a widow (the defendant) and no children. There has been no administration of his estate. The widow continued to live with his parents, and at one time demanded weekly Wages, which complainant refused to pay; saying that she was welcome to stay there, but he would pay her no wages. She claims to have remained there steadily for nine months. Afterwards she was absent on a short visit, and upon her return found a son of complainant and his wife there, and ultimately she moved her things away. Some attempt was made to adjust the matter amicably, but it failed, and, after the lapse of several years, the complainant filed the bill in this cause to set aside the deed and lease upon the ground of nonperformance.

A hearing was had, and the learned circuit judge who heard the cause filed a written opinion. He found that John Coe worked faithfully for a number of years upon the farm with and for the complainant, under an arrangement made when the deed was made, and accumulated nothing. He was of the opinion that the proceeds of the farm went to pay complainant’s debts and support the two families, but found that it was impossible to arrive at any exact figure of debts paid, or what the son’s labor was worth to the complainant. He found that everything' was satisfactory to the complainant to the time of his son’s death; that -the other sons had already received about $1,000 each, or its equivalent, from their father, and that it was not equitable that the legal representatives of John Coe should receive nothing in return for what he had done, when, in the opinion of the judge, he had certainly earned as much as either of his brothers; and that his widow was not likely to receive anything from her husband’s earnings, unless in this way. He concluded by decreeing that the deed be set aside, but that she should have a lien upon the premises for $500, payable on or before one year after complainant’s death, with interest at 5 per cent., payable annually. It was further decreed that complainant should deliver, to be canceled, the unpaid notes referred to as given to his sons. From this decree the complainant has appealed, claiming that the defendant should not have been allowed any sum. After the suit was commenced, the complainant’s children executed quitclaim deeds to him of their interests, with a view to conveying to him any legal interest inherited from their brother.

It is said on behalf of the complainant that the widow has no claim for services of her husband, and that, if there was a valid claim, an administrator should have been appointed to enforce it, which she has no right to do. At the time of John’s death, he had a valid title to these premises, subject to a life lease in the complainant. He was under obligation to remain upon the premises and care for his parents, and it' may, perhaps, he proper to say that the proceeds of the farm were to be used in the payment of debts. The complainant did not convey a conditional title, and, at the most, had a lien upon John’s reversionary interest for nonperformance of his contract. On the other hand, John’s representative had no claim against the complainant, for he had received his pay in advance, and that was real estate, which, subject to debts, and the possible lien of his father, descended to his heirs, of whom his wife was one. It might also be said that she also had a dower interest, if nothing more, in the land, subject, of course, to the lien, if there was a lien, which we need not decide. In view of these circumstances, we think it not inequitable to say that she had an interest amounting to $500 in these premises, over and above any claim that the complainant could hope to enforce; and, as “he who seeks equity must do equity,” there was no impropriety in requiring it as a condition upon which he should be granted relief, although not claimed in the answer. His right to recover upon the theory of his bill need not be discussed, as the defense conceded the propriety of setting aside the deed upon reasonable terms, and the question is not raised by either side.

We are of the opinion that the decree was a just one, and it is affirmed, with costs of this court.

The other Justices concurred.


author: Montgomery, C. J.

text:
    CHICAGO BRIDGE & IRON CO. v. CITY OF WEST BAY CITY.
    1. Municipal Corporations — Contracts—Bids—Approval—Recovery of Deposit.
    In answer to an advertisement of the water commissioners of defendant city, plaintiff proposed to furnish water pipe either 38, 40, or 48 inches in diameter, at a specified price for each size, and deposited §1,200 with its bid. The commissioners having recommended the acceptance of the proposal, the common council authorized the making of a contract with plaintiff for 48-inch pipe. Subsequently the commissioners assumed to fix the size of the pipe at 40 inches, and accord-' ingly presented to plaintiff, for its signature, a contract for pipe of the latter size, which plaintiff declined to sign because the time therein limited was too short. The action of the commissioners in changing the size of the pipe was never considered by or submitted to the council. Held, that, under the provision of defendant’s charter requiring the approval of the council to every such contract, no legal contract was tendered to plaintiff, and hence defendant had no right to retain the deposit.
    2. Same — Construction of Specifioations.
    Accompanying the specifications on which plaintiff bid was a copy of the proposed contract, containing a provision authorizing the commissioners to make any alteration in the dimensions or plan of the work at any time, the contract price to be increased or diminished accordingly. Held, that such provision had reference to modifications subsequent to the execution of the contract, and not to preceding negotiations.
    Error to Bay; Shepard, J.
    Submitted November 15, 1901.
    Decided December 3, 1901.

      Assumpsit by the Chicago Bridge & Iron Company against the city of West Bay City to recover the amount of a deposit. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frank S. Pratt, for appellant.

      8. Gr. Houghton (Lee E. Joslyn, of counsel), for appellee.
   Montgomery, C. J.

This action was brought to recover the amount of a deposit made with the defendant city, accompanying a bid to furnish 5,000 feet, more or less, of street conduit. The defendant claims that this deposit was made as security that the plaintiff would enter into a contract in accordance with the terms of its bid, that it failed and refused to do so, and that the city was compelled to award the contract to another at an increase in cost of more than the amount of the deposit. The plaintiff meets this contention by asserting that the minds of the parties never met, and that the city never tendered to plaintiff a duly-authorized contract.

The facts are as follows: The water commissioners of West Bay City, Mich., in May, 1899, published a notice to contractors, advertising for proposals for materials and labor for the construction of waterworks; proposals to be received “until 12 o’clock noon of Monday, June 26, 1899.” Amongst other things, bids were solicited for “approximately 5,000 lineal feet of submerged influent conduit, composed of riveted steel pipe 48 inches in diameter.” It was stated in the notice that “the commissioners expressly reserve the right to adopt such material for influent conduit, and length of same, * * * as they may elect after receiving said bids for the same. The right is also reserved to reject any and all bids. ” The plaintiff submitted a proposal to furnish 48-inch steel conduit at $4.63 per lineal foot, and also, at the request of the city engineer of West Bay City, although the notice did not ask for it, submitted a bid for 38-inch and 40-inch steel conduit at the price of $3.72 per lineal foot. Accompanying its proposal, plaintiff deposited with the commissioners its draft on the Continental National Bank of Chicago, certified by the hank, payable to the order of West Bay City, for $1,200.

These proposals were submitted on June 26, 1899, and on June 27th the board of water commissioners passed a resolution awarding the contract to plaintiff, “as per their bids as submitted, * * * provided the commission decide to proceed with the waterworks construction.” On July 5, 1899, the commissioners passed a resolution “that the acceptance of all bids be postponed and deferred until right of way to the bay is secured.” On July 13th the commissioners passed a resolution recommending to the city council the acceptance of the bid of Muir, O’Sullivan & Doran for furnishing and laying steel conduit pipe, and providing “that contract be entered into in such manner that the steel conduit pipe shall be furnished by the Chicago Bridge & Iron Works at the price named in their bid.” The bid of Muir, O’Sullivan & Doran was:

“For furnishing and laying steel conduit, complete, 48-inch, $8.75, and 36-inch, $7.80, per lineal foot.
“For furnishing and laying 36-inch cast-iron conduit, complete, the sum of $9.50 per lineal foot.
“For laying 40-inch steel conduit, the sum of $4.08.”

On the 17th of July a resolution was adopted by the city council that the proceedings of the board of water commissioners recommending the contract with Muir, O’Sullivan & Doran for furnishing and laying inlet pipe at $8.75 per foot be approved, and “that the mayor, clerk, and comptroller be instructed to enter into contracts, and also to draw the necessary order in favor of the city treasurer to purchase the right of way and site for building, as per said report and recommendation,” and also adopting for the route of the inlet pipe the “ Henry-street route, so called.” It will be remembered that plaintiff’s proposal contemplated the furnishing of 38-inch, 40-inch, and 48-inch steel conduit pipe; but no action up to this time had been taken, either by the board of water commissioners or the city council, to decide the size of the conduit pipe. On July 21,1899, the water commissioners adopted a motion, made by Commissioner Griffin, “that the size of the intake pipe be determined upon at 40 inches.” This action of the commissioners was never considered or approved by the city council.

On the 24th day of July plaintiff was served with a certified copy of the resolution of the commissioners of July 21st by the city attorney, Mr. Lee E. Joslyn, and Commissioner Walsh, and at the same time they tendered to the bridge company, for execution, a contract already signed in behalf of the city, and dated July 24, 1899, providing for the delivery of 3,000 feet of 40-inch pipe at $3.72 per foot, at least 500 feet to be delivered by August 25th, and 500 feet per week thereafter, and that the whole be fully completed on or before the 1st day of October, 1899. The plaintiff refused to execute such a contract, but on July 25th wrote to West Bay City, refusing to enter into the proposed contract, but offering to enter into a contract “on the basis of our proposal to you, dated June 26, 1899, understanding that we have 127 days from the date of the contract in which to complete the same.” The plaintiff contends that, in view of the delay in tendering the contract, the time limit fixed was unreasonable; also that the council never accepted the plaintiff’s bid in any form, and that there was never a meeting of minds upon the size of the pipe to be used in which the council participated.

Section 7 of chapter 26 of the charter of West Bay City (Act No. 353, Local Acts 1899) provides that the water commissioners, in cases of this kind, after advertising, shall “let the contract to the lowest responsible bidder who shall, in his bid, conform to the requirements of such advertisement, and who shall be deemed competent to do the work, and shall give adequate security for the proper performance thereof, which letting shall be submitted to and approved by the council. Said board shall have the right to reject any and all bids. * * * All contracts entered into by said board shall be submitted to the council for its approval, and, when so approved by the council, shall be entered into and signed by the mayor, comptroller, and city clerk.” If it be conceded that the resolution awarding the contract to Muir, O’Sullivan & Doran, adopted by the commissioners on July 13th, and providing that the contract shall be entered into in such manner that the steel conduit pipe shall be furnished by the Chicago Bridge & Iron Works at the price named in their bid, amounts to an acceptance of plaintiff’s bid on the part of the commissioners, it cannot be said that the council ever concurred in this action so as to authorize a contract for 40-inch pipe. The proceedings of the council show that it considered a bid of Muir, O’Sullivan & Doran to furnish pipe at $8.75 per lineal foot, and, on turning to the bid, this is found to he for 48-inch pipe. When the commissioners later adopted the 40-inch conduit, their action was not submitted to the council for approval. The council, therefore, never authorized or assented to such a contract as was tendered to the plaintiff for execution.

It is urged, however, that the specifications upon which the plaintiff bid provided that:

‘ ‘ The commissioners shall have the right to make any alteration in extent, dimensions, form, or plan of the work, either before or after the commencement of construction. If such alteration diminish the quantity of work, the price paid shall be proportionately diminished, and no anticipated profits allowed for work so omitted; and any increase in quantity shall be paid for at contract rate for woi’k of its class.”

This was no part of the specifications proper, but was contained in a copy of a proposed contract accompanying the specifications. This provision has reference to modifications after the contract is entered into, and not to the negotiations preceding the contract. To hold that it related to the latter would be to authorize the common council to abdicate its authority, and authorize the commissioners to accept a bid for one size of pipe, obtain the approval of the council, and enter into a contract for another size, at an increased or diminished expense. This the charter plainly prohibits. Chittenden v. City of Lansing, 120 Mich. 539 (79 N. W. 797).

Our conclusion is that plaintiff’s hid was never accepted by the city in the manner prescribed by law, and that plaintiff is entitled to recover the amount of its deposit.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    UNITED STATES CASUALTY CO. v. BAGLEY.
    Landlord and Tenant — Negligence — Injury to Tenant’s Goods — Insurance—Subrogation op Insurer.
    Where insured goods belonging to a tenant were damaged by the negligence of the landlord, and the tenant, pursuant to ' the terms of the policy, on payment of the loss, assignee! his claim to the insurer, the negligence of the insurer in assuming the risk was no defense in an action by it against the landlord, the insurer being under no obligation to the landlord to exercise care in insuring the risk.
    Error to Wayne; Frazer, J.
    Submitted November 22, 1901.
    Decided December 3, 1901.
    Case by the United States Casualty Company against John N. Bagley and others for negligence in the construction of a sprinkler system in premises leased to plaintiff’s assignors. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    This is an action on the case for negligence. The plaintiff is an insurance company, which had insured the goods of Burnham, Stoepel & Co. against damage which might be caused by the accidental' discharge or leakage of water from the automatic fire-extinguishing apparatus in the building occupied by that firm. The Bagley estate, so called, represented by the defendants, is the owner of the building, and the landlord of Burnham, Stoepel & Co.
    On July 4, 1897, water escaped from the extinguishing apparatus, and damaged the goods of Burnham, Stoepel & Co. That firm made claim against the plaintiff here under the policy of insurance, and brought suit against it. The cause was tried in the United States circuit court for the Eastern district of Michigan, and judgment was rendered therein for the plaintiffs. The casualty company took a writ of error, and the judgment was affirmed in the court of appeals. Thereafter the casualty company paid the judgment and the costs, amounting to $12,459.26, and took from Burnham, Stoepel & Co. a writing, which, after reciting the receipt of the amount of the judgment, proceeds:
    ‘ ‘ In consideration of payment of the above amount, we hereby, in pursuance of the provisions of said policy, subrogate the said United States Casualty Company to all claims or rights of the undersigned against any third party in respect to the loss that occurred under said policy, for which the judgment above referred to was recovered.”
    The casualty company thereupon brought this action, claiming to have been subrogated to the rights of Burn-ham, Stoepel & Co.
    The premises in question are the westerly part of the building the easterly portion of which was occupied by the Peerless Manufacturing Company. The flow of water complained of here took place substantially at the same time with, and under like circumstances as, that involved in the case of Peerless Mcmfg. Co. v. Bagley, which was before this court, and is reported in 126 Mich. 225 (85 N. W. 568). The decision in that case settled the legal questions which would have been involved in a suit between Burnham, Stoepel & Co. and the Bagleys. There was evidence introduced from which a jury might infer negligence on the part of the extinguisher company in putting such a head in the skylight, and the court instructed the jury that the defendants were chargeable with the negligence, if any, of the extinguisher company. Mr. Stoepel testified that the installation was complete when the insurance was written; that, before the policy was signed and delivered,—
    “I think our building was inspected by some of the agents or representatives of the casualty company. No objection was made to me personally by the representatives of the United States Casualty Company, before this policy was issued, as to anything connected with the sprinkler system. Before the policy was written, the casualty company had full opportunity to inspect the system.”

      There was no testimony to contradict Mr. Stoepel.
    The only question in this case is whether, when the plaintiff had full opportunity to inspect the extinguisher system, and did inspect it, before writing its policy, it can charge the defendants with the result of the negligence of the fire-extinguisher company, free from any charge of contributory negligence on its part.
    Wells, Angelí, Boynton & McMillan, for appellants.

      Brennan, Donnelly & Van De Mark (Alfred Lucking, of counsel), for appellee.
   Montgomery, C. J.

(after stating the facts). The defendants contend that there was testimony which would justify a finding by the jury that plaintiff was guilty of negligence in insuring the risk, and that it should be held that, if it was guilty of such negligence, there can be no recovery against the defendants. The difficulty we find in assenting to this contention lies in the fact that there were no relations whatever between the plaintiff and the defendants which imposed any duty upon the plaintiff to refrain from making any contract to indemnify Burnham, Stoepel & Co. which, in the judgment of its agents, was advantageous. Negligence of which a party has a right to complain is the omission of some duty owing to the complaining party. See 1 Thomp. Neg. § 3. It cannot be doubted that, had Burnham, Stoepel & Co. brought this action against the defendants, their right of recovery would be clear. Nor would the fact that they had taken out this insurance with the plaintiff have defeated that recovery. Perrott v. Shearer, 17 Mich. 48; Peter v. Railway Co., 121 Mich. 324 (80 N. W. 295, 46 L. R. A. 224, 80 Am. St. Rep. 500). This being so, it can work no injury to the defendants that, either before or after the injury resulting from their negligence, the plaintiff has been subrogated to the right of action which would otherwise be clear in Burnham, Stoepel & Co. When the insurance company accepted this risk, its own inspection would, as between Burnham, Stoepel & Co. and plaintiff, estop it from denying that it had made sufficient examination, and, if it found the risk more than ordinarily dangerous, we know of no rule of law which would prohibit the company from accepting the risk and writing the policy. Indeed, it may have increased its premium by reason of the danger being unusual because of the situation of the premises. If, in accepting such a risk, it took greater risks than it should, it may have been guilty of a breach of duty to its stockholders, but it neglected no precaution owing to a stranger. See, for their bearing on this question, Sun Mut. Ins. Co. v. Mississippi Val. Transp. Co., 17 Fed. 919, and Insurance Co. v. The C. D., Jr., 1 Woods, 72 (Fed. Cas. No. 7,051).

Defendants’ counsel insist that the fact that plaintiff claims by subrogation under Burnham, Stoepel & Co. does not preclude defendants from insisting upon the defense of negligence. It is to be kept in mind that it is only because plaintiff is subrogated to Burnham, Stoepel & Co.’s rights, in place of the action being brought by that firm, that the defense is attempted; and it leads back to the question whether the plaintiff owed the defendants any duty of inspection.

The defendants rely upon the rule that, where one meets a loss through his own negligence, he will not be permitted to invoke the doctrine of subrogation. The answer to this was tersely made on the argument, — that in this case it is not an attempt to invoke the equitable doctrine of subrogation, but that the plaintiff is already subrogated to the rights of Burnham, Stoepel & Co. What it is now seeking to do is to recover, in that right under what amounts to an assignment of Burnham, Stoepel & Co.’s claim, and the case presented is the case of Burnham, Stoepel & Co., represented by the plaintiff, who might have sued either in its own name or in that of Burnham, Stoepel & Co., at its election.

The defendants contend that this right to maintain the action should be subject to an exception, which is formulated by defendants’ counsel as follows:

“One whose own neglect or wrong has been a cause contributing to the damage sustained by him cannot successfully invoke the right of subrogation.”

But we think no such exception can have application to this case: First, because the plaintiff has been guilty of no neglect or wrong as against the defendants; and, second, the damage which resulted to the plaintiff from its own inattention was whatever excess it paid to Burnham, Stoepel & Oo. over and above the value of the right of subrogation contracted for in the policy, if anything. The circuit judge correctly charged the jury that the plaintiff was entitled to the same rights that Burnham, Stoepel & Co. would have had had the action been brought in their name.

The judgment will be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    McASKILL v. TOWNSHIP OF HANCOCK.
    Townships — Construction of Ditoh — Overflowing Private Property — Liability.
    A township which negligently constructs a ditch along a highway, whereby the water is diverted from its original course and discharged upon private property, is liable for the damage caused thereby; there being no distinction in this respect between involuntary quasi corporations, such as townships, and municipal corporations proper.
    Error to Houghton; Streeter, J.
    Submitted October 22, 1901.
    Decided December 10, 1901.
    Case by Kenneth McAskill against the township of Hancock for the unlawful flooding of plaintiff’s land. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Reversed.

      W. A. Burritt, for appellant.

      J. T. Finnegan (Chadbourne & Bees, of counsel), for appellee.
   Moore, J.

The plaintiff commenced this suit by declaration reading as follows:

“For that whereas, heretofore, to wit, on the 1st day of January, A. D. 1896, and from that time down to the commencement of this suit, the said plaintiff was, and now is, the owner in fee, and has been in continuous possession, of lot No. 19, block No. 5, of the First addition of the village of Hancock, Houghton county, Michigan, according to the recorded plat thereof; that said premises are not subject to any extraordinary natural servitude, nor were said premises subject to overflow before the committing of the grievances by said defendant hereinafter mentioned. The plaintiff further alleges that within the corporate limits of the township of Hancock, and north of the plaintiff’s premises, there is a high elevation or hill, commonly known as the ‘ Quincy Hill; ’ that the said defendant, in the year 1896, and at the times of committing the grievances hereinafter mentioned, was in possession of and had control of the public streets and highways of said township of Hancock (upon said hill) for the purpose of building and repairing said streets, and for the purpose of constructing drains, ditches, and culverts upon and along said streets, and for the purpose of keeping said streets, drains, ditches, and culverts in a proper state of repair, and was subject to the provisions of section 1354, 3 How. Stat., being section 4104 of the Compiled Laws of 1897, and the following provisions of said chapter; and it therefore became and was the duty of the said defendant, in case it constructed drains, ditches, and culverts upon and along said public highways or streets (upon said hill), to so construct and maintain said drains, ditches, and culverts as not to divert and collect surface water and turn the same upon the close and premises of the said plaintiff, and thereby flood and subject said close and premises to unnatural servitude, and, if drains, ditches, and culverts were so constructed by the said defendant as to divert and collect surface water and turn the same upon the close and premises of the said plaintiff,.it became and was the duty of the said defendant to so reconstruct or repair said drains, ditches, and culverts as to protect the premises of the said plaintiff against unnatural servitude.
“Yet the said defendant, wholly neglecting and not regarding its duty in the premises, did not, nor would it, so construct its drains, ditches, and culverts upon and along its public highways and streets as not to divert and collect surface water and overflow the premises of the said plaintiff ; but, on the contrary, the said defendant, wholly disregarding its duty in the premises, then and there, to wit, in the years 1896 and 1897, carelessly, negligently, and improperly constructed a ditch upon and along Oak street, one of the public highways of said township, thereby diverting, carrying, and collecting the surface water to a point, to wit, 500 feet, north of plaintiff’s premises, and by means thereof did carelessly, negligently, and improperly overflow and flood the close and premises of the said plaintiff with vast quantities of water, and washed upon said premises vast quantities of sand and stone in places, and washed out channels and dug great ditches upon and across said premises, and destroyed the trees, grass, and garden of the said plaintiff, and caused the said plaintiff great damage and expense in endeavoring to repair said premises, and great inconvenience and damage to his house and habitation; and the plaintiff also alleges that the damage to said premises is permanent and irreparable, in all to the plaintiff’s damage one thousand dollars ($1,000).
“The plaintiff also alleges that the said defendant, in the years 1896 and 1897, filled a culvert which was situated at the turn of the Quincy road, near Oak street, thereby diverting the water from its original course, and thereby turning the water into the ditch on Oak street, and thereby carrying and collecting said water at a point, to wit, 500 feet, north of the plaintiff’s premises, and by means thereof cast the water upon the plaintiff’s premises, and carelessly, negligently, and improperly overflowed and flooded the close and premises of the said plaintiff with vast quantities of water, and washed upon said premises vast quantities of sand and stone in places, and washed out channels and dug great ditches upon and across said premises," and destroyed the trees, grass, and garden of the said plaintiff, and caused the said plaintiff great damage and expense in endeavoring to repair said premises, and great inconvenience and damage to his house and habitation, which said injuries to said premises the plaintiff alleges to be permanent and irreparable, in all to the plaintiff’s damage one thousand dollars ($1,000).”

The defendant demurred to this declaration, which demurrer was sustained. The case is brought here by the plaintiff, who claims the declaration states a cause of action.

It is the contention of the defendant that, as a matter of law, a township cannot be held liable in its corporate capacity for such wrongs as are stated in the declaration at common law, and, as it is not made so by statute, there is no liability; citing 2 Dill. Mun. Corp. § 961 (761); Commissioners of Highways of Township of Niles v. Martin, 4 Mich. 557 (69 Am. Dec. 333); Township of Leoni v. Taylor, 20 Mich. 148; and City of Detroit v. Blackeby, 21 Mich. 84 (4 Am. Rep. 450). It is insisted that, while there may be a liability on the part of towns and cities specially chartered or voluntarily organized under general acts, there would be no such liability on the part of quasi corporations, such as townships, school districts, and counties, as these exist in this State.

The cases cited above were all cases where damages were claimed for some defect in the highway or in bridges caused by the neglect of the township or city, and it was held that, in the absence of a liability created by statute, there was no liability. The headnote to City of Detroit v. Blackeby, which is a fair statement of that branch of the opinion, reads as follows:

“The streets of Detroit are public highways, like all other roads. The duty of keeping them in repair is a duty to the public, not to private individuals, the mere neglect of which is a nonfeasance only, and for an injury resulting from such neglect no action arises. < In this respect there is no distinction between the liability of cities and that of towns and counties.”

In that opinion it was said:

“It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct, and not from mere errors of judgment. And, while the application of this rule may have been of doubtful correctness in some cases, the rule itself is at least intelligible, and will cover many decisions. It was substantially upon this principle that the case of City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), was rested by the judges who concurred in the conclusion. Thayer v. City of Boston, 19 Pick. 511 (31 Am. Dec. 157), was a case of this kind, involving a direct encroachment on private property. Rochester White Lead Co. v. City of Rochester, 3 N. Y. 465 (53 Am. Dec. 316), where a'natural water-course was narrowed and obstructed by a culvert entirely unfit for its purpose, and not planned by a competent engineer, is put upon this ground in the decision of Hickok v. Village of Plattsburg, 16 N. Y. 161. Lee v. Village of Sandy Hill, 40 N. Y. 442, involved a direct trespass. ”

In 2 Dill. Mun. Corp. §§ 1041, 1042 (799), it is said:

“It is clear that there is no liability on the part of a municipal corporation for not exercising the discretionary or legislative powers it may possess to improve streets, and, as part of such improvement, to construct gutters, or provide other means of drainage for surface waters, so as to prevent them from flowing upon the adjoining lots. And, even when the work of grading the streets has been entered upon, there is not, ordinarily, if ever, any liability to the adjoining owner arising merely from the nonaction of the corporation in not providing means for keeping surface waters from property situate below the established grade of the street. There are, indeed, cases which go further, and assert that there is no such liability where, in making improvements upon streets or elsewhere, authorized by law, surface waters are purposely turned from one’s own land to that of another, — from'the street directly upon the adjacent property owner.
“We agree to the doctrine that the municipality is not bound to protect from surface water those who may be so unfortunate as to own property below the level of the street; nor is the duty a perfect one, to adopt a system or mode of drainage which will have this effect; and, if one be adopted, there is in general no liability except as to ministerial duties in connection therewith. It is possible there may be no middle ground; but we are unable to assent to the doctrine that by reason of their control over streets, and the power to grade and improve them, the corporate authorities have the absolute and unconditional legal right intentionally to divert the water therefrom, as a mode of protecting the streets, and to discharge it by artificial means, in increased quantities, and with collected force and destructiveness, upon the property, perhaps improved and occupied, of the adjoining owner.”

In the late case of Morley v. Village of Buchanan, 124 Mich. 128 (82 N. W. 802), the court used the following language:

. ‘ ‘ It is the claim of counsel for defendant that, under the village act, the village had authority to determine and establish the grade of streets, and to grade and otherwise improve and repair the same, and to establish and construct sewers and drains whenever and wherever necessary, and of such dimensions and materials as might be thought proper. 1 How. Stat. §§ 2861, 2870. It was, however, held in Defer v. City of Detroit, 67 Mich. 346 (34 N. W. 680), that, when the plan adopted by a municipal corporation in constructing a public improvement must necessarily cause an injury to private property equivalent to some appropriation of the enjoyment thereof to which the owner is entitled, the municipality is liable. In that case the act complained of was in raising the grade at which the Franklin-street sewer entered and connected with Riopelle-street sewer, by means of which the waters in the sewer were set back upon plaintiff’s premises. It was held in that case that the declaration stated a cause of action. In Rice v. City of Flint, 67 Mich. 401 (34 N. W. 719), the declaration charged, in substance, that the city raised the grade of a street so as to dam up and set back the water in the gutter in front of plaintiff’s property, causing the water to overflow and discharge into and upon his premises, to his injury. It was held that the declaration stated a cause of actionable negligence, and it was said, ‘A city has no more right to invade or cause the invasion of private property than an individual.’ See the cases there cited.”

We think these cases control the case under discussion. See, also, Gilman v. Town of Laconia, 55 N. H. 130 (20 Am. Rep. 175). The demurrer should have been overruled.

The case is reversed, and the defendant is given 15 days in which to interpose a plea.

Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., did not sit.


text:
    MIKOLOJCZAK v. NORTH AMERICAN CHEMICAL CO.
    Injury to Employe — Department Foreman — Fellow-Servants.
    Plaintiff was injured while assisting in breaking down a large quantity of salt in defendant’s plant, through the failure of the foreman in charge of the work to give warning that a fall was about to be made. The foreman was one of several such employed in the various departments of the business, having authority to hire and discharge workmen, but being subject to the direction of a superintending engineer and a general manager. Held, that the foreman and plaintiff were fellow-servants, and hence defendant was not liable for the injury.
    Error to Bay; Shepard, J.
    Submitted November 12, 1901.
    Decided December 10, 1901.
    Case by Michael Mikolojczak against the North American Chemical Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Defendant owns and operates a plant for the manufacture of chemicals and salt. A large mass of salt had been stored in a packing house, the mass being about 200 feet long, 40 feet wide, and from 10 to 14 feet high. It became hardened by exposure, so that it was necessary to break it before packing. The usual method was first to undermine it by making a cut about 3 feet high and from 15 to 18 inches deep across the mass. This was done by the use of picks. As this salt was picked out, it was removed in wheelbarrows. When the undermining was completed, two of the men would go upon the top of the salt, and drive iron bars or wedges into it until a section —sometimes several tons — would fall off to the floor, where it was then broken up, and wheeled away for packing. In this instance two employés, named Brookmiller and Potts, went upon the top. Usually the men who did the undermining also had charge of breaking down. When ready to break down, the men going to the top gave warning. Plaintiff was injured by the fall of the salt, which was split off in the manner above indicated. Another employé was injured and one killed by the same fall. Plaintiff charges negligence upon the defendant in failing to warn him that a fall'was about to be made.
    The resident manager of the defendant, whose stock is mainly held in England, was one Davies. Under him were a Mr. Hutchings, the local superintending engineer, and a Mr. Davis, known as the yard foreman. There are several other departments of the business, each having its foreman. It is claimed that Mr. Davis was the alter ego, that Mr. Hutchings was also, and that one or both jointly ordered the fall in this case to be made without notice to those who were working and undermining the salt. The declaration contains three counts, — the first alleging that the direction was given by Hutchings; the second, that it was given by Davis in the presence and with the knowledge of Hutchings; and the third, that it was the concurrent act of both. The defenses claimed are: (1) That no negligence is shown on the part of the defendant; (2) that plaintiff was negligent; (3) that plaintiff was injured by a risk naturally incident to the business; (4) that the proximate cause of the injury was the negligence of Brook-miller and Potts, fellow-servants, in failing to give warning ; (5) that Davis and Hutchings were fellow-servants of plaintiff. Plaintiff recovered verdict and judgment.

      Pierce & Kinnane and Simonson, Gillett & Clark, for appellant.

      Isaac A. Gilbert (De Vere Hall, of counsel), for appellee.
   Grant, J.

(after stating the facts). The first four defenses may be disposed of by saying that they were all controverted questions of fact, and were properly submitted to the jury. If plaintiff was warned or had knowledge that Brookmiller and Potts were about to make the fall, or if sufficient warning was given and lie did not hear it, and continued about his work, or stood in dangerous proximity, he was guilty of contributory negligence. If he was not warned, and had no knowledge, then no negligence can be imputed to him. If it was the duty of Brookmiller and Potts to give warning, and they failed to do so, that was the negligence of fellow-servants, and the judge so instructed the jury. The court held that Davis and Hutchings were the alter egos of the defendant, and that if Davis ordered the fall to be made, and failed to give notice, then the defendant was liable. This presents the only question we need to determine.

The duty to give warning was not one which the defendant absolutely owed to the plaintiff. It was an act which is usually, and almost of necessity must be, delegated to a subordinate. It is within the rule stated by my Brother Montgomery in Schroeder v. Railroad Co., 103 Mich. 223 (61 N. W. 666, 29 L. R. A. 326, 50 Am. St. Rep. 362):

“The act which he performed or neglected — that of giving notice of the intention to move the engine — was such a one as might be, and generally is, intrusted to subordinates, and related to the mere operation of the business in its details. * * * It was plainly, therefore, the neglect of a fellow-servant, unless it can be said that the foreman was the vice-principal or alter ego of the defendant. ”

, Defendant had provided a competent foreman in the person of Mr. Davis. It would be a harsh rule which would make the defendant liable when it has employed a competent servant, and that servant does an act which may be and is delegated to him, and which does not involve an absolute duty which the master owes to his employe. The law does not impose such a liability unless the servant has been placed there to represent and stand in place of the master. Mr. Davies was the general local superintendent, having entire charge of the business, in which from 200 to 250 men were employed. Under him was Mr. Hutchings, who was the superintending engineer, and ordered the salt in this case to be removed in order to take up a pipe underneath. He had instructed Mr. Davis to remove it. The witnesses for the plaintiff testified that Mr. Davies was frequently around overlooking the business of the establishment, and was frequently seen talking with Hutchings and Davis. Plaintiff, and all the other workmen who testified, spoke of Mr. Davis as the yard foreman. There was a foreman provided for each branch of the work. Plaintiff testified:

“William Potts hired me. He was second foreman. My wages were fixed in the office. I had William Potts and Mr. Davis as foremen. Mr. Davis was foreman of the yard, — of the whole ground there outside of the building where they make the chemicals. While I worked there I worked outside, and Mr. Davis was the foreman and William Potts the second foreman. I have 'heard Mr. Davis direct Mr. Potts what to do. I don’t know whether there was any other foreman above Mr. Davis. Mr. Davis would walk around the yard, and look if the people were working, and directed all of the men outside of the yard. There was no other foreman besides Mr. Davis that directed all of the men outside of the yard. Mr. Hutchings was superintendent. Mr. Davis gave directions where to work and how to work, and also directed Mr. Potts where to work; and I think Mr. Hutchings had charge of the whole plant, and was superintendent. * * * Every gang has its own foreman, and above the foreman was Mr. Hutchings. He is the man we call the superintendent.”
On cross-examination he testified:
“Mr. Davies'is the general manager, and Mr. Hutchings is the superintendent. Mr. Davies goes through the works occasionally, and sees what is going on. He makes the trip once a day, or sometimes once in two or three days. Mr. Hutchings goes around in the same way, and talks with the foremen. I do not know of any other superintendent around there besides Hutchings. Mr. Davies is the general manager, and besides these two I don’t know anybody else.”

Another workman, a witness for plaintiff, testified that Mr. Davis was foreman; that Mr. Hutchings was over him; that Mr. Davies was the general manager; that he never watched him to know what he did; and that Mr. Hutchings hired him.

Another laborer, a witness for the plaintiff, testified that Mr. Hutchings—

“Had everything to see about the business that was going on there. He looked after all the business. They called him superintendent. I heard that Davies was general manager. I never saw Davies give any orders. Mr. Davis was kind of a foreman around the yard. He had a gang of men. Any heavy lifting or anything, Davis had to go and do, or his men, — unload coal, load salt on the cars, and one thing and another. Hutchings was above Davis.”

On cross-examination he testified:

Q. There is a laboratory department, and there is a boss over the laboratory department ?
“A. There is quite a lot of bosses in every room, I guess. There is a cooper shop there, and I guess there is a boss over the cooper shop. There are 20 salt sheds there, and there is a man named Hawley who is at the head of the salt department. Kelley is boss over the men that work wheeling out salt from the salt blocks. I don’t know how many men either Hawley or Kelley had.
Q. There is a man named Bord Davis. He is kind of a working boss over the repair gang ?
“A. He is boss over the yard gang; all the outside work.”

On redirect examination he testified: “Hutchings looked after all of those bosses.”

The above comprises all the testimony on the part of the plaintiff as to the position held by Mr. Davis. The testimony on the part of the defense is to the same effect, that Mr. Davis is the yard foreman, and acts under the instructions of Davies and of Hutchings. He also had the authority to employ and discharge men, and worked with the men when occasion required.

The question who are fellow-servants has been repeatedly discussed by this- court, and the principles governing the same have heen carefully determined. Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354); Wellihan v. Wheel Co., 128 Mich. 1 (87 N. W. 75); Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240); Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15); Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Lepan v. Hall, 128 Mich. 523 (87 N. W. 619). A general discussion of the subject is therefore unnecessary. The difficulty lies in applying the rule of those cases to the facts of a particular case. Each case must depend largely upon its own peculiar facts.

The defendant had performed all the duty the law required of it in providing a competent man to attend to the duties of yard foreman, and to direct and assist its employes in the performance of the labor for which they were employed. Mr. Davis, plaintiff, and other yard employés, were engaged in one common employment. All were paid by the day. Their labor was not skilled. It was labor which any man of ordinary intelligence could do or oversee. A foreman was required for the reason that, when several laborers are employed in the same work, it is necessary for the economical performance of the work that there be one man to direct it. For the same reason railroad companies employ foremen of their section gangs and of all their working gangs, and lumbermen employ foremen of their working gangs in the woods. If defendant is liable for this act of its foreman Davis, it would be liable fór the act of every foreman in every department of its business, no matter what its grade or character. This is not. the law in this State. Mr. Davis was not the general manager or superintendent, as was Mr. Neville in Shumway v. Manufacturing Co. 98 Mich. 414 (57 N. W. 251); neither was he intrusted with the general supervision of the business, as was the foreman in Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496), who had general supervision of the coal and freight business of the defendant, including the unloading of vessels laden with coal; nor as was the roadmaster or assistant roadmaster of the division of a railroad in Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180), and other similar cases; nor as was the mining captain in Ryan v. Bagaley, 50 Mich. 179 (15 N. W. 72, 45 Am. Rep. 35), who was intrusted with the entire control and management of the work of the mine. This case is controlled by the authorities first above cited.

Judgment reversed, and new trial ordered.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


text:
    JONES v. McMILLAN.
    1. Master and Servant — Negligence — Cause of Accident — Question for Jury.
    In an action for the death of plaintiff’s intestate, it was shown that one of the ‘ ‘ bents ” of a tramway, which he was assisting to build, gave way, letting down some heavy timbers, one end of which rested on another bent, on which was decedent; and that just at that time he fell from the bent, sustaining the injuries which caused his death. Defendants claimed that decedent’s fall was not caused by the jarring of the bent, and there was evidence that it was due to his own negligence. Held, that it was error to instruct the jury that it was undisputed that the jarring of the bent caused the fall, and that they should accept undisputed facts.
    2. Action for Death — Evidence—Mortality Tables.
    In an action for wrongful death, the mortality tables were properly admitted in evidence to aid the jury in determining the expectancy of life of the deceased, and of those who suffered damage by his death.

      3. Same — Damages—Instructions.
    But it was error to instruct them generally that an element of damages would be the amount the widow would probably have received from decedent during her expectancy, as shown by the tables, and the amount he would probably have contributed to the support of each child until it should attain the age of 21 years, to be determined by a consideration of the amount, of his previous contributions; since, under such instruction, the jury would naturally fail to consider the contingencies of death, marriage, and the impaired earning capacity of decedent.
    4. Same — Computations op Witnesses.
    And the computation of a witness as to the present worth of the probable future contributions of decedent, which excluded the considerations last mentioned, should not have been permitted to go to the jury as controlling their decision.
    o. Same — Personal Injuries — Survival op Action.
    Where one fatally injured through another’s fault survived for several days, a right of action existed in his favor, which survived to his personal representatives; but the statute giving a remedy for death by wrongful act has no application to such a case. Following Dolson v. Railway Co., 128 Mich. 444.
    6. Same — Amendment op Declaration.
    Whether a declaration counting on the death act, filed as commencement of suit, may be amended so as to set up a cause of action for negligent injuries, surviving to the personal representatives, — quaere.
    Error to Ontonagon; Haire, J.
    Submitted November 19, 1901.
    Decided December 10, 1901.
    Case by Annie Jones, administratrix of the estate of Ole Jones, deceased, against Benjamin P. McMillan, Charles V. McMillan, and George H. Reynolds, copartners as B. F. McMillan & Brother, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Ball & Stone, for appellants.

      A. E. Shuster (C. E. Miller, of counsel), for appellee.
   Hooker, J.

The defendants employed the plaintiff’s intestate to aid in the construction of a tramway to be used with and as a part of the defendants’ sawmill; and defendant Reynolds is alleged to have had supervision of its erection, being at the place of work at intervals, when he gave general directions to the men engaged. The defendants had previously been engaged in the business of manufacturing lumber in the adjoining State of Wisconsin, and this sawmill and the material being used in the erection of the tramway had seen use there. They were engaged in removing it to Michigan, and the mill had been reconstructed, and at the time of the accident the tramway was being rebuilt from the old materials. The men engaged in the work were workmen in their employ, and apparently were common laborers. The plaintiff’s intestate had worked about a sawmill for several years.

In the construction of this tramway, a long stringer extending across the northwest end of the mill was fastened to the mill by bolts. This furnished a support for one end of the timbers called “overlays,” which supported the floor or deck of the tramway. To make the tramway wider than the mill, the stringer first mentioned was extended to the southwest 12 feet by a piece of timber 8 inches square, supported at the ends by posts. This timber the witnesses call a “cap,”calling the stringer and its extension a “bent.” The tramway consisted of three bents, the second of which was about 16 feet from the first, and parallel with it, and the other was placed at a similar distance from the se.cond. The second and third were alike, and each consisted of five upright posts and four caps, each about 12 feet long. Eight by eight timbers were used for posts and caps, the latter being spliced in some instances. The bents were put together upon the ground, and raised by a team by means of a gin pole and pulley. Being raised, they were stayed both ways with 2x6 stuff, to keep them in place, and the top was stayed by plank extending from the mill to the third bent, the same being spiked to the caps. Overlays, as they were called, consisting of heavy timbers, were next to be placed at intervals of six feet, extending from bent to bent. These were hoisted by the team and pole. The deceased went upon the first bent or stringer, while one Roehm went upon the second bent, and these two received the overlays as they were hoisted, and laid them down, an end of each overlay resting on the caps. Subsequently they were to be distributed by carrying or rolling them over, or carrying them to their places. Instead of taking them to their respective places at once, the men allowed them to accumulate upon the outside row of caps to the number of six or seven, so that, at the time of the accident, the ends of six or seven rested on the cap upon which the deceased stood, while there were twice as many upon the cap that broke, as that carried ends of overlays extending both ways. In rolling one stick over the others it was allowed to slip, and it fell upon the cap of the second bent, and broke it, and the bent and timbers upon it went down together. Roehm, who was on this bent, dropped to the ground unhurt; while Jones either fell or was thrown from the cap of bent No. 1, and was injured so. severely that he died three days afterwards. This action was brought by his administratrix by filing declaration as the commencement of suit, counting upon the statute providing for recovery for causing the death of a person.

There are several assignments of error which we consider well taken. The court charged the jury as follows:

“ It seems, under the facts that are undisputed, that the cap of a certain bent broke, which we will call ‘ bent No. 2.’ The cap of that bent broke, and let down certain timbers that were piled thereon, and shook another bent, that we will call ‘bent No. 1,’ on which Mr. Jones, the intestate, was standing; and by reason of this falling of these timbers, caused by the breaking of the cap on bent No. 2, which jarred bent No. 1, so that Jones fell off and injured himself, by means of which he afterwards died.”

It was claimed by the defendants that Jones’ fall was not caused by the jarring of the bent. There was testimony that, at the time the cap broke, he sat astride of the other cap, and that the fall was due to his own negligence. This raised a question for the jury, and the court should not have taken it from them. He not only said that this was an undisputed fact, but added, “ Of course, the undisputed facts you will have to accept.”

Error is assigned upon the admission of the mortality tables. We have no doubt of their admissibility as an aid to the jury in determining the expectancy of life upon the theory upon which the case was tried, for it was necessary to determine such expectancy, not only of the deceased, but of those who were found to have suffered damage by his death. In the absence of other evidence, the tables would be controlling. Nelson v. Railway Co., 104 Mich. 587 (62 N. W. 993). But, as said in Damm v. Damm, 109 Mich. 622 (67 N. W. 985, 63 Am. St. Rep. 603), they are not necessarily conclusive. It was therefore error for the court to instruct the jury that:

“I charge you that, under the undisputed evidence in this case, the expectation of life of plaintiff’s intestate was 33.21, and the expectation of life of Annie Jones, the widow of said intestate, was 31.07 years; and I charge you, if you find a verdict for the plaintiff, that one element of the damages would be the amount that said Annie Jones would probably have received during said term of 31 years, and that, in determining that question, it is your duty to take into consideration the amount said plaintiff’s intestate had contributed towards the support of said Annie Jones during the lifetime of said plaintiff’s intestate.
“I further charge you that the undisputed evidence shows that, at the time of the death of plaintiff’s intestate, he left surviving him one child less than five years, one child less than three years old, one child less than two years old, and one child was born within six months after the death of said plaintiff’s intestate; and I charge you that one element of the damages which plaintiff in this case is entitled to recover, provided you find a verdict in favor of the plaintiff, is the amount which plaintiff’s intestate would probably have contributed to the support of said children until they should have respectively attained to the age of 21 years; and in determining this question it is your duty to take into consideration the amount which plaintiff’s intestate had contributed to the support of such children during his lifetime.”

The jury would naturally award damages for the entire expectancy, as shown by the tables, for the widow, and up to the age of 21 for each child, without considering the possibilities of death, marriage, and earning capacity of deceased in either case.

In this connection we will advert to the testimony of the witness Shuster. He testified that* taking $9 a week as the rate, he figured upon the basis of the mortality tables that the damages would be $8,172.52. But $9 a week was the entire earnings. He testified to another computation, based on an allowance of $1.80 a week for the support of the deceased, which gave $7.20 to the others, and made the damages $5,990.40, and the present worth $4,278.85. He explained his method of obtaining the present value. It was upon this testimony that the quotation from the charge rested, and the computation is subject to the same criticism that has been made to the charge. Moreover, the court instructed the jury further to the effect:

“Now, in this case there has been some testimony introduced about finding the present worth of the damages, if you find any damages, that this plaintiff has suffered, or that this estate has suffered. Now, if you consider those figures correct, you have a right to rely upon them. In no case can the amount exceed the sum of $8,172.52. Of course, add to that $116. I say it cannot exceed that amount. It may be less. It will be for you to determine. Whatever you find the present worth of the damages suffered by reason of the death of the plaintiff’s intestate is, add to that $116. The lowest amount figured by the witness Shuster on the stand is $5,425.50. ' Now, it is for you to say how much the plaintiff is entitled to recover in this case, if you find she is entitled to recover at all.”

The jury found a verdict for $4,362.96.

It was for the jury to determine the amount of damages to the individual upon the basis of his or her loss. Then it was necessary to determine the expectancy of life of all, and the ability of the deceased to earn, which involved the consideration of possible illness, and perhaps want of employment, and then it was necessary to estimate the present value. No instructions upon any of these subjects appear to have been given to the jury, and they may well have understood that their verdict must be within or between the amounts testified to by Shuster. For these errors the cause must be reversed.

There are many other questions involved in this case, but similar questions have been so frequently passed upon that their consideration would involve little more than making an application of the law to them. The rules ought to be well understood, and as the case, if tried again, must be upon an entirely different theory, we do not discuss them. From the undisputed facts it is apparent that the rule laid down in the recent case of Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629), was not followed. A right of action existed in favor of the deceased, which survived, if any right of action existed; and the statute does not give a right of action for causing this death. The case was therefore tried upon a wrong theory. The mistake appears to have been mutual, and it was, perhaps, a natural one, in view of the uncertainty then existing upon the rule that would ultimately be laid down by this court in such cases. The court refused to direct a verdict for the defendant, which should have been done; but not only was the attention of the trial court not directed to the reason stated as a ground for such request, but the same was not even mentioned in the original brief of the appellant, appearing for the first time in a supplemental brief, after the opinion in the Case of Dolson was filed. It is contended that the point should not be considered under such circumstances; but, as we have said, the case must be reversed on other grounds. Whether or not the declaration can be amended, and whether or not such amendment would constitute a new cause of action, not permissible under the statute permitting amendments, especially as the declaration, and not an original writ, was used for the commencement of suit, are questions not discussed, and we therefore refrain from expressing an opinion upon them. See Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44).

The judgment is reversed, and the cause is remanded for further proceedings.

Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    MESSENGER v. PETER.

    1. Equity Pleading — Cross-Bill—Order Pro Confesso.
    An answer in the nature of a cross-bill may be taken as confessed, in the absence of an answer from complainant. Ch. Rule 11, subd. c.
    3. Same.
    And in such case the new facts set up by the cross-bill must be accepted as true.
    3. Same:
    But the pleading is to be taken most strongly against the pleader, and, if the allegations are vague and indefinite, proof-should be required.
    4. Same — Title to Lands.
    Hence, where, in a suit to quiet title, defendant set up, by way of cross-bill, that he held a deed from the original owner of the premises, for which he paid a valuable consideration, without notice of any previous conveyance by- the grantor, and it appeared on the hearing that his deed was not one that would entitle him to protection as a bona fide purchaser, the court properly refused a decree for defendant, notwithstanding the cross-bill had been taken as confessed.
    5. Deeds — Execution in Foreign State — Recording Laws.
    Prior to Act No. 112, Pub. Acts 1891 (3 Gomp. Laws, § 8964), a deed executed in another State, if acknowledged before a notary public, was required to have a certificate authenticating the acknowledgment. By that act such certificate was made unnecessary in case the acknowledgment bore the seal of the notary; and it was further provided that, when any deed executed in accordance with such act had been theretofore recorded, such record should be prima facie evidence of the due execution of the deed, to the same extent as if authenticated as required by the statute in force at the time the deed was recorded. Where a deed executed prior to the passage of such act, conforming to the requirements thereof, but not to the statute in force at the time of its execution, was recorded subsequent to the passage of the act, held, that such record was prima facie evidence of the due execution of the deed.
    6. Taxes — Equalization—Boards of Supervisors.
    The statute providing for the equalization of the assessment rolls of the several townships, wards, or cities of a county by the board of supervisors (1 Comp. Laws, § 3857) contemplates that the assessing district shall be the unit for equalization; and an equalization which deducts a stated sum from the aggregate valuation of the several wards of a city is insufficient to authorize the levy of any State or county tax within the county.
    7. Recording Laws — Quitclaim—Bona Fide Purchaser.
    An unrecorded deed is superior to a subsequent quitclaim from the same grantor.
    8. Equity Jurisdiction — Quieting Title — Possession.
    So long as the defendant in a suit to quiet title is not in possession, it is immaterial that complainant is not, or that a third person is. 1 Comp. Laws, § 448.
    Appeal from Montcalm; Davis, J.
    Submitted November 20, 1901.
    Decided December 10, 1901.
    Bill by Helen Messenger against James B. Peter to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      N. 0. Griswold, for complainant.

      G. W. Davis, for defendant.

       Rehearing denied February 11, 1902.

   Hooker, J.

To a bill filed to quiet title, containing the requisite allegations of title in the complainant, and that defendant was claiming title under several void tax deeds and was not in possession, the defendant filed an answer in the nature of a cross-bill, which, after denial of the complainant’s title, and claim of title by the defendant under several tax deeds, alleged title in the defendant under a deed from the owner of the government title, for which he paid a valuable consideration, and that he took said deed without notice or knowledge that said owner had previously conveyed the premises. The answer prayed that the defendant be decreed to be the owner in fee, and, in the alternative, that his tax titles set up in complainant’s bill might be decreed liens upon the premises, and that they might be foreclosed in this cause. No answer was filed to this cross petition or bill as provided by subdivision c of.Chancery Rule 11, and an order taking it as confessed was entered, as may be done in a proper case. See Coach v. Kent Circuit Judge, 97 Mich. 563 (56 N. W. 937); 2 Daniell, Ch. Prac. 1553, note 1; 1 Hoff. Ch. Prac. 353; Jenn. Ch. Prac. 394; White v. Buloid, 2 Paige, 164.

The defendant claims that complainant’s default required that the court accept' as true the new facts set up in the cross-bill, viz., that the defendant obtained a deed of the premises from the original owner, that he paid a valuable consideration therefor, and that he took it without notice or knowledge of a former conveyance of the same. The rule is that such allegations of fact must be taken as true upon an order pro confessoj and the complainant cannot, therefore, question upon this record the allegations that defendant took a deed from the person who at one time held original title, for value, and without notice of his previous conveyance.

To complete her chain of title, the complainant produced the record of a deed from John D. Fargo to one Meadows. The deed appears to have been dated on July 22,1890, and executed upon that day before a notary public in South Dakota, who appended a certificate of acknowledgment under his notarial seal. There was no record of a certificate authenticating this acknowledgment, and at the time of the execution of the deed such was necessary to entitle it to record. The “deed was recorded on November 29, 1893. At that time it was entitled to record, unless the statute (3 Comp. Laws 1897, § 8964) which was passed in 1891 (see Act No. 112, Pub. Acts 1891) should be applied to such unrecorded deeds only as were executed after its passage. The deed was valid between the parties when executed, under our decisions. Had it been recorded at once, though before the act took effect, such record would now be evidence, under the express provisions of the law. The act clearly evinces a legislative intent to make the record evidence, although the deed may have been executed and recorded before the law was passed; and we 'see no reason for believing that it was the design to cure a record already made, but to refuse record to a pre-existing deed, valid between the parties, and having the statutory requisites. The record was admissible, and complainant’s title was established prima facie.

The tax deed for the tax of 1886 is attacked upon several grounds, among which is the claim that the equalization by the board of supervisors was invalid. The record of the board of supervisors shows the following:

_ “Proceeding at-the June session of the board of supervisors of Montcalm county, continued and held at the court-house in the city of Stanton, in said county, on Thursday, June 17th, A. D. 1886.
“The committee on equalization, by Mr. Hoy, submit their report. The report, upon motion, was thereupon adopted by the following vote: Ayes: Messrs. Avery, Baker, Coats, Church, Dickinson, Dyer, DeWolf, Denton, Holland, Hoy, Johnson, Lucas, Maynard, Miner, Porter, Rice, Stevens, Satterlee, Whitelery, Ward — 20. Nays: Messrs. Coutter, Jenson, Newton, Swarthout — 4.
“Mr. Jenson moves that the sum of $10,000 be deducted from the equalized valuation of the township of Cato, which motion was lost.”

Following the foregoing was a table under headings as shown below, the amounts being placed opposite the names of the towns, in which appeared the township of Home and the city of Greenville, among others, thus:

The points relied upon to invalidate the equalization are: First, that the record does not clearly show what was adopted as the report of the committee; second, the grouping of the three wards of Greenville for the purpose of equalization, it being contended that these wards should have been mentioned separately in the respective columns.

The statute (1 Comp. Laws, § 3857) requires the board of supervisors to “examine the assessment rolls of the several townships, wards, or cities, and ascertain whether the relative valuation of the real property in the respective townships, wards, or cities has been equally and uniformly estimated.” See Act No. 153, Pub. Acts 1885, § 100. If they deem it unequal, they proceed to equalize it in the manner thereinafter pointed out, for the purpose of apportioning the State and county taxes; and their action must be certified to upon each roll, which shall thereafter be delivered to the supervisor of the proper township, ward, or city. It is apparent from the foregoing that the assessing district was intended to be the unit for equalization, and an equalization that deducts an aggregate sum from the total valuation of three wards cannot be helped by a presumption that the wards have been compared separately with each other and with other townships. It might as well be said that an aggregate deduction from the total assessed valuation of real estate in the county would show that a comparison had been made, and that, while assessments had been excessive, they were uniformly so, and therefore that an aggregate deduction should he made from all at a rate to be ascertained by ratio and proportion.

It is contended that it is not shown that the tax was made excessive by this attempt at equalization, and therefore the tax cannot be held invalid. The same might be said had no attempt at equalization been made. It may be that the taxes upon this property in the township would not have been affected by a proper equalization of the wards in Greenville, and such taxes might have been less; but we have no way of knowing what the effect would have been had the equalization been made. The equalization affects the entire county,' — a change in one assessing district increasing or diminishing the tax in every other. This attempted equalization was no equalization, and there was therefore no jurisdiction to levy any State or county tax. Yelverton v. Steele, 36 Mich. 62; Maxwell v. Paine, 53 Mich. 30 (18 N. W. 546); Auditor General v. Roberts, 83 Mich. 471 (47 N. W. 442). We are constrained to say, therefore, that the sale and deed for the tax of 1886 were invalid.

It remains to inquire whether defendant’s deed of the original title is a defense to this suit. It is shown that his grantor had parted with his title some years before, by his deed to Meadows, complainant’s grantor. The deed to the defendant was a quitclaim, and was of itself ineffective to convey a title if the vendor had none. Peters v. Cartier, 80 Mich. 124 (45 N. W. 73, 20 Am. St. Rep. 508). If it can be made effective, it must be by reason of the recording act, or complainant’s failure to answer the cross-bill. Any doubts that may have existed as to the superiority of an unrecorded deed over a subsequent quitclaim deed from a common grantor are settled by the case of Peters v. Cartier, 80 Mich. 129 (45 N. W. 73, 20 Am. St. Rep. 508), where it was unqualifiedly said that “those who take by quitclaim deed are not bona fide purchasers.” Other Michigan cases bearing upon the question are Battershall v. Stephens, 34 Mich. 74; Eaton v. Trowbridge, 38 Mich. 460; De Veaux v. Fosbender, 57 Mich. 587 (24 N. W. 790). Of these cases, the earlier ones intimate that a grantee under a quitclaim deed maybe a bona fide purchaser, and therefore entitled to the benefit of the recording laws in regard to purchase without notice. The later cases seem to cast some doubt upon the proposition, while the case of Peters v. Cartier, supra, which deals with a deed which does not limit the land conveyed to the interest of the grantor, explicitly states that notice must be taken of the rule that a quitclaim deed conveys no more interest than the grantor has to convey. See, also, Beakley v. Robert, 120 Mich. 209 (79 N. W. 193); Otis v. Kennedy, 107 Mich. 321 (65 N. W. 219); Hoffman v. Simpson, 121 Mich. 501 (80 N. W. 1133); Dickerson v. Colgrove, 100 U. S. 578; Baker v. Humphrey, 101 U. S. 494. It becomes unnecessary, therefore, to inquire whether Meadows or his grantee was in possession in 1893, when this deed was taken, though we think there is little doubt that he was, under the proof.

- But it is said that the complainant-has admitted that the defendant has the original title, by her failure to answer the cross-bill. Had the cross-bill merely stated generally that the defendant was the owner of the original title, it may be doubted whether the fact would be sufficiently well pleaded to justify a decree pro confessoj but we need not decide that question, because in this case defendant qualified, the statement by setting up that he had a deed from the person who held the title, and that he paid for it, and took it without notice that he had previously conveyed. This pleading should be taken most strongly against the pleader, for the purpose of determining the character of the complainant’s admissions; for it is only when the allegations of the bill are clear and positive that proof is unnecessary upon default. Where, as in this case, the allegation is vague and indefinite, proof should be required. Ward v. Jewett, Walk. Ch. 45; Puter. Pl. & Prac. 105. Hence we may say that she at most admitted that the deed mentioned was a quitclaim deed, as in fact it was. Had the cross-bill expressly stated that it was a quitclaim deed, the complainant might safely have permitted it to be taken as confessed; for, as we have seen, it would have failed to state a title that could prevail over the deed to Meadows. It appeared upon the trial that defendant’s title did-rest on a quitclaim deed, and that fact of itself justified the court in refusing to grant a decree for the defendant upon an admission clearly disproved. While an order pro confesso permits the taking of a decree without proofs, it is only such a decree as the court thinks just (1 Barb. Ch. Prac. 369), and only in conformity to the material allegations (Ward v. Jewett, supra; Covell v. Cole, 16 Mich. 223).

There is nothing in the claim that the complainant was not in possession when her suit was instituted, because it is not pretended that the defendant was in possession, and therefore, under 1 Comp. Laws, § 448, it was immaterial whether she was in actual possession or not; and this statutory right is not affected by the fact that a stranger to the suit occupies the land.

The decree of'the circuit court is affirmed, with costs.

Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.