author: Grant, J. Montgomery, J.

text:
    KOPF v. MONROE STONE CO.
    1. Injuries to Servant — Use of Explosives — Assumption of Risk.
    A servant employed in a stone quarry as a “driller,” under the direction of the “loader,” attempted to load a hole with dynamite, and was injured by an explosion. The loader was not the foreman of the work, or one whose directions the servant was bound to obey. Held, that the servant assumed the risk.
    3. Same — Sufficiency of Warning.
    Where an employé in a stone quarry is told by the one who is in charge of the loading and shooting of blasts how to put dynamite in the holes, and is warned to be careful, the instructions are sufficient, and it is not necessary that he should be told not to attempt to force the dynamite into a hole too small to admit its entrance.
    3. Same — Custom—Evidence.
    Testimony that the drillers in a stone quarry were accustomed to load holes for blasts has little tendency to prove such custom, where the witness admits on cross-examination that this was done only occasionally.
    4. Same — Knowledge of Master.
    Evidence that the drillers in a stone quarry, contrary to the orders of the master, and, so far as appears, in the absence of all persons in authority, occasionally loaded holes for blasts, is insufficient to charge the master with knowledge of such practice.
    Montgomery and Moore, JJ., dissenting.
    Error to Monroe; Lockwood, J.
    Submitted January 15, 1903.
    (Docket No. 47.)
    Decided May 29, 1903.
    ■ Case by Christian Kopf against the Monroe Stone Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff was employed by the defendant as a driller, and had been so employed about eight weeks. His duty was to drill the holes, not to load and shoot them. Seven -or eight drillers were employed. One loader, or “shooter,” as he was called, was employed to load the holes with dynamite and shoot them. The theory of the plaintiff’s declaration is that it was one of his duties to load the holes, and that he was not sufficiently warned against dangers in the use of dynamite. The theory is thus stated in his declaration:

      ■ “ Yet the said defendant, well knowing the premises, did not then and there, or any time prior thereto, instruct this plaintiff of the latent dangers of his work in relation thereto, and did not instruct and warn him that it was dangerous to push or press down upon or use force in pressing down upon such dynamite to cause the same to enter such hole or aperture, and did not instruct and warn him that such holes or apertures in the rock, if not large enough to freely admit the insertion of said dynamite against the side of such holes or apertures, was likely to cause the same to explode, and did not instruct and warn him that, by reason of such forcing or pressing down of said dynamite, the same was likely and liable to cause the explosion of the fulminating cap thereunder.”
    Plaintiff was employed by Lemerand, who was the foreman of the defendant, and who hired its men, including the plaintiff, and had charge of the work in the quarry.
    The following facts are established:
    (1) Plaintiff and the loader or shooter were fellow-servants.
    (2) It was not a part of plaintiff’s duty to load the holes. On the contrary, it was against the positive instructions of the defendant to its shooters and to its foreman, Lemer- and.
    (3) Lemerand never saw any drillers load holes, or was informed, or had any information or knowledge, that they were doing it, except in one instance, and then he severely reprimanded the man who did it, and told him to stop it.
    (4) No officer of the company had any knowledge or information of any such practice, except that one of the directors, Mr. Wagner, who was secretary of the compány, once had heard a rumor that the car men and some of the drillers had been using dynamite, contrary to the orders of the company. He spoke to Mr. Lemerand about it, stating that he did not want them to use it, and Mr. Lemerand said he would enforce the orders.
    (5) There is no evidence showing that it is dangerous to place sticks of dynamite in a hole drilled sufficiently large to receive them.
    (6) There is no evidence that any driller or loader had ever attempted before to force a stick of dynamite into a hole drilled too small.
    (7) The practice, as it appears from the plaintiff’s own witnesses, was, if a hole was drilled too small, to abandon it, and drill another.
    (8) There is no evidence to show that dynamite is liable to explode by pressure from the thumb or finger in pressing it into a hole of proper size, or that any similar accident had ever before occurred. On the contrary, all the evidence upon this point is that such pressure is not liable to produce an explosion. ■
    Defendant insists that in law no case was made for submission to the jury, and requested the court to so instruct them.
    O. A. Golden {Bowen, Douglas, Whiting & Murfln, of counsel), for appellant.

      Willis Baldwin and Ira G. Humphrey, for appellee.
   Grant, J.

{after stating the facts). 1. Plaintiff knew that he was employed as a driller; that Lemerand was the foreman who employed him, and who alone had the right to direct him. He saw Lemerand daily. He knew that Freedon was the loader and shooter, and was under the control of Lemerand; and, after Freedon was injured by an explosion, that one Poland was the loader and shooter. Freedon was injured about a month before plaintiff’s injury. Plaintiff testified; “Mr. Ed. Lemer- and had charge of the drilling. He was boss.” He knew that Freedon had no control over him. Freedon sometimes asked him to load the last hole, and he continued to do so under Poland. Plaintiff gave no word of testimony tending to show that he supposed that Freedon had any control over him, or the right to direct what he should do. He testified:

“Ed. Lemerand, the boss of the quarry, set me drilling holes. Charles Freedon had charge of shooting these .holes. He was the man under the foreman that had charge of the shooting, — drilling, loading, and shooting blasts. Freedon had charge of the loading and shooting of the holes after they were drilled. As far as I know, Mr. Ed. Lemerand had charge of the drilling. He was boss. * * * Freedon did not give me any orders while I was drilling there, about drilling and loading the holes. Freedon set me to work there. I was working under Lemerand, as far as I knew. Freedon he told me to load the last holes. There were two, — one at 11:30, and another in the afternoon. * * :!: When Freedon asked me to load the holes, I said I did not want to load them; ‘ I am afraid of it.5 He said the rest handled it; ‘you might handle it.’ ”

Evidently the holes before had been large enough to receive the stick of dynamite, and there was no danger in loading such holes. He found this one too small. Upon this point his testimony is as follows:

Q. You found the hole was too small ?
‘‘A. Yes, sir.
Q. Why didn’t you leave it alone?
° “A. I never had any warning to do anything of the kind.
Q. You knew the hole was too small?
“A. I didn’t think it would do any harm to squeeze it. * * *
Q. What did you do with this to get it down into the hole?
“A. I squeezed on this a little. It was sticking up a little, and I squeezed it. I thought I had better let it alone.”

Plaintiff’s counsel, in their brief, say:

“It is probable knowledge, common to the ordinary man, that dynamite will explode when sufficiently jarred.”

Plaintiff was familiar with the use of dynamite, and had seen it used every day for eight weeks. He had handled it before. He knew its liability to explode; that the only danger was from an explosion; that jarring is liable to cause one; and, if the hole was too small, he might have drilled another, and he thought he had better let it alone. Yet, without requirement from anybody to force this dangerous material into a hole too small, without any'pretense that he had ever seen the work so done before, without any protest to his employer, or any direction from him, knowing that his employer had never seen him do this work, and that he was not employed for that purpose, he chose to handle this dangerous material, and to force it into a hole in the- rock, at the request of one who he knew had no control over his action, and no right to direct him. One servant has no right to assume that a fellow-servant has any control over his movements, or any authority or right to direct him in his work. It is his duty tp look to the master, or his alter ego, for directions; and when he is employed to do one kind of work, which is entirely safe, he has no right to assume to do another kind, especially when dangerous, without the direction of his master. Where the servant may perform his work in Two ways, one safe, the other dangerous, the master is not responsible for injuries to him when he voluntarily assumes the dangerous way. Upon the same principle, when he is employed to do work unattended with danger, he cannot make the master liable because he either occasionally or habitually chooses to do dangerous work which he knows another is assigned to do. Under all the authorities, as I read them, he assumed the risk. The injury was the result of his own carelessness and voluntary assumption of work he was not required to do. It would seem to me unnecessary to cite authorities. The following, in my judgment, sustain the proposition: Bailey, Mast. Liab. 169; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; Brown v. Byroads, 47 Ind. 435; Knox v. Coal Co., 90 Tenn. 546 (18 S. W. 255); Lindstrand v. Lumber Co., 65 Mich. 254 (32 N. W. 427). The language of Mr. Justice Campbell in the last case is applicable here:

“Mill owners cannot be supposed to anticipate that laborers in other work about the mill will handle the saws, or assume that any such direction as was given in this case was meant to give any such discretion. Plaintiff does not testify that he supposed the foreman required him to run any such risk. Had such orders [for a laborer to use a circular saw] been given, they would not have justified him in doing what he did.”

The law does not impose upon the master the duty to warn or instruct his servant in regard to work he is. neither employed nor required to do.

2. Assuming that defendant knew that plaintiff was engaged in loading holes, what notice should have been given to him other than was given? Plaintiff testified that Mr. Freedon told him how to do the work. Freedon testified that he did give plaintiff dynamite to load some holes with, and explained the circumstances. “He was drilling three big stones in front of the car. The cal-men would have had to lie idle if I had not left dynamite.” He testified that the car men insisted upon his leaving it for the hole, and he did so. He testified: “I told Kopf how to fix it; how it would be safe, also told him to be careful.” We must assume, therefore, that he instructed him as to the method which Mr. Freedon safely pursued. If this was so, the instructions were sufficient. The most competent man, undoubtedly, to instruct the plaintiff, was Mr. Freedon. Was defendant or Freedon bound to anticipate that plaintiff would attempt to force this dangerous explosive into a hole too small, and to warn him not to do it ? Common sense would teach any reasonable man better than to do that. It requires a jar to explode this material, and there is certainly danger of a jar in forcing a stick of dynamite into a hole too small. Whatever danger there was in that was as apparent to plaintiff as to any employé of the defendant. If the dynamite had exploded in consequence of plaintiff’s attempt to drive it in with a stone, would it have been the duty of the defendant to anticipate this, and warn him that it was dangerous to •strike it with a stone? The only witness to the transaction, aside from plaintiff himself, is another employé, who testified that plaintiff did strike it with a stone, and he was about to speak to him when the explosion occurred. Plaintiff saw Freedon and Poland load holes, and he does not pretend that he ever saw either do what he (plaintiff) did at the time of the accident. The law does not permit plaintiff to say, under these circumstances, that he was not properly instructed, or that defendant should have given him more specific instructions as to the dangerous character of dynamite. He lmew the terrible consequences of an explosion. He knew that a jar was the cause of explosions. A warning to that effect would have been useless: See Benfield v. Oil Co., 75 Hun, 209 (27 N. Y. Supp. 16). I do not think that this is a case for the application of the doctrine in Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215). It is a case where the servant knew the danger, was familiar with the causes of explosions, and needed no warning.

3. It must be conceded that plantiff was acting outside the bounds of his employment, and that none of the alter egos of the defendant had any actual notice or knowledge that he was loading holes. The sole ground for charging liability is that this work had been done so long, and so openly and notoriously, that knowledge on the part of the defendant is to be presumed. This leads necessarily to the statement of the testimony upon this point. Unless there was sufficient evidence to in the law charge the defendant with knowledge, the judgment cannot be sustained.

It will be readily understood that the leaving of a stick of dynamite with the drillers for the last hole, and the putting of the same in the hole by the drillers, is not a transaction of so large proportions as to' attract attention. It is apparent that this might be done day after day without Mr. Lemerand or any officer of the company knowing it. One of plaintiff’s own witnesses, a driller, testified that he knew it was no part of his business to load, but did it. “ I knew that there was a man there to do that work, and that it was no part of mine to do that.” The quarry covers five or six acres, and any officer might stand around the edge of the quarry, or walk through it every day, without knowing that its orders in this respect were being violated. The holes were loaded twice a day,— about 11:30, and again when-they quit work in the afternoon. Sometimes there was a third blast, in the morning. These are not times when the alter egos of the company were apt to be around the drilling places in the quarry. Immediately upon the holes being loaded, the whistle blew to get out of danger. Naturally those whose duty did not take them there would get out of the way at about blast time. Plaintiff testified:

“ He [Lemerand] was not around any time when I was loading these holes; not that I know of. He was not around. * * * I did not see him anywhere when I loaded holes. He never saw me load holes at any time during the two months I was there.”

He does not testify that he saw any other officer of the company there at those times.

One William W. Smith, a witness for plaintiff, testified that he had seen men drilling and seen men load holes, but he never saw a driller load holes. His business was loading cars in the quarry, where the drilling and loading were going on.

One Louis Burns also testified that he had seen drillers load holes; that he had been working there about seven months; that the drillers were loading holes right along, until plaintiff got hurt. On cross-examination he testified

“When Freedon was hurt, I supposed Poland was hired to take his place. He left some [dynamite] for the drillers-when it came close to shooting time. He left some for Jim Durocher; I suppose he did. I saw him do that once or twice. He left some for Jim Benore one day when I was drilling in the hole. Freedon did that. I saw him do it once or twice. Sometimes I worked in the hole for a half day, sometimes for only two or three hours. Free-don left dynamite to the drillers once or twice in the fall of the year 1900. I cannot swear that the dynamiter left dynamite for any more of the drillers to load the holes with.”

One Deerbeck, another driller, said that he had worked there as a driller.

“I only loaded a few holes, two or three, up to the time Kopf was hurt,- — -battery shots.”

He saw other drillers load holes right along until somebody got hurt. On cross-examination he testified that he worked there about three summers, that Freedon was dynamiter when he left, and that all the loading he did was to help Freedon when Freedon asked him to. He said:

‘ ‘ I did not try to do it [load] when I was alone. I loaded one myself. I did it for fun. I was doing car work then, and had nothing to do with drilling holes. ”

On redirect examination this same witness testified that he saw other drillers load holes besides those he had mentioned.

“I drilled some of the holes myself, and loaded them myself. Freedon left the dynamite for me. I didn’t pay any attention as to whether he left dynamite for others. When he left the dynamite for me he went around. I was not quite done with my hole. I could not tell who loaded the last holes if they were not completed when the shooter came around with the dynamite. If the hole was not completed, the shooter would not load them then. It was loaded the next time it was shot. There were several drillers, and each one drilled so many holes. Freedon came around with the dynamite. The last one before they got ready to shoot, if it was not completed, they would wait until the next time. * * *
Q. Did the drillers ever load the last holes?
“A. Yes, sir; they would load them themselves sometimes; sometimes they would not. It was according to how the hole was. If it was deep enough, they would load it; if not, they would not. ”

One Edward Zeller, a car man, testified:

“It happened occasionally that the drillers loaded holes. They left the dynamite for the drillers to load holes just before quarter time, noon, and afternoon. I do not know how long that continued before Kopf got hurt. I worked there from the 5th or 6th of July until the week before they shut down. That was after Kopf got hurt. During all of that time the drillers did not do any loading that I know of. I paid no attention to what went on back of us.
Q. You saw them load holes ?
“A. Sometimes I went with the driller. I requested dynamite to be left. I cannot tell when that was. It was early in the summer. To my knowledge I do not know of other cases of their leaving dynamite. I didn’t pay any attention to the other cars. * * * When they distributed it they loaded every hole that was drilled. If there was a hole that was not finished, we requested him to leave, providing we were sure we could get the hole deep enough, and he would leave the dynamite.
Q. The man that was drilling would load the holes?
“A.. It only happened several times while I was there. I always loaded them myself. I have seen others load them.”

On cross-examination he testified:

“ I loaded them myself. Only a few times I loaded the holes. I was not a driller. I was working by the car. Two men would go as partners, and were paid by the car. That is what I was doing. In order to get stone, I would load the hole myself. That was an everyday occurrence in the forepart of the summer of that year. I told the dynamiter that I wanted him to leave the dynamite to shoot the holes the drillers were working at.”

This witness worked there about six months previous to the accident.

One Joe Bellcover also testified that he had loaded holes; that nothing was said to him in reference to it.

“I understood that it was none of my business as a driller to load these holes, but I did it. I knew there was a man there to do that work, and that it was no part of mine to do it. I understood it was no part of my work; I understood that all right enough. I think I saw Kopf load two holes. I saw Louis Couture, a driller, load holes. Pretty nearly every time he was not through with a hole when the dynamite was left.”

This is all the testimony on the part of the plaintiff - to show a practice so open and notorious as to charge the defendant with knowledge of it, and consequent ratification. The testimony of a witness is no stronger than it is made by his cross-examination. Where a witness testifies that the drillers were accustomed to load holes, and he testifies upon cross-examination that it was' done only occasionally, such testimony is of but little probative force to prove a custom. But, giving the testimony of these witnesses its greatest force, we find that only when a driller had his last hole so nearly completed that it was suitable for loading did the loader leave with him a stick of dynamite for the purpose of loading, and that the unfinished holes were left to be finished after the blast. All the others were loaded by the regular loader, the man specially employed and qualified for that purpose. Furthermore, it nowhere appears from the testimony of any of these witnesses that on any occasion was Lemerand, the foreman, or any other officer of the company, within sight, or that any such officer saw it, or was in position to see it. Plaintiff’s own witness Smith (one upon whom he specially relied), whose business was right in the quarry where these holes were drilled and loaded, testified that he did not know of any such custom, and never saw a single driller load any of the holes. Yet the learned counsel insist that Lemerand and the other officers of the defendant should have seen, and did see, what Mr. Smith did not see. The evidence of those who managed the affairs of the company, and whose duties more or less frequently took them to the quarry, is that they did not see it; that they had no knowledge of it; and once acted promptly upon a rumor that it was occasionally being done. Mr. Lemerand testified that, during the seven years of his superintendency, he saw only one man, named Couture, doing it, and told him to stop it. He also testified that he told plaintiff not to handle dynamite. This statement is not denied. He also testified that after the loader, Freedon, was injured, notices were posted in the quarry prohibiting the handling of dynamite by any but the loaders. The only statement in contradiction of this is the testimony of plaintiff that he did not see them.

Mr. Freedon testified that on the occasions when he asked plaintiff to load the hole, and showed him how, “Lemerand was not around there. If he had been, I would not have done it, because he would have given me the devil for it.” Frank Poland testified:

‘ ‘ The men who were employed to do the drilling had nothing to do with the dynamite, except, as far as I could see, if the hole was not loaded, they wanted to load to accommodate the car men; they wanted us to leave it to put it in. That did not happen often; very seldom. I' never did that when the foreman was around, as it was against orders for anybody to handle dynamite except me. I never told Kopf to load holes. I never saw him load a hole. I never knew of him loading a hole. ”

Just before the blast it was the duty of the loader to go to the magazine, procure the dynamite, and proceed at once to load the holes. There was no variation from this custom. It evidently took but a short time. The stick of dynamite was from i to 6 inches long, and the last stick was placed in the hole just before the blast. The time of the blasts was well known. There is not a scintilla of evidence in the case to show that any alter ego of the defendant was present or in the immediate vicinity when this act of loading by any of the drillers or car men was done. Not one testified that he considered it a part of his duty. Only one testified that he was ignorant of orders against it.

This is not, in my judgment, a case for the application of the rule that knowledge and ratification of a practice may be implied from its open and notorious character. All these drillers who loaded holes, including the plaintiff, knew that it was not a part of their duty to do it. They knew that the loader had no control over them. One says he did it for fun. All did it voluntarily, evidently for the convenience and accommodation of themselves and the loader. They did it without asking the defendant’s permission to do so, and one of them now seeks to fasten a burdensome liability upon the defendant by saying: “You ought to have known I was doing it, and either prohibited me from doing it, or warned me of the dangerous character of dynamite.” If the defendant is, upon this record liable to the drillers, it is also liable to the car men, who sometimes loaded the holes. This is not a case of defective machinery, where the defect is exposed to view, and can readily be detected; nor the case of an employé of a railroad company, who openly and notoriously violates the rules of his company in the presence of its alter egos. Neither is it a case where any duty of inspection is involved. It was, in my opinion, incumbent upon the plaintiff to show that some of the officers of the defendant, who were its alter egos, were present and in position to see and know that he and other drillers were in the habit of loading the last hole. It is not, I think, a reasonable inference that any such officer of the defendant saw or heard of the practice which they had been so careful to guard against. Neither ought it, in my judgment, to be held that they should have known it, and that, in consequence, there was constructive notice of the custom.

The judgment is reversed, and new trial ordered.

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

Montgomery, J.

(dissenting). Plaintiff; who was an employé of the defendant, was injured by a premature explosion of dynamite, caused by his attempting to stick a piece of dynamite in a hole in the rock too small for the stick. The facts of the case, briefly stated, are that the defendant was engaged in quarrying stone, using dynamite for blasting. The work was under the immediate charge of one Lemerand, a foreman. The plaintiff was engaged in drilling the holes to receive the sticks of dynamite. When plaintiff first commenced his work, the dynamite was in charge of one Freedon, called a “shooter,” whose duty it was to place the dynamite in holes previously prepared for the purpose at stated times during the day. The testimony on the part of the plaintiff tended to show that when he commenced work, some two months prior to the injury, he was instructed by Freedon to place a stick of dynamite in the holes last prepared by him before the shooting. The practice, as he testified to it, was this: Freedon would at a time near noon, or just preceding a blast, bring around dynamite, and place the sticks in such holes as were then completed, and at the same time leave with the drillers sticks of dynamite to be placed in additional holes when completed. After a time, Freedon was injured, and one Poland took his place. No additional instructions were given to the plaintiff by Poland, but plaintiff testifies that the dynamite was still left with him, and the practice continued. There was other testimony tending to show that the practice among the shooters was to leave dynamite with the drillers in the manner stated, and that this practice extended over a period, according to the testimony of one witness, of seven months prior to the injury. The plaintiff’s testimony tended to show that he knew that dynamite was dangerous, but that he did not know of the peculiar danger of pressing the dynamite into a hole; that he never was warned of this danger; that, on the occasion in question,, he pressed the dynamite with his thumb into the hole, and that it exploded, causing the injury. The defendant’s testimony tended to show that an explosion could not be caused by such- a use of the dynamite as plaintiff testified to. But we think this, under the testimony in the case, was fairly a question for the jury.

It is contended by the defendant, first, that from the knowledge it had, which did not include any positive information or knowledge that dynamite would explode under the circumstances stated, it was not the duty of the defendant to warn the plaintiff of such danger. The contention seems to be that it was the duty of the defendant to warn the plaintiff of such dangers as it had, from its experience or otherwise, acquired a knowledge of. But we think this states the rule too narrowly. We think at least the rule should be that, where a substance of this character is being used, the defendant is bound to warn its employes of such dangers as it knows of, or might by proper investigation have informed itself of; that want of knowledge on the part of the employer is not conclusively an excuse for the failure to give warning. We think, under the rule previously laid down by this court in Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215), that it was the duty of the defendant to give warning of any peculiar danger which the defendant knew of, or which, having regard to the character of the substance employed, reasonable care and prudence should have acquainted it with.

It is contended, also, that the plaintiff was guilty of contributory negligence; but whether he was or not depends upon whether he was bound to have a knowledge of the danger of which he had not been warned, and of which the defendant, by the testimony offered, appears not to have been itself informed. We think that the evidence upon this branch presented a question for the jury.

But it is contended, further, that the shooter who ordered plaintiff to load the hole was not acting within the scope of his authority, and that the work which the plaintiff assumed to do was voluntarily assumed. Upon this branch of the case the learned circuit judge charged the jury as follows:

“ If the jury find from the evidence in this case that the person in charge of the blasting, known as the ‘ shooter, ’ did direct the plaintiff to charge these holes, and that the plaintiff and the other drillers, acting in good faith and openly, believing such work to be in the line of their duty, did charge these holes for a period sufficiently long so that the defendant, by the exercise of ordinary care and prudence, should have discovered that the drillers and the plaintiff were charging the holes themselves, then the work of charging the holes with dynamite by the plaintiff will be deemed to have been done with the approval and under the direction of the defendant, and the defendant was then in duty bound to have warned the plaintiff of any latent and hidden dangers of his work.”

We think this charge fairly presented this question to the jury. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 212; Jones v. Railway Co., 49 Mich. 573 (14 N. W. 551); Walker v. Railway Co., 104 Mich. 606 (62 N. W. 1032). It is true the testimony on the part of the defendant tends to negative any knowledge on the part of the foreman that the drillers were making use of dynamite, but as against this there is the evidence that the foreman’s duties required his presence at this work every day; that he was all about the premises; and there is testimony strongly tending to show that the practice of the drillers of placing dynamite as above stated was continued for a period of seven months. If this be true, it certainly raised a question of fact for the jury as to whether the company did not, through its foreman, have actual knowledge that this practice was indulged.

The only questions discussed in the original brief of appellant are those which relate to the defendant’s claim that a verdict should have been directed in its behalf. There is no complaint made that, if there is a case for the jury, it was not properly submitted. The inference is that defendant is satisfied that the verdict should stand, unless the court shall determine, as a matter of law, that a verdict should have been directed. We think there was a case which entitled the plaintiff to go to the jury, and the judgment should be affirmed, with costs.

Moore, J., concurred with Montgomery, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    DETROIT & TOLEDO SHORE LINE RAILROAD CO. v. HALL.

    1. Railroads — Eminent Domain — Neoessity—Appeal.
    Where, in proceedings by a railroad company to condemn a right of way, both the court and jury, on conflicting testimony, have found the proposed road to be a public necessity, their decision will not be reviewed on appeal.

      2. Same —Bona Fide Effort to Acquire Land — Evidence — Jurisdiction.
    Where, in condemnation proceedings by a railroad company, the court, upon the issue whether a bona fide effort had been made to acquire the land, decided, on the evidence offered, that it was a case for a jury, but that the landowner might later offer additional evidence as to value for the purpose of perfecting the record, the refusal of another judge, before whom the matter was taken up, to hear the additional testimony, did not oust the court of jurisdiction to impanel a jury.
    3. Same — Finding of .Jury — Conclusiveness.
    Where, in condemnation proceedings by a railroad company, the jury viewed the premises, and the testimony as to value was conflicting, their finding thereon will not be reviewed on appeal.
    4. Same — Instructions—Necessity.
    In proceedings by a railroad company to condemn a right of way, an instruction that railroads are public necessities, and that the taking of land for railroads is taking land for a public use, was not objectionable as removing the question of necessity from the jury, where other instructions specifically stated that it was for the jury to determine whether the proposed road was a public necessity, and whether it was necessary to take the land in question therefor.
    5. Eminent Domain — Damages—Instructions.
    An instruction in proceedings to condemn land that the jury should pay the landowner what the land was worth, and no more, was not erroneous as excluding damages for anything on or under the land, as well as the damages resulting to the other land, where other instructions specifically stated that the value of the land was what it was worth, taking into consideration any injury that might be sustained to the land remaining.
    6. Railroads — Eminent Domain — Allowance of Attorney’s Fees — Appeal.
    2 Comp. Laws, § 6248, providing for an appeal from “the appraisal or report of the commissioners or jury ” in condemnation proceedings by a railroad company, does not authorize an appeal from the allowance of attorney’s fees to the owner of land condemned, made under the express authority of section 6240.

      Certiorari to and appeal from Wayne; Brooke, Hosmer, and" Frazer, JJ.
    Submitted January 13, 1903.
    (Docket Nos. 24, 25.)
    Decided May 29, 1903.
    Condemnation proceedings by the Detroit & Toledo Shore Line Railroad Company against Edmund Hall and Mary Hall. Respondents appeal from the award of the jury, and bring certiorari to review the anterior proceedings.
    Affirmed.

      Oscar M. Springer, for appellants.

      Brennan, Donnelly & Van De Mark, for appellee.

       Rehearing denied September 22, 1903.

   Moore, J.

These proceedings were brought to acquire a strip of land belonging to the respondent Hall for railroad purposes, containing 3.64 acres. The jury awarded for the taking of said land $364. Their award was confirmed by the circuit judge. The proceedings are sought to be reviewed here. There are 100 reasons assigned why the judge erred in confirming the award, and the printed record contains over 600 pages. The proceedings were commenced before. Judge Brooke, and conducted before him until directions were given for striking a jury. The jury was struck under the direction of Judge Hosmer, while the trial, after a jury was obtained, was conducted before Judge Frazer. It is likely some of the questions discussed by counsel would not have arisen if all the proceedings had been conducted under the supervision of but one judge.

It is claimed the proceedings must fail because there was no public necessity for another line of railroad between the points named in the petition, Toledo and Detroit. It is argued by counsel that, as the two railroads already constructed between those two cities can do all the business, another road is not necessary. On the other hand, it is claimed that the two roads between the two cities are practically under one management, so that there is no competition between them, and that there are nine railroads terminating in Toledo and six in Detroit, with no connection. between these terminals except the two roads mentioned, and that another connection was a public necessity. Proofs were taken in support of these diverse views. The judge, before he ordered a jury to be impaneled, must have been satisfied upon this point; and later the jury, as indicated by its award, was also satisfied. This court will not, under such circumstances, review their action. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271); Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 506 (15 N. W. 882); Saginaw, etc., R. Co. v. Bordner, 108 Mich. 236 (66 N. W. 62); Marquette, etc., R. Co. v. Longyear, ante, 94 (94 N. W. 670).

The second objection, and perhaps the most important one, is stated by counsel as follows:

“It was error to strike or to draw a jury to condemn appellants’ lands without giving appellants an opportunity to complete their proofs on the question of value of the property sought to be taken; for without such evidence the court could not determine whether or not a fair offer had been made to them by the appellee for the land before it filed its petition in this cause.”

Counsel says it must be made to appear that a bona fide effort to acquire the land has been made before the aid of the court can be invoked, and that, before that can be determined, the court must receive testimony as to the value of the land, and all the. testimony that the owner of the land desires to offer; citing a number of cases, but especially relying upon Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 579 (37 N. W. 872). The petition in this case follows the form approved in the Weiden Case. There was testimony taken before Judge Brooke showing that Mr. Hall was offered $100 an acre for his land by a representative of the company, and refused to take it. Testimony was also offered on the part of the railroad company that the land was worth $70 an acre. It was the claim of Mr. Hall that the land was part of a valuable stone quarry, and was worth at least $1,000 an acre. On the part of the railroad company it was claimed the land had no value as a quarry, and proofs were offered in support of these various claims. After the attorney for Mr. Hall had called all the witnesses he had in court, there was a discussion as to a further hearing at which'he might put in additional proof in relation to value. Any delay was objected to on the part of the railroad company. The court informed the attorneys, in substance, that there was such a wide difference in the estimates of values, and enough testimony had been put in upon that subject, that more witnesses swearing the land was worth $1,000 an acre would not change his opinion, and that he thought it his duty to order a jury; but that, if the attorney desired to put the record in better shape, he might, on the morning the jury was to assemble, call witnesses as to value; and made an order that a jury be called for the following Tuesday. Judge Brooke had occasion to leave the city before Tuesday, and the proceeding was taken up before Judge Hosmer. The attorney for Mr. Hall objected to the striking of a jury, and stated he desired to swear witnesses to show there were 12 apple trees upon the land, worth $150 to $200 apiece; that there was other timber, worth more than the entire amount offered by the railroad company; and that the stone under the land was worth upwards of $100,000. Judge Hosmer declined to hear this testimony, because he was of the opinion that Judge Brooke, in order to reach the conclusion that it was his duty to order a jury, must have been satisfied there was a bona fide effort made to acquire the title to the land, which effort had failed.

It is undoubtedly true that, if Judge Brooke had been present, he would have received this testimony; but it is evident, from what was stated by him, it would have been received only for the purpose of perfecting the record, so that his action might be reviewed in this court. It is very apparent he was satisfied there was such a wide difference of opinion as to the value of this property that the parties could not arrive at an agreement for right of way, and that it was a proper case to be submitted to a jury. The offer made on the part of the attorney for Mr. Hall accomplished the same purpose sought to be accomplished by Judge Brooke. There must come a time, in the preliminary proceeding before the judge, to decide whether a jury shall be called or not, when the taking of testimony shall end. It has already appeared that Judge Brooke was satisfied from the evidence which had been offered that a jury ought to be called, and that the evidence which was prqposed was cumulative, and would not change his opinion. As all this testimony might be offered before the jury, and later was offered, and the trial fully entered upon, we do not think the court lost jurisdiction by what was done.

The jury visited the premises. Complaint is made of instructions which are said to have been given to the jury limiting their inspection of the premises. Counsel says in his brief that in some way these instructions were left out of the printed record, but appear in the original transcript, as a reference will show, but does not say where in the transcript they may be found. Opposing counsel say no such instructions were given. The original transcript contains upwards of 550 typewritten pages, besides all the exhibits. The writer of this opinion has made a diligent effort to find the instructions which are said to have been left out of the printed record, and has been unable to do so. Under the circumstances he does not feel called upon to discuss further what is said by counsel upon that subject in the brief.

Counsel says:

“It did not appear in these proceedings at any time that the appellants asked an unreasonable price for the land, or that the appellee made a bona fide attempt to agree with them upon a price for the property desired.”

This raises a question of fact. An offer of $100 an acre was made and refused. The company claimed this would fully pay the damage, while Mr. Hall claimed it was only a small part of it. A very large number of witnesses were called. Their testimony was as far apart as it could well be. The jury visited the premises. In view of this conflict, we do not feel called upon to review the action of the jury as to the questions of fact. See Marquette, etc., R. Co. v. Longyear, ante, 94 (94 N. W. 670), and the cases there cited.

Complaint is made of the charge of the court to the jury. Counsel says the court erred in his charge. We quote from the brief:

“To charge the jury, as a matter of law, that ‘it has been repeatedly held that railroads are public necessities, and that the taking of lands for railroads is taking land for public use,’ without any qualification, amounted to removing the question of necessity from the jury. * * *
“To say to the jury, ‘Pay Mr. Hall what the land is worth, and pay Mr. Bewick what the land is worth, and no more than it is worth; that is all they are entitled to/ —limited the jury in their award of damages, and more than likely accounts for the small award, $100 per acre. By it the jury would understand they were to give no damages for anything on the land or under the land, and no damages for any change in the manner of conducting the quarries that would, as the uncontradicted evidence shows, becomes necessary as a result of taking the property.”

These statements, taken by themselves, removed from the remaining portion of the charge, do not give a proper impression of its effect. The judge charged the jury, among other things:

“The first question for you to determine is whether it is necessary to take this land for public use. The law says that a man shall not be deprived of his land unless he sees fit to part with it, unless that land is necessary for a public use. It has been repeatedly held that railroads are public necessities, and that the taking of land for a railroad is taking land for a public use. It is for you to determine whether this land is necessary to be taken by this railroad, and whether it is for the benefit of the public to have an additional railroad constructed from Toledo here. The various reasons assigned by the different parties on this question you have heard. It is claimed on the part of some that any number of railroads between here and Toledo would be a benefit to the public, and by the public is meant, not the parties immediately adjoining this railroad, but the public that are to be convenienced by the operation of this road either in carrying freight or in carrying passengers. If you shall determine that the construction of this road is a matter of public necessity, and that the public will be benefited by it, then you have a right to determine if this road is necessary for public use; and, if it is necessary for public use, they have a right to condemn this land under what is known as the right of eminent domain. That is the first question you have to determine. * * *
“ Now, its value is simply what it is worth, taking into consideration any injury that it may do to the party who ■owns the land; that is, to the land that is left. If this line cut right through the middle of a man’s farm, destroyed his house, cut him off from his corn, cut him off from the highway, or anything of that kind, those circumstances would all be necessary and proper for you to take into consideration for the purpose of determining not only the value of the land, but the injury it might do him in taking that land. If it is taken off the lower end of his farm, or .some place where it does not prevent him from having easy access to the highway, then it would damage him less; and all those matters are matters for you to take into consideration in fixing the value of this land, which is what it is worth, and what damage it may do to the property that may adjoin or that may be left.”

We have quoted enough from the charge to show the jury were properly instructed upon the two principal, questions in the case.

The other objections made to the award and its confirmation by the judge have been considered, but we do not deem it necessary to discuss them.

One question remains to be considered. Section 6240, 2 Comp. Laws, provides that the court shall allow the owners of land condemned, in addition to the damages and compensation awarded by the jury, a reasonable attorney fee, to be fixed and determined by the court when the report or verdict is confirmed. The judge allowed $100 as an attorney fee. The trial of the case lasted from September 5th to September 12th, inclusive. Counsel •spent much time before Judge Brooke before an order for a jury was made. He also appeared in the proceeding before Judge Hosmer, and spent time interviewing the witnesses and looking up the law applicable to the case. A party whose land is sought to be condemned has a right to contest its condemnation, and to employ counsel, and the statute contemplates the counsel shall be paid a reasonable amount for his services. Speaking for myself,' I think the amount the attorney was allowed in the court below was too small; but it does not follow that, because of that, the award should fail.

This situation presents the question as to whether or not an appeal is allowable from the order of the circuit judge fixing the amount of attorney’s fees, and, if allowable, whether or not this court will review the action of the circuit judge in exercising his discretion. We have asked counsel to furnish us with briefs upon this proposition, and they have complied with this request; but the diligence of counsel has not enabled them to find any authority for an appeal in proceedings of this character except that conferred by section 6248, 2 Comp. Laws, which provides, among other things, that:

“Within twenty days after the confirmation of the report of the commissioners or jury, as above provided for, either party may appeal, by notice in writing to the other, to the Supreme Court, from the appraisal or report of the commissioners or jury.”

It will be observed there is no provision in the statute for an appeal from the order of the judge making an allowance for an attorney fee. This would indicate the legislature deemed the judge before whom the proceeding was had better qualified to pass upon that question than would be a tribunal before whom all of the proceedings would not appear in the record, and intended to make the action of the trial judge final.

The award made in the court below is confirmed, with costs to appellee.

The other Justices concurred.


text:
    CHAPMAN v. PERE MARQUETTE RAILROAD CO.
    Railroads — Injury to Employé — Safe Appliances — Contributory Negligence — Direction op Verdict.
    A railroad brakeman was injured while operating a lever used in connection with a semaphore signal. It was a cold night. He had a lantern in his left hand. He stooped over, and with his right hand drew the pin which held the lever down. When the pin was pulled, the lever flew up, and struck him on the head. If he had put his foot or hand on the lever, the accident would not have happened. It was his claim that the upper wire of the device was unnecessarily taut. Held, error to refuse to direct a verdict for defendant, the appliance being reasonably safe, and the brakeman not having used proper care.
    Error to Saginaw; Beach, J.
    Submitted January 6, 1903.
    (Docket No. 6.)
    Decided May 29, 1903.
    Case by Claude H. Chapman against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      James H. Davitt, for appellee.
   Moore, J.

Plaintiff was a brakeman on the Pere Marquette Railroad, and a verdict was rendered in his favor for injuries received while operating a lever used in connection with a semaphore signal in the Saginaw yards. The case is brought here by writ of error by the defendant. Its claim is the court should have directed a verdict in its favor.

At the south end of the Saginaw yards of the Pere Marquette Railroad is a semaphore signal for the purpose of preventing collisions between the trains and switch engines which pass that point and operate in that vicinity. No train can pass into the Saginaw yards from the south except when this semaphore signal shows a clear main track. No train can pass from the switching yard to the main line without the semaphore signal being so set as to warn other trains. The movement of a train from the main line to the side tracks also requires the movement of the signal. The semaphore signal is operated by a lever situated on the ground in the yard about 1,300 feet from the signal, the two being connected by two wires running along the tracks. One of the wires pulls the semaphore to “clear” and the other pulls it to the semaphore post. At the lever the wires are attached to a chain, which passes over a wheel to which the lever is attached. The lever moves in a half circle, drawing on one wire, while the other at the same time is slackened. When down, it is held in place by an iron pin passing through two jaws on each side of the lever, in holes just above the lever. This pin must be removed before the lever is operated. Photographs of the lever aid in understanding its operation and construction. The lever not only operates the semaphore signal about 1,300 feet away, but its operation also locks or unlocks the switch near it. A rod from the lever runs to and locks the switch, thus preventing a brakeman from opening the switch until he has first changed the semaphore by the use of this lever, thus warning other trains that the main line is not clear. The head brakeman (on a train entering Saginaw from the south, and desiring to pass from the main, line to the yard tracks) goes to this lever, removes the pin which holds it down, turns the lever clear over, thereby setting the semaphore signal, and by the same movement unlocking the switch close by the lever. He then turns the switch, his train passes in, and, when it has entirely passed, the rear brakeman closes the switch, and, with the lever, resets the semaphore signal to “clear.”

Plaintiff was head brakeman on a freight train from Port Huron to Saginaw, which entered the Saginaw yards about 3 a. m. on March 6, 1901. It became his duty to change the lever so as to shift the signal and turn the switch, to enable his train to cross over from the main track to the yard. It was a cold night. He had his lantern in his left hand. He stooped over, and with his right hand drew the pin which held the lever down. He did not put his hand or his foot on the lever to prevent it from flying up. When the pin was pulled, the lever flew up, struck the plaintiff on the side of the head, and hurt him severely. He had not operated this lever before.

It is the claim of the plaintiff that the upper wire was drawn unnecessarily taut, making it dangerous to operate the lever, and he gave testimony tending to show that two or three other levers of a similar character, one of which was in the same yard, did not fly up when operated in the way he operated this one. It was the claim of defendant that the operation of the semaphore required there should not be too much slack in the wires running to it; that the other levers were differently situated from this one; that the way to operate the lever was to grasp the end of it with the hand, and then release the pin; and that, if the plaintiff had properly operated it, he would not have been hurt.

The testimony and the photographs show the mechanism was a 'simple one. The lever was held in place by a pin. When the pin was withdrawn, the lever was moved by the hand nearly half way around the arc circle, and held in place by a pin put over it. All the testimony, including that of plaintiff, discloses that, if plaintiff had put his foot or his knee or his hand upon the top of the lever before withdrawing the pin, the accident would not have happened. We think it clear the appliance was reasonably safe, and that, if plaintiff had exercised such care as is due from an employe to his employer, the injury would not have occurred. See Brewer v. Railway Co., 56 Mich. 620 (23 N. W. 440); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517), and cases cited therein. Under the facts disclosed by the record, a verdict should have been directed in favor of defendant.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, C. J.

text:
    PUGH v. SCHINDLER.
    1. Ejectment — Boundaries—Issues.
    In ejectment, involving the true boundary line between plaintiff’s and defendant’s lands, situated, respectively, to the south and north of the east and west quarter line of the section, both parcels being bounded on the west by the north and south quarter line, the question as to the exact location .of the latter line was immaterial.
    a. Same — Instruotions—Burden of Proof.
    A statement by the court in such action, that “it will not do to permit boundaries t.o be disturbed and moved upon a survey made from an assumed starting point, without some proof of its being a true line, located and fixed by the government survey,” was not misleading, where the court had already charged that plaintiff’s claim could only be established' by a preponderance of the evidence.
    3. Same — Old Fences.
    A request to charge that a crooked fence of long standing, dividing the respective parcels, was better evidence of the boundary line between them than a recent survey, was properly refused, especially where there were traditions and alleged agreements on the assumption that it was not the boundary line, and where, moreover, counsel themselves stated that there never was a government line run, but that the practice was only to fix and establish quarter posts on the outside and at the center of sections.
    4. Same — Appeal—Objections Not Raised Below.
    An objection of a variance between the declaration and the verdict in ejectment in the description of the premises will not be considered on appeal, where not raised in the lower court or supported by an assignment of error.

      Error to Kent; Perkins, J.
    Submitted January 16, 1903.
    (Docket No. 56.)
    Decided May 29, 1903.
    Ejectment by John A. Pugh against Charles Schindler and others.- From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Rodgers & Rodgers, for appellants.

      Ward & Brown, for appellee.
   Hooker, C. J.

This is an action of ejectment. The parties own adjacent lands; the plaintiff having the original title to a parcel of 15 acres in the northwest corner of the southeast quarter of the section, while the defendants have the original title to the northeast quarter of the same section. The dispute arises over the location of the east and west quarter line, which separates the parcels, and the north and south quarter line, which marks the western limit of the disputed parcel. Only a few rods of land are involved. A fence has separated these tracts for many years. The plaintiff claims that this fence is not upon the true line, and that it was built and has been maintained upon an agreement that it might not be accurate, and that it should be subject to change when a proper survey should establish the true line. Plaintiff claims-that such a survey has now been made, and that it marks the northern and western boundaries of the disputed strip, while the old fence marks its southern limits. ' The defendants claim (1) that the alleged survey is not correct, and does not show where the true line is; (2) that the fence is on the true line; (3) that, irrespective of the question of the location of the true line, the occupancy was never upon' the understanding alleged by the plaintiff, but has been adverse. The plaintiff recovered a judgment, and the defendants have appealed.

It is manifest that the jury must have found that the survey shown by the plaintiff was correct, and established the true quarter lines. A number of questions relate to this subject. The real controversy between these parties is whether the defendants’ fence is too far south. The jury found that it was, and there was testimony from which it might be found. We think the court did not err in submitting the question to the jury.

The description in the declaration is, “A strip of land, about thirty-one feet in width north and south, and twenty rods in length east and west, in the northwest corner of the southeast quarter of the section.” The defendants now contend that there is a question concerning the eastern and western boundaries in the case, growing out of an alleged uncertainty as to the north and south quarter line. There was testimony regarding two stakes on the north side of the section, about six feet apart. This would make a variation of about three feet at the center of the section. The description in the declaration is perfect, and extends to the center of the section (i. e., to the north and south quarter line, wherever it is), and we understand that the west line of each party’s property has that line for a boundary, wherever it is. If it is farther west than defendants claim their land to extend, we do not see that the defendants are losers. The verdict described the land substantially as it was described in the declaration, though more definitely. It is manifest that if the defendants surrender the strip of land upon the north side of plaintiff’s land, which is the real matter in controversy, there will be no confusion. They will not be expected to give up land to the west of the west line of their property, nor east of the east line of plaintiff’s inclosure; and we think the controversy over the north and south quarter line of no importance. It is a technical question, without substance, especially in view of the fourteenth request, and the offer of counsel, made at circuit and renewed here, to waive the three-foot strip off from the west end of the lot. This disposes of the alleged errors in relation to testimony and requests involving the north and south quarter line.

The court is said to have erred in stating .that “it will not do to permit boundaries to be disturbed and moved upon a survey made from an assumed starting point, without some proof, as I have said, of its being a true line, located and fixed by the government survey.” It is contended that he should have said “established by a preponderance of the evidence.” As he had already instructed the jury that the plaintiff’s claim could only be established by a preponderance of the evidence, we think that they were not misled.

Counsel ask us to reverse the judgment because the court erred in instructing the jury that the defendants claimed that “the fence, as now standing upon the premises, is located upon a line which would be indicated by the government survey dividing these parties’ lands; in other words, that the true line is where this fence now stands.” They say:

This was a clear mistake. We never claimed that our fence was. on the true line as located by the government survey, and in fact were very strenuous throughout the entire trial in claiming that no one at this late day knows or has any way of finding out where the government surveyor located that line, and consequently that our fence is the best evidence of where the line is.”

The latter quotation falls little short of claiming the old fence to be upon the true line, and, if it is not sufficient, the judge was authorized to understand such claim to be made from defendants’ fifth request, upon a refusal to give which error is assigned. It is enough to say of this that there was some evidence that it was not upon the true line, and it was not for the judge to-say, impliedly or otherwise, that there was not. Again, the contention that the judge should have practically decided the case, by saying that this crooked fence was better evidence of the line in its entirety and at all points than a survey made lately, was properly refused. There was not only a deviation from the direct, that is inconsistent with the theory of a correct line, but there were traditions and alleged agreements upon the assumption that it was not. Moreover, counsel themselves state that there never was a government line run, and that the practice was only to fix and establish quarter posts on the outside and at the center of sections. If this is true, the essential thing was to establish the quarter posts; and there would be no presumption that the fence, as a whole, was upon a true line, if it was a crooked fence. The crooked line might become the established line by adverse possession, but it could never be the original or true government line, because none was actually run, and theoretically the true line would be straight. This might not be true of lines actually run by government surveyors.

It is said that the court erred in saying that it was claimed that the fences east and west started at quarter posts when built. It is said there was no testimony tending to show where the west fence started from. The charge does not state what the testimony was in that regard, and the whole question was left to the jury upon such evidence as there was as to where the quarter posts were. There was no error in this, or in stating the claim of the. plaintiff.

The point is made that the judgment is erroneous because the description varies from the declaration. The verdict is as follows:

“Commencing at the center of the section 32, running east 307.3, thence south 28 feet, then west 307.3, then north 33 feet to.the place of beginning.”

The declaration describes the land as a strip about 31 feet wide, so that there is a variance of a wedge-shaped piece, 2 feet wide on the west end, and extending east to a point less than half-way to the east end of plaintiff’s tract. We have frequently held that the verdict must follow the declaration as to description, or that, at least, the declaration must cover and include the land recovered. Had this been brought to .the attention of the trial court, he would doubtless have permitted an amendment, which would have been within his authority. No question was raised by defendants, that we discover, until the case reached this court, and we find no assignment of error that raises the question.

We think there is no occasion to discuss other assignments of error.

The judgment is affirmed.

The other Justices concurred.


text:
    GRAY v. SEELEY’S ESTATE.
    Estates of Decedents — Allowance of Claims — Liability of Estate — Services Rendered to Decedent’s Widow.
    Where a testator bequeathed to his wife his estate for life, and then to his children, accounts for medical services performed for the wife after the testator’s death were not proper charges against his estate, though his executor received, during the lifetime of the wife, rents of the estate which belonged to her, and expended them for the use of the estate, but such accounts were debts due from the widow, collectible on her death from her estate.
    Error to Oakland; Smith, J.
    Submitted February 3, 1903.
    (Docket No. 61.)
    Decided May 29, 1903.
    Mason W. Gray, also Franklin P. Galbraith and William McCarroll, copartners as Galbraith & McCarroll, presented claims against the estate of Zachariah L. Seeley, deceased, for medical services rendered to decedent’s widow. The claims were allowed in the probate court, and George E. Seeley, executor of the estate, appealed to the circuit, where claimants again prevailed, and defendant brings error.
    Reversed.

      John D. Harger, for appellant.

      Patterson & Patterson, for appellees.
   Hooker, C. J.

At the time of his death, in 1891, Zachariah L. Seeley owned a farm worth $2,950, subject to a mortgage of $800. He died testate, and his will was probated in June, 1891, his son George E. Seeley being appointed executor. The second, third, and fourth clauses of the will are as follows, viz.:

“Second. I give, grant, and bequeath to my beloved wife, Julia Seeley, should she survive me, the use of all my estate, both real and personal and mixed, so long as she shall live, and, after her death,'—
Third. I give and bequeath to my son, Llewellyn Seeley, of West Bloomfield, Oakland, the sum of five dollars, having already given him a portion of my estate.
“Fourth. I give, grant, and bequeath the remainder of my estate to my sons and daughters, and should either of my said sons or daughters decease, leaving heirs of their body them surviving, then the share of such deceased one or more is to be paid to such heir or heirs.”

Some 15 months after the testator’s death, Galbraith and McCarroll, who are physicians, began rendering professional services to Mrs. Seeley, and these services amounted to $73.25. Gray began treating her some four years later, and his charges are $131. Mrs. Seeley died, and after-wards petitions were filed by the parties for their respective claims against the estate of Zachariah L. Seeley in probate court, and upon a hearing the claims were>allowed. An appeal was taken by the executor, and the orders of the probate court were affirmed in the circuit. The two cases were presented as one in this court. The findings of fact were similar, except that, in the case of Gray, the widow handed- him $1 when he made his first visit, and said:

“This is all I can pay. It is so fixed that when I am gone you will get your money, every dollar of it.”

No such payment or promise was found in the other case. It was found further in both cases that the executor had control of the property up to the time of trial; that he continued the tenant on the farm, who was there when Seeley died, for a time, and then leased it to one Wright, who remained there until the widow’s death. Of the money received as rent, the widow received $30 per year, the^executor $55, and this occurred for seven years or more, and it did not appear whether the widow was willing that he should receive this money or not. The findings of law are, in substance:

1. The husband’s estate is not liable for medical attendance furnished to his widow, nor for necessaries furnished to her.
2. Her statement that the estate will pay for such will not of itself make the estate liable.
3. The rent received by the executor belonged to the widow, and he has expended it for the estate, or must account for it; and the probate court may follow such fund, and allow these claims, if their aggregate does not exceed such fund.

It is clear that the accounts of these plaintiffs are not legitimate charges against the estate of the deceased husband, and that they are debts of the widow, and could be collected from her estate, if she left one. If the executor of her husband’s estate has earnings of the property to which she was entitled, or if she was entitled to have her debts paid out of his estate under a proper construction of the will, her administrator has a valid claim against the executor for the necessary amount, and these are assets of her estate. To obtain them an administrator of the widow’s estate would be necessary, and the plaintiffs’ claims would have to be presented and allowed as against her estate before the administrator could be safe in paying them. There is no privity between the plaintiffs and the executor of the husband’s estate.

The judgments are reversed. Judgment will be entered upon the findings in favor of the defendant in each case for costs of both courts.

Moore, Grant, and Montgomery, JJ., concurred. Carpenter, J., did not sit.


text:
    BARR v. GUELPH PATENT CASK CO.
    Injury to Employe — Negligence—Question eor Jury. Case ruled by former decision, 129 Mich. 278.
    Error to Benzie; Chittenden, J.
    Submitted February 5, 1903.
    (Docket No. 73.)
    Decided May 29, 1903.
    Case by Emma Barr, administratrix of the estate of Daniel Barr, deceased, against the Guelph Patent Cask Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Marie, for appellant.

      Charles A. Withey (D. G. F. Warner, of counsel), for appellee.
   Moore, J.

This case has been tried twice". Upon the first trial the circuit judge directed a verdict in favor of the defendant. An appeal was taken to this court, which ordered a new trial. Upon the second trial a verdict was rendered in favor of the plaintiff. The defendant brings the case here by writ of error. The opinion rendered in this court when the case was here before is found in 129 Mich. 278 (88 N. W. 640). A reference to that opinion will make it unnecessary to make a long statement of the case here.

Upon the second trial, in addition to the testimony offered upon the part of the plaintiff, testimony was also introduced upon the part of the defendant, and it is claimed on the part of the defendant the record which we now have differs from the record when the case was presented here before. It is true that the trial judge, upon the objection of defendant’s attorneys, declined to admit some of the testimony on the part of the plaintiff which was received upon the former trial. It is also true that testimony was offered on the part of the defendant, when none was offered before. This had the effect of presenting a weaker case on the part of the plaintiff, and a stronger case on the part of the defendant; but it did not wholly eliminate the questions of fact, and a careful. comparison of the two records does not indicate any material difference, except in degree, in relation to the question of fact which was involved; Many of the cases cited by counsel were cited in the former briefs, and some of the same arguments used then are used now. A careful reading of the present record satisfies us that now, as when the case was here before, the proofs disclose a case which should be submitted to a jury. It would not do any one any good to review the record in detail. See former opinion and Brown v. Railroad Co., 118 Mich. 205 (76 N. W. 407). The trial judge submitted the case to the jury under a very careful and impartial charge.

The judgment is affirmed.

Hooker, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., did not sit.


author: Moore, J. Montgomery, J.

text:
    PAGE WOVEN WIRE FENCE CO. v. POOL.
    1. Bills and Notes — Lost Instrument — Payment to Holder After Notice.
    Payment of a note by the maker after notice that the instrument has been lost, though the note be payable to bearer, does not extinguish the liability thereon, unless the person presenting it for payment be required, before payment, to prove his title thereto.
    2. Same — Presumptions—Burden of Proof.
    The maker of a note was notified by the payee that it had been sent to a bank for collection. She called at the bank, where the cashier told her that it had not been received, and had probably been lost in transit. He nevertheless requested her to pay it, which she declined to do without its production. She subsequently claimed to have paid the note to one representing himself to be the agent of the payee. On the trial of an action on the note it was produced by the maker, at which time it bore the indorsement, ‘ ‘ Pay to the order of any bank for collection and remittance ” to the payee. Held, that the presumption of an authorized payment of the note, arising from its possession by the maker, was overcome, rendering it incumbent upon her to prove a payment under such circumstances as would discharge her from liability.
    Moore and Grant, JJ., dissenting.
    3. Same — Indorsement for Collection — Effect.
    The mere indorsement of a note to a bank for-collection does not prevent the payee or his agent from demanding and receiving payment thereof.
    Error to Montcalm; Wiest, J., presiding.
    Submitted February 17, 1903.
    (Docket No. 78.)
    Decided May 29, 1903.

      Assumpsit by the Page Woven Wire Fence Company against Phoebe M. Pool on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Herbert li. Clark and L. C. Palmer, for appellant.

      V. H. & H. H. Smith, for appellee.
   Moore, J.

On September 28, 1899, Phoebe M. Pool, of Montcalm county, Mich., gave to the Page Woven Wire Fence Company an instrument which reads as follows:

“$200.
“Grand Rapids, State oe Michigan, Sept. 28,1899.
“Ninety days after date, I, of Lakeview post-office, residing in the town of Cato? county of Montcalm, State of Michigan, for value received, promise to pay to the order of the Page Woven Wire Fence Co., or bearer, without default, two hundred dollars, payable at Lake-view Bank, with exchange and collection charges. Interest at seven per cent, until paid.
“Residence, 4-£ miles S. E. of Lakeview post-office.
“Phcebe M. Pool.”

About the 23d of November, 1899, a letter of transmittal for tbe same was written and addressed to the Farmers’ & Merchants’ Bank of Lakeview, Mich. At the same time a letter addressed to Mr. Philo M. Pool, Lakeview, Mich., was written, to notify the debtor that the obligation had been sent to the bank. It is claimed the Farmers’ & Merchants’ Bank of Lakeview did not receive, the letter of November 23d, nor did it ever receive the note in question. The note was never seen by the plaintiff again until seen in the hands of the defendant. December 1st, eight days after the writing of the letter to Philo M. Pool, a letter was written by plaintiff, addressed to Phoebe M. Pool. This letter was received by her. Six days thereafter Mrs. Pool addressed a letter to E. E. Metcalf, the indorser of the.note, at Grand Rapids, Mich., saying that the debt would be paid. ,, Some time after November 23d, the Page Woven Wire Fence Company wrote to the Farmers’ & Merchants’ Bank of Lakeview* advising them that .they had sent a collection against Mrs. Pool to the bank about the 23d of November. Upon receipt of this, Mr. Sorensen, for the bank, examined his files, and wrote the company he had no such collection, and had never had it.

Some time in December Mrs. Pool was in the bank, and talked with Mr. Sorensen about the note. He told her he thought it was lost, and requested her to pay it and take a receipt for it, which she refused to do, and stated she would not pay it until it was produced. Upon the 12th of January, 1900, the company wrote again to Mrs. Pool, asking her to pay the note, and suggested that it may have been lost. Upon receipt of this letter she wrote them she had paid it on the day it came due “ to your man Lamb,” at her home. Upon receipt of this letter, the company wrote Mrs. Pool on January 24th, expressing their surprise that the note had been presented to her, and asking for full particulars about the transaction. Upon March 21st the cashier of the company wrote Mrs. Pool he would call upon her about this matter, and shortly thereafter he did, when Mrs. Pool showed him the note in question, from which her name had been torn off. He made a copy of it and took it away with him. She told him of the circumstances connected with the payment of the note, how much she had paid, where she got the money, that she borrowed part of it, and described the man Lamb, to whom she had paid it. She said she paid it about üusk the 27th of December in her home; that there was one man in the room when she paid it, and another outside, in the carriage.

It is to recover upon this note this suit was brought. After plaintiff put in its proof, a motion was made to direct a verdict for the defendant. The judge was of the opinion that the presumption surrounding the payment by the defendant because of her possession of the note had not been overcome, and directed a verdict in favor of the defendant. The case is brought here by writ of error.

It is conceded that the only question is whether the plaintiff introduced sufficient proof to shift the burden to the defendant to show she made payment under such circumstances as would protect her. It is conceded that possession of a promissory note by the maker is presumptive evidence of its payment, but it is said the presumption is not conclusive, and, as the maker of this note had notice of its loss before she. paid it, she should have required the person presenting it to establish his title to it before paying it. It is also contended that the note is nonnegotiable, for two reasons: (a) Because of the words ‘£ with exchange and collection charges;” (b) because of the indorsement on the back, ‘‘ Pay to the order of any bank for collection and remittance to Page Woven Wire Fence Company, Adrian, Michigan,” — and that the payment of it to a stranger was made at the peril of the payor.

The case of Cothran v. Collins, 29 How. Prac. 113, resembles this case in many ways. In that case it was said:

“Thes'e exceptions present the question whether payment of a note, which has been lost or stolen from the owner, by the maker to the finder or-thief, without fraud, in other words, under the belief that he was the true owner, but under circumstances showing that the maker was grossly negligent in not learning the facts, and which would have excited suspicion in an ordinary person, is available as a defense against the real owner. The judge upon-the trial held, and so instructed the jury, that such payment constituted a defense against the owner. Such I understand to be the fair construction of the charge. The plaintiff insists as one ground why such payment is not good that it was made after the note became due. It is well settled that a party purchasing a note or bill after the same becomes due takes it subject to all defenses the maker or other parties would have against the party from whom he purchases. But this doctrine, I think, has no application to payment made to a party in possession by the party liable. The rule as to a purchaser is founded upon a presumption that valid notes or bills are paid by the parties liable thereon at the time they become due, and that nonpayment at that time is notice to all subsequently acquiring title to the paper that the same is for some reason invalid, or that there is no subsisting cause of action thereon. But the maker of a note has no reason for supposing, from the fact that he has not paid the same when due, that the title of the possessor is invalid. Indeed, notes are very rarely paid before due, and cases of presentment for payment before that time are still more rare.
“We have seen that notes are not paid until or after due, usually, and there is surely as much reason that the party liable should be unembarrassed in making payment, and that he should be protected in paying to one in possession, and prima facie entitled to receive it, as that a purchaser in the usual course of business, for value, should be protected in his title. Indeed, if any distinction should be made, I think the rule should be more favorable to the party making the payment. He must act at once, not only to preserve his credit, but to protect himself from the trouble and expense of a suit, while the purchaser would merely lose a bargain.”

See, also, Davis v. Seeley, 71 Mich. 209 (38 N. W. 901).

We do not deem it necessary to decide whether the paper given by Mrs. Pool to the plaintiff was a negotiable note or a contract. It was made payable to the plaintiff or hearer, payable at the Lakeview Bank, with exchange and collection charges. Mrs. Pool was notified it had been sent to the bank. She was at the bank, ancl was there informed it had not been received by the bank, and was requested to pay it. She indicated her willingness to pay it, but declined to do so unless the note was produced. At the date of its maturity this paper, payable to bearer, was brought to the house by a man who claimed to be the agent of the company; and Mrs. Pool, if her statement to the cashier is to be believed (and there is no other version of what occurred), paid to this agent the full amount due upon the note, and it was delivered to her. We do not think this statement of facts tended to overcome the presumption of payment arising from the production of the note by Mrs. Pool. See Page Woven Wire Fence Co. v. Pool, 129 Mich. 57 (87 N. W. 1043); 3 Rand. Com. Pap. (2d Ed.) § 1475.

Judgment should be affirmed.

Grant, J., concurred with Moore, J..

Montgomery, J.

The facts are stated in the opinion of my Brother Moore. It should be added that no evidence was offered on. behalf of defendant, so that the question whether she paid the note in fact, and the circumstances under which she made payment, rest entirely upon her own unsworn statements made to the cashier of the company.

It is the contention of the defendant, as we understand it, that, having produced the note, the presumption of an authorized payment arises, and that, before this presumption can be overcome, the burden rests upon the plaintiff to show that the payment was actually made in bad faith. The case chiefly relied upon to sustain this contention is the case of Cothran v. Collins, 29 How. Prac. 113. The case is an extreme one, but, if followed, does not rule the present case. In that case there was no evidence that the defendant had any notice whatever that the note in question had been lost. The same thing is true of Greve v. Schweitzer, 36 Wis. 554. The present case presents a very different question. It is stated in the text-books as -elementary law that, where notice that an instrument has been lost or stolen has been brought home to the maker, payment thereafter made will not extinguish liability, unless the party presenting the instrument is required, before payment, to establish title thereto. 2 Daniel, Neg. Inst. § 1461; Byles, Bills, 378; 2 Pars. Notes & B. 256. See, also, Hinckley v. Railroad Co., 129 Mass. 52 (37 Am. Rep. 297), which is a very instructive case, and the whole subject is discussed; Bainbridge v. City of Louisville, 83 Ky. 285 (4 Am. St. Rep. 153).

We are unable to see any good reason for denying the equity of this rule. Where one of two innocent parties must suffer, the law casts the burden upon him who is guilty of a want of diligence or care. And in case of a lost instrument it is difficult to see what more the owner of the bill may do than to bring home notice to the maker of the fact of such loss, thus bringing to his knowledge that the instrument is likely to be presented by one not entitled to receive payment thereon. If, with such information, no duty of care is cast upon the maker, and nothing short of absolute mala fides will invalidate a payment made, the law affords little protection to the payee; and most emphatically is this so if, when knowledge of the loss is brought home to the maker, the bare possession of the note is sufficient to render recovery impossible, for such is the effect of declaring that actual mala fides must be shown. In the present case it is true that no notice was received by the maker of the loss of the instrument, prior to the payment, direct from the payee of the note, but she had this notice. Notice was sent her of the fact that the note had been mailed to the bank, and the cashier of the bank had informed her that the note had not been received at the bank, and that it probably was lost in transit; and, when the note was presented to her for payment, it had the indorsement on the back, Pay to the order of any bank for collection and remittance to Page Woven Wire Fence. Company.” Was this sufficient notice that the note had been lost? We think it was. The defendant had notice of every fact which, if true, showed the loss, to wit, the mailing of the note to the bank, the failure of the bank to receive it, and, furthermore, the statement of the cashier of the bank to her that he thought the note was lost, and a request by him for payment without the production of the note. The defendant therefore occupies the position of one paying a note to one not authorized to receive it, having notice of its loss, and, so far as the record discloses, without any inquiry or investigation as to the title of the holder.

It is claimed that the indorsement of the note to a bank for collection was a restrictive indorsement, and that for this reason the defendant was not justified in making payment to this alleged agent of the plaintiff. We do not accept this view of the plaintiff. While the indorsement was a circumstance showing want of care on the part of the defendant, it is by no means conclusive, for it cannot be doubted that the payee of the note, notwithstanding that it bore the indorsement in question, would have the right to demand and receive payment. The record fails to disclose what care the defendant exercised in making payment to the holder, and, upon this record, 'we think it was error to instruct a verdict for the defendant.

Judgment will be reversed, and a new trial ordered.

Hookee, C. J., and Carpenter, J., concurred with Montgomery, J.


text:
    DURGIN v. SMITH.

    1. Promise on Behalf of Proposed Corporation — Personal Liability. ,
    Even if a promise that a corporation which the promisors contemplate organizing shall perform certain undertakings is not binding on such corporation, it not being in existence at the time, this does not make the promisors personally liable.

      2. Contracts — Misunderstanding—Evidence.
    That there was a misunderstanding between the parties as to what was agreed to between them can be deduced only from the language used, not from the testimony of one that his understanding was different from the claim of the other.
    Error to Wayne; Brooke, J.
    Submitted February 18, 1903.
    (Docket No. 93.)
    Decided May 29, 1903.

      Assumpsit by William B. Durgin against Frank G. Smith, Sr., and Frank G. Smith, Jr., upon an alleged promise to pay the debt of a third person. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Moore & Goff, for appellants.

      Bowen, Douglas, Whiting & Murfin, for appellee.

       Rehearing denied September 22, 1903.

   Hooker, C. J.

A review of a former trial of this cause will be found in 115 Mich. 239 (73 N. W. 361), where an outline of the facts of the case can be found. Upon a second trial the jury rendered a verdict for the plaintiff, and the defendants have appealed.

The plaintiff’s contention is that the defendants personally promised to pay plaintiff’s claim against the insolvent corporation in consideration of plaintiff’s promise to sell his goods to a new corporation, which the defendants contemplated forming.. The defendants claim that their promise was not their personal promise to pay, but a promise that such proposed corporation would pay. The testimony of the parties supported their respective claims. Plaintiff, having furnished goods to the new corporation, brought this action upon the contract, and the only important question was one of fact, viz., whose version of the oral agreement was true. The court submitted this question to the jury. He followed the charge proper by giving requests handed up by both parties; among them the following, viz., plaintiff’s request No. 5:

‘ ‘ If you find that the defendants made a promise to pay to the plaintiff the existing indebtedness of F. G. Smith, Sons & Co., and the plaintiff on his part kept his promise to sell exclusively to the defendants, or such concern as they should thereafter organize, and even if you find that such promise was made with the intent on the part of the defendants to bind a corporation which they contemplated organizing thereafter, then, inasmuch as they could not bind such future corporation, having no authority to do so, they are individually liable on such promise so made, and your verdict should be for the plaintiff for the amount stated.”

He afterwards gave defendants’ ninth request, as follows :

“The plaintiff testifies that the defendants, Smiths, agreed to pay the old account, and pay interest at the rate of six per cent, semi-annually, and to pay in thirty days for all goods purchased, he on his part to sell them such goods as they wished, and to give them the exclusive sale of his goods. In order to make a valid contract, the minds of the parties must meet and agree upon the terms of the contract. If the jury find that the plaintiff and defendants did not agree as to the main features of the alleged agreement, the plaintiff cánnot recover.”

These requests are inconsistent with each other, and a jury would be likely to understand from the former that, although the defendants did not intend to bind themselves personally, and did not agree to do so, they would still be liable, because they could not bind the corporation, inasmuch as it was not yet in existence. We need not discuss the question whether it was possible to bind such corporation. The substance of this request and instruction was that the jury must find this promise binding on defendants personally, whether they made a promise to pay personally or not. This was erroneous. >

Several other questions are raised. It is contended by defendants that the request already held erroneous did violence to the rule that the minds of the parties must meet, to make a binding contract. If the testimony, taken as a whole, can be said to have justified the conclusion that there was a misunderstanding between the parties as to whether this was a promise that the defendants should pay, or that it should be an obligation of the new corporation only, the plaintiff had failed to prove a binding contract. Such a deduction could be drawn only from the language used, not from testimony of one of the parties that his understanding was different from the claim of the other. Booth v. Bierce, 38 N. Y. 463 (98 Am. Dec. 73); Miller v. Lord, 11 Pick. 11, 23; Woollam v. Hearn, 7 Ves. 211; Higginson v. Clowes, 15 Ves. 520; Winchester v. Howard, 97 Mass. 303 (93 Am. Dec. 93). We have not had called to our attention any evidence which justifies the conclusion that there was any such question in the case. It seems to have been a question of what was said, rather than what was intended by the parties; and in this connection it is proper to say that the questions covered by assignments 1 to 5, inclusive, were correctly disposed of. The letters mentioned show what they referred to, and it was not for the defendants to place a construction upon them by indicating an intention to admit only the liability of the corporation.

It is unnecessary to discuss other assignments.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    BIGELOW v. THOMPSON.
    Mortgages — Equity Jurisdiction — Injunction—Accounting.
    Equity has jurisdiction to restrain the grantee in a timber deed intended as a mortgage from cutting the timber, and to ascertain whether the mortgage has been paid; and, an accounting having shown a balance due to complainant; a decree may be entered for its payment.
    Appeal from Missaukee; Chittenden, J.
    Submitted February 20, 1903.
    (Docket No. 110.)
    Decided May 29, 1903.
    Bill by William G. Bigelow against Henman A. Thompson and others to have a deed declared to be a mortgage, and for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      F. O. Gaffney, for complainant.

      Smith, Nims, Hoyt & Erwin, for defendants.
   Hooker, C. J.

The bill in this cause was filed by the grantor in a quitclaim deed of timber, to have it declared a mortgage and for an accounting, and to enjoin the grantee from cutting the timber. The defendant has appealed from a decree granting the prayer of the bill.

We are urged to reverse this decree upon the ground that the evidence that the deed was intended as security was not clear and convincing. While it is true that the defendant denies complainant’s statement of the transaction, we think the circumstances tend to support the complainant’s testimony, and that we should not disturb the finding of the circuit judge upon this point. He saw the witnesses, and the evidence may have been very convincing. We are satisfied that it clearly preponderates in complainant’s favor.

If it is true that the debt for which the deed was given .as security has been paid, a court of equity has jurisdiction, to restrain defendant from cutting the timber under a claim based upon it, and to ascertain whether it has been fully paid or not. An accounting is necessary, and, having ascertained that there is a balance due complainant, it is proper to determine the amount and decree its payment.

The result reached by the learned circuit judge is, in •our opinion, justified by the testimony, and his decree is affirmed, with costs.

The other Justices concurred.