author: Moore, J.

text:
    REID v. HEATER.
    Accounting — Demurrer—Master and Servant — Equity—Profit Sharing Agreement.
    A demurrer was correctly overruled by the circuit court in chancery to complainant’s bill for an accounting, averring that defendant employed complainant upon a basis of ten per cent, of the net profits of a corporation in Detroit theretofore controlled by plaintiff, which defendant tools: over under a proviso that it should continue the business as a branch office under the same name, also that the defendant discharged complainant during the term fixed by the contract, and otherwise violated its stipulations, and declined to render statements of the business that was done.
    Appeal from Wayne; Hally, J.
    Submitted October 14, 1914.
    (Docket No. 95.)
    Decided January 29, 1915.
    Bill by William Reid against George L. Heater and the Toledo Plate & Window Glass Company for an accounting. From a decree overruling a demurrer to complainant’s bill defendants appeal.
    Affirmed.

      Corliss, Leete & Moody, for complainant.

      Luther S. Trowbridge, Jr., and Edwin C. Lewis, for defendants.
   Moore, J.

The defendants filed separate demurrers to the complainant’s bill of complaint. Several reasons were stated in the demurrers. The important ones are:

(1) The bill is without equity; (2) the complainant has an adequate remedy at law; (3) the defendants are improperly joined.

The defendants cite the case of Laubengayer v. Rohde, 167 Mich. 605 (133 N. W. 535), in support of the contention that the circuit judge erred in overruling the demurrers.

Omitting the formal parts of the bill of complaint, it states, in substance, that complainant, his son Louis R., and Hattie B. Reid owned the corporation known as the William Reid Glass Company, which for many years did a general jobbing business in glass and other articles in Detroit; that it was represented by defendant Heater that the other defendant desired to control or establish a branch house in Detroit; and that negotiations were entered into that culminated in a written agreement, which is too long to insert here, by which it was—

“Promised that your orator should receive and be paid 10 per cent, of the net profits of the Detroit branch of said business to be carried on under the name of the William Reid Glass Company, and that your orator and his son Louis R. Reid was to be employed in said business during said period as set forth in said written agreement hereto attached. * * *

“(3) Your orator further avers that, in accordance with said written agreement, all of the capital stock of the William Reid Glass Company was transferred to the said George L. Heater for and in behalf of the defendant Toledo Plate & Window Glass Company, and said defendants assumed full control over and direction of the business then established and carried on under the name of William Reid Glass Company, and continued your orator in their employ under the salary as agreed upon in contract Exhibit B, but that shortly after the employment of Louis R. Reid was discontinued by mutual assent, your orator retaining his position and his interest in the net profits of the business, which were to be 10 per cent, per annum. * * *

“(5) Your orator further avers that subsequently, on April 1, 1911, or thereabouts, said defendants discontinued the use of the name of the William Reid Glass Company, and transferred the stock and property belonging to said corporation to the defendant Toledo Plate & Window Glass Company, without the consent of your orator and against your orator’s best judgment,' and to your orator’s great detriment and lawful profits, and in violation of the agreement, * * * which provisions of said contract said defendants have violated by transferring the business and winding up the affairs of said William Reid Glass Company, and taking the same over in the name of the said defendant Toledo Plate & Window Glass Company to the great detriment and loss of your orator.

“(6). Your orator further avers that on or about the 1st day of April, 1913, the three years having expired, said defendants discharged your orator and refused. to permit him to be employed or associated in connection with their business longer; that during all of said three years your orator has repeatedly endeavored to obtain correct statements of the business operations carried on by the said defendants under the name of the William Reid Glass Company and the Toledo Plate & Window Glass Company, in the city of Detroit, and to ascertain the net profits realized therefrom, but has been unable to do so, said defendants refusing to give any definite information or statements showing the detailed operations of the business or the net profits therefrom; that, in ordercto conceal the business methods and operations, said defendants transferred the bookkeeping and office transactions to Toledo, their main office, where all of the important records and documents have been maintained.

“(7) Your orator further avers on information and belief that said defendants have made a large sum of money from the operation of the business acquired, held, and controlled as hereinbefore set forth; that there is a large sum of money due to your orator from the net profits of said business, as well as damages sustained in consequence of the loss of the good will of said business as set forth and stipulated in said contract; that, in order to absorb the net profits of the Detroit branch said defendants have purchased large quantities of goods, at manufacturers’ prices, with liberal discounts, and charged the Detroit branch jobbers price or prices much higher than the net purchase price made by said principals at Toledo. * * *

_ “(8) Your orator further avers that in the operation of the glass business there are certain secret agreements existing between the large purchasers by which they secure special discounts and secret contracts; that said defendants are associated in such combination in order to control the trade, and that in the operation of the Detroit branch all these advantages, rebates and discounts have been concealed and absorbed by said defendants in their general business established at Toledo, Ohio, for the purpose of depriving your orator of his just rights and the payment of 10 per cent, of the net profits of the business maintained at Detroit, as stipulated in said contract. * * *

“(9) And your orator further avers on information and belief that said defendants in the conduct of said branch business at Detroit, Mich., have concealed the rebates obtained by said defendants on the purchase of merchandise shipped to the Detroit branch. * * * That your orator verily believes that he has suffered other losses and damages not herein specifically set forth and which your orator is unable at present to specify owing to the concealment of the facts by said defendants, but which your orator prays may be disclosed by an examination of the books, records, and vouchers of said defendants in order to determine the rights of your orator in the premises. * * *

“Wherefore your orator prays that said defendants may be commanded to answer this, your orator’s bill of complaint (answer under oath being hereby waived), and to make a full accounting, and that they may be required to produce in said cause all of their books, documents, records, and papers of every name and nature from which may be obtained a correct information pertaining to the operation of the business affecting the Detroit branch as set forth in this your orator’s bill of complaint.

“That a decree may be entered in your orator’s behalf based upon 10 per cent, of the net profits of the said business during said period of three years; that your orator may be awarded damages sustained by reason of the loss of the good will of the name of the William Reid Glass Company, and the trade long established by your orator, and for such other and further order and decree as to the court shall seem meet.”

The demurrers of course must be regarded as admitting the truth of the averments of the bill of complaint. We think the case is not controlled by Laubengayer v. Rohde, supra, in favor of defendants, but that the action of the circuit judge is justified by the following cases: Darrah v. Boyce, 62 Mich. 480 (29 N. W. 102); Petrie v. Torrent, 88 Mich. 43 (49 N. W. 1076); Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554); Boyce v. Boyce, 124 Mich. 696 (83 N. W. 1013); Freeman v. Specialty Co., 174 Mich. 59 (140 N. W. 572); Excelsior Wrapper Co. v. Yund, 176 Mich. 372 (142 N. W. 353).

The decree is affirmed, and defendants will be allowed the usual time in which to answer if they so desire.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    NEWBERRY v. CITY OF DETROIT.
    1. Taxation — Special Assessments — Voluntary Payment — Recovery Back — Detroit Charter.
    In an action for the recovery of taxes paid pursuant to a • special paving assessment, plaintiff, who had paid the tax after it became a lien under the provisions of the charter of the city of Detroit providing that after confirmation of the assessment roll the assessment should constitute a lien upon the land, was not barred from recovery on the ground that her payment was a voluntary payment, and, having paid the assessment without a written protest, plaintiff was nevertheless entitled to recover back any illegal portion of the tax upon the ground that the payment was made under duress.

      2. Same — Voluntary Payment.
    Where the owner of property pays a special assessment Which has become a lien upon his premises, in order to relieve the real estate of the lien which has attached by virtue of special provisions of law, the payment is equivalent to one made under duress, since such lien is prima facie, valid.
    3. Same — Specific Protest.
    No rule of law requires a specific protest as a condition to recovering back taxes which have been paid involuntarily under a legal duress.
    4. Same — Special Assessment — Paving Taxes.
    Under the Detroit charter, 'a special assessment for purposes of paving, assessed according to frontage and containing an item of twenty cents per square yard as a part of the estimated cost for maintenance or protection against imperfect work covering a period of ten years after it was constructed, was valid, since the added expense for prospective maintenance was equivalent to and was shown to be approximately equal in amount to the cost of a, guaranty against faulty or defective construction or material.
    5. Same — Guaranty—Bond—Contract.
    The requirement of a bond to guarantee the performance of a paving contract is a lawful and valid requirement.
    6. Same — Profit—Paving Tax.

      Held, however, that an amount included in the assessment as estimated profits, which the evidence showed was placed to the credit of the municipal road fund and not used for the purposes of maintenance of the street or of an asphalt plant owned by the city, was unauthorized and illegally assessed, and that plaintiff could recover back the amount thereof which she had paid involuntarily.
    Error to Wayne; Hally, J.
    Submitted November 11, 1914.
    (Docket No. 4.)
    Decided January 29, 1915.
    Rehearing denied April 28, 1915.
    Assumpsit by Truman H. Newberry and another as executors of the estate of Helen H. Newberry, deceased, against the city of Detroit to recover back taxes paid under legal duress. Judgment for plaintiffs upon a verdict directed by the court. Defendant brings error.
    Reduced and affirmed.

      Walter Barlow (Richard, I. Lawson, of counsel), for appellant.

      Miller, Smith, Paddock & Perry, for appellees.
    The plaintiffs obtained a judgment for $7,105.57 upon a verdict directed by the court, as a part of certain paving taxes which it is claimed were illegally assessed against certain lots which were located on Chicago boulevard, Boston boulevard, and Calvert avenue, in the Voigt Park subdivision in the city of Detroit, and were owned in 1910 and 1911 by Helen H. Newberry, now deceased. The streets in question had not been paved before, and the paving was done on petition of the owners of a majority of the foot frontage of the lots or parcels of land abutting said pavements. The pavements were constructed by a private contractor, who was the lowest bidder for the work. The city of Detroit, by its department of public works, maintains an asphalt plant, and at the time the city was advertising for proposals for paving the streets the commissioner of the department of public works of the city mailed to the several contractors who do public work of this character the following letter:
    “To Paving Contractors, Detroit:
    Boston Boulevard ...........$1 30 per sq. yd.
    Chicago Boulevard ........... 1 30 “ “ “
    Calvert Avenue ............. 1 30 “ “ “

      “Gentlemen: In reference to the advertisement now running in the Morning News for proposals for paving streets with sheet asphalt, I wish to state that this department stands ready to do the sheet asphalt, binder, and surfacing work at the prices shown above.
    “There will be no maintenance guaranty required of the contractor if the city does the asphalt work, otherwise the guaranty provided for in the specifications will be required. Preserve this letter and attach it to your proposal if you bid on the asphalt streets above mentioned.
    “Very truly yours,
    “J. J. Haarer, Commissioner.”
    In the paving in question, all the asphalt work was done and the materials for the same were furnished by the department of public works at a price of $1.30 per square yard, and in each bid for paving these streets an item of $1.30 per square yard for the asphalt, binder course, and asphalt surface was included. In the specifications for sheet asphalt pavement on concrete foundation adopted by the common council of the city, there was the following:
    “The contractor will furnish a ten-year guarantee of his work from the date of the acceptance of said work by the department of public works (without extra charge), the guarantee to be of such form and nature as the department of public works may direct.”
    But inasmuch as the city itself, by its department of public works, did the asphalt work on the pavements, in accordance with the letter above set forth, the contractor was not required to furnish the 10-year guaranty for his work required in the specifications. However, in the price of $1.30 per square yard charged by the city for the asphalt work, there was included an item of 20 cents, known as a “maintenance charge,” and an item of .0753 per square yard, known as an “overhead” charge, and also an “estimated profit” item which on the whole work here involved amounted to $1,650.70. The “maintenance charge” was made to cover the 10-year guaranty of asphalt pavements required by the city from contractors by its specifications, and the' estimated profit item represented the profits estimated to have been earned by the department of public works on these various jobs. No question is raised as to the validity of the overhead charge. Of the asphalt work done on the streets in question there was $29,968.71 assessed against the property of Mrs. Newberry, and in this amount there was included a maintenance charge of $4,610.57, and an estimated profit of $1,650.70, the total of the two items, $6,261.27, constituting the principal sum of the plaintiffs’ claim in this litigation. This amount, with interest, formed the basis of the judgment rendered in the lower court. These items in due course went into the city’s general road fund, and Mr. Proctor, the city’s asphalt expert, testified that these funds were used for the general purposes of the fund. Aside from including these two items in the various assessments, it is agreed that for the purposes of this case the assessments and the various assessment rolls were in all other respects legal and valid. An examination of the assessments and the assessment rolls failed to disclose that the assessments included the items of “maintenance charge” and “estimated profit.” In the year 1911, after the assessment rolls had been confirmed by the common council of Detroit and had been delivered to the receiver of taxes for collection, Mr. F. S. Smith, who attended to these matters for Mrs. Newberry, paid to the receiver of taxes the entire amount of the assessments without protest, and no complaint was made by Mrs. Newberry or in her behalf prior to the time of payment, either to the board of assessors sitting as such board or as a board of review, or to the common council, or any committee thereof. In July of 1912 Mrs. Newberry presented her verified claim to the common council of the city for the recovery of the amount for which this suit is brought, which the common council refused to allow, and this litigation resulted.
   Kuhn, J.

(after stating the facts). The claim is made that the payments of the assessments by Mrs. Newberry was a voluntary payment, and for that reason no recovery by her can be had. The charter of the city of Detroit (1904 edition), chap. 11, §37, provides in part, as to assessment rolls for paving:

“And when the same [assessment roll] shall be corrected to the satisfaction of said council it shall by resolution confirm the same. After such confirmation, such assessment shall constitute a lien until paid, upon said lots or parcels of real estate, and shall be collected in such manner as may be authorized by law.”

The assessment roll then goes into the hands of the receiver of taxes, who causes notice of the assessment to be printed in two of the newspapers published in said city once in each week for three successive weeks. The assessment is divided into four, parts, part 1 becoming due and payable in 30 days from the first publication of said notice, and parts 2, 3, and 4 becoming due and payable in one, two, and three years, respectively, from the date of the first publication.

The charter further provides that any person may pay the entire amount of the assessment within 30 days from the date of said publication without interest; but, if not paid within that time, the part remaining unpaid shall be payable with interest at the rate of 7 per cent., from the date of confirmation of said assessment until the same shall be paid, and if the amount of part 1 of the assessment is not paid within 30 days, a penalty of 5 per cent, in addition to the interest shall be added thereto and a like penalty to the other parts if not paid when due.

The entire amount of the paving taxes was paid by Mrs. Newberry. The' record does not disclose the exact date of the payment, but it is to be assumed that they were paid before there was any liability for interest or penalty. It is clear from the charter provision that at the time the taxes were paid they had become a lien on the property. The question of whether or not a payment of taxes after having become a lien is a voluntary payment seems to have been definitely determined by this court in the case of Thompson v. City of Detroit, 114 Mich. 502 (72 N. W. 320). The tax or assessment in that case was for the opening and widening of a street, and was paid after confirmation by the council, and the tax had become a lien by virtue of the charter provision. The court in that case said (114 Mich. 506, 72 N. W. 321):

“While the tax was not paid under threat of levy upon personal property, yet we think that, it having been made for the purpose of relieving the real estate of the lien which had attached by virtue of the provisions of the charter, it was equivalent to a payment under compulsion. Prima facie, it was a valid lien upon the land.”

It is true that in that case a protest was made at the time of the payment of' the taxes, and the receiver of taxes thus had notice that the taxes were regarded as illegal. But when the payment of taxes is involuntary and made under legal duress, there is no rule requiring specific protest. Cox v. Welcher, 68 Mich. 263 (36 N. W. 69, 13 Am. St. Rep. 339); Pere Marquette R. Co. v. City of Ludington, 133 Mich. 397 (95 N. W. 417).

While good reasons may be advanced for questioning the wisdom of the rule thus established, a change with reference thereto, in our opinion, should now be sought in the legislature rather than in the courts. Therefore,- in harmony with the ruling in the Thompson Case we conclude that a tax paid after a lien attaches to the property, because of it, must be held to have been paid under legal duress, and is not a voluntary payment.

The charter of the city of Detroit makes express provision for the original paving of its streets, and requires the cost and expense of such an improvement (with certain unimportant deductions) to be assessed ratably according to frontage on the lots, parts of lots, and parcels of real estate fronting on the improvement, and further provides for the repairing and repaving of its streets out of a repairing and repaving fund, created and raised for such purposes by general taxation. In our opinion, the validity of that part of the tax complained of depends upon whether it can be said that the “maintenance charge” and “estimated profits” are legally any part of the cost and expenses of these improvements. The item of $.20 per square yard is an arbitrary figure, it seems, made from practical experience and from what contractors generally charge to keep pavements in repair, to cover the maintenance of the paving for 10 years. Mr. Proctor, who is the asphalt expert for the city of Detroit, testified with reference to this item, and also the overhead charge, as follows:

“Mr. Perry: And the item of ‘Estimated Profits’ goes in under the same subheading (asphalt patching), does it not?

“Mr. Barlow: Yes.

“Mr. Perry: And that item it is stipulated is used to maintain the asphalt plant?

“The Witness: Not at all. I don’t agree with you on that. I do not think it goes to maintain the asphalt plant. We have a special appropriation, which was acted upon today by the common council committee. For instance, we put in an estimate what it would cost to maintain the asphalt plant. We do not call upon that fund for that purpose at all. We have special appropriations for various repairs and parts we may need for the asphalt plant proper. For instance, we ask for $6,000 for repairs and replacements. We ask for appropriations for a storage shed; we ask for $4,000 for apparatus for handling materials. Everything is specified as to what we want, and we get the money for it. We don’t use that item to maintain the plant. That goes into the general road fund, and I suppose anybody can get the benefit. I suppose the taxpayers will get it eventually. They are part of the department of public works, I think. It is a city department. In that way I have to dispute the fact that we repair our plant from this fund, the statement at least, not the fact.

“Mr. Perry: Well, I am willing to accept your amendment, but your counsel does not agree with you.

“The Court: Does it make any difference?

“Mr. Perry: I do not see what difference it makes. It is bad enough; that is all.

“Mr. Barlow: Mr. Proctor, what does this 20 per cent, for maintenance fund include? What kind of repairs ?

“A. General repairs. Any damage caused to the pavement through poor workmanship and defective materials.

“Q. That is these particular streets? Paving of these particular streets in question?

“A. Any of the streets where I have charged for maintenance, any new paving or repaving, we charge 20 cents a yard, and my understanding of it is that we maintain those streets against disintegration of materials, for instance, for a period of 10 years. And I think from a business standpoint it is a proper charge, regardless of what others say.

“Q. What is the charge of 7 cents for overhead?

“A. Overhead includes my salary, depreciation of plant, 10 per cent, per annum, my superintendent’s salary, our foreman, our repairs, renewals, and sundry expense items. I cannot go into everything.

“Mr. Perry: If I understand you, Mr. Proctor, the city puts in an item of 20 cents per square yard which its experience shows it will cover the cost of maintaining that pavement as it was through that period of 10 years.

“A. Not entirely so, simply estimated cost, charge for maintenance. That figure is a figure which we have set as a proper figure for the maintenance of the paving for 10 years. The figure is made from practical experience, from what I thought was right, and based on what is charged by contractors generally to keep the pavement in repair for 10 years.

“Q. It might conceivably happen, might it not, that that charge of maintenance that you have made might all be gone, and yet the city not have done a penny’s worth of repairs on that particular pavement?

“A. It is possible, yes. That would be to the credit of the asphalt department in the class of pavement they laid.

“Q. It would be very much to the detriment of Mrs. Newberry, would it not?

“A. No, sir; it would not. Mrs. Newberry could not get that pavement laid at the price under contract of $1.30 per square yard, if I may say so. I will tell you cases at the present time where contracts had been made with the Newberry estate for the continuation of those streets at $1.10 per square yard for 21/2 inches of surface. I put in 3% inches of surface for $1.30 per square yard. That would cost Mrs. Newberry at the lowest possible figure $1.41 per square yard for a 5-year guaranty. I give a 10-year guaranty for $1.30 per square yard. These are facts I can verify. I have the figures right here for you. I know where the Newberry estate has contracted for about 60,000 yards up in that vicinity within a week.

“The Court: Mr. Proctor, is this notion of mine a correct notion; that it does not make any difference how circumspect or careful you are when you are laying a piece of asphalt pavement, that trouble is apt to develop as a result of the work being done?

“A. Yes, sir; in a great number of cases, temperature, mesh composition of the sand. We are dealing with a material that comes in bulk, sand.

“Q. So that while you take the utmost care in the mixture and in the material that you put in, nevertheless to insure a permanent job you have to add to the actual cost a certain percentage or a certain amount for maintenance?

“A. I think so, your honor. Now, the city took a chance, on giving a figure, of putting in a figure of $1.30 per square yard.”

We are of the opinion that the maintenance charge can properly be considered a part of the cost of the initial construction of the pavement, as it in effect amounts to a guaranty for 10 years of the workmanship and the materials used. The requirement of the city of a bond from the contractor guaranteeing the city for a period of 10 years against imperfect work or defective material in the construction of pavements is, in our opinion, a proper and legal requirement. The validity of requiring such a guaranty against imperfect original construction or faulty materials has generally been upheld by the courts, and Judge Dillon, in his treatise on Municipal Corporations, summarizes the law on this subject as follows:

“A common, if not the general, method of improving and maintaining streets imposes upon abutting proprietors the cost of paving, whilst the cost of ordinary repairs is imposed upon the city at large. Contractors for street paving, in their endeavor to induce municipal governments to adopt their pavements, make representations as to its character and durability, and it is proper that some remedy should be reserved to the municipality by which it can enforce their contracts and representations in this regard. Hence it has been a common custom to require from a contractor for paving a street a guarantee that he will maintain it in repair for a term of years. When such a stipulation is exacted, does it throw the cost of the repairs upon the abutting proprietors, who are to be assessed for the cost of the paving, contrary to the general scheme of the city’s government, or is it a mere provision for the protection of the city against imperfect work? In pavements, particularly in asphalt, the durability depends very largely upon the character of the work, the condition of the foundation, and the mixture of the material used; and it is not difficult for contractors to deceive the inspectors in regard thereto. A guarantee on the part of the company as to the durability of the pavement affords a simple and complete remedy which fully protects the public, and when the time for which the guarantee continues is no longer than the ordinary durability of the pavement when laid with the best workmanship and material, it does not impose any unreasonable burden on the contractor. One view declares that such guarantee does not contravene the provisions of a municipal charter requiring repairs to be made in the expense of the city at large. If the repairs are limited to the making good imperfect work, or the defective material used, no additional burden is imposed upon the abutting property owners, by reason of a requirement of a guarantee for a term of years. But some courts appear to adopt a contrary view, and hold that such a guarantee of necessity tends to increase the cost of the improvement and to impose upon an abutting proprietor the expense of repairs contrary to the charter provisions, and that a contract containing such a stipulation is invalid. It is to be observed of these conflicting decisions that the difference in result appears to arise rather from a difference of opinion as to the effect of the guarantee than from any disagreement as to the legal principle. The decisions which hold that such a guarantee is a proper provision for the protection of the municipality and does not impose the expense of repairs upon the abutting proprietors seem to recognize three features of the guarantee before the courts as controlling, viz.: That the contractor was not required to guarantee his work against any other defects than those for which he might properly be held responsible; that responsibility for defects arising from causes for which he was not responsible, as from acts of the city or its licensees in opening the street, was not imposed upon the contractor; and that the guaranty did not extend beyond such term of years as the pavement might naturally be expected to continue in good order. In some of the cases which ■have adopted the contrary view, the courts have relied upon the fact that the guarantee in question was in effect an agreement to keep the whole street in repair for a term of years, irrespective of the causes which might necessitate the repairs, or at least that it obligated the contractor to repair defects in the streets for which he was not responsible.” 5th Ed., pages 1260-1262.

As the testimony shows that from the practical experience of contractors engaged in this kind of work it is found necessary to expend the amount of this maintenance charge in keeping the pavement in repair for the stated period of 10 years, we see no reason why complaint should be made of the charge. In the instant case the charge for maintenance does not go further than would a requirement to guarantee against original faulty construction of defective material, and we, therefore, conclude that this charge was proper.

The same reasons, however, cannot be urged in support of the estimated profit charge. Mr. Proctor, in his testimony herein quoted, says that this item went into the general road fund, and was used just as other maintenance funds were used, and not especially to maintain the asphalt plant. So that it is clear that it could not be said to be a part of the cost and expenses of these improvements. It was therefore illegally assessed against the property, and the trial court properly directed a verdict as to this item, amounting to $1,650.70 and interest thereon. Therefore, unless plaintiff elects within 20 days to remit the sum of $4,610.57 and interest thereon from the judgment had herein in the court below, the judgment will be reversed and a new trial granted. If plaintiff does so remit, it will be affirmed.

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


author: Ostrander, J.

text:
    SWEIKHART v. HANRAHAN.
    1. Witnesses — Marriage — Privileged Communications — Adultery — Criminal Conversation — Alienation of Affections.
    Under the provisions of 3 Comp. Laws, §10213 (5 How. Stat. [2d Ed.] §12857), prohibiting either spouse from giving testimony as to communications made during marriage, the wife was a competent witness in behalf of her husband, with the consent of both, in a suit for alienation of her affections.

    2. Same — Evidence.
    It must also be held that the husband was not improperly permitted to give testimony relating to statements or communications made to him by the wife during the existence of the marriage relation, where such communications had a tendency to prove the state of the wife’s feelings towards the husband.
    3. Same — Hearsay—Evidence.
    The objection that defendant was not present when the statements were 'made was not ground for excluding the evidence, which was offered to prove her state of mind toward the husband.
    4. Husband and Wife — Alienation of Affections — Damages— Election of Counts — Adultery.
    While the husband may not be permitted to recover damages for illicit intercourse between defendant and his wife, in a suit for alienating her affections, without alleging and offering evidence in support of the charge of adultery and being limited by the rules of evidence which apply to the trial of such an issue, where plaintiff abandoned the second and third counts of his declaration in which he charged adultery, and proceeded to recover under his claim for alienation of affections, the judgment was not subject to reversal on error on the ground that plaintiff had the advantage of the charge of adultery, because on the trial his counsel stated in the presence of the jury that he abandoned the count containing' the charge of adultery, unless it becomes apparent that an improper result was reached by reason of suggestions or statements so made in the trial court.
    5. Same — Evidence—Criminal Conversation — Pleading.
    Where the testimony introduced upon the trial tended to support the charge of alienating the wife’s affections, and no proof of adultery was presented, the court did not err in not striking out her testimony as incompetent because the action was predicated upon adultery and the court did not err in refusing to reject testimony of either husband or wife as incompetent.
    6. Same — Subsequent Conduct.
    Evidence showing defendant’s conduct after he and the wife of plaintiff had parted and suit had been commenced was competent in support of the charge of alienation of affections.
    Error to Ottawa; Cross, J.
    Submitted November 11, 1914.
    (Docket No. 173.)
    Decided January 29, 1915.
    Case by John L. Sweikhart against William A. Hanrahan for criminal conversation, alienation of affections and other alleged wrongs. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Daniel F. Pagelsen (Charles 0. Smedley, of counsel), for appellant.

      Coburn & Misner, for appellee.
    In the first count of the declaration plaintiff alleges that the defendant, intending to injure him and deprive him of the affection, comfort, fellowship, society, aid, and assistance of his wife, Ethel, on March 2, 1913, and on divers other occasions thereafter, and before the beginning of this suit, at the city of Grand Rapids, the city of Grand Haven, and other places, carried on a secret correspondence with plaintiffs wife, secret telephone conversations, met her clandestinely, walked and rode with her, met her at his rooms nearly every Sunday evening, gave her presents, and by various other acts and devices alienated her affections and induced and persuaded her to leave plaintiff’s home, by means whereof, etc,, etc. In the second count plaintiff alleges that with the same purpose defendant, at various times between the dates alleged in the first count, forcibly assaulted plaintiff’s wife and by force compelled her to have with him sexual intercourse, whereby plaintiff was damaged in his reputation, suffered from injured feelings, and was greatly humiliated. In a third count plaintiff alleges that, intending to alienate the affections of his said wife, defendant seduced and debauched her, and, professing to think much of plaintiff’s said wife, destroyed and alienated her affection for the plaintiff, who thereby lost her aid, society, comfort, etc., etc. In this count plaintiff also sets out the alleged manner of defendant’s wooing of his wife, who, he alleges, committed the sin of incontinence with defendant, came to love him and to consent to be debauched by him. The defendant pleaded the general issue.
    This suit appears to have been begun on or after June 25, 1913, by declaration. It is made to appear by the testimony of plaintiff and his wife that they lived and cohabited together until some time in April, 1913, and occupied the same apartments, but did not cohabit, from April until June 12, 1913. On or about June 12, 1913, the wife went from Grand Haven, her home, to Sheboygan, Wis., the home of her parents, taking her child, a little girl, with her. Marital relations were resumed in October, 1913. Plaintiff and his wife both testified at the trial, and it is not probable that, without her testimony, plaintiff would have succeeded in his suit.

      In the opening statement of the attorney for the plaintiff he did not directly — he contends that he did not indirectly — claim that illicit sexual relations had existed between defendant and plaintiff’s wife. He did say:
    “We will show you that on nearly every Sunday night during certain months, except when he was ill for a while — I don’t just recollect when it was — she would go up to his rooms and visit him. We will show you that this defendant asked her to leave home, and that through his influence she refused to cohabit with the plaintiff in this case on or about the 1st of April, 1913, and finally when Jack found out — or Mr. Sweikhart found it out — she told him to go ahead and get a divorce, she didn’t care. * * * We will show you that she finally found out that Mr. Hanrahan was not sincere, and that some time in October of last year she resumed the marital relation with Mr. Sweikhart, and now they' are living together in the city of Milwaukee. We will show you that Mr. Sweikhart again resumed the marital relation primarily for the sake of the child; that that was his main reason in going back to her and living with her again.”
    Plaintiff called the defendant as his first witness; examined him about many matters said to have occurred after suit was begun and in respect to the main issue. He was asked if he had not invited Mrs. Sweikhart to his rooms, and many questions concerning his conduct with her, whether he had not furnished her with money and promised her marriage. Plaintiff was then offered as a witness. Having answered that he was the plaintiff, the following occurred :

      “Mr. Pagelsen: We want to object to any — we want to raise a question of law in regard to the husband testifying. Perhaps we better discuss it not in the presence of the jury.

      “The Court: You understand the rule on that proposition.

      “Mr. Coburn: I do. I will make a statement for the purpose of—

      “Mr. Pagelsen: Before anything of that kind is done, we want this jury excluded. There is apt to be remarks that might be prejudicial to either side, and I don’t think it would be fair to have—

      “Mr. Coburn (interrupting): We will abandon the adultery count, and the criminal count—

      “Mr. Pagelsen (interrupting): Just a moment.

      “Mr. Coburn: I think I have a right to make that statement.

      “The Court: If there is an objection of that kind, you should wait.

      “Mr. Pagelsen: I want to take an exception to the remarks of counsel after I’ve made my motion.

      “The Court: The jury will pay no attention to those remarks at all.

      “Mr. Pagelsen: I will ask to have the court exclude the jury while we argue this question.

      “The Court: Gentlemen, you may enter your jury room.
    “(The jury here retire from the courtroom.)

      “Mr. Coburn: I desire to state right now, if I did not make myself clear in the opening statement to the jury, that we do not rely on any adultery in this case nor on any criminal conversation whatever, and I make that statement for the benefit of counsel now, and that we will rely on the one count in the declaration for alienated affections, and not on the criminal conversation part of the charge.

      “Mr. Smedley: Then you don’t state what count you abandon. There is three counts.

      “Mr. Coburn: We will abandon the second and third counts. We will do that on account of not being able to get some witnesses that we relied on, one in particular, who has since died. Mr. Smedley knows about it.

      “Mr. Smedley: The first count is predicated on adultery. It is so intimately connected with the second and third counts that it is practically one count. He says in the first count that the defendant (reads).

      “The Court: He has abandoned the second and third counts.

      “Mr. Smedley: .Yes. Now the first count is predicated on adultery. Why were those clandestine meetings, and why did she go to his room on Sunday night? Almost every Sunday night she met him clandestinely at his rooms above the saloon. It is idle to say they don’t claim adultery, and all they claim is alienation of affections.

      “The Court: I think, where the adultery count is abandoned, the husband has right to testify. Call the jury.

      “Mr. Smedley: An exception.”
    Plaintiff was asked whether he consented that his wife give testimony and answered affirmatively. Mrs. Sweikhart was called as a witness and was examined without objection as to her competency. When her direct examination had been concluded, the court was moved to strike out her testimony as incompetent because the cause of action made out was predicated on adultery. The motion was overruled. Plaintiff rested, and the defendant moved for a directed verdict on the ground that nothing more than a partial alienation of affections had been made out, and that for it no cause of action accrued to the plaintiff. The motion was denied.
    In giving their testimony, plaintiff and his wife both related communications made by one to the .other, not in the presence or hearing of defendant. The questions mainly discussed by appellant are indicated by the foregoing statement.
    The cause came on for argument in this court on November 11, 1914. When counsel for the appellant urged, as they had urged in the brief, that some of the testimony of the plaintiff was incompetent, unless his wife consented to his giving it, and that she had not consented, it was replied that the wife was present in court, was a witness for the plaintiff, and her consent may be presumed. Thereafter a motion was made in this court for an order permitting the record to be amended, so as to show that, upon the order of the trial court, all witnesses were excluded from the courtroom, except as they were called to testify. With the motion certain affidavits and the certificate of the clerk were also filed. Counter affidavits were filed, the effect of them being that, if the order was made, it was not obeyed, and that the wife of the plaintiff was actually present in court while testimony other than her own was given. A question of fact is thus presented, which the trial court might or might not be able to satisfactorily determine.

       As to the competency of one spouse to testify as to the misconduct of the other spouse in an action for alienation of affections, see note in 39 L. R. A. (N. S.) 317. And on the question whether communications between a husband and wife tending to show affection, or the contrary, are privileged, see note in 2 L. R. A. (N. S.) 708.

   Ostrander, J.

(after stating the facts). “Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage,” is the language of the statute. 3 Comp. Laws, § 10213 (5 How. Stat. [2d Ed.] § 12857).. Objection was not made to the giving of testimony upon this ground, but the objection was that the communication was not in the presence of defendant. The statute evidences a rule of public policy; the privilege being the privilege of the spouse making the communication, the lips of both being sealed, unless both, otherwise, personally consent. The wife is not here objecting to the failure to observe the rule.

The husband’s consent will be presumed, since he testified to the communications. I think it must be said that the wife, also, personally consented. She was living apart from her husband, and in another State, when the action was begun. It appears that whether she would or would not consent to return to this State to give her testimony was a subject which interested both parties to the suit. At the time of the trial she was living with her husband in Milwaukee, Wis.. She attended the trial, and it will be presumed that she knew the nature of the accusations made in her husband’s declaration. In substance and effect her testimony, given with the express consent of her husband, does not differ greatly from that which was given by him concerning their relations, how they were affected by her conduct, and what she said to him. Her consent would therefore be evident, if the record were amended, as desired by appellant. Therefore the motion to amend will be denied.

As to the objections based upon the fact that the defendant was not present when the statements were made, they are overruled upon the authority of Perry v. Lovejoy, 49 Mich. 529 (14 N. W. 485); McKenzie v. Lautenschlager, 113 Mich. 171 (71 N. W. 489). The testimony was introduced to prove the state of the wife’s feelings towards her husband.

2. It is plain that, however willing he may be to do so, a husband should not be permitted to recover damages for the carnal debauching of his wife by another without tendering the issue of criminal conversation and being bound by the rules of evidence which apply to the trial of the issue. The distinction between actions for damages for criminal conversation and those for alienation of affections, where such conduct is not charged, is pointed out in Perry v. Lovejoy, supra, 49 Mich., at pages 532, 533 (14 N. W. 485).

It is the contention of appellant, and the principal one, that the plaintiff has in this case made out by his testimony and has had the advantage of the more serious charge, without alleging it and without affording him the opportunity to meet it. The statement of counsel for plaintiff, in the presence of the jury, that plaintiff abandoned the counts charging adultery was calculated, even if it was innocently made, to acquaint the jury with the fact that the more serious charge had been made. They could only have speculated about the reason for withdrawing it, and it is evident that the result of whatever speculation was indulged might have been favorable or unfavorable to defendant, according to the course of reasoning pursued. It is not the purpose of trials of civil actions to invite or encourage such speculation, however it may result. Evil effects of such suggestions, or statements, may be so apparent as to= compel this court to reverse a judgment. I think they are not apparent here, and that, on the contrary, it is improbable that defendant was prejudiced by the statement of counsel.

The testimony offered by plaintiff tended to support the charge contained in the first count of the declaration. None of it should have been rejected upon the ground that it was not competent for this purpose, namely, to prove alienation of affections unaccompanied by criminal conduct. See Merrill v. Leisenring, 149 Mich. 423, 428 (112 N. W. 1072). No error was committed in refusing to reject it, nor in refusing to rule that the husband and wife were not competent to give it.

3. I have examined the other errors assigned and argued. Testimony showing the conduct of defendant after plaintiff’s wife had left him, and after this action was begun, was competent and was material. If the wife is to be believed, she was willing to leave her husband for defendant, relying upon defendant’s promises to take care of her and, finally, to marry her. If she is believed, her purpose in this direction was halted because she believed defendant to be insincere. And while a defendant is in parlous circumstance when a husband and wife unite in such an action as this, I am not satisfied that prejudicial error is made to appear.

The judgment is affirmed.

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


author: Stone, J.

text:
    HOFFMAN v. FIDELITY & DEPOSIT COMPANY OF MARYLAND.
    1. Limitation of Actions — Summary Proceedings — Appeal—Circuit Court Commissioner — Bond — Landlord and Tenant — Actions.
    The two-year statute of limitations providing that actions shall not be brought upon any bond given upon appeal from justice’s court (3 Comp. Laws, § 9753; 5 How. Stat. [2d Ed.] §14161), does net apply to a bond filed in proceedings before a circuit court commissioner, upon appeal of the cause to the circuit court.
    2. Principal and Surety — Damages—Evidence—Bond on Appeal.
    In an action on an appeal bond covering rent and costs of the defendant tenant, who was evicted in commissioner’s court from the rented premises, being a part of an apartment house or flat, where the lease had terminated before the commencement of the summary proceedings, and the tenant had continued to occupy the premises after expiration of his term, evidence of the rental value during the preceding year was material and admissible, but would not control the rental to be recovered by the landlord against the surety on the bond. The outgoing tenant could not force the landlord to accept the rent agreed upon in the lease there being testimony tending to show an increase in the rental value. It was competent to give evidence of the value of the use and occupation during the period subsequent to the termination of the lease.
    3. Same — Bond—Damages of Landlord Upon "Vacation.
    Where it was provided in a lease that in addition to the liquidated amount to be paid by the tenant as rent, bills for light and ice should be rendered to and be paid by the tenant, the additional amount unpaid by such tenant could not be recovered upon an appeal bond.
    4. Landlord and Tenant — Rent—Definition.
    Rent is in its nature a sum certain; many things may be included in the dealings between landlord and tenant of a purely contractual nature which are not properly rent.

      5. Same — Principal and Agent — Rent—Action on Appeal Bond —Damages.
    Where it 'was claimed by the defendant surety, in an action upon an appeal bond given in summary proceedings, that a sufficient amount had been tendered to cover rent and costs, and the jury 'found that the amount of rent due exceeded the sum so tendered, the plaintiffs .should be required to remit the amount of their judgment which was in excess of such rent and costs and, the remainder exceeding the amount of such tender, it should be determined on appeal as the amount of damages recoverable: the surety could only be released by a tender of a sufficient amount to include all that the plaintiffs were entitled to.as their damages.
    Error to Kent; Perkins, J.
    Submitted November 9, 1914.
    (Docket No. 149.)
    Decided January 29, 1915.
    Rehearing denied July 23, 1915.
    Assumpsit by Clayton H. Hoffman and another against the Fidelity & Deposit Company of Maryland upon a statutory appeal bond. Judgment for plaintiffs. Defendant brings error.
    Reduced and affirmed conditionally.

      ■Thompson & Temple (Frank W. Hine, of counsel), for appellant.

      Ambrose C. Hindman, for appellees.
   Stone, J.

This is an action of assumpsit upon a bond given on appeal from a circuit court commissioner in a summary proceeding for possession of certain premises, to wit, an apartment in the Hoffman Flats, Grand Rapids.

October 1, 1907, plaintiffs commenced a certain proceeding before a circuit court commissioner against one William H. White for the restitution of the premises, claiming that White was unlawfully detaining them. White had been a tenant, but his lease had expired on September 30, 1907. He had been paying a rental of $500 a year, and, in addition thereto, the ice and light bills, all payable by the tenant to the landlord. A judgment of restitution was rendered against said White by the circuit court commissioner, whereupon White gave the statutory bond on appeal to the circuit court from the said judgment, with the defendant as his surety. Afterwards the cause came on to be tried in the circuit court for the county of Kent, and on April 18, 1908, the said White was found guilty, and a judgment of restitution was entered. The premises were surrendered by White on May 10, 1908. The instant suit was commenced upon the bond on October 27, 1913. Upon the trial it appeared that in the latter part of August, or early in September, 1908, one of the attorneys for said White offered to pay to the plaintiffs, to cover the rent of said premises and the costs of suit, the sum of $415.63. This offer was refused, the plaintiffs claiming the sum of $500.

The bill of particulars filed in the instant case was for the rental value of the premises, $450, and to taxed costs of said suit $38.10, with interest at 5 per cent, from the date of restitution of the premises.

Upon the trial of the case there was evidence tending to show that the same arrangement existed under the last lease of White in regard to ice and lights as had existed under a former lease of another apartment belonging to the plaintiffs, where the arrangement had been stated by the plaintiffs in a letter to said White as follows:

“The ice and light for each month you are to pay for in addition. These bills will be rendered at the end of each month at the same time the statements for rent are rendered. Your gas for fuel will be settled with the gas company direct, but it is to be used in the grate and kitchen range only.”

The plaintiff Hoffman, upon the trial of the case, against the objection and exception of defendant, testified, referring to the tenant, as follows:

“He received ice service, light service, heat and janitor service, and one-half space of the fifth floor. During the years 1907 and 1908 I was acquainted with the rental value of these apartments and these services in the Hoffman Flats.

“Q. What was the rental value of - these premises occupied by Dr. White, including this service and this space, the rental?

“A. From the 1st of October, .1907, until he vacated the same in May, after the determination of this suit in the circuit court was $450.”

Another witness testified, under like objection and exception, as follows:

“Q. What would you say was the rental value of the south apartment on the fifth floor of the Hoffman ■Building from the first of October, 1907, to the 10th of May, 1908, including heat, light, janitor service, ice and elevator service? * * *

“A. That would be for a period of seven months and ten days from the 1st of October to the 10th of May; is that the question?

“Q. He moved out on the 10th of May; that is, at the end of the litigation under the landlord and tenant act.

“A. That is seven months and ten days, then?

“Q. That would be the exact time.

“A. I should say $420.”

In its charge to the jury the court, among other things, said:

“The plaintiffs claim that the rental value of these premises during the time that Dr. White was occupying them — namely, from October 1, 1907, to May 10, 1908 — was $50 a month, and, in addition thereto, the charges during that time for ice and light furnished the tenant. The plaintiffs claim that those charges amounted to about $6 a month, or for from $40 to $50 for the entire period of nearly eight months. To this amount the plaintiffs claim should be added the costs taxed in the case against Dr. White, which terminated in their favor in this court, those costs being $88.10. * * * In fixing the rental value, therefore, the fact that these services of light and ice were rendered to make the occupancy of the premises more acceptable and convenient may be considered by you as bearing upon the question of the actual value, rental value, of these premises during this period. And I think, too, I might as well state that, if the only agreement between the parties as to the amount that should be paid for the privilege of occupying these premises was the amount to be paid for ice and light, that would constitute the amount to be recovered if it should appear that the ice and light were furnished. In other words, it Is a matter of agreement between the parties as to what shall be paid for the privilege of occupying the premises such as these, or any other premises for that matter, and whatever they agree to pay, or whatever condition may be attached to the privilege of occupancy, that amount will be under the law rent. So I say to you, gentlemen, that under the undisputed facts in this case also and the lease which has been read to you, or the agreement constituting the lease which has been read to you by counsel on both sides relating to this subject of light and ice, the ice and light were to be paid for as furnished as a condition or one of the conditions of the occupancy of these premises, as well as the sum specified as the annual rental. _ Both therefore, under the law, are to be considered in determining the rental value of the premises, if you should find that the ice and light were actually furnished.

“The plaintiffs further claim that during the months that Dr. White, the tenant, occupied these premises — namely, from October 1, 1907, to May 10, 1908 — the winter months, the premises were worth more than they would ordinarily have been worth on a yearly rental. That is a subject for your consideration. If they were worth more during those winter months, it is a matter for you to determine. If they are not worth more, it is up to you as the jurors in the ease to determine what the rental value .actually was worth.

“The defendant, on the other hand, denies that they are worth any more than the annual rental value would indicate, namely, $41.66, and a fraction a month. The plaintiffs claim that they are worth $50 a month during those months. What is the fact?

“Now, after you have determined the amount due, and you will reckon that amount from the 1st day of October, 1907, up to and including the 10th of May, 1908, at whatever monthly rental- you find the premises were actually worth under the evidence in this case, adding thereto whatever sum you may find under the evidence the ice and light were actually worth furnished Dr. White during this period of his occupancy, adding thereto the $38.10 costs; the sum total of'these three items will determine.

“Now, if you should find that the amount offered by Mr. Hine to Mr. Hindman in August or September, 1908, was equal to that amount or more than that amount, your verdict must be for the defendant; and that is for this reason, gentlemen: The defendant here is a surety, and if the plaintiffs had been offered at any time an amount which would equal the liability of the surety, and had refused to accept it, in the law that would be a release of the surety, because the liability of the surety is a secondary liability in the law, and, if all the plaintiffs were entitled to claim at the time that offer was made was $415.63, the offer and its refusal would constitute in the law a release of the defendant from further liability under this bond.

“But, on the other hand, if the amount which the plaintiffs were entitled to recover for rent, as I have indicated, and the costs in that proceeding, as I have indicated, if the amount that they were entitled to recover was more than, even one cent more than the $415.63 which it is claimed was offered, then the plaintiffs are entitled to recover the full amount due against the defendant surety company, together with interest at 5 per cent, from the time they obtained possession of these premises, May 10, 1908, to date.”

The trial resulted in a verdict and judgment for the plaintiffs for $567.54, damages and costs.

The defendant has brought the case here upon writ of error, and there is a large number of assignments of error. Counsel for defendant say, in their brief, that there are six principal questions raised by the assignments of error:

(1) Statute of limitations.

(2) Can recovery be had in this action for rental value under the bond sued on?

(3) Can recovery be had in this action for light and ice bills?

(4) Did the court err in submitting the case to the jury on the theory of tender?

(5) Estoppel.

(6) Interest.

The defendant gave notice under the general issue of the statute of limitations. In support of this point it relies upon the provisions of section 9753 of the Compiled Laws of 1897 (5 How. Stat. [2d Ed.] §14161). This is an act of the legislature entitled:

“An act to limit the liability of sureties on bonds given on appeal from justice courts.”

It provides as follows:

“That no action shall hereafter be brought to charge any surety or sureties on any bond or recognizance given on appeal from any justice court in this State, unless the same shall be brought within two years from the date of the final determination of the suit in which such bond is filed.”

In the same connection counsel for appellant call attention to section 11176 of 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13696), relating to the bond on appeal to the circuit court in summary proceedings. This statute provides that:

. “Either party conceiving himself aggrieved by the determination or judgment of the commissioner, or judge, or other officer, made or rendered under the provisions of this chapter, may appeal therefrom to the circuit court for the same county, within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases of appeals from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner.”

It is the contention of the defendant that this statute of limitations applies to bonds given on appeal in summary proceedings, and therefore to the bond in this case, and that the plaintiffs were not entitled to bring this action, as the two-year limitation had long since expired at the time this action was commenced. We cannot agree with the defendant in this contention. The so-called statute of limitations does not apply, in our judgment, to an appeal bond given on an appeal in a summary proceeding. We have examined with great care the decisions of this court cited by counsel upon this subject. While appeals from these proceedings are allowable in the same manner as on judgments rendered by justices of the peace, the proceedings are not bound by any of the provisions of the justice’s act, except so far as this chapter may have adopted certain proceedings of the former so as to make them substantially a part of the latter. Dibell v. People, 22 Mich. 371; Fowler v. Bredin, 98 Mich. 133 (56 N. W. 1110).

In Bauer v. Wasson, 66 Mich. 256 (33 N. W. 186), it was held that a statute making the continuance of the liability of a surety on a bond given on appeal from a justice’s judgment depend upon the issuance of an execution within 30 days after rendition of judgment against the principal in the circuit court did not apply to appeals from the decisions of justices in forcible entry and detainer cases, but was confined to cases arising under the justice’s act. By a like reasoning it must be held that the circuit judge did not err in holding that the statute of limitations invoked did not apply to an action brought on a bond given in a summary proceeding.

Can recovery be had in this action for rental value under the bond sued on? It should be borne in mind that the lease to White had terminated. Its provisions were therefore at an end. While evidence of what property had rented for in the past year, and what it had in a given case been rented for during the incoming year might have some bearing upon the rental value, we think it very clear that the rental paid under the old lease would not be controlling. If the rent paid under the old lease were controlling in amount, then an outgoing tenant, by giving the statutory bond on appeal, could force the landlord to accept the old rental, notwithstanding the fact that the rental value of the premises might be double the rent named in the old lease. Undoubtedly, where the proceeding against the tenant is instituted because of the nonpayment of rent, and it becomes the duty of the magistrate to find the amount of rent due, the terms of the lease covering the period would be controlling. We think it was competent to give evidence of the rental value, and to submit that question to the jury. We are aware that the terms “rent” and “rental value” are often used synonymously by the courts. It becomes the duty of the officer taking the bond to fix the amount of the penalty, and the same shall not be less than twice the amount of the annual rent of the premises in dispute. This may or may not be governed by á lease, depending upon whether a lease is then in force. Cummerford v. Paulus, 66 Mich. 648 (33 N. W. 741); Schellenberg v. Frank, 139 Mich. 183 (102 N. W. 644).

In the case last cited the record shows that there had been an expiration of the tenancy, and evidence was given showing the rental value of the premises up to the time of restitution. Counsel for defendant is mistaken when he says that the record in that case discloses that the suit was brought for the stipulated rent only, and not for the rental value. The stipulated rent was $60 a month, and rental value was claimed to be $70 per month. It is true that the old lease was put in evidence, as well as a new lease, as tending to show the rental value of the premises, and that such course was proper we have already stated.

Can recovery be had in this action on the bond for light and ice bills paid by plaintiffs? After an examination of the authorities bearing upon this subject, we are constrained to answer this question in the negative. It should be noted that this is an action against the surety, in which, by the terms of the bond, the payment of rent and costs is secured, and not damages generally. The undisputed evidence in the case shows that the light and ice bills, during the period covered, amounted to between $40 and $50. The conditions of the bond in a suit against the surety should be construed with reasonable strictness. Things that are agreed to be done as between landlord and tenant may be recovered for in a proper suit, but are not necessarily included in the bond. Payments which are not properly rent should not be included in this action. One of the essential definitions of rent is that it is for a certain sum. Taylor’s Landlord and Tenant (9th Ed.), § 369. Many things may be included in dealings between landlord and tenant which are purely contractual, and are not rent proper. The latter and costs are all that the surety is liable for in this case. Tiffany, Landlord and Tenant, § 169 et seq. We do not think that the claim for light and ice bills should have been included in the plaintiffs’ recovery, and the court erred in submitting that claim to the jury.

Did the court err in submitting the case to the jury on the theory of tender? It is very clear to us that there was no error in the charge upon that subject of which the appellant can complain. Whether the tender of a sufficient sum to cover the amount of the plaintiffs’ claim would release the surety is a question which we need not consider, for the court instrueted the jury unqualifiedly that, if they found the tender of a sufficient sum was made, there could be no recovery. Manifestly, the jury found the amount tendered too small to cover what they found was then due the plaintiffs for the actual time occupied down to date of surrender of the premises.

We find no error committed by the court under the fifth and sixth grounds stated by appellant. We think, however, the judgment was too large by $50 and the interest thereon at 5 per cent, from May 10, 1908. The largest amount shown by the evidence for light and ice bills was $50. The amount claimed for rent in the bill of particulars was $450. The recovery, therefore, could not exceed that sum for rent. There was evidence tending to. show that the rental value, including light and ice, might reach that sum. Deducting $50 from -$450, and adding the costs of $38.10, would make a sum of $438.10, without including any interest, which exceeded the amount of the tender. It therefore is evident that the so-called tender was not large enough to cover the rental proper, and costs and interest due.

If the plaintiffs shall, within 30 days, remit the sum of $65 (being the amount of $50, plus interest thereon) from the judgment in this case, so that the same may stand at the sum of $502.54, the judgment will be affirmed for that amount; otherwise the judgment will be reversed, and a new trial granted. In either event the appellant will recover its costs to be taxed.

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


text:
    COTTRELL v. MICHIGAN UNITED TRACTION CO.
    1. Master and Servant — Contracts—Intent of Parties.
    It is a familiar rule, in construing contracts of employment, that the intention of the parties should govern and should be determined or collected from the words used in the writing, not from extraneous matters, and that the entire instrument should be examined, the particular purpose for which it is executed kept in mind and effect be given thereto if possible without adding to or subtracting from the phraseology as employed by the parties.
    2. Same — Release.
    Where the employee of an express company, in the city of Jackson, had, in making application for a position as driver, executed to the employer a release of all liability for damages which might he sustained by reason of his injury or death, also agreeing to pay to his employer any sum which it might be compelled to disburse in consequence of any claim so arising, and that the employee would, on demand, execute to the corporation or person owning or operating a transportation line whereon he might be injured a release of all claim arising out of the injury; also ratifying any agreement which might' be made by his employer with any transportation line in relation to releasing liability for any accident to employees of the employer and agreeing to be bound by any provisions of such agreement, the use of the words “driver at Jackson, Michigan,” being evidently used as a limitation upon the work being done by the employee, prevent its having application to an injury which the servant sustained while he was acting as express messenger several years later for the same corporation, such servant being injured in a collision which he charged was caused by the negligence of defendant traction company. In- so far as he might be required, under his employment as a driver at the said city, to render services in or about railroads or steamboat lines, the clause would apply, but having no reference to the work of an express messenger, it could not be held to extend to that branch of the employment.

      3. Same — Contracts—Interpretation—Release.
    It is a general rule that words employed in the recital, limiting the class of cases to which the contract shall apply, will limit and restrict the effect of the contract, and the burden is on the defense to establish that a contract of' release is by its terms applicable to the subject-matter or employment to which it is claimed the contract was intended to apply; in order to exempt the carrier from liability, or limit the extent of its liability for an injury arising from negligence, the contract or release must expressly so provide.
    4. Carriers — Release oe Liability — Negligence.
    Nothing short of an express stipulation in writing or by parol will be permitted to discharge the carrier from the obligation of exercising care, the law has annexed to its business. Such an exemption from liability cannot depend upon implication or inference or be founded upon doubtful or conflicting evidence, but must be specific and certain so as to exclude any doubt or controversy as to its application.
    5. Same — Waiver—Contract—Release—Express Messenger.
    Where an injured servant of an express company, in his application for the position as driver, executed a release of liability to the defendant and to any corporation with which it might contract for release of damages, the contract could not be held to relate to employment as express messenger in which the servant was engaged at the time of his death in a collision, several years later; and the question of the construction of the contract was one proper for the court and was properly determined by the court instead of submitting the question to the jury.
    Error to Jackson; Parkinson, J.
    Submitted November 16, 1914.
    (Docket No. 129.)
    Decided January 29, 1915.
    Case by Millard F. Cottrell, as administrator of the estate of Ernest E. Clark, deceased, against the Michigan United Traction Company, for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd (Israel T. Cowles, Charles E. Lewis, Jr., and Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Price & Whiting and Forrest C. Badgley, for appellee.
   Stone, J.

This action was brought by the administrator of the estate of Ernest E. Clark, deceased, against the defendant, to recover damages for the alleged wrongful death of plaintiff’s decedent. Mr. Clark died as a result of injuries received in a collision near North Concord, Jackson county, on November 12, 1912, on a line of the railway operated by defendant, he surviving about two hours after the accident. Plaintiff’s decedent was acting in the capacity of an' express messenger in charge of express matter of the United States Express Company, in a car carrying express which met in a head-on collision with an express car at the point first stated.

To a declaration alleging negligence of defendant in the operation of its cars, the defendant pleaded the general issue, and gave notice thereunder, in part, as follows:

“This defendant will further show that prior to the time of the accident upon which the claim of this suit is based that the said plaintiff’s decedent herein had made application to the express company, in writing, for employment by it as an agent or express messenger, and that, in pursuance to said application, he was, prior to and at the time of the collision, employed by the express company under a contract in writing between said Clark and said express company, by the terms whereof he did assume all risk of all accidents and injuries that he might sustain in the course of said employment, whether occasioned by negligence, or whether resulting in death or otherwise, and did undertake and agree to indemnify and hold harmless the said express company for any claims that might be made against it arising out of any claim or recovery for any damages sustained by him by reason of said injuries, whether such injuries resulted by reason of negligence or otherwise, and did ratify all agreements made by the express company with any transportation line, namely, the Michigan United Railways Company, and its lessee, the Michigan United Traction Company, in which said express company had agreed, or might agree, that the employees of said express company should have no claim for injuries sustained in the course of their employment upon the line of said transportation company.”

Plaintiff’s decedent first entered the employ of the United States Express Company as a driver at Jackson, Mich., in 1906, under the terms of a written contract of employment, signed by himself and the authorized agent of the express company. He signed a printed form of application, which application bore the following heading:

“United States Express Company.

“Application for Employment.

“I apply for employment by the United States Express Company, and for that purpose have made and signed this application in my own handwriting.”

He then states his full name, his residence, place and date of birth, parents’ names and residence, the names of his last employers, with the terms of employment, with certain references to individuals and their addresses. The printed application signed by him contained the following language:

“I also state and agree, as-terms and conditions of my employment, as follows: * * * I understand that I may be required to render services for the company on and about the railroad, stage, and steamboat lines used by the company for forwarding property, and that such employment is hazardous. I assume the risk of all accidents and injuries that I may sustain in the course of my employment, whether occasioned by negligence, and whether resulting in my death or otherwise. I agree to hold the company harmless from any and all claims that may be made against it arising out of any claim or recovery on the part of myself, or my representative, for damages sustained by reason of my injury or death, whether such injury or death result from negligence or otherwise. I agree to pay to the company, on demand, any sum which it may be compelled to pay in consequence of any such claim. I will execute and deliver to the corporation or persons owning or operating the transportation line upon which I may be so injured a good and sufficient release under my hand and seal of all claims, demands, and causes of action arising out of any such injury, or connected with or resulting therefrom. I ratify all agreements made by the company with any transportation line in which the company has agreed, or may agree in substance, that its employees shall have no cause of action for injuries sustained in the course of their employment upon the line of such contracting party, and I agree to be bound by each and every of such agreements, so far as the provisions thereof relative to injuries sustained by employees of the company are concerned, as fully as if I were a party thereto. The provisions of this agreement shall be held to inure to the benefit of any and every corporation and person upon whose transportation line the company shall forward merchandise, as fully and completely as if made directly with such corporation or persons.”

Then follows a description of the applicant to be prepared and signed by the superintendent or agent, which is signed by the agent of the company. Next follows a printed form of contract of employment reading as follows:

“Contract of Employment.

“On the statements and conditions contained in the foregoing application, the United States Express Company hires the applicant above named to serve as [written] driver at Jackson, Michigan [printed. form], and to perform such other services as may be directed from time to time, from [written] July 6, 1906, [printed form] and agrees to pay him for his services at the rate of [written] forty-five [printed form] dollars per month, or fractional part thereof, to the date of his resignation or discharge.”

Signed by the express company and by Clark.

At the date of the accident the defendant was operating at the place of the accident as lessee from the Michigan United Railways Company, under lease by which it assumed all contracts of the lessor. The contract between the Michigan United Railways Company and the United States Express Company, providing for the carrying of express over this line, which the defendant herein assumed as lessee, provides, in part, as follows:

“The express, company hereby agrees that it will: Assume all losses, risks, and damages to express business of all kinds forwarded by it over the lines of the traction company, as well as all losses, risks, and damages to its own property while on or near the lines of the traction company; also assume the risk of personal injury to, or death of, any employee solely in the service of the express company while engaged in its business of traveling free under its orders on any of the railroads or property of the traction company, and will protect and save harmless the traction company from all loss and damage growing out thereof, or connected therewith. The traction company will protect the express company against any liability for damages which may result from the death of, or injury to, any person jointly employed by the traction company and the express company from the negligence of the traction company or its employees without negligence on the part of the express company or its employees, and it is understood between the parties that the traction company shall have the full benefit of all agreements between the express company and its employees whereby the express company or the traction company is released from claims and demands on their part on account of personal injuries or death.”

At the time of the collision here involved Mr. Clark was riding in defendant’s car in sole charge of express matter. No evidence was offered by defendant pertaining to the cause of the accident involved; it being defendant’s contention that by the plain terms of the contract between Mr. Clark and his employer, the express company, the present action is absolutely barred.

At the close of the testimony the defendant made a motion for a directed verdict in its behalf, which was denied, and exception duly taken, and the case was submitted by the trial court to the jury upon the question of damages alone. The jury returned a verdict for the plaintiff, upon which judgment was entered.

By appropriate assignments of error the following points are urged by defendant:

(1) The court should have directed a verdict for defendant:

(a.) By the terms of the contract of employment of plaintiff’s decedent, he assumed the risk of all accidents and injuries such as the one in question, and released the defendant herein from all claim therefor.

(b) This contract is valid, and may be enforced by the defendant in this case.

(2) If the court refused to direct a verdict for the defendant, then the court should have submitted to the jury the question as to whether or not the contract between Clark and the United States Express Company was binding on plaintiff’s decedent in the case at bar.

It is also claimed that, if the court refused to direct a verdict for defendant, it should have submitted to the jury the question whether the application for employment, by plaintiff’s decedent to the United States Express Company, covered and contemplated the performance of the services which he was rendering at the time of the accident. It is the claim of the plaintiff that in the application made by plaintiff’s decedent in 1906, the parties did not contemplate Clark’s employment as an express messenger; that Clark sought employment as a driver for the express company at Jackson, Mich. It is urged by plaintiff that the defendant failed to maintain its plea, or to show what it undertook to show under its notice, that Clark made application for employment' by the express'company as an “agent or express messenger.”

We are satisfied that the application and the contract of employment should be treated as one contract, signed at one and the same time by the party seeking employment, and must be understood and construed with reference to the particular work or line of employment that the applicant desired. The words in the application, “I understand that I may be required to render services for the company on or about the railroad, stage, and steamboat lines used by the company for forwarding property,” were contained in the printed form of application, and were made to fit any and every locality, and, in this case, should be understood, in the light of the surrounding circumstances, as referring to the job which Clark was applying for at Jackson, Mich. So far as he might be required under his employment as driver at Jackson, Mich., to render services about the railroad, stage, or steamboat which the company made use of, this clause had application. It may be said, as a matter of common knowledge, that the driver for an express company would have to do more or less work on or about the lines of the company used for transportation, and, if it made use of no stage or steamboat line at Jackson, Mich., it did make use of the street railway, and the words “stage and steamboat lines” might be treated as merely surplusage. The wording of the contract is also significant in this respect, and bears out the contention of the plaintiff that it has no reference whatever to the work of an express messenger, or to anything but the job specified, to wit, “driver at Jackson, Michigan.” It reads that:

“The United States Express Company hires the applicant above named as driver at Jackson, Michigan, and to perform such other services as may be directed from time to time.”

Whatever services he might be directed from time to time to perform by the terms of the contract, it is urged, were to be performed in connection with his work as driver at Jackson, Mich., and the rate of wages was fixed at $45 per month for this service. He was not a driver at Jackson, Mich., at the time he met with his injury, and had not been for years. The agent of the express company at Jackson, Mich., testified on direct examination as follows:

“This application was made before Mr. Clark went to work, and signed by him and-filed with me.

“Q. Was any application or any subsequent — any subsequent application or contract or agreement ever made with Mr. Clark up to the time of his death?

“A. No, sir. * * * ”

On cross-examination the same witness testified:

“I could not say positively how long Mr. Clark worked as driver. He went into our employ at that time as driver. I presume he worked as driver for two years; I could not say positively; driver about the city of Jackson. After that he was appointed messenger for the company.

“Q. Did he act as shipping clerk for a time?

“A. Waybill clerk.

“Q. Where was he working then?

“A. In my office at Jackson. I do not recall how long he worked as waybill clerk. * * * Mr. Clark as waybill clerk received a salary of $55 a month; as messenger he was getting $60 a month.”

In construing this contract of employment it is a familiar rule' that the intention of the parties should. govern. This intention must, however, be collected from the words used in the instrument, and not from matters dehors the writing. The entire instrument should be examined; the particular purpose for which it was executed should be kept in mind and given effect to, if it can be done, without adding to, or subtracting from, the words used by the parties. A release covers only such claims as were within the contemplation of the parties. Although there are general words in the application which might, if they stood alone, bear the construction of a general release, these, we think, are limited and controlled by the recital of the specific employment, to wit, “driver at Jackson, Michigan,” to which the release was evidently intended to apply. The rule is that, where the words in the recital apply to a particular kind or class of employment, as in this case, that of “driver at Jackson, Michigan, and to perform such other services as may be directed from time to time from July 6, 1906,” the general words will be limited and restricted by the words in the recital. Texas, etc., R. Co. v. Dashiell, 198 U. S. 521, 25 Sup. Ct. 737; Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14 (23 L. R. A. 581).

The burden of this defense is upon the defendant to show a release applicable to the employment in which the deceased was engaged at the time of his death.

It seems to be settled by the authorities that in order to exempt the carrier from liability, or to limit the extent of its liability for injury caused by its own negligence of any kind, the contract must expressly so provide. Black v. Transportation Co., 55 Wis. 319 (13 N. W. 244, 42 Am. Rep. 713).

In the opinion in that case the court, referring to New Jersey Steam Navigation Co. v. Bank, 6 How. (U. S.) 343, quotes the following language:

“ ‘The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.’ This rule is approved by the court of appeals in New York, notwithstanding the fact that that court has gone further than most of the other courts of the country in upholding contracts exempting carriers from liability for the negligence of their servants, when such exemption has been clearly and expressly stipulated for. See Westcott v. Fargo, 61 N. Y. 542 (19 Am. Rep. 300).”

In Kenney v. Railroad Co., 125 N. Y. 422 (26 N. E. 626), the court of appeals of New York held that general words in the contract of a common carrier limiting its responsibility will not be construed as exempting it from liability for negligence, when they are capable of other construction.' Speaking of the contract in that case, the court, on page 425 of 125 N. Y. (on page 627 of 26 N. E.), uses the following language:

“Our decision, however, is placed upon the ground that this contract does not in unmistakable language provide for an exemption from liability for the negligence of the defendant’s employees. The rule is firmly established in this State that a common carrier may contract for immunity from its negligence, or that of its agents, but that, to accomplish that object, the contract must be so expressed, and it must not be left to a presumption from the language. Considerations based upon public policy and the nature of the carrier’s undertaking influence the application of the rule and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis. The doctrine of such contracts was stated by this court in the case of Perkins v. Railroad, 24 N. Y. 196, 206 (82 Am. Dec. 282). It was reiterated in the opinion of Judge Allen in Blair v. Railroad Co., 66 N. Y. 313, 318 (23 Am. Rep. 55), and in Mynard v. Railroad Co., 71 N. Y. 180 (27 Am. Rep. 28), Church, C. J., reviewing the question at some length, considered the prior decisions of this court and referred to certain decisions in the United States Supreme Court which held a different doctrine as to such agreements. In recognizing the right of the carrier to contract for its immunity from the results of negligence, he stated the general rule to be that such contracts must be expressed. in unequivocal terms. This decision was followed as being decisive of the question in the later decisions in Holsapple v. Railroad Co., 86 N. Y. 275; Nichols v. Railroad Co., 89 N. Y. 370, and Canfield v. Railroad Co., 93 N. Y. 532 [45 Am. Rep. 268].”

The defendant, upon the main question in this case, relies upon Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, and the numerous decisions that have followed that case. It is worthy of passing remark that in that case the court expressly found:

“That Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars.”

In other words, in that case (as was claimed by defendant in its notice in this case) the agreement related to the particular employment of express messenger, in which he was then engaged.

An examination of the other cases cited by defendant’s counsel discloses that in every instance the application and agreement related to the particular employment of express messenger. It will not do to say that the contract included all or any employment in which the applicant might engage, but the rule is, as above shown, that the identical words of the contract must refer to the employment.

Where a waiver is claimed by ‘the defendant, in order to prevail in such defense, it should be made to appear that the waiver is plainly expressed in the contract. We are unable to find any such waiver in the application and contract relied upon by the defendant in this case. Looking at the entire instrument, we cannot say for a certainty that the employment of express messenger was within the contemplation of the parties when the contract was made.

Neither can we agree with the position of defendant that there was involved here a question of fact which should have been submitted to the jury. In other words, we do not think that it was the duty of the trial court to submit to the jury the question whether the application for employment by plaintiffs decedent and the contract with the express company contemplated the performance of the services which he was rendering at the time of the accident. The question involved was one of law, and not of fact, and the jury should not have been permitted to speculate respecting it. We find no error in the ruling of the court upon this subject. This view of the case renders it unnecessary for us to consider the numerous other objections raised by the plaintiff to the validity of the waiver in the contract of employment.

We think the court reached the correct conclusion in the case, and, finding no reversible error in the record, the judgment of the circuit court is affirmed.

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