text:
      In re ESTATE OF TELLER. MADDEN v. TELLER.
    Wills — Undue Influence — Question of Pact.
    Evidence, in proceedings for the probate of a -will, tending to show undue influence exercised upon the mind of the testator, held, to present a question of fact for the jury, and judgment for contestant affirmed.
    Error to Livingston; Miner, J., presiding.
    Submitted January 10, 1916.
    (Docket No. 78.)
    Decided March. 30, 1916.
    The will of Eliza Teller, deceased, was presented for probate by Bert Skinner, executor. From an order admitting the same to probate John Teller, who contested the probate of the instrument, appealed to the circuit court. Judgment for contestant. Proponents, Ella Madden and others, bring error.
    Affirmed.

      Chapman, McNamara & Matthews, for proponents.

      W. P. Van Winkle & Son and Louis E. Howlett, for’ contestant.
   Moore, J.

This is a will contest. The will of Eliza Teller, deceased, was offered for probate in the probate court of Livingston county, and the case was duly certified to the circuit court upon the application of John Teller, contestant, according to the provisions of' Act No. 238, Pub. Acts 1911 (3 Comp. Laws 1915, §: 14145, note).

Mrs. Teller died April 12, 1914, at the age of 63,, leaving five children, John Teller, Ella Madden, Mary Skinner, Mabel Teller Osborn, and Edward Teller. Her husband died some years previous. The deceased owned some personal property at the time of her death, and a farm of 100 acres in Livingston county. She left two wills, one dated November 19, 1908, and the will involved here, dated December 24, 1913. The contest was based upon the claims of mental incompetency and undue influence. A perusal of the two wills will show that in the second will John Teller, the contestant, was left out as one of the residuary legatees.

The circuit judge took the claim of mental incompetency away from the jury, but submitted the question of undue influence.. The jury found against the will. The case is brought here by writ of error, and the single question is whether under the testimony the case should have been submitted to the jury upon the question of undue influence.

'■ The question involved is one of fact. John Teller was the oldest son. His father was not a successful business man. , After his death John managed the farm successfully for a number of years, and the record indicates that his mother and he were very friendly until the fall of 1913. There is nothing to indicate ill will between him and the other children until the summer or fall of 1913. It is the claim of J ohn that the work he did upon the farm was upon the understanding that his mother was to pay him for it when she was able, and that, if she did not pay him, he was to have his pay out of her estate. He further claims that in the fall of 1913 he called to see his mother; that his brother, Ed, and his sister Mrs. Madden were there, and the buggy of his sister Mrs. Skinner was near the barn, though he did not see her ; that his mother had been crying, and that the rest of the family did not speak to him, though he spoke to them; that soon after he learned his mother had made a bill of sale of all her personal property to her son-in-law Mr. Skinner, and was offering the farm for sale for cash, and was cautioning those to whom she offered it to say nothing about it, as she did not want John to know about it. After learning this, and on December 4, 1913, he commenced a suit in chancery making his mother, his brother and three sisters parties, averring that they were conspiring to induce his mother to dispose of her property and thus defeat his claim to which reference has already been made. On the 18th of December, 1913, all of the defendants joined in an answer to this bill of complaint admitting the services of John, but claiming they were rendered under a contract and had been fully compensated for, and a receipt had been given in full by John. Attached to the answer was a copy of the will of November, 1908, and a reference to it in the answer as follows:

“She farther shows that said will is on this date in force, and has not been changed or revoked by any codicil or subsequent will, and that she has no intension of revoking or changing the same unless it should become necessary in fairness to her other children to deduct something from the share of which complainant will be entitled in her property at her death on account of the unnecessary and unreasonable cost and expense that he has caused her to pay and bear on account of this unfair and wholly unnecessary litigation brought by him in a manner which seems to this defendant to be extremely cruel and not becoming a son whom his mother has always treated in the most kindly manner and with the highest regard and respect.”

Six days after this answer was signed by her she appeared before the solicitor who drew it, with her daughter, Mrs. Skinner, and made the will of December 24, 1913. In the first will she named John Teller her executor; in the second will she named her son-in-law Bert Skinner as executor. In the second will occurs the following:

“I am at this time fully mindful and aware of the existence of my son, John Teller, and of his financial condition and of the various properties I have given him before this date. I am fully aware of all claims and obligations that he as my son has shown upon me his parent, and I have made the above will of my own accord and without being influenced to do_ so by any other person. Neither has any clause of this will been suggested to me, but I have thought the matter all over and come to the above conclusion because in my judgment it is right and fair according to- the deserts of all parties concerned. And I farther state that I am not moved or influenced in making this will by any other motive except to be fair to all my children.”

It is the claim of appellants that the mother hoped that after John read the answer he would discontinue his case, and that, if he did not, she would disinherit him and that it was because he did not she made the second will. It is the claim of John that the changed attitude of his mother toward him as indicated by the bill of sale, the effort to sell the farm secretly, and the making of the second will was brought about by lies about him told to his mother by his brother Ed and the pressure of the other children brought to bear upon her.

Mrs. Skinner went to Owosso with her mother when the will was drawn. Her mother had been stopping at her house a few days before that. The sister Mabel was also there. She disclaimed having attempted to influence her mother. Her attitude toward John at this time is disclosed by some of her testimony:

“I never have had a word with my brother John, and have never had any trouble with him, but I don’t feel just now under the circumstances like owning him as a brother; don’t feel very friendly. I concluded that I didn’t own John as a brother after he served the papers on my mother in the chancery suit, and .since that time I have not been willing to own him as a brother.”

The record discloses a like feeling on the part of the other brother and sisters. It shows that Mrs. Skinner was present when the will was read to her mother, signed, and executed. We quote:

“In your office on the 24th when you read the will over, and it came to where my husband was executor, I said, ‘Why, mother, what do you want to do that for?’ and I said, T think you might better have somebody else for executor.’ And she said, ‘Well, I don’t; I want him and I am going to have him.’ You asked me what my reason was, and I said because there was trouble in the family, and I thought it would be better to have a stranger as executor. And she said, ‘No; I want Bert and I am going to have him.’ That is all that was said about it.”

Edward Teller was a witness. We quote some of his testimony:

“I am the Edward Teller spoken of in this suit. In the month of October, 1918, I had a conversation with John Teller of his having claims or going to make claims against his mother’s property. He said he had $3,600 against my mother for eight years’ work; that he was going to have it, and the one that kept the quietest would get the most. I know who he meant by the one who kept the quietest — the heirs. That is the substance of what he told. When I went home I stopped there and told my mother what he said. She didn’t say much of anything. I don’t think she said anything. She could hardly believe it. I saw her from time to- time after that, and I noticed a change in her in respect to the way she acted and talked. The change that I noticed was that it was a worry to her. I can’t recall now. It seems as though she talked with me more about it. * * * John told me that he had $3,600 against mother, and he was going to have it right off quick. He said it was for eight years’ work; for the years he was to home, I suppose.”

In the answer the following occurs:

“These defendants, further answering said paragraph, say that after the death of Samuel Teller, at a date which they are unable to give, that the trunk of defendant Eliza Teller was by some one broken into, ransacked, and stripped, and many important papers were taken therefrom, including the above-mentioned contract between Samuel Teller, Eliza Teller and complainant, John Teller. And defendant Eliza Teller says that she has never seen said contract since that time, and each of these defendants for themselves say that they have never seen said contract since that occasion. But Eliza Teller says that she first missed said contract some time after she had executed the deed to John Teller above mentioned, on the 15th day of May A. D. 1900, and that shortly after that time she called the attention of her daughter Ella Madden to the fact, and showed her the trunk and what had been done to it. But none of these defendants have any positive knowledge as to who did the act, but have in their own minds a suspicion as to who did it; as the taking of such papers, viewed in the light of the bill of complaint filed in this case, could have been of interest to only one party.”

The scrivener testified in relation to this paragraph:

“In regard to the statements in the answer concerning the breaking into a trunk, only Mrs. Teller and Mrs. Madden made statements about it. Mrs. Madden said that, when she and her mother looked it over, they thought that John Teller had ransacked the trunk, because papers were taken that were of interest to nobody else except John Teller. Mrs. Madden told me this in the presence of her mother, Eliza Teller.”

There is a great deal of testimony showing the mother frequently referred to what Edwapd told her about John, and felt badly about it, often crying about it. John denies that he ever broke into the trunk, or had any knowledge of its being broken into. He admits a talk with Edward in which he told him the true status of his claim, but denies that he ever told him that he was going to press his mother for his claim, and his version of the conversation is corroborated by a neighbor who was present and heard it.

The record shows that the mother talked with different neighbors shortly before her death in relation to John, and read to them or had them read the will of 1908, and stated that she still thought a great deal of him and wanted him to share with the rest of her children her .property, and she stated the will she read to them or had them read, giving him the same share as the rest was her last will and gave the property as she wanted it to go.

The record is very long. No one can read it without reaching the conclusion that the jury would have been warranted if they believed certain of the testimony in finding that Mrs. Teller disinherited John because of his bringing the chancery case. On the other hand, there is abundance of testimony to justify the conclusion that she was unduly influenced in making the second will.

The judgment is affirmed.

Stone, C. J., and Kuhn, Bird, Steere, Brooke, and Person, JJ'., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    KIRBY-SORGE-FELSKE CO. v. DOTY.
    Agency — Brokers—Fiduciary Relations.
    An' agent to sell may not become tbe agent of tbe purchaser, nor may an agent to buy become the agent of the seller, unless both the principals are fully and fairly acquainted with the fact that the agent was acting in a dual capacity; but if both, knowing the circumstances, consent that the agent may so act, the agreement for commissions is valid and enforceable.
    Error to Wayne; Codd, J.
    Submitted January 6, 1916.
    (Docket No. 32.)
    Decided March 30, 1916.

      Assumpsit by the Kirby-Sorge-Felske Company, a corporation, against Payson M. Doty for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles E. Ward, for appellant.

      Monaghan & Monaghan, for appellee.
   MOORE, J.

The plaintiff is a corporation engaged in the real estate business'. The defendant is a resident of Grand Rapids. He owned property on Bagley avenue, in Detroit, that brought him an income of about $2,000 a year. He desired to lease the property for 99 years, and to receive a larger rental than he was then receiving, hoping to receive $4,000 a year. He talked with several real estate firms in relation to it, finally having a talk with Mr. Sorge and Mr. Kirby of the plaintiff corporation in April, 1912, when it was agreed that, if the plaintiff found Mm a lessee, it should receive a commission of $1,000. Mr. Sorge at once became active, and, after talking with Mr. Walter F. Haas and getting him interested, took Mr^ Doty to Mr. Haas about the middle of April, and from that time on it is claimed most of the negotiations were conducted by Mr. Doty and Mr. Haas., Prior to May 1st these two men had agreed verbally on the terms of a lease. On the 2d of May the following writing was executed:

“Mr. Payson M. Doty: We propose to lease from you property in the city of Detroit, Michigan, described as lot number twenty-six in block ten of the Governor and Judges plan, being house Nos. 25, 27 and 29 Bagley avenue, for thevterm of ninety-nine (99) years from May 1, 1912, upon the following rentals to be net: Thirty-five hundred dollars per year for fifteen years, and four thousand dollars per year thereafter, payable quarterly in advance — the formal lease when drawn to contain provisions. * * *
“It is understood that we will be privileged to join with us in the permanent lease either Mr. Julius H. Haas or Mr. Charles F. Clippert. Form of lease to be drawn and executed and first quarter’s payment of rent made within ten days after an abstract showing good and sufficient unincumbered title to said premises has been furnished us. Rents to be adjusted as of May 1, 1912.
“Dated Detroit, Michigan, May 2, 1912.
“Paul A. Sorge.
“U. Grant Race.
“Walter F. Haas.
“I hereby accept the foregoing proposition. Dated. May 2, 1912. PAYSON M. Doty.”

It is the claim of the plaintiff that after the rental was agreed upon Mr. Sorge was invited to become a member of the syndicate. The parties are not agreed as to who first made the suggestion. Mr. Haas’ recollection is that he first made the suggestion and talked with Mr. Doty about it, who expressed himself as glad. We quote from Mr. Haas:

“ (Continuing). There was no arrangement for Mr. Sorge to come in until Mr. Doty was present and consulted. Mr. Doty and myself concluded the negotiations with reference to price. Mr. Sorge had nothing to do with the reduction of the amount from $4,000 to $3,500. Mr. Doty looked after those things, the price and the terms himself.
“Q. Was your argument on that subject had with Mr. Sorge or Mr. Doty.
“A. With Mr. Doty himself.
“(Continuing). When, in the presence of Doty, I broached the subject of Sorge coming into the deal, I asked Mr. Doty whether he would have any objections if Mr. Sorge was one of the lessees, and told him I wanted Mr. Sorge as one of the lessees if I went in, because I wanted him to back up his judgment by his actions by coming in and taking chances, too. Mr. Doty said— I said, ‘Will there be any change in this matter if he comes in?’ and Mr. Doty said, ‘No.’ He said, ‘I am satisfied to have him in; Mr. Sorge is a live one, and I should like to have him as one of the parties to the lease.’
“Q. Who was it, Mr. Haas, that influenced you as a purchaser of that property?
“A. Mr. Sorge.
“Q. Who was it that brought you as a purchaser to Mr. Doty?
“A. Mr. Sorge.
“(Continuing). I never knew Mr. Doty before that time. After the conversation in which Mr. Doty expressed his desire to have Mr. Sorge come in the proposition was reduced to writing.”

Mr. Doty’s recollection is that he first broached the subject of Mr. Sorge’s becoming one of the lessees. He testified about being taken to the office of Race and Haas by Mr. Sorge and'conversations there had. We. quote:

“We talked over the matter, but did not come to any definite agreement at that time. I came away and I told Sorge that I felt friendly towards him and I had known him some time, and that, as there was a $100,000 margin in® that lease, I should like to have him come in with the other four — I would.like to have him join with the others as a lessee.”

It is clear from the testimony of all who have knowledge of the subject that the fact that Mr. Sorge was to be one of the lessees was well understood by Mr. Doty and approved of by him before any written instruments were signed. It is the claim of the plaintiff that in becoming a member of the syndicate Mr. Sorge was acting for himself, and not for the plaintiff, and that it was agreed that his joining the syndicate should not affect the agreement about the $1,000 commission. On the other hand, Mr. Doty claims Mr. Sorge was acting for the plaintiff’s benefit in joining the syndicate, and that it was agreed that as the rental for the first 15 years was to be $3,500 instead of $4,000 a year, and would inure to the benefit of Mr. Sorge and the plaintiff corporation that the commission was to be waived.

After the writing of May 2 was executed the parties proceeded with the abstract of title and the preparation of a formal lease. Some difficulties occurred as to the details, and interviews and correspondence were had in the effort to .adjust them. July 5, 1912, Mr. Haas wrote to Mr. Doty at Grand Rapids in part as follows:

“We are inclosing herewith copy of letter this day sent by us to the Michigan Trust Co., of your city, which should explain the method we have adopted for closing this matter up. From your letter and from that of your attorney, Mr. Ward, and also from conversation which we have had with him over the telephone, it seems to us that you are attempting to use us to draw your chestnuts out of the fire. You know that we have nothing to do with the matter of commissions claimed by the Kirby-Sorge-Felske Co. We have gone to great pains and some expense to have this lease drawn as you desired the same to be drawn and made many changes at your request. You have often expressed yourself as being pleased with the manner in which we have handled this matter, and we think it decidedly unfair for you to try to use us to adjust a claim between yourself and real estate agents. We have, therefore, taken this method to have the matter closed and determined once and for all. The terms of this lease have now all been agreed upon, and there is no necessity for further negotiation or delay.”

This letter and the copy of the one to the Michigan Trust ■ Company was handed by Mr' Doty to his attorney, who on the 6th of July wrote Mr. Haas in part as follows:

“Dear Sir: Mr. Doty has turned over to me your letter of the 5th. I have examined the leases you sent to the Michigan Trust Company, and they are satisfactory, and Mr. Doty and his wife will sign them on Monday. * * * .
. “On the adjustment of these matters the lease will be delivered, and the matter of claimed commission need not interfere with the execution of the lease.
“Yours truly,
“Charles E. Ward.”

The matters referred to in the letter were adjusted, and the lease duly executed. The plaintiff and Mr. Doty not reaching an agreement, this suit was brought. We have already stated the claims of the respective parties. The testimony was in sharp conflict. That offered by each side tended to establish its claim.

Requests preferred by defendant as follows were refused:

“Ninth. The contract for commission first made in this case was as matter of law abandoned. Plaintiff, if it recovers at all, must do so upon a new contract. In order that there should be such new contract the minds of the parties must have met. Mr. Doty must at least have heard and understood what plaintiff now ■claims was said to him at the time it claims a new ■contract was made, and must have understood at the time that it related to his payment of a commission, notwithstanding the reduction of rents and notwithstanding the fact that Mr. Sorge had then become interested personally so that his interest would be opposed to that of Mr. Doty. The burden of. proof is ■upon the plaintiff to show that the minds of the parties ■did so meet, and that Mr. Doty did so hear and understand, and that, so hearing and understanding, he agreed to such new contract; and, unless you find from the evidence these facts, the plaintiff is not entitled to recover anything in this case and your verdict must be no cause of action.
“Tenth. You should not find in this case that a new contract was made after Mr. Sorge began to negotiate to become a lessee, unless you find the proof to be clear and satisfactory to your mind that Mr. Doty had knowledge and understanding of the new contract plaintiff now claims was made, or at least the words which plaintiff now claims constituted such new contract, and that he intended them to assent .to it, understanding that it was an agreement to pay commission notwithstanding the new conditions that had then arisen.”

The judge, after stating the claims of the parties, charged the jury in part as follows:

“While it is held that a person cannot act as agent of both parties, and that in representing a party he must give his best efforts to that party, at the same time I believe that the great weight of authority holds it to be the law that, when a person has acted openly and fairly, his right to recover a commission is not affected by the fact that he was one of the intending purchasers or became one of the purchasers; but the plaintiff in this case cannot recover if Mr. Sorge was an officer and agent of the plaintiff company, and if, during negotiations up to the 2d day of May, Sorge acted adversely to the interests of the defendant. And that is the question for you to determine. The fact that he went into this syndicate was, of course, manifestly known to the defendant, so that point is eliminated from your consideration. That is conceded by the documents that have been offered. Whether he acted adversely to the interests of his client before the 2d day of May — whether or not Mr. Sorge, who was the agent and acting for the plaintiff, acted adversely to the interest of the defendant, is for you to determiné. If he did so, the plaintiff company is bound by his act, and cannot recover for the commission. From the time that Mr. Sorge went into this company there' is a dispute as regards the liability of the defendant for the commission after that time. It is the contention of the defendant in this case at that time when Sorge went into this concern that in consideration of his (defendant’s) acceptance of Sorge as a member of the syndicate, and also in consideration of the reduction of the amount of the lease from $4,000 a year to $3,500 a year, there was a waiver on the part of Sorge, representing the plaintiff company, of the commission in the transaction. This is denied on the part of the plaintiff and his witnesses, and that is a, question of fact for you to determine. Because, in view of the fact that Mr. Sorge had these negotiations in behalf of the plaintiff company, he had as much right in my judgment to abrogate the agreement for the commission as he had to enter into it in the first instance, and if at the time, on the 2d day of May, when this’Contract was signed, Mr. Sorge did agree to a waiver of the commission, manifestly the plaintiff cannot recover. If, on the contrary, this agreement was. not entered into, as claimed by the plaintiff, to abrogate or set aside the agreement for a commission, the fact that Mr. Sorge entered into this syndicate, if he acted fair and openly, would not affect, in my judgment, the plaintiff’s right to recover in this, case, as a matter of law.
“Now, gentlemen of the jury, those are the two questions for you to determine. It is my judgment that the agreement of May 2d was an enforceable agreement. If you find from the testimony that the plaintiff’s theory is correct, and that an agreement was entered into for a commission on obtaining a satisfactory tenant, the fact of entering into the agreement, in my judgment, would estop the party from denying that it was a satisfactory agreement, and, if you find that there was no agreement to abrogate this commission, then the plaintiff is entitled to recover in this action. If you believe the defendant’s theory of this case, either that the agreement was for the payment of a commission on a lease at the rate of $4,000 a year or that thereafter, on the 2d day of May, or prior thereto, at the time Mr. Sorge came in, that they agreed to waive the commission, then manifestly the plaintiff cannot recover.
“I will charge you, gentlemen of the jury, that any negotiations or any testimony with regard to negotiations after the terms of the lease had been entered into, after the 2d day of May, when Sorge, with knowledge of the defendant, became one of the syndicate, a,ny claim on the part of or any action on his part thereafter would not have any effect upon the claim for commission, because, if this commission was earned, in my judgment, gentlemen of the jury, it was earned by reason of the entering into the agreement of the 2d day of May,- and that is the time the commission was earned, if it was earned at all.”

The jury returned a verdict for $1,050 in favor of the plaintiff, upon which a judgment was entered. The case is brought here by writ of error. It is claimed the plaintiff was not a mere middleman, and that, both before and after the paper of May 2d was executed, he actively negotiated in his own interest, both individually and through his associate, Haas. We quote from the brief:

“Many reasons are found in the opinions of courts and text-writers which are inconsistent with the right of an agent or broker to negotiate in his own interest and adversely to the interest of his principal in the bringing about of the very sale under which he expects to be paid a commission. It seems certain, however, that under the authorities it is at least necessary in such a case that the principal be fully informed by the agent of every fact and circumstance within his knowledge which the principal is entitled to know, and that the principal with full knowledge of all the facts contract in the light of the changed conditions, to pay the commission, notwithstanding the change. Nothing short of this is consistent with law or morals.”

And many eases are cited in support of these contentions.

The law of the case is no longer open to question in this State. In Leathers v. Canfield, 117 Mich. 277 (75 N. W. 612, 45 L. R. A. 33), Justice LONG, speaking for the court, said:

“The general rule of agency is that an agent to buy or sell is bound to make the best bargain he can for his principal, and, if he takes any compensation from the other party, it becomes at once the property of his principal; the law not permitting the agent to allegthat it was received otherwise than as agent. And generally no agent, in the course of his agency — in the matter of his agency — can be allowed to make any profit without the knowledge and consent of his principal. It is said in Rice v. Davis, 136 Pa. 442 [20 Atl. 513], 20 Am. St. Rep. 931, that:

“ ‘The principle -underlying this case that an agent for the sale of property cannot at the same time act as agent for the purchase thereof, or interest himself therein, and thus entitle himself to compensation from both vendor and vendee, is grounded on the infallible declaration that “no man can serve two masters.” ’ ”

To the same effect is Woods v. Palmer, 151 Mich. 30 (115 N. W. 242).

In Friar v. Smith, 120 Mich. 411 (79 N. W. 633, 46 L. R. A. 229), Justice Montgomery, speaking for the court, said:

“The rules of law applicable to this class of cases are briefly stated:
“(1) An agent to sell may not become the agent of the purchaser, nor may an agent to buy become the agent of the seller, unless the principals are duly acquainted with the fact that the agent is acting in such dual capacity. Mechem, Ag. § 943; Scribner v. Collar, 40 Mich. 375 (29 Am. St. Rep. 541) ; Leathers v. Canfield, 117 Mich. 277 [75 N. W. 612, 45 L. R. A. 33].
“ (2) If, however, both principals, with full knowledge, consent that the agent act on behalf of both, the agreement for compensation is binding. See cases cited above.”

The applicable law has been the subject of discussion in the recent case of Hutton v. Sherrard, 183 Mich. 356 (150 N. W. 135, L. R. A. 1915E, 976).

While we have not thought it necessary to discuss all of the contentions of counsel for appellant we have examined them with care. In the instant case the pivotal question was not a law question, but was one of fact. Mr. Doty by his own testimony knew before he signed any memorandum for a lease and approved of Mr. Sorge becoming one of the lessees. He claims that, by reason of his consenting thereto and because of a reduction in the rent, the commission was to be waived. The plaintiff claims this is not true; that the agreement was the commission should be paid, though Mr. Sorge became a member of the syndicate. There was testimony tending to establish each of these »claims.

Judgment is affirmed.

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


author: Moore, J.

text:
    BARKOW v. DONOVAN WIRE & IRON CO.
    1. Master and Servant — Dangerous Platform — Negligence — Safe Place — Promise to Remedy Defect — Assumption of Risk.
    In an action for negligent injuries to the person of a structural steel 'worker, who was injured by the fall of a heavy “gin pole,” the evidence tended to show that he complained to his superior that the platform provided for him to work on was dangerous, because it was too narrow, and that this servant promised to supply additional planks. Defendant’s testimony disputed the claim of plaintiff, and it was contended that the condition or width of the platform did not constitute the proximate cause of the injury. The platform sustained the gin pole, which was nearly 50 feet long and weighed about 500 pounds. Held, that the issues raised were questions for the jury and were properly left to them by the general charge.
    2. Same — Trial—Charge—Burden cf Proof.
    The trial court did not err in charging the jury that they should base their verdict upon the testimony they believed to be true even though it was opposed by a greater volume of testimony which they did not consider of equal credibility: that the plaintiff did not have to have the greater number of witnesses or the greater amount of testimony, etc.
    3. Same — Proximate Cause.

      Held, also, that the instructions sufficiently presented to the jury the claim of defendant that the proximate cause of the giving way of the pole was the ice and snow on the planks, and not merely the defective or insufficient platform.
    Error to Wayne; Hally, J.
    Submitted January 4, 1916.
    (Docket No. 18.)
    Decided March 30, 1916.

      Case by Herman Barkow against the Donovan Wire & Iron Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    ' Charles E. Duffy (Stevens T. Mason, of counsel), for appellant.

      Antonio Entenza, for appellee.
   Moore, J.

The defendant is engaged in the erection of structural steel, and had the contract for the steel work on an addition to a building owned by the West Side Brewing Company of Detroit, and employed the plaintiff on this job. On the 13th day of November, 1911, the plaintiff was injured by the fall of a gin pole which came in contact with him and threw him into the basement.

Mr. Carruthers was the supervising superintendent. When plaintiff began work the basement story had been put in. Plaintiff was working on the first floor above the basement, and was engaged in erecting the iron and steel framework of the building. In the performance of this work he used a “gin” pole which rested on a temporary platform of planks. He claimed that this platform was too narrow, and made his work dangerous. He further claimed to have called the defendant’s attention to this and he was promised additional planks in order to widen the platform. His claim will further appear in his testimony which we shall quote. Besides disputing plaintiff on the alleged promise, and on the absence of sufficient planks, the defendants insist that plaintiff failed to show that the narrow platform was the proximate cause of the injuries received.

The case was submitted to the jury, which returned a verdict in favor of the plaintiff. A motion was made for, a new trial, which motion was overruled. The case is brought here by writ of error.

One of the assignments of error relates to the testimony of a witness as to what was disclosed by an X-ray photograph. The record shows the witness was competent to testify in that regard.

Another assignment of error relates to the cross-examination of the supervising superintendent. An examination of the record does not show that the discretion on cross-examination allowed a trial court was abused.

Another assignment of error relates to the argument. The record shows that, so far as the argument was improper, it was at once dealt with by the judge in such a way as not to be harmful as is manifest by the amount of the verdict.

The important assignments of error are: First, was. there a case to submit to the jury? and, second, did the charge of the court properly submit the case to the jury?

First. It is said that the plaintiff assumed the hazards of the employment, and that he was guilty of contributory negligence, and for these reasons a verdict should have been directed. These contentions overlook an important feature of the claim of the plaintiff, which is that plaintiff called the attention of the supervising superintendent to the fact that there was not an adequate supply of planks to make a platform upon which to rest the lower end of the gin pole, that the situation was unsafe, and that the superintendent promised a supply of planks at once. The gin pole was 40 or 50 feet long, and would weigh 500 or 600 pounds.

We quote some of the testimony of the plaintiff:

“There were four guys on the pole, one run north, south, east, and west. The base of the pole set in the center beam of the plank. I had a conversation with Mr. Carruthers the time I first erected the pole. I told him I would have to have plank to set this pole on to move the pole on, to work on; could not set the pole up on that beam alone so that the men would work around the pole — move it enough to set the pole on. Mr. Carruthers told me that he did not have any plank handy just then; to try and use the brick mason’s plank; so I started to get a few of them, and the mason contractor told me to leave those planks alone, that he did not want his planks broken up; so, of course, I left them go, and did something else until I saw Carruthers again. I took three planks from the mason contractor and put the pole on. * * * I told Mr. Carruthers my conversation with the mason contractor in regard to these planks. He said, ‘Go ahead and do the best you can with what you have got there, and I will see that you get some plank as soon as I can get them over.’ He said, ‘I think we have some plank on another job’ — the plank that he used at the brewery. He said he would send them over right away. I believe I put up ten of these crossbeams from the north end before I was hurt. I put them all up. I was taking the pole down when I was hurt. I was through with it. It was necessary to have planking on this job so as to work, use the pole; you could not very well walk in the air. I would lay that planking on the crossbeams and make a platform around the pole. My last conversation with Mr. Carruthers in regard to obtaining planks was the Saturday before I was hurt. I was hurt on Monday morning, and I spoke to him about it on Saturday afternoon. He said, ‘Go ahead and do the best you can.’ He said, ‘Do not stop work; do not hold up the job; do tne best you can, and I will have the plank here sure Monday morning the first thing.’ I told him that the men did not want to work unless they had some plank there to protect them. I told him it was dangerous to work around there without any plank to walk around on. I was afraid that some of us were going to be hurt. I told him that on Saturday afternoon. One other man I know of told him about it, and another fellow told me that he would not work unless we had some plank on Saturday afternoon. He told me to come.to work Monday morning and he would get the plank there. I started to work on Monday morning.”

He then described how the accident happened, and claimed it would not have occurred if he had been supplied with the promised planking. His testimony was supported by the testimony of other witnesses. Mr. Carruthers denied having any such conversation.

In Asplund v. Mining Co., 177 Mich. 529, beginning at page 545 (143 N. W. 633), there is a collection of many authorities upon the effect of an employer’s promise to remedy a defect or to supply lacking material. The case before us is within those authorities.

Second. Was the case improperly submitted? Counsel for the defendant submitted many written requests to charge, nearly all of which were given. The charge was a very long one. Complaint is made of that part of it relating to proximate cause because it is said it ignored the possible effect of the ice and snow on the platform, and practically directed the jury to look for no other cause but the alleged failure to furnish the planking. We do not so interpret the charge. The jury had its attention called to the claim that the snow and ice contributed to the injury, ana was told that, if because of them men who do work of this kind — • ordinarily prudent men — would say it was not proper to go on with the work, then there could be no recovery. The judge also said:

“I charge you, that if you find that there were planks in or about the building in any place which was accessible to the plaintiff, and that he chose to proceed without getting them out from under the snow, your verdict must be for the defendant.
“I charge you that, if this plaintiff knew, and you so find from the evidence that he did know, that the platform upon which he was working was dangerous because of the snow and ice, and that there was sand at hand which he could have secured from the mason contractor, which would have made it safer, he contributed to his injury, and therefore your verdict must be for the defendant. * * *
“I further charge you that, if you cannot agree as to the proximate cause of the injury alleged in this cause, it is not your privilege to speculate and guess as to that proximate cause, and, as I say, if you cannot agree as to the proximate cause, your verdict must be for the defendant.
“What proximate cause is is the thing that from the evidence that has been produced to you brought about the injury. Of course, if the plaintiff has not made clear to you what the thing was that brought about the injury, he has not proven his case by a fair preponderance of the evidence and he cannot recover.
“Now, gentlemen, very little remains to be said to you. In this kind of cases the- burden of proof rests upon the plaintiff; that is, the plaintiff must satisfy you by a fair preponderance of the evidence of all of the material and essential conditions of his case.”

We think that feature of the case was properly left to the jury.

In the charge the following was stated:

“Gentlemen of the jury, there is only one other thing: What is meant by preponderance of the evidence? I think you have been told heretofore what was meant by preponderance of the evidence. That does not mean that the people upon whom the burden rests of proving their case must have in here a greater number of witnesses. Nor does it mean that they have to produce a greater amount of testimony. But it does mean that they have to produce testimony that brings to you a conviction of truth. A witness takes the stand. _ He has been sworn and he testifies. You listen to him, and you say to yourself, That man is telling the truth.’ Now, that testimony preponderates over all other testimony that is offered upon that subject, even if a dozen were to testify differently from that one, because it has brought a conviction of truth, and that is what you are here for. You are here to find the truth. You are not here to sympathize. You are not here to pay any debts. You are not here to allow bias, or prejudice, or passion to influence you. You are here to find the truth, and as you find that truth let that truth find its way into your verdict.”

Counsel say this was error, citing Dupuis v. Traction Co., 146 Mich. 151, at page 159 (109 N. W. 413). A reference to the case will show it does not support the contention of counsel. The judge in this case said, in effect, to the jury, they should base their verdict upon the testimony they believed to be true, even though it is opposed by a greater volume of testimony which they do not believe to be true.

Judgment is affirmed.

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


text:
    JACKSON, ANN ARBOR & DETROIT RAILWAY CO. v. ANN ARBOR RAILROAD CO.
    Equity — Evidence—Bonds—Titee—Contracts.
    Suit was brought by complainant, an electric railway corporation, against defendant railroad company for seven-bonds, of $1,000 each, deposited to secure the payment of $10,000, which the J., A. A. & D. Ry. Co. agreed to contribute towards the elevation of tracks and separation of grades of the defendant at a certain street crossing in Ann Arbor. The railroad company undertook to do the work of grade separation, and to locate its package freight house as provided in the contract, and to construct a viaduct that would allow a separation of grades at a height of 15 feet, and complainant claims that the contract provisions have never been carried out. Held, that the original contract had been modified by later arrangements of the two corporations, as shown by defendant’s evidence, that the testimony showed a complete performance of all that the complainant had demanded, and the railroad company should be permitted to keep the securities transferred to said corporation as payment for the labor, etc., performed.

      Appeal from Jackson; Parkinson, J.
    Submitted January 12, 1916.
    (Docket No. 107.)
    Decided March 30, 1916.
    Bill by the Jackson, Ann Arbor & Detroit Railway Company against the Ann Arbor Railroad Company for a decree declaring said defendant a trustee holding in trust certain bonds for the benefit of complainant, and for an accounting. From a decree for complainant, defendant appeals.
    Reversed.

      Bernard J. Onen (George W. Mechera, of counsel), for complainant.

      Alex. L. Smith, for defendant.
   Moore, J.

This bill of complaint was filed in February, 1914. The trial court filed an elaborate opinion, in which he states the question involved as follows:

“The complainant seeks to recover of the defendant seven $1,000 bonds, and $190 in cash, which came to the possession of the defendant in 1907, which bonds are known as Detroit, Jackson & Chicago Railway consolidated mortgage 5 per cent. 30-year gold bonds, dated February 1, 1907, guaranteed by the Detroit United Railway Company, together with the installments of interest since accruing and paid to defendant.
“Complainant insists these bonds are the last of several exchanges or substitutes, which defendant received from time to timé, commencing with 20 first mortgage bonds of the Jackson & Ann Arbor Railway Company, delivered to defendant by W. A. Boland as collateral security for the payment of $10,000, prqvided to be paid to defendant by the Jackson & Ann Arbor Railway Company, as set forth in an agreement between the two companies dated the 1st day of January, 1903; that while the $10,000 has never been paid, the defendant never did the work contemplated, and was never called upon to spend any money or financially obligate itself under such agreement, was never entitled to the $10,000, and is not so entitled, and should be required to account for or surrender said bonds and account for the interest collected by it thereon and the $190 in cash.
“The defendant denies the aforesaid claims of complainant, denies that it received and holds said $7,000 in bonds and $190 in cash as collateral security, but as its own property; that such property is not impressed with any trust whatsover in favor of the complainant, and that complainant has not any interest therein or any right to a surrender of the same or to any accounting in respect thereto, or any interest accrued thereon, or to any return of such bonds or cash, or any avails thereof.”

He made a decree sustaining the contention of the complainant. The case is brought here by appeal.

The question which should control the case is one of fact. The Jackson & Arm Arbor Railway Company, the predecessor of complainant, in January, 1903, and prior thereto, attempted to construct an electric railway from Jackson into the city of Ann Arbor, and had acquired rights of way, and expended considerable money in acquiring and constructing its property. It had also a bond issue. Mr. W. A. Boland was actively engaged in promoting the road. The city of Ann Arbor granted to him and to his successors and assigns a franchise to operate said railway in the city from the west corporation line of the city southeasterly along a private right of way to the westerly extremity of Ann street. It was necessary to cross the tracks of the defendant railway company, and negotiations were entered into to procure a crossing. The defendant had entered into a contract with Mr. Hawks, relative to the crossing of the defendant’s railroad by his line. The city of Ann Arbor in October, 1902, granted a permissive ordinance, allowing defendant to raise its grade and build viaducts, and if it built a viaduct at Ann street the city was to reimburse it. As a result of the negotiations a contract was entered into as follows:

“This agreement made this first day of January, 1903, by and between the Ann Arbor Railroad Company,'party of the first part, and the Jackson & Ann Arbor Railway Company and William A. Boland, party of the second part, witnesseth, that: Whereas, on the first day of October, 1902, the common council of the city of Ann Arbor duly passed an ordinance entitled:
“ ‘An ordinance relative to changing the course and grade of certain streets and elevating the tracks of the Ann Arbor Railroad; ’

whereas said ordinance provides among other things that the Ann Arbor Railroad Company shall provide an opening fourteen feet in the .clear, above the present surface level of its tracks in the place where Ann street extended would meet and intersect said Ann Arbor Railroad Company’s tracks; and fifteen feet in the clear above the present surface level of its tracks at the intersection of Miller Avenue with said tracks; and whereas said first party is willing to accept the said ordinance and undertakes the performance of the work provided in said ordinance to be done by said first party, and the obligations imposed by this contract on condition that the second party shall contribute ten thousand dollars towards the expenses thereof; and whereas said second party is willing to make such contribution: Now, therefore, it is agreed:

“First. That the first party will undertake and perform the work of separation of grades provided in the ordinance hereinbefore mentioned.
“Second. That the first party will locate its city package freighthouse adjacent to Miller avenue and First street in such position that the tracks of said second party’s proposed railroad can be connected with the freight house tracks of said first party.
“Third. When the steel viaduct over said Ann street extended, provided for in section five of said ordinance, shall have been constructed by said first party, as therein provided, in such wise as to give a clearance of fourteen feet above the present surface level of the tracks of said first party at the point where Ann street extended would intersect said tracks, or (in the event that the railroad of the second party shall be constructed on Miller avenue) when said viaduct over Miller avenue shall have been constructed by the first party, so as to give a clearance of fifteen feet above the present surface level-of the rails of said first party as now-located in Miller avenue, and when said first party shall have constructed its city freight package warehouse adjacent to Miller avenue and First street as provided by the second article of this agreement, then the party of the second part will pay to the party of the first part the sum of ($10,000) ten thousand dollars.
“Ann Arbor R. R. Co.,
“By H. W. Ashley, Asst. Pres.
“Jackson & Ann Arbor Ry. Co.,
“By Worrall Wilson, President.
“Attest: James B. Foote, Secy.
“We, and each of us, do hereby guarantee the faithful performance by the Jackson & Ann Arbor Railway Company, and William A. Boland, of all and singular the obligations of the above contract by it to be done and performed, including the payment of the money herein specified.
[Signed] “William A. Boland.
[Signed] “P. H. Flynn.
[Signed] “David E. Lewis.
[Signed] “Fred C. Cochen.
“Witness: S. M. RICHARDSON.”

As additional security for the performance of this contract 20 of the bonds which had been issued, of the face value of $1,000, were delivered to the defendant company, and it entered upon the work of elevating its tracks. In the meantime Mr. Boland was having trouble with the financial part of his enterprise, and an arrangement was made for its reorganization, and one William Halls, Jr., was to underwrite the bonds of the road at 85 per cent., and a new arrangement was made, as shown by an agreement reading as follows:

“Whereas, on the first day of January, 1903, an agreement was made between the Ann Arbor Railroad Company of the one part and the Jackson and Ann Arbor Railway Company and William A. Boland of the other part, providing among other things that the Ann Arbor Railroad Company should undertake and perform the work of separation of grades provided for in a certain ordinance passed by the common council of the city of Ann Arbor on the 1st day of October, 1902, and that on the completion of certain portions of such work the said Jackson and Ann Arbor Railway Company and said William A. Boland should pay to said Ann Arbor Railroad Company the sum of ten thousand dollars; and whereas, certain bonds were deposited by said second parties to said contract with said Ann Arbor Railroad Company to secure the performance by said second parties of the obligation of said contract upon their part; and whereas the performance of said contract on the part of said second parties was guaranteed by certain other parties; and .whereas, the said Jackson and Ann Arbor Railway Company and said William A. Boland are desirous of having said contract canceled and said securities surrendered and said guarantors released from the obli- ' gation thereof:
“Now, therefore, it is agreed by and between said Ann Arbor Railroad Company, party of the first part hereto, and said William A. Boland and the Jackson and Ann Arbor Railway Company, parties of the second part:
“First. That said contract of January 1, 1903, and all obligations imposed thereby upon either of the parties hereto, be and the same are hereby canceled, released and discharged.
“Second. The Ann Arbor Railroad Company shall and does now surrender to said William A. Boland and the Jackson and Ann Arbor Railway Company all the bonds deposited with it as collateral security as aforesaid and release the guarantors of said contract from all obligation by reason thereof.
“Third. In consideration of the premises the said William A. Boland and the Jackson and Ann Arbor Railway Company do hereby assign and transfer to the Ann Arbor Railroad Company absolutely the following bonds, to wit: Twelve bonds of the newly organized company known as the Jackson, Ann Arbor & Detroit Traction Company, being the same bonds underwritten by Wm. Halls, Jr.,- and others at 85%.
“Fourth. As a consideration, in addition to those hereinbefore recited, the Ann Arbor Railroad Company agrees that it will provide a clear headroom, below its track, on Miller avenue of not less than fourteen feet.
“Jackson, Ann Arbor Railway Co.,
“By W. A. Boland, Attorney for President. «Attest:
“Ann Árbor R. R. Co.,
“By H. W. Ashley, Asst, to Pres. “Attest:......................
“I hereby guarantee the within contracts.
[Seal] “W. A. BOLAND.”

For the purpose of carrying out this agreement the 20 bonds were forwarded by the Ann .Arbor Railroad Company to the Hanover National Bank, with instruction to deliver them to the Jackson & Ann Arbor Railroad Company when the 12 bonds mentioned in the second contract were delivered to the bank for the Ann Arbor Railroad Company. For some reason the arrangement with Mr. Halls was not consummated, and after a time the 20 bonds were returned by the bank to the defendant. In a further effort to relieve the financial situation in July, 1905, a contract was made by the company with Mr. Boland and one Potter, by which they undertook to reorganize the road and to retire the $650,000 of bonds of the company by issuing for the bonds preferred stock of the company to an amount equal to 40 per cent, of the face value of the bonds. In this, contract it was agreed:

“The company further agrees that in consideration of the services rendered and to be rendered by said parties of the second part, and on their procuring to be satisfied and canceled the bonded indebtedness of six hundred fifty thousand dollars aforesaid, and to be paid and satisfied the balance owing on said seventy five thousand dollar note, to cause to be issued to said parties of the second part, or as they shall direct, the balance of two hundred fifteen thousand dollars of its common stock and the two hundred sixty thousand dollars of its preferred stock to be authorized by such amendment of its articles of association.”

In September, 1905, a special meeting of the stockholders was held to consider this contract. In the record of that meeting appears the following:

“President Wilson further reported that he was advised by Mr. Boland and Mr. Potter that they have procured to be deposited with the Hamilton Trust Company, as trustee, a large proportion of the outstanding bonds of this company to be exchanged for stock of this company,, and that it is reasonably certain all the bondholders will consent to exchange their bonds for stock. * * * Resolved that the action of the officers of this company in executing the contract under date of July 1, 1905, with W. A. Boland and N. S. Potter, a copy of which contract is set forth in the minutes of the meeting of the stockholders this day held, and all action of such officers in pursuance of such contract, be and the same are hereby ratified, approved and confirmed.”

In pursuance of the plan outlined above the bondholders, including the defendant company, surrendered their bonds, and the defendant received for its bonds preferred stock to the amount of $8,000 and the $240,-000 of common stock was issued to Boland and Potter. In 1906 a further reorganization occurred, by which all of the stock, both preferred and common, of the Jackson & Ann Arbor Railway Company was to be exchanged for a like amount of preferred and common stock of the Jackson, Ann Arbor & Detroit Railway Company. The defendant company made the exchange of its 80 shares of preferred stock for a like amount of preferred stock in the new company. As part of this transaction the Jackson & Ann Arbor Railway Company deeded all of its assets to the Jackson, Ann Arbor & Detroit Railway Company. In 19Ó7 the last named company made an agreement with the Detroit, Jackson & Chicago Railway Company and thé Detroit United Railway. It is unnecessary to set out the details of this agreement, but it resulted in the defendant company exchanging its $8,000 preferred stock for seven $1,000 bonds of the Detroit, Jackson & Chicago Railway Company, guaranteed by the Detroit United Railway Company, and $190 in money. -

Mr. Ashley was examined as a witness. He was testifying about the freighthouse:

“Q.‘ Was it located at that time adjacent to Miller avenue and First street?
“A. No, sir; about three-fourths of a mile or half a mile.
“Q. It remains now where it was at the time the contract was- made?
“A. Yes, sir. We undertook to change the location, provided this road was completed.”

His attention was called to a letter he had written to Mr. Warren:

“Q. And that was true, was it not, Mr. Ashley, that the Ann Arbor was never called upon to expend any money, or in any way financially obligate itself in this transaction?
“A. That was true, so far as Ann street and the warehouse was concerned, but the whole elevation of the Ann Arbor was projected on this, and the tracks were located for Boylan’s Company, which probably would not have been done, but we were put in this contingency: Here was two street railroads going to intersect the Ann Arbor; one of them proposed to go over, and the other at grade. That would have forever fixed the grade of the Ann Arbor Railroad through that city, and no such thing as elevation had been considered, up to that time.
“Q. Up to what time?
“A. Up to the time of the happening of these negotiations for these crossings.
“Q. You then undertook to make this elevation that would cost about $90,000?
“A. I think something of that kind, provided, and only provided, that these two companies would undertake to contribute towards the elevation.
“Q. You did that in view of the ordinance which had been passed?
“A. No, sir; these negotiations were all made, although the contracts were not made, the negotiations were,made before the ordinance. * * *
“Q. But the things you were to do as called for by the contract, that is, the building of the viaduct at Ann street and the extension of your freight depot, whereas you never did anything of that kind?
“A. Those two things we didn’t. We elevated the railroad and put in a viaduct at Miller avenue. We did two things and didn’t do two others.
“Q. Now this was also true, was it not, as stated by you at that time: That the surrender of title to a certain number of these bonds was a voluntary act on the part of Mr. Boland — his own proposition, I believe — and was accepted by me with the knowledge that in all probability the line would never make any financial requirements whatever upon the Ann. Arbor Company?
“A. Yes, sir; because at that time, when this exchange was made, I had a number of talks with Mr. Boland. He stated to me he concluded Miller avenue would be the best crossing.
“Q. It was never built on Miller avenue?
"A. It was never built at all.”

The record discloses that no demand was ever made upon the defendant company in relation to the freight-house. No payment was ever made to the defendant company for what it had done, except as the result of' what we have narrated. We think it clear from what we have stated that defendant company incurred nearly all of the expense contemplated by its first agreement. We think it equally clear that the second agreement did away with the first agreement. What was done subsequent to that time is consistent with this conclusion, and is utterly inconsistent with the claim that the first contract was controlling. If it was controlling, why did not the company, instead of proposing an exchange of the bonds for preferred stock, insist upon their'surrender? If it was claimed that the first issue of the preferred stock was held by defendant as trustee for the Boland road, why was it not so asserted, instead of proposing its exchange for the second issue of preferred stock? These same inquiries are pertinent as to the exchange of preferred stock for the guaranteed bonds.

The defendant company did all it was ever called to do. It never was paid the $10,000, agreed to be paid, but it has received in lieu thereof the seven $1,000 bonds and $190' in money.

We think the decree of the court below was wrong. It is reversed, and one will be entered here, dismissing the bill of complaint, with costs of both courts.

Stone, C. J., and Kuhn, Bird, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    THOMPSON v. W. W. KIMBALL CO.
    J. Justices oe the Peace — Amendment—Declaration—Pleadinq.
    The amendment of a written declaration in justice’s court without changing the subject matter of the action was properly permitted.
    2. Same — Evidence.

      Held, on reviewing the conflicting testimony of the parties on the question of damages, that plaintiff’s verdict and judgment was not excessive.
    Error to Calhoun; North, J.
    Submitted January 7, 1916.
    (Docket No. 66.)
    Decided March 30, 1916.

      Assumpsit in justice’s court by Sophia A. Thompson against the W. W. Kimball Company, a corporation, for the recovery of money paid for a piano. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Joseph L. Hooper, for appellant.

      Howard W. Cavanagh and John G. Davis, for appellee.
   Moore, J.

The plaintiff, on the 13th day of November, 1913, bought from defendant a Kimball piano player valued at $750, for which she turned over to them a piano and was to pay $350 in addition thereto. At the time of the exchange she paid $50 in cash. The player piano soon ceased to work well. Some correspondence ensued. The defendant declined to return the piano turned into it by the plaintiff, and took the player piano from her. She sued defendant in justice’s court. From a judgment in her favor the cause was appealed to the circuit court, where plaintiff recovered a judgment of $250 and costs. The case is brought here by writ of error.

The first assignment of error requiring attention relates to permitting an amendment to the declaration in justice’s court, counsel saying it amounted to the statement of a new cause of action.

The case was commenced by summons. A written declaration was filed. An amendment was permitted to this original declaration. This amendment related to the same transaction to which reference was made in the original declaration. We think it was permissible. Snyder v. Winsor, 44 Mich. 140 (6 N. W. 197); Webster v. Williams, 69 Mich. 135 (37 N. W. 62). See the many cases cited in the note to section 767, 1 Comp. Laws.

Error is assigned because the court did not give a request reading:

“Unless you find by a preponderance of evidence in this case that the defendant company was responsible for the piano getting out of condition within five weeks after plaintiff received it in her house, plaintiff cannot recover. If plaintiff or some person other than defendant was responsible for the piano getting into such condition, then your verdict should be for the defendant.”

The substance of this request was fully covered by the general charge.

It is said that, as the evidence of the plaintiff was that she paid the Kimball Company $50 cash, and that she bought the piano which she traded to defendant for $100, her recovery should have been limited to these amounts.

This ignores other testimony in the case. She was to be credited in the exchange $400 for her piano. She testified that she bought the piano from a patient of hers who was under obligation to her, and that the purchase was made for a price very much less than the piano was worth; that she had been offered $200 in cash for the piano, and that it was well worth it.

Judgment is affirmed.

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


text:
    GREAT LAKES REALTY & BUILDING CO. v. TURNER.
    1. Landlord and Tenant-^-Lease — Assignment.
    Under the restrictive provisions of a lease prohibiting an j assignment until the lessee constructed a building on the premises, a sublease for approximately half the term on condition that the sublessee should construct-the building described in the underlying lease, when it should be entitled to an assignment of the lessor’s interest, was not an assignment within the meaning of the prohibitive clause, which did not relate to an executory contract for hiring the premises, and there could be no forfeiture unless the tenant transferred his entire estate.
    2. Same — Forfeiture—Equity.
    On a bill of complaint by said lessee to restrain the lessor from attempting to forfeit the rights set up under the sublease to complainant, the. trial court did not err in overruling a demurrer to the bill founded on the contention that the transaction amounted in effect to no more than an assignment, since forfeitures are not favored in equity, and the provisions creating them are to be strictly construed.
    Appeal from Wayne; Hosmer, J.
    Submitted January 6, 1916.
    (Docket No. 53.)
    Decided March 30, 1916.
    Bill by Great Lakes Realty & Building Company against Annie Caskey Turner and others for an injunction restraining defendants from forfeiting certain rights set up in a sublease to complainant. From an order overruling the demurrer of defendant Annie Caskey Turner, she appeals.
    Affirmed.

      Trowbridge & Lewis, for complainant.

      Jasper C. Gates and William H. Turner, for defendant.
   Moore, J.

The bill of complaint is in part as follows:

“Complaining, your orator, Great Lakes Realty & Building Company, brings this its bill of complaint against Annie Caskey Turner, William H. Turner, and William J. Brown, and respectfully shows unto the court as follows:
“First. That your orator is a corporation duly organized and existing under the laws of the State of Michigan, and having its principal office and place of business at the city of Detroit, Mich., and that the said Annie Caskey Turner, William H. Turner, and William J. Brown, who are made defendants to this bill of complaint, are all residents of the city of Detroit, Mich.
“Second. That the said Annie Caskey Turner is the owner in fee of the following described premises, situated and being in the city of Detroit, county of .Wayne, and State of Michigan, to wit: * * *
“Third. That, on the 21st day of November, A. D.' 1910, at the city of Detroit, Mich., the said defendant Annie Caskey Turner made and entered into a 99-year lease with the defendant William J. Brown whereby she leased the above-described premises to defendant Brown for a period of-99 years from and after the 1st day of November, A. D. 1910, upon terms and conditions therein provided and stipulated. .■ * * * * And the terms of said lease as appearing by said record are hereby made a part of this bill of complaint, but for more ready reference your orator shows that paragraphs sixth, twelfth, and thirteenth of said lease are in words and figures as follows:,
‘Sixth. And the said lessee covenants and agrees to and with the said lessor, in consideration of the granting of this lease, and as security for the payment of the rents herein reserved, and the performance of the covenants and agreements herein contained on his part to be kept and performed, that he will, not later than January 1, A. D. 1920, complete the erection of a building upon said demised premises, to cost not less than seventy-five thousand dollars, which building shall be at least seven stories in height, and shall cover substantially the entire premises. _*_*_.*
‘Twelfth. And. the said lessee further covenants that he will not assign this lease, except by way of mortgage, or trust deed in the nature of a mortgage, until he shall have completed and paid for the building to be erected on the said demised premises of the character and within the time herein-before specified. And it is further covenanted and agreed by and between the parties hereto that the said lessee may at any time after the building to be erected on said premises has been constructed, or at any time when there is a building erected upon said demised premises which shall conform to all the requirements of this lease, and which shall be free and clear from all mechanics’ liens whatsoever, and the possibility thereof, sell or assign his interest in said leased premises and in the buildings thereon, provided. * * *
‘Thirteenth. It is understood and agreed that nothing herein contained shall be construed to prevent said lessee from assigning his interest herein by way of mortgage or trust deed in the nature of a mortgage at any time. Nor shall the said lessee be prohibited from re-leasing or subletting the whole or any portion of said premises. The lessee may at any time during the term of this lease convey his interest in and under this lease and in any and all buildings or portions or parts of building or buildings that may at any time be erected on the property hereby demised, by mortgage or trust deed in the nature of a mortgage, and the lessee may assign any policies of insurance on said premises held by him (and not hereinbefore required -to be delivered to the lessor) as collateral security, for the obligation secured by such mortgage or trust deed.’
“Fourth. That the said defendant Brown went into possession of said premises under said lease immediately after its execution and delivery, and has remained in lawful possession thereof by himself and sublessees holding said premises under him up to and including the date of your orator exhibiting this bill of complaint.
“Fifth. And your orator further shows that on the 23d day of April, A. D. 1915, the defendant Brown, acting under the express permission of paragraph 13 of said underlying lease of November 21, 1910, made and entered into a sublease of said premises for the term of 50 years with your orator in words and figures as follows, to wit:
“ <* * # The lessor, in consideration of one dollar and other valuable considerations to him heretofore paid and the further sum of twenty-three thousand five hundred dollars to be paid to him hereafter by extraneous arrangement not made a part of this lease, and in consideration of the covenants and agreements herein expressed on the part of the lessee to be kept, performed, and fulfilled, has demised and leased, and by these presents does demise and lease, unto the said lessee, all the following described premises, situated and being in the city of Detroit, county of Wayne, and State of Michigan, to wit: * * * Subject, however, to the terms and conditions imposed upon the lessor herein by and under a certain ninety-nine year lease of said premises, wherein Annie Caskey Turner is lessor, and the lessor herein is lessee, dated November 21, 1910, and recorded October 21, 1911, in Liber 827 of Deeds, at page 53, Wayne County Records (hereinafter designated the underlying lease), it being understood and agreed that this lease is a sublease thereunder and is made under the express permission of paragraph “thirteenth” of said underlying lease. * * * To have and to hold the said described premises, with the' rights, privileges, easements, and appurtenances thereunto attached and belonging, unto the lessee for and during the term of fifty years. * * * In consideration whereof the lessee hereby covenants and agrees that it shall and will make for the lessor all payments and perform for the lessor all covenants and conditions that the lessor is required to make and perform by and under said underlying lease during the term of this lease. * * If the lessee shall allow or permit any default to occur upon said underlying lease, the same shall constitute a default of this lease also, with like effect and with like remedies to the lessor, in all respects the same as if the terms of said underlying lease were here repeated, provided that for the purpose of this lease the provisions of' paragraph “ninth” of said underlying lease shall be considered amended to read “sixty days” in each case where the word “three months” occur therein. The lessor also agrees upon demand of the lessee to mortgage his entire right, title, and interest in and to said underlying lease and in and to said described premises by proper form of mortgage or mortgages to be executed jointly with a mortgage by the lessee of its entire property and assets, to secure the bonds or obligations of the lessee, not to exceed seven hundred fifty thousand dollars in amount, to be issued and negotiated under security of such joint mortgage or mortgages for the purpose of erecting a building upon said property in accordance with the terms and conditions of said underlying lease relative to such building and for no other purpose. * * *'
“And your orator immediately went into possession of said premises as sublessee of the defendant Brown, and has been in lawful possession thereof from the date of execution of said sublease. * * *
“Sixth. Your, orator further shows that after the execution and delivery of said 50-year sublease, and upon said 23d day of April, A. D. 1915, your orator made and entered into a certain agreement with the defendant Brown in words and figures as follows, to wit:
“ * * Whereas, second party is desirous of obtaining the remaining rights of first party in said ninety-nine year lease and in said premises, but certain conditions in said ninety-nine year lease made precedent to the right of first party to assign the same make a present assignment thereof impossible: Now, therefore, this indenture witnesseth that first party, in consideration of one dollar, lawful money of the United States, and other valuable considerations to him in hand paid by second party, receipt of which is hereby acknowledged, does agree to and with second party, that if second party shall complete or cause to be completed upon said premises not later than January 1, 1920, such building as is called for by paragraph “sixth” of said ninety-nine year lease, * * * first party shall and will in consideration thereof, upon demand of second party, make due and proper assignment of said ninety-nine year lease and of all first party’s rights in said premises to second party in manner and form as permitted in paragraph “twelfth” of said ninety-nine year lease. * * *’
“And your orator avers that the said agreement is in letter and spirit in proper accord with the provisions above quoted in paragraph ‘sixth,’ ‘twelfth,’ and ‘thirteenth’ of said underlying lease, and that your orator is entitled to the full benefit and enjoyment of all rights secured to your orator thereunder, free from all threats and molestation of the said defendants, or any of them, or of any person whatsoever.
“Seventh. And your orator further shows that your orator is incorporated for the sole purpose of erecting and controlling a building upon the said described premises, under the terms and conditions provided in said several leases and agreements, and that your orator has expended large sums of money in arranging and perfecting its organization for such purpose. And your orator further shows that in order to carry out its said enterprise it has projected a large bond issue and had about completed arrangements for the financing of its building through the sale of such bonds by reputable and responsible agents, when such plans were "nterrupted and its financial prospects endangered by the wrongful acts of Annie Caskey Turner and William H. Turner. [The bill here sets out in detail those acts.] * * * If your orator is prevented by the wrongful acts of the said defendants from completing its financial plans and marketing its bonds, your orator’s entire enterprise will be crippled ’ and your orator ruined, involving the loss and de-' struction of property rights of your orator worth many thousands of dollars.
“Eighth. And your orator further shows that the defendant William H. Turner is the husband and business advisor of the defendant Annie Caskey Turner, and upon information and belief your orator avers that said William H. Turner, becoming covetous of the great value existing in the lessee’s interest in the said underlying lease on account of the advance in property values in the city of Detroit since the date of its execution has prompted and incited the defendant Annie Caskey Turner to adopt, and under his prompting said Annie Caskey Turner has adopted and is still pursuing, a course of unjust, oppressive and unfair conduct toward your orator and toward the defendant Brown in an endeavor to cast a cloud upon the possessory right and title of said Brown and your orator under said leases, and impair the credit of your orator, in order to destroy the market for your orator’s bonds and ruin your orator’s enterprise, and force defendant Brown to abandon the premises or accept a new lease on more favorable terms to the defendant Annie Caskey Turner. * * *
“And your orator further shows that in pursuance of such plan, the defendant Annie Caskey Turner has also communicated to your orator the statement that she considers your orator an outlaw upon her premises, has incorporated in receipts for rentals which, your orator has paid direct to said Annie Caskey Turner as provided in said sublease stipulations and reservations against prejudice to her rights in litigating with your orator as to your orator’s possessory rights, at the same time conveying to your orator, by the statements of said defendant William H. Turner, the threat that she would smash your orator’s enterprise and drive your orator from said premises, all of which, though without any right and foundation, places your orator in a position where your orator cannot honestly make financial plans and contracts without disclosing to persons with whom your orator makes such contracts the fact that delay and trouble over the same is threatened by reason of said acts of said defendants, and upon such disclosure your orator is confronted with the natural unwillingness, of business men to deal with your orator at all until the atmosphere can be cleared of such possibility of trouble and delay.
“And your orator further shows that your orator’s architects threatened to withdraw from the enterprise and have been retained at work for your orator only upon receiving personal assurance from certain stockholders of your orator protecting them against loss in case your orator is ruined by the acts of the defendants, and, further, that all of the plans, of your orator are brought to a standstill by reason of the fact that your orator’s fiscal agents have refused to proceed with the sale of your orator’s bonds until the situation created by the acts of said defendants can be cleared up, which means that your orator’s entire enterprise is crippled because the entire strength and prospects of the same are entirely dependent upon the marketing of said bonds, without which your orator will operate continually at great loss and inevitably go out of business within a short time. * * *
“Tenth. And your orator further avers that said several statements were not made, nor the said several acts done in good faith by the said defendants in the belief that there had been any breach of paragraphs ‘sixth’ and ‘twelfth’ of the underlying lease, and your orator avers that the -said defendants well know that your orator’s 50-year lease and the agreement for future assignment of the underlying lease are perfectly legal and permissible under the express terms of paragraphs ‘sixth,’ ‘twelfth,’ and ‘thirteenth’ of said underlying lease above quoted, and well know that your orator is in lawful possession of said premises, entitled to the quiet and peaceful enjoyment of the same and entitled to go on and finance its plans and build the said proposed building free and clear from any threats and molestations on the part of said defendants; and your orator avers that the said statements and acts were made and committed, and said notice was prepared and served by the said defendants in the hope and belief that the threats of litigation and trouble thereby, made, coming at the formatory period of your orator’s enterprise, would have the effect, in connection with the other wrongful acts of the defendants to which reference is herein made, of destroying your orator’s enterprise in manner aforesaid, and thus enable the defendant Annie Caskey Turner to confiscate your orator’s property.” That Brown is colluding with the Turners, “and your orator fears that, unless restrained by injunction of this honorable court, they will carry their said several threats into execution and your orator will be thereby irreparably injured and ruined. * * *
“Your orator prays * * * that your orator’s said lease, recorded in Liber 936 of Deeds, page 454, and your orator’s said agreement, recorded in Liber 1006 of Deeds, page 124, be decreed by this court to be legal and permissible under the terms of the said underlying lease, and your orator be decreed to be lawfully in possession of the said, premises thereunder-
“That the said defendants William H. Turner and Annie Caskey Turner be forever restrained by the order and injunction of this court from further threatening to institute and from instituting the proceedings threatened in said notice of May 24, 1915, from confederating or colluding with defendant Brown to deprive your orator of the possession of said premises. * * *
“And that your orator may have such further and other relief as to the court shall seem meet and as shall be agreeable to equity.”

The defendant William H. Turner filed a disclaimer-The defendant William J. Brown filed an answer substantially admitting the material averments of the bill. Annie Caskey Turner filed a demurrer assigning seven reasons therefor. The demurrer was overruled, and the case is brought here for review.

The important question is: Did what was done constitute an assignment of the lease which would justify its forfeiture?

Counsel for appellant make the following propositions :

(1) “The sublease and agreement were executed the same day between the same parties; they refer to precisely the same subject-matter.. It follows that they must be construed together ds one transaction, and that it is of no consequence that they are contained in two documents separately executed.”
(2) “The ‘sublease’ and ‘agreement’ thus construed together operate as an assignment of all- the rights yested in Brown by the underlying lease.” '
(3) “Brown had parted with all of his interest in the property in question and retained no rights which could authorize him to declare a forfeiture of complainant’s interests.”

These propositions are argued at great length, counsel citing many authorities including Sexton v. Storage Co., 129 Ill. 318 (21 N. E. 920, 16 Am. St. Rep. 274), which latter case counsel say is controlling. A reference to that case will show it easily distinguishable from the instant case, as will appear from the following language taken from the opinion:

“The leases to Frank F. Cole are ‘for and during’ the terms named, ‘and until the 1st day of May, 1888.’ The lease executed by Frank F. Cole to the Chicago Storage Company is of precisely the same premises included by the leases to him, and it is in the identical language of those leases, ‘for and during’ the term named, ‘and until the 1st day of May, 1888,’ so that the terms all end at the same instant of time. No space of time, however minute, therefore, can, by any possibility, remain after the term of the storage company has ended, before the expiration of the terms of Cole, in which he could enter upon pr accept a surrender of the premises.”

It may be conceded that the two papers should be considered together in the effort to understand their meanings. In fact, the terms of all the papers should. b.e considered. It will hardly be claimed that the sublease for 50 years operates as an assignment of the 99-year lease. See Lee v. Payne, 4 Mich. 106. The language of the other paper is simple. It clearly recognizes the fact that the lease is not assignable until a building' worth at least $75,000 is erected. The complainant undertakes to bring about the erection of such a building, and the papers provide' that, when it is erected and all the terms in relation thereto contained in the underlying lease are met, then, and not until then, is the complainant entitled to an assignment of the lease. The underlying lease in terms provides that, when such a building is erected and its conditions are met, Mr. Brown shall be entitled to assign the lease.

“An assignment of a term for years occurs where the lessee transfers his entire interest therein without retaining any reversionary interest. If an instrument so transfers the lessee’s interest, it constitutes an assignment regardless of its character and form. Thus, if the lessee makes an assignment of his property, including the term, for the benefit of his creditors, it constitutes a breach of the restriction against the assignment. There must, however, be an actual transfer of the lessee’s interest, else there is no assignment of the term. Accordingly an executory contract to assign-the term is not in law an assignment thereof.. This is so although the prospective assignee is let into possession.” 24 Cyc. pp. 972, 973, and note 59.

See, also, Crouse v. Michell, 130 Mich. 347 (90 N. W. 32, 97 Am. St. Rep. 479).

Forfeitures are not favored in the law, and provisions creating them are to be strictly construed. Mil ler v. Havens, 51 Mich. 482, 485 (16 N. W. 865); Small v. Robarge, 182 Mich. 356 (93 N. W. 874).

No assignment of the lease was made. At most, what was done was ¿¡.n agreement to assign when the conditions were such that Mr. Brown had a right to assign.

The decree of the court below is affirmed, with costs, and defendant will be given the usual time in which to answer.

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