author: Stone, J. Kuhn, J.

text:
    KETHLEDGE v. CITY OF PETOSKEY.
    1. Damages — Negligence — Personal Injury — Permanent Injury-Evidence — Municipal Corporations.
    The trial court, in a personal injury case, erred in submitting to the jury the question of the permanency of plaintiff’s injuries where there was no testimony in the case that tended to establish a probability amounting to reasonable certainty thát they would be permanent. Giving instructions upon an element of damages which is unsupported by evidence is misleading and erroneous.
    2. Same — Evidence—Negligence.
    The degree of proof which will entitle a plaintiff to recover for future loss and pain must be such that there is a reasonable certainty of future damage from the original injury.
    3. Same.

      Held, that plaintiff’s evidence tending to show decreased earning capacity was meager.
    4. Same — Education. .
    It was erroneous to permit plaintiff to recover for preventing her completing her education, upon her testimony that one year after her injury she was able to return to school and had been for some time working in a telephone office; the evidence showing, at most, delay.
    5. Same' — ■ Curing Error — Appeal and Error — Permanence of Injuries.
    The fact that plaintiff recovered only a small verdict, and that defendant did not claim that the damages were excessive, did not cure the erroneous instructions on the question of damages.
    Error to Emmet; Shepherd, J.
    Submitted January-20,'1914,
    (Docket No. 27.)
    Decided March 26, 1914.
    Case by Marie L. Kethledge, by her next friend, against the city of Petoskey for personal injuries. Judgment for plaintiff, and defendant brings error.
    Reversed.

      B. H. Halstead (B. T. Halstead, of counsel), for appellant.

      Maxwell W. Benjamin, for appellee.
   Stone, J.

This is an action on the case to recover damages for personal injuries claimed by plaintiff to have been sustained by her through the falling of a portion of a cement sidewalk upon which she was traveling in the city of Petoskey. Bay View street, or road, runs northeasterly from the Arlington Hotel to Bay View, a distance of about one mile. On the westerly side of the street was a six-foot cement sidewalk which was constructed some 10 or 12 years ago. On May 23, 1912, plaintiff, then 17 years old and residing at Bay View, while on her way to school in Petoskey, about 8 a. m., with two girl companions, claims to have been injured by reason of the falling of a portion of this sidewalk where it crossed a sort of culvert, near the Arlington Hotel. The immediate cause of the falling of the walk was that the earth underneath had become entirely washed out, so that two or three of the five-foot slabs were left wholly unsupported, and when plaintiff and her companions reached this point the walk fell with them, and they were dropped a distance of four or five feet. There had been a heavy fall of rain that morning, and upon the trial of the case there was considerable conflict in the evidence as to the extent of the storm, its effect, if any, upon the foundation of the walk, the length of time during which the support of the walk had been washed out, the condition of the walk for a year previous, the care or want of care of the plaintiff in not observing the condition of the walk before she walked upon it at the place of the fall, and the proximate cause of the injury; but, as we view the record, these were all questions of fact for the consideration of the jury, and were properly submitted to them. The extent of the plaintiff’s injury, and whether she received permanent injuries or not, are, in our opinion, the more important questions in the case. The case was tried on May 7, 1913, about’ one year after the injury.

Upon the main facts the plaintiff testified as follows:

“I fell on my face into the water. The water was deep enough that I heard the roaring of it and held my head up to keep it out of the water. My garments were all wet when I was taken out. I could not move; I was pinned down by a piece of cement. I think two slabs of cement fell. My left arm and shoulder were pinned down. I called to Mabel (Mabel Shannon, a companion) to help me, but she couldn’t, and Mr. Sala helped me out, and Dr. George Eeycraft assisted in getting me up on the ground. I certainly was hurt. At the time I couldn’t exactly tell where I was hurt. I thought my left arm was. broken, but it was not. Dr. Eeycraft said it was badly twisted and the ligaments torn. I was also hurt in my side, and my spine, left side. My left hand, also. The doctor gave me quieting medicine, because I was so nervous that I was nearly beside myself. I suffered much pain while I was there from my nervous system, my arm also pained me greatly, and I could not sit up because I was so weak. As soon as I got home that day I noticed the pain in my back, and afterwards. I did not go to school the next day, have not gone to school since. Did not leave my home next day. Was not able to sit up for two weeks, and it was a matter of six or seven weeks before I was able to be up and around and out of the house at all. I was weak and my arm pained me greatly all this time. I was prevented from leaving the house by the fact that I was weak and not able to walk around. My nerves were affected, ever so much. I feel the pain in my back yet, at the base of the spine. My left arm also pains me greatly yet. It throws itself out of joint. It has done so very recently. If I twist it a certain way — often putting on a glove will sometimes throw it out, while sometimes it will be perhaps several hours that it will not come out of joint at all. I mean directly at the elbow it comes out of joint. I cannot tell when it is going to come out of joint until it does. Then I have to stretch it around a certain way until it slips back into place, or I couldn’t stand the pain. That arm isn’t as strong as the other. I have pain in it, not continuously, but more or less, all the time. It inconveniences me. It is weak to handle anything. I cannot do the work with it that I could before it was hurt. I have a great deal of pain in my back at present. It has been- so since the accident. I never had pain in my back before it, nor trouble with my left arm slipping out of the socket. The pain in my back is not every day, but at times, often, every week, sometimes more than once a week, sometimes maybe not once a week. It does not seem to be caused by anything I do; it just pains at the base of the spine. It is a sharp pain, lasts different times, it pains for some minutes, then it will pain again, sort of recurrent, not continuous. When I fell something struck me on the left side, in the ribs, and it was sore and black and blue. I suffered considerable pain from that. My monthly functions have been affected, causing pain, a great deal, which lasts several hours. Never had the pain before I was hurt. Pain comes every month since I was hurt. I have never slept as well as I did before the accident. As soon as I drop asleep I jump and it awakens me. It is the nerves, I expect, that cause that. I never was nervous before I was hurt. I always slept well before I was hurt. I was in the tenth and eleventh grades when I was hurt. Would have had the twelfth and part of the eleventh grade to finish before graduating. I never returned to school after the accident, because I was not able to take the examinations; at the time examinations were being held I was just getting so that I could walk around and be around the house. • The next fall I didn’t feel able to return and start in the new term— I was nervous most all the time. I am able to now. I am working at the telephone office, clerical work. I am earning $5 per week there. With the condition of my nervous system, my arm, and my spine, I do not think that I could do any kind of work that would require physical effort. I used to help my mother with the housework, do some now,, but am not able to do so without inconvenience to myself. I am not able to help in the laundry, and work like that; cannot sweep much, on account of my arm. I did scrubbing before I was hurt, but have not done any since, am not able to.”

Dr. Reycraft, the only physician who was sworn in the case, testified that he saw the plaintiff a few minutes after she fell through the walk; that she complained of pain in the left arm and in her back; he took her home and examined her there; that she had a slight abrasion of the skin near the elbow joint, and she complained a great deal of pain in the joint; that he examined the arm for a fracture, but did not find any; that he also examined her back, just on the shoulder wheré there was just a redness; that the skin had been excoriated slightly; that she complained of pain in her left side, just the shoulder and shoulder blade.

“Q. Now, coming down to that elbow, did you notice or find that the ligaments had been torn; that the elbow was loose from the socket?
“A. Why it is hard to examine, to tell exactly when the ligaments — unless they are frightfully torn — but in an examination where an elbow is that way we would expect more or less trouble with the ligaments. If Miss Kethledge’s elbow comes out of the socket, becomes misplaced, it would indicate that the ligaments were not holding the head of the radius correctly. It would show that the ligaments might have been stretched. If a person had never had that happen to him before the 23d day of May, 1912, and then had this accident which plaintiff had, by falling through this sidewalk, a distance of between 4 and 5 feet, and being struck on the arm by a large piece of the cement walk, or large piece of sod, and injured it to the extent that she did, if the injury was severe enough it might cause the ligament to be stretched.
“Q. If the person never had or was troubled with the arm coming out of the socket, and after that injury it did come out of the socket, and here a year afterwards it still continues coming out of the socket, wouldn’t that be evidence that the ligaments had been stretched at that time? Wouldn’t you give it as your opinion that the injury is what caused the stretching of the ligaments?
“A. If the trouble, the bone coming out of place, never had taken place before the time, and continued after that time, you might infer that the injury might have had something to do with it.
“Q. What would you say about an injury of that kind to the ligaments which would at this time, nearly a year after the injury, permit the arm to come out of its socket or place, being one that would be curable?
“A. That is a hard question to answer.
“Q. It is a hard thing to cure, isn’t it?
“A. Yes, sir.
“Q. In fact, it is almost, so far as medical science knows, it cannot be absolutely cured?
“Defendant’s Counsel: Is that a question or a statement ?
“Plaintiff’s Counsel: It is a statement.
“A. That would depend again upon the amount of injury. We cannot always say. I have examined her arm again lately, slightly.
“Q. What did you find there in regard to these ligaments ?
“A. Just at this examination, I was not able to cause the same effect as she had stated that happens. I treated her for about three weeks after she was injured. -1 treated her for the injury to the elbow joint, and I gave her. liniments for the injury to the back and side. I bandaged the elbow and applied liniment, and gave her something to quiet her. She was in pain and nervous. I have treated her since that time, gave her some medicine for painful menstruation. I had been their family physician before that time. I do not think that she had ever complained of that before the injury. I do not remember how soon it was after the accident that she complained of this. * * * Sometimes a perfectly healthy, normal girl will have pain during that period. Miss Kethledge’s condition might have been caused by a fall of four or five feet down a hole. It might have been caused by a- piece of cement falling and striking her on the side. That could cause it.
“Q. Would you say that such a condition is curable?
“A. It depends upon the condition present. I treated her for pain in the back at the time she was hurt, and recently she had pain in the back from menstruation. There is connection between the pain in the back and the menstruation. A great many times they go together. Miss Kethledge is a person of medium nervous temperament.”

Upon cross-examination the witness testified that he visited the plaintiff at her home nine times in the three weeks after the injury; that he did not treat her for any internal injuries, and didn’t find any injuries to treat her for, only the soreness that she complained of; that the radius is one of the bones in the forearm, and works in a ball and socket joint; that the ball is held in the socket by ligaments which extend from one bone to the other; that in order for the ball to be removed from the socket the ligaments must be weak from some cause.

“Q. Now, I understood you to say that you endeavored to produce the condition at that joint that Miss Kethledge claimed existed there, and that you were unable to do so. Is that right?
“A. Well, I didn’t — she complained of that condition there — as I said, I examined it slightly. She said certain ways she would move her arms, it would seem to bother her.
“Q. At the recent examination, last Saturday?
“A. I haven’t made a thorough examination lately —a slight examination.
“Q. At that time you were unable to produce—
“A. I didn’t go at it in a way to- try to shove it one way and another, but just felt of her arm. I didn’t feel anything go out of place at that time.
_ “Q. From that examination could you ascertain, or did you ascertain, whether the ligaments were weak or stretched — at this last examination?
“A. No, I gave her a very slight examination.
“Q‘. Did you ever see her arm when it was dislocated in this manner?
“A. It was not dislocated when I saw it. I never saw it dislocated at any time. She never called me at the time.”

Upon redirect examination the witness testified that the fall which the plaintiff had, and being pinned down there, with the water rushing over her, would naturally result in a shock to the nervous system to some extent,:and that she was very nervous when he saw her; that generally that was a thing that could be cured; generally the nerves right up, to a certain extent; that sometimes they get back to where they were before that shock took place, not always, and whether they would in her case he could not tell.

The mother of the plaintiff testified that she had observed plaintiff when she had trouble with her arm coming out of the socket, she could not say how many times, but a good many times, it often twisted; that in putting on her gloves, or putting up her hair, or lifting, sometimes, it would come out. The following occurred:

“Q. In the condition that Marie is now — the arm in the shape it is and her nervousness — do you consider that her earning powers have been decreased? (Objected to. Overruled. Exception taken.)
“A. I do.
“Q. And if she continued in the future to be in the same physical condition as she is at present, how much would you say her earning powers have been decreased per week? (Objection and exception.)
“A. Well, quite a good deal. * * *
“Q. If her present condition should exist during her life, how much per week would her earning power be decreased?
“A. Well, she wouldn’t be worth very much for housework now. * * * •
“Q. Can you give an estimate of how much she is worth now to do housework?
“A. Perhaps a dollar and a half a week.
“Q. How much would she be able to earn if she was all right and healthy and in the same condition as before the accident at housework?
“A. She would be able to earn probably $5 or $6 a week.”

The case was submitted to the jury by a very lengthy charge, and the trial resulted in a verdict and judgment for the plaintiff of $1,000.

.After the denial of a motion for a new trial, which denial was duly excepted to, the defendant sued out a writ of error, and the case is here for review. Under appropriate assignments of error, the defendant discusses the following subjects:

(1) Error of the trial court in instructing the jury that they might award plaintiff damages for permanent injuries, and permanently decreased earning capacity.
(2) Error in instructing the jury that plaintiff could recover for all damages which it was reasonably probable she would sustain in the future, for the permanent annoyance which was liable to be caused and resulting from her injuries, and for her probable loss of future earnings.
(3) Error in instructing the jury that they might find that the plaintiff’s earning powers had been decreased, and award damages therefor.
(4) Error in instructing the jury that plaintiff might recover damages on account of being prevented from completing her high school course, and in not prescribing a rule for the measurement of such damages.

The trial court instructed the jury, among other things, that they might use the mortality tables—

“In arriving at the probable length of life of the plaintiff. This is for the purpose of showing the length of her future suffering, and is to aid you in arriving at a determination of how long she will suffer in the future, provided you find that she is permanently injured.”

Also:

“The elements of damage which the jury are entitled to take into account consist of all the effects of the injuries complained of, consisting of personal inconvenience, sickness which the plaintiff endured, all bodily and mental suffering, the permanent annoyance which is liable to be caused, and resulting from the injuries.”

Also:

“It is claimed by the plaintiff that, on account of the injury she received, her earning capacity has been decreased, and will be decreased during the rest of her life. If you find that, as a result of the accident, her capacity to earn money in the future has been lessened, and that such capacity has been permanently lessened, then, in addition to the elements of damage which I have heretofore given you, the plaintiff is also entitled to receive, and you will take into consideration, the amount she has lost yearly, if any, by reason of her injuries, and you will consider the time she would probably have lived, and th,e effect that advancing years would have upon her ability for earning money for years that she would probably have lived after arriving at the age of 21 years, and she would be entitled to that as the item for loss of earnings.”

Also:

“In order to determine the present worth or value of such annual loss of earnings which she has sustained, if any, you will compute the present worth or value of her probable loss of earnings for one year, for two years, for three years, from the time she will become 21, and so on up to and including the whole term of years that you may find that she will prob-' ably live. * * * The term should, in no event, exceed the expectancy of life stated by me, namely, 41 y2 years.”

We have at the expense of prolixity set forth above the substance of the testimony relating to the extent and nature of the plaintiff’s injuries.

1. We are of opinion that the above instructions were erroneous, for the reason that there was no evidence in the case from which the jury should have been permitted to find that the plaintiff was permanently injured, or that her earning capacity would be permanently decreased. In Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126, 13 Am. & Eng. Ann. Cas. 134), the trial judge instructed the jury that they might award damages for permanent injuries if they should find that such injuries had been sustained. This court held that there was no testimony in the case that indicated a probability that the injury would be permanent, that at most there was only a possibility that the plaintiff might never entirely recover. It was said:

“To leave the jury the opportunity of finding that the injury was permanent and basing damages thereon was harmful.”

The rule that the giving of an instruction upon the element of damages which is unsupported by evidence is misleading and erroneous is universally accepted, and has been frequently applied by this court. Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14); Williams v. Village of Petoskey, 108 Mich. 260 (66 N. W. 55); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146).

2. Upon plaintiff’s request, the court instructed the jury that plaintiff was entitled to recover for “all damages which it is reasonably probable she will sustain in the future,” and similar expressions were used in other parts of the charge. In Brininstool v. Railways Co., 157 Mich. 172, at page 180 (121 N. W. 728), Justice Osteandee said:

“It is the generally accepted rule that to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury” — citing many cases.

In 13 Cyc., at page 139, the general rule is stated as follows:

“Only such future damages can be recovered as the evidence makes reasonably certain will necessarily result from the injury sustained” — citing many cases.

Marshall v. Railroad Co., 171 Mich. 180-184 (137 N. W. 89); Block v. Railway Co., 89 Wis. 371 (61 N. W. 1101, 27 L. R. A. 365, 46 Am. St. Rep. 849). In the last-cited case the court said:

“The criticism is on the phrase ‘reasonable probability.’ Because the phrase is equivocal, it is liable to communicate to the jury an erroneous impression that some degree of proof less than of reasonable certainty may be sufficient. It is settled in this court that the degree of proof must amount to reasonable certainty.”

Groundwater v. Town of Washington, 92 Wis. 56 (65 N. W. 871); Raymond v. Keseberg, 91 Wis. 191 (64 N. W. 861); Smith v. Traders’ Exchange, 91 Wis. 360 (64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912).

3. Upon the third point urged, it may be said that the evidence was meager of future decreased earning powers.

4. Prevention of completion of education.

We find no evidence to justify the submission of this question. At most, the completion of plaintiff’s education had been delayed only, by the injury, for she testified that she was then (one year after the injury) able to return to school and her school course, and then was, and since the fall of 1912 had been, doing clerical work in a telephone office.

Plaintiff’s counsel urges that, even if the case was erroneously submitted upon the question of permanent injuries, still the verdict was so small that it was fully warranted to compensate for past injuries, and that defendant, not claiming that the damages were excessive, should not complain, especially as defendant’s counsel did not object to the introduction of the table of mortality. A similar question was before us in Richardson v. Railway Co., 176 Mich. 413 (142 N. W. 832), where we said:

“While there is no complaint urged here that the judgment is excessive, yet it is properly urged and claimed in the motion for a new trial, and covered by proper assignments of error, that the whole basis of the measure of damages was erroneously given to the jury; and we cannot say that the error has not affected the judgment; nor are we able to state the amount the judgment has been enhanced by this erroneous part of the charge.”

In a recent case where the circuit judge attempted to cure the effect of an erroneous instruction by reducing the judgment, this court reversed the judgment for the reduced sum, saying:

“It is possible the jury might have returned this amount if they had been properly instructed as to the law, but we are unable to say this is so.” Jaskolski v. Morawski, 178 Mich. 335 (144 N. W. 865).

Other objections urged are not likely to arise upon a new trial. For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Brooke, Ostrander, Moore, and Steere, JJ., concurred with Stone, J.

Kuhn, J.

I concur in reversing the case on the second ground given.

McAlvay, C. J., and Bird, J., concurred with Kuhn, J.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    POWERS v. HALLADAY.
    1. Adjoining Landowners — Party Walls — Line—Streets.
    Notwithstanding it may injuriously affect an adjoining store building, the owner of a lot is entitled to construct a building on his ground as near to the street line as he may prefer, unless some agreement or public regulation restricts his rights.
    2. Party Walls — Contracts—Easements—Buildings.
    Where the owners of adjoining business property executed a party wall agreement restricting the parties by a provision that if either should construct a longer building it should be on the line of the party wall, and the other should be entitled to make use of the extension of the wall on paying one-half the cost, providing, also, if any additional stories of either building should be constructed the owner would place the wall on the agreed line, neither proprietor was prohibited from building as near the street line as he might want to do, although his action might be detrimental to the other.
    3. Same — Parol Agreement — Estoppel.
    Although one of the joint owners of the property did not sign and execute the written agreement, she was bound by the parol agreement by making use of the existing wall as a party wall.
    Appeal from Calhoun; North, J.
    Submitted January 9, 1914.
    (Docket No. 29.)
    Decided March 26, 1914.
    Bill.by Walter S. Powers against Frank Halladay and Blanch H. Lyle for an injunction and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      James M. Powers, for complainant.

      Hillard G. Lyle, for defendant Lyle.

      Frank W. Clapp, for defendant Halladay.
   Ostrander, J.

Complainant owns a two-story brick store building, 66 feet wide and 80 feet long, on the south side of East Main street in the city of Battle Creek, and the land on which it is built; the lot being 132 feet long or deep. The foundation and walls of the building are of sufficient strength to support two or three other stories. There are three stores on the ground floor, with plate glass windows for displaying wares. Defendants own land 22 feet in width next west of complainant’s building, having a depth equal to or greater than the land of complainant, and, when the bill in this cause was filed, were proposing to build thereon, and have since built, a one-story brick store building. The west wall of complainant’s building is a party wall; one-half of it standing on his own, and one-half on defendants’, land. The east wall is built entirely on complainant’s land, and since the structure was erected, the owner of the land on the east has built a brick three-story building, using the wall as a party wall. Complainant’s building and the one east of it are comparatively modern structures, having been erected since the year 1904, and their fronts are some 44 inches back from the street line.

Defendants, in erecting their building, used the party wall, and then extended their building north, beyond it, some 44 inches towards the street; the extension being built entirely upon defendants’ land. The front and the show windows of defendants’ building therefore obstruct the view of complainant’s premises, and assert themselves in a way which complainant claims, and gave testimony tending to prove, injures his property. The suit is brought to restrain defendants from building and maintaining a building approaching nearer to the street than does complainant’s building. It was supposed that defendant Frank E. Halladay was owner of the land west of complainant, but it was discovered, after the bill was filed, that his sister, defendant Lyle, was a co-owner of the land, and interested in the building to be erected. The bill was accordingly amended, and both defendants have, answered. The cause was heard, and a decree was entered dismissing the bill.

However impertinent and unneighborly, indeed, however injurious, such action may appear to the neighboring owner to be, it will probably be conceded, and complainant appears to concede, that, unless restricted by agreement or by public regulation, the owner of land may build upon it as near the street line as he pleases. Complainant asserts an agreement which he says ought to be construed and held to restrict defendants from building nearer to the street than complainant has built. The contract restriction which is asserted is evidenced by a writing, which reads:

“This indenture made this 31st day of May, A. D. 1907 between Walter S. Powers, singleman, of the city of Battle Creek- county of Calhoun and State of Michigan, and Frank E. Halladay of the same place, witnesseth: That whereas the said Walter S. Powers is the-owner of the lot and store known as lot 18 of range of blocks 8 in the said city of Battle Creek, and the said Frank E. Halladay is the owner of the lot adjoining the same on the westerly side thereof, on which last-mentioned lot the said Frank E. Halladay desires at some future time to erect a brick building: And whereas the westerly wall of the two-story building now standing on said lot 18 of range of blocks 8, stands one-half upon the lot of the said Frank E. Halladay:
“Now, therefore, the said Walter S. Powers in consideration of the sum of one dollar and other valuable considerations and the mutual promises herein made on the part of the said Frank E. Halladay, to him in hand paid, the receipt whereof is hereby acknowledged, doth for himself, his heirs, executors and assigns covenant, grant, promise and agree to and with the said Frank E. Halladay, his heirs, executors, administrators and assigns, that he, the said Frank E. .Halladay his heirs and assigns shall or may in the ■erection of said brick building when built as aforesaid, freely and lawfully, but in a workmanlike manner, and without damage to the property of said Walter S. Powers, make use of such westerly wall of the said building belonging to said Walter S. Powers, ■or so much thereof as the said' Frank E. Halladay, his heirs and assigns, may desire, as a party wall, to be constructed and used as such forever.
“It is further agreed that in case either party, their heirs or assigns, desire to build a building longer than the present wall herein described, the same shall be on a line with the present wall, and if either party shall desire to build more than two stories high, the wall shall be on top of and on the same line as the present wall or any extension thereof; and when either party shall extend the said wall, the other party shall, have the right to use as a party wall and join the same by paying the other party one-half the cost of such wall as he shall use. It is distinctly understood and agreed that the wall herein described and any extension thereof shall at all times be and the same is a party wall.
“And the said Walter S. Powers and Frank E. Halladay do hereby mutually agree for and with themselves, their heirs and assigns, that if it shall hereafter become necessary or desirable to repair or rebuild the whole or any portion of said party wall, the ■expense of such repairing or rebuilding shall be borne ■equally by the parties hereto, their heirs or assigns, as to so much and such portion of said party wall as the parties hereto, their heirs and assigns, shall or may at the time of rebuilding or repairing be used in ■common for the purpose aforesaid, and that whenever said party wall or such portion thereof shall be rebuilt, it shall be erected on the same spot and on "the same line, and be of the same size, and the same or similar material, and of like quality with the present wall.
“It is further understood and agreed that in case of damage or destruction of said wall and any extension thereof, including the foundation, either party, their heirs and assigns, shall have the right to repair or rebuild the said wall, and said extension, and the other party whenever he desires to use the same shall have the right so to do upon the payment of one-half the expense of such repairing or rebuilding.
“It is further understood and agreed between the aforesaid parties, that this agreement shall be perpetual, and at all times be construed as a covenant running with the land; and that no part of the fee of the soil upon which the party wall above described stands shall pass or be vested in either party in any other manner than if this agreement had not been made. It is further agreed upon the part of said Frank E. Halladay, his heirs and assigns, that whenever they or either of them shall make use of said party wall, that the windows now in said wall when taken out shall belong to said Walter S. Powers, and the said Frank E. Halladay, his heirs or assigns shall brick up and fill in the wall where said windows are taken out, and will finish, plaster and tint the inside of the wall to correspond with the rest of the room on the inside of the building now owned by said Walter S. Powers, and the same shall be done in a good workmanlike manner without expense to said Walter S. Powers.
“In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
“Walter S. Powers. [L. S.]
“Frank E. Halladay. [L. S.]
“Signed, sealed and delivered in the presence of Herbert A. Powers. Albert Carton.”

The circumstances, or some of them, which, it is claimed, may be considered as an aid in discovering .the intention of the parties are that, when the grantor of complainant contemplated the erection of his building, and when he was surveying the land for the purposé of building, defendant Halladay and he made a parol agreement that the west wall should be built one-half on the Halladay land and used as a party wall, the owners of the parcels to pay each one-half of the cost of the wall. The suggestion was made by ■defendant Halladay. Concerning the terms of the agreement, complainant’s grantor testified, in part, as follows:

“Fourth. To the fourth interrogatory this deponent saith: I had several conversations with Mr. Halladay (I do not remember which one of the Mr. Halladays it was) concerning said party wall. My best recollection is that my talk was with Frank E. Halladay. Mr. Halladay was not ready to build at that time, but was willing to pay for one-half of the party wall to be used by him some time in the future, and, in accordance with our agreement, verbally arrived at as I remember, the wall was placed one-half on their land and one-half on mine, and they paid me for one-half of the wall, with the privilege of using it whenever they choose to build, but this applied only to the wall as built. However, I think there was an understanding between us, which was verbal as I remember it, although that may have been reduced to writing, that, in the event Mr. Halladay, when he built, desired to erect a deeper building than the one I erected he could do it on the party line in the rear, one-half on each property, I to have the right to buy one-half of such longer wall if I ever deepened my building, and, in case I extended my building first, he was to have the same right and privilege. My best recollection is that these things were not in writing. My best recollection, too, is that I put girders in the rear of ray building, so that, if I wished to extend it at any time, I could do so without doing serious damage to the store that now stands and also that the party wall was not to be used for any building to be built nearer the street than mine.
“Fifth. To the fifth interrogatory this deponent saith: I remember that my building was placed from three to four feet back from the street line. My best recollection is that neither Mr. - Halladay nor any one else who might succeed him had or was to have any right to build nearer the street than my building was if the party wall was used.
“Sixth. To the sixth interrogatory, this deponent saith: I am quite positive that I had no understanding with any one that they could make use of said party wall to place a building nearer the street than mine. * * *
“Eighth. To the eighth interrogatory deponent saith: My best recollection is that all of my agreements were with Frank E. Halladay, and that it was understood and agreed between us that in making use of the party wall, no building was to be erected nearer the street than mine.”

Upon this subject defendant Halladay testified:

“I am one of the defendants in this action. My sister, Blanche Halladay Lyle, is the other defendant, and we two are the owners of the block on which part of the party wall is located here.
“Q. And were you two the owners at the time that any talk was had between you and Mr. Stine with reference to that party wall?
“A. Yes, sir; I had talked with Mr. Stine with reference to the building of a party wall. I saw him surveying one day down here, and I asked him what he was going to do, and he said he was going to build a building in here, and I said why not have a party wall. He wanted to know what I meant by that. y7ell I said, build one-half on your own and one-half on my land, and I said that would give us each more room inside of our building and save us the expense of each building a wall. He said he thought it was a pretty good proposition and he would think it over. It run along I cannot say just how long, but a short time after that I met him down here and asked him what he thought about it, .and he said he thought it was all right, a good thing for both of us. As I remember, that was just before he commenced to dig his cellar.
“Q. Was there anything said by him to you, or between you, as to where the front line of his building was going to be?
“A. Not at that time, I don’t think.
“Q. He erected his building. State whether or not in any conversation you had with him you made any promise or agreement. Was there anything said in any conversation with him relative to where the front line of any building should be placed on the vacant piece of ground adjoining the proposed building to be erected by him on the west? * * *
“A. I do not have any recollection of any such conversation. There was certainly no positive agreement between he and I as regards the wall in that direction. I could not have made such an arrangement with Mr. Stine — I could not possibly have made such an arrangement because I had no authority to make it. I had no understanding with reference to that.”

He further testified that complainant and others protested against his erecting his building on the street line; that he built a portion of the front of his building on Sunday, so that the work would not be interfered with by. injunction. As appears thereby, the written agreement concerning the party wall was made between complainant and defendant Halladay after complainant had purchased the building, and before defendants had begun to build. Defendant Lyle is not a party to it, and it does not, in terms, fix the line for the front of the buildings. There is testimony sustaining the conclusion that defendant Halladay knew when the wall in question was to be erected when he made his parol agreement with Stine; that he saw the wall while it was being erected, and knew, when he executed the indenture referred to, where it was located. Complainant testified that he understood from his grantor, Stine, what bargain Stine and Halladay had made, and that, before purchasing the building from Stine, he had with Halladay an understanding that Halladay was to pay Stine for one-half the wall, a fact which was to be taken into consideration in the price to be paid by complainant to Stine, and that they (complainant and Halladay) were to subsequently enter into a written agreement in relation to the wall. The fronts of the buildings to the east and west of complainant’s building are not at an uniform distance from the street line. Two of them, belonging to defendants, one, the building in question, and the other, next to it, an old building known as the Halladay Inn, are built to the street line. A new three-story building, erected by defendants, is 4 feet 9 inches back from the line, and others are from a little less than 3 feet to 10% feet from the street line. In the space intervening the front walls and the street line there are in some cases steps, in one case a bow window, and in another a platform.

The defendant Halladay in his answer sets up:

“That, while this defendant did not consult said Blanche Halladay Lyle at the time of making said party wall contract, still it was made in her interest as much as in the interest of this defendant, and that, after its execution, she (said Blanche Halladay Lyle) was informed about it, and then consented to the same, and ratified said party wall contract; that this defendant at that time was handling and looking after the interests of both of said defendants in said property and other property belonging to both of said defendants, said property being undivided property, and, while only his own name appears to said party wall contract, it was in reality made in the interest of and for the benefit of both of these defendants; and that both of these defendants claim therefore that they have the same interest and right therein” — and gave testimony to the like effect.

The defendant Lyle in her answer sets up the following :

“This defendant admits that the only contractual parties appearing in said party wall contract are said complainant and said defendant Frank E. Halladay, but this defendant denies that no one but said complainant and said defendant Frank E. Halladay have any rights and interest in said party wall contract, or any right to use said party wall, but, on the contrary, avers the fact to be that she, as part owner, has the same rights in said contract as said defendant Frank E. Halladay, and admits that both of these defendants are using and claim the right to use said party wall, and that they have already removed brick from said party wall, and have placed the necessary timbers for the construction of said building in said party wall, but that such action on the part of these defendants is not contrary to the rights of said complainant or any violation of the terms of said party wall contract, but is wholly within the rights of this defendant and said defendant Frank E. Halladay to use said party wall or to join said building now in process of construction to said wall. This defendant further answering said paragraph 10 of said amended bill of complaint, avers that all moneys paid by the said defendant Frank E. Halladay for that part of the party wall which stands upon the vacant lot owned jointly by these defendants was the money of both of these defendants, and that, although defendant Frank E. Halladay did not confer or consult with this defendant regarding the making of the said party wall contract, the fact, however, is that said defendant Frank E. Halladay, being the brother of this defendant, has represented this defendant in all matters and transactions pertaining to the joint interests of these defendants, as well as to this defendant’s personal estate and property rights in the city of Battle Creek ever since the death of the father of these defendants, or upwards of 18 years; that said Frank E. Halladay has at all times used his judgment as the representative of this defendant in matters pertaining to their joint interests, and has had his actions ratified and confirmed by this defendant; that, after said party wall was executed by said complainant and said defendant Frank E. Halladay, said Frank E. Halladay advised this defendant of his action, and this defendant did, after reading the party wall contract, confirm and ratify the same, and that, while only the name of said defendant Frank E. Halladay appears on said contract with the complainant, said defendant Frank E. Halladay did in reality make said contract in the interest of and for the benefit of both of these defendants, and therefore this defendant claims to have the same interest and right in said contract as said defendant Frank E. Halladay.”

In the indenture will be noticed the following:

“In case either party * * * desire to build a building longer than the present wall herein described, the same shall be on a line with the present wall, and if either party shall desire to build more than two stories high, the wall shall be on top of and on the same line as the present wall or any extension thereof. * * * Whenever said party wall or such portion thereof shall be rebuilt, it shall be erected on the same spot and on the same line, and be of the same size, and the same or similar material. * * * ”

There is evident here, not only a purpose to create cross-easements with respect to the existing wall, but also a purpose to secure for the benefit of owners of each parcel of land affected the opportunity and right to make use of any additions to the wall made by the other. In other words, it appears that the parties to the agreement were not content with declaring the existing wall to be a party wall, and all extensions of it a party wall when constructed, but they used apt words to bind themselves and their heirs to build no building higher or longer than the structure owned by the complainant, except with a wall which could be and should be used as a party wall. But I do not find in the agreement anything which forbids either party thereto to bring the front of his building out to the street line, extending the party wall for that purpose.

If the contract is construed as intended to restrict either owner in that regard, and I do not think it can be so construed, it is executed by one only of two owners of one of the parcels of land affected. As to defendant Lyle, the contract rests in parol. Having joined with her co-owner in using the existing wall as a party wall, she and her heirs may be bound to so consider it; her interest in the land being subject to such restrictions as are imposed by the fact that a party wall exists. The mere fact that a party wall exists would not prevent her from extending her building on her own land as she pleased.

I think, therefore, that the decree of the court below must be affirmed, with costs to appellées.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    McRAE v. TOWNSHIP OF HART.
    1. Municipal Corporations — Villages—Bridges-—Highways.
    1 Comp. Laws, § 2775 (3 How. Stat. [2d Ed.] § 5994), as amended, gives supervision of bridges, etc., to the village council of villages incorporated thereunder, provided that bridges in highways that have been laid out by the township highway commissioners or by any other authority shall be kept in repair by the township. Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §2174 et seq.), provides that owners of mill races shall keep a good and sufficient bridge with a substantial rail on each side over the same where they cross the highway, and in case of neglect or failure to perform the duty the township shall erect or repair the bridge at the expense of such private owner. Said act further provides (chap. 1, § 26; 2 How. Stat. [2d Ed.] §2199) that State roads shall remain under the care of townships through which they pass. Held, that the defendant township was charged with the duty of repairing and maintaining a bridge over a mill race crossing a State road within the limits of a village which has been incorporated subsequent to the laying out of the highway, and the duty did not rest on the village in which the bridge was situated,

    2. Bridges — Mills—Race—Personal Injuries.
    The duty of mill owners to build and maintain a bridge over a mill race that crosses a public highway is a common-law duty which is affirmed by the statutes of this State.
    3. Parties — Negligence—Joint Tout Feasors.
    In an action for personal injuries resulting from plaintiff’s falling from a bridge having a defective railing, which it was the duty of the owners of the mill race which it crossed to keep in repair, and of the township authorities where the bridge was situated, the proprietors of the mill and such township might properly be joined as defendants.

      4. Bridges — Municipal Corporations — Negligence,
    Whether the plaintiff, who rode his wheel upon the bridge close to the defective railing and there dismounted, was guilty of contributory negligence was a question of fact for the jury.
    Error to Oceana; Sullivan, J.
    Submitted January-15, 1914.
    (Docket No. 80.)
    Decided March 26, 1914.
    Case by William R. McRae against the township of Hart and T. S. Gurney and Carrie M. Gurney for personal injuries. Judgment for plaintiff, and defendants bring error.
    Affirmed.

      C. B. Stevens and C. B. Cross, for appellant Hart township.

      F. E. Wetmore, for appellants Gurney.

      William H. Simpson (Rufus F. Skeels, of counsel), for appellee.

      As to municipal liability for injury by defects or obstructions on -bridge, see note in 20 L. R. A. (N. S.) 571.
      On the question of the duty of the proprietor as to the maintenance of a bridge, see notes in 58 L. R. A. 162 and 30 L. R. A. (N. S.) 362.

   Ostrander, J.

Plaintiff rode his bicycle to and upon a bridge over a mill race in a highway. In dismounting, on account of an accumulation of dirt washed upon the bridge out of the highway by the rain, he struck, or pushed against, or rested upon, the railing of the bridge, which, being insecure, gave way, and he fell some 20 feet into the stream. This was July 13, 1912. He sued the township and the owners of the mill jointly, and recovered a judgment against both. It is alleged in the declaration that each of the defendants owed the duty to maintain the bridge in a reasonably safe condition and to this end to maintain good and sufficient railings on the structure; the duty being based upon Act No. 149 of the Public Acts of 1855 and chapter 8 of Act No. 283 of the Public Acts of 1909, and Act No. 264 of the Public Acts of 1887, and chapter 22 of Act No. 283 of the Public Acts of 1909. This in the first count. In the second count it is alleged that defendants Gurney, by reason of Act No. 149 of the Public Acts of 1855 and chapter 8 of Act No. 283 of the Public Acts of 1909, owed the duty to at all times keep a good and sufficient bridge with a substantial railing over said mill race, and if they did not it then became the duty of the township of Hart and its highway commissioner to repair the bridge; that by virtue of Act No. 264 of Public Acts of 1887 and Act No. 283 of the Public Acts of 1909 it became the duty of the township of Hart to at all times keep the bridge in a reasonable state of repair. In a third count, without reference to the statutes, it is alleged that defendants Gurney dug the mill race after the highway was opened, and built and maintained the bridge over the race, and by reason of the premises it became the duty of said defendants ■ and of the township to at all times keep the bridge in repair with a substantial railing thereon and to maintain the bridge in a condition reasonably safe and fit for public travel.

At the trial it was conceded in open court by all of the parties—

“That the village of Hart was incorporated by special act of the legislature in the year 1885, and that said village is now governed by the general act for the incorporation of villages as it was passed in the year 1895 and now appears in the Compiled Laws of 1897 and amendments thereto, and that the highway at the place where the injury claimed by the plaintiff occurred is a State road within the village of Hart, extending through the village and out towards Pent-water, and was laid out before the village was incorporated, and that the mill race over which was built the bridge where the injury occurred was dug after the highway was established and in use before the incorporation of the village, and that the bridge in question where the injury occurred is within the corporate limits of the village of Hart; also, that at the time of the accident or injury the Gurney Milling Company was composed of T. S. Gurney and Carrie M. Gurney.”

It does not appear to be disputed that defendants Gurney erected the structure and maintained it, and that, as constructed and maintained by them, it was a fit structure, railings and all. Within two years before the plaintiff sustained his injuries, the bridge had been closed to travel, imperfect material had been removed and replaced, and the bridge restored. In April, 1912, some one who desired to move some houses along the highway took down the railings of the bridge, and for some time there were no railings. The same person, upon complaint being made to him by the mill owners and by the village authorities, put a temporary railing on the bridge, in appearance and in fact insecure and ineffective. Defendants Gurney had also constructed, and they maintained, another bridge in the highway, or partly in the highway, adjoining their mill, and this bridge could be and was used by people traveling the highway, and was made use of during the time the houses were being moved in the highway and while the other bridge was without railings.

There are separate assignments of error by the township and by the Gurneys, some of them based upon rulings concerning the conduct of the trial, and others which present the contention that each was entitled to a peremptory instruction that there could be no recovery by the plaintiff. Errors are assigned also upon refusals to charge as requested and upon the charge given.

It is the contention of the township of Hart that the bridge was not a township bridge, that it had no jurisdiction over the same and no duty to perform in relation thereto; the duty to keep the bridge in repair resting primarily on the proprietors of the mill and secondarily upon the village of Hart. Further contentions are that plaintiff was guilty of negligence, as matter of law, and it is incidentally claimed there is a misjoinder of defendants Gurney and the township. To these points the brief for the township is devoted.

Defendants Gurney join in the contentions that plaintiff was guilty of negligence and that there was a misjoinder of defendants, and contend also that in any event defendants Gurney are not liable to plaintiff in this action. Error is also assigned upon the refusal of the court to charge, without qualification, that the jury might acquit either of the defendants. The qualified instruction given was that whether one was acquitted and the other held depended upon whether one had, and the other did not have, the required notice or knowledge of the condition of the bridge and opportunity to repair it.

There is no testimony tending to prove the consent of either of the defendants to the removal of the railing of the bridge. There is testimony tending to prove knowledge of the township highway commissioner and of the other defendants that the railing had been removed, and to prove that the character of the temporary railing was patent and might have been, in the considerable time which it remained, observed by all defendants.

Act No. 283 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2174) is:

“An act to revise, consolidate and add to the laws relating to the establishment, opening, improvement, maintenance and use of the public highways * * * the building, repairing and preservation of bridges; * * * and defining the powers, duties and compensation of State, county, township and district highway officials.”

Much of the ancient law upon these subjects is preserved and re-enacted in this statute. Among its provisions are the following:

Chapter 1: “Sec. 26. All State roads which are now or may hereafter be laid out in this State shall be under the care of the commissioners of highways Of the several townships through which the same shall pass* and subject to be by them opened and kept in repair in the same manner as township roads, but such State roads shall be altered or discontinued only by the boards of supervisors of the counties in which they may be situated.”
Chapter 8: “Sec. 13. There shall be no bridge, culvert or artificial roadway of any kind constructed in any public highway of this State, over any water course thereof having a roadway of less than sixteen feet in width, and the same shall be built of sufficient, strength to -safely carry a ten-ton load.
“Sec. 14. It shall be the duty of all owners, occupiers, or possessors of mills or other waterworks, where any race or races appertaining to the same may cross a public highway, to keep a good and sufficient bridge or bridges, not less than sixteen feet in width, with a substantial railing on each side thereof, over the same, except where said mills have been erected and the races dug previous to the formation of said highway.
“Sec. 15. In all cases where the owner or owners, occupiers, or possessors of any such mill or mills, or other waterworks, shall refuse or neglect to make such bridge or bridges, or shall refuse or neglect to keep the same in good repair, it shall be the duty of the commissioner of highways of the township in which such highway may be, to proceed forthwith to erect or repair such bridge or bridges, at the expense of the person or persons whose duty it was to have erected or repaired such bridges.
“Sec. 16. The expenses so made or incurred by said commissioner of highways, in erecting or repairing such bridge or bridges, shall be a legal charge against the owner or owners, occupiers, or possessors of such mill or mills, or other waterworks; and it shall be the duty of the said commissioner of highways to prosecute the person or persons so chargeable, in an action of assumpsit, for the expenses so made or incurred, and to cause the damages recovered in such prosecution to be applied toward the payment of said expenses.”
“Sec. 26. The bridges within the limits of any village in the highways leading into or through said village which have been or shall hereafter be laid out by the commissioners of highways of the township or townships in which said village may be located or established by any other lawful authority, except the authority of such village, shall be built, controlled and kept in repair by the township or townships in which they may be located, the same as if said village were not incorporated, and all the other bridges in said village shall be built, controlled and kept in repair by said village.”
Chapter 20: “Sec. 5. All State roads which now are or hereafter may be within the corporate limits of any city or village within this State, shall be under the supervision of the common council or board of trustees of such city or village, with power to control, vacate or alter such roads within their corporate limits.”
Chapter 22, § 1, gives a right of action to persons sustaining bodily injuries by reason of the neglect to keep public highways and streets and bridges in a condition reasonably safe and fit for travel—
“By the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, * * * whose duty it is to keep the same in reasonable repair.”

Section 2775, 1 Comp. Laws, a portion of the act under which the village of Hart is now incorporated, as amended by Act No. 223, Public Acts of 1899 (3 How. Stat. [2d Ed.] § 5994), provides:

“The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the village, and shall have the like authority over the same as is given by the general laws of the State. * * * Provided, that the bridges within the limits of any village incorporated under this act in the highways leading into or through the said village which have been laid out or shall hereafter be laid out by the commissioner of highways of the township or townships in which said village may be located, or laid out by any other authority other than that of said village, shall be built, controlled and kept in repair by. the township or townships in which the same may be located, the same as if said village were not incorporated and the fact that any such highways are laid out and used as such at the time of such incorporation of said village shall be deemed sufficient to make the same township highways, and the township or townships in which they may be located liable as aforesaid and all other bridges in said village shall be built, controlled and kept in repair by said village.”

The bridge in question is in a highway located and established by authority other than the authority of the village of Hart, within the corporate limits of which the bridge is situated. Therefore the township owes at least a qualified duty to control it and keep it in repair unless it can be said that the statutes, section 26 of chapter 8 of Act No. 283 of the Public Acts of 1909, and 1 Comp. Laws, § 2775, as amended, put under control of the township authorities only such bridges, in such highways, within the limits of incorporated villages, as are built and kept in repair at public expense. If the statute is construed as relieving the township of responsibility, then all bridges over mill races, in all highways within the limits of an incorporated village, would be under village, and not township, control, and the township of Hart is not a proper defendant in this action. If the particular bridge was outside the limits of the village, the township authority to repair it at the expense of the owner would be undoubted. While incorporated villages are given supervision and control over all bridges within village limits, the proviso to section 2775, above set out, qualifies the enacting part of the section, excepting those bridges which are in highways laid out by other than village authority; the proviso being in harmony with section 26 of chapter 8 of Act No. 283 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 2299), and with a policy which originated at a very early time. The cases of Merrill v. Village of Kalamazoo, 35 Mich. 211, and Commissioner of Highways v. Willard, 41 Mich. 627 (3 N. W. 164), are relied upon by the defendant township. In neither of those cases was the power of the village, under special charter, qualified as it is in the general law we are considering. Those cases were decided upon a construction of the particular charters. So was the case of Quinlan v. Village of Manistique, 85 Mich. 22 (48 N. W. 172), in which a recovery from the village for injuries resulting from a defective bridge within village limits was refused. In that case it was said, considering the act of village incorporation and the general law together, that the duty of the township will not" be shifted unless the intent so to do is clear. It must be held that the township of Hart, and not the village of Hart, had the authority to repair the bridge at the expense of the owner, he refusing, and that the township may be liable to one injured by reason of the bridge being out of repair, or in a condition not reasonably fit for public travel.

The duty of the mill owners to build and maintain a bridge over the mill face is a common-law duty. Merrill v. Village of Kalamazoo, supra; Perley v. Chandler, 6 Mass. 454 (4 Am. Dec. 159); King v. Inhabitants of the West Riding of Yorkshire, 2 East, 342; Heacock v. Sherman, 14 Wend. (N. Y.) 58; 40 Cyc. p. 651. Our statute is in affirmance of the common-law duty and affords a means for enforcing its performance for the benefit of the public. Since the public must use a bridge constructed over a race in a highway, negligence of the owner in failing to construct or repair the bridge may support an action by an individual lawfully using the highway and injured by absence of or defects in the bridge. Heacock v. Sherman, supra.

I have been of opinion, notwithstanding the fact that both defendants owed plaintiff the duty to keep the bridge in . repair, that because the wrong suffered was not intended but was the result of omission to perform a duty, and because legal defenses open to one defendant were not open to the other, there was substantial objection to treating the duty as a joint duty and the defendants as joint tort-feasors. My Brethren are of opinion that as both defendants owed to plaintiff, ultimately, the same duty, there is no objection to suing both of them in one action and recovering judgment against both.

Whether plaintiff was himself negligent in riding his wheel close to the temporary railing and there dismounting was, in view of his familiarity with the premises and with their condition, rather a close question. But it is a question of fact, and not of law, upon this record.

It is not perceived how rulings assigned as erroneous, other than those already considered, prejudiced either of the defendants.

No reversible error is pointed out, and the judgment is therefore affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    EMERT v. NIBBLINK.
    1. Contracts — Rescission—Fraud.
    One who elects to rescind a contract of sale on the ground of fraud or mistake must act promptly after he discovers the facts warranting rescission.
    2; Sales — Fraud—Knowledge—Ratification of Contract.
    Plaintiff could not recover on the theory that he had rescinded a purchase of a team for fraud of the defendant who represented that the horses were good, sound work horses, where plaintiff did not rescind the contract promptly after discovering, on the day after the purchase, that one of the horses was balky, but made such use of the team as he desired up to the time of trial, paying a note for part of the purchase price after the commencement of suit.
    Error to Kent; Barton, J., presiding.
    Submitted January 15, 1914.
    (Docket No. 97.)
    Decided March 26, 1914.
    Assumpsit by Edward Emert against Henry J. Nib-blink for fraud. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Smedley, Linsey & Lillie, for appellant.

      Convin & Souter, for appellee.
   Ostrander, J.

Plaintiff, purchased of defendant a team of horses, which he says were falsely represented and warranted to be gentle, sound, true, a good farm team, that would work at any kind of farm labor or at any other work plaintiff might desire them .to do. The declaration is framed according to the theory of a rescission of the sale. Plaintiff was the only witness sworn, was examined, cross-examined, and reexamined. In the course of the re-examination the court suggested that plaintiff submit to a nonsuit. This he declined to do, and the court later, on the motion of defendant, directed a verdict for defendant. Whether this was or was not error depends upon whether the testimony which plaintiff gave conclu■sively negatives the theory of a rescission. Plaintiff contends that it does not, and defendant claims that it conclusively shows an affirmance of the sale.

The team was purchased partly on credit and delivered to plaintiff October 26, 1911. Plaintiff testified that the next day, in drawing a load on wet, soft ground, the horse, one of the team, balked, and that the next day, or soon, he told defendant about it, and was told in reply that the animal was all right but he had not got used to him. The next time he talked with defendant, time not fixed, he told him the horses did not bother him. The next time he saw defendant was in April, 1912, when he offered to redeliver the team if defendant would return him the purchase price already paid and cancel the evidence of further indebtedness. Defendant refused, but offered to let him have another horse for the alleged balky one. Plaintiff was not satisfied to do this and began this suit; the summons being tested April 9, 1912. In October, 1912, plaintiff paid defendant a note of $117.50, given for the purchase price of the team, and has' paid nothing since. During all of the time before and after beginning this suit, plaintiff has used the horses as his convenience or necessity, and his health, permitted or required, and sometimes they behaved to his satisfaction, and at other times they misbehaved. It does not appear that he at any time tendered the horses to defendant unconditionally or gave him notice that he had elected to rescind. At the trial, September 30, 1913, they were in Grand Rapids, and plaintiff testified:

“They are in good condition. They are over on the corner of Bridge and Stocking in a livery barn. I fetched them up on account if Mr. Nibblink wants the team he can have them. I offer them now to him and he can have them today.”

It is elementary law that one who desires to rescind a contract, or sale, upon the ground of fraud, or mistake, must act promptly after discovery of the facts warranting rescission. Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077), and cases cited in opinion; Speicher v. Thompson, 141 Mich. 654 (104 N. W. 1104); Hakes v. Thayer, 165 Mich. 476 (131 N. W. 174). In my opinion the court was not in error in directing a verdict for defendant, because it is evident that what plaintiff now complains about was known to him long before he offered to return the team to defendant, because, after discovering the peculiarities of the horse and up to the time of the trial, the plaintiff made such use of the team as he desired, and because, also,, plaintiff never definitely acquainted defendant with his purpose to rescind until he filed his declaration in this suit. Even after suit was begun, he paid a portion of the purchase price.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    CARR v. MANISTEE LAND & TIMBER CO.
    Brokers — Contracts—Commissions.
    Where plaintiff, a real estate broker, took from defendant corporation various options to procure a purchaser for a large tract of timber belonging to the defendant, at a specified price per acre and for a time stated, and after interesting a person who did not, however, agree to buy, allowed his option to lapse and the prospective purchaser thereafter bought the property through another, he was not entitled to recover his commissions, the intent of the parties appearing to have been that the broker should have a commission only if he effected a sale.

    Error to Mason; Withey, J.
    Submitted January 21, 1914.
    (Docket No. 46.)
    Decided March 26, 1914.
    Assumpsit by Arthur P. Carr against the Manistee Land & Timber Co. for broker’s commissions. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Robert J. Quail (Frank L. Fowler, of counsel), for appellant.

      Smurthwaite & Bigelow, for appellee.

      Upon the effect of a contract expressly making broker’s right to commissions dependent upon “sale” of property or other condition beyond that ordinarily implied, see note in 29 L. R. A. (N. S.) 533.

   Ostrander, J.

The declaration in this cause was filed December 3, 1912. It - contains the common counts in assumpsit and a special count. The special count sets out, in substance and effect, that the defendant was, in October, 1906, owner of a tract of land containing 12,160 acres, located in the counties of Luce and Mackinac, in this State, and, being desirous of selling the land, it entered into a contract with plaintiff in October, 1906— '

“Wherein and whereby the said defendant then and there promised and agreed to and with the said plaintiff that if the said plaintiff would secure a purchaser for said land, that the said defendant would pay him, as commission for securing said purchaser, all that the defendant received on the sale thereof over $15 per acre; that thereafter the net amount that the said defendant was to receive for said land was increased 50 cents per acre for each year, to cover said defendant’s increased investment on account of taxes paid thereon, etc.; and that on, to wit, the 14th day of August, 1909, the net price on said land had been increased to $16.50 per acre, and on, to wit, said last-mentioned date it was agreed by the said defendant to and with the said plaintiff that if he secured a purchaser for said land, that it would pay said plaintiff as commission aforesaid all that said defendant received on the sale over $16.50 per acre; that, pursuant to said agreement, the said plaintiff advertised the said land and sought to interest numerous persons in the same, and, among others, the said plaintiff brought the same to the attention of one A. E. Cartier, president of the Cartier Lumber Company, of the city of Ludington, in said county of Mason, and undertook to induce the said A. E. Cartier to purchase the same, either for himself or the said Cartier Lumber Company, and for that purpose on several occasions personally interviewed the said Cartier; that he reported to the said defendant that he had taken the matter up with the said Cartier, and that he expected to get the said Cartier interested in the said land, either for himself or the said Cartier Lumber Company and to be able to induce the said Cartier or the said company to purchase the same, and the said defendant thereupon requested the said plaintiff to make no further effort to sell the same to other persons with whom he had not theretofore taken the matter up, but that he and the said defendant wait upon the action of said Cartier and said Cartier Lumber Company in the matter, and the said defendant then and there, and on, to wit, the 11th day of June, 1907, promised and agreed to and with the said plaintiff that if any sale of said land was thereafter made to said A. E. Cartier or the Cartier Lumber Company, that it (the said defendant) would protect him in his commission on said sale, according to the terms of the agreement hereinbefore set forth, and would pay him the amount of the commission agreed upon, as hereinabove alleged, the same being the amount that it should receive on the sale of said land exceeding the sum of $16.50 per acre, that being the net price then placed by it upon said land, as per the agreement aforesaid.”

It is alleged that on August 14, 1909, defendant sold the lands to the Cartier Lumber Company for $18 an acre, and that thereupon there became due and payable to plaintiff $18,240, which defendant thereafter agreed to pay. At the trial no testimony was introduced upon the part of defendant, but, when plaintiff rested, the court, upon the motion of defendant, directed a verdict for defendant, saying:

“I hold, as a question of law, that under the testimony produced by the plaintiff in this cause, it does not appear that, at the time the lands owned by the defendant in Mackinac and Luce' counties, in this State, were sold by the defendant to the Cartier Lumber Company, there were any contract relations existing between the plaintiff and the defendant concerning said land; and that, on the whole testimony produced by the plaintiff in the cause, he is not entitled to recover any verdict or judgment against the defendant.”

The bill of exceptions contains all of the testimony, and the principal question is whether it was error to so direct a verdict; in considering which, the testimony for the plaintiff must be viewed in the light most favorable to him. The testimony tends to prove, that, having had some talk with T. J. Elton, the secretary of defendant, and learning from him about the lands and their location, and having been told that it would sell it for $15 per acre net, and protect him in commissions for all he could get more than that, plaintiff told the said secretary that, if he would talk it over with the company and write him to that effect, he would try to get a purchaser. Later he received a letter, dated October 22, 1906, which read as follows:

“Inclosed please find plats of our Upper Peninsula lands; price to you $15.00 per acre and will protect you in all you get over that. And when you get men ready to go on land will give thirty days to look lands and extension if men áre on land when time is up, providing there is no option out when you ask for yours. Section 2 — 44—10 and 35 and 36 45 — 10 have been burned some before we bought.”

After receiving this letter, plaintiff advertised the lands and sought to find a purchaser for them, presenting the matter to several, and, among others, early in 1907 to Mr. A. E. Cartier of Ludington. Mr. Cartier asked him, among other things, whether he had ever seen the lands, and plaintiff replied that he had not. Reporting to Mr. Elton his negotiations with Cartier, Elton suggested that plaintiff look at the lands, and he did go and examine some of them. Plaintiff again saw Mr. Cartier, told him something about his personal visit to, and examination of, the lands, and reported to Elton that the Cartiers were interested, and, he thought, would some day purchase the lands. At different times plaintiff applied for and was given options, once in December, 1906, again in June, 1907. The latter was produced and received in evidence, and reads as follows:

“Manistee, Michigan, June 11, 1907.
“This indenture witnesseth: That the Manistee Land and Timber Company of Manistee, Michigan, agrees to and with A. P. Carr of Scottville that it will at any time prior to July 15th, 1907, at the written request of the said A. P. Carr execute to him or to any other person or persons as he shall direct in writing a good and sufficient deed of lands as per four plats attached hereto in towns 44 — 10 and 44 — 11, Mackinac county, and 45 — 9 and 45 — 10, Luce county, Michigan, at and for the sum of $200,000.00. Said tract contains 12,160 acres more or less.
“Manistee Land & Timber Company,
“By W. H. Nuttell, President; By T. J. Elton, Secretary.”

Plats of the lands were attached. It appears that this option was given pursuant to a vote of stockholders of defendant, held June 11, 1907; the record of the meeting of stockholders showing the following:

“Special meeting of the stockholders of the Manistee Land & Timber Company was held in the office of the ' Buckley & Douglas Lumber Company at 8 o’clock p. m., June 11, 1907, for the purpose of considering the matter of giving an option on the companies’ land to A. P. Carr of Scottville, Michigan. Upon motion of J. M. Peterson, supported by Peter Friske, the option was given until July 15th, 1907, for two hundred thousand dollars ($200,000.00). The net price to the company to be $15.50 per acre. There being no further business presented on motion the meeting adjourned.
“T. J. Elton, Secretary.”
This meeting was held pursuant to a by-law of the defendant. Under date July 15, 1907, plaintiff wrote defendant as follows:
“T. J. Elton, Esq.,
“Manistee, Mich.
“Dear Sir:
“I cannot do anything with my Saginaw party at the present time so you might just as well let the other fellow try to close his deal. There are- several parties who will be in the market a little later but just now things seem a little quiet. I saw Ross & Wentworth of Bay City. They would like to look at your timber a little later, but just now they are after another proposition. Will see you in a few days. In the meantime will surrender my claim on the Upper Peninsula lands until the other fellow gets through.
“Yours truly, ■
“A. P. Carr.”

Plaintiff never applied for or received another option. He talked with Mr. Cartier after the option expired, but never sold the land, and neither Mr. Cartier nor those whom he represented nor any other person ever agreed to buy the land from plaintiff. Mr. Elton at various times inquired of plaintiff about his prospects for securing a purchaser, and wrote him two letters which appear in the record, the first dated January 12, 1907, inquiring what plaintiff had done in that line, the other and last, May 13, 1908, reading:

“What is the outlook? Please keep me posted on what you are doing or expect to do.. I have named prices to two other parties.”

It further appears that the defendant raised the price of the lands 50' cents per acre per year on account of taxes and interest; the first increase in price being noted in the June, 1907, option given to plaintiff. In August, 1909, defendant conveyed the lands, it is to be inferred because of a sale effected by a Mr. Seymour for $18 per acre. Plaintiff testified, in part, as follows:

“Before I received the letter of October 22, 1906, I had had a conversation with Mr. Elton two or three times and the letter is in line with the conversation as far as our dealing was concerned. The defendant company was to have a fixed price of $15 per acre net to them, and what I received over and above that figure was my commission. If at any time I had a purchaser who desired to examine the land, they would give me an option for sufficient time to examine the land if no other option was out at the time, and, if the purchaser was on the land at the expiration of the option, they would extend the time, so as to enable the purchaser to finish his examination. That was my bargain with the defendant. I called for options as I wanted them. The first option I had was in December, 1906, and I think it was for thirty (30) days, but am not sure whether it was for thirty (30) or sixty (60) days. I don’t know where that option or contract is now. I was unable to find it. It is mislaid somewhere, but I did have it in my possession. _ It expired without my having made a sale. 1 didn’t give up the work on that account, but continued my efforts. I afterward went for another option. That was about the same time that I was up there attending that meeting.
“Q. Now, Mr. Carr, didn’t Mr. Elton tell you on that occasion that to make any arrangements for the sale of the land would require the action of the stockholders, and they would have a meeting that night to pass upon your option?
“A. He did not.
“Q. Now, as a matter of fact, while you was there the meeting of stockholders did vote another option, didn’t they?
“A. I don’t think it was submitted to vote. It was talked over and agreed to by the members. They consented to the option being given, and then I received an option which has been introduced in evidence here.
“Q. At this time you stated that the company had advanced the price because the taxes having been paid, and the interest on the principal running.
“A. Yes, sir; I think they had at that time, and I think that the option was for $200,000. I would have whatever I could sell the lands for, more than $200,000. I continued my efforts while this option existed, while it was in force, and it expired according to its terms on the 15th day of July, 1907.
“Q. Now, Mr. Carr, you say you did not cease efforts after that option expired?
“A. No, sir.
“Q. You still continued looking for purchasers for the lands, did you?
“A. Not outside of the Cartier Lumber Company. I didn’t look any more, but I still continued to look for them.
“Q. And you knew that according to a written agreement that the company at any time you called for an option, when you had a purchaser, the company would give you an option for a short time to look the land over?
“A. That was the arrangement.
“Q. Did you ever call for another option after this one expired?
“A. I don’t think I did.
“Q. Then this is the last option that you ever asked for or received?
“A. I think it is.
“Q. Did you know of their having given an option to other people in the same time.
“A. I did on one occasion.
“Q. What party was that?
“A. I think it was Nessen & Dovel. Mr. Elton told me.
“Q. Then you knew that part of the time after this option expired at least one other party held an option on this land and examined them?
' “A. Yes, sir. * * * I talked with Mr. Cartier after this option expired, but never sold it to them, and they never agreed to buy it from me. The first talk I had was before I had the option and was with A. E. Cartier, and twice I talked with Warren Cartier, once at the log slide at their mill, and once at the Cartier Lumber Company’s office at Ludington. That talk was some time during 1907. I told him that I had this land for sale, and A. E. Cartier asked me if I had seen the lands myself, and he did not say these lands had been presented to him before and had been turned down by them. There was no change made in our arrangements at that time other than that I was to go and look at the lands; there was never any change made in our arrangements, no more than that they raised the price on me from the original price. I talked with Mr. Elton about the price several times. He told me that additions were made to the price because of their having continued to pay taxes, and that the interest on the money was running on the investment. 'The last price he named to me was $16.50 per acre. I made different offers on different occasions; as the price advanced to me, I advanced it to my customers. Mr. Cartier was not contemplating a purchase of these lands individually in his talk with me. I do not remember any- conversation that he would try and interest some parties in the lands, and, if they would join him, he would purchase them. He had our plats at one time, and returned them to me. Mr. Cartier wrote me a letter, but I could not say the contents of it now; I know he returned me the plats, and said he did not want to delay me in any sale with other parties, and that he could not take the lands at that time. I knew the lands were for sale during all this time. The defendant company asked me what my prospect was to secure a purchaser. At one time I ceased operations awhile and another party had an option. I ceased just during the time these other parties had the option; then Mr. Elton told me I could go ahead again. On October 27, 1909, I learned through Mr. Elton that the lands had been sold. I was at his office at the Buckley & Douglas Company in Manistee on that day. I had heard of the sale before. I never knew that Mr. Seymour had applied for or had an option to sell the lands in question, and did not know they were sold until October 27, 1909, as above stated. Mr. Elton stated that the sale was to the Cartier Lumber Company, who was a customer of mine. When I made a price to the Cartier Lumber Company, they agreed to examine the lands .later on and determine, after examining them, whether or not they would take them. They never offered to take them at the price I named. * * * At several times the defendant company gave me 30-day options, which I thought I could use at that time. In December, 1906, I think they gave me a 30-day optioii, and they gave me another option in June, 1907. They were given because it was hard to in- ■ terest a customer unless you know what you are talking about. You Lave to have something specific. It was understood between the company and myself that I should have these options at any time when I had a customer interested. I have mislaid the December, 1906, option.”

Without going further, it seems to be clear that defendant did not list its lands with plaintiff for sale, with the usual resulting agreement that, if plaintiff procured a purchaser willing and able to buy them, he should be paid a commission. On the contrary, defendant offered the lands to plaintiff first at $15 an acre, promising him an option when he was ready for it, if no other option was outstanding. Months later, defendant offered plaintiff the' land for $15.50 an acre, but by the resolution of the stockholders and by the terms of the writing given to plaintiff pursuant to the resolution the offer expired July 15, 1907. The purpose of defendant to limit the authority of plaintiff, and to protect itself from precisely such a demand as the plaintiff is now making, is apparent. But plaintiff also' testified, and it seems that upon this portion of the testimony he most relies, that he was present at the meeting in June, 1907, when an option, already herein set out, was given to him, and that at that meeting an oral arrangement was made. He says:

“I went over there at that time and found Mr. Elton, Mr. Peterson, Mr. Nuttell, and another gentleman that I didn’t know. Mr. Elton asked me to tell the gentlemen what I had done relative to the sale of this particular land in the Upper Peninsula. I told them the different parties that I had negotiations with, which I have related already, and I made special reference to Mr. Cartier and Cartier Lumber Company. I told them that the Cartier Lumber Company were interested in this timber; and that it was a question whether they would buy just at this time on account of the money market; that they told me they preferred to wait awhile before they made a purchase, but that they were interested in it, and I felt confident that they would close with them in time if we worked them easy. There was a response made to this report. I think Mr. Nuttell said something about the deal; I can’t relate just what was said. It was something on the line that they objected to me peddling this tract of timber around that way among so many different companies, and they requested me to confine my efforts to making the sale to the Cartier Lumber Company. I think it was Mr. Nuttell that said that. I don’t think that I made any reply at that time. Mr. Elton said to the people that he would very much like to see me close the deal, on account of the work that I had done on it. And he asked them if they would be satisfied; that is, he asked those other gentlemen that I have mentioned — Mr. Peterson, Mr. Nuttell,. and I don’t know who the other one was, but he was supposed to be a member of the company — if they would have any objection to me going on and trying to make a sale to the Cartier Lumber Company. After some talk they said that they would not. Some one of them there, Peterson or Nuttell, I could not say which one of them there at this time, said that if I would confine my eiforts to the Cartiers, they would not have any objections. Mr. Elton also said the same thing in their presence, that that was the sense of the company. Mr. Elton said, with reference to a commission, in case I made a deal with the Cartier Lumber Company, to go on and work on the Cartiers, and they would protect me in a commission. That was said by him in the course of the meeting that was in case of a sale with Cartiers. I cannot state what time this meeting was held; it was in June, 1907, I think. After this I continued negotiations with' A. E. Cartier and Warren Cartier, more particularly with the old gentleman, A. E. Cartier. A number of times —ever so many times — I cannot enumerate the times I talked with him about the deal, covering probably a year and a half. I knew of the Cartier Lumber Company looking this land in the early part of 1909. I talked to Mr. Cartier after they had looked the land. I spoke to Warren Cartier about it after that. From the time I attended this meeting in Manistee in 1907 up until the time the Cartiers looked the land I reported to Mr. Elton as to what I was doing about it once or twice a week; a part of the time, sometimes there would be two or three weeks that I would not see him, but every time I had anything I considered would be of any interest to him I reported it to him. I nearly always went over there and talked with him at Manistee. Sometimes I talked with him over the phone. Mr. Elton called me a great many times over the phone at Seottville.”

In view of the fact that plaintiff took away from this meeting a written option which expired in about a month, that he was then seeking to sell the lands to persons other than the Cartiers, as his letter of July 15, 1907, surrendering the option, indicates, and that after the meeting he did not confine himself to attempting to sell the lands to the Cartiers, one may reasonably conclude that, whatever conversation plaintiff had with individual stockholders, no one, neither plaintiff nor any stockholder of defendant, understood that an arrangement such as is set up in the declaration was then and there made. If there was any such general arrangement made, the voting of an option expiring July 15, 1907, was a curious and unexplained performance. An analysis of all of the testimony leads to the conclusion that it was understood that, unless plaintiff actually made a sale of the lands, he should be paid nothing.

This conclusion requires an affirmance of the judgment.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.