text:
    LONG-BELL LUMBER CO. v. NYMAN.
    1. Sales — Acceptance of Goods — Effect.
    Where, in an action for the price of a car load of lumber, it appears that defendant had knowledge several days before its receipt that the lumber had been ordered in his name, that on its arrival he was notified and ordered it turned over to the person for whom it was ordered, and made no disclaimer as to having ordered it until several months afterward, it is error to direct a verdict for defendant, though it does not appear except by inference that, defendant, at the time the order for the lumber was given, had knowledge of it.
    2. Evidence — Presumptions—Letters—Telegrams—Receipt by Addressee. '
    There is a presumption that letters mailed and telegrams sent in due course of business were received in like manner by the person to whom they were addressed; the presumption is rebuttable, however, and whether it is rebutted in a particular case is a question of fact.
    3. Sales — Action for Price — Instructions.
    Where, in an action for the price of a car load of lumber, it appears that, on receipt of an order from a third person to ship the car to defendant, plaintiff sent an invoice to defendant stating that plaintiff had sold the lumber to defendant, that several letters and telegrams of the same import were sent to defendant, all of which defendant testified he turned over to the person for whom the lumber was ordered and to whom he ordered the carrier to deliver the lumber on its arrival, instructions as to the duty resting upon á party to speak when another acting in good faith is being misled by his silence, and as to what amounts to ratification of the unauthorized acts of a stranger, are required.
    Error to Van Burén; Carr, J.
    Submitted April 10, 1906.
    (Docket No. 45.)
    Decided September 20, 1906.
    Assumpsit by the Long-Bell Lumber Company against R. C. Nyman for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Lincoln H. Titus and William J. Barnard, for appellant.

      Thomas J. Cavanaugh, for appellee.
   McAlvay, J.

Plaintiff, a Missouri corporation, doing business at Kansas City, Mo., brought suit against defendant who was a lumber dealer residing at Bangor, Mich., in the circuit court for Van Burén county, to recover the price and value of one car load of yellow pine lumber which it is claimed was shipped by it to defendant and received by him. The facts and circumstances of this shipment are as follows: In November, 1902, plaintiff received from J. B. Graves Co., wholesale lumber dealers of Benton Harbor, Mich., an order to ship by rail to defendant at Bangor this bill of lumber, giving dimensions and number of pieces with prices. Plaintiff proceeded to fill the order and shipped the same by rail December 19, 1902, sending at the same time an invoice of the lumber shipped in Illinois Central car No. 82,883, amounting to $305.55. With this invoice, it is claimed, was a letter notifying defendant of the shipment, calling attention to some particular pieces, asking that the same be carefully checked over on arrival, ánd plaintiff be advised as to any discrepancy. The car was delayed on the road for a long time and during that time plaintiff received three telegrams purporting to be signed by defendant. The first read:'

“Bangor, Mich., Jan. 6,1903. “Send me routing Illinois Central car 82,883, also •shipping bill. Are joice shipped ? Where are they ?
“ R. C. Nyman.”
The second:
“Bangor, Mich., Jan. 14, 1903.
“ Joice not here. Can you locate and push them.
“R. C. Nyman.”
The third:
“'Bangor, Mich., 1-30-03. “McKellar notifies me willnot want joice after February second. Where are they ?
“R. C. Nyman.”
In response to the first telegram plaintiff wired:
“ Kansas City, Jan. 7, 1903.
“R. C. Nyman,
“Bangor, Mich.
“Invoice mailed. Are tracing car. Will rush all possible.”

In answer to the second telegram from defendant plaintiff claims a letter was written on the same date. In all, plaintiff claims to have written 10 letters in regard to the shipment, and asking payment therefor. The last one being notice of a draft made for the amount. All mailed in the ordinary course of business. None of these letters were produced as requested of defendant, and carbon copies were introduced in evidencg. Defendant was called as a witness for plaintiff and admitted receiving the. invoice, and two or three letters. The waybill was received at Bangor by the railroad company February 26th, and the car arrived March 2, 1903, as appears from the records of the company. On the day the car arrived the agent notified defendant who, as the agent testified, told him to deliver it to Mr. McKellar for the schoolhouse, and further testifies defendant “said the car was ordered in his name, and wasn’t for him, it was for the schoolhouse.” The agent delivered the car to McKellar who receipted for it and paid the freight. Defendant testifies that he told the agent he had nothing to do with it, that it was McKellar’s. The draft was sent to the bank with notice to defendant of that fact, April 22, 1903. The draft was not paid. On June 15, 1903, defendant wrote plaintiff:

“Yours of the 12th received. This bill I have nothing to do with; never ordered the lumber, and never had anything to do with any part of it. I have given your correspondence to McKellar. He was the contractor that had the job of building the schoolhouse. Think that a man in Benton Harbor ordered the lumber for him and had it shipped to me.”

This is the only letter defendant wrote plaintiff. The record does not show that defendant knew of .the order given by J. B. Graves Co. to plaintiff. It appears that McKellar was a contractor building a schoolhouse, and needed certain lumber which could not be obtained there. Defendant testified that members of the lumber association would not ship to contractors; that McKellar was obliged to have it shipped to some dealer, and wanted to ship two or three car loads in defendant’s name. Two car loads were shipped from Benton Harbor through Graves in that way, with defendant’s permission. • He afterwards learned that the car load in suit was shipped in the same way, and he knew that when this lumber came it was to be used in the schoolhouse. Defendant offered no evidence. Both parties requested the court for an instructed verdict. |The court granted defendant’s request, and instructed a verdict of no cause of action. A judgment was accordingly entered.

Plaintiff on writ of error asks this court to reverse this judgment, alleging that the court erred in taking the case from the jury, claiming that a verdict should have been instructed for plaintiff, or that the case should have been submitted to the jury under charges requested by plaintiff which were refused. It is clear to us that it was a case for the jury. There was evidence tending to show that this car load of lumber had been received by defendant, and by him ordered to be delivered to McKellar. It is admitted that it arrived at Bangor billed to him, and that he was at once notified. If the jury believed the evidence of the station agent it could have found that there was an acceptance of the property by defendant, and it would make no difference by whom it had been ordered. It does not appear except by inference that defendant at the time the order for the lumber was given had knowledge of it; but it is admitted that he received the invoice and at least two or three of the letters written by plaintiff, and the car number given in the invoice was used in a telegram in defendant’s name. As to the many letters written by plaintiff and mailed in due course of business, the presumption is that they were received by defendant. This presumption may be rebutted by evidence, but whether it was rebutted or not is a question of fact for the jury. 1 Greenleaf on Evidence (15th Ed.), § 40; Hedden v. Roberts, 134 Mass. 38; Huntley v. Whittier, 105 Mass. 391. The same applies to the telegram sent by plaintiff to defendant.

The invoice, mailed January 5, 1903, on its face stated that plaintiff sold to defendant the lumber in question. All of the letters to defendant are of the same import.' The invoice and all letters defendant admits he received were turned over to McKellar by him. The first evidence of any repudiation of the transaction by defendant occurred April 22, 1903, when the draft was refused, and the first writing to that effect was June 15, 1903. In connection with these facts, the court should have instructed the jury as. to the duty resting upon a party to speak when by silence another acting in. good faith is misled. Bigelow on Estoppel (5th Ed.), p. 570; Cleveland Co Operative Stove Co. v. Mattery, 111 Mich. 43. Also, as to what amounts to the ratification of the unauthorized act of a stranger. Saveland v. Green, 40 Wis. 438; Heyn v. O’Hagen, 60 Mich. 150. All of the requests to charge the jury, asked by plaintiff, were drawn in accordance with the views herein expressed, and should have been given substantially as requested.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    THROOP v. RUSSELL.
    Limitations — New Promise — Sufficiency.
    An acknowledgment of a debt, in order to remove the bar of limitations, must contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay, and be unaccompanied by any circumstances or declarations which repel the presumption of a promise or intention to pay,
    2. Same.
    A letter by the maker to the payee of notes against which limitations have run, stating that the fact that the notes have outlawed need not enter into the matter, and that the writer will endeavor to raise a certain sum less than the face of the notes if the holder will surrender them, and that if in the future the holder need any money the writer will endeavor to give it to him, and stating further, “I am not backing~up or repudiating anything,” is a conditional proposition, and is not a waiver of the bar of limitations.
    Error to Wayne; Rohnert, J.
    Submitted April 12, 1906.
    (Docket No. 59.)
    Decided September 20, 1906.

      Assumpsit by William A. Throop against Frank P. Russell on certain promissory notes. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      E. T. and J. Harvey Wood, for appellant.

      Balph L. Aldrich, for appellee.
   McAlvay, J.

Plaintiff brought suit March 2, 1905, .against defendant in the Wayne circuit court upon three •certain promissory notes and interest at the rate of 7 per cent., made and executed August 13, 1892, as follows: One for $500 due one year after date; one for $740 due two years after date; and one for $729 due three years after date. On the $500 note there were several indorsements of $10 each, the last of which is dated September 20, 1894. No payments were made on the two other notes. Defendant pleaded the general issue, and gave notice of the statute of limitations. It is admitted that the notes on their face are barred by the statute. Appellant claimed that the bar of the statute had been removed by new promises in writing made by defendant. The notes and the letters which were claimed ■to contain such new promises were offered in evidence by' plaintiff. No evidence was offered by defendant.' The trial judge held that the language of the letters could not be construed as amounting to an acknowledgment of indebtedness and a new promise to pay, and instructed a verdict for defendant.

The only question in the case is whether the court erred in his construction of the letters, and in directing a verdict. Plaintiff lived in Toledo and defendant in Detroit. The notes were given in settlement between them of a certain business venture in which they had been engaged. The correspondence upon which plaintiff relies was had between them in October, 1902.

Plaintiff wrote defendant October 7th:

“ Kindly get me the abstract on those lots of mine as soon as possible and give it to Mr. Wood. I may be able to get the money I want on them here, and if so will want the abstract. Do not give up trying to get for me in Detroit, as I may fall down on it here. I am counting on your paying the $500 on the first of' Nov. as I’ll haye to have it or will not be able to do as I want to.”

Defendant answered October 14th:

“ I will have the abstract out of Burton’s office and will deliver to Mr. Wood. Please let me know whether or not you have the loan. I do not like to ask people to loan money when I do not know whether or not the loan will be needed. I am working hard; next week will have auction sale that I am certain will give me money to pay you. I have made money all year, but it is hard to get cash when I want it. Will write you again in a few days.”

Plaintiff wrote again October 16th:

“Yours of the 14th, inst. received, and in reply will say that I have not been able to make the loan here as I hoped when I wrote you before, so leave it to you to get it for me,' and I hope you will be able to get more than $500.00 on the lots as I need the money. I send the deed to Mr. Wood the first of the week. * * * I think I told you that I must have the money by Nov. 1st, or it’s all off with me, so keep things stirred up and be Johnny on the spot.”

Defendant wrote October 27th: _

‘ ‘ I suppose you have wondered why I did not answer your last letter. I waited because I wanted to know just what I could do. I have bent all my work to get money' for you, and it was not till today that I was sure. I will be able to send you $500.00 for myself on the 1st, and I have no doubt I will be able to secure you $500 on the lots. * * * ”

Defendant wrote again October 29th:

“Now in regard to, our matter. Yesterday I was offered cash for a piece of property here that I had not figured on selling till next year in the spring or summer. The offer is about $1,500 less than I had figured on getting, but I want to get cleared up and I thought you would be willing to help. You will, of course, remember the nature of the deal. * * * I agreed to take entire responsibility for everything and included in the notes even salary to you for the time we were together. Of the Toledo lots everything that I received went to clear up the indebtedness, and I still have $500 to pay. Should I pay the notes on the basis you proposed, I would be out on the deal altogether about $5,000 in cash, more or less, and you would have had a much better investment for your money than if it had been in the bank. As I look back at it, the division of loss does not seem proper. Of course you have my notes. I think they are outlawed, but that question need not enter into the matter. If you will say that you will take $1,000 now and give me back the notes I will endeavor to make sale I spoke of in first part of letter. If you do so and in the future you need any money I will endeavor to give it to you. In thinking this over try to put yourself in my place. Remember I am not backing up or repudiating anything. In any way of looking at it I cannot but think I made a mistake of inexperience and youth in giving the notes. Now that I am older and see that others do not use me that way I feel that I have a right to endeavor to lighten my.burden.”

Plaintiff answered this letter November 3d:

“* * * I was very much surprised when I read your proposition, and I do not feel that I can accept it. These notes have been running a long time and you have not paid anything on them and it has been very hard for me, as I have needed the money but I have not pushed you, and I feel that I have done all I can. I made you a good offer in Detroit and you accepted it, and that more than took off the item of salary which was $240 only. I hope you will get the money for me on my lots, and also send me the agreed $500 on the notes at once as I am waiting for it, before I can do anything here, and I agreed to make good Nov. 1.”

In the foregoing letters of defendant everything is given which bears upon the notes in question. Letters written by plaintiff are given because he cláims that as part of the correspondence they are material. These are the writings which plaintiff claims amount to a new promise on the part of defendant. In his brief plaintiff fairly and clearly states the proposition before us in this case.

“The question then is: Has Mr. Russell in his letters to Mr. Throop made such new promises as to constitute an acknowledgment of the debt sufficient to remove the bar of the statute and revive the debt for six years from the date of such letters ? ”

In this State the law is well settled as to what constitutes a new promise in writing sufficient to remove the bar of the statute. This court has said:

“ Whenever a new promise is set up to remove the bar of the statute, it ought to be proved in a clear and explicit manner, either expressly, or in such unqualified acknowledgment as authorizes its implication. ' * * * And although it is held ño set form of words is requisite to constitute a sufficient acknowledgment, and that it may be inferred from facts without words; yet the acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay and be unaccompanied by any circumstances or declarations which repel the presumption of a promise or intention to pay.” Ten Eyck v. Wing, 1 Mich. 40, and cases cited.

This is the leading Michigan case and the learned judge in the able opinion cites and digests the leading English and American authorities. This case has been accepted as the law in this State upon this question.

In the case at bar the writings of defendant relied upon as a sufficient acknowledgment to create a new promise-are all set forth above. The letters from plaintiff which are given in this opinion, and to which the letters of defendant are answers, make no direct mention of the notes in question except the last one in answer to the proposition of settlement. The letter of October 29th, written by defendant, is the one upon which plaintiff places most reliance. The entire part material to the case has been quoted. Defendant, in portions not necessary to give in this opinion, states how the indebtedness on the notes arose, and his present financial condition. He says:

“ Of course you have my notes. I think they are outlawed, but that question need not enter into the matter. If you say you will take $1,000.00 now and give me back the notes I will endeavor to make sale I spoke of in first part of letter. If you do so, and in the future need any' money I will endeavor to give it to you. In thinking this over put yourself in my place. Remember I am not backing up or repudiating anything.”

We construe this to be a proposition by defendant, who knew the notes were outlawed, that if the plaintiff would surrender them he would pay him $1,000. To this proposition plaintiff replied:

“I was very much surprised when I read your proposition and I do not feel that I can accept it.”

The proposition was conditional, it contains no promise to pay unless the condition was accepted, and we do not construe it as a waiver of the right to rely upon the defense of the statute.

In the case of Rumsey v. Settle’s Estate, 120 Mich. 372, relied upon by plaintiff, and in which this court held fhat the letters of decedent contained a new acknowledgment and promise to pay, the letters state “ I will say this, that every cent I owe you will be paid,” and, “ * * * and I owe you. Now I want to fix your matter up in some way; that is, give you a new note, or if you think a note worthless, what will you take in cash and balance all I owe you ?”

It will be noticed that in the first letter, written before any of the notes were outlawed, there is an explicit acknowledgment of the indebtedness and a promise to pay, which the court held would prevent the running of the statute for six years thereafter, and the second letter, written two years before that time expired; was to the same effect and operated in the same way. It will be seen that Rumsey v. Settle’s Estate, supra, is easily distinguishable from the case at bar.

In the case of Halladay v. Weeks, 127 Mich. 363, the promise was held to be a conditional one and not sufficient' to comply with the statute.

Our conclusion is that the circuit judge was right in holding that under the decisions the evidence offered was not such an acknowledgment of the indebtedness that a promise to pay could be inferred therefrom.

The judgment is affirmed.

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


text:
    PEOPLE v. PARKER.
    1. Criminal Law — Second Jeopardy — Constitutional Law— Discharging Jury — When Authorized.
    Under our Constitution (section 29, article 6), a jury impaneled, accepted, and sworn cannot be discharged except for inability to agree, or for some other overruling necessity, which courts hold to constitute a mistrial.
    2. Same — Disqualification of Juror — Sufficiency.
    The court may, at any time during the progress of the trial, arrest it to determine the legal qualifications of a juror, and if it be ascertained upon an examination that a juror was disqualified when sworn and accepted, or by subsequent conduct has become disqualified, the overruling necessity essential to constitute a mistrial appears, and the court may discharge the jury without prejudice to a new trial.
    3. Same — Appeal—Review—Discretion of Court.
    Appellate courts will not interfere with the aotion of trial courts in discharging juries, where facts are found upon which such action can be based; but the facts must be found and placed upon the record, and the'court cannot arbitrarily discharge a jury upon mere rumors of improper conduct, or of attempts to corrupt one or more of them.
    4. Same — Jeopardy—Discharge of Jury.
    A jury having been accepted, impaneled, and sworn, and witnesses examined in a criminal case, the court suspended the

      trial, and after an ex parte investigation, in which neither the defendant nor his counsel were permitted to take part, discharged the jury from further consideration of the case, though no juror was found to be disqualified, nor was the entire panel found to be tainted. Held, that the accused was in jeopardy, and, in the absence of a finding of any legal objection to the jury, was entitled to a verdict at their hands, preventing his subsequent trial bofore another jury.
    5. Same.
    After the case has been submitted to the jury, it is the duty of the court not to discharge them so long as there is a reasonable probability that they can agree, though the court is justified in accepting their statement that they cannot agree as proper evidence in determining that question.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted April 12, 1906.
    (Docket No. 60.)
    Decided September 20, 1906.
    George W. Parker was convicted of manslaughter, and sentenced to imprisonment for not less than nine, and not more than ten, years in the State prison at Jackson.
    Reversed, and respondent discharged.
    The respondent, under an information charging murder, was convicted of manslaughter. A jury was duly impaneled, accepted, sworn, and placed in charge of officers of the court, March 16, 1904, and the case adjourned to the following day. The trial was again adjourned to the 18th. On that day the presiding judge announced that he had discovered that one of the jurors was related to the defendant within the ninth degree, and that his attention had been called to another juror, and he had concluded to permit the prosecuting attorney to reopen the case, re-examine the two jurors, and go back to his challenges. The two jurors were then examined and discharged, and tales-men summoned to take their places. Another of the original jurors was then peremptorily challenged by the people. On March 21st the jury was impaneled and sworn, testimony taken, arguments had, and the case submitted to the jury. The jury retired at 5:38 p. m. to consider their verdict. At 9:50 p. m. the presiding judge on his own motion summoned the jury into the court-room, whereupon the following occurred:
    “ Gentlemen of the jury, I sent for you to ask if you have agreed upon a verdict ?
    “ The Foreman: We could not agree, your honor, so far.
    “ The Court: Is it a question of fact, or is it a question of law upon which you are unable to agree ?

      “ The Foreman: What I understand, it is a question of fact; the same as we had before.

      “The Court: You have had this case with.you now four hours and twenty minutes. Is that right, Mr.. Clerk ?

      “The Clerk: Yes, your honor.
    “ The Court: Immediately after the arguments of counsel and charge of the court; and you say, Mr. Foreman, and you speak for your associates on the panel, that you are unable to agree upon the facts.
    “ The Foreman: So far as that, your honor.
    “ The Court: You may enter an order, Mr. Clerk, at this time, that the jury has had the consideration of this case since 5:20.

      “ The Clerk: 5:40, your honor.
    “ The Court: And it is now 10 o’clock, and up to the present time you have been unable to agree ?
    “ The Foreman: Yes, your honor.
    “ The Court: And you say it is a question of fact ? '' .
    “ The Foreman: Yes.
    “ The Court: And it is not a question of law ?

      “ The Foreman: Not so far as I can see into it.
    “ The Court: Being a question of fact, I cannot en-' lighten you. If it was a question of law, I would be jus- . tilled and authorized in giving you further instructions, but inasmuch as it is a question of fact — and you have given the deliberations your best thought ?
    “ The Foreman: Yes, your honor.
    ■ “ The Court: And you inform me that you are unable to agree ?
    “ The Foreman: So far.

      “ The Court: Enter an order, Mr. Clerk, that the jury in this case is discharged from its further consideration, and the defendant remanded to the county jail.

      “ Mr. Dóhany: I would like to have your honor ask the jury if they think there is a prospect of them agreeing if they are sent back ?

      “ The Court: No, sir, I will not.
    “ Mr. Dóhany: I take exception to the court’s order.

      “The Court: Very well; you may notify the prosecuting attorney, Mr. Olerk, that this case will procéed Monday morning, or as soon thereafter as counsel in the case will be ready. * * * ”
    Later the court said:
    “ I find that the jurors in this case were uhable to agrée as to what the facts of the case are, and, in my opinion, thinking there was no likelihood of thém agreeing, I entered an order for their discharge.”
    On April 7th, following, another jury was impaneled and duly sworn. The people rested their case, and considerable testimony was introduced on behalf of the defendant. These proceedings, occupied from April 7th to April 13th. At the opening of the court on the latter day the presiding judge made the following statement:
    “ Take this statement coming from the court this morning, Mr. Reporter; that in the interests of the public justice, the jury being absent that have been impaneled to try this case, the court is satisfied that the Parker Case should rest here until the court is satisfied, from a further examination, that he has caused to be made and search to .be made for the man who it is charged as having made statements that reflect upon the present panel that are now engaged in the trial of George W. Parker. There shall be no star chamber procedure about this. This man will be brought in and will be examined under the instructions of the court by the attorney whom the court has selected, Mr. Pound, president of the Wayne bar association. I will state for the counsel’s benefit that I have the statement under oath of two men who charge the ex-talesman, an ex-talesman, with having made the statements which, they have testified to, and which is a serious reflection upon the manhood and integrity of the members of the present panel, now engaged upon the trial of George W. Parker. If the statement had been against the defendant, that the people’s interests were being worked, and a prejudice built up against the defendant in the jury, it unquestionably would have been the duty of the court to take prompt action, and the court believes it is his bounden duty, where the prejudice is alleged to have been built up against the pepple, to act promptly. I have acted promptly/ Within four hours after the information was laid before me, I had the services of a member of the bar to represent the court, independent of counsel in the case.
    I think now that before we go any further we should give the jurors who have been charged by this man an opportunity to vindicate their manhood, and, if the court is not satisfied that their statements are true, then the court will* have no hesitancy in discharging the jury and calling another one, until such time as this case can be tried on the evidence in the court, and not from outside influence.”
    From April 13th to April 18th no further proceedings in the trial were had, and the court was occupied in hearing contempt proceedings against an ex-talesman, and the jury were kept in the custody.of the officers. On Monday, April 18th, 1904, the prosecuting attorney and counsel for the defendant and a quorum of the board of jury commissioners being in court, the following took place:
    “ The Court: I want to ask the prosecuting attorney at this time if he has any statement that he desires to make to the court as to why the court should not enter at this time an order for the drawing of talesmen to the number of 100 to be placed in the box, independent of those names that are now in there, and which have received the attention of this court by being drawn, examined, challenged, and otherwise, in the former trials had in this matter ? . '
    “ Mr. Hunt: No, your honor, I have no objection.
    ‘ ‘ The Court: The clerk of the court informs me that there are perhaps 200 names in the box at this time, names of jurors that were placed there at the beginning of the fiscal year by the jury commission, and which have been examined in different cases-that have been tried in this court. And that upon the last trial of this defendant (referring now to the defendant Parker) an order was made by this court, drawing 50 talesmen, and that there were only 25 names in the box; that a jury was secured from 22 of that 25. Therefore the names that are now in the box — upwards of 200 — have been all examined, whether in this case or in other oases; I believe in this case, as the record will show. Now, counsel understands my question, does he ?

      “Mr. Dohany: Yes, your honor.

      “ The Court: What has counsel to say?

      “Mr. Dohany: If I understand your honor correctly, there are 200 names now in the jury box that have been drawn out and the respective jurors examined, but they have been either excused by the court or challenged by counsel, either for the people or the defendant. Is that true ?
    “ The Court: As far as this court has knowledge.

      “Mr. Dohany: Now what is the question the court desires to ask ?
    “ The Court: Whether there are any objections at this time on the part of counsel for the defendant in regard to the question asked by the court of Mr. Hunt, the prosecuting attorney, if he has any objection at this time to the court ordering the jury commission to draw 100 names?
    “ Mr. Dohany: From the box ?
    “ The Court: Oh, no; to be placed in the box.
    “ Mr. Dohany: What is to be done with those hundred names ?
    “ The Court: To be placed in the box.
    “ Mr. Dohany: What for ?
    “ The Court: For the trial of George W. Parker.

      “Mr. Dohany: If I am not misinformed, the trial of George W. Parker is now in progress. We have a jury of 12 men sworn in the case, and that jury has not yet been discharged. I may have some difficulty in answering your honor’s question for that reason.
    “ The Court: The court can assure the counsel that the case of George W. Parker will not be terminated with the present panel.
    “ Mr. Dohany: That is the first time that information has come to me from your honor.

      “ The Court: You have it now. It is on the record. I want to ask the counsel, now, what he has to say, because there is no information that this court bases its action upon that is not in that record. Everything has been done open and above board; there has been no advantage taken either of the defendant or of the people in this matter. It is too serious a matter to consider other than in open court.

      “Mr. Dohany: If the court please, I cannot surrender any of my client’s rights, and I certainly would object to the drawing of another jury in the case.

      “ The Court: That is why I call attention of counsel so that I may have his objections.
    “ Mr. Dohany: At this time I am not familiar with the records, or at least all the reasons, that your honor may have for the discharge of the present jury. So I would object to the proceedings had for the purposes of the record.

      “ The Court: Note an exception for the counsel for the defendant. ' _
    _ “ The court then addressed the jury commissioners and entered an order that they return to this court Wednesday, April 20, 1904, ‘the names of 100 citizens, from which we will proceed to secure a jury in the case of the People v. George W. Parker, arraigned on an information for murder.’
    “ The Court: Mr. Clerk, you may enter the further order that it appears to this court, from matters brought to his attention during the past week, that it was absolutely necessary for the welfare of justice — and, as I view that term, it means justice to the people and to the defend - ant in every criminal accusation — that the names that are now in the present box, deposited at the beginning of the fiscal year, and which have been drawn out from time to time, under the order of the court and the jury commission, in several matters — murder trials that have been before the courts for determination — be ordered taken from the box and destroyed; and that a new list of names ordered by the court of the jury commission be placed in the box in their stead. Instead of 100 names, you may make it 150, at this time, because there are many of the names that are now in the box of jurors that have never been found by the sheriff, and many have been excused for sickness. It is thought best at this time, in the interest of this community, and all concerned, that the names of those now in the box be destroyed.”
    The order was entered.
    On the same day, at 7:30 o’clock p. m., the defendant being present, the jury in this cause was brought into the court-room, and the'following took place:

      “The Court: Gentlemen of the jury, in reference to the delay in the procedure of the trial of this case and the absence of taking further testimony or proceeding with the arguments of counsel, the court now here deems that

      it is but right that you should be apprised of the follow: ing facts:
    “ In reference to the matter of the condition of affairs 'that presents itself to this court in the case now on trial, of the people of the State of Michigan v. George W. Parker, upon an information charging murder; it having been brought to the attention of this court by sworn testimony duly presented to this court, and, in part, at least, filed therein, and the rest having been taken before the ■stenographer, but within the hearing of the judge of this court, that certain suspicious circumstances were in existence which reflected seriously upon the integrity of you, gentlemen of the jury, as jurors on the trial of this case in this court, and which charges, in the judgment of this court, warranted an immediate investigation of what had actually taken place, not only as a prudent measure, but under the circumstances of their occurrence in the mind ■of the court, an absolute necessity to the due administration of justice.
    “And this court, having, upon the filing of proper affidavits, entered upon an investigation of the matters alleged in connection with the said jury having been tampered with, and in reference to the details of the same, which investigation has certainly disclosed to this court a state of facts that was heretofore unheard of by him, and which this court has no hesitation in announcing is entirely unsatisfactory to the administration of justice in this court; and while no direct proof of wrong-doing directly reflecting upon this jury or any individual member of it, has been presented to this court in sufficient volume to satisfy this court that said wrong had been actually perpetrated or committed, and perhaps it could not well be without an individual trial of the jurors upon this panel and their examination on oath and without counsel, whereby an undue advantage might be taken of them, yet the knowledge that the court has received is such; he deeming it improper to make this investigation of the individual jurors while said jury are still charged with the trial of the issue in this case, yet still it has prompted this court to still further investigations in connection with this case, some of which are now pending before this court, and undetermined.
    “Additional inquiry having been made, and it appearing that, either through inadvertence or from some other .reason, certain of the answers given by some of the jurors in this case on their examinations upon their voir dire were incorrect, and that they had at least read of and discussed this case before being called as jurors to a-greater extent than their examination discloses; and it also appearing beyond question to this court that certain persons representing both the State and the defense, or, at least, persons that were interested in the progress of the respective sides of this case, have seen fit to almost immediately go, after the provisional swearing in of the jurors in this case, to the households and the families of these men who have been drafted to do jury duty in the case, also since they have been impaneled and sworn, this jury, who, as a whole, this court is satisfied are at least an average body of men in intelligence and in honesty and in ability, still it being made to appear to this court that these parties before referred to have attempted to impress upon the relatives of the jurors their respective views and to a certain extent to sway them upon and as to the merits of this case; and it being within the knowledge of this court that the wives and near relatives, and other persons not so closely connected with the individual jurors, but still their relatives have been permitted to visit the jurymen impaneled in this case without surveillance, and inasmuch as these parties have had access to the individual jurors under the general order of this court made to that effect, and the condition of affairs existing in this case and apparent to this court being such that the opportunity, at least, has been presented for communication and possible corruption; also that a proceeding has been had in this court wherein a conviction has been had and summary punishment has been inflicted upon a party adjudged to have been guilty of misconduct in this case, and that said offense was such and the other attempts that have come to the knowledge of this court are of such a character that in the mind of the court there is serious doubt but that the rights of either the respondent or the State in this case have been seriously prejudiced; and this court being so in doubt, and also being uninformed but what some other improper overtures may have been made to the individual member or members of' this jury of which he had not absolute proof, but has grave suspicion of; and this court not deeming it to be wise or proper to enter into an investigation of this jury, now and at this present time, while acting together as a sworn jury in this case, and, as a consequence which must follow, to place the individual jurors upon trial before this court as having been improperly approached and influenced; and this court being of the opinion that all the circumstances of this case being taken together, namely, the unheard-of proceedings that have been shown to have been adopted in this court and cause by the parties thereto, that it is for the interests of justice, as well for the defendant as the people of the State of Michigan, and I say again, for the interests of all parties concerned in this case, that this jury which is in, perhaps through no fault of the individual members or a great majority thereof, yet still it is a questionable and peculiar position, and a position to warrant a searching investigation into their conduct, or at least of certain members thereof, -an investigation which this court does not deem it proper to be made at this time while they are jurors and in the active discharge of their duties as such. And the tendency possibly being to construe such action, if taken in the absence óf a conviction, of misconduct upon the jurors’ part, into an attempted coercion as to a verdict on the one hand, or upon the other to possibly prejudice the rights of one or other of the parties to this cause:
    “Therefore, in view of the situation in this case, this court feeling and finding as it does the foregoing to be the situation and the fact, this court has decided, being of the opinion that above all other things that a fair and impartial trial in this case, which is the right of the defendant as well as of the people, is not certain to be the result thereof, and that the result whichever way this case may now be determined by this jury may be and cannot well help but being questioned, and it being an elementary principle of law that in this State every person is entitled, not only under the Constitution and laws to the fairest and most impartial trial as a matter of right, but that it is a debt due to natural justice itself; and this court being so impressed and so believing, has resolved, although greatly regretting the necessity of his action, to discharge you gentlemen of the jury from the further consideration of this case. It being the court’s desire to have all trials in the court over which he presides so conducted that whatever the result, or whatever the verdict may be which is rendered in any cause therein pending, there can be no possible question as to its having been procured by undue or improper motive, or by the influence of any coercion or attempted coercion as the result of doing whatsoever, or of anything but a deliberate, fair, and honest judgment of the 12 honest men who have been duly tried and sworn to try the case intrusted to them, and who have deliberated thereon and fairly weighed the case, and concluded without bias or interference what verdict justice demands shall be awarded in the particular case before them; and so, being apprised of their duty, do, as good citizens, honestly discharge it.
    “Gentlemen of the jury, you are hereby discharged from the further consideration of this case, and the clerk of the court will enter the order. That will be all, gentlemem”
    The court thereupon entered the following order:
    “The court, Judge Phelan, having, on the 13th inst., entered upon an investigation, based upon the affidavits of Alfred F. Routhier, George Hanley, John R. Barlow, and William F. Giefel, .filed herein, which investigation was held privately by the court, and the court finding therefrom, after due and careful deliberation, that -the several persons sworn and sitting as jurors in this cause, have not all the necessary statutory qualifications required of jurors, for service in this court, that he doubts the competency of the persons sittifig herein to further serve, for the reason that he believes, beyond question, that several of said persons so sworn have been the recipient of improper overtures by parties interested in this cause; that it is the duty of the court to further continue such investigation as aforesaid entered into, and that while the jury are impaneled and sitting herein, it is impossible to continue such investigation as aforesaid, and do justice to the parties to this cause as well as to the court and jury. Thereupon it is ordered by the court, said defendant being present and accompanied by, his counsel, that the persons sworn as jurors herein be discharged from further consideration of this case.”
    Another jury was then impaneled, resulting in a ver- ■ diet of manslaughter as above stated. To these rulings of the court counsel for the defendant duly objected and excepted, and entered pleas of autrefois acquit.

      Charles T. Wilkins, for appellant.

      Ormond JT. Hunt, Prosecuting Attorney, and Walter M. Trevor, Assistant Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). The gravest and most important question in the case arises upon the action of the court in discharging the third jury, after the people had rested their case and the respondent had entered upon his defense. The record discloses no specific acts which showed a disqualification of any juror. In discharging the jury the presiding judge stated that “no direct proof of any wrong-doing had been presented to the court in sufficient volume to satisfy the court that any wrong had been actually perpetrated.” He also stated to the jury that they were an average body of men in intelligence, honesty, and ability. No jurors were examined as-to any misconduct, and nothing appears upon the record tending to show any misconduct upon their part. The record shows only the statement of the presiding judge, based on an ex parte investigation, in which it appears that neither the defendant nor his counsel were permitted to take any part, and the jurors were allowed no opportunity to defend themselves from any charge. Even under the language of the Constitution of Michigan (article 6, § 29), which is different from that of the Constitution of the United States and many other States upon the question of jeopardy, a jury impaneled, accepted, and sworn cannot be discharged except for inability to agree, or for some other overruling necessity, which courts hold to constitute a mistrial. People v. Taylor, 117 Mich. 583; People v. Jones, 48 Mich. 554. After a jury has been impaneled it may be shown at any stage of the trial that a juror has testified falsely as to his qualifications, in which case a juror may be withdrawn and the jury discharged. Simmons v. U. S., 142 U. S. 148. The court in that case quoted with approval the language of Mr. Justice Story in U. S. v. Perez, 9 Wheat. (U. S.) 579:

“We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge ; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.”

Mr. Justice Curtis, in TJ. S. v. Morris, 1 Curt. (U. S.) 37, said:

“It is a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case.”

A qualified jury is essential to constitute jeopardy. The court may, at any time during the progress of the trial, arrest it to determine the legal qualifications of a juror. If it be ascertained, upon an examination, that a juror was disqualified when sworn and accepted, or by subsequent conduct has become disqualified, the court may discharge the jury without prejudice to a new trial. Such conduct on the part of a juror is that overruling necessity essential to constitute a mistrial. In re Ascher, 130 Mich. 540.

In People v. Jones, supra, the plea of former acquittal showed no verdict, but did show that a jury was impaneled and proofs taken, and the court held:

“ Under all the authorities this entitled the defendant to a verdict one way or the other, and if the jury was discharged without verdict and without any overruling necessity this was a final discharge of the accused.”

Appellate courts will not interfere with the action of trial courts in discharging juries, where facts are found upon which such action can be based. But the facts must be found and placed upon the record. State v. Wiseman, 68 N. C. 203. The court cannot arbitrarily discharge a jury upon rumors of improper conduct, or of attempts to corrupt one or more of them. In the Ascher Case the trial judge made a specific finding of facts showing corrupt conduct on the part of some of the jurors, an utter disregard of the instructions of the court, and pre-existing bias on the part of some of the jurors in favor of the respondent contrary to their sworn statements when examined upon the voir dire, and that an officer in charge of the jury was made drunk by some of the jurors. Under such conditions the accused had not been in jeopardy. No such state of facts is found- here. No juror is found to be disqualified; neither is the entire panel found to be tainted. Rumor and suspicion are not sufficient; neither is the fear on the part of the trial judge “ that a fair and impartial trial is not certain to be the result.” Under the facts of this case, both the accused and the people were entitled to have th¿ case submitted to the jury. The accused was in legal jeopardy. No overruling necessity for the discharge of the jury had arisen. It follows that the conviction must be reversed, and the prisoner discharged.

"While it is unfortunate that the respondent shall escape punishment for his crime, it is essential, for the public safety, and for the protection of accused persons, to preserve those forms of procedure provided by the Constitution and the laws, and guaranteed to every citizen. While in the Ascher Case the trial judge entered upon an ex parte and private examination, as did also the judge in this case, and made his finding from such an examination, speaking for myself, I desire to say that I do not regard that as the proper practice. I think the examination should take place in the presence of the prosecuting attorney, the respondent;/ and his counsel, and the jury or jurors who are charged with misconduct. It is justice to a juror that he h'ave a hearing before a jury is summarily discharged because of misconduct charged against him.

2. While it is unnecessary to refer to any other of the errors alleged, w-e deem it important to refer to one. It is clearly the duty of the court not to discharge the jury so long as there is any reasonable probability that they can agree. The second jury in this case did not state that they could not agree, their only statement being that they had so far been unable to agree. The plain inference from this language is that the jury had not reached the conclusion that an agreement was improbable. The judge arbitrarily refused to ask them as to the probability of an agreement. No authority is cited which holds that the court may discharge a jury without ascertaining whether an agreement is probable. As to thelength of time a jury should be kept out, and what it is essential the record should show, the authorities are not agreed. The common practice has been, in this State, at least, to inquire of the jury as to their ability to agree, and the court is justified in accepting their statement that they cannot agree as proper evidence in determining the question. People v. Harding, 53, Mich. 481. Chief Justice Shaw stated the rule as follows:

“It has been held in modern times, though it was long doubted, * * * that where the jury, after being long kept together, cannot agree, where it is manifest that they have no reasonable prospect of agreeing, and no means remain but famine or exhaustion to compel them to agree, or where the powers of the court are - near terminating by the legal termination of their session,, the court, as a power necessarily incident to the due. and regular administration of justice, may discharge the jury without the consent of the prisoner, and again impanel a jury and put him upon his trial.” Com. v. Roby, 12 Pick. (Mass.) 496.

The jury had made no requ st to be called into the court-room. The presiding judgt sent for them after they had been out only about four hour A and discharged them upon the sole statement that so far ihey had been unable to agree. Whether this would be fetal to the conviction we need not determine. We discuss the matter in order to show what we believe to be the proper practice, as a guide in future cases. The practice indicated is justice to the accused, to tbe jurors, and to the people.

Conviction reversed, and the prisoner discharged.

McAlvay and Blair, JJ., concurred with Grant, J.

Carpenter, C. J., and Moore, J.

We concur in the first proposition discussed in the foregoing opinion. As this disposes of the case, we think it unnecessary to express any opinion respecting the second proposition.


author: Blair, J.

text:
    PROCTOR v. HOBART M. CABLE CO.
    1. Evidence — Letters—Admissibility—Part of Series.
    Where defendant, on cross-examination of plaintiff, introduces several letters forming part of the correspondence between the parties relating to the-matter in issue, plaintiff is properly allowed to introduce letters answering those introduced by defendant, and others of the series bearing upon the good faith of the claims made by defendant as to the matter in controversy.
    2. Accord and Satiseaction — Part Payment — Eefeot.
    Where an employé claims damages for his discharge in violation of contract, and, in response to a request for salary due for a previous month, he is sent a check for unpaid salary up to the date of his discharge, the acceptance and use of such check does not constitute a satisfaction of his entire claim, there being no dispute as to the time paid for by the check.
    3. Trial — Instructions—Requests—Necessity.
    It is the duty of counsel to correct apparent misapprehensions of the court as to counsel’s contentions by appropriate requests, and where the requests presented may fairly be interpreted in accordance with the court’s understanding of counsel’s position there is no error in refusing them, the subject thereof having been fairly presented in the general charge, in accordance with the court’s understanding of the issues.
    Error to Sanilac; Beach, J.
    Submitted May 1, 1906.
    (Docket No. 73.)
    Decided September 20, 1906.
    Assumpsit by William H. Proctor against the Hobart M. Cable Company for breach of a contract of employment. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Avery & Walsh, for appellee.
   Blair, J.

Plaintiff, a traveling salesman in the employ of defendant corporation, brought suit against it in justice’s court, filing the following bill of particulars of his claim:

“Feb. 2,1903.
To balance due on Dec. 1902 salary and expenses.-_______ $93 60
To balance due for January, 1903, and as damages for breach of contract mentioned in declaration........... 250 00
Total — .................................................$343 60
Credit by notes received from A. H. Becket______________ 135 00
Balance................................................$208 60”

Plaintiff recovered judgment before the justice, and on appeal in the circuit court. The case is before us upon writ of error prosecuted to correct alleged errors in receiving certain letters in evidence, in refusing requests to charge, and in charging the jury.

Plaintiff claimed that in August, 1902, he made a new agreement with defendant for increased salary, performance of which on his part was prevented later by his being wrongfully discharged by defendant. Defendant denied that any new agreement was made, and contended that if such agreement was made, plaintiff’s conduct was such as to warrant his discharge. On December 11, 1902, defendant wrote to plaintiff a letter containing the following expressions:

“For several months past we have missed your old-time enthusiasm and earnestness in our behalf, while we have not only increased your salary but have signified our willingness to have you retire from our employ and give you any assistance in our power. In return for our extreme kindness, approaching favoritism, we are receiving from you indifference approaching sullenness. * * * We hope with a new field and new associations, you will give to your work your old-time vigor and enthusiasm. At the end of your present route on the 20th instant, please report to our office at Chicago, prepared to make this your headquarters.”

Plaintiff’ went to Chicago to confer with defendant’s officers about this letter before completing his route. Plaintiff testified that the result of this meeting was that he agreed with Mr. Cable, president of defendant’s company, to accept new territory, and that he was to be permitted to go home and visit his family till the end of the following week. Mr. Cable testified:

“ He finally came in on the 22d of the month under the influence of liquor, very strongly so, and in a very obstreperous and boisterous way he told the officers of our company if we wanted anything more to do with him, his headquarters were at the Victoria Hotel, where he could be seen with his attorney. We had prepared a route for him, and asked him to take it, and give us the same good service that he had the first year he was in our employ. He refused to take the route, disobeyed our requests, and finally left our office, saying he had established headquarters at the Victoria Hotel; that he could be found there with his attorneys if we had anything more to say to him.”

On December 26, 1902, defendant wrote the following letter to plaintiff:

“ On Dec. 11th we advised you at Ludington, Michigan, to report to Chicago on the 20th of December after you had completed the route which we had given you. You did not regard our request, but cutting out two important-points, came here direct from Owosso, reaching here on the 19th. Your talk and conduct here was most deplorable, showing us conclusively what we have for a long time suspected, i. e., your entire lack of sympathy with us in our business and when in our office on December 22d, you openly and in a most offensive manner refused to be guided by our instructions and declared to us that if we wanted you, you could be found at your self appointed headquarters at the Victoria Hotel and that you would not comply with our wishes, then and at that instant your connection with this company ceased.”

January 8th plaintiff wrote to defendant:

“ Oh December 81st I wrote you, requesting you to send check for December salary. Have not heard from you. Unless I hear from you by return mail, I will place the matter in the hands of my attorneys at Chicago.” •

On January 9th defendant replied:

“ Please find herewith our check for $158.44, settlement in full with you up to the time you left our employ, the night of December 22d. We deduct from your expense book your charge for December 28d, 24th and 25th, amounting to $21.05. Kindly sign the inclosed voucher, and return to us.”

A number of letters, forming part of the correspondence between the parties, were introduced on cross-examination of the plaintiff by defendant’s counsel, and some of the letters objected to were in answer to the letters put in by the defense. Others were competent as bearing upon the good faith of defendant’s statement in the letter of December 11th that, “for several months we have missed your old-time enthusiasm,” etc., and were being treated with sullen indifference. As parts of a series of letters relating to the period under consideration and covered by other letters, the letters were admissible. 3‘ Wigmore on Evidence, § 2104; 1 G-reenleaf on Evidence (16th Ed.), § 201.

Assignment of error No. 7 is based upon the refusal of the court to direct a verdict for defendant for the reason that plaintiff’s conduct justified his discharge. There is no merit in this assignment. The facts were in dispute. If the jury believed plaintiff, the differences between the parties were harmonized, and a new arrangement of his territory made.

Assignment No. 9 is based upon the refusal of the court to give defendant’s third request to charge, viz.:

“ It is shown in this case that on the 9th day of January the plaintiff received a check from the defendant, stating the same to be in full for services. That he used said check, obtaining the money thereon. The receipt and use of the check under the circumstances and the contents of the letter which inclosed it would operate as a full satisfaction of the claim of the plaintiff and he cannot,, therefore, maintain this action.”

It appears from the letter of plaintiff and the reply of defendant that the check was only intended to cover the salary for December, about which there was no dispute. It would have been improper to give the instruction requested. Detlaff v. Manufacturing Co., 144 Mich. 342.

Assignments 13 and 18 are based upon the refusal of the court to give defendant’s seventh request, viz.:

“ In no event in this case can the plaintiff recover more than his salary for the month of January, together with such balance as may be found due him for services during the month of December. This action was commenced on the 2d of February following, and the limit of recovery is the amount that there was due to plaintiff, if anything, at the time of the commencement of this action,”—

And the instruction to the jury given as follows:

“If you shall find that the plaintiff is entitled under the testimony, and under these instructions, to a verdict he will be entitled to the sum of $226.86, which includes the interest.”

It is argued that even if the acceptance of the check was not a satisfaction of the entire claim, it was a discharge of the amount due on December 22d and that the amount due for the remaining nine “days of December and the month of January would be $204.43 instead^ of $226.86. There is force in this argument, and if the request was intended to, and did fairly, present this question, it might require a reversal of the judgment. But we think the court would have been justified in interpreting this request as meaning simply that the jury would not be warranted in awarding damages for salary accruing after the commencement of suit and. as so understood, the charge gave the substance of the request. Early in the charge, the court said:

“He, therefore, claims for the salary under the claimed agreement for the month of January and the balance of December salary and some expenses, the items are here and practically undisputed, if the plaintiff shall prevail in the case.”

If defendant intended to claim by his request that the expenses, amounting to $21.05, were disputed and 'disposed of by the check, he should have corrected the evident misapprehension of his position on the part of the court. These are all of ■ the assignments which, in our opinion, require discussion. The court submitted the opposing claims of the parties to the jury in a. very clear, comprehensive, and impartial charge.

We find no prejudicial errors, and the judgment is affirmed.

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


text:
    WILSON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Master and Servant — Personal Injuries — Assumption oe Risk — Railroads.
    A railroad brakeman assumes the risk of being injured between a cattle chute near the track and a passing car, where he is familiar with the location of the chute and it is apparent to - him in the exercise of ordinary care that the'space between the chute and an ordinary car is not sufficient for him to pass, though he does not know the precise distance by measurement.
    2 Same — Contributory Negligence — Presumption.
    Where a railroad brakeman is killed by being crushed between . a cattle chute near the track and a passing car, he being familiar with the surroundings and there being no necessity for his going between the cars or on the side of the track on which the chute is situated, and the situation being such that a casual glance would apprise him of his danger, the presumption that he was in the exercise of ordinary care is negatived.
    Error to Calhoun; Hopkins, J.
    Submitted May 2, 1906.
    (Docket No. 76.)
    Decided September 20, 1906.
    Case by Belle H. Wilson, administratrix of the estate of William Earl Bryant, deceased, against the Lake Shore & Michigan Southern Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Dallas Boudeman, for appellant.

      Hatch & Anderson, for appellee.
   Blair, J.

Plaintiff brings this action to recover damages for the death of William Earl Bryant, alleged to have been caused by the negligence of the defendant, on October 20, 1904. The negligence charged against defendant in the declaration is:

“That it built, maintained, and permitted to remain a cattle chute so near to one of its tracks in Addison, Mich, (the same not being a depot'or freighthouse in its yards at said place), that while plaintiff’s intestate was in the performance of his duties, as aforesaid, and without any fault or negligence on his part, while working on the ground on the side of said car nearest to said cattle chute, that’ he would be crushed between said cattle chute and said car, as there was not sufficient space between the car so aforesaid on the track of defendant company and said cattle chute to allow the body of plaintiff’s intestate, while on the ground between said cattle chute and said car in the performance of his duties, to pass between said car and said cattle chute without crushing and killing him.”

At the time of his death, Bryant was a brakeman in the employ of defendant, of several years’ experience. Bryant had worked on this particular branch of defendant’s road for about a year, though only a part of the time on the east end passing through the village of Addison. Near the side track at Addison, where Bryant was killed, and on the south side thereof, stood a cattle chute which was so constructed that there was only six inches of space between its cross-piece,’ an oak strip four by six inches, fastened on the front of the chute about the height of a man’s breast, and the side of the gondola cár by which it is claimed Bryant was crushed. The spacó between the oak strip and the side of an ordinary box car was about nine inches. There was evidence admitted under objection and exception that it was not consistent with good railroading to build the chute so close to the side track and that it was the only chute along the line which was so close.

On the day in question, Bryant was in charge of the switching operations at Addison. Schneider, the rear brakeman, called by plaintiff, testified:

“I know of Mr. Bryant working around that chute from time to time. Our train would stop there. Addison was a station which did considerable switching. This chute was near the side track, not the main track. * * *
Q. How frequently would it occur that you would switch cars there when you and Bryant were together F
“A. About every day. * * * This cattle chute that I am speaking about was easily seen to anybody that looked toward it. There was no obstruction to the side of it, except that cars would stand in there. When a person ■came on the side of the car that the chute was on he could .see that very easily, and I should think he could see as the cars came up by it how much space there was between the cattle chute and the cars. I never had any difficulty in noticing that place, if I looked at it.
Q- What do you say as to whether Mr. Bryant or ■any one else who wasi on the side of those cars, if they wanted to see how much space there was between the car and that chute would have any difficulty in seeing it, in your judgment ? ,
“A. I don’t think they would, in my judgment. * * *
Q. That was very easily to be seen that it would not clear a man on the side of a car, wasn’t it, when you were looking at it F
“A. Yes, sir.
Q. Anybody could see it, couldn’t they ?
“A. If they were looking at it.”

Louis Rose, a section foreman in defendant’s employ, called by plaintiff, testified:

“ Had seen Mr. Bryant on that part of the road several times.
Q. Had you seen him at this particular cattle chute ?
“A. I had seen him doing work on that same track. Had seen him backing in cars, setting out cars and doing switching. It is a place that cars have to be changed every day.there. That was our usual switching place and I have seen him at this work several times before that. I noticed usually that he was the one that had charge of the switching when the train came in. That he was one of the brakemen that had the head management of it, that went down one day and back the next. * * *
Q. Was there any difficulty of a person on that side of the train of cars seeing the space between the car and ■ the cattle chute if he had looked in that direction ?
“A. No, sir.
Q. That was easily seen, was it ?
“A. Yes,'sir.”

Jesse C. Lyon, a witness called by plaintiff, testified that he was a member of the coroner’s jury at the inquest on the body of Bryant:

“His bruises were through the chest and on the side. One arm was broken two or three times. Noticed no marks on any other part of the body. On that day, in company with the coroner and the jury, I went to the railroad station. Looked over the place where the accident happened, the car, and so on. Saw the gondola car. It was standing perhaps a car length west of the chute. I saw the gondola car at one time in front of the cattle chute. The jury ran the car right up and made measurements right there. * * * We pushed the gondola car down there. When pushed, it came quite close to the chute.
Q. Any trouble seeing that ?
‘‘A. No, sir; when we shoved the car down opposite the chute I was on the left of the car. As we shoved it down, I could see it was quite close to the chute.
Q. How far do you judge before you measured it that it was coming to the chute ?
“A. Six or eight inches.
Q. Could you easily see it would come within six or eight inches ?
“A. Yes, sir.
Q. You could easily see that a car length away ?
“A. Yes, sir. * * * I was looking at this car when we pushed it back opposite the chute. * * *
Q. There would not have been any trouble for any one who was paying any attention to the looking in that direction to see that it was coming close there ?
“A. No, sir.”

Immediately before the accident, the train crew had placed an Empire Line car near the cattle chute. Schneider testified:

“One end I should judge was right there next to the chute. The east end of the car extended beyond the chute.
Q. So that when you came to back with your coal car which you were going to hook onto the Empire Line car, you would say, would you, that that Empire Line car, some part of it, stood opposite this chute ?
“A. Yes, sir.
Q. Which end did you back your coal car against; that is, in which direction were you going when you backed your coal car ?
“A. We were going west. It was between these two cars that I have spoken about. That is, between the Empire car which stood opposite cattle chute and this gondola car, which was the last car of the part of the train that we was backing down to the Empire car that I saw Mr. Bryant pass when I saw him last. At that time the Empire Line car was standing still, and the engine with the other cars that I have mentioned, of which the gondola was the last, was passing toward the Empire car. When Mr. Bryant passed between the two I should think there was about two car lengths of space between them. That would be about 60 feet. At that time the locomotive with these cars attached were moving about as fast as a man could walk. When Mr. Bryant went through between these cars I should judge that he went nearer to the Empire Line car than he did to the gondola or the K. & M. car. I couldn’t tell exactly how far he was away from car. * * * On the Empire car I think there was a Jenney coupler, but I don’t remember what kind there was on the other. They were automatic couplers, and we didn’t have to look after coupling them at all. I don’t know the reason why Mr. Bryant would have to go across to look after the coupling. Don’t remember what the coupling was that we were going to pull out. As the cars were pushed back by the locomotive, against this Empire car; it didn’t shove the Empire car any more than ordinary, and the automatic coupler worked, and it pushed the train far enough west for me to couple onto the car that I was to couple to the west of there, and I coupled it. I then signaled to pull out off of the side track, and got up on top to let off the brake. I think I got onto the car that I coupled onto if I remember right. I didn’t see Mr. Bryant on the car after I saw him pass there. So far as I know he was on the ground. After I had gotten upon the car, I think we went bwo or three car lengths before I saw anything of Mr. Bryant. The car was then going not very fast; but the ordinary gait that we would pull out of a side track. The first I noticed of Mr. Bryant as I bent down to let off the brake, I happened to notice him lying there, and I swung the engine, right up. When we stopped, my car had got about opposite the cattle chute. I found Mr. Bryant near the west post. Can’t say exactly whether he was lying up against the west side or the center of it.
Q. Were his feet straight out toward the track or were they out directly west from the post ?
“A. Well, they were pretty near straight, I should judge.
Q. Then at that time he was on the other side of the cattle chute from where he was when you saw him go across this track ?
“A. Yes, sir; the cattle chute is about eight feet wide. I didn’t hear any outcry.”

At the close of plaintiff’s proofs, defendant moved the court to direct a verdict in its favor, which was denied, whereupon defendant called its train dispatcher to prove the signature of Bryant to his application for employment and a photographer to prove certain photographs made by him of the cattle chute and its surroundings, and, thereupon, the proofs were closed. Defendant’s counsel presented numerous requests to charge, several of which required a verdict to be directed in its favor, on the grounds that plaintiff had assumed the risk of what occurred, and that he was guilty of contributory negligence. The court declined to direct a verdict and submitted the case to the jury, resulting in a verdict for plaintiff. Defendant has brought the case to this court for review.

The facts in this case are practically undisputed so far as the cause of action is concerned. Plaintiff’s intestate was familiar with the location of the cattle chute, and if he exercised ordinary care in the performance of his duties, he must have known that there was not sufficient space for him to pass between the chute and an ordinary freight car. The fact that he may not have known the precise distance by measurement did not relieve him from assuming the risk. That doctrine was repudiated by this court in Pahlan v. Railway Co., 122 Mich. 233. The risk was an obvious one which, under our previous decisions, plaintiff’s intestate must be held to have assumed. Phelps v. Railway Co., 122 Mich. 171; Pahlan v. Railway Co., supra; Bauer v. Foundry Co., 132 Mich. 537; Bradburn v. Railroad Co., 134 Mich. 575.

Plaintiff’s intestate was directing the movement of the train in making the coupling. The west end of the stationary car was either opposite to or a few feet east of the east end of the chute, where he had caused it to be placed. He was approaching it at midday on the south 'side of the track. There was no obstruction to his view, and a casual glance in the direction in which he was walking would disclose the space between the stationary car and the chute. Mr. Bryant was not on the side of a car. He was on the ground where he had full control of his own movements. He knew that the gondola car was approaching, .that it was wider than the box car, and what the effect would be of its striking the stationary car. The record does not disclose what his purpose was .in crossing to the south side of the track, or how he came to get between the cars and the chute, or which car crushed .him, and plaintiff relies upon the presumption of due care ■obtaining in the absence of evidence to the contrary.

Schneider testified that he knew of no necessity for Mr. Bryant’s going on the south side of the track. The two cars wfere fitted with automatic couplers, and if plaintiff’s theory should be accepted, that Mr. Bryant went across the track to open the knuckle of the coupler, this would not require him to go between the cars.

“ With the automatic coupler there is nothing for the brakeman to do except to open the knuckle. That is.necessary sometimes on certain ones. They are arranged so that you don’t have to go between the cars by an operating lever. This is a lever that runs on the end of the car. * * * The lever on the gondola was on the north side and the other on the south side. I didn’t see Mr. Bryant do anything before he went across. * * * He might have tried this lever and then went across to operate this other lever for all that I know, but I didn’t see him.”

The coupling was actually made and the only fact lacking in the history of the accident is as to the manner of Mr. Bryant’s getting between the ear and the chute. The surrounding circumstances, however, disclosed by the record, negative the presumption that he was in the exercise of due eare. Under the facts of this case, Mr. Bryant could only have put himself in a position to be injured by the chute by failing to exercise ordinary care for his own safety. ,

The judgment is reversed.

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


text:
    O’NEILL v. NORTHERN ASSURANCE CO. OF LONDON, ENGLAND.
    1. Appeal and Error — Review—Directed Verdict — Propriety.
    On review of a judgment on a directed verdict, the court considers the testimony in the light most favorable to the plaintiff in error.
    2. Fire Insurance — Brokers—Agency for Insurer — Cancellation of Policy.
    Two of several fire-insurance companies, represented by a single agent, canceled their policies on plaintiffs’ building, whereupon the agent as broker procured insurance through another agency without notifying plaintiffs of the substitution of companies. Defendant, one of the later insurers, subsequently canceled its policy, but notified only the broker. Held, that the broker was the agent of the insurer, and not of the insured, and had no authority to consent to the cancellation of the policy.
    3. Same — Land Contract — Purchaser’s Duty to Insure.
    Where a land contract obligated the purchaser to keep the building upon the land insured for the benefit of his vendors, and he, with the knowledge of his vendors, appointed an agent to represent him in that respect, who procured insurance and was notified of its cancellation, the question whether he had authority to and did consent to the cancellation should be left to the jury.

      Error to St. Clair; Tappan, J.
    Submitted May 2, 1906.
    (Docket No. 80.)
    Decided September 20, 1906.
    Assumpsit by John G. O’Neill and others against the Northern Assurance Company of London, England, on a policy of insurance. There was judgment for plaintiffs on a verdict directed by the court, and defendant brings error.
    Beversed.

      Frank T. Wolcott (Myron H. Beach, of counsel), for appellant.

      Cady <& Crandall (Phillips & Jenks, of counsel), for appellees.
   Blair, J.

Plaintiffs brought this action to recover for a loss by fire of property insured by defendant in a Michigan standard form policy, issued March 1, 1904, to plaintiffs, John G. O’Neill, George W. Moore, Fred J. Dixon, and W. L. Jenks.' Attached to and forming a part of the policy was a rider containing the following:

“Arthur L. McCormick having agreed to purchase the above described property under contract, loss, if any, payable to the Commercial Bank, as its mortgage interest may appear, second to John G. O’Neill, Fred J. Dixon, W. L. Jenks, and George W. Moore, as their contract interest may appear, balance, if any, to Arthur L. McCormick.”

The land contract contained a provision that McCormick should “keep the buildings erected upon said property insured in companies to the satisfaction of first parties to the amount of at least $10,000, for the benefit of the ■said first parties.”

The defense was that the policy had been lawfully canceled before the fire, which occurred on July 22, 1904. The circuit judge held that n'o valid notice of cancellation prior to the loss had been shown, and directed a verdict for plaintiffs. Defendant contends that the question should have been submitted to the jury. This contention involves a consideration of the testimony in the light most favorable to the defendant. It appears that Arthur L. McCormick, the vendee in the land contract, was absent from Port Huron most of the time, and had authorized his brother, Byron J., to take charge of the theater building and the insurance thereof, paying whatever premiums were paid. Some time before March 1, 1904, an application was made by Byron J. McCormick for insurance upon the theater and' its contents, to Carlton & Co., of Port Huron, who wrote two policies in companies represented by them. The companies canceled them, and, thereupon, Carlton & Co., as brokers, applied for the insurance to W. F. Davidson, of Port Huron, who was the local agent of defendant. Davidson executed the policy sued upon in this action, and another in the Queen Insurance Company, for $1,000, and delivered them to Carlton & Co., who, in turn, delivered them to plaintiff Dixon on or about March 1, 1904. Mr. Dixon handed this policy to Mr. Murphy, another insurance agent, for the purpose of having it made uniform with certain other policies, with the understanding that it was to be returned to him. Mr. Murphy retained the policy till it was obtained by Miss Ferrier from his stenographer. Mr. Davidson testified that Mr. McNutt did the insurance work for him; that his policy register showed the following entries concerning the policy in suit:

Name and residence of assured, John G. O’Neill and others; commencement of risk, 1st day, third month, year, 1904; term, 12 months; expiration of risk, 1st day, third month, 1905; amount of insurance, $1,000; rate $2.50; amount of premium, $25. The register also shows this policy was canceled on the 31st of May, 1904, and we received return premium of $6.25. The register shows that I received that earned premium from Carlton & Company, who are insurance agents in town.”

Mr. McNutt testified:

“ I looked after Mr. Davidson’s insurance business on March 1, 1904.. The handwriting on the policy is not mine, but is Miss Wellman’s. She was employed in Mr. Dávidson’s office at that time. That policy was issued under my directions upon the order received from Carlton & Co., and the policy was delivered to Carlton & Co.; my impression is that it was delivered by Miss Wellman in person. I kept the register at that time. I paid the premium to the Northern Assurance Company, and extended credit to Carlton & Co. for the insurance. Carlton & Co. paid me. I made the entry of cancellation on the register, and it is in my writing.. I made the entry that the Northern Assurance Company’s policy was canceled, because it is my custom in keeping my records to enter the date the policies are actually taken up and canceled. All that I had to do with the taking up of the policy and canceling it was to notify Carlton & Co. that we wanted it taken up, and this is the date that we actually received it in our office. * * * . I did not, at any time from the 1st of March up until the 22d of July, the date of the fire, deliver any notice of any kind upon John G. O’Neill, William L. Jenks, George W. Moore, Fred Dixon, or the McCormicks that we wanted their policies canceled, or that we could cancel them. * * * I asked personally that the policies be surrendered through the parties that we brokeraged the business, Carlton & Co. I gave verbal notice through the people whom we brokeraged the business, I think it was 'through the telephone. If I remember correctly, I think it was to Grace Ferrier to whom I talked, and on or about the 31st of May. It would not be over a matter of two or three days from the day I got the policy, and I think it was the same day. When I received the policy, I marked it canceled May 31st on our register, and in a day or two sent it away through the mail. I gave no further notice of any kind, either written or verbal, to any persons whatsoever. ”

Miss Ferrier testified that she was cashier of Carlton & Co.: .

“I think the application was made by Byron J. McCormick. We wrote two policies, and oúr companies ordered them canceled after they were written, so we gave them to W. F. Davidson & Co. to write. We obtained two policies from Davidson & Co. in the Northern Assurance Company and the Queen Insurance Company; one of these policies is Exhibit 1. Upon obtaining the policies, I delivered them to Mr. McCormick or to Mr. Dixon; I think it was to Mr. McCormick. The premium was not paid, although the payment of it was requested several times from Mr. McCormick. His reason for not paying it was that he did not have the money. Those two policies were canceled the latter part of May for the nonpayment of the premium. I received a telephone message from Mr. Mc-Nutt, formerly in Mr. Davidson’s office, that the policies had been canceled and we had not the policies in our possession. I called upon Mr. McCormick by telephone and asked him if he had the policies. I know Mr. Byron J. McCormick, and know his voice. He answered over the telephone. I told him over the telephone that the Northern and Queen requested cancellation of the policies, and he said he had not the policies in his possession; that Mr. Murphy had them. He said I could get them from Mr. Murphy. I telephoned to Mr. Murphy and told him I wanted the policies and asked him if he had them. He said he had, and I asked him when I could get them. He said right away, so I went over to the office and Mr. Murphy was not there, but he had left the two policies out on the stenographer’s desk and I got the two policies left for me from the stenographer in his office. * * *
“ I took the policies from there and with them I went to Mr. Davidson’s office, and they canceled the policies; then I went to Mr. McCormick’s office before I went to my own office. I had the two policies in my hands. I said to him: ‘ Here are the two policies which the company ordered canceled,’ and he wanted to know what for, and I said that ‘ one reason is for the nonpayment of premium and that is the way all of your insurance will go unless you pay up your premium. You are out $2,000 insurance now.’ He did not say anything. After showing them to Mr. McCormick, I took them over to our office and from there I took them to Davidson’s office, where he canceled the policies and mailed them to the companies, I suppose. I delivered them to Mr. McNutt, who is in charge of his insurance business.”

On March 5, 1904, Carlton wrote to and plaintiff Dixon received a letter containing the following:

“On March 1st, we wrote two policies — Queen No, 1,467,506 for $1,000.00 — Prem. $25.00; Northern No. 765,485 for $1,000.00 — Prem. $25.00. We have had to remit to our companies for these policies, and we certainly must be reimbursed. Unless these policies are paid for by Tuesday, March 8, 1904, we will be compelled to cancel same for nonpayment of premium.”

Mr. Dixon testified:

“I have had some talk with Mr. McCormick about this matter, but I do not know as he said anything about placing the policies in Mr. Murphy’s hands. Mr. McCormick was interested as I am in the insurance. He had more authority than I had in regard to the insurance. He placed it all originally, and was in charge of it at this time. * * *
‘ ‘ All the insurance on this property was placed by McCormick, but I had to look after it. I did not pay any of the premiums for any of the insurance on this property, nor, so far as I am aware, did any of the rest of the plaintiffs in this suit, outside of the McCormicks. I had a list of the insurance in force at the time of the fire, made by myself, as I had possession of all the policies at one time. I did not have them all at the time of the fire. I had part of them. I do not know where the rest were. I presume Mr. Murphy had them. I could not say whether the Mc-Cormicks had any of them or not. Mr. Murphy was acting for me with the policies that I delivered, but I do not know what his relations were with Mr. McCormick. I was not the whole thing, but just one of four, and when I say he was acting for me, he was acting for all of them who were interested.”

On June 1, 1904, Carlton & Co. mailed to Byron J. McCormick the following letter:

Dear Sir: We have a policy on the Edison Theater written in July, which has not been paid for. We also have two policies written by W. F. Davidson for us on the theater, for which we are responsible for the payment of the premium. Unless these policies are paid for by Saturday [which was June 4th], we shall notify Mr. Davidson that he is authorized to cancel the policies, and we shall also cancel all the policies which this agency has written on the theater.”

The position of counsel for defendant is stated in their reply brief, as follows:

‘‘It is not claimed by defendant, appellant, that any notice of cancellation was given directly to the plaintiffs themselves, nor is it claimed that the letter of March 5, 1904, to Dixon, one of the plaintiffs, operated as a cancellation. . This was not the position assumed in appellant’s original brief and is not contended for now. It is contended, however, that the evidence in this case establishes the fact that Carlton & Co., the brokers who obtained the insurance, were thereafter constituted the agents of the plaintiffs, appellees, to cancel and surrender the policy, which they did; and, further, that even if this court should hold that there was not sufficient evidence appearing in this record to submit to the jury upon that question, yet, it is conclusively shown by the evidence that Byron J. McCormick was the agent of the plaintiffs and had authority to receive notice of cancellation and to agree to the cancellation and surrender of the policy.”

There is no evidence in this record which would warrant the inference that Carlton & Co. were “constituted the agents of the plaintiffs to cancel and surrender the policy.” So far as the testimony discloses, McCormick dealt with Carlton & Co. solely in the procuring of the insurance. The insurance was originally written in companies which Carlton & Co. represented. When those companies canceled the policies, Carlton & Co., without the knowledge of McCormick or the plaintiffs, so far as the record shows, procured the policies through Davidson. McCormick had no dealings with Davidson till after the contract had been made, when he received the following: letter:

“Port Huron, Mich., March 3, 1904. “Mr. Byron J. McCormick,
“Manager of Edison Theater Co.,
“ Port Huron, Mich.
“Dear Sir: I have been called upon to brokerage 12,000 insurance on your theater, and the same is bound. Yesterday noon one of the State representatives was in the office and I called his attention to the fact that we had bound his company, and he immediately went to look over the risk. [Then follows a specification of the objections, and a request that the objectionable features be remedied.] Trusting you will comply with this letter and will report to me so that I may say to the company these minor repairs have been attended to.
“W. F. Davidson,
“F. G. M.”

The premium was to be paid to Carlton & Co., who made frequent demands for its payment. Under such circumstances, they were agents of the defendant. Pollock v. Insurance Co., 127 Mich. 460, 132 Mich. 225; Bliss v. Insurance Co., 134 Mich. 212. Even if it should be held that Carlton & Co. procured the policy as agents for the plaintiffs, there is no evidence that they had any authority to act for the plaintiffs with reference to it after they had procured it and turned it over to the plaintiffs.

The remaining question in the case arises out of the contention that McCormick had authority to receive notice of and agree to the cancellation and surrender of the policy. We are of the opinion that this question should have been submitted to the jury. Under the land contract, it was the duty of Arthur L. McCormick, • not merely to procure insurance, but to keep the property insured and pay the premiums therefor for the benefit of his vendors, and the plaintiffs understood that Byron J. McCormick represented and was acting for Arthur L. McCormick in this regard.

Mr. Dixon testified tha,t Byron J. McCormick—

“Had more authority than I had in regard to the insurance. He placed it all originally and was in charge of it at this time. * * *
“I did not go to Mr. Murphy with the policies, but he, or some one from his office, came to me for them. * * *
“We wanted the clauses in the policies made uniform as we desired and'he, Mr. Murphy, was looking after that. He had the printed form I guess. He was under Mr. McCormick’s instructions as much as he was under mine.”

We cannot say, as a matter of law, that a jury would not be warranted in finding from this record that the whole subject of procuring, maintaining, and paying for insurance was committed to Arthur L. McCormick by plaintiffs and that they understood that Byron J. was acting for them in the place of his brother Arthur, whom, by their contract, they had made their agent for that purpose. If the jury should find that Byron J. was the agent and representative of the plaintiffs, with general authority over the insurance, and, further, should find that Miss Ferrier had the conversations with McCormick and Murphy, and obtained the policies as testified by her, they would be warranted in finding a valid surrender of the policies for cancellation.

The judgment is reversed, and a new trial granted.

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