text:
    BARRON v. MEYERS.
    Receivers — Appointment — Answer — Conolusiveness — Chancery Rule.
    The coming in of a sworn answer is not, under Chancery Rule 10, conclusive of the right of the circuit court to appoint a receiver of property involved in a hill to compel a reconveyance for fraud.
    Appeal from Macomb; Tucker, J.
    Submitted February 17, 1905.
    (Docket No. 198.)
    Decided June 8, 1905.
    Bill by Theodore Barron against Addie E. Meyers and M. A. Meyers for the reconveyance of certain property, an accounting, and the appointment of a receiver. From an order appointing a receiver, defendant appeals.
    Affirmed.

      Byron B. Er shine ( Varnum J. Bowers, of counsel), for complainant. '

      Seth W. Knight and Silas B. Spier, for defendant.
   Ostrander, J.

Complainant gave to defendant M. A. Meyers an option in the following form:

“ In consideration of $100 cash in hand paid, receipt of which is hereby acknowledged, I grant unto M. A. Meyers, or his assigns, an option to purchase my three-story brick store and office building and appurtenances thereto, which is situated on Gratiot Ave. and Walnut St., Mt. Clemens, Macomb Co., State of Michigan; for the sum of $48,250. I agree to make deed of general warrantee to M. A. Meyers or his assigns at any time on or before August 15th, 1903, and agree to accept in payment for the above amount $48,250, as follows: $2,400 cash, 50,000 shares of Jubilee Mining Co., Ltd., stock amounting to $4,000; $3,000 in first mortgage bonds of the Interstate Consolidated Mineral Co., said bonds secured by first mortgage on property known as Big Master Mine, amounting to $3,000; 27,500 shares of Interstate Consolidated Mineral Co., stock amounting to $19,250, and.the said Meyers agrees further to surrender a note for $1,600 which is held by him, dated June 16th, 1903, payable three months after date, and also to assume payment of a mortgage for $18,000 which now stands against said property, upon the delivery of the above specified certificates of stock, bonds, etc. I agree to make a deed of general warrantee free from all incumbrances except the above recited mortgage, unto M. A. Meyers or his assigns, and in case this option of purchase is not exercised on or before midnight of August 15th,.the same to be null and void and the $100 paid thereon shall be forfeited; but in case the option is exercised then the $100 to apply upon cash payment of $2,400 which is to be made.
“In witness whereby set my hand and seal this 3rd day of August, 1903.
[Signed] “Theodore Barron.
“Witness:
<«__
( C___ »

The option was exercised and the property exchanged; complainant deeding his real estate to defendant Addie E. Meyers, who is wife of M. A. Meyers. On August 19, 1904, complainant filed his bill, charging therein that the giving of the option and the trade were induced by the false and fraudulent representations of M. A. Meyers as to the value and situation of the property conveyed to complainant; that defendant Addie E. Meyers paid no consideration for the property deeded to her, and is in no sense a bona fide purchaser thereof, but holds as trustee for her husband. The bill avers the tendering back of the property which complainant received, and a demand for, and refusal of, a reconveyance. The property, re-conveyance of which is sought, is described as an office and store building, worth, with the land conveyed, $50,000, and that the annual rents are $4,000. The insolvency of both defendants is charged, upon information and belief. The bill prays a reconveyance to complainant, an accounting, and for a receiver of the property which complainant used to own. Sworn answers were demanded. Defendants filed their several sworn answers, accompanied by affidavits showing the value of the building in question, after the coming in of which, and on September 14, 1904, the court made an order appointing a receiver of the said property, empowered to collect the repts, pay taxes, perfect insurance thereon, and make necessary repairs. From this order, defendant Addie E. Meyers has appealed to this court.

Chancery Rule 10, read in the light of Roberts v. Miles, 12 Mich. 297, and Newlove v. Callaghan, 86 Mich. 301, does not make the sworn answers of defendants conclusive. Their force as evidence was matter to be determined by the circuit judge. A careful reading of the bill, the answers, and affidavits has not led to the conclusion that the order appointing a receiver should be set aside.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    ERICKSON v. CUMMER MANUFACTURING CO.
    1. Master and Servant — Personal Injuries — Defective Machinery — W ARNING.
    Negligence cannot be predicated on failure to instruct a servant that an appliance was frail and insufficient to protect him, where the fact was apparent to him and. he did not rely upon its strength.
    2. Same — Defective Machinery — Negligence.
    The removal from a planer of a hood and blowpipe used to carry away dust and shavings is not negligent with respect to an operative hurt by contact with the planer knives, where there is no evidence that it was ever used for the protection of operatives.
    3. Same — Assumption of Risk.
    By using the planer without the hood, the operative assume'd the risk of injury therefrom.
    Error to Wexford; Chittenden, J.
    Submitted April 5, 1905.
    (Docket No. 21.)
    Decided June 8, 1905.
    Case by Arthur Erickson, by his next friend, against the Cummer Manufacturing Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Charles A. Withey (F. E. Wetmore, of counsel), for appellant.

      Crane & Norris (E. Eugene Ha,skins, of counsel), for appellee.
   Hooker, J.

The plaintiff, a young man about 18 years of age, lost his hand by getting it in contact with the knives of a pony planer which he was operating for the defendant. He brought this action to recover damages, and counsel say in the brief that the defendant was negligent in the following particulars:

“(a) Failing to keep the planer in good repair, and have on it a good strong hood over the knives, and a blowpipe to carry away the dust and refuse, and using an improper machine for the work in hand, that often clogged and failed to carry the material through.
(b) Failing to tell plaintiff that the guard put on the machine in place of the hood that used to be on it when plaintiff used it was weak and frail, and would not protect him from the knives, like the hood.
(c) Using the planer without a cover over the knives, and without a blowpipe to carry away the dust and refuse.
(cl) Putting in place of the hood formerly on the machine a guard of tin, sheet iron, or other frail substance, which was of the same color as other iron, and as the other parts of the machine, and well calculated by its appearance to deceive the plaintiff.
(é) Giving the plaintiff no warning of the frailness of the new appliance which had been substituted for the hood.”

After hearing the testimony, the court directed a verdict for the defendant, and the plaintiff has appealed.

The plaintiff had worked at the planer on several occasions, and somewhat more frequently at a larger planer, which resembled it in its main features. Previous to the" day of the accident this planer had been covered with a hood and blowpipe, attached by defendant after its purchase, to take away the chips and dust made by the machine. This was removed for the purpose of rearranging the machinery in the mill, and this planer had been moved. In place of the hood and blowpipe a sheet iron deflector had been riveted to the front of the planer, extending upward and over the rolls, for the purpose of turning the chips away from the operator, whose place was in front of the machine. At times, material in the planer would get stuck, when it was customary for the operator to go to the rear of the machine and pull the sticks through. It was in an attempt to do this that the plaintiff was hurt. He was unable to tell just how the accident happened, but said that he felt his hand hit the deflector, and simultaneously his hand was in the knives. He did not know whether he slipped and fell or not. He did not say that he rested his hand upon the deflector or any other part of the machine. He said that he saw the knives, which were evidently in plain sight, and knew that he would get hurt if he got his hand in contact with them.

(a.) There was no evidence that this planer was not in good repair, or that it was an improper machine for the work in hand, or that its clogging was due to any defect in the machine or fault of the defendant.

(6) There is no substance in the claim that the plaintiff should have been told that the sheet-iron deflector was weak and frail, and would not protect him from the knives as a hood would do, because (1) it was apparent, and the plaintiff must have known it; and (2) there is nothing to indicate that he relied upon its strength in any way. The testimony is quite as consistent with the theory that he slipped and fell against it, as that he placed his hand upon it as a brace to enable him to pull the stick out of the machine. It is perhaps quite as probable that he simply reached in too far and got his hand in the knives. There is no evidence in the case justifying a verdict that it was negligence to use this deflector.

(c) The same may be said regarding the absence of the hood and blowpipe. They were used for the purpose of removing the chips and dust, and for no other purpose; and there is no evidence that such was ever used for the protection of operators, or that planers are ever covered for such a purpose. Furthermore, the situation was apparent, and the plaintiff assumed the risk of using the machine as it was.

(d) We are able to say from the testimony and photographs that the deflector was not calculated to deceive the plaintiff, and, furthermore, that there is no evidence to support the theory that he was so deceived.

(e) This is but a repetition of the claim made in “ 6.”

The judgment is affirmed.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


author: Carpenter, J.

text:
    ANDERSON CARRIAGE CO. v. PUNGS.
    .1. Appeal and Error — Decision on Former Appeal —Rule of Case.
    A determination on a former review that the case is for the jury is binding on a subsequent review, the evidence being in legal effect the same.
    .2. Evidence — Materiality — Fact Establishing Antecedent Probability of Other Evidence.
    A fact which, though not necessary to the completeness of plaintiff’s case, lends probability to otherwise improbable or unnatural testimony in plaintiff’s favor is admissible.
    Error to Wayne; Mandell, J.
    Submitted April 14, 1905.
    (Docket No. 73.)
    Decided June 8, 1905.
    Assumpsit by the Anderson Carriage Company against William A. Pungs for the breach of a contract to convey certain patents. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Russel & Campbell, for appellant.

      Dwight C. Rexford, for appellee.
   Carpenter, J.

This is the second time this case has "been before this court. Our former opinion will be found in 134 Mich. 474. On that occasion we reversed a judgment in favor of plaintiff. A second trial has been had, resulting in a judgment in favor of defendant. Plaintiff asks us to reverse that judgment. As the facts are fully- stated in our former opinion, we content ourselves with making a brief statement: February 12, 1897, two corporations, viz., the Anderson Manufacturing Company and the Michigan Railway Supply Company, consolidated and formed a new corporation, known as the Pungs-Anderson Manufacturing Company, which subsequently, by change of name, became the Anderson Carriage Company, plaintiff herein. The capital stock of this new company was $170,000, of which $100,000 was distributed to the stockholders of the Michigan Railway Supply Company, and $70,000 to the stockholders of the Anderson Manufacturing Company. On the 31st of December, 1897, the American Brake Beam Company canceled a contract made between it and the Michigan Railway Supply Company. It is the claim of plaintiff that, as the result of this cancellation, the business contributed to the new or consolidated corporation by the Michigan Railway Supply Company became almost entirely worthless; that shortly thereafter it was orally agreed by said defendant, Pungs, that in consideration of the pfomise of certain officers of the consolidated company to continue their connection with the company, and to refrain from doing anything towards winding up its affairs, he would make good the loss resulting from the cancellation of said contract by transferring certain patents to said consolidated company; and that said Pungs, after the performance of said oral contract on the part of the officers of said consolidated company, refused to perform the same as agreed. This suit is brought to recover damages for breach of said oral contract.

In answer to plaintiff’s claims of error, defendant contends that a verdict should have been directed in his favor. Defendant made the same contention on the former hearing of this case, when the record did not, in legal effect, differ from that now before us. He then advanced in support of his contention substantially the same arguments that he now advances., Our decision overruling that contention disposes of the present contention.

The disputed issue in this case was one of fact. The question was, Did defendant make the oral agreement to turn over the patents, as contended by plaintiff’s witnesses ? The testimony of plaintiff tended to prove that such an agreement was made. Defendant testified that no such agreement was made. As bearing upon the probabilities, plaintiff sought to prove that at the time of the consolidation, 10 months before the agreement was made, defendant made a statement or representation in regard to his business which it was proposed to contribute to the consolidation.” The learned trial judge excluded this testimony and testimony showing the character of said representation. Was this ruling correct? The excluded representation made by defendant as averred in the declaration, and as shown by the former record, was that the Michigan Railway Supply Company had an earning capacity equal to 10 per cent, of its capital stock, of $40,000 per annum. It may be conceded that the excluded representation was not essential to the legal completeness of plaintiff’s case. It had no direct bearing upon defendant’s liability. That liability depends upon whether or not defendant made the alleged oral agreement. If he made that agreement, he is liable. If he did not make it, he is not liable. The excluded representation was therefore important only because it bore upon the probability of the agreement having been made. In considering its admissibility, it is to be' borne in mind that this is a peculiar case. Plaintiff claims that defendant, Pungs, a single stockholder in the Michigan Railway Supply Company, agreed to alone make up the entire shrinkage in the value of the business which that company contributed to the new corporation, and that he made this agreement upon a consideration not directly beneficial to him, but indirectly beneficial only because he was a stockholder in the corporation to which the consideration moved. In the absence of testimony such as was excluded, it would strike the ordinary mind with great force that there was no reason why defendant should have made such an agreement, and that therefore the testimony that he did so agree is very improbable. Under such circumstances, the argument would suggest itself to any intelligent jury, even if it was not suggested by counsel, as it may well be presumed it was, that such testimony is so improbable that it should be discredited. If, on the other hand, whether innocently or otherwise, defendant had made the representation under consideration — that is, had brought about the consolidation by inducing the belief that the Michigan Railway Supply Company had an earning capacity of $40,000 per year— both the equity and probability of his undertaking to make good the loss of such earnings is apparent. If such representation was made, plaintiff’s claim is equitable; if not, it is inequitable. If such representation was made, plaintiff’s testimony respecting the alleged agreement is probable and credible; if not, it is improbable and incredible. We think, under such circumstances, the jury should have had the benefit of this excluded testimony. Without it, they got an imperfect and erroneous view of the situation. Authority for its admission is found in the reasoning of this court in People v. Jenness, 5 Mich. 323, 324, where, speaking through Justice Christiancy, it is said:

“ In any case where a witness has testified to a fact or transaction which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable, such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction — a link in the chain of testimony, without which it would be impossible for the jury properly'to appreciate the testimony in reference to such principal transaction. And such previous facts should therefore be elicited by the examination of the party producing the witness. Any other rule in such a case would be grossly unfair towards the witness, render a trial a process for suppressing rather than eliciting the truth, and defeat the very objects for which courts of justice are instituted.
“In the order of nature, facts do not occur single and independent — isolated from all others — but each is connected with some antecedent fact or combination of facts from which the fact in question follows as an effect from a cause. Torn from this necessary connection, and exhibited alone, many real occurrences would appear under the guise of falsehood, and truth itself would be made to lie.
“ To permit the evidence, therefore, of an isolated transaction, which could only be made to appear probable by exhibiting the antecedent facts which induced it, and yet to exclude from the investigation all such antecedent facts, would be to set at defiance the order of nature and the laws of truth which God has stamped upon the human mind.”

During the examination of one of plaintiff’s witnesses a remark was made by one of defendant’s counsel, which was uncalled for and which was improper. Whether or not it constituted reversible error, we do not feel called upon to determine.

•There is no occasion to consider any other complaint.

For the error pointed out, the judgment is reversed, and a new trial granted.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


text:
    ROOT & McBRIDE CO. v. WALTON SALT ASS’N.

    1. Pleading — Variance — Joint Contractors — Amendment — Court Rules.
    Plaintiff declared in assumpsit against two defendants on a contract made by them jointly, but, before offering any evidence, stated that the two defendants did not contract with him, ,but that one or the other of them did, and wished the jury to say which. The proof showed that one of the defendants made the identical contract declared on, and judgment was rendered against him. Held, that the procedure was authorized by Cir. Ct. Rule 27 b.

      2. Sales — Contract—Evidence.
    In. an action for the price of salt bags, it appeared that the bags were ordered by a sales agent on the credit of the manufacturer pursuant to a prospective arrangement known to the seller, whereby the agent was to handle the entire output of the manufacturer, the manufacturer furnishing the bags. The bags were retained until after the negotiations with the agent fell through, when the manufacturer informed the seller that the bags would not be wanted. Held, that the manufacturer was liable.
    Error to Wayne; Frazer, J.
    Submitted April 12, 1905.
    (Docket No. 63.)
    Decided June 8, 1905.
    Assumpsit by the Root & McBride Company against the Walton Salt Association, Limited, and the G. N. Skinner Salt Company for goods sold and delivered. There was judgment for plaintiff against the Walton Salt Association, and said defendant brings error.
    Affirmed.

      Frank F. Hobson, for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.

       Rehearing denied January 23, 1906.

   Hooker, J.

The plaintiff sued the Walton Salt Association, Limited, and the G. N. Skinner Salt Company, for the purchase price of $1,800 worth of salt bags. The declaration was the common counts, accompanied by a bill of particulars. The testimony shows an order for bags dated April 22, 1902, signed, “Walton Salt Association, Ltd. Angus Smith,” shipment to be made to the “Walton Salt Association, Ltd.” A second order, dated June 20, 1902, signed G. N. Skinner, directing goods ordered therein to be shipped to G. N. Skinner Salt Company, Detroit, and charged to Walton Salt Association, was also shown. Upon the trial the plaintiff, through its attorney, disavowed any claim that there was a"joint liability by the defendants, but claimed that one or the other was liable, and asked that it be left to the jury to determine which was its debtor. It seems to have relied upon its claim against the Walton Salt Association, asserting that the bags were ordered for, delivered to, and used by it or its agent, Skinner, in and about its business, in pursuance of an arrangement between them whereby Skinner or the Skinner Salt Company was to handle the entire output of salt that should be manufactured by the Walton Salt Association.

At the close of the testimony the defendant asked the court to direct a verdict against the plaintiff, but the case was left to the jury upon three theories:

1. That the Walton Salt Association had contracted to pay for the bags.

2. That it had led plaintiff to believe that Skinner was its agent authorized tq order bags for it.

3. That there was a custom of the trade or parties under which the Walton Salt Association would be chargeable with the bags.

The defendant has appealed from a judgment for the plaintiff. Defendant contends:

1. That there was a misjoinder of defendants, which entitled it to a verdict.

2. There was neither contract authorizing a purchase of the bags on the account of the Walton Salt Association, nor a ratification of such purchase.

3. There was no proof of a custom of the trade binding upon the Walton Salt Association, and such a custom, if proved, would be unreasonable and void.

The declaration, in form, charges a joint contract. To prove it, evidence was required showing that the two defendants, upon the one part, made a joint contract with the plaintiff, upon the other. Before any proof was offered, the plaintiff’s counsel abandoned such? a claim; saying that the two defendants did not contract with him, but one or the other of these defendants was the contracting party, and he did not know which, and wished to leave the question which one was liable to the jury. In other words, he admitted that, knowing that only one person had made a contract, he had joined two, alleging a joint contract, relying on Cir. Ct. Rule 27 as authority for the practice. Alleging a joint contract, though he knew it was not joint, he seeks to prove a contract in terms several, against one or the other of two persons, without change in his declaration; leaving-the jury to say which of the two made the contract. Had he set up the true situation in his declaration, he should have alleged a several contract, in the alternative, or joined two counts; one alleging a contract by one, and the other by his codefendant. That either course would have been anomalous, if not bad, pleading, under any known rules, is manifest. Subdivision 6 of Cir. Ct. Rule 27 is not new, having existed a long time as Rule 71. Under it, one who had alleged a joint contract against two or more might “ discontinue against any of them,” and might “amend his declaration and proceed against the other defendants,’’etc. To do this he found it necessary to charge a different contract, either by alleging a several contract against the one remaining defendant, or by alleging a different joint contract if more than one defendant remained. No violence was done to established rules of pleading by this practice, for it left the right to remaining defendants to make any defense they might please, even though their default had been already entered. See Munn v. Haynes, 46 Mich. 140; Codd v. Seitz, 94 Mich. 193, and cases cited. The rule as construed in Durgin v. Smith, 115 Mich. 239, Wright v. Reinelt, 118 Mich. 639, and McPherson v. Pinch, 119 Mich. 36, has the effect of allowing a jury to disregard the fact of a misjoinder of defendants where the proof shows that the contract alleged was made jointly by all of the other defendants, and to render a verdict against those who did make it or who remain liable upon it; apparently disregarding the fact that the proofs constitute a technical variance from the declaration. Whether the plaintiff in this case knew when the declaration was filed that this was not a joint obligation, and, if he did not, when he discovered the fact, is not apparent, and perhaps it makes no difference whether his allegation of joint liability was made in good faith or not. The record shows such a claim, while the proofs and admissions show that one of the defendants did not make the contract, and that the other did make identically such a contract. The rule as interpreted covers such a case, and the worst that can be said about it is that an error in naming parties to the contract is disregarded.

The evidence shows that one of the orders was made by the defendant association at an interview between Smith, the secretary of the Walton Salt Association, Skinner, and plaintiff’s agent Gollier, on April 22, 1902, but it provided that it should be canceled in case plaintiff could not furnish a “ Bates Valve Bag Machine ” by June 1, 1902. The machine was not furnished, and the bags were sent to the Walton Salt Association after that date. There is little dispute, however, that the bags were received upon both orders, and retained by the Walton Salt Association until its negotiations with Skinner came to an end, when it was determined by the association that it did not want the bags. That it knew that the plaintiff expected to furnish these bags upon Skinner’s order, but upon its credit, is legitimately inferable from the proofs; and the court would have been justified in so stating to the jury, for there is no evidence to the contrary. It is therefore unimportant that the court allowed the doubtful question of custom to go to the jury, inasmuch as the testimony as conclusively shows that it received and kept the goods for a long time, and until it found it would have no use for them, by reason of the failure of its negotiations with Skinner. As late as June 7th it received a letter and some sample bags, and on June 27th sent plaintiff some salt to use in determining the size of bags, and later all of the bags were received by it; and not until November 7th did it inform plaintiff that they were held subject to its order. It is true that there was testimony that the Walton Association informed Skinner that it had received, but would not accept, bags, but this did not discharge its duty toward the plaintiff of notifying it if it intended to rely upon its alleged cancellation of the first order.

To recapitulate: We are of the opinion that the undisputed evidence shows that the Walton* Salt Association was to furnish the bags for its salt, and that it gave one order, and recognized the validity of the second when it was given; also that the plaintiff had a right to understand that it did so, from the conversation with Collier, taken in connection with its conduct in relation to the bags, which were shipped, and its failure to inform it that it did not wish to receive the bags sent.

The judgment is affirmed.

Moore, C. J., and Carpenter, McAlvay, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    HENRY v. ANN ARBOR RAILROAD CO.
    Master and Servant — Railroads—Fellow-Servants—Station Agent — Freight Conductor.
    A freight conductor riding on the ladder of a freight car was hurt by contact with a movable platform immediately after being placed in position by the station agent to facilitate the loading of milk onto an expected passenger train. There was no defect in the construction or repair of the platform. Held, that the company was not liable, the agent, while performing that duty, being a fellow-servant of the conductor.
    Error to Shiawassee; Smith, J.
    Submitted April 25, 1905.
    (Docket No. 83.)
    Decided June 8, 1905.
    Case by T. Henry against the Ann Arbor Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      T. W. Whitney (.Alexander L. Smith, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Blair, J.

This cause comes into this court on a writ of error to the circuit court of Shiawassee county, by which it is sought to reverse a judgment rendered in favor of the plaintiff. The plaintiff was a freight conductor in the employ of defendant company. On the 21st of July, 1903, he was injured — losing his right arm — by being run over by the train of which he was in charge at the station at Whitmoré Lake, on the line of defendant’s railroad. At the time of the accident he was employed as a conductor of a freight train running between Durand and Toledo, and had been so employed for about nine or ten months. The declaration contains three counts. The first contains the following language:

“Said defendant carelessly and negligently built and •constructed a milkhouse with a platform thereon dangerously near the main line of said defendant, and it carelessly let down and left its platform in such a condition that it was so near the main line of said defendant’s railroad at Whitmore Lake, a station on defendant’s line of road, that while this plaintiff was climbing up the side of the car in the performance of his ordinary work as a conductor of said freight train, and to which said car was attached, said platform came in collision with this plaintiff while he was in the exercise of due and ordinary care, and in no way guilty of any negligence that contributed thereto; and by reason thereof he was knocked from the side of the car onto the track, and run over by said train, cutting off his fight arm.”

The second count, after setting forth the duty of providing a safe place, etc., is as follows, to wit:

‘ ‘ But. notwithstanding the duty aforesaid, it carelessly and negligently constructed a milkhouse near to its main line of track, and within six feet thereof, and constructed a movable platform on this milkhouse, which worked up and down by the use of pulleys, so that when said platform was dropped down it came up to the cars on the main line of said defendant’s railway.
“ And on, to wit, the 21st day of July, 1903, while plaintiff was engaged in his regular employment as conductor, and was going up the side of the car, which was attached to a freight train, which was in motion, he came in collision with said platform, which then and there fell down and struck this plaintiff, and caused him to collide therewith, and knocked him with great force and violence from the side of said car to the ground, causing him to be run over by said train, cutting off his right arm.”

The third count is as follows, to wit:

“And for that whereas, said defendant being a railway corporation as aforesaid, and said plaintiff being an employe of said defendant as above described, said defendant owing him the duty, as above set forth, said defendant carelessly, negligently, wantonly, and with gross negligence constructed near its line a milkhouse at Whitmore Lake, a station on its road, and constructed the same within six feet of the main line, and carelessly and negligently, willfully, wantonly, and with gross negligence constructed a movable platform on said milkhouse, which would drop down against the cars on said defendant’s main line. And while this plaintiff was in the exercise of due and ordinary care, and not being guilty of any negligence that caused or contributed to said injury, he came in collision with said platform, which was at the time of said collision within four inches of the side of the car upon which this plaintiff was climbing in the ordinary pursuit of his employment, which collision was so violent that it knocked this plaintiff from the side of the car to the ground, causing him to be run over by said train, and cutting off his right arm.”

The train of which plaintiff was in charge was a northbound train known as the “switch local.” It had stopped on a side track south of. the station at Whitmore Lake. The station is on the east side of the track. There is a cement platform in front of the station extending 60 or 70 feet north of the station building. At the north end of this platform is a small frame structure called a “milk-house,” the western face of which is about Si feet from the edge of the cement platform. This house is used for loading and unloading cans of milk on and off from express cars on passenger trains, this business being necessarily (from the perishable character of the commodity) handled by express. For facilitating the handling of the business there is a movable platform, swung on hinges at the bottom. When down, the outer edge comes about to the edge of the cement walk. When up, it is hooked up against the building itself. It is raised by means of ropes, which run on pulleys. When necessary to lower it, it is unhooked, and drops over the cement walk, the legs swinging into proper position to support it. On the occasion in question, it being about 9 o’clock a. m., July 21, 1903, plaintiff left his train on the siding south of the station, and went north past the station on the cement platform to the milkhouse to get a drink of milk out of some of the milk cans which had been placed there by the patrons of the railroad for shipment on a north-bound passenger train, which was due in a short time. Plaintiff jumped into the milkhouse from the south side through a door or opening, got a drink of milk from one of the cans, then jumped out the same door, and went south towards .his train, which was doing some switching south of the station. He gave the engineer the signal to go ahead, and as the train passed he climbed on the side of a car, intending to swing around to and climb up the ladder on the end of the car, and was struck by the platform of the milkhouse. The station agent testified that he had lowered the platform about 10 minutes before the accident, in order to be prepared to roll out the milk and have it ready for the morning passenger train. The plaintiff speaks several times of the platform falling and striking him, but when asked directly by his counsel how he knew it fell he testified as follows:

“Q. Did you see it coming just before it struck you ?
“A. No, sir; I didn’t.
‘‘Q. What I want to get at is how you knew it fell. How do you know the platform fell down ?
“A. Just as I got there by the side of it, I just happened to glimpse around like that, and that is all I remember.
Q. Was it coming at that time ?
A. I could not say whether it was coming, or whether it had got down then, or how it was.”

Plaintiff contends that defendant — First, violated its duty to furnish him with a safe place in which to perform his services by the construction of this milkhouse with a platform permanently attached at one end, which, when down, would strike one properly on the side of a car; second, that the platform fell upon him while passing, and this of itself was prima facie evidence of negligence on the part of defendant; third, the defendant was negligent in not providing by rule when the platform should be lowered. Defendant requested the court to direct a verdict for defendant, for the reason, among others, that, if there was any negligence shown, it was the negligence of the station agent, Perry, who, in the discharge of the duty of operating the platform, was a fellow-servant of plaintiff. This request was refused, and error is assigned upon such refusal.

We think this request should have been given. The well-settled doctrine that it is the duty of the master to furnish a reasonably safe place for the servant’s work, and that this is a positive duty, which cannot be delegated to others so as to escape liability for its breach, has no application to the facts of this case. The evidence conclusively shows that the milkhouse and platform were properly constructed, and safe, except when improperly or negligently used in the operation of the same in the transaction of the legitimate business of the road. The essence of the negligence charged in the declaration is that the milkhouse was constructed so near to the track that, when the platform was lowered or fell, it would strike a trainman on the side of a car. There is no allegation that the platform was otherwise improperly constructed, or that its fastenings were insecure, or insufficient for the purpose of retaining the platform in position when raised. The defendant’s station agent testified:

“There wasn’t anything out of repair in regard to this table, the device was placed there by the company. It was my duty to load these milk cans on, and put that table there to facilitate the loading of the cans. It was properly constructed with pulleys and a hook, and when it was raised it was securely fastened, and when I wanted to load some cans, we lowered the platform to roll the cans onto for loading into the car — roll the cans onto it before they were loaded into the car. When the passenger train would come along, they were rolled right into the baggage car. I generally rolled them in to the trainmen. Now, the raising and lowering of the platform was incident to the use that it was calculated to serve, and I was the party that was there for the purpose of raising and lowering it and loading the cans on the platform and from the platform rolling them onto the cars; and when I got through it was my duty to raise the platform.”

It is perfectly clear, we think, that the duty of raising and lowering this platform and of securely hooking it when raised was not a primary duty of the master, but wás such an one as it might, and necessarily would, be compelled to commit to subordinates, along with the multitude of other details pertaining to' the operation of its business. In the discharge of this duty the station agent was not the representative of the defendant, but the fellow-servant of the plaintiff. Dewey v. Railway Co., 97 Mich. 329,343 (16 L. R. A. 342, 22 L. R. A. 292); Loranger v. Railway Co., 104 Mich. 80; Byrnes v. Railroad Co., 113 N. Y. 251 (4 L. R. A. 151); 4 Thompson on Negligence, § 3876.

The judgment is reversed, and a new trial granted.

Moore, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    WRAY-AUSTIN MACHINERY CO. v. FLOWER.
    1. Landlord and Tenant — Sublease—Rights op Sublessee.
    By claiming that his rent was due on the 15th of the month, the date of his sublease, and making his payments on that date, a subtenant negatives his claim that by his sublease he ' assumed the position of the original lessee under a lease in. which the rent was payable on the first of the month.
    3. Same — Surrender op Lease.
    The surrender of a lease must be the mutual and voluntary action of the parties.
    3. Same — Notice to Quit — Termination op Tenancy.
    The tenancy, and the term under a lease, terminate at the expiration of the time limited in a notice to quit for nonpayment of rent.
    4. Same — Landlord and Sublessee — Privity.
    There is no privity between a landlord and a sublessee, and the sublessee is a stranger to summary proceedings by the landlord to obtain restitution of the premises for nonpayment of the rent.
    5. Same — Lease—Covenant not to Assign — Breach.
    Where a lease contains a covenant not to assign, an assignment works a forfeiture of the term.
    Appeal from Wayne; Donovan, J.
    Submitted April 25, 1905.
    (Docket No. 87.)
    Decided June 8, 1905.
    Bill by the Wray-Austin Machinery Company against Ellen H. Flower and William J. Wray for subrogation to the rights of defendant Wray in a certain lease from defendant Flower. From a decree for complainant, defendant Flower appeals.
    Reversed, and bill dismissed.

      Haug & Yerkes, for complainant.

      Charles8. Hampton (William D. Fuller, of counsel), for appellant.
   Ostrander, J.

The defendant Ellen H. Flower is the owner of premises known as 171,173, and 175 Woodbridge street west, in Detroit. The complainant is a Michigan corporation. The bill of complaint avers that complainant has existed for four years and more, during which period it has occupied for business purposes the lands and premises above described; that it succeeded a firm of the same name, composed of William J. Wray and one David E. Austin; that on September 15, 1897, defendant Wray leased the premises in question of defendant Flower for a term of five years at an annual rental of $600, payable monthly, and that the occupancy of the premises, first by the copartnership and afterwards by the complainant, was known to defendant Flower, the landlord, and that the rent up to August, 1903, had been paid by checks of the Wray-Austin Machinery Company, either the copartnership or the corporation; that the lease in question contained a provision that it should not be assigned without the written consent of the lessor, but contained no clause ■against subletting; that rent had been paid usually from the 1st to the 15th of each month for the preceding month, and had been accepted without question or protest. Paragraphs 4 and 5 of the bill are here set out in full:

“4. That said original lease expired on September 15, 1902, and thereupon said Wm. J. Wray, contrary to the express rights of your orator, and unknown to it, procured an extension of said lease from defendant Ellen H. Flower in his own name for a further period of five years; but your orator avers and charges the fact to be that said lease belonged to and was the property of your orator, and ■said extension so taken by defendant Wm. J. Wray in his own name was in fact the property of your orator, and belonged to it both in law and in equity; and that your orator paid to defendant Ellen H. Flower, without protest on her part, by its own checks, the rent due thereunder until August, 1903.
“5. That on August 15, 1903, defendant Wm. J. Wray sold all his stock in your orator to one H. N. Link, and retired from your orator. That in the negotiations for said sale the question of said lease from defendant Ellen H. Flower came up, and defendant Wm. J. Wray stated and admitted that said lease belonged to and was the property of your orator, and that he had no interest therein, and offered to assign the same to your orator, or to make such disposition of the same as should be required by your orator. That thereupon one Charles S. Hampton, attorney for defendant Ellen H. Flower, was consulted, and the proposition to assign said lease by defendant Wm. J. Wray to your orator was made, and the written consent thereto of defendant Ellen H. Flower was asked, and the said defendant Ellen H. Flower refused to consent to the assignment of said lease by defendant Wm. J. Wray to your orator.
“ That in view of said circumstances the only thing which could be done at the time by your orator was to take a sublease for said premises from defendant Wm. J. Wray, which was done, and said sublease was on said 15th day of August, 1903, executed by defendant Wm. J. Wray to your orator, and was on said last-mentioned date delivered to your orator, a true copy of which lease is hereto attached, marked ‘ Exhibit A,’ and made a part of this, your orator’s bill of complaint.”

It is also further averred in the bill of complaint that it was agreed between' Wray and complainant that complainant was to continue to send its checks for the rent to become due to defendant Ellen H. Flower as had been done, and that when the next installment of rent became due complainant sent its check as aforesaid, and it was returned, and that thereupon complainant sent its check to defendant Wray, and had so continued to do until the time of filing the bill. Upon information and belief it is averred that defendant Wray did not pay the rent due for the month of December, 1903; that on January 2, 1904, a seven-day notice to quit was served on him; that such proceedings were then had that on January 15,1904, judgment for restitution of the premises was entered by the circuit court commissioner in favor of defendant Flower and against defendant Wray, the commissioner finding rent to the amount of $50 to be due, and taxing the costs of the proceedings at $3.50; that no notice of these proceedings was had by complainant; that on January 15, 1904, it mailed its check to defendant Wray for the rent of the previous month, which he cashed on the next day; on that day also complainant learned of the proceedings for restitution of the premises, and thereupon went to the commissioner, offered to pay the amount of rent found • due and the costs, whatever the same might be, was told that the two amounted to $53.50, was informed by the commissioner that if that amount was paid no writ of restitution would be issued, .and thereupon paid it into court and took a receipt; that defendant Flower refused to accept the sum paid, demanded that a writ of restitution issue, and, the circuit court commissioner declining to issue the writ, petition for mandamus was filed in the circuit court for the county of Wayne to compel the issuance of the writ. An order to show cause was issued, pending the hearing upon which this bill was filed. It is also averred upon information and belief that defendants Flower and Wray connived and conspired together to have the summary proceedings instituted for the purpose of ousting complainant and securing the premises to the defendant Wray, and that the two defendants are conniving and conspiring to harass and annoy complainant and to dispossess it; that they have stated that they intend to and will dispossess complainant. Complainant offers to pay rent for the premises, and to bring the proper sum into court, but avers that defendant Wray is not financially responsible,, and that, if it continues to pay rent to him, it is liable to suffer great loss and damage. The claim made in the bill is that complainant is entitled to the lease standing in the name of defendant Wray, and to be subrogated to all his rights thereunder; that Wray is only trustee of complainant; and it is prayed that the court will find complainant to be subrogated to the rights of Wray, if he has any under the lease, to reform the lease by substituting complainant in the place of Wray, for a determination that it is the real owner of the lease, and that an assignment may be ordered to be made to it, and for an injunction.

Both defendants answered. Each denies any connivance or conspiracy to dispossess complainant. The case was heard upon pleadings and proofs, and a decree entered in which it is determined that complainant is the real owner of the lease made by Elower to Wray; that there is due on it rent at the rate of 150 a month from the 1st day of January, 1904, which was due at the end of each month, and which amounts, with interest, to #803.30, which it is decreed complainant shall pay to defendant Flower in full of all rent and charges under the lease to the last of July, 1904; requires defendant Flower to accept this money, and all that shall thereafter become due under the lease; and that upon such payment complainant shall be entitled to a peaceful occupancy of the premises. It is found that defendant Wray has no interest in the lease, and that complainant is entitled to recover from him in an appropriate action the amount of money, with interest, which was paid into the hands of the commissioner.

The complainant’s contention, as stated in the brief, is as follows:

“1. That by along course of dealing defendant Flower .had recognized the right of complainant in the premises, and that as a matter of fact the lease in question belonged to and was the property of complainant.
2. That the surrender of the lease by defendant Wray cannot affect the rights of complainant, who is the under-tenant.
“ 3. When there are under-tenants upon the premises, each must be served with summons, in order that they may have an opportunity to defend their possession; each must have his day in court.
‘£ 4. Complainant has the right to protect its possession by paying to the over landlord the rent due him.”

On the other hand, appellant contends:

“1. That complainant was simply an under-tenant, and had no rights whatever in the premises, except such as it obtained from defendant Wray.
2. That there was no surrender of Wray’s tenancy, but a bona fide termination of the lease for nonpayment of rent, with no collusion nor agreement of any kind between defendants Flower and Wray.
“3. That the tenancy of the complainant was terminated and all its rights and interests in the premises extinguished on the expiration of. the seven days limited by the notice to pay, which was served January 2, 1904.
‘' 4. That it was not the duty of the appellant to serve notice to quit upon all the subtenants and occupants of the. building, she having no contract relations whatever with them.
“5. That complainant could not take the place of defendant Wray in the proceedings before the commissioner, and prevent the writ of restitution being issued by paying the rent due and double costs.
“6. That, even if the complainant had such right to act in place of the defendant, the appellant was nevertheless entitled to the writ of restitution by reason of the failure to comply with the statutes.”

The essential facts shown by the evidence we find to be as follows: The original lease from Flower to Wray was made September 25, 1897, for a term of five years from and after September 15, 1897, with the privilege to renew for five years at the same rental, provided that the assessed valuation of the realty had not increased. If it had, rent was to be proportionately greater. Taking advantage of this clause, he secured the renewal of the lease for the five-year term at the same rental. In doing this he acted neither secretly nor in fraud or attempted fraud of any of complainant’s rights. On the contrary, there is testimony tending to show that, if he had surrendered the lease, or if defendant Flower had at the time made a lease to other parties, a higher rental would have been demanded. When defendant Wray sold his stock in complainant company, he desired to cease all relations with the company, and he then offered to assign the lease if permission could be obtained, or to surrender it — to do whatever complainant desired to have done in the matter.- Complainant was also subletting the premises, receiving from tenants $3 5 a month rental. Defendant Flower declined absolutely to consent to an assignment of the lease, declined to accept a surrender of tbe lease unless complainant would make a new lease from her, and it was thereupon determined that defendant Wray should sublet the premises to complainant, and a lease was accordingly drawn. This lease was dated August 15, 1903, for the period of 4 years and 38 days — the unexpired term created by the original lease. The rent reserved was $600 per annum. It was made payable monthly, and the lease otherwise contained the same covenants as the original lease. There was an understanding between defendant Wray and complainant that the company might send the rent directly to Mrs. Flower at the end of each month. At the end of August complainant did not pay the rent, and defendant Wray called its office by telephone, and stated that the rent was due. Either at this time or soon after, by direct communication, complainant claimed, and during the whole period thereafter it acted upon that claim and assumption, that its rent was payable, according to the terms of the sublease, on the 15th of each month. Defendant Wray paid the rent for August to his landlord. On September 18th Mr. Wray wrote a letter to complainant, in which he stated that its check for $50 for rent had been received on the 17th; that the rent was payable the last day of each month, and that the check should have been sent to him when he asked for it on September 1st; that rent for September would be due Mrs. Flower on the 30th, and, if unpaid, she could begin proceedings to terminate the tenancy.

“I do not propose to advance money from my own pocket to pay the rent for the Wray-Austin Machinery Co. I shall require and expect a $50 payment from you on or before Sept. 30th for the September rent of the premises.”

Some time between September 1st and September 15th complainant sent its check to Mrs. Flower for the August rent, and it was returned with the statement that Mr. Wray had paid the rent. Thereafter it sent its check to Mr. Wray. It had replied to his letter above mentioned that the September rent would not be due until the last of September or the first of October, “ at which time it shall be paid.” Complainant never paid its rent to defendant Wray until on or about the 15th of the succeeding month. Upon one occasion it deducted from the $50 a sum of money which it claimed it had been discovered he owed the company. Four times notices to quit were served on Wray. Three times he avoided further proceedings by paying the rent, either out of his own pocket or with money sent him by complainant. As is stated in the bill, on January 2d a notice to quit was served on him, and he, as he states in his answer, declined to be bothered any longer with a matter out of which he was making no profit. He received the check for the December rent on the 16th of January, the day after the judgment had been taken against him for restitution of the premises. On the same day complainant learned of the judgment, and paid the commissioner $53.50.

The testimony does not convince us that there was any connivance, conspiracy, or understanding between defendant Wray and defendant Flower to dispossess the complainant, nor that the proceedings were in any sense colorable, nor that defendant Wray has any desire to occupy the premises. There is nothing in the evidence which warrants any other conclusion than that, if complainant had seasonably paid its rent to defendant Wray, he would have continued to accommodate them by paying it over to the defendant Flower. The contention made in the bill and in the briefs that by the arrangement of August 15, 1903, a part of which arrangement was the execution and delivery of the sublease, the complainant assumed the position of Mr. Wray under the original lease, is negatived and disproved by the claim of complainant that under its lease rent was payable on the 15th day of each month, and by the practice of sending him rent in accordance with this claim. The relations and rights of all parties are determined by the written contracts entered into — the two leases. Defendant Flower has done nothing to estop her from so asserting. Mr. Wray is lessee and complainant sublessee of the premises. It is the settled law of this State (Stewart v. Sprague, 71 Mich. 50) that the surrender of a lease must be the mutual and voluntary action of the parties to the lease. There was no such surrender. At the expiration of the time limited in the notice to quit, the tenancy, and with it the term, under the lease from defendant Flower to defendant Wray, was ended. Smith v. Building Ass’n, 115 Mich. 340, 346 (39 L. R. A. 410). There was no privity between complainant and defendant Flower. Williams v. Railroad Co., 133 Mich. 448. An assignment of the lease by Mr. Wray would have worked a forfeiture of the term. Randall v. Chubb, 46 Mich. 311; Marvin v. Hartz, 130 Mich. 26. The rights and duties of defendant Flower and defendant Wray were alone involved in the summary proceedings, and to these proceedings the complainant was as much a stranger as it was to the covenants of the original lease. The decisions of courts of the State of New York relied upon by counsel for complainant seem to be based upon statutory provisions entirely unlike those of this State. .

The other contentions stated are incidental, merely, to the propositions upon which equitable jurisdiction was asserted. Whether the statute (3 Comp. Laws, § 11177) permits the subtenant to avoid the issuing of a writ of restitution by paying the amount found due and “double the amount of costs awarded to the said complainant ” to the commissioner or to the landlord is a question of law. It seems to be conceded by counsel for complainant that the payment actually made into court by the sublessee was not sufficient in amount to satisfy the requirements of this statute, because double costs were not paid.

No case is made upon this record for equitable relief. The parties voluntarily assumed relations involving certain legal consequences. The averments relied upon for relief from those consequences, if, indeed, the bill contains such averments, we do not find to be sustained by the evidence.

The decree of the court below is reversed, and the bill of complaint is dismissed, with the costs of both courts to defendants.

'• Moore, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


text:
    SPARLING v. SMELTZER.
    Saving Questions for Review — Case Tried to Court — Findings.
    Where in a case tried to the court without a jury, no findings of fact or law are made or requested, and no exception taken to the conclusion announced, error assigned upon the opinion of the court and entry of judgment cannot be reviewed.
    Error to Benzie; Chittenden, J.
    Submitted April 27, 1905.
    (Docket No. 110.)
    Decided June 8, 1905.
    Replevin by Joseph Sparling against Joseph Smeltzer. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Smurthwaite & Alway, for appellant.

      D. Gf. F. Warner, for appellee.
   Ostrander, J.

This action is replevin for a cow and calf owned by plaintiff and held by defendant, who claimed they were estrays. The case was tried without a jury. No findings of fact or of law were requested, or were made. The court, at the conclusion of the trial, stated his views generally, and these remarks are in the record. No exceptions were taken to any of the conclusions announced. The errors assigned are based upon rulings made in admitting and rejecting evidence, and upon the opinion of the court and the entry of judgment. As to the first, wg have examined them, and are not convinced that any error was committed. As to the others, the case is ruled by McDonell v. Union Trust Co., 139 Mich. 386, and cases therein cited.

The judgment below must be affirmed.

Moore, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


text:
    HARRIS v. THOMAS.
    1. Pleading — Amendments at Trial — Necessity.
    Where a declaration on the case was framed on the theory of a seizure of plaintiff’s property without legal authority, and the proof showed a seizure under a writ of replevin issued in due form, but without probable cause, the plaintiff was entitled to amend at the trial, but the amendment should in fact have been made, and the amended declaration filed, either before verdict or within a reasonable time thereafter.
    2. Malicious Prosecution — Replevin—Instructions—Requests —Burden of Proof — Want of Probable Cause.
    In an action on the case for the malicious prosecution of a suit in replevin, a general instruction that the burden of proof is on plaintiff, as in other cases, and it is for the jury to say from the testimony whether the evidence satisfies them that there was no probable cause for instituting the suit, is not sufficiently specific to justify refusal of defendant’s requests to charge that the burden of proving want of probable cause is on plaintiff.
    3. Same — Damages—Extortion—Injury to Feelings.
    Damages may be awarded for injury to plaintiff’s feelings, where defendants wantonly, maliciously, and without probable cause conspired together to institute a replevin suit for the purpose of extorting money from plaintiff.
    4. Same — Replevin—Damages—Return of Goods — Storage.
    Where defendant in replevin elected to take judgment for the return of the goods, he cannot, in malicious prosecution, subsequently brought, recover for the expense of storing them after their return.
    5. Trial — Argument of Counsel — Prejudice.
    Reversal will not be granted for argument of counsel which, though in bad taste, was supported by the evidence.
    Error to Wayne; Hosmer, J.
    Submitted April 26, 1905.
    (Docket No. 92.)
    Decided June 8, 1905.
    Case by Lovina Harris against John H. Thomas and others for malicious prosecution. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      James H. Pound, for appellants.

      Goodson & Houck, for appellee.
   Blair, J.

The defendants seek in this case to review by writ of error the judgment and proceedings of the Wayne circuit court in an action of trespass on the case, for the malicious prosecution of a suit in replevin. It was plaintiff’s theory, and she put in evidence tending to show, that the defendants Reed and Thomas, well knowing that she had fully paid or tendered the amount due upon a chattel mortgage to said Reed on her household goods, conspired together to extort further sums of money from her under said mortgage, and, to that end, the defendant Thomas made a pretended purchase of said mortgage, and the note accompanying the same, prior to its maturity, as the pretended agent in that regard of the defendant Cousen; that, after the maturity of said note and mortgage, the said Thomas, without any authority from Cousen, who was abroad, made the affidavit for a writ of replevin, and signed the name of Cousen to the bond as principal, and, the defendant Reed signing as a surety, a writ of replevin was issued by a justice of the peace for the goods described in the mortgage; that this writ of replevin was placed in the hands of a constable, who, peaceably and with perfect official propriety, executed his writ by taking possession and removing all of plaintiff’s property except one bed and a stove, in which there was a fire, and which the officer said he would return for. The jury in the replevin suit found that the tender made by Mrs. Harris was sufficient, and rendered a verdict in her favor, upon which the justice entered a judgment for the return of the property taken on the writ, and most of it was so returned, but, as claimed by plaintiff, in a damaged condition.

Plaintiff claimed that, by the taking of her property, her business of baking bread, from which she derived an income of $14 per week, was utterly destroyed, and that she suffered great humiliation, mental anguish, and mortification in consequence of the malicious and wanton acts of the defendants in publicly stripping her of all of her property.

It was the theory of defendants, and they gave evidence tending to show, that the defendant Thomas purchased the note and mortgage of the defendant Reed for his principal, in good faith, before maturity, and that after the transfer to Cousen the defendant Reed had no further interest in the note and mortgage, and took no part in the replevin proceedings.

At the close of plaintiff’s testimony, defendants’ counsel moved the court to direct a verdict because the proofs did not sustain the declaration, which it is claimed alleged a trespass without legal authority, while the proofs showed that whatever was done was by virtue of competent legal process. In response to this motion, the court said:

“After all, if it is inartificially alleged in that respect, they ought to have the right to amend on the trial, because there is nobody surprised by the mistake.”

In submitting the case to the jury after the proofs were closed on both sides, the court said:

“I say this is a case of malicious prosecution. Probably an inspection of the declaration as filed in this cause would show that if it was such it was rather inartificially set forth, but, as I have stated to the counsel, we will proceed, considering the declaration amended, to make it a case of malicious prosecution, and not wait until such time as the new declaration has been drawn. In the case at bar the question for your determination is whether John H. Thomas had a reasonable cause or probable cause for instituting the replevin suit, and whether Alfred Reed, if you find that he was an active party to the institution of that suit, had probable cause for bringing the same.”

The court charged the jury on the subject of damages that plaintiff would be entitled to recover for any damage the furniture sustained in the moving and the being brought back, and such damages as she sustained from the loss of the furniture during the time it was gone, and that the jury might also award her damages to compensate her for injuries to her feelings and for the shame and humiliation growing out of the wantonness of the defendants’ conduct.

“But in saying what I have, gentlemen of the jury, I do not mean to say that she is necessarily entitled to any damages on that score, but only as you shall view the conduct of the parties and view her own feelings in that regard. You cannot award these by way of example or byway of punishment, but only byway of compensation.”

The jury found a verdict in favor of the plaintiff, and defendants bring the case to this court for review.

Defendants’ counsel contends that the court should have granted his motion to direct a verdict because of variance between the proofs and the allegations of the declaration, that the court erred in not giving defendants’ requests as to the burden of proof, that the court erred in permitting plaintiff to prove the amount she paid for storage and cartage, that the court erred in instructing the jury that they might give damages for injuries to the feelings, that the court erred in permitting objectionable and prejudicial argument by plaintiff’s counsel, and in some 40 or 50 other particulars, to which we do not deem it necessary to call attention.

We think that the court was within the limits of his discretion in permitting the amendment to the declaration. We think, however, the trial judge should have required the declaration to be filed either before verdict, or within a reasonable time thereafter. So far as the record discloses, no amendment has ever been made or filed, and the only declaration before us is the original declaration, which the court properly held was at variance with the case made by the proofs, and required amendment.

Defendants’ tenth and eleventh requests to charge were as follows:

“ 10. This being a prosecution for damages arising out of the suing out of a writ of replevin proper in form, it is incumbent upon plaintiff to show that the defendants in this case acted without probable cause, before she can recover any damages.
“11. The burden of showing the existence of the want of probable cause is upon the plaintiff. ”

These requests correctly stated the law as to the burden of proof, and should have been given. Rankin v. Crane, 104 Mich. 6. The court did not give the requests, but charged the jury as follows: “But, of course, the burden of proof is upon the plaintiff in this suit, as in any suit, and it is for you to say from the testimony whether the evidence satisfies you that there was no probable cause on the part of ” the defendants in instituting the suit. While to the trained legal mind the charge of the court would convey substantially the idea embodied in the request, we are not clear that this would so appear to the jurymen, and we think the defendants had a right to have the attention of the jury specifically directed to the subject in the language of their request.

We hold that the court was not in error in instructing the jury that they might award damages for injuries to the feelings in case the defendants had wantonly and maliciously, and without any probable cause, conspired together to institute the replevin suit for the purpose of extorting money from the plaintiff, which we understand to be involved in the court’s ruling. Hamilton v. Smith, 39 Mich. 230; Wilson v. Bowen, 64 Mich. 133; Brand v. Hinchman, 68 Mich. 590; Brounstein v. Sahlein, 65 Hun (N. Y.), 365; McPherson v. Runyon, 41 Minn. 524; McCormick Harvesting Machine Co. v. Willan, 63 Neb. 391 (56 L. R. A. 388). See 93 Am. St. Rep., and note, at page 465; Lawrence v. Hagerman, 56 Ill. 68; Biering v. First Nat. Bank of Galveston, 69 Tex. 599.

We think the court erred in permitting the plaintiff to prove as part of her damages the amount which she paid out for storage for her goods after they had been returned to her by defendants in accordance with the judgment of the justice of the peace. Having elected to take a judgment for the return of her goods, she could not hold defendants in damages for her own act in storing them.

We do not think it was reversible error to permit the argument of , plaintiff’s counsel to which the defendants’ counsel took exceptions. If plaintiff’s theory of the transaction was correct — and we think there was evidence to support it — the remarks of counsel, while perhaps not in good taste, cannot be said to be unfounded.

The other assignments of error are either without merit, or are unlikely to arise again upon another trial.

The judgment is reversed, and a new trial granted.

Moore, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    PALMER v. HILL.
    Contracts — Locus—Interest—Computation—Mortgages.
    Where a note and mortgage executed in California in favor of a Michigan bank, on Michigan real estate, is sent to the mortgagee in Michigan, where it is accepted and the consideration paid, the contract is a Michigan contract and the interest on the note must be computed by the Michigan rule, notwithstanding it stipulates for compound interest according to the California rule.
    Appeal from St. Joseph; Yaple, J.
    Submitted April 27, 1905.
    (Docket No. 105.)
    Decided June 8, 1905.
    Bill by George W. Palmer and Marc W, Connor against Edwin R. Hill and others for an accounting and the discharge of a mortgage. Prom a decree for complainants, defendants appeal.
    Affirmed.

      JBeightley & Knowlen (Dallas Boudeman, of counsel), for complainants.

      B. B. Bealer and George BJ. Miller (H. P. Stewart, of counsel), for defendants.
   Blair, J.

The defendants were engaged in the banking business at Colon, St. Joseph county, Mich., and had been so engaged for many years prior to the transaction here involved, and they resided there during all the years covered by the transactions between themselves and the complainant Marc W. Connor. They did business under the name of the Exchange Bank of Colon. Complainant Connor for many years resided in St. Joseph county, Mich, (from 1839 to 1887), and was for a time engaged in buying wheat for the defendants, and in closing up their wheat business Mr. Connor was found to be owing to defendants the sum of $500. Before going to California, in 1887, he. gave defendants his note for this $500, and this note he thereafter renewed about every six months until about October, 1889, when defendants wrote Mr. Connor, asking him to secure the payment of this $500 note by a mortgage upon 40 acres of land owned by him in St. Joseph county. The original and the various renewals of this $500 note were made payable at the defendants’ bank at Colon. When Mr. Connor received the request that he make a mortgage on his land in St. Joseph county, Mich., for the $500 which he was owing, he wired defendants at Colon, from Los Angeles, where he was then living, as follows: “ Loan me two thousand, one y'ear, home eighty. Wire answer.” In reply to this defendants wired back a reply that they would make a loan of $2,500, and take out a note then owing them (being the same $500 note above mentioned), note and mortgage to be secured by mortgage on the home 80. Thereupon Mr. Connor made out a note and mortgage for $2,500, the note “being made payable at the defendants’ banking house in Colon, Mich., due in one year, and the mortgage was made upon the 80 acres of land owned by Mr. Connor in St. Joseph county, being the same land mentioned in his original telegram. Mr. Connor then placed the note and mortgage in the hands of the California Bank of Los Angeles, Cal., as his agent, to forward to Exchange Bank, Colon, and the same was forwarded by the California Bank, with instructions that same was sent as per defendants’ telegram to Mr. Connor, and to deduct from the amount the $500 note and interest, costs of abstract, etc., and to return said note to the California Bank, with statement of the .amount of charges, and to remit the balance to the National Bank of the Republic, N. Y., for credit to the ■California Bank. Some days after receiving the $2,500 note and mortgage at Colon, defendants marked the $500 note “Paid,” and forwarded the same, with a statement of expenses, back to the California Bank, and sent the balance, $1,991.11, to the National Bank of the Republic, N. Y., to be placed to the credit of the California Bank. From time to time money was paid by and for Mr. Con-nor upon this note and mortgage until later on defendants attempted a foreclosure by advertisement, and it was about that time discovered by Mr. Connor that the defendants were then claiming that they were entitled to figure compound interest upon the debt. The note was in terms as follows:

“$2500.00. Los Angeles, California, Oct. 18,1889.
“ One year after date for value received, we promise to pay Edwin R. Hill and Thomas J. Hill, or order, at the Exchange Bank of Colon, Michigan, the sum of Twenty-five hundred dollars ($2,500.00) with interest at the rate of eight (8) per cent, per annum from date until paid, interest payable annually, and if not so paid, to be compounded annually and bear the same rate of interest as the principal, and should the interest not be paid annually, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder ofQthis note. Should suit be commenced to enforce the payment of this note, we agree to pay an additional sum of one (1) per cent, on principal as attorney fees in such suit. Principal and interest payable in gold coin of the U. S.
“ Marc W. Connor.
“ Mary Annette Connor.”

After the institution of the proceedings for foreclosure' by advertisement, which were afterwards conceded to he invalid, the complainant Connor tendered the amount due on the note and mortgage, computing interest in accordance with the Michigan rule, which defendants refused to receive, insisting upon compound interest, under the California rule, and proceeded with said foreclosure, and on the 2d day of October, 1902, the premises were sold to the defendants E. R. and T. J. Hill, and a deed to them recorded with the register of deeds. Thereupon complainants filed their bill of complaint for an accounting as to the amount due, considering the tender, for the discharge of the mortgage, for the avoiding of the sheriff’s deed* and for the statutory penalty for refusal to release the mortgage. The court entered a decree in favor of complainants upon the theory that the note and mortgage constituted a Michigan contract. The defendants have appealed to this court upon the theory that the instruments in question constituted a California contract, and therefore they were entitled to a decree in their favor as to the amount due. This contention of the parties presents the sole question for our determination.

We think the holding of the trial court was clearly correct. No contract came into existence until the note and mortgage, transmitted by the California Bank, as the agent of complainant Connor, were received in Michigan and accepted in Michigan by the defendants. The contract was to be performed by the payment of the money at the defendants’ bank in Michigan. The performance of the contract was secured by a mortgage upon Michigan real estate. Part of the consideration of the note was the discharge as paid of a $500 Michigan note. And the books of the defendants showed that for two years and eleven months they computed the interest in accordance with the Michigan rule.

The decree is affirmed, with costs to complainants.

Moore, O. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    KONKLE v. HAVEN.
    1. Libel and Slander — Joint Defendants — Husband and Wife —Liability of Wife. '
    Where, in an action against husband and wife for a libel consisting of a letter purporting to be signed by both of them, there is no evidence that the wife’s name thereon was written, or adopted by her, it is error to render judgment against her.
    2. Same — Evidence—Sufficiency.
    A husband and wife, being defendants in a suit for libeling a clergyman by a letter purporting to be signed by both of them, their relation to each other, the facts that they ceased attending the church of which plaintiff was pastor, and that the wife made remarks derogatory of the character of plaintiff and his family are no evidence that she signed the letter.
    3. Same — Hearsay.
    In an action by a clergyman for a libel consisting of a letter written to the board of a church of which he was about to assume charge, the letter written by the board to plaintiff, and others in answer thereto from former parishioners to the church board, are hearsay as to defendants and inadmissible.
    4. Same — Clergyman—Evidence—Truth of Charge — Malice.
    In an action by a clergyman for a libel consisting of a letter questioning his fitness for his profession, testimony as to the financial condition of his last parish and the growth in membership of his congregation has no legitimate tendency to disprove the truth of the charge or show malice.
    5. Same — Publication—Act of Plaintiff.
    Where a clergyman sues for a libel consisting of a letter derogatory of his character, he cannot recover any damages for a publication thereof consisting of his reading it from his pulpit.
    6. Same — Malice.
    Remarks derogatory of plaintiff’s character by defendant’s wife and their ceasing to attend the church of which plaintiff was pastor have no tendency to show malice.

      7. Same — Privileged Communications — Falsity—Malice.
    A letter derogatory of the character of a clergyman, written by a member of his congregation to the elders of a church of which he was about to assume charge, was quasi privileged, and in order to support recovery therefor plaintiff must show both the falsity of the charge and malice.
    Error to Van Burén; Carr, J.
    Submitted April 28, 1905.
    (Docket No. 123.)
    Decided June 8, 1905.
    Case by Israel Konkle against John M. Haven and Hattie A. Haven for libel. There was judgment for plaintiff, and defendants bring error.
    Reversed.
    This is an action of libel, based upon the following publication :
    “From John M. Haven,
    “Bloomingdale,
    “Van Burén County, Michigan.
    “ Bloomingdale, October 18,1903.

      “ To the Elders of the Church of Christ,
    “ Hillsburg, Ontario, Canada.

      “Dear Sisters and Brothers: We see by our local paper, the Bloomingdale Leader, that (Rev.) L Konkle is to go to your place to act as pastor of your local church.
    “ Now, as a people who wish to see the Master’s cause prosper and his work go on we fear you do not know the character and reputation of this man. We write you this letter of warning and invite you to investigate if you choose. We know and can prove them to be facts,- not hearsay, if what we and others see with our eyes and hear with our ears can be counted as facts. We know he is a man who uses tobacco and liquor, is not a truthful man, and his family is no credit to any town or community. If you wish to know further, write us. or A. Haven, Mrs. E. J. Merrifield, Charles Rippey and many others I can mention if you wish from here, also J. H. Reese of Bangor, or D. Monroe, State evangelist of St. Johns, Mich., who all know him. If you wish to know my reputation write any of the above or D. R. Perkins, editor of our local paper, Harrison & Spayde, merchants, H. C. Sweet, merchant, G. H. Hudson, post master, G. L. Stewart, station agent, or any business man or farmer in the country surrounding. We earnestly court investigation and hope you will not be imposed upon as we have been here by this man. We wish you would read II John 11th verse, and I Timothy 6th chapter 3 to 6.
    “Yours in Christ,
    “ John M. Haven,
    “ Hattie A. Haven.”
    Plaintiff, then the pastor of the Church of Christ at Bloomingdale, Mich., had made a contract to accept the pastorate of the church at Hillsburg, Ontario. One of the church board at Hillsburg, whose testimony Ayas taken by deposition, testified that upon the receipt of the letter he sent it to Mrs. Konkle, and sent a request to Mr. Konkle to have the parishioners at Bloomingdale sign a petition stating that he was a proper person to follow the calling of minister of the gospel, and further testified that such paper was received by the church board from the plaintiff. No further action was taken by the church at Hillsburg, and plaintiff entered upon his duties as pastor there in accordance with his contract.
    Plaintiff was not sworn as a witness, but introduced eAddence tending to show the contents of the letter sent by the church board at Hillsburg to the plaintiff, and the reply of some of the parishioners thereto. With rare good sense, the church board at Hillsburg did not make the letter public there, for the reason that it might injure the plaintiff in his work, should he become their pastor. Plaintiff also gave evidence tending to show that under his pastorate at Bloomingdale the church prospered financially, and that he was active and industrious in church work; that they increased his salary; and that while he was there some 40 members were taken into the church. One witness testified to some derogatory remarks made by the defendant Mrs. Haven about the plaintiff and his family.
    The plaintiff, at the time he preached his farewell sermon to the church in Bloomingdale, read the letter now complained of in the pulpit to the congregation.
    Defendants introduced no testimony.

      The court instructed the jury that the letter was a qualifiedly privileged communication, “ and if the plaintiff has failed to establish both the falsity of the thing set forth in the letter, and that the defendants wrote them with malice, ill will, or hatred, then plaintiff cannot recover.” The jury rendered a verdict for the plaintiff.

      Frank S. Weston and Thomas J. Cavanaugh, for appellants.

      W. J. Barnard and Benjamin F. Heckert, for appellee.
   Grant, J.

(after stating the facts). The judgment must be reversed for several errors.

1. There was no proof that defendant Mrs. Haven signed the letter or took any part in its publication. Evidence was introduced identifying the signature of Mr. Haven. The facts that defendant Hattie was the wife of her codefendant, and was therefore on intimate relations with him; that they did not attend church after some difficulty arose in it; that she had made statements derogatory of the character of the plaintiff and his family to a third person — are no evidence that she signed the letter. Without such evidence the judgment against her cannot stand, and the court should have directed a verdict in her favor.

%. Plaintiff was permitted to give evidence of the contents of the letter sent by the church board of Hillsburg to the plaintiff, and the letters received from some of his parishioners living in Bloomingdale in reply thereto. This testimony was hearsay. The defendants were entitled to have the letters produced to speak for themselves, if they were competent testimony. None of these letters appear to have been written by parties to whom the letter referred for information as to the truth of the charges made in it. The letter of defendants did not authorize and make them responsible for letters written by any person connected with the church at Bloomingdale, to whom the elders of the church at Hillsburg or the plaintiff might apply. It mentioned certain persons, and offered to mention many others if the elders desired. Whether, in a suit for libel, the letters written by the parties named in the letter to the elders would be competent evidence, for the reason that defendants had solicited them, we need not consider. The letters were not from those to whom the defendants referred for information, and were therefore inadmissible. One or more of the letters was introduced in evidence, but was finally excluded, but the testimony as to their contents was not stricken out.

3. Testimony of the financial condition of the church and the number of members admitted under plaintiff’s pastorate had no legitimate tendency to disprove the truth of the charges or to show malice. One of plaintiff’s witnesses testified that the pastor preceding the plaintiff brought in more members than did the plaintiff; that he held a large revival, but was then (at the time of the trial) in the Joliet State prison.

4. There was no occasion for the publication of the letter to the plaintiff’s congregation, or for his publishing the letter at all. He could have obtained, and perhaps did obtain, the certificate of good character from some of his parishioners without exhibiting the defendants’ letter. He chose to read it in the pulpit, and publish it to the members of his church and to the people of the community. For this publication the defendants were not responsible, and the court should have directed the jury, as requested, that the defendants were not responsible for any damages resulting from that publication.

5. Unless there is something in the letter itself to indicate malice, there is no basis for the judgment against the defendant John M. Haven. There is no testimony outside of the letter of any word or act indicating malice. What Mrs. Haven might have said in the absence of her husband does not bind him or show any malice on his part. Neither is the fact that they did not attend church service any evidence of malice.

It is significant that plaintiff introduced no evidence directly bearing upon any one of the charges made in the letter. The charges are similar to those found in Howard v. Dickie, 120 Mich. 238, in which the plaintiff testified in his own behalf that he had not been guilty of the acts charged. It is the established rule in this State that, in cases of privileged communications, plaintiff must prove both the falsity of the charge and malice. Edwards v. Chandler, 14 Mich. 471; Bacon v. Railroad Co., 66 Mich. 166; Howard v. Dickie, supra.

This court said in Bacon v. Railroad Co., supra:

“ The meaning in law of a privileged communication is that it is made on such an- occasion as rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff, and throws upon him the onus of proving malice in fact, but not of proving it by extrinsic evidence only.- He has still a right to require that the alleged libel itself shall be submitted to the jury, that they may judge whether there is any evidence of malice on the face of it. Wright v. Woodgate, 2 Cromp., M. & R. 573, 1 Gale, 329. It was held in Somerville v. Hawkins, 10 C. B. 583, 20 Law J. C. P. 131, that, a communication being shown to be privileged, it lies upon the plaintiff to prove malice in fact; that, in order to entitle him to have the question of malice left to the jury, he need not show circumstances necessarily leading to the conclusion that malice existed, or such as are inconsistent with its nonexistence, but they must be such as raise a probability of malice, and be more consistent with its existence than its nonexistence; and in Cook v. Wildes, 5 El. & Bl. 328, it was held that if the occasion creates such privilege, but there is evidence of express malice, either from extrinsic circumstances or from the language of the libel itself, the question of express malice should be left to the jury.”

In the well-considered case of Shurtleff v. Stevens, 51 Vt. 501—the plaintiff being a clergyman, and the charges being of a similar character to those now under discussion —the court, at page 515, uses this language:

“The general cause of public morality which underlies all good government, and which every good citizen, be he priest or layman, is bound to promote, is affected by the fidelity with which ministers of the gospel discharge the high trust of their appointment. In order to be successful public teachers of morality, they must be unspotted public exemplars of it. Hence, if it b.e suspected that a wolf in sheep’s clothing has invaded their ranks and sits at their council board, it is not only for the interest of all the members of the association to know the fact, but it is their imperative duty to make inquiry and ascertain the fact. They owe such duty to the plaintiff as a brother member, if he is charged with scandalous conduct, to the end that his innocence may be established. They owe it to themselves, lest by indifference they give apparent approval to his conduct. Their intimate official relation to the plaintiff in the cause of their common work leaves them no other alternative, and if, in making such inquiry and in acting upon the subject-matter of it, they proceed with honesty of purpose and act from a sense of duty, the law protects them.”

The presumption in cases of privileged communications is that the person acts in good faith and from proper motives. If there is anything in the alleged libelous article or in the surrounding circumstances which shows a bad or vindictive spirit or a feeling of hatred or ill will, the question belongs to the jury. If there is not, it belongs to the court, as a question of law.

The letter complained of makes four specific charges, with no evidence before us to show their truth or falsity. The letter invites the parties to whom it is addressed to investigate, and gives names coupled with an offer to give more names if desired, and courts investigation. If the charges were true, or if the defendants honestly believed them to be true, though they were in fact untrue, and believed them to be incompatible with their church principles, and derogatory to the welfare of the church and community where the church was established, the communication was privileged. Without other evidence than the letter itself to show falsity and malice, the jury were not at liberty to find either or both, without which the verdict and judgment cannot stand. Upon this record, we think the court should have directed a verdict for the defendants.

Other questions are raised, but, as they are not likely to arise upon a new trial, we refrain from determining them.

Judgment reversed, and new trial ordered.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Montgomery, J.

text:
    HARTZ v. EDDY.
    1. Lease — Validity—Monopolies—Action—Issues.
    Where, in an action for the rent due on a lease of a salt plant, the defense is that the lease was executed as a part of the plan of a certain trust to limit the production of salt, raise the price, and create a monopoly, which the lessor knew, and that the defendant was acting for the trust in taking the lease, and not for himself, defendant could not show that the trust was the real principal in the transaction unless he coupled it with an attempt to show the lessor’s participation in the scheme.
    2. Same — Instruction.
    An instruction that defendant was not liable if the lessor knew at the time that defendant was not the real principal was sufficiently favorable to defendant.
    3 Same — Substitution op Parties — Release op Lessee.
    The mere acceptance of rent money from one other than the lessee is not sufficient to amount to a substitution of parties and release the lessee from his obligation to pay the rent.
    4. Contracts — Validity—Restraint op Trade.
    A lease of a salt plant wherein it is stipulated that the lessee may make as much or as little salt as he chooses, but that, in case he should cease to operate the plant, he will furnish a competent watchman for it, is not void on its face, but the question whether its purpose was to restrict the production of salt is, at most, one for the jury.
    Error to Wayne; Mandell, J.
    Submitted April 28, 1905.
    (Docket No. 112.)
    Decided June 8, 1905.
    Assumpsit by John C. Hartz against Walter S. Eddy for rent. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      Adolph & Edmund M. Sloman, for appellee.
   Montgomery, J.

This is an action of assumpsit to recover the rent due on a lease of a salt plant made by plaintiff’s assignor, the Marine City Stave Company, to the defendant. The lease reserved a rental of $7,500 per annum, payable in monthly installments, and a further rental of one cent per barrel on all salt manufactured in excess of 30,000 barrels per annum. The lessee also agreed to purchase the stock on hand. The lease contained the further •provision that the second party was to have the privilege of making as much or as little salt as he may require, but, in case the second party or his assignees should cease to operate the saltworks during the ordinary season, he should furnish a competent watchman to protect the leased property.

The defense was that the lease was executed as a part of the plan of the National Salt Company to limit the production of salt, raise the price, and create a monopoly; that this was known to the lessor; and that defendant was acting for the National Salt Company in taking the lease, and not for himself. As a further defense it was set out that the lease was assigned to the salt company, and that the lessor accepted the salt company as its tenant. The case was tried before a jury, and the plaintiff recovered the rent reserved and interest. The case is before us on exceptions.

The charge of the court was more favorable to the defendant on the first point than the law would justify. The lease in question' was a contract between the • Marine Stave Company and the defendant. It is clear that, except as the proposition was coupled with an attempt to show that the National Salt Company was by means of-this lease acquiring the use of this property as a step toward stifling competition, and that the Marine City Stave Company was a party to tho scheme, it was not open to the defendant to urge that the National Salt Company was the real principal. The judge charged, however, that if the Marine City Stave Company knew at the time that the defendant was hot the real principal, the plaintiff could not recover. It is probable that in giving this instruction the trial judge assumed that the other facts essential to render the transaction obnoxious to rules of public policy were sufficiently established if knowledge and participation on the part of the Marine City Stave Company were shown. However this may be, the instruction was sufficiently favorable to defendant if the question of fact was a disputed question. Of this there can be no doubt, as Mr. Heavenrich, the president of the Marine City Stave Company, who negotiated the lease to defendant, testified that he had no knowledge of the National Salt Company until long afterward.

As to the second defense, the circuit judge also submitted the question as a question of fact to the jury as to whether the Marine City Stave Company had released the defendant, Eddy, and accepted the National Salt Company in his stead. We discover no evidence in the record, except the fact that the stave company accepted rent money from the National Salt Company, which reasonably tends to show any substitution of parties. That this is not of itself enough to release the defendant is clear. Foley v. Dwyer, 122 Mich. 587; Detroit Pharmacal Co. v. Burt, 124 Mich. 220. The charge on this branch of the case was therefore sufficiently favorable to the defendant.

The court also submitted to the jury the question whether the lease in question was. made with the purpose or intent to limit or control, or in any manner restrict, the production of salt. This question was, at most, a question for the jury, and that tribunal has decided it in favor of the plaintiff.

We do not overlook defendant’s contention that the lease was void on its face, but we cannot accede to that contention.

A number of assignments of error are based upon rulings relating to the admission of testimony. As many of the questions presented are strenuously urged, all have been given careful examination, but we are not able to discover any error in the rulings.

The motion for a new trial was properly denied, as upon all the material questions the testimony preponderated in plaintiff’s favor.

Judgment affirmed.

Moore, C. J., and Grant, Blair, and Ostrander, JJ., concurred.