text:
    BENHAM v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    1. Insurance — Fire Policy — Contracts—Divisibility—FraudIncumbrances.
    A policy of fire insurance on buildings, stock, and other property, giving the separate amounts for which each item was insured, and covering the live stock anywhere in several counties named, is a divisible contract, which is good as to other property, but void as to real estate on which the insured placed an incumbrance, in contravention of the conditions of the contract, and with reference to which he had made false statements in his application. Hooker and McAlvay, JJ., dissenting.
    2. Same — Personal Property.
    As to personal property contained in' the dwelling house on said real estate, falsely represented to have brick or tile chimneys, the policy was also void.
    Error to Grand Traverse; Davis, J., presiding.
    Submitted March 1, 1911.
    (Docket No. 119.)
    Decided May 8, 1911.
    Assumpsit by George W. Benham against the Farmers’ Mutual Fire Insurance Company of Charlevoix, Emmet, and Cheboygan counties, on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed, unless plaintiff consents to remit a part of his judgment.

      Halstead & Halstead and Parm C. Gilbert, for appellant.

      Pailthorp & Hackney, for appellee.
   Blair, J.

This is an action upon an insurance policy insuring plaintiff—

"Against loss or damage by fire or lightning on the following described property, situate on section 82, in the township of Springvele, county of Emmet and State of Michigan:
“ ‘On log dwelling No. 1 .......................... $100
" ‘On household furniture, bedding, wearing apparel and provisions therein___________________________ 210
“ ‘On frame dwelling No. 2........................ 60
“ ‘On frame barn and log barns No. 1/ $500, No. 2, $100, No. 3, $100.................................. 700
“ ‘On hay, grain, wool and farm products, while in said barns or on said premises..................... 400
" ‘ On live stock carriages, harnesses and farm tools, while in said barns or on said premises___________ 1,500
“ ‘Pigpen_________________________________________ 70
“ ‘ On cow shed___________________________________ 60
“ ‘ Total. $3,100’
“Live stock insured against loss or damage by fire or lightning anywhere in Charlevoix, Emmet, and Cheboygan counties.
“ The said company agrees: That it shall be held responsible, to make good and satisfy the assured, his heirs, executors, administrators, or assigns, all loss or damage by fire and lightning, to the property hereby insured, as specified in articles 4 and 13 of the charter of this company; provided, this insurance is equal to that amount. Provided also, this insurance shall not be liable for any loss or damage occasioned by the violation of any of the requirements as expressed, either in the application for insurance, the charter, by-laws, or rules and regulations of this company; and it is further mutually agreed, that in case the buildings hereby insured shall be used for other purposes than stated in the application for insurance, without the written consent of this company, whereby the risk is increased and rendered more hazardous, then this insurance shall not be liable for any loss or damage that may occur in consequence of such use. * * *
“And it is hereby declared, and mutually agreed, between the assured and this company, that this policy of insurance is made and accepted, with special reference to the application for insurance, and all the conditions therein stated; the charter and by-laws of this company, or as may be amended hereafter, or as amended, since the application for insurance was first taken, and all the conditions hereto, or thereto annexed and appended, which form a part of this agreement and are to be resorted to, in order to settle, and explain the rights and obligations of the assured, and of this company, in all cases not herein specifically provided for.”

By the terms of the application, such insurance was expressly made “subject to the conditions of the charter, by-laws and policies on the property specially described in this application and schedule.” In the application, among other questions and answers, there appears the following:

“Q. Are your chimneys all secure?
“A. Yes.”

Article 4 of defendant’s charter provides, among other things:

“No dwelling shall be insured unless provided with suitable brick or tile chimneys.”

In by-law No. 8 the following appears:

“This company may insure all farm buildings without special reference to the distance of each to the other, provided, all buildings in which fire is used shall be provided with good and safe tile and brick chimney,” etc.

The policy of insurance contains the following clause:

‘ ‘And it is hereby declared and mutually agreed between the assured and this company that this policy of insurance is made and accepted with special reference to the application for insurance, and all the conditions therein stated,” etc.

The by-laws also provide:

“All applicants for insurance shall state the amount of incumbrance on the premises whereon the property to be insured is situated. * * * Should additional incumbrance be placed on said premises without the written consent of the secretary, such policy shall be void, and the company will not be liable for any loss under them,” etc.

Plaintiff testified:

“Q. .What kind of chimneys were actually on the buildings that were burned ?
“A. They were mossback chimneys.
"Q. A stovepipe running up through the hole ?
“A. Yes, sir; protected by iron.

Plaintiff also admitted that he placed $1,500 incumbrance on the real estate, “on the'premises where the property insured was located,” without the knowledge of the company. The total insurance was $3,100. The premium was all paid as one sum, not divided as to real estate and personal, nor in any other way. Plaintiff’s declaration was upon the common counts, and specially upon the policy of insurance,- and treats the policy as an entirety, claims damages $3,100, being in full of the face of the policy. Plaintiff filed a bill of particulars, stating that he sued “to recover the value of all property described in the several counts of declaration,” etc.

Defendant’s plea gave special notice of the want of chimneys on the dwellings and of the placing of incumbrance on the premises contrary to the by-laws, application, and charter. In the trial court the defendant contended that there could be no recovery; that the policy was void. The court allowed plaintiff to recover for personal property, including that in log dwelling No. 1, but held the policy void as to real estate by reason of the incumbrance placed on the premises by plaintiff. In other words, the policy was held to be divisible, void in part, and valid as to other property. The burning of the property insured was caused by the spreading of forest fires to plaintiff’s premises.

Defendant has brought the record to this court for review upon writ of error, challenging our attention to the following questions:

“(a) What is the effect upon this insurance of the misstatements contained in the application as to chimneys and incumbrance ?
“(6) Was the entire policy rendered void by the assured placing incumbrance upon the premises unknown to defendant company ?”

Since the court held the policy void”as to the real property, we need only consider whether the contract was divisible. Was the contract divisible? We are of the opinion that it was. The author of Briefs on the Law of Insurance, at the close of his examination of the subject, states his conclusion as follows:

“Though in some jurisdictions the fact that the consideration for the policy is entire has led the courts to declare the contract entire, an examination of the cases justifies the statement that the rule established by the weight of authority is that, if the policy covers separate classes or items of property, separately valued and insured for separate amounts, the contract is divisible, and a breach of warranty or condition which affects only one of the classes or items covered will not avoid the insurance on the other classes or items. The fact that the policy contains a declaration that the entire policy shall be void on a breach of condition does not change the rule. Reason and j ustice require, however, that the rule should be modified when the various classes of property are so situated in respect to each other that the risk is substantially the same on all, and in such case a breach of condition or warranty which increases the risk on one class or item of the property insured should forfeit the whole insurance.” 2 Cooley’s Briefs on the Law of Insurance, p. 1925.

See, also, 19 Cyc. p. 674. Merrill v. Insurance Co., 73 N Y. 452 (29 Am. Rep. 184), is very similar in its facts to the case before us, and supports the ruling of the circuit judge. The case of Ætna Ins. Co. v. Resh, 44 Mich. 55 (6 N. W. 114, 38 Am. Rep. 228), does not conflict with our conclusion. The facts of that case bring it within the modification proposed by Mr. Cooley.

In the present case it was not contemplated that the property should remain within the buildings insured except as to the household furniture, etc., in log dwelling No. 1. 'The other personal property was insured anywhere on the premises, and the live stock “anywhere in Charlevoix, Emmet, and Cheboygan counties.” It was error, however, to authorize the inclusion of the personal property in log dwelling No. 1 in the verdict, and for this error the judgment must be reversed, unless the plaintiff shall remit the amount thereof within 30 days, in which event the judgment will be affirmed for the remainder.

Ostrander, C. J., and Moore, Brooke, and Stone, JJ., concurred with Blair, J.

Hooker, J. I am of the opinion that the plaintiff’s breach of warranty is fatal to his case. 2 Comp. Laws, § 5180, does not relieve him, if it can be said to be applicable to a breach of warranty in any case (see Shelden v. Insurance Company, 124 Mich. 303 [82 N. W. 1068]), for the reason that the fire occurred during the continuance of the defective condition. This statute has been held not to relieve an insured person where the breach of con-

dition extended to the time of the fire in Boyer v. Insurance Co., 124 Mich. 461 (83 N. W. 124, 83 Am. St. Rep. 338); A. M. Todd Co. v. Insurance Co., 137 Mich. 188 (100 N. W. 442); King v. Insurance Co., 140 Mich. 266 (103 N. W. 616). The fact that the misrepresentation was innocent does not relieve the plaintiff from the consequences of the misrepresentation. The defendant could not have insured the dwelling under its articles and bylaws had the truth been stated, and the falsity of the representation avoided the policy under section 19, under which it was sufficient if the answer was false, whether it was fraudulent or not. It is said that we may hold this policy void as to the building, and not void as to the personal property. If that were so, in my opinion the doctrine should not be carried so far as to apply it to the contents of a building whose condition is such as to make the policy void. It is incredible that the parties could have intended or supposed that the policy would be void as to the building and not as to its contents.

But, as some of the personal property was not in dwelling No. 1, either when the fire occurred or when the policy was written, we must examine the case further. We held in Shelden v. Insurance Co., 124 Mich. 303 (82 N. W. 1068), that the statute (sections 5150, 5182, 5187) had no application to a breach of warranty, which was involved in this case. See, also, McGannon v. Insurance Co., 127 Mich. 650 (87 N. W. 61, 54 L. R. A. 739, 89 Am. St. Rep. 501), for discussion of warranty. I consider this point conclusive unless the doctrine of divisibility is applicable to the case. There is another reason why they have no application. Were we to say that only a condition was violated, inasmuch as the breach continued up to and including the time of the fire, the case does not come within the statute. Niles v. Insurance Co., 119 Mich. 252 (77 N. W. 933); Cronin v. Fire Association, 123 Mich. 277 (83 N. W. 45); Shelden v. Insurance Co., 124 Mich. 303 (82 N. W. 1068); Boyer v. Insurance Co., 124 Mich. 455 (83 N. W. 124, 83 Am. St. Rep. 338); McGan non v. Insurance Co., 127 Mich. 637 (87 N. W. 61, 54 L. R. A. 739, 89 Am. St. Rep. 501); A. M. Todd Co. v. Insurance Co., 137 Mich. 188, 194 (100 N. W. 442); King v. Insurance Co., 140 Mich. 266 (103 N. W. 616); Brunswick-Balke-Collender Co. v. Assurance Co., 150 Mich. 315 (113 N. W. 1113).

Since writing the foregoing, my Brother Blair and I have been able to agree so far as dwelling house No. 1 and its contents are concerned, but, in view of his conclusions regarding other property destroyed and the application of the doctrine of divisibility of the insurance contract to this case, I feel constrained to discuss that question, both for its effect on this cause and, in my opinion, its introduction of a new rule in this State. I am aware that it is no new thing for courts to apply different rules of construction to insurance contracts than are applied to other contracts. So far as such have become the established law of this State, we should certainly follow them, otherwise we should be sufficiently deliberate to be sure that such decisions are well grounded. The exact facts in this case are that this plaintiff procured insurance upon two frame dwellings, one frame barn, one or more log barns, one cow shed, and one pigpen, household furniture in dwelling No. 1, hay and other products, live stock, carriages, etc., in the barns or on the premises, each in separate amounts. Plaintiff claimed the right to recover the entire amount of the policy. In his application he answered “Yes” to the question, “Are your chimneys secure ?” By the terms of the application, the insurance was to issue “subject to the charter, by-laws and policies on the property specially described in this application and schedule.” In by-law 8 the following appears:

“ This company may insure all farm buildings without special reference to the distance of. each to the other, provided, all buildings in which fire is used shall be provided with good and safe tile and brick chimney,” etc.

The policy states:

“And it is hereby declared and mutually agreed between the assured and this company, that this policy of insurance is made and accepted with special reference to the application for insurance, and all the conditions therein stated,” etc.

The by-laws also provide:

“ All applicants for insurance shall state the amount of incumbrance on the premises whereon the property to be insured is situated. * * * Should additional incumbrance be placed on said premises without the written consent of the secretary, such policy shall be void, and the company will not be liable for any loss under them,” etc.

There were no brick or tile chimneys at the time the policy was procured, nor have there been such at any time since — merely stovepipes through the roof.

It is conceded that an additional incumbrance of $1,500 has been placed on the real estate since, and was in force at the time of the fire without the necessary consent. The learned circuit judge held the incumbrance to be a fatal obstacle to recovery for damage to the real estate, »but permitted recovery for destruction of the personal property wherever situate. We agree that no recovery can be had’ for injury to the real property or personal property burned in the farm dwelling. We do not agree upon the subject of the other personal property. I assume that the breach of warranty as to the chimneys is the ground upon which we agree as to the personal property destroyed in dwelling 1, for, if the contract is divisible upon the ground that the incumbrance is upon the realty merely, this household property would be protected because not covered by the incumbrance. I also think myself warranted in understanding that the claim to the application of the doctrine of divisibility of the contract as regards the personal property is based on the idea that only that portion in dwelling 1 would be affected by this warranty as to chimneys. It has been truly said that there is a want of harmony in the cases upon the question of divisibility of the contract.

We are not without some light on this question from our own cases. See Ætna Ins. Co. v. Resh, 40 Mich. 241; Id., 44 Mich. 55 (6 N. W. 114, 38 Am. Rep. 228). This doctrine seems to rest upon, and to be limited in its application to, cases where it is reasonably certain that the parties intended that the contract should be divisible, and while Mr. Justice Marston, apparently out of abundant caution, in view of the want of harmony, which he mentioned, said “there may be cases where the contract would be divisible,” he also said that “ the case should be clear and free from all reasonable doubt to warrant a court in carving out separate and distinct contracts from one common whole.” Again, as Mr. Roger Cooley says in his Briefs on the Law of Insurance, Vol. 2, p. 1898, “it is, of course, conceded that the rule — i. e., of divisibility— “ may be rendered inapplicable by special provisions of the policy” — citing Smith v. Insurance Co., 118 N. Y. 518 (23 N. E. 883), where a policy declared that it should be void if the property insured or any part thereof be incumbered, and it was held that the doctrine of divisibility would not apply.

Our case is similar. The provision here is that:

“Should additional incumbrance be placed on said premises without the written consent of the secretary, such policy shall be void.”

How can it be said that this meant that only a part of the policy should be void without doing violence to the explicit agreement of the parties to the contrary ? Again, by-law 19 provides:

“False Statements. Seer 19. Any applicant who shall falsely or fraudulently answer any of the questions contained in the application, or who shall make any false or fraudulent representations regarding his losses in. case of fire, shall thereby forfeit all his rights under his policy.”

Is there a legitimate distinction between a provision that a policy should be void “if the property insured or any part thereof be incumbered,” and a provision that “ any applicant who shall falsely or fraudulently answer any of the questions contained in the application or who shall make any false or fraudulent representations regarding his losses in case of fire, shall thereby forfeit all his rights under his policy”? Mr. Cooley’s conclusions do not seem to be in accord with those of some others as to the better rule. Thus 19 Cyc. p. 682, states the following:

“A warranty must be literally complied with, and an unimportant breach will avoid the policy. The falsity of a statement or representation which is directly or impliedly affirmed in the policy itself or by reference to some preliminary or collateral statement renders the policy void from the beginning, or, if the statement is promissory, from the time of the breach.”

A discussion of this question of divisibility, in which a cloud of cases are cited and discussed, is to be found in Southern Fire Ins. Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216), from which we quote:

“ The policy sued on in the present case insured both the stock of goods and the building in which it was contained. The premium due upon the policy was a gross sum. The question arises, therefore, whether the breach of a warranty relating solely to the goods, and which precluded a recovery for their loss, would also bar a recovery for loss of the building. The stipulation prescribing that the insured must take an inventory of his stock provides that, in case of failure so to do, ‘this policy shall be null and void.’ What was the intention of the parties with respect to the question just above stated ? If this intention is to be derived from the language used — and it must be — it would seem to be clear that the contract was entire and indivisible, and that the breach of a condition which would work a forfeiture would avoid the entire policy, and not simply a portion thereof. The parties contracted that ‘the policy ’ should be void in case of failure to comply with the iron-safe clause. The policy embraces insurance upon both the building and its contents, and the premium is payable in a gross sum.
“‘If the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.’ 2 Parsons on Contracts, p. *519
“ It was competent for the parties to make two separate and distinct contracts — one covering the goods, and the other the building — but they did not see proper to do this. They combined the two, and made the consideration moving towards the insurer a gross sum. They further provided that the contract — not a part of itr — should be void under certain conditions It may perhaps seem to be unreasonable that simply for a failure to take an inventory of the stock of goods the plaintiffs should be precluded from recovering the value of the building. But this does not affect the question. The question is, What have they agreed upon ? If there was any room to doubt as to the intention of the parties, that construction which is most reasonable and most consonant with justice would be applied. But there is none. The parties have deliberately chosen to enter into an agreement whereby the policy shall be forfeited if the insured fails to do certain things, and he has failed to comply with this agreement. In such a case there is but one thing for the courts to do, and that is to enforce the agreement as made.
“ The question as to whether a policy of insurance such as is involved in the present case constitutes a separable or an entire contract is no new question. It has been the subject of numerous decisions by the courts in this country, and they are in hopeless and irreconcilable conflict. The weight of authority is to the effect that the contract is entire, and that the breach of a warranty which relates solely to one class of property will avoid the entire policy if the contract so provides. Text-writers of great learning and ability have, after reviewing the decisions on both sides of this question, reached the conclusion that the contract is indivisible. We quote the following from 1 Wood, on Fire Insurance, p. 884:
“ ‘ It is difficult to understand how it can be held that these contracts are several, when a gross premium is paid for the entire insurance. The court cannot say, as a matter of law, neither can the fact be shown, that the insurer would have been satisfied to take the risk separately at the same premium. By consenting to pay a gross premium for the insurance the assured has signified his willingness to let the policy stand as an entire contract, subject in all its parts to the conditions imposed by the insurer; and there is neither reason nor equity in preventing [?] the assured, after he has violated one of the conditions of the policy as to a part of the risk, to turn around and say that this condition only affected that portion of the risk to whioh the breach related.’
“ Mr. Ostrander, after an elaborate review of the decisions, reaches the conclusion that those which hold the contract to be entire announce the sounder and better rule. Ostrander, Fire Ins. § 23 et seq. See, also, 2 Joyce, Ins. § 1931; 1 May, Ins. § 277. In support of the views herein announced, we find the courts of last resort of Maine, Wisconsin, Maryland, Minnesota, Virginia, New Hampshire, Massachusetts, Vermont, Pennsylvania, New Jersey, Michigan, Indiana, Arkansas, Iowa, Alabama, and Connecticut. It would not be profitable here to do more than cite the decisions of these courts. Reduced to their last analyses, they simply hold that the premium being for a gross sum evidences an intention on the part of the parties that the contract should be treated as entire, and that the intention of the parties, when ascertained, must be enforced. See Richardson v. Insurance Co., 46 Me. 394 (74 Am. Dec. 459); Barnes v. Insurance Co., 51 Me. 110 (81 Am. Dec. 562); Hinman v. Insurance Co., 36 Wis. 159 (Syl. point 7); Burr v. Insurance Co., 84 Wis. 76 (54 N. W. 22, 36 Am. St. Rep. 905); Associated Firemen's Ins. Co. v. Assum, 5 Md. 165; Bowman v. Insurance Co., 40 Md. 620; Plath v. Insurance Association, 23 Minn. 479 (23 Am. Rep. 697); Moore v. Insurance Co., 28 Grat. (Va.) 508 (26 Am. Rep. 373); Baldwin v. Insurance Co., 60 N. H. 422 (49 Am. Rep. 324); Friesmuth v. Insurance Co., 10 Cush. (Mass.) 587; Lee v. Insurance Co., 3 Gray (Mass.), 583; Kimball v. Insurance Co., 8 Gray (Mass.), 33.; McGowan v. Insurance Co., 54 Vt. 211 (41 Am. Rep. 843); Gottsman v. Insurance Co., 56 Pa. St. 210 (94 Am. Dec. 55); Fire Ass’n of Philadelphia v. Williamson, 26 Pa. St. 196; Martin v. Insurance Co., 57 N. J. Law, 623 (31 Atl. 213); Ætna Ins. Co. v. Resh, 44 Mich. 55 (6 N. W. 114, 38 Am. Rep. 228); McQueeny v. Insurance Co., 52 Ark. 257 (12 S. W. 498, 5 L. R. A. 744, 20 Am. St. Rep. 179); Garver v. Insurance Co., 69 Iowa, 202 (28 N. W. 555); Western Assurance Co. v. Stoddard, 88 Ala. 606 (7 South. 379 [Syl. point 5]); Essex Sav. Bank v. Insurance Co., 57 Conn. 335 (17 Atl. 930, 18 Atl. 324, 4 L. R. A. 759). It is true that none of the cases above cited dealt with a breach of the iron-safe clause, but in many of them the condition in the policy which was violated had no more connection with the property for which a recovery was sought than does the iron-safe clause to the building insured by the policy herein involved. In principle the cases are exactly in point. Opposed to this view are decisions of the courts of last resort of Nebraska, Colorado, Kansas, and Missouri. See State Ins. Co. v. Schreck, 27 Neb. 527 (43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696); German Ins. Co. v. Fairbank, 32 Neb. 750 (49 N. W. 711); Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535 (41 Pac. 513); German Ins. Co. v. York, 48 Kan. 488 (29 Pac. 586, 30 Am. St. Rep. 313); Kansas Farmers' Fire Ins. Co. v. Saindon, 53 Kan. 623 (36 Pac. 983); Loehner v. Insurance Co., 17 Mo. 247; Trabue v. Insurance Co., 121 Mo. 75 (25 S. W. 848, 23 L. R. A. 719, 42 Am. St. Rep. 523). The courts of New York and Indiana seem to have been at different times on both sides of the question now under consideration. Smith v. Insurance Co., 25 Barb. (N. Y.) 497; Kiernan v. Insurance Co., 81 Hun (N. Y.), 373 (30 N. Y. Supp. 892); Merrill v. Insurance Co., 73 N. Y. 452 (29 Am. Rep. 184); Pratt v. Insurance Co., 130 N. Y. 206 (29 N. E. 117); Havens v. Insurance Co., 111 Ind. 90 (12 N. E. 137, 60 Am. Rep. 689); Phenix Ins. Co. v. Pickel, 119 Ind. 155 (21 N. E. 546, 12 Am. St. Rep. 393).”

Our own case above cited is exactly in point. Mr. Justice Cobb concludes a learned and convincing opinion as follows:

“Our conclusion is, that where an insurance policy is issued in consideration of a gross premium, and provides that the policy shall be void in the event of a breach of a certain condition therein named, and this condition is broken, no recovery can be had on the policy, though separate classes of property are therein insured, and though the stipulation violated relates solely to a matter which could have connection with but one of these classes. ”

And after all, when a policy provides that a breach of warranty shall render the policy void, what necessity or justification can there be for splitting-hairs to make it a different contract than its unmistakable and unequivocal language clearly imports, thereby making a new contract for the parties, and especially can this be said in a case where, as in this, the parties have expressly said in writing that the entire policy shall be void. Will we apply the general rule of construction that a contract should be so construed as to give effect to all its language if it can be consistently done ? And, if not, why not? What reason can be given for eliminating that word “all’’from the contract ? Indeed, the only reason for putting it in would seem to be to make assurance doubly sure, for ordinarily a provision that a written contract should be void would be construed to mean the entire contract. That is the natural and popular meaning which our statute (1 Comp. Laws, § 50) says shall be the rule of construction as to statutes. Why not as to contracts ? It would be difficult to suggest language that could safely be relied on to express such intent if that used here does not.

For the reasons above given, I am of the opinion that the judgment should be reversed with costs of both courts and without a new trial; it being apparent that the plaintiff cannot recover a verdict on this policy.

McAlvay, J., concurred with Hooker, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re CHOATE’S ESTATE BONINE v. GAGE.
    1. Estates or Decedents — Executors and Administrators— Personal Property — Credits on Accounting.
    Where corporate stock belonging to an estate came into the possession of a trustee in bankruptcy of a bank in which the executor kept the property of the estate, and the trustee unlawfully retained the stock, but after the hearing of his final accounting the executor recovered possession of it, he should be credited with the appraised value thereof, in the absence of evidence showing that he had neglected to sell it when a sale ought to have been made, or had attempted to convert it to his own use.
    2. Costs — Executors and Administrators.
    Because of his neglect to regain possession of the stock belonging to decedent, unlawfully retained by a third party, until after appeal to the Supreme Court, the executor whose duty it was to secure the same should not recover costs.
    Appeal from Cass; Des Voignes, J.
    Submitted June 15, 1910.
    (Docket No. 64.)
    Decided May 8, 1911.
    Ira B. Gage presented his final account as executor of the estate of Nelson F. Choate, deceased. From an order of the probate court charging the executor with the value of certain stock, both parties appealed to the circuit court, where the order was modified and affirmed. Both parties appeal.
    Reversed-.

      M. L. Howell, for appellant Bonine.

      James H. Kinnane and Dallas Boudeman, for cross-appellants Gage and Illinois Surety Co.
   Moore, J.

This case involves the accounting of Mr. Ira B. Gage as executor of the estate of Nelson Choate, deceased. Mr. Choate was one of the partners in the co-partnership bank known as the City Bank of Dowagiac. Mr. Gage was also one of such copartners. Mr. Choate owned 400 shares of the stock of the Dowagiac Manufacturing Company, which was a corporation organized under the laws of Michigan. He had owned this stock for many years. He died in February, 1906. In his will he named Mr. Gage as his executor, and he was on March 28, 1906, appointed as such executor-by the probate court of Cass county. Mr. Gage gave an executor’s bond with the Illinois Surety Company as surety. In making up the inventory of Mr. Choate’s property, the stock of the Dowagiac Manufacturing Company was put down and appraised as of the value of $10,000. This stock remained in the name of Mr. Choate, and is still in his name. It came into the possession of Mr. Gage as executor of the estate, and he kept it with his private papers in the vault of the City Bank of Dowagiac, of which he was cashier. That bank went into bankruptcy in February, 1908. Mr. Gage having neglected to take the certificates of stock away from the bank vault, they came into the possession of Charles Kimmerle, as trustee in bankruptcy of Mr. Gage, and of the copartnership of which he was a member. The main controversy of the parties in this cause is concerning this stock. Mr. Gage (after he became a bankrupt) resigned his executorship, and presented before the probate court his final account for settlement.

To this account objections were filed by the administrator de bonis non, the important one of which was as follows:

“(1) The Dowagiac Manufacturing Company stock consisting of 400 shares of the par value of $25 each was appraised at $10,000, and the said Ira B. Gage, executor, has charged himself with that amount and has the same on hand unsold when, in fact, for more than one year following the appointment of said Gage, executor, said stock was worth at least $40,000, and could and should have been sold for substantially that price, but the said executor neglected to sell, and so neglected to become liable for all loss occasioned by its depreciation, and that the same is worth not to exceed $7,500; and the said Wilbur G. Bonine, administrator, as aforesaid, claims that the said Ira B. Gage should be charged in said account with the sum of $40,000, instead of with the sum of $10,000 for said stock, and should be credited (upon the delivery thereof to said Bonine) with the present value thereof, to wit, $7,500.”

The record shows an offer to produce the stock in the probate court, but we do not discover that it was in fact produced. The probate court did not credit Mr. Gage with the stock, but found the following:

“ The debits of said account should be as follows:
Received from the Bankers’ Life Ins. Co., of the City of New York, $10,000, less rebate of $1,707____1__________________________________ $8,293 00
Received for 85 shares of City Bank stock______ 8,500 00
Cash not included in inventory................. 269 70
Dividend on bank stock________________________ 212 50 •
Received on sale of lot No. 16 King’s Add. to Dowagiac................................ 275 00
Gas range sold................................. 24 70
Harness sold.................................. 5 00
Coal sold Dr. Myers____________________________ 4 25
Rent received of Dr. Myers.................. 60 00
Invalid chair sold.............................. 30 00
400 shares of stock of Dowagiac Mfg. Co________ 10,000 00
Making a total of receipts of............... $27,674 15
“ Credits per vouchers, plus executor’s commission, amount to $29,336.13. Showing an excess of disbursements over receipts of $1,661.98.
“ It is therefore ordered that said account be and the same is changed to read as above and allowed accordingly. It is further ordered that the said Ira B. Gage be reimbursed by the administrator de bonis non of said estate to the amount of $1,661.98 as soon as practicable.”

From this disposition of the account both parties appealed — the administrator de bonis non, because:

“The said Ira B. Gage should be charged in said account with the said stock at its full value at the time the same should have been sold by him, to wit: He should be charged the sum of $40,000 and be held to have converted the said stock to his own use.”

And Mr. Gage and the Illinois Surety Company because :

Second. That upon the settling of the said executor’s final account the said court should have given him credit in specie for said 400 shares of stock of said Dowagiac Manufacturing Company at the sum of $10,000, and should have ordered and directed the same to be delivered to the administrator de bonis non of said estate.”

In the circuit court, the case was tried before the circuit judge, who made findings of fact and law. Proposed amendments upon each side were asked and refused, and exceptions duly taken, and both parties have appealed to this court.

In the findings of the circuit judge appeared the following:

"The Dowagiac Manufacturing Company was a corporation organized under the laws of the State of Michigan some years prior to 1904, having a capital stock of $50,000, divided into shares having a par value of $25 each, and this stock was owned in the following proportions : C. Eugene Lyle, who was a brother of Prank W. Lyle, was the owner of 800 shares. Prank W. Lyle was the owner of 400 shares. Nelson F. Choate was the owner of 400 shares. Will F. Hoyt and. Charles L. Fowle were each the owners of 200 shares. Ira B, Gage had been a stockholder in this Dowagiac Manufacturing Company some years before, but was not interested in it as a stockholder for some years prior to the liquidation of the City Bank. * * *
“ The copartnership formed to succeed the City Bank took the name of the City Bank of Dowagiac, Lyle, Gage & Co., Bankers. Its officers and managers were Frank W. Lyle, Nelson F. Choate, and Ira B. Gage. Leon Lyle was a son of Prank W. Lyle, and was assistant cashier. During the continuance of this partnership, the indebtedness of Prank W. Lyle to it, which had been taken over from the corporation doing a banking business by the partnership, was considerably increased, until, at the death of Choate, he owed the bank perhaps $100,000. The indebtedness of Gage and Choate was at least not reduced, and none of these indebtednesses, except $10,000 of the indebtedness of Choate, was in any way secured, and no security was ever demanded by any of the partners from the others.
“ Nelson P. Choate died on or about the-day of February, 1906, leaving a last will and testament. * * * He left surviving him two minor children, Ruth and Gilberta, who were his sole heirs. On the 23d day of March, 1906, his will was admitted to probate in the probate court for the county of Cass, and Ira B. Gage qualified as executor, and on or about the 29th day of March, 1906, filed his bond as such executor with the Illinois Surety Company as his surety. This bond was for the sum of $30,000. * * * On the 14th day of April, 1906, the said Gage filed an inventory and appraisement of the property of the estate of Nelson F. Choate. * * * The 400 shares of stock in the Dowagiac Manufacturing Company, as appears by this appraisement, was appraised at its par value, but both the executor, Ira B. Gage, and the appraisers, knew that it was worth at least $12,500. On the 27th of March, 1906, the said Ira B. Gage was appointed the guardian of the minor children, Ruth and Gilberta Choate, and the Illinois Surety Company became his surety as such guardian. * * *
“On about the 4th day of May, 1906, and after the death of Choate, the new partnership was formed to engage in the banking business under the same name, but with a capital stock of $50,000, $30,000 of which was held by Frank W. Lyle, $12,000 of which was held by the said Ira B. Gage and the remainder by Leon Lyle and other relatives of Frank W. Lyle. The managers of the co-partnership were Frank W. Lyle, Ira B. Gage, and Leon Lyle. The bank continued in business until the 8th day of February, 1908, when it failed and bankruptcy proceedings were instituted against it, and the partners were all declared bankrupt and a trustee was appointed who took and still retains possession of their assets. * * *
“ The ownership of stock in the manufacturing company by Frank W. Lyle and by Nelson F. Choate during his lifetime tended to give confidence to the customers of the bank in its solvency, and a sale by them of their holdings or a sale of the Choate stock after his death by the executor, unless the same was purchased by some then stockholder of the Dowagiac Manufacturing Company, would have been regarded as a somewhat unfavorable indication by the public. At the time of Choate’s death, the Dowagiac Manufacturing Company had a judgment of some $80,000 against the McSherry Company, an Ohio corporation, which was not listed among its assets, and formed no part of any of the reports to the secretary of State, and was not considered in determining the value of the stock at the time of Choate’s death. The business of the Dowagiac Manufacturing Company, however, had fallen off to some extent, but the depression was regarded as temporary, and did not, in fact, very seriously affect it, except that it did not earn sufficient to make any subsequent dividends. * * *
“ Gage attended some of the meetings of the officers of the Dowagiac Manufacturing Company who were all its stockholders, heard them discussing as to the prospects and financial condition of the company, but did not disclose or state to the court, and it does not in any way appear what was said at these meetings, or what conclusion was reached or what inference drawn as to the value of the stock or as to its tendency upwards or downwards. He informed the other stockholders that he would sell the Choate stock to them, but they informed him that they were not able to handle it, but on one occasion offered to exchange for it some real estate in Dakota, which was paying 6 per cent, on $18,000 or $20,000, but which was in fact, subsequently sold for $9,000. He never received any other offer for it, and never offered it to any other person, and never made public his desire, intention, or willingness to sell it, and it was not known by the public that it was for sale or that it could be purchased.
' “Shortly after Choate’s death, the judgment against the McSherry Company of over $80,000 was reduced by some judicial proceedings to the amount of about $40,000, and after the failure, of the bank in February, 1908, and on or about the 20th day of that month the United States circuit court of appeals for the sixth circuit reduced this judgment to about $1,700. Mr. Gage testified that this reduction to $1,700 was made by the court before the failure of the Dowagiac bank, but the report of the case found in [McSherry Manfg. Co. v. Dowagiac Manfg. Co.] 160 Fed. 948 [89 C. C. A. 26], shows that he was mistaken as to this. Before Choate’s death, he had borrowed some money of outside people, and had hypothecated as collateral to his notes some of his certificates of stock in the Dowagiac Manufacturing Company. He had only a small balance of $269.70 to his credit at the time of his death. * * *
“C. H. Kimmerle was elected trustee in the bankruptcy shortly after the failure of the banking copartnership, and took possession of all the assets, including the stock owned by the Choate estate in the Dowagiac Manufacturing Company, which he still holds under the claim of right, and which he refuses and has refused to deliver up to any person. * * * _ >
“The court finds that in truth and in fact the said Ira B. Gage was negligent and inattentive to his duties as executor, that he made no proper or reasonable effort to dispose of the stock when it could have been disposed of, and that he was so negligent and careless that he ought to be held liable to the estate for the stock if he has suffered it to get beyond the reach of the administrator, or for its depreciation in value if it has depreciated. Upon the failure of the City Bank, the affairs of the Dowagiac Manufacturing Company suffered considerably. The stock of C. Eugene Lyle was . sold by him at par. The stock held by Frank W. Lyle, which passed to the trustee in bankruptcy, has not been sold by the trustee, and he has had offered for it only 75 cents on the dollar of its par value, and has not been able to obtain a higher price. The court finds, however, that the actual value of the stock of the Dowagiac Manufacturing Company is $75 per share, but that it has no market value, and is not readily salable because the control of the corporation is, by the purchase of the 800 shares formerly owned by said Eugene Lyle, now vested in the hands of Will F. Hoyt and Charles L. Fowle. It is further found that Charles H. Kimmerle, trustee in bankruptcy, in asserting his claim against the stock belonging to the Choate estate, is acting under the advice of counsel, and of the receiver in bankruptcy, but it was not disclosed to the court what were the particulars of his claim. It was, however, conceded by Mr. Gage that Mr. Kimmerle had steadily refused to deliver the stock up, and had constantly asserted a claim to it, and that he, Gage, was not able to deliver it to the administrator de bonis non or to turn it over to the court. The stock could have been sold before the failure of the bank for at least $12,500, if reasonable effort had been made.”

The conclusions of law are:,

“(1) That the appraisement of the stock should be so amended as to read $12,500, instead of $10,000, as its value.
“ (2) That Ira B. Gage be charged with the stock at its then present value of $12,500, and that the stock on payment of this amount to his successor, Wilbur G. Bonine, administrator de bonis non, should belong to the said Ira B'. Gage.
“(3) That the surety of the said Ira B. Gage, as well as the said Ira B. Gage, is holden to the said probate court for the benefit of said estate in the sum of $838.02.”

Upon the oral argument much stress was laid upon the finding of the circuit judge that the present value of the stock was $75 a share. Mr. Charles E. Lyle, one of the stockholders of the company, was a witness on the part of the administrator de bonis non, and testified that, while the company had paid large dividends prior to 1906, it did not pay subsequent to those years. He testified further :

”Q. What do you sayas to whether or not the stock was valuable stock in 1906 and 1907 ?
“A. The books show the book value, what it was at that time. In September, 1908, I sold 800 shares of the stock of the company, $20,000 par value, which was 2-5 of the whole, for $20,000, which I thought was the best price I could get for it. I was tied up in such a manner that I was willing to take it.
“Q. Well, what would you say as to whether the Choate stock could be sold now for any more than that price, any more than par ? Could it be sold for more than its par value ?
“A. I think it doubtful.”

On the cross-examination he testified:

“Previous to the time I sold my stock in September, 1908, no stock had changed hands for ten years. Ten years ago there was no sale of stock, but a gift from my mother to me. I was forced to sell at some price and that is all I could get.”

This is the nearest proof of definite value that was offered upon the trial, though the annual reports were put in evidence. We have already called attention to the stress put in the oral argument upon the fact that the judge had found the stock to be worth $75 a share. Attention of counsel was called upon the oral argument to the paucity of the record upon the subject of the value of the stock, and counsel was asked as to just what decree he thought the administrator de bonis non ought to have, and replied, in substance, he must leave that to the court, but thought it clear his client should either have the stock or its value, and, as his client did not have the stock, he thought it clear hé should have a judgment for its value. In the oral argument the question was put to counsel for Mr. Gage asking why his client should subject the adminis • trator de bonis non to the trouble and expense of procuring the stock; why he had not taken steps to procure the stock and bring it into court if he claimed he was entitled to credit for it. After the oral argument, the trial court sent an ex parte statement to this court, stating, in substance, that, if the findings purported to state that he found the stock to be worth $75 a share, the findings were wrong, as he intended to say, and that was what he found, the stock, at the time of his finding was worth 75 per cent, of its face value, which would make it $17.50 a share. Later a petition was filed by Mr. Gage stating, in substance, that he had procured the stock from Mr. Kimmerle, and, after notice was given to the parties in interest, an order was made reading in part as follows:

“ And said petitioner also stating that he is now able to bring said stock into court for the administrator de bonis non, and asking leave to be allowed to do this, or to have the record remanded with leave to do it in the lower court, and it also appearing that the circuit judge, before whom this case was heard, had sent to this court an informal return to the effect that there is a mistake made in the record as to what his findings were. It is therefore ordered that these causes be and they are hereby remanded to the circuit court for the county of Cass for the purpose of having the finding and return of the circuit judge corrected, to correspond to his informal return, and that said Ira B. Gage is allowed the privilege of putting in before said court proof showing the present status of the stock above mentioned, and, when this has been done, the corrected return of the circuit judge and his findings that proof has been offered by said Gage concerning said stock, together with the proof so offered with respect to said stock, be returned to this court.”

The case was remanded, and upon the hearing a vigorous protest was made by counsel for the administrator de bonis non against anything being done. The court and counsel seemed to think the order remanding the case was much broader than this court intended it to be, and instead of simply showing that Mr. Gage had the stock and was ready to turn it over, and correcting the finding of the circuit judge in accordance with the ex parte statement of the court, sent to this court beforé referred to, the circuit judge made new findings of fact and conclusions of law, which are, in substance, that there was no conversion of the stock, that—

“ It was upon the failure to produce the stock and its holdings by the trustee and the peculiar conduct and situation of affairs at that time that I based my conclusion of conversion upon in this case.”.

He further found that the administrator de bonis non should take the stock at $10,000, its present value, and pay Mr. Gage $1,661-. 98. He was urged to amend his findings so as to make the amount $11,661.98, but declined to do so. Amendments were proposed, overruled, and exceptions duly taken.

It has taken a long time to state the situation, but, when they are sifted out, the facts are comparatively simple. They are substantially as follows: Mr. Choate and Mr. Gage were both copartners in a private bank. Mr. Choate had 400 shares of stock in the Dowagiac Manufacturing Company at the time of his death in February, 1906. He had owned this stock a number of years, and had received dividends upon it, Mr. Gage was named as executor in the will of Mr. Choate, and was duly appointed and entered upon his duties. Because he was executor the stock came to him. It was inventoried and appraised at its par value. It was put into the private box of Mr. Gage in the bank vault of the bank of which Mr. Gage was cashier. The stock then stood and has always stood in the name of Mr. Choate. Mr. Gage was not only made executor of the estate of Mr. Choate, but was appointed guardian of his minor children.

It is not shown that a sale of the stock was necessary to satisfy creditors. It is not shown that Mr. Gage ever attempted to convert it in any way to his own use. When his bank failed, he resigned, his position as executor, and attempted to turn over this stock to his successor, but the trustee in bankruptcy of tbe bankrupt bank and the bankrupt Mr. Gage declined to turn it over. Unless the action of this trustee, which was unauthorized and unlawful, charges Mr. Gage with an act of conversion, then he should not be so charged, unless the mere lapse of time should so charge him. But two years had elapsed between the death of Mr. Choate and the bankruptcy of Mr. Gage. Evidently Mr. Choate thought the stock was good property to hold for he had held it for years. The record is barren of any fact being brought to the knowledge of Mr. Gage that should make it his duty as executor to sell this stock which was not listed, and of which none had been sold for a series of years, and turn the proceeds over to himself as guardian. Section 9430, 3 Comp. Laws, reads as follows:

An executor or administrator shall not make profit by the increase, nor suffer loss by the decrease or destruction, without his fault, of any part of the personal estate; and he shall account for the excess, when he shall sell any part of the personal estate for more than the appraisal, and if he shall sell any for less than the appraisal, he shall not be responsible for the loss, if it shall appear to be beneficial to the estate to sell it.”

This section was before the court in the case of Loomis v. Armstrong, 63 Mich. 362 (29 N. W. 870), where the court used language which is germane here:

“ In doing these things the administrator is required to exercise the ordinary prudence, care, and judgment of men doing the kind of business the deceased was engaged in at the time of his death. It is not the highest degree of skill or care, nor the best management and judgment, that the law requires. This would be requiring too much, as will be readily seen, for that would require capacity and ability which would insure success, and is not possessed by more than one-tenth of the persons who engage in business generally. It is the care, prudence, and judgment which the man of fair average capacity and ability brings to bear in the transaction of his own business that furnishes the standard by which the administrator in the performance of his trust duties must be governed.
“ ‘ The general rule adopted with respect to the liability of executors is founded upon two principles:
“ ‘ (1) That, in order not to deter persons from undertaking these offices, the court is extremely liberal in making every possible allowance, and cautious not to hold executors and administrators liable upon slight grounds.
“ ‘ (2) That care must be taken to guard against an abuse of their trust.’ Dayt. Surr. 477; Tebbs v. Carpenter, 1 Madd. 162.”

Many authorities are cited by counsel. Among them are the following which we regard as instructive: In re Porter Estate, 5 Misc. Rep. 274 (25 N. Y. Supp. 822); 2 Woerner on Administration, §§ 709, 710; In re Williamson Estate, 13 Phila. (Pa.) 195; Watkins v. Stewart, 78 Va. 111; 1 Perry on Trusts, § 465; Troup v. Rice, 55 Miss. 278; Bowker v. Pierce, 130 Mass. 262; Brinkerhoff-Farris Trust, etc., Co. v. Lumber Co., 118 Mo. 447 (24 S. W. 129). We think it clear Mr. Gage should have been allowed credit for the stock to the same amount that it was charged against him.

Was the judge wrong in fixing the amount ? The probate judge denied credit for the stock, and fixed the balance due at $1,161.98. The circuit judge allowed the credit at $10,000, but still fixed the amount at $1,161.98. It is apparent he failed to add the $10,000 credit, and it should be added.

We cannot understand why Mr. Gage, when he found the trustee would not deliver the stock, did not ask for a postponement of the hearing until he could obtain the stock and tender it. It is very likely, had this been done, much if not all of this litigation would have been saved. Because of his neglect in this respect he should not recover any costs.

Judgment is reversed, and an order may be entered here in accordance with this opinion.

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


author: Brooke, J. Hooker, J.

text:
    LIGHT v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers — Damages—Trial — Instructions to Jury — Ejection from Train.
    It was not error to charge the jury, in an aotion by a passenger for having been unlawfully ejected from defendant’s train after he had surrendered his ticket to the conductor, that he would be entitled to recover damages for any injury to his health ensuing because of his walking to his home six miles away, under proofs showing that he was lame after-wards, and could not carry on his trade for two days, and the court could not determine, as a matter of law, that his condition resulted from playing a game of base ball on the day of his injury.

      2. Evidence — Hearsay—Harmless Error.
    Evidence that defendant’s ticket agent, in reply to a telegram, sent a message admitting that he had sold a ticket to plaintiff’s destination at the time claimed, was not erroneously admitted, in view of an admission of defendant’s counsel that such a ticket was sold.
    3. Damages — Mitigation—Passenger.
    The rule requiring a passenger to pay his fare a second time if he has the money, should not be extended so as to compel him, if he has not the money, to endeavor to borrow it of his friends or acquaintances on the train. Hooker, J., dissenting.
    4. Same — Excessive Verdict — New Trial.
    Plaintiff’s alleged injuries not being serious, a verdict of $500 was excessive, and should be reduced to $250, or a new trial awarded.
    Error to Alcona; Connine, J.
    Submitted November 30, 1910.
    (Docket No. 50.)
    Decided May 8, 1911.
    Case by Albert Light against the Detroit & Mackinac Railway Company for wrongfully ejecting plaintiff from a train. Judgment for plaintiff. Defendant brings error.

      Reversed unless plaintiff consents to remit a portion of the judgment.

      James McNamara and Charles B. Henry (Guy D. V. Henry, of counsel), for appellant.

      Lewis P. Coumans, for appellee.
   Brooke, J.

Plaintiff, a barber residing at Au Sable, was a member of the Harrisville baseball team, which played at Alpena on July 15, 1910. Harrisville is located between Alpena and Au Sable; all three stations being upon defendant’s road. After the conclusion of the game, the manager of the ball team purchased from the defendant’s agent at Alpena nine tickets for Harrisville and one for Au Sable, and the team boarded the train. The conductor took up the tickets between Alpena and Harris-ville. As the train left Harrisville, the conductor demanded from plaintiff transportation between Harrisville and Au Sable. Plaintiff claimed that he had already surrendered to the conductor a ticket calling for transportation between Alpena and Au Sable. This the conductor denied, claiming that he had received no ticket from plaintiff of that character. The fare between Harrisville and Au Sable is 55 cents. Plaintiff had but 12 cents in his pocket. The train was stopped at Greenbush, and plaintiff was ejected. No claim is made that plaintiff was physically injured while being put off the train. This occurred at 6 o’clock, and thereafter plaintiff walked back to Harrisville, a distance of six miles. Upon his arrival there a telegram was sent to the agent at Alpena, to which the agent replied as follows:

“Alpena, Mich. To Manager of Base Ball Team. Nine tickets to Harrisville, one to Au Sable, price $10.65. H. M. Reeves, Agt.”

With reference to his physical condition, plaintiff testified :

“It was just about dark when I reached Harrisville. I had nothing to eat after being put off the train before reaching Harrisville. I did not procure anything to eat right away after reaching Harrisville.
Q. What was your condition from the effect of not having something to eat up to that time ?
“A. I felt pretty weak. * * *
“Q. What was your condition the following day, or the condition of your health; that is, in the forenoon of the 16th ?
“A. I was sore, and my leg was stiffened up, too.
“Q. How long did that continue, if you know ?
“A. About two days. I was not able to continue work in the shop after leaving (arriving) home Thursday night. I didn’t get into my shop until Saturday night. I wasn’t fit to go in and do any barber work.
“Q. Why?
“A. Nervous and soreness.
“Q. So that you lost that time ?
“A. I did, sir. * * *
“Q. What would it be reasonably worth, a day’s work where you were working in your own shop ?
“A. Between $3 and $5.”

Upon the question of damages, the court charged the jury, in part, as follows:

“ Also he would be entitled to recover for any injury to his health that he suffered — any injury to his health by reason of his being ejected from this train — and that injury to his health was in consequence of his being ejected, or the consequence of the necessary exertion in reaching a station, he would be entitled to recover for that. That element of damage you should consider carefully, and you should inquire whether as a matter of fact his health was injured and to what extent.”

Defendant contends that this instruction was erroneous, for the reason that plaintiff’s testimony as to his physical injuries was not such as to warrant the jury in awarding to him any damages upon that account. It is pointed out that, inasmuch as plaintiff had engaged in a game of baseball on the day in question, the first game he had played that year, his soreness was attributable to the violent exercise demanded by the game, rather than to the six-mile walk upon a summer’s evening. We think the testimony as to physical injury is not very convincing, and that the argument of counsel might very well have, convinced the jury that it was not the result of the six-mile walk. It was, however, a question for the jury, and the instructions quoted correctly state the law.

The telegram from the agent at AÍpena was admitted over the objection of defendant. The only fact which the telegram tended to prove was that the manager of the team had purchased nine tickets to Harrisville and one to Au Sable. In the discussion between court and counsel touching the telegram, the following appears:

“ By Mr. Henry (counsel for defendant): I wish to state here that this testimony in regard to the purchasing of these tickets is not going to be seriously assailed by the defendant in this suit. * * *
“By Mr. Goumans (counsel for plaintiff): Then do you admit that there was sold to Mr. Sandorf in the purchase of those tickets a ticket good for travel from Alpena to Au Sable that day, and it was in the bunch of tickets that was bought for the ball players ?
“Mr.'Henry: I have stated that.” * * *

In view of this admission by defendant’s counsel, the receipt of the telegram in evidence is without prejudice, even if it was incompetent, which we do not determine.

Evidence was offered by defendant tending to show that a friend of plaintiff’s was upon the same car with him, who, if plaintiff had applied to him, would have loaned him the money necessary to pay his fare from Harrisville to Au Sable. This was excluded, and error is assigned thereon. Upon this branch of the case defendant relies upon Frederick v. Railroad Co., 37 Mich. 342 (26 Am. Rep. 531); Mahoney v. Railway Co., 93 Mich. 612 (53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 528); Brown v. Railway Co., 134 Mich. 591 (96 N. W. 925). We are of opinion that the rule requiring the passenger to pay a second time, if he has the money, in compliance with his duty to minimize defendant’s loss, should not be extended so as to compel him, if he has not the money, to go among his friends or acquaintances upon the train and endeavor to borrow it at the risk of refusal and humiliation. The testimony was properly excluded.

A motion for a new trial was made, one of the grounds for which was that the verdict of $500 was clearly excessive. This motion was denied. We think it clear that the verdict is excessive. Compensation for the injury wrongfully inflicted should be the measure of plaintiff’s recovery. The testimony in this record does not show injury to defendant which would warrant a verdict for $500.

The judgment will be reversed and a new trial ordered-unless plaintiff remits the sum of $250, in which event it will stand affirmed, with costs of this court to defendant.

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

Hooker, J.

(dissenting). This plaintiff obtained a verdict for $500 against defendant for damages sustained by. reason of his ejection from a train by defendant’s conductor. He claimed to have surrendered his ticket to the conductor. This was disputed. The jury found plaintiff’s testimony true, and we must assume that they were right about it. He was put off the train at a small station and chose to walk six miles to his sister’s at Harrisville, and claims that his health was injured thereby. He was a member of a baseball team, and had played that day. He had gone to Alpena in company with a friend, their personal belongings being in one satchel. Testimony was offered which would have shown that this friend had and would have loaned him money to pay the fare required, and this was excluded. Assuming that the plaintiff had no money, and therefore was unable to pay the fare demanded, which he should have done if he consistently could under the case of Brown v. Railway Co., 134 Mich. 591 (96 N. W. 925), we think it was error to exclude this testimony, for the reason that it should have been received in mitigation of damages if for no other purpose.

If he unnecessarily suffered the humiliation of ejection and a walk of six miles, the jury might properly have awarded less damages.

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


author: Hooker, J.

text:
    SMITH v. NELSON.
    1. Equity — Chancery Praotioe — Preliminary Injunction — Dismissal.
    While a bill in chancery should not ordinarily be dismissed on the hearing of an order to show cause why an injunction should not issue, it was not error to dismiss the bill when the only question raised by complainant was a question of law, depending on the interpretation of a statute.
    2. Landlord and Tenant — Summary Proceedings — Tender — Rent Due.
    Under 3 Comp. Laws, § 11177, a tender of rent due a landlord as determined in summary proceedings for the possession of the premises, must be made either after judgment in the commissioner’s court or on appeal to the circuit, within five days after final judgment; it is too late after the affirmance of such judgment on error to the Supreme Court.
    Appeal from Lenawee; O’Mealey, J.
    Submitted January 5, 1911.
    (Docket No. 31.)
    Decided May 8, 1911.
    Bill by Daniel D. Smith against George H. Nelson and Emma A. Nelson for an injunction against the enforcement of a judgment at law, and for specific performance. From a decree dismissing complainant’s bill, he appeals.
    Affirmed.

      Herbert R. Clark, for appellant.

      Smith, Baldwin & Alexander, for appellees.
   Hooker, J.

Smith purchased certain land from the Nelsons (husbandand wife), upon a land contract, $1,000 being paid down, and a balance of $3,610 made payable December 1, 1908. He also took it subject to a mortgage of $2,060, which he assumed. A notice of forfeiture for nonpayment was served upon Smith on March 2,1909, and summary proceedings to recover possession were commenced before a circuit court commissioner on March 11, 1909. A verdict and judgment wererendered in favor of the Nelsons, and Smith appealed to the circuit court, where he was again defeated. The circuit court judgment was affirmed by this court. See Nelson v. Smith, 161 Mich. 363 (126 N. W. 447).

The present suit arises on a bill filed by Smith, praying that defendants (the Nelsons) be compelled to make a deed of the premises to complainant; it being alleged that he made a seasonable and sufficient tender under the statute (§ 11177, 3 Comp. Laws), which provides:

“No writ of restitution shall be issued under the provisions of this chapter, until the expiration of five days after the entry of judgment of restitution; and in case of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court; and in case it is found that the complainant is entitled to the possession of the premises, in consequence of the nonpayment of a sum of money, no writ of restitution shall issue, if the defendant shall, within five days after final judgment, pay the amount so found due, and double the amount of costs awarded to the said complainant.”

The bill prayed a temporary injunction against the taking out of a writ of restitution from the circuit court, and an order to show cause why such an injunction should not be allowed was made returnable on May 21, 1910, and a restraining order was issued in the.interim. An answer was filed on May 21st, and the order to show cause was brought to a hearing, and subsequently the following opinion and decree were filed:

“At a session of said court held at the courthouse in the city of Adrian on the 18th day of July, 1910:
“Present: Hon. John L. O’Mealey, Circuit Judge.
“The matter of the order heretofore entered, that the defendant show cause why an injunction should not issue as in the bill of complaint prayed, and that in the meantime a restraining order issue, restraining the issuing of a writ of restitution, and of possession, in the law case between the parties, and the disposition of the case on bill and answer, and upon the facts conceded in open court, came on further to be heard.
“After hearing and considering the pleadings, the allegations of the parties, and the arguments of counsel, it is determined, ordered and decreed that the defendants have shown cause why an injunction should not issue, and the order to show cause is dismissed and injunction is denied; and, as the bill of complaint stated no facts which would entitle complainant to any relief except the relief based on his contention of the intent and meaning of the statute, which the court finds cannot be sustained.
“It is further ordered, adjudged, and decreed that the bill of complaint be, and the same is, dismissed, with costs to defendants to be taxed.
“ John L. O’Mealey, Circuit Judge.
“ Fred A. Acker, Register.”
“ State of Michigan — The Circuit Court for the County of Lenawee — In Chancery.
“ Daniel D. Smith,
Complainant,
v.
“ George H. Nelson and Emma A. Nelson,
“ Defendants.
“ At a session of said court held at the courthouse in the city of Adrian on the 18th day of July, A. D. 1910.
“Present: Honorable John L. O’Mealey, Circuit Judge.
“The court, having filed written findings in this cause on the date hereof, holding that defendants have shown cause under the order heretofore issued herein, and that said order be dismissed and the injunction denied, and dismissing the hill of complaint, and an order having been entered herein to that effect, on motion of Herbert R. Clark, solicitor for complainant, it is ordered, adjudged, and decreed that proceedings herein be, and the same are hereby, stayed for a period of 40 days for the purpose of permitting complainant to file a claim for and perfect' an appeal to the Supreme Court, and that in the meantime defendants be restrained from procuring or executing a writ of restitution in the law case for the recovery of the possession of the premises involved in this suit, and in case of an appeal during that time that this restraining order continue in force until the final disposition of said cause in the Supreme Court.
“John L. O’Mealey, Circuit Judge.”

Ordinarily a final disposition of a cause in chancery at issue between the parties will not be made on the hearing of an application for, or a motion to dissolve, an injunction pendente lite. In this instance, however, if the defendants’ construction of the statute quoted is the correct one, the complainant would not be entitled to relief upon the facts stated and admitted; while, if complainant’s construction should be sustained, the court should have gone no farther than to decide the question of the allowance of an injunction, leaving the cause to go to hearing on the merits, viz., the question of a seasonable and sufficient tender, which is disputed by the answer.

The complainant claims that he has a right to five days after the rendition of the judgment in this court within which to pay the amount found due, while the defendant insists that this statute applies only to the judgment of the circuit court, and that the right has been lost. This statute was construed in the case of McSloy v. Ryan, 27 Mich. 110. In that case a landlord sought to dispossess a tenant for nonpayment of rent. The jury in commissioner’s court found a verdict of guilty, and that the amount of $80 was due for rent on the day of trial. The defendant appealed to the circuit court, and upon the trial the question of the amount of rent due was not submitted to the jury; the court holding that it was not needful that they decide that and they returned merely the verdict of guilty. Error was brought and based upon that omission. The only imaginable injury that could have resulted to the defendant from that omission is that he was thereby precluded from paying the amount of his arrears and double costs under section lili"?, which manifestly he could not do if it was not ascertained, or he was at liberty to take the amount found by the jury in the commissioner’s court, upon whom the obligation to pass upon that question was mandatory, under section 11168. After quoting the statutes, and in the course of its discussion, this court said:

“ Before the commissioner these proceedings are very summary, and may generally be pushed to a very speedy conclusion; and, as cases will sometimes occur in which honest differences will exist as to whether anything is due, the permission to defendant to pay what is found against him, but under a penalty of double costs, would seem, in view of the summary character of the proceedings, tobe not unjust to either party. When, however, the case is appealed to the circuit court, the reasons for giving defendant permission to make payment after a verdict against him, are not so urgent or forcible. In that court, the case cannot be pushed to such speedy conclusion, and even in cases where the defendant believes nothing to be owing by him, he has had one opportunity of knowing what the evidence was against him, and is not likely to be taken entirely by surprise at the trial, or to be unprepared for an immediate dispossession after judgment, as he might have been when proceedings were first commenced. These considerations may possibly have had weight with the legislature in prescribing what the proceedings should be on appeal; and, though by no means very conclusive, they may properly be borne in mind in considering the various provisions of the statute which have been made for the case.
“ An examination of these provisions will show that we are not at liberty to infer that those which apply to the proceedings before the commissioner were to regulate wholly the action of the circuit court also. On the contrary, express provision is made for judgment, costs, execution, and writ of possession in that court; and the omission to make reference to any finding upon the amount due is consequently very significant, and affords very strong evidence of the legislative intent that the privilege which was given the tenant in the court below of being left in possession on payment merely of what was due when proceedings were commenced could not justly be left open to his acceptance after such lapse of time as must necessarily attend an appeal, and when other installments may have fallen due and been left unpaid. And this evidence is particularly strong in view of the unqualified terms in which authority is given the circuit court to issue writ of possession to the complainant obtaining judgment, and which is made subject to no restriction or qualification whatever. It is probably the view of the legislature that the delays of the appeal would of themselves to some extent answer the purpose of the privilege given before the commissioner; and, as only the defendant would appeal in a case where the judgment was such as to give .this privilege, he would do so with the distinct understanding that he had his election to pay the amount reported due, and retain the premises, or to take his chances of being able to satisfy the appellate court that there was no cause for proceeding against him at all. We assume that the complainant would not appeal from a judgment in his own favor, from a dissatisfaction with the amount found due, even if he had a right to do so, because the finding of this special tribunal, which has no power to try common-law issues, could not be binding upon him in a suit for rent; but, if the amount of rent is not to be passed upon in the circuit court, dissatisfaction with the award before the commissioner could not be the subject of appeal; and this would seem to be the view of the legislature, for the appeal is allowed only from the ‘ determination or judgment ’ of the commissioner, and the finding of the amount due, though to be stated in the judgment, is in fact no part of it. It follows from what has been said that the judgment should be affirmed, with costs.”

We do not mean to be understood that the question of amount due is not now one that the circuit court should decide, for the statute (2 Comp. Laws 1871, § 6710) has been amended, imposing such a'duty (Act No. 198, Pub. Acts 1881; 2 How. Stat. § 8299; 8 Comp. Laws, § 11168). See, also, Gould v. Young, 143 Mich. 572 (107 N. W. 281). But the principles of construction applied in that case are equally applicable here. It is quite as reasonable to. say in this case that the legislature intended this — i. e., the appeal in the circuit — to be a summary proceeding, and that it was its design that the defendant after two trials of the merits, should pay the amount due within five days, or lose such privilege whether the omission accompanied an appeal to the Supreme Court or not, as it was after one trial, under the original section, 11168 (2 How. Stat. § 8299). This provision under which a breach of contract is forgiven is a restriction upon the right of parties to have their contracts carried out according to their terms, or at least upon their remedy by summary proceedings. See Smith v. Building Association, 115 Mich. 346 (73 N. W. 395, 39 L. R. A. 410, 69 Am. St. Rep. 575). The extension of this right by virtue of the amendment has done much to deprive parties of summary relief, for in such cases all a party defendant need do is to appeal his case, and he can safely defer payment until a judgment is rendered in the circuit court. If complainant’s contention be sustained, these summary proceedings will have been practically converted into a mere action for money, no more summary than any other action and summary proceedings in such cases made little better than the action of ejectment, for obtaining possession, although no question of title can arise. As the court said in the case cited, honest differences may exist on the question of payment, and two trials of the merits ought to be enough to settle such. It is to us obvious that the case of McSloy must have been, before the legislature when the statute was amended. Probably it was the occasion of the amendment, and we are confident that it was not the design of the legislature to extend the right to a judgment of this court, the effect of which would be to make it applicable indefinitely so long as new trials might be had.

An argument is made as to the meaning which should be attached to the term “final judgment” in section 11177. That section is unchanged, having been the same when the McSloy Case was decided. Necessarily it must have been then construed to refer to the judgment of the circuit court commissioner only, and therefore it must be considered settled under the rule of stare decisis. It is improbable that the silence of the act as to the right of payment after judgment in the Supreme Court was overlooked when the legislature was discussing and changing a similar omission, in the light of Mr. Justice Cooley’s views upon the subject, expressed in the case of McSloy, or reference thereto omitted with the expectation that the reasoning of that case would permit a farther extension by construction.

Counsel for appellant state in their brief that the only question that they care to raise is whether a tender can be effectively made under the provisions of section 11177 after judgment in this court.

As we think it cannot be, the decree is affirmed, with costs of both courts.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    PEERLESS MOTOR CO. v. LINN.
    1. Sales — Conditional Contracts — Breach oe Warranty — Rescission.
    In an action for the price of a gasoline engine, which defendant claimed was defective, failed to work and was rejected by him under a warranty of efficiency contained in the contract of sale, it was proper to charge the jury th'at such warranty was the first issue for the jury, and if the engine did not conform to the agreement plaintiff could not recover.
    2. Same.
    The trial court sufficiently submitted to the jury in his instructions the claim of plaintiff that the engine failed to work because of improper installation and treatment by defendant, in charging the jury that plaintiff could not recover if the' engine failed to work efficiently as warranted, and that it was defendant’s duty to install the engine according to contract, that if the alleged trouble arose from the method of installation, the engine was not shown to have been imperfect, and that testimony as to the method of installation bore only on that issue.
    - 3. Same — Inconsistent Defenses — Rescission.
    And where plaintiff’s olaim was that the engine conformed to its warranty and would have worked properly if properly installed, it was not entitled to take the inconsistent position that it was willing and offered to substitute another engine in compliance with another condition in its contract with the purchaser.
    4. Same — Machinery—Additional Parts.
    The court did not err in charging the jury that a special pulley which plaintiff furnished with the engine at the request of defendant was a part of the maohine, and that plaintiff’s recovery for that item must depend on their determination of the principal issue, of breach of warranty.
    Error to Ingham; Wiest, J.
    Submitted January 17, 1911.
    (Docket No. 35.)
    Decided May 8, 1911.
    Assumpsit by the Peerless Motor Company against Joseph H. Linn for the price of a gasoline engine. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Frank L. Dodge, for appellant.

      William F. Cairns (Rollin H. Person, of counsel), for appellee.
   McAlvay, J.

Plaintiff sued defendant upon a written agreement dated August 21,1906, relative to the purchase of a certain gasoline engine manufactured by plaintiff, to recover the sum of $250, the amount of the purchase price of such engine. This agreement was evidently one of the order forms used and furnished by plaintiff, through its sales agents, to intending purchasers. It will not be necessary to give this entire instrument. A few material paragraphs will suffice. It reads:

“Peerless Motor Company, Lansing, Michigan—
Gentlemen: Please ship to Joseph H Linn on or before the 26th day of August or as soon thereafter as possible, one of your stationary 8 rated horse power noiseless gas or gasoline engines, complete. * * *
“The machinery above ordered to be delivered on board cars at factory for shipment, by way of P. M. R. R., for which we agree to pay the sum of $250, ten days after engine is shipped, provided said engine is meeting your claim and guarantee herein given. * * * ”

The order in terms was given subject to the following conditions: Title was to remain in plaintiff until payment in full. The engine was—

“ Warranted when properly set by a competent person, according to plans and directions furnished by the constructors, and when properly cared for and operated, to work in an efficient and economical manner.”

It was also warranted against undue wear and breakage caused by flaw in material or bad work, and any parts needing to be replaced to be furnished free of charge during one year after delivery. It also provided that, in case the engine failed to fulfill such warranty, immediate notice and the cause, if known, should be given plaintiff, and time allowed plaintiff to remedy the difficulty.

“If the defect be not promptly so remedied, the constructors to have the option to substitute another engine that shall fill the warranty, or to return the money and securities received and cancel this contract, neither party to make claim against the other.

‘' If the purchaser or his employé fails to make the engine perform through improper management or lack of proper appliances, or neglect to observe the printed or written directions, then the purchaser is to pay all necessary traveling and othe? expenses incurred in exporting said engine.”

The engine was shipped and received about a week after the order was given, and was set up a few days later. The sales agent assisted in setting it up. He could not start it, and sent for plaintiff’s expert to do so, Mr. Townsend for plaintiff came at once and started it. From that time there was very frequent trouble with running of this engine, of which plaintiff was notified by telephone and letter. Plaintiff’s manager, chief engineer, and experts went there frequently, some of them several times. The carburetor would not work. It was taken out, and a broken piece of a drill was found in the hole through which gásoline flowed. Frequently after that plaintiff, when notified, sent its men to make the engine run. Defendant produced letters of September 24th, September 28th, October 8th, and October 11th, making complaints that the engine was not working satisfactorily, and asking that plaintiff attend to it. It does not appear that any attention was paid to these letters. The last letter referred to contained the following:

“ * * * This engine has been an expense to me of about $200, and if you are not here to-morrow to care for same and make it do the work proper I shall not trouble myself further.”

Finally, on October 24, 1906, defendant wrote:

“ I wish to advise you that the engine shipped me, covered by your invoice of Aug. 25th is not doing satisfactory work and I refuse to accept of same. I further wish to say that this engine is here subject to your shipping instructions.”

This letter was received by plaintiff. Plaintiff’s general manager went there a few days later, and found defendant installing another engine. The manager at that time offered to furnish another engine if the one defendant had 'was not giving service according to contract. Of the foregoing facts there is no material dispute.

Plaintiff’s claim is that the engine was not properly installed; that it was not properly cared for by defendant; that the printed instructions were not regarded; that the engine was allowed to get dirty, and was not properly oiled, etc.; that no notice was given as required by the agreement if the engine failed to fulfill the warranty; in fact, that defendant did not in any manner follow the terms of the agreement. A trial resulted in a verdict of no cause of action in favor of defendant. A motion for a new trial was made and denied. The errors assigned by plaintiff are to refusals to give plaintiff’s requests, to the charge of the court, and to the refusal of the court to grant a new trial.

It will not be necessary to discuss all of the assignments of error at length. Preliminary to passing upon the errors relied upon and discussed, it will be well to state the situation as it was presented to the trial court. By the order made by defendant and accepted by plaintiff for this engine no present and completed sale of the property was made. No title passed or was intended at that time to vest in defendant. He ordered a certain engine of plaintiff’s manufacture, for which he agreed to pay $250 within 10 days after shipment, provided the engine fulfilled the plaintiff’s claim and guaranty. Plaintiff warranted the engine when properly set by a competent person according to plans and directions furnished by it, and when properly cared for and operated, to work in an efficient and proper manner, and also against undue wear or breakage caused by flaw in material or bad work for one year. Immediate notice was required to be given by defendant should the engine fail to fulfill the warranty in any respect, the cause, if known, to be given and reasonable time allowed to send a man from the shop to remedy the difficulty. If the defect was not promptly remedied, plaintiff to have the option to substitute another engine which would fulfill the warranty. Such was the-contract or agreement upon which this suit was brought, plaintiff alleging that the engine was in all respects and particulars” in accordance therewith, and which was received and retained by defendant without objection or complaint as to not being fully of the character and kind sold by plaintiff and purchased by defendant, who made no demand upon plaintiff to change or substitute another engine for the one furnished.

The testimony of plaintiff shows that from the time the first notice received from Eilenberg, the sales agent, that the engine was not working satisfactorily, plaintiff at defendant’s request sent its general manager, experts, and workmen repeatedly to make this engine work. That such a condition existed is not disputed in this case. What caused this condition was partly in dispute. Plaintiff’s testimony tended to show that the improper installation and claimed neglect and want of care caused at least part of the trouble. This testimony also showed that the difficulty was in the carburetor. They found the broken drill in the hole. “It did not trace the gasoline fast enough.”

As to improper installation, defendant offered proof tending to show that he remedied everything as the general manager directed when he called attention to it, and that the trouble with the engine was continuous from the time it started, and plaintiff was notified. The court submitted this dispute to the jury under a charge, many paragraphs of which are claimed by plaintiff to have been erroneous.

Error is first assigned upon the following:

“ The first issue for you to determine from the evidence is that of whether the engine so shipped by the plaintiff to the defendant was an efficient gasoline engine.”

This sentence was repeated with slight variation, and the court added:

“Now, of course, that you will determine from the evidence you have listened to in the trial of this case.”

Appellant contends that this was not the first issue for the jury to determine in the case, nor was it an issue, and was misleading. We find from the agreement that the engine agreed and guaranteed to be furnished was under certain conditions to work in an efficient and economical manner. This was the principal and practically the only question in the case, for, if it was found that such an engine was not furnished, plaintiff had no standing in court, as far as the engine was concerned.

Appellant assigns error upon the following portion of the charge:

“Necessarily he wanted an engine that would operate, an efficient engine of its character and class. That I understand was so understood by the plaintiff, and the plaintiff by accepting this order and acting under it undertook to furnish and was bound to furnish an efficient gasoline engine, and there can be no recovery in this case by the plaintiff, so far as the engine is concerned, unless you are satisfied by a preponderance of the evidence that the plaintiff did furnish or ship to the defendant an efficient gasoline engine.”

The contention is that these portions of the charge—

“Deprived the jury of a consideration of other portions of the contract which were material and holds plaintiff to a strict accountability without reference to its rights under the contract.”

These excerpts follow in the charge a detailed statement of what the suit was brought for, a description of the parties and a statement of the contract relied on by plaintiff, and they were followed by an extended paragraph in which the attention of the jury was directed to what defendant had done with the engine, and they were told to consider “all the evidence relating to this engine, its installation, its place of operation, its method of operation, and how it ran.” He also charged the jury that defendant bought the engine under the contract, and was to install it himself, and in so doing it was his duty to follow the instructions, and if later, when plaintiff was trying to make the engine perform to suit defendant, its officer noticed the installation and suggested changes which were made,—

“Then the method of installation only bears upon the issues I am going to leave to you, so far as its installation and its place of operation may bear upon the question of whether the engine was in fact an efficient one when delivered by the plaintiff to defendant.”

He further charged that, if the trouble arose because of his method of installation by defendant contrary to the instructions given him with the engine, then it would not show the engine when delivered to him was inefficient. The trouble would then be that of defendant; and, further, that defendant could not avoid his contract by claiming that he had not read it and did not understand its contents; that no fraud was claimed by him or any claim made that the contract was different from the contract he understood he was to sign. Appellant is therefore mistaken in stating that what defendant did with the engine was not submitted to the jury for consideration in determining whether plaintiff had furnished an efficient engine as agreed. No error was committed in the portions of the charge above excepted to.

Appellant objects to another portion of the charge as erroneous and confusing, and that its meaning is not understood by its counsel. The quotation and punctuation of the objectionable excerpt in plaintiff’s brief is doubtless by mistake not correctly given. The substance of this portion of the charge was that the court called the attention of the jury to a certain argument in the case which had no bearing upon the issues he would leave to them, and he felt that, if he passed such remarks without comment, the jury would think they had a right to consider them. He then charged as to the duties of defendant relative to taking and installing the engine which we have called attention to in a preceding paragraph. He then came back to this argument of counsel:

“ Counsel for the plaintiff in his argument stated that under the contract, if the engine so installed did not meet the guaranty or warranty, the plaintiff had a right to take it out and put another engine in its place, and the defendant by taking the engine out himself and by his purchase of another engine put in its place has deprived the' plaintiff of this right under its contract. It is sufficient upon that to say to you, gentlemen, the plaintiff never asked leave to put in another engine in place of the one in suit. Under the contract, the plaintiff if the engine installed was defective, and if the defects were not promptly remedied, had the option to substitute another engine to fill the warranty. The plaintiff never has asked leave under the contract to put in another engine on the ground that the one installed was defective, but the plaintiff claims now and insists it always has claimed the engine put in was not defective, and therefore it was not required to exercise its option to take that one out and put another one in its place, so the question of whether it was deprived of its right to put another engine in the place of the one in question has nothing whatever to do with any issue in this case.”

Part of this statement is challenged by appellant as not sustained by the record, relying upon the testimony of the general manager. The court in this portion of the charge explicitly states the condition of the warranty under which plaintiff might substitute another engine, and is correct in stating that plaintiff never asked leave under the contract to substitute an engine on the ground that the one installed was defective, and that the theory of plaintiff on the trial was inconsistent with any such offer. There is testimony by the general manager that after he received the letter of October 24, 1906, from defendant notifying plaintiff that he refused to accept the engine and that it was subject to plaintiff’s orders, he went to Williamston, where he saw that the engine furnished had been taken out and another one was being installed, and then said that he was there for the purpose of carrying out the contract, and, if the engine was not giving service, they would be glad to furnish another. Upon this the argument referred to by the court was founded, and, because inconsistent with plaintiff’s theory of its case as then presented, it was taken from the consideration of the jury.

Defendant, instead of the ordinary pulley which was on the engine to be furnished under the agreement, wanted what is known as a clutch pulley, and the change was made, the difference in price between the two was agreed upon to be paid by defendant, and amounted to $13.37, and in submitting the case the court charged that in any event plaintiff would be entitled to recover that amount. After the jury had retired in custody of an officer they were recalled and the court gave a charge relative to the burden of proof, and the preponderance of evidence. Later the jury was again called in, and instructed by the court that upon reflection he was satisfied that he was wrong in instructing that a verdict in any event should be found for plaintiff for the clutch pulley, and he then instructed as follows:

“ The clutch pulley under the evidence was to take the place of a pulley that was upon the engine, the ordinary pulley that went with the engine. The defendant desired a clutch.pulley instead of the plain pulley, and it was agreed between the parties that the plain pulley should be taken from the engine and a clutch pulley put upon the engine, and the defendant should pay, in addition to the price of the engine, $15.32 for the clutch pulley, and, as I recall the evidence, this amount was reduced by a credit given to the defendant by the plaintiff to $13.37. You are instructed now that the plaintiff is not entitled in any event to recover the $13.37, but that is contingent upon the plaintiff’s right to recover for the engine.”

He further stated to the jury that this left the issue as it was left to them before under the main issue upon the question as to whether an efficient engine had been furnished. "We do not find that this was error. The clutch pulley was for this engine and the change was to be made as agreed. A pulley was to be part of this outfit; without it an engine of this character is not complete. The contract called for an engine “complete with attachments,” and the only use intended for this pulley was for this engine.

It will be unnecessary to consider the errors assigned upon refusals to give certain requests to charge. Under our conclusions herein stated they were properly refused. The same may be said relative to the refusal to grant a new trial.

We find no error in the case. The judgment is affirmed.

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