text:
    WARREN BROTHERS CO. v. BARBER ASPHALT PAVING Co.
    Trade-Names — Unfair Competition — Deception of Public.
    The fact that complainant coined the word “Bitulithic” to designate a particular kind of pavement manufactured by itself, caused it to be copyrighted, and filed it for record as a copyrighted word in the office of the secretary of State, is no ground, for an injunction to restrain defendant from offering to furnish similar pavement according to proposals advertised by a city under the name “Bitulithic,” where the proposal specifies in detail the materials and proportions thereof which are to go into the pavement.
    Appeal from Wayne; Hosmer, J.
    Submitted December 6, 1905.
    (Docket No. 150.)
    Decided July 23, 1906.
    Bill by the Warren Brothers Company against the Barker Asphalt Paving Company to restrain the use of a trade-name. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Clark, Jones & Bryant, for complainant.

      John J. Speed, for defendant.
   Moore, J.

The bill was filed for an injunction to restrain the defendant from infringing upon the trade-name of the complainant and from offering to manufacture or construct the Bitulithic pavement or any pavement under that name, and prayed that the court determine the complainant to be the sole owner of the right to use the trade-name “Bitulithic” in connection with street pavements. The bill in substance alleges that a certain form of street pavement had been designed and invented by Frederick J. Warren, which had been brought to its present state of perfection through an organization of experts, and that said Warren had assigned all his rights to a corporation that on February 27, 1900, was changed to Warren Broth-ers Company, the complainant; that the complainant advertised the pavement very extensively in numerous States of the United States and Canada, and about the 1st day of January, 1902, it coined the word “Bitulithic” and applied said word to said pavement and thereafter designated its pavement by that name; that it continued to manufacture said pavement and to sell it under the name “Bitulithic Pavement,” and at great expense made the pavement under that name known to purchasers and prospective purchasers, and that it has become popular and well known in all of the cities of this country, and a great demand therefor has been created, and that a valuable good will and property in the name “Bitulithic” as a trade-name and as applied to the pavement manufactured and sold by the complainant has been acquired, and that the purchasing public has become accustomed to associate the term “Bitulithic,” as applied to street pavements, to the particular pavement manufactured and sold by the complainant.

The bill also alleges the investment by complainant of a large sum of. money to enable complainant to meet the requirements of its business of manufacturing and selling the particular form of pavement known and designated by it as “ Bitulithic” and that the complainant has caused the word “ Bitulithic,” as applied to street pavements, to be copyrighted and to be filed for . record as a copyrighted word in the office of the secretary of State of the State of Michigan. The bill also alleges that the Barber Asphalt Paving Company was also organized for the purpose of constructing street pavements, and that until about the time of its attempt to infringe upon the rights of the complainant it was principally engaged in the selling and constructing of sheet asphalt pavements.

That on July 15, 1904, the city of Detroit, by its department of public works, called for proposals f or the construction of a large amount of Bitulithic pavement. That the right to sell and construct said pavement was a valuable property right and belonged exclusively to the complainant and to its duly authorized representatives. That at the time fixed for the submitting of proposals the defendant submitted proposals, and thereby offered to sell and to construct a pavement which it designated “Bitulithic,” and the purpose and intention of the defendant in offering to construct a pavement named “ Bitulithic” was to appropriate to itself the good will and property acquired by the complainant in the name “ Bitulithic” as applied to street pavements. That the defendant has offered to sell to various cities and villages in the State of Michigan a pavement manufactured by it under the name “Bitulithic Pavement,” and of so nearly and substantially the same general character of construction as that manufactured and sold by the complainant as to deceive the general public, and that the purpose of the defendant in so doing has been and is to appropriate to itself the good will and property of the complainant in the name “ Bitulithic” as applied to street pavements, and that unless restrained the defendant will further infringe upon the complainant’s rights, and prayed for an injunction.

The defendant answered, denying that this pavement was the original invention of Frederick J. Warren; that it has no knowledge as to whether the word “Bitulithic,” as applied to street pavements, was coined by the complainant or not; that it has no knowledge as to whether the word “ Bitulithic ” was copyrighted by the complainant or filed for record as a copyrighted word in Michigan; that it denies that it has sold or constructed any kind of street pavement by the name “ Bitulithic,” but it admits that it has constructed pavements somewhat similar to the complainant’s Bitulithic pavement. It admits the call for proposals by the department of public works of Detroit, but alleges that specifications had been adopted designating the material and the method of construction and character of the work required and that its proposal was made in accordance with the same, and that it would not be lawful for the department of public works to receive bids for a pavement described merely by a certain name, but only upon specifications describing its construction, It denies it has the intention of violating any of the rights of the complainant, and denies that by the use of any. term in bidding upon specifications for the construction of a pavement any one could be misled into the belief that the pavement the defendant proposed to supply was one manufactured or to be manufactured by the complainant.

Proofs were taken in open court and the bill was dismissed. The case is brought here by appeal.

Counsel for complainant say:

“This is not a technical trade-mark case. The bill is filed for the purpose of restraining the defendant from engaging in acts of unfair competition and particularly from appropriating or attempting to appropriate to itself a valuable good will which belongs to the complainant. * * *
“The proofs in the case clearly establish priority of adoption of the name * Bitulithic ’ by the complainant, and its application to a street pavement of its own manufacture, and that this form of street pavement has never been manufactured or constructed until the complainant and its predecessors began to build it, nor had the name ‘ Bitulithic ’ ever been used to designate a street pavement until coined by the complainant for the purpose of designating its own particular pavement. The proofs also clearly establish the fact • that whatever good will the Bitulithic pavement has acquired has been due solely to the complainant’s efforts, and that these efforts have been very extensive and costly, and that they have been successful in fact in building up a great reputation for the Bitulithic pavement, by virtue of which it must be concluded that the good will attaching is a property right of great value owned exclusively by the complainant.”

And it is said defendant seeks to take advantage of this situation by unlawfully offering to sell and build the pavement. Many authorities are cited which counsel contend support their theory.

The position of defendant, briefly stated, is:

_ “ That the department of public works advertised for bids for pavements on Canfield and other avenues in the city of Detroit; that while the pavement desired was designated as ‘ Bitulithic Macadam, ’ it required the pavement to be constructed according to specifications theretofore adopted by the common council, which specifications designated the material, the method of construction and character of the work required. And as the work was to be done upon contract in which the contractor agrees to do the work according to the specifications, it is clear that under bids and contracts made by the defendant there ■could be no contention possible that any one could be deceived into the belief that the work was done by the complainant or with materials furnished by it, whatever may be the particular name by which the pavement was designated.”

The inventor of the Bitulithic pavement did not see fit to patent it. The name which was attached to it was copyrighted and the article has been extensively advertised and sold under the name by, which the complainant and its predecessor has called it. Does the fact that it has been so called, advertised, and sold prohibit the defendant and others from offering to bid upon the construction of pavements called in the proposal for bids Bitulithic macadam, when immediately following said designation it was stated in said proposal:

“ Said streets and avenues to be paved according to the specifications adopted by the common council February 23, 1904; also to the estimates of the city engineer, as above, and the charter and ordinances of the city of Detroit. ”

A trade-name does not give one the exclusive right to make or sell a given kind of goods. See Globe- Wernicke Co. v. Fred Macey Co., 119 Fed. 703; Fairbanks v. Jacobus, 14 Blatchf. 337; Putnam Nail Co. v. Dulaney, 140 Pa. 205 (11 L. R. A. 524); Powell v. Brewing Co., L. R. 62 Ch. Div. 68, 72.

In Canal Co. v. Clark, 13 Wall. (U. S.) 311, Mr. Justice Strong for the court said:

“The office of a tráde-mark is to point out distinctly the origin or ownership of the article to which it is affixed, or in other words, to give notice who was the producer. This may in many cases be done by a name, a mark, or a device well known but not previously applied to the same .article.
“ But, though it is not necessary that the word adopted as a trade-name should be a new creation never before known or used, there are some limits to the right of selection. This will be manifest when it is considered that in all cases where rights to the exclusive use of a trade-mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief. This is the doctrine of all the authorities. Amoskeag Manfg. Co. v. Spear, 2 Sandf. (N. Y.) 599; Boardman v. Britannia Co., 35 Conn. 402; Farina v. Silverlock, 39 Eng. Law & Eq .514. Hence the trade-mark must, either by itself, or by association, point distinctively to the origin or ownership of the article to which it is applied. The reason of that is that unless it does, neither can he who first adopted it be injured by any appropriation or imitation of it by others, nor can the public be deceived. The first appropriator of a name or device pointing to his ownership, or which, by being associated with articles of trade, has acquired an understood reference to the originator, or manufacturer of the articles, is injured whenever another adopts the same name or device for similar articles, because such adoption is' in effect representing falsely that the productions of the latter are those of the former. Thus the custom and advantages to which the enterprise and skill of the first appropriator had given him a just right are abstracted for another’s use, and this is done by deceiving the public by inducing the public to purchase the goods and manufactures of one person supposing them to be those of another. The trade-mark must, therefore, be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. And there are two rules which are not to be overlooked. No one can claim protection for the exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Nor can a generic name, or name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade-mark and the exclusive use of it be entitled to legal protection. As was said in the well-considered case of Amoskeag Manfg. Co. v. Spear, supra, the owner of an original trade-mark has an undoubted right to be protected in the exclusive use of all the marks, forms, or symbols that were appropriated as designating the true origin or ownership of the article or fabric to which they are affixed, but he has no right to the exclusive use of any words, letters, figures, or symbols, which have no relation to tbe origin or ownership of the goods, but are only meant to indicate their names or quality.” '

See, also, McLean v. Fleming, 96 U. S. 245; Manufacturing Co. v. Trainer, 101 U. S. 54, including the dissenting opinion of Mr. Justice Clifford; Popham v. Cole, 66 N. Y. 69.

If, then, the use of a trade-mark does not give one the exclusive right to make or sell a given kind of goods, and the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another, can it be said that what is proposed here amounts to an offer to furnish to the cities of Detroit and Cadillac a pavement made by defendants as being a pavement made only by complainant or its representatives? It must be remembered that the proposed pavement cannot be furnished already made, like a machine or an article of merchandise, but it must be constructed where used. The proposal inviting bids does not stop with calling the name of the proposed pavement Bitulithic macadam, but in detail names the materials and proportions thereof which are to go into the pavement and the method of construction. The construction itself must be where the pavement is to be used. Any person has the right to make a pavement according to said specifications. We think there is nothing in what is proposed to be done by defendant, calculated to deceive the municipalities inviting bids, into the belief that defendant was proposing to furnish to them a pavement made only by complainant. To give to a trade-name the effect contended for here would make it much more valuable than a patent for the same article.

The decree is affirmed.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


source: Caselaw Access Project

author:
      Hooker, J.
      Blair, J.

license: Public Domain

text:
    LIVINGWAY v. HOUGHTON COUNTY STREET RAILWAY CO.
    1. Master and Servant — Personal In juries — Safe Place to Work — Fellow-Servants.
    An electric lineman, injured by the breaking of a pole which was defective when set, two years before, is not barred of recovery against his employer by the rule of fellow-servant, where there is no evidence that any of the linemen employed; at the time of the injury were so employed at the time the' pole was set, or that they had any knowledge or means of knowledge of the original defect in the pole except by taking it out of the ground.
    3. Same — Assumption of Risk.
    An electric lineman does not, by his contract of employment, assume the risk of the negligence of the original linemen who-Set the poles of the system on which he is employed, with whom he did not sustain the relation of co-employé, and whose acts are unknown and unknowable to him.
    3, Same — Contributory Negligence — Fellow-Servants.
    In an action against an electric company for injuries to a lineman caused by the breaking of a rotten pole while a wire was being strung, evidence examined, and held, that whether the pole broke from its defects or from the negligence of plaintiff or his fellow-servants in tying a rope and wire together so they would not pass through a sheave on the pole, or in starting the drawing team before it should have started, was a question for the jury.
    Carpenter, C. J., and Grant and Hooker, JJ., dissenting.
    Error to Houghton; Streeter, J.
    Submitted June 15, 1905.
    (Docket No. 17.)
    Decided July 23, 1906.
    Case by Daniel E. Livingway against the Houghton County Street Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Gray & Stone, for appellant.
    P. H. O’Brien (Macdonald & McCormack, of counsel), for appellee.
   Hooker, J.

The plaintiff was a lineman in the employ of the defendant, a corporation engaged in operating an electric trolley line, which it had done for about two years after constructing it. While engaged with his crew or gang in stringing a feed wire along its trolley poles, he was injured by the breaking and falling of one of the poles, upon which he was at the time at work. His action for damages resulted in á substantial verdict and judgment in his favor, and the defendant has appealed.

It is the claim of the defendant’s counsel:

1. The danger of injury from the breaking and falling of the poles was one of the risks assumed by the plaintiff.

2. That the duty of inspecting the poles was a duty of the plaintiff and his gang, and therefore that defendant was not liable for a failure of the defendant to properly inspect the pole and ascertain its condition before setting him at work upon it.

8. That the doctrine of the duty of the master to furnish a safe place to work has no application in this case.

4. That, if plaintiff’s injury arose from the negligence of any one, it was that of his fellow-servants.

5. That a verdict should have been directed for the defendant.

It is claimed that there is testimony in the record indicating that the pole in question was decayed at the heart when it was erected, two years before the accident, at the time the road was built, and it seems to have been the plaintiff’s claim that, but for this, it might have stood the strain put upon it. This decay was visible at the butt, but after the pole was set it could not be seen, though it extended several feet above the ground. The plaintiff was unaware of its condition, and the testimony may perhaps be said to be conflicting as to whether it could have been ascertained by an inspection, though there was testimony tending to show that it might have been by tapping upon the pole with a hammer.

There is nothing to indicate that defendant’s officers, or, for that matter, any of its stockholders, knew of the condition of the pole, either when it was set or afterwards. If it was negligent to set it, the negligence was that of the construction crew or gang, or their foreman.

The plaintiff’s counsel contend that this should make no difference, and that the defendant is chargeable with notice of the condition when it was set, and was in duty-bound to inform the plaintiff of it before setting him to work where he might suffer from it.

Counsel for the* defendant, on the other hand, claim that this was the negligence of a fellow-servant, for the reason that it was set by the same crew or gang with which the plaintiff was afterwards engaged to work, which had charge of all repairs and new construction, or another class of employes having the same duties.

On the day of the accident this crew was stringing a feed wire. A rope about 500 feet long was made fast to the end of a wire, being first carried over the cross-bars of as many poles as the length of the line would permit. A team, hitched to the other end of the rope, was used to draw the rope and wire along, the latter being unwound from a spool, as the operation was proceeded with. A turn in the wire at the corner of Rockland and Pine streets caused the crew to use a sheave upon the pole which after-wards broke, to facilitate the running of the rope and wire, and it is one of the theories that the end of the wire caught in this, or against the cross-bar, and that the horses, being started before it was disengaged, subjected the pole to an unusual and unnecessary strain,- which broke it. Defendant’s counsel say that this was negligent, and, being the negligence of the plaintiff’s co-workers, was that of fellow-servants, and that he should not have been permitted to recover. He was engaged at the particular time in putting in a guy wire at the top of the pole, to guy it to another pole. It is perhaps inferable that, had this been completed before the team started, the pole would not have broken; and defendant’s counsel contend that, when required to put on this guy, plaintiff was apprised that the pole was weak, and assumed the risk attendant before climbing, the pole to adjust it. If we understand the claim of plaintiff’s counsel in this regard, it is that the guy was to be put on, not to strengthen the pole, but to prevent it being drawn out of place, after the line should again turn, which it was to do after passing another pole; and it is clear that this guy, had it been affixed, must have so strengthened the pole, and so relieved it from the strain naturally and necessarily resulting from its being out of .line, as to have rendered danger of its breaking slight; but at all events the team was started before the guy wire was in place, with the result stated.

Counsel for the plaintiff answer the claim that the accident was due to the untimely starting of the team by saying that, if that is true, yet the defective pole was a concurring cause. The pole was about 18 inches at the butt, and the rim around the hollow at the heart was from 3 to 4J inches thick, according to plaintiff’s testimony. He also testified that, when he was up the pole the first time, he noticed that it swayed and pulled over some when the horses were drawing the cable. Was it negligent to use this pole ? We are not prepared to hold that it is the duty of a company to remove a pole that is in the least affected by dry rot, or to refrain from setting such. Nor should a jury be permitted to so determine without some evidence to base such finding upon. In the nature of things all poles will sooner or later become affected by decay, and, while their use after they have become so defective as to be a menace would be improper, we cannot say, as matter of law, nor should a jury be permitted to find, .without some evidence to base such finding upon, that good railroading forbids the use of poles'that are sufficiently sound and strong to sustain the ordinary strains which they are called upon to bear in use. It is common knowledge that trees withstand the storms and gales until their trunks have been reduced to mere shells by decay. This pole was not like a tree, with its load of branches and leaves, standing unsupported, and there is nothing to indicate that it would not have long supported defendant’s wire, but for the strain put upon it by the team. The court should therefore have held that there was no evidence of negligence on the part of the defendant in continuing this pole as a part of its plant, even had it been shown to have knowledge of its condition. This being so, the question of its failure to inspect becomes unimportant, unless its intention to put up a feed wire made it necessary that its linemen should be warned of' existing defects in order that they should have a safe place to work.

It is possible to carry the doctrine of safe place beyond the limits of reason. There is a practical, as well as a theoretical, side to all such questions, and the law does not hold a master liable for a degree of care beyond that which is practicable. This company’s road was constructed but'two years before this accident happened. We discover no evidence that the pole was rotten when set, unless it is to be inferred from the degree of decay two years later. And there is not a scintilla of evidence that any officer of the company had a suspicion that a decayed pole was set. This should dispose of the assertion that defendant concealed the fact that the pole was decayed from the plaintiff. But if the.pole was not strong enough to support an unusual strain, though abundantly so for the ordinary purposes, it was not necessarily the duty of the company to take it out. It might proceed to strengthen it for the temporary unusual strain, and it might lawfully hire men whose duty it should be to do this work as. a part of the business of stringing the wire, and it would be a lawful, and perhaps the most economical and proper, way to require such men to examine the poles as they proceeded with their work, and determine and make such necessary repairs as to permit the stringing of the wire with safety.. Apparently this was the duty of plaintiff’s gang.

The plaintiff was an experienced lineman, and must be ' supposed to know that a rope attached to the top of a pole, 30 or more feet high, with a team exerting its strength at the other end of the rope, would subject the pole to a dangerous strain, and render it unsafe for a man at the top of the pole. He stated upon the trial that it was their practice to guy the poles when they exhibited signs of weakness or inability to withstand, without sagging, the necessary strain of stringing the wires. He was on the pole at the time of the accident for the express purpose of fastening a guy to the top, the other end of which was to be fastened to another pole in line with this one. It appears, then, that it was expected that poles inadequate to the necessary strain would be found and that they would be made secure in the way mentioned, and it was a part of the risk of the plaintiff’s service to make this secure. He stated in his testimony that he supposed the reason that they were headguying this pole that morning was because it swayed and they were afraid it would pull out of place, or something to that effect. No one suggests that, had the work of fastening the guy been completed, the pole would have broken. It was his business to do it, and it was the duty of his fellow workers to wait until this was accomplished before setting the team in motion. He had heard, or perhaps given, the order to stop drawing the wire until it was done. We have, then, a case where it is plainly inferable that the pole might safely have been used by the company for some time to come; that it could, and in a few minutes would, have been so stayed as to have enabled it to withstand the unusual strain of tightening the feed wire; that the necessity of precautions to that end was discovered, and steps taken accordingly. These facts are inconsistent with the theory of negligence on the part of the defendant.

Again, as we have said, the plaintiff’s duties comprised the work which he did, and in doing it he assumed the risk of climbing a weak pole. In the case of Mclsaae v. Lighting Go., 172 Mass. 89, the supreme court of Massachusetts held that the risk of falling on account of tlie weakness of the old pole was assumed, and in the more recent case of Kellogg v. Tramway Co., 18 Colo. App. 475, the appellate court of Colorado made a similar hold ing. The court said:

“The controlling question in this case is whether the defendant owed to the plaintiff, whose business it was to work upon poles along the line as occasion might require, the duty to inspect its poles, and inform the plaintiff whether or not any of them were so decayed as to be unsafe to work upon. The plaintiff had worked upon poles in the construction and repair of electric lines many years. When he engaged to work for the defendant, he must have known that it would be his duty to go upon poles that had been set in the ground for an uncertain length of time. He must have known that such poles would decay and become unsafe for him to work upon. He must have known that the work of climbing poles and taking down and putting up wires would often put a strain upon a pole much greater than it would be exposed to in sustaining the wires when they were all in proper position. It must be conceded that in this case negligence was not established by mere proof of an accident. The burden was upon plaintiff to show that the defendant’s neglect of some duty caused the accident. We are of opinion that the risk of falling on account of the weakness of old poles was a risk of the business, which the plaintiff assumed by his contract to work as a lineman for the defendant; that, as between the plaintiff and the defendant, the defendant was under no obligation to inspect the poles to see whether they were decayed and unsafe, and there was, therefore, no evidence of negligence on the part of the defendant.”

Similar language was used in the Mclsaac Case:

‘ ‘ The burden was upon him to show that the defendant’s neglect of some duty caused the accident. We are of the opinion that there is no evidence that the risk of falling on account of the weakness of old poles was not a risk of the business, which the plaintiff assumed by his contract to work upon such poles. As between the plaintiff and the defendant, the defendant was under no obligation to inspect the poles to see whether they were decayed, and there was, therefore, no evidence of negligence on the part of the defendant.”

Our own case of Krimmel v. Illuminating Co., 130 Mich. 613, is quite similar in its general features. Counsel seek to distinguish these cases from the present case, but we think the principle involved is the same in all. It may be said that although the plaintiff, as a member of the construction gang, assumed the risk of falling through the breaking of weak poles, such risk would not be assumed as to a pole having a hidden weakness, such as rot, especially if the pole had such defect when set by the defendant’s employes previous to plaintiff’s employment. Divested of all unnecessary particularities, the proposition. contended for is this: When the plaintiff was employed he had the right to assume that there was no pole that had a concealed defect. It would make no difference whether it was set with knowledge or in ignorance of the defect, for the negligence of the servant who set the pole was the negligence of the master, whether he knew of it or not. But every experienced lineman must know, and courts will take judicial notice, that all materials suffer deterioration, and a master may employ a servant, or servants, whose duty consists, in part, in keeping his plant in good condition. He, in effect, says to them:

“You will find weak and unsafe poles in this system. They are to be used as long as they can be made to render service, so long as consistent with the safety of the public. You are to have their care, and you are to report or remove them when necessary, and in working upon them you must take precautions for the safety of yourself and fellow workmen. I cannot tell you what poles are unsafe, or when they became so, whether when set or later. It makes no difference. There they are, as they are, and you must assume the risks attendant upon their present condition.”

In the face of such a situation the contention that the employe may claim that he did not take the risk of concealed defects is, in the writer’s judgment, a business absurdity, an over-refinement of legal rules, to the point of impracticability. When decay has rendered repairs necessary to a building, or a ship, or a tall chimney, or a telephone system, the owner must do something about it, looking to the protection of the public and himself. He may be ignorant as to what the defect is, as well as its remedy. He employs one skilled to examine and remedy the trouble, and such employé takes the risks, whatever they are, so long as there is no bad faith, and cannot be heard to say that some contractor who built the structure for the employer or his grantor slighted his work or used poor materials unbeknown to the owner or prospective owner, and that, upon the doctrine of respondeat superior, a duty arose to warn all future employés of the consequent defect, or to remedy it in person, before sending any other person to make general repairs. The true question is, Did this defendant contract to furnish plaintiff a safe place to work, or was it his duty to make the changes, assuming the risk after making such inspection and taking such precautions as the necessities of the case should require ? One employed to construct or repair is not entitled to have made safe the very thing he is employed to make or keep safe. See Manning v. Railway Co., 105 Mich. 260; Petaja v. Mining Co., 106 Mich. 463 (32 L. R. A. 435).

Although the plaintiff was taken into the gang to string the wire, he was taken to do such work as was required of the rest of the gang, and was given increased wages because of his knowledge and experience. We have seen that he did not claim immunity from required risks, because of his employment for a particular purpose, but willingly climbed the pole to aid in putting it in shape to withstand the strain, which it was seen would be unusual. It is beyond question upon this record that the immediate cause of the break was the inopportune application of the strength of the. team, and the possible catching of a knot or kink in the rope or wire upon the cross-piece or sheave. .There is no evidence justifying the conclusion that the pole would not have withstood this, had the fastening of the guy been completed. The court erred in refusing to direct a verdict for the defendant.

The judgment should be reversed, and a new trial ordered.

Carpenter, C. J., and Grant, J., concurred with Hooker, J.

Blair, J.

The facts of this case are sufficiently set forth in the opinion of Mr. Justice Hooker. The trial judge submitted the case to the jury upon the theory that it was the duty of the defendant, in the first instance, to provide a reasonably safe pole for the plaintiff’s work as a lineman, and that liability would ensue from the failure to discharge such duty. The defendant contends that the doctrine of “safe place” does not apply, since the linemen were the inspectors and repairers of the poles and charged with the duty of seeing that they were safe. This contention presents the crucial question in the case.

In determining this question the following facts must be considered, which the evidence would warrant the jury in finding:

1. That the pole in question was unsafe and dangerous for the linemen to work upon when - it was furnished originally by the defendant and put in by the linemen in constructing the road as part of the permanent plant.

The- defendant’s witness Ralph, who was foreman of the linemen, testified:

“I wouldn’t put in a pole that was rotten, filled with dry rot, or hollow for a diameter of five or six inches, or eight inches, up to ten or twelve or fourteen feet from the butt of the pole. The reason why I wouldn’t put it in is because I wouldn’t consider it a safe and proper pole.”

2. That the plaintiff was not in the employ of defendant at the time the pole was put in and knew of no defects in it.

3. That the usual tests employed by linemen to determine the safe character of a pole would not have notified plaintiff that it was unsafe.

Ralph testified:

“At times we try poles to ascertain whether any of them are in such a condition as that. A man can tell generally by looking at a pole, I should think, and sometimes we strike them with anything solid, anything that comes handy, some iron instrument; sounding the pole, and telling by the sound whether it is solid or not. I never at any time sounded this pole, and do not think that any one else ever did, under my instructions or otherwise. I don’t know whether the condition of this pole could have been detected by sounding with iron instruments or not. I wouldn’t say it could. There are different causes that would prevent it giving forth a sound. A pole may be rotten for six inches, or it may be for a foot. . It may be for six inches above the. ground. I don’t know whether the condition of a pole rotten from twelve to fourteen feet above the butt could be detected by sounding. There are very heavy strains which would affect the sound of it, I think. I don’t know that it is probable under ordinary circumstances that you could detect it in that way. I have been engaged in this line of business, handling wires, poles, and things of that kind, for quite a while; several years.”

Plaintiff testified:

“I know how a person can determine that a pole is hollow. You could tell by looking at the butt. With other poles you can strike on them, and that will tell whether they are hollow or not. I did not know anything about the condition of the pole before I was hurt. After that pole was put in there, a person going up on it or performing the duties as a lineman on it could not determine its condition.”

It seems clear to me that the learned trial judge did not err in instructing the jury that the doctrine of safe place applied to this case, unless it must be held that the linemen who set the pole were the fellow-servants of the plaintiff, and that their negligence barred his recovery. I am not prepared to go to that extent. There is no evidence that any of the linemen in defendant’s employ at the time of the accident were employed in that capacity at the time the pole was set in the original construction of the road,'or that they had any knowledge or means of knowledge of the original defect of the pole, except by taking it out of the ground. There are satisfactory reasons why the linemen who set the pole should not be permitted to complain of the negligence of their employer in furnishing the pole, since their negligence in using it is equal to his in furnishing it. Neither is there any injustice in holding that, where the company has furnished a proper pole in the first instance and committed its inspection to the linemen, all linemen subsequently employed mugt protect themselves against defects thereafter developing. But I think it would be unjust to hold that the plaintiff cannot complain of the negligence of the defendant, which was the proximate cause of his injury, because of the concurrent negligence of his predecessors, with whom he never was in fact a fellow-servant. Neither, in my opinion, should it be held that the plaintiff in his contract of employment assumed the risk of the negligence of the original linemen who set the pole, with whom he did not sustain the relation of a co-employé, and whose acts were unknown and unknowable to him. He had a right to assume that the company had put in a proper pole two years before, and that the risks which he assumed were such as were incident to the use of such a pole for that length of time.

None of the Michigan cases cited by defendant’s counsel disposes of this point. In Krimmel v. Illuminating Co., 130 Mich. 613, which is most like the present case, the defendant did not furnish the defective pole, in the first instance, but succeeded to the rights of another company,. which had theretofore caused its erection, and defendant had no greater knowledge or means of knowledge than had the plaintiff. Cases holding that, as the general duty of inspection had been committed to the linemen, they could not recover for defects, are not, in my opinion, decisive of this case. The duty of inspection in the first instance, before providing instrumentalities for the use of employés, is unquestionably a duty pertaining to the employer, and the only reason why the linemen cannot complain of a defective pole is because they are the very men selected by the employer to make this inspection for him. In selecting the poles, they are not performing the duty of a servant, but the duty of a master, and, unquestionably, as to all other servants of the company, the master would be responsible for their negligence in making an improper selection. This being true, it seems to me to logically follow that only those linemen in the employ of the company at the time of the selection should be held responsible therefor.

Furthermore, in determining this question, it must be borne in mind that there was no evidence what the duties of the linemen were at the time the line was constructed, and for all that appears in this record the company may at that time have had special inspectors outside of their branch of the service. Neither was there any evidence that the company furnished a sufficient number of good poles to the linemen, so that it was unnecessary for them to use the defective pole. The defendant called none of its superior officers, put in no testimony whatever as to the original construction or as to its rules, methods, or custom of caring for its line at that time, but relied solely upon the testimony of the line foreman, Ralph, who “succeeded a man named George M. Towle, who was foreman of the line gang at the time the road was constructed,” and whose testimony related to the custom of the linemen since he had been their foreman.

It is also contended that the accident was due to the negligence of plaintiff or his fellow-servants because:

“ Nothing could be clearer than that the accident happened by reason of one or both of two causes, viz.: (1) Careless tying of the rope and wire together, so that there was a knot which caught in the sheave, or the careless manipulation of the rope and wire, whereby it or they became kinked in such a manner as to catch in the sheave; or (2) the starting of the team before it should have started. In either case, the negligent act was that of plaintiff himself or one or more of his fellow-servants.”

I think the trial judge did not err in submitting these questions to the jury. If the plaintiff had a right to assume that the pole was originally safe when set two years before the accident, then it was for the jury to say whether he was negligent in assuming that such a pole would stand the strain then put upon it and to be put upon it by starting the team. There is no warrant in the testimony for claiming that any extraordinary strain was put on this pole by starting the team, and the jury might well find, as they did, that if this pole had been what the plaintiff and the teamster had a right to assume it to be, it would have stood the strain successfully. There is no evidence that the pole broke because of the catching of a knot or the kinking or blocking of the wire or rope. Ralph testified:

“At the time the pole broke, it was pulling kind of hard, as anybody can imagine it would. The wire was 1-g- inches in diameter. I couldn’t say whether there was any stoppage or blockage at the time the pole broke. The wire would pull with a jerk as it formed its curve. It would come around. It would kind of pull, and the form of the curve would come through the block, and then all at once it would catch. It was bending something unusual on that. Therefore we had taken the precaution with it to put it through the sheave. I don’t think it had tangled any, or got in a knot in the sheave, or anything •of that kind, at the time the pole broke. It didn’t work any too good, but it worked better than before we put it through the sheave.”

. This witness, the most experienced of all those present . at the accident, does not pretend to state what caused the pole to break. He says:

“ As he came down, the team started, and in some way or other the pole broke, pulling it toward the trolley wire.”

Neither does the evidence compel the conclusion that the teamster was negligent in starting his team before the pole was headguyed. There is no evidence that the team was stopped for that purpose. On the contrary, the evidence shows that the team was stopped because the rope had crossed with another feed wire. Whether the head-guy was ordered by the foreman for the purpose of temporarily strengthening the pole, or for the permanent purpose of withstanding the strain of the wire when tightened and in use, was a question for the jury. Ralph says:

“We had Livingway put that guy wire there to hold the strain which would naturally come on the pole. * * * At this time we were just stringing the wire over the cross-bars. We hadn’t begun to tighten the wire yet. We stretched the wire out first to get it in its position as near as we could, where it was to remain, and then we would tighten it with block and tackle and anchor it permanently.”

Plaintiff testified that it was customary to be on the poles while the team was drawing:

“On the morning of the accident, I had occasion to go upon the pole that broke. I went up to put the rope over it the first time, and then I stayed up there a little time, while the team was pulling it. I was holding it to keep it from jumping over the pins. I refer to the rope which was hitched to the cable, and which was drawing the cable. Then I came down and the other lineman went back. He saw that the rope crossed with another feed wire that was there and he hallooed for the team to stop. * * *
“Afterwards I was going up to headguy the pole. I was doing that because Mr. Ralph said to headguy it. We headguy poles for different occasions. Sometimes they pull over — pull over the line; lean out onto the track or something. They get out of place if they are not head-guyed. There might be other reasons. I do not know as I know them all; but that is generally the reason they do it. They might headguy a pole if it is weak.
Q. Why were they headguying the pole that morning?
“A. I don’t know the reason. Because, I suppose, it swayed, and they were afraid they would pull it out of place or something to that effect. * *. * The pole that broke was on a corner, and there would be more strain on it on that account. The custom is to generally put a large pole, a good, sound one, on the corners. This pole was not a safe pole for that purpose. The headguys are used on corner poles for the purpose of keeping them straight. I do not think I was told why to headguy the pole. John Ralph, the foreman, told me to headguy it. They generally order all corner poles head-guyed; It is customary to pull on the rope while men are up there working as I was, and it was being done in the usual way that morning.”

I think the judgment should be affirmed.

McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred with Blair, J.


author: McAlvay, J.

text:
    GUSTIN v. EMBURY-CLARK LUMBER CO.
    1. Replevin — Title op Plaintiff — Sufficiency of Evidence.
    Where, in replevin for timber cut from certain lands, plaintiff shows title to the land by deed and title to the timber by bill of sale, both acquired after the timber was cut, and it appears that the tax title on which defendant relies is void, plaintiff is entitled to verdict.
    2. Same-Recovery by Plaintiff — Measure of Recovery.
    Plaintiff, in replevin for timber cut on his land, purposely delayed bringing suit until great value had been added to the timber by defendant in running, driving, towing, and manufacturing, and then, though but about 1-14 of the logs had been actually manufactured, seized the full amount claimed' in manufactured lumber, though his logs were easily accessible in the booms, attempting to excuse his course by claiming defendant requested him to do so and pointed out the lumber piles he was to seize. The testimony merely showed that defendant’s officer pointed out certain piles of lumber in which was mixed some of that cut from the logs claimed by plaintiff, and also pointed out the logs mixed in the booms. The property was returned to defendant, plaintiff failing to give the statutory bond. Held, that plaintiff was entitled to recover only for such part of the lumber seized as was manufactured from his own logs.

      3. Same — Trial—Instructions.
    The writ describing no logs, but only certain specified kinds of lumber, etc., an instruction that plaintiff was entitled to just the verdict he would have had had he seized his just proportion of sawed and unsawed lumber was inapplicable, could only have confused the jury, and was erroneous.
    4. Same — Damages—Good Faith of Dependant — Evidence.
    As bearing on defendant’s good faith as affecting the measure of damages, defendant should have been allowed to show; that the tax title on which it relied was the only record title to the land, and that it purchased this without knowledge of plaintiff’s claim.
    5. Same —Extent op Recovery — Failure to Give Bond —Increase op Value by Dependant.
    Where plaintiff in replevin stands by without disclosing his claim to the property, and permits defendant to add great, value to it, and then brings suit without any intention of taking the property, and allows it to be returned to defendant in default of the bond provided by section 10658, 3 Gomp. Laws, as amended (§ 11, Act No. 246, Pub. Acts 1899), and demands judgment for the value of the property under section 10680, as amended (§ 34 Id.), he is entitled to the value of the property actually seized under the writ, at the place where seized, less the increase of value after conversion added by defendant’s labor or expense to the time of commencement of suit.
    Error to Cheboygan; Shepherd, J.
    Submitted June 21, 1905.
    (Docket No. 44.)
    Decided July 23, 1906.
    Replevin by Henry K. Gustin against the Embury-Clark Lumber Company. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Frost & Sprague and Gf. Govey, Jr., for appellant.

      G. S. JBeilley, for appellee.
   McAlvay, J.

Plaintiff brought replevin against defendant, and recovered judgment for certain property described in the writ as lumber, cedar shingles, cedar posts, ties, and poles. This property, plaintiff claims, was wrongfully cut and carried away from a certain description of land in Presque Isle county, which he claimed to own; and he also claimed title by bill of sale from his grantor to the property in dispute cut from the land before he purchased. At the time this timber was cut plaintiff did not own the land or the timber, although he claims he thought he did. January 17, 1903, he purchased this 40.27 acres subject to taxes, and received the memorandum of the sale of the cut timber, January 26, 1903, The original patent had not been recorded, nor, as far as we find from this record, was the deed to plaintiff ever recorded. Plaintiff discovered that the timber had been cut just before he purchased. After his purchase he went upon the land, looked over the cutting, saw the men at work putting logs into the river, without any protest, and without making any claim.

Plaintiff’s first notice that he represented any interest in this property was a letter to Embury and Martin, February 4, 1903. On March 11, 1903, he wrote defendant company. The logs were practically all in the water before these letters were written. The suit was commenced August 15, 1903. The writ described lumber of different varieties, cedar shingles, ties, posts, and poles. At the time the property was taken under the writ about 7,000,000 feet of different kinds of logs, cedar blocks, ties, posts, and poles had been brought to the mill from the booms, and, including the logs and cedar from this land, were in a mass together, of which mass about one-fourteenth had already been manufactured. ■ The return of the sheriff shows that only lumber, cedar shingles, and the cedar ties, posts, and poles were taken under the writ; that an inventory and appraisal were made; that a certified copy of the writ was served on the president of the defendant company, and that after the appraisal and notice, the plaintiff failing to give the statutory bond, the property was returned to defendant.

On the part of the defendant it was claimed that in July, 1902, James Inglis and others sold by warranty timber deed all the standing timber on this and other lands to the firm of Embury and Martin, for full consideration. Jobbers of Embury and Martin cut and put the timber afloat in the Ocqueoc river during the winter of 1902 and 1903, where it was sold by Embury and Martin to defendant company, which took charge of this body of logs, together with a large quantity of other forest products in the water, and drove them down to the mouth of the river, then put them into booms all mixed together and towed them on Lake Huron to Cheboygan for manufacture at the mill of O. M. Clark & Son. This timber when cut and put into the water was marked by Embury and Martin with their mark, known as the “egg mark,” and became mixed with about 800,000 feet of other logs marked in the same manner. Defendant further claimed that a State tax deed to its grantors was the only record title to the land: that it purchased the timber in good faith for a valuable consideration, and offered the tax deed and bill of sale in evidence to show such good faith.

The court refused to allow such showing to be made. Upon this ruling of the court several errors are assigned. Error is also assigned upon the refusal of the court to allow defendant, in making proof of the value of the timber, to show what it was worth as standing timber. There are many other assignments of error, of which those deemed material will be considered. It was shown that the title of defendant’s grantors which was a tax title was invalid, and that plaintiff was the owner of the original title to the land purchased after the timber was cut, and also owner, by bill of sale, of this timber cut from the land. The court properly held that plaintiff was entitled to recover in this suit, and that the only question to determine as a question of fact was the amount of his recovery.

It is not disputed in this case that plaintiff purposely delayed bringing suit until great value had been added to this timber by defendant in running, driving, towing, and manufacturing, and seized under his writ the full amount of the timber claimed in manufactured lumber, although hut about one-fourteenth had been actually manufactured, seizing none of the logs in the booms, although they might readily have been selected by the mark from a large mass of logs of like quality with which they were mixed. Plaintiff attempts to excuse the seizure of the entire amount -claimed in lumber, by claiming defendant requested him to do so, and pointed out the lumber piles he should take under the writ. All of the testimony is returned. Upon this point the only testimony is that of the plaintiff, a deputy sheriff, and an officer of defendant company. It simply shows that an officer of the company pointed out certain piles of lumber in which was mixed some lumber cut from logs with the egg-shaped mark; and also pointed out the logs mixed in the booms, stating, “he was anxious to have the thing commenced and get it over as soon as possible.” The court submitted to the jury, both by his charge and special requests, the question of this request and designation of property to be taken, as authorizing the seizure of all the lumber mentioned in the writ. This was'not warranted by the evidence. About one-fourteenth of plaintiff’s saw logs had been manufactured at the time this lumber was taken under the writ by the officer. It was not delivered to plaintiff because he gave no bond, and was returned by the officer to the defendant. Plaintiff then could recover in this suit only for the value of such part of his property manufactured into lumber (estimated in the record to be about one-fourteenth of all his saw logs) and for such cedar posts, ties, and poles as were actually seized under the writ. No cedar shingles appear to be claimed by plaintiff. As no logs were taken under the writ it will be unnecessary to discuss the questions of law applying to cases where property is intermingled with other of like kind and quality.

Error is assigned upon the following charge to the jury:

“Mr. Grustin is entitled to just the verdict he would have had had he seized his just proportion of sawed and unsawed lumber.”

The property described in the writ was certain specified kinds of lumber, cedar shingles, and cedar posts, ties, and poles. No logs were described. Upon no theory of the case could such a charge be applicable. Its tendency was to confuse the jury, and it was erroneous.

As bearing upon the measure of damages, which will be discussed later, we think that the good faith of defendant is material. It offered to show that for full consideration it purchased all the title there was of record of this land without any knowledge of plaintiff’s claim. It should have been allowed to show this, not for the purpose of defeating plaintiff’s title, but as bearing upon its good faith.

As already stated in this opinion, plaintiff was entitled to recover. The court was in error, however, in charging the jury as to the measure of his damages. Plaintiff began his suit not expecting or desiring to recover his property. He frankly states that he waited until he could recover the greatest value.■ His testimony is “if they saw fit to increase the value of this property at their own peril, I waited Until that lumber was manufactured.” He also states that he did not give a bond because he thought perhaps defendant would offer a counter bond. He says, “.the way we viewed the form of action, there was no necessity of our putting up a bond as the property would remain in the hands of defendant anyway.” Section 10658, 3 Comp. Laws, which provides that if the plaintiff in replevin fails after the appraisal to furnish the required bond the property shall be returned to the person from whom it was taken,” has been materially amended by Act No. 246, Pub. Acts 1899, § 11, which provides among other things that defendant may give a bond and retain the property. Section 10680, by the same act, has also been amended, and now provides:

“ Sec. 34. Whenever the plaintiff or defendant shall be entitled to a return or surrender of the property replevied, instead of taking judgment for such return or surrender as above provided, he may take judgment for the value-of the property replevied.”

Plaintiff in this case took a judgment for the value of the property.

Wisconsin and Pennsylvania have statutes practically the same as this act of 1899. The'question of the rule of damages in similar cases has been passed upon in those States. In a Wisconsin case upon practically the same facts as in the case at bar the court said:

“Upon these facts it seems contrary to the dictates of natural justice that plaintiff should be allowed to wait quietly until the defendants had manufactured the logs into lumber enhancing their value four or five fold and then recover against them that entire value. True, it is generally recognized that a wrong-doer cannot, by changing the form of another’s property, change the title. The owner may pursue it and reclaim it specifically by whatever remedy the law gives him for that purpose. If he gets it, it is his. But the apparent injustice of allowing one to thus avail himself of the labor and money of another in cases similar to this has led to a modification of this stringent rule of ownership wherever the question is resolved into one of mere compensation in money for whatever injury the party may have suffered. * * *
To apply that rule here would have required the property to have been assessed at the full value of the lumber, deducting the expense of all that the defendants had done upon it down to the time the suit was begun.” Single v. Schneider, 24 Wis. 299, 30 Wis. 570.

Herdic v. Young, 55 Pa. 176; Cobbey on Replevin, §§ 907, 909, 913; Shinn on Replevin, § 626. While in the cases above cited defendants had given a bond under the statute, yet as the judgment in this case was taken for value alone it is within the reasoning of the cases cited. The conduct and testimony of plaintiff show that he never intended to take a return of the property. Before the statute was amended this court was inclined toward this doctrine. In a replevin case it held:

“ It will be seen by the statute cited that the plaintiff may elect to recover the property or the value thereof. The record shows that upon the trial the plaintiff elected to take a judgment for 'the value. The authorities seem to be uniform that in such case the measure of damages is the value of the property at the date of conversion and interest upon such value to date of verdict.” Hanselman v. Kegel, 60 Mich. 540, and cases cited.

This case has been cited and. approved in Just v. Porter, 64 Mich. 568; Nitz v. Bolton, 71 Mich. 388. In the case at bar we approve the rule laid down by the Wisconsin court in Single v. Schneider, supra. The plaintiff is entitled to recover the value of his property which was actually taken under the writ of replevin, at the place where taken, deducting any increase of value after conversion added by defendant’s labor or expense to the time of commencement of suit.

Judgment is reversed, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    PHILLIPS v. JACOBS.

    1. Equity — Chancery Practice — Demurrer—Amendment — Discretion op Court.
    It is within the discretion of the court to allow amendments . to a demurrer to a bill in chancery.
    2. Same — Joint Demurrer.
    Where a demurrer to a bill in chancery is joint, and not several, it cannot be sustained except upon grounds that are good as to all the defendants.
    3. Same — Bill—Revivor—Supplement—Nature.
    A bill which sets out a former bill by which complainant, a stockholder, sought to restrain mismanagement of defendant corporation, and avers that that suit was abandoned on complainant’s selling his stock in the corporation to one of the def endants, and which prays an accounting of profits that shpuld have been divided before the sale of complainant’s stock, and asks a decree against the purchaser of complainant’s stock for damages for a sale thereof contrary to agreement, is not properly denominated a bill of revivor or supplement, but is an original bill.
    4. Same — Corporations—Sale—Undivided Profits — Remedy in Equity.
    A bill which states that complainant was a minority stockholder in defendant corporation, that one of the defendants, its president and dominating stockholder, so manipulated its business as to avoid paying dividends, that complainant filed a bill to redress this and other wrongs, but abandoned it on selling his stock to another defendant, retaining title to the undivided profits, that defendants have sold the entire business of the corporation at great profit to themselves and in violation of an agreement contained in the sale of complainant’s stock, and which prays an accounting of profits accumulated before complainant sold his stock, and a decree for the liquidated damages provided in his contract of sale for breach of the contract not to sell, states a cause for equitable relief.
    Appeal from Wayne; Rohnert, J.
    Submitted October 17, 1905.
    (Docket No. 67.)
    Decided July 23, 1906.
    Bill by Harry O. Phillips against Abraham Jacobs, the East Side Electric Company, and Julius P. Rosenthal, for an accounting. From a decree sustaining a demurrer to the bill, complainant appeals.
    Reversed.

      Adolph Slomcm (Edmund M. Slpman, of counsel), for complainant.

      Mayhury, Lucking, Emmons & Helfman, for defendants.

       Rehearing denied December 7, 1906.

   McAlvay, J.

Complainant filed his bill in the Wayne circuit court, in chancery, setting forth that defendant electric company is a Michigan corporation engaged in furnishing electric lights, heat, and power to private consumers in the city of Detroit, with a capital stock of $20,000, represented by 800 shares of a par value of $25 each; that on March 4, 1903, he was owner of 100 shares of said stock; that defendant Jacobs was president, treasurer, and a director of said company, and guilty of misconduct in the affairs of said company, whereby he was seeking to acquire ownership and control of the property thereof, and unlawfully acquire the stock of other holders, to prevent which complainant on December 23, 1902, filed a bill of complaint in said court against Jacobs and said electric company praying, among other things, for an accounting; that the issue of 160 shares of stock to Jacobs be declared void; that the title to a lot on which the company’s plant was situated be declared to be its property, and Jacobs be decreed to deed;.that an injunction issue restraining defendants from increasing capital stock and from ratifying certain former illegal acts; and that a receiver be appointed. An injunction was granted, and on a hearing of motions to dissolve the injunction and to appoint a receiver the latter motion was denied and the injunction modified to permit the increase of the capital stock of the electric company by the stockholders and directors, if voted according to law; also to permit the rescinding of a resolution relative to the issue of 160 shares of stock and additional compensation of officers; also to make a deed of certain real estate on payment of $2,000.

This former bill of complaint and the order of the court are set forth in full and made a part of complainant’s bill of complaint in the suit at bar, which further alleges that after the order of the court above referred to was made in that suit certain propositions for settlement were made in writing to Jacobs on the suggestion of the trial judge. These propositions were not accepted, and no settlement was made. Afterwards, on January 17, 1903, Jacobs was re-elected president and treasurer for the ensuing year, with other officers favorable to his management. Complainant avers that previous to the time of the alleged misdoings of Jacobs the electric company had declared semi-annual dividends to its stockholders, and that for six months prior to the last election had made very large profits which belonged to the stockholders, including complainant, and in the usual course of its business, but for the misconduct of Jacobs, would have been paid as a dividend in said month of January, of which complainant’s share would have been more than $1,000, and that this action was brought about by Jacobs for the purpose of compelling complainant to withdraw his former suit.

Complainant avers, further: That afterwards, on March 4, 1903, the defendant Rosenthal entered into the following agreement with him for the sale of his said stock in the electric company:

“ This agreement, made this 4th day of March, 1903, between Harry C. Phillips, of Chicago, Illinois, and Julius P. Rosenthal, of Detroit, Michigan, to wit:
“ Said Phillips hereby agrees to sell and said Rosenthal hereby agrees to buy said Phillips’ one hundred (100) shares of stock in the East Side Electric Company, for the sum of five thousand ($5,000) dollars, and the agreements hereinafter set forth, payable as follows: Thirty-three hundred ($3,300) dollars in cash this day on the delivery of the shares of stock, together with four notes of four hundred twenty-five ($425) ‘dollars each, payable three, six, nine, and twelve months, respectively, all of which are to bear interest at six per cent. (6 *) per annum, and be indorsed by a. party satisfactory to said Phillips; it being understood and agreed that the semi-annual dividends which would have been payable in January, 1903, and which was held up on account of the pending of the suit hereinafter set forth, shall belong to said Phillips, and the same and all dividends to date, when received by said Rosenthal, shall be paid over to said Phillips.
“As a further consideration for said sale, said Rosenthal agrees to procure a stipulation from the defendants in the case pending in the Wayne circuit court, in chancery, in which said Phillips is complainant, and Abraham ■Jacobs and the East Side Electric Company are defendants, that the same may be discontinued without costs to either party.
“As a further consideration said Rosenthal agrees not to sell said shares of stock, or any thereof, within two years from this date, for less than the purchase price aforesaid, without the written consent of Phillips; and if is agreed that the sum of five hundred ($500) dollars shall be considered as a measure of damages sustained by said Phillips, as and for his liquidated damages for the violation by said Rosenthal of said last-mentioned agreement, and the right to recover such damages aforesaid shall be deemed to -have accrued whenever said Rosenthal shall sell or dispose of said shares of stock, or any of them, at a less price than hereinbefore set forth.
“ Executed in duplicate in the city of Detroit the day and year above written.
“Harry C. Phillips,
“Julius P. Rosenthal.”

That shortly after the sale and transfer of this stock, without the knowledge or consent of complainant, Rosenthal sold and transferred to Jacobs all of said stock for a price less than that stipulated in said agreement, whereby complainant claims he is entitled to enforce the provision for damages stipulated, and that said sale was made to Jacobs with full knowledge of said agreement and its terms. Further, that Jacobs, after the purchase of said stock from Rosenthal, being in full control of the electric company, caused and procured all of its franchises, property, and effects to be disposed of to the Edison Illuminating Company, a competitor, for the consideration of upwards of $100,000, and has appropriated to himself practically all of the proceeds, including the dividends and profits belonging to complainant on account of his shares of stock at the time of making the agreement with Rosenthal.

Complainant claims that the electric company and Jacobs hold the same in trust for him, and he is entitled to an accounting with them; that his demand for such accounting has been ignored; that by reason of said sale of stock, so made by Rosenthal as aforesaid, complainant is entitled to recover from him the penalty provided by said agreement. He prays for an accounting with defendants electric company and Jacobs; that defendant Rosenthal be decreed either to pay him the $500 penalty agreed upon, or that the sale of said stock to Rosenthal be> rescinded, and the title thereto be declared to be in complainant, upon the payment back by him of the purchase price; that it may be decreed that at the time he sold to Rosenthal his shares of stock participated in the profits then earned, and also in the profits arising from the sale of the company’s property, and that defendants, or such of them as the court may decree, be required to pay over the same to him. The bill asks that each defendant be required to answer numerous interrogatories as set forth therein.

To this bill of complaint all of the defendants in this suit joined in a demurrer, which by permission of the court was amended. Complainant objected to the amended demurrer for the reason that it came too late and included new grounds for demurrer; and, further, that it was joint, and not several; that the grounds of demurrer were not open to all of the defendants; and that the allegations were not sufficiently specific. Upon a hearing on the demurrer as amended, it was sustained by the court, and a decree entered dismissing the bill of complaint. Prom this decree complainant has appealed.

There is no force in the claim of' complainant that the court had no authority to allow the amendments to the demurrer. It was within the discretion of the trial judge. The demurrer being joint, and not several, it cannot be sustained, except upon grounds that are good as to all of the defendants. It will therefore be necessary to consider only the following grounds of demurrer:

1. That complainant is not entitled to relief in equity.

3. That he has an adequate remedy at law.

Complainant in his brief claims that under his bill of complaint he is entitled:

“ 1. To the dividend on 100 shares of stock which was earned prior to the sale, but which through the fraudulent and unlawful domination of defendant Jacobs was not declared or paid.
“2. That inasmuch as Rosenthal in selling to Jacobs these shares for less than permitted under the contract, violated the contract, complainant was entitled to rescind; or
“3. That the court decree the payment by Rosenthal of the liquidated damages fixed by the contract.”

The bill of complaint in its form is peculiar, and is claimed by complainant to be in the nature of a bill of revivor and supplement. Under what theory it may be considered a bill of revivor is not pointed out. As we understand the situation the former case, although not formally discontinued, has to all intents and purposes been abandoned ; complainant having disposed of all his stock in the corporation. The only possible theory of revivor must be that the case abated when complainant sold his stock to Rosenthal and entered into the contract retaining the dividends to date of sale; that, Rosenthal having defaulted in his contract, complainant, by virtue of his right to the said dividends and his claimed right to rescind the contract, may revive that suit, and litigate matters therein at issue, supplemented by the new matters set up in the bill of corn plaint in this suit. We think that the claim that this is a bill of revivor and supplement tends to confuse the real issues in the case. This is an original bill in equity, and, except as a matter of history and statement of claims of complainant, the bill of complaint in the former case set up in this bill is of little benefit. All necessary matter in relation to that suit and the claimed fraudulent conduct of defendant Jacobs could have been stated in a paragraph.

The foundation of this suit is the contract between complainant and Rosenthal, coupled with the claimed fraudulent conduct of defendant Jacobs. Relief is sought because Rosenthal sold the stock in question to Jacobs contrary to the terms of his contract of purchase from complainant, and that Jacobs, with full notice of those stipulations, has fraudulently refused to allow dividends to be declared, and refused to recognize complainant’s right to a share of the profits realized on the sale of the ■company’s property. While it may be doubtful whether ■complainant is entitled to rescind the contract of sale of his stock to Rosenthal, and to participate in such share of the profits to which stock might be entitled, arising from the sale of the entire property of the corporation, yet, if from an examination of the bill of complaint it appears that he is entitled to equitable relief on any grounds, the demurrer cannot be sustained. The defendant company, after Jacobs acquired complainant’s stock, with knowledge of his reserved interest, sold its entire material assets. It is no longer operating a business. Whatever of undivided profits it had belonging to complainant are still retained.

The allegations of the bill are to be taken as true. ■Complainant never parted with his interest in dividends which his stock had earned. These, through the alleged fraudulent manipulation of an officer of the company who dominated its affairs, have been withheld. His rights are ignored. Defendant Jacobs and the other officers of defendant company have refused to declare a dividend. Complainant sets up fraud and misconduct, and asks for ■an accounting. It appears to us that upon these grounds a cause for equitable relief is stated in the bill of complaint.

The decree of the court sustaining the demurrer and dismissing complainant’s bill is reversed, with costs, and the case is remanded, giving defendants 20 days to answer the bill of complaint.

Grant, Blair, Montgomery, and Hooker, JJ., • concurred.