author: Grant, J.

text:
    Oscar Jungnitsch, By his Next Friend, v. The Michigan Malleable Iron Company.

      Master and servant — Negligence—Injury to employé.

    1. Knowledge on tlie part of the foreman in tlie core room of an iron foundry, who is charged with the duty of directingemployés where to go and assist the molders in filling the molds, that boys of the age and size of one so sent are competent to perform said work, and that said boy has performed it for six months to the satisfaction of all with whom he has worked, Justifies the foreman in the assumption that he is dealing with a boy of the average size and strength, ordinarily competent to do the work, and who has shown himself competent, and in instructing said boy to do said work, notwithstanding his statement, made in answer to such instruction, that he is not strong enough to do it.
    2. The molder whom the boy was instructed to assist was perfectly familiar with his ability, had worked with him and beside him, and had seen him do work requiring as much strength as that in which he and the boy were about to engage. And it is held that, by accepting the service of the boy without objection, the molder estopped himself from claiming that the common employer is liable for a weakness on the part of the boy unknown to the foreman.
    3. The reduction of danger to a minimum requires the exercise of the highest degree of care attainable, and the law imposes no such duty upon the employer, but only the exercise of that reasonable care which the ordinarily prudent and careful man exercises in like or similar work.
    Error to Wayne. (Hosmer, J.)
    Argued January 22, 1895.
    Decided May 21, 1895.
    Negligence case. Defendant brings error.
    .Reversed, and no new trial ordered.
    The facts are stated in the opinion.

      Keena & Lightner (John Atldnson, of counsel), for appellant.

      William Look and JJ. F. Ghipman, for plaintiff.
   Grant, J.

The defendant is a corporation operating a foundry and engaged in the manufacture of iron. The molding room is large, and contains 72 floors, each of which is in charge of a molder, with a shifter under him. Plaintiff was about 18 years of age, and had been in the employ of the company for a year and a half. Most of that time he had worked in the trimming room and as shifter. About three weeks before the accident he was employed as a molder at his own and his father’s request, his father being an old and experienced molder. Plaintiff was properly instructed in his duties, and had performed the service as well as beginners were accustomed to do. On the day in question he had prepared 38 molds for filling, and had arranged them on his floor in 7 rows, of 5 each, and three extra ones back of those. Each mold was made of sand, inclosed in a box, and placed on á piece of board, with grooves in the sides for taking hold of and moving it. It was 12 by 14 inches, and 7 inches deep, and weighed 49 pounds. Each mold was covered with a piece of iron, with a hole in the center in the shape of a cross, into which the molton iron was poured by the molder. It was the duty of the molder to fill his ladle from the furnace with molten iron, and pour it into the molds. The ladle, when filled, weighed about 40 pounds, and contained enough to fill from 7 to 8 molds. It was the duty of the shifter to remove the pieces of iron from the tops of the molds as fast as they were filled, p^ce them upon the molds in the next row, draw back the molds from 15 to 20 inches for the purpose of affording a passageway for the molder in filling the molds of the next row, and carry the molds after they were filled, and dump them in a pile a short distance away. The shifter stood with one foot on each side of the mold, and, stooping down, put his hands in the grooves, and pulled it back. Boys were usually employed as shifters, though men were employed for the heaviest molds. The ringing of a bell was the customary signal that everything was ready for casting, whereupon the boys in the trimming room left their work there, and went to the casting room to work as shifters. One George Long was foreman in the core room, and directed the shifters where to go. He had no other control over the molding room, and his entire duty, so far as this room was concerned, was to direct the shifters where to work. On this occasion, he directed a boy named Julius Horn to shift for the plaintiff. Horn had then been at work for the defendant six months in the trimming room, during which time he had been constantly employed as a shifter in the usual manner. It is alleged that Horn was incompetent to do this work, for the reason that he did not possess sufficient physical strength, and that defendant knew it, and. was therefore negligent in directing him to shift' these molds for plaintiff. Horn’s arm had been broken some years before, and was crooked. This, however, was not known to Long. Horn testified that when Long directed him to shift on this occasion for plaintiff he told him that he was not strong enough to do the work. This testimony was elicited from Horn on direct examination by the following leading and suggestive question:

“Q. Had you told anybody connected with the Michigan Malleable Iron Works that you were not strong enough to do that work?
“A. Yes, sir.
“Q. To whom had you told that you were not strong enough to do the work of moving those molds?
“A. George Long.”

Horn was employed originally by one Young, the foreman of the trimming room. There was no pretense that: he was not strong enough to do the work in the trimming room, or to do the work of a shifter, except for molds as heavy or heavier than those upon plaintiff’s floor at the time of the accident. Plaintiff first filled the three extra molds. These were then moved back, and he commenced to fill the first row. The work proceeded satisfactorily, and all the molds were drawn back by Horn the proper distance, until the sixth row was reached. Plaintiff commenced at the right, and filled to the left, walking backwards, or “slantwise,” as the witnesses expressed it. After filling one row, finishing at the left, he walked' forward to the first mold at the right, through the space made by Horn in pulling back the preceding row just filled. He had thus filled all but the last row, and Horn had drawn back all the molds of the sixth row except the one at the left. The other four molds of this row just filled had been pulled back by Horn to a sufficient distance to permit plaintiff to pass between the fifth mold of the sixth row and the fourth mold of the same row, which had been pulled back, into the passageway, to go again to the right. He passed through safely, and commenced filling the first one of the last row, and while he was attempting to fill this the accident occurred. His testimony upon this point is as follows:

“He [Horn] had all of them pulled hack except one. He didn’t have it far enough pulled back. I fell over this mold. I was just starting to pour, and I stepped back. I was too close to the mold. I could not get the ladle near enough to pour in, and stepped back with my right foot. I stepped on this mold, and it tipped, and I fell over. I cannot tell how far back I stepped.
“Q. Did you start to walk across over to fill No. 1 of the seventh row before Julius pulled it back, or did he pull the mold back before you started to walk back?
“A. It was pulled back before.
“Q. So that before you had moved to go back to No. 1 it was pulled out of your way? .
“A. Yes, sir.
“Q. Do you remember that or do you only think that?
“A. I remember that they were.
“Q. Then how far back was it pulled?
“A. I could not tell you that.
“Q. You had room enough to walk through, did you not?
“A. I had room enough to walk between it, but not enough.”

Neither plaintiff nor Horn was able to tell over which mold plaintiff stumbled. As he fell, the molten iron escaped from the ladle, sparks flew into the plaintiff’s eyes, and put them out, in consequence of which he became permanently blind. It is alleged in the declaration that the molton iron came in contact with some pieces of cold iron lying near the floor, and that this contact caused an explosion. There was no evidence of negligence in leaving these pieces of iron where they were, and the court properly eliminated that ground of negligence from the case.

The court instructed the jury that there was no evidence in the case which would authorize them to infer that the work which Horn did while he was in the factory, up to the time of the morning of the accident, was. not performed in such a manner as to warrant the company in his retention. In this same connection he instructed them as follows:

“His fellow employés have testified certainly that he seemed to possess the average strength, and that he would carry an average load, at least, on a wheelbarrow, while in the trimming room, — the average load of those employed. There have been several df the molders testified that he had shifted for them, and that he performed his work well. And, as I said this morning* so far as his competency is concerned, I do not see how you or any one else could infer, from what evidence there is in this case, anything but that he was adequate to perform those duties, or but what the company had reasonable ground for believing he was adequate to perform those duties, which had theretofore been cast upon him; so that it comes down to the question in this cáse — -any negligence of the company comes down to the question — of whether the company did its duty upon the morning of the accident. Now, gentlemen, you have heard the testimony in this case. On the one hand, you have heard the testimony of the plaintiff’s witness Julius Horn, who testifies on that morning that he went to George Long when he was ordered to shift the molds for the plaintiff in this case, and told George Long (I have forgotten the exact language) that he was not strong enough to shift the molds or do that work. I cannot tell you exactly what the language was; you remember it. On the contrary, George Long comes into court, and denies positively that there was any such conversation as that. You may address yourselves to the question next to whether there was that conversation, because, gentlemen of the jury, if there was not that conversation, then, as requested by the defendant in this case, I charge you that there can be no liability on the part of the company, because they had every reason to believe, up to that time, at least, that he was able to perform that work to which he had been assigned.' If, gentlemen of the jury, you find that he had that conversation, and you find that his arm was actually weak on that morning, and that he was unable to do that work, then it is a question for you to consider what George Long ought to have done under the circumstances. The counsel for the plaintiff claims, in that respect, that there was this conversation, that his arm was weak, and that it was negligence on the part of the company then to send him to work. Whether it was negligence under those circumstances is a question for you, and not for me.’’

Plaintiff obtained verdict and judgment. Any further ■statement of facts necessary will be made in connection with the points determined.

1. Plaintiff and Horn were fellow-servants. His counsel say:

“The conduct of Horn in permitting plaintiff to walk into and fall over the mold was gross negligence. He saw plaintiff all the time.”

We fully agree with this statement, if it be a fact, that any one of the molds was in plaintiff’s way, and Horn knew that he was "in danger of stepping against it as he stepped backward. His testimony on this point is as follows:

“Q. Did you see that there was danger of Oscar falling over them? Did you see that they were in his way?
“A. Yes, sir.
“Q. And why didn’t you speak to him?
“A. Because I was pulling the molds back. I could not speak to him.
“Q. Because you were pulling the molds back, but you .were not pulling them back far enough?
'“A. Yes, sir.
“Q. And you knew that you were endangering him, but you did not say anything to him?
“A. No, sir.
“Q. Why didn’t you?
“A. Because I could not. I didn’t have no time. I had to pull them molds quick enough back for him.
“Q. You did not tell him you were tired?
'“A. No, sir.”

The statement that Horn had no time to notify plaintiff that one or all of the sixth row were not moved back a ■sufficient distance, and to warn him of the danger, is too absurd to merit argument. This negligence of Horn was the negligence of a fellow-servant,for which the employer is not bable, except upon the ground that it employed a servant knowing that he did not possess common intelligence, and no such claim is made.

2. The original declaration averred that Horn “had properly performed his duty and labor, and had removed all of said molds, with the exception of the last or left-hand mold in the sixth row, which mold he wholly failed to remove in consequence of his weakness, lack of physical strength and endurance, and becoming tired.”

It was made apparent by the evidence upon the trial that the plaintiff did not fall and could not have fallen over the fifth mold, because he was in the act of pouring •the first mold at the right when he fell, and Horn was at the same time in the act of pulling back the fifth mold, and eách row was 8 feet four inches long. The court so found, and permitted plaintiff to amend his declaration so that it alleged that he fell over some one of the five molds in the sixth row. The amended declaration also alleged that Horn had properly performed his duty in removing all the molds up to the sixth row. For some reason, which I am unable to understand, plaintiff’s counsel argued upon the hearing in this Court that plaintiff fell over the fifth mold. He argued that Horn had moved one end of the mold round so as to be in plaintiff’s way. Horn testified — and this is the sole testimony upon the subject — that after plaintiff had passed from the left to the right, between mold No. 5 of the sixth row and No. i of the same row, and then between the seventh row and the other four molds of the sixth row, which Horn had pulled back, he (Horn) removed the weight to the seventh row, and was in the act of stooping down to pull back this fifth mold, when plaintiff fell. It is therefore conclusively established that plaintiff fell over one of the other four molds, but which one neither he nor Horn can tell. If he fell in consequence of coming in contact with a mold, it was undoubtedly one of the first three, and all questions must be determined under the correct ruling of the court that the fifth mold had nothing to do with the accident.

3. Admitting that Mr. Long was the vice principal of the defendant, was the statement made to him by Horn sufficient to put him upon inquiry, and was it negligence to instruct him to do the work without making-such inquiry? This question, which is the important one in the case, must be answered in the light of Horn’s previous work, of Long’s knowledge, what would have been disclosed by an investigation, and what that investigation should have been.' It is not claimed that a boy 16 years old, and of average size, is not competent, and •does not possess strength sufficient, to move molds of the size and weight of these. Such a claim would be absurd. Many such were employed for that purpose. Their employment is conceded to be proper. It is also conceded that young Horn was of the. average size and apparent strength of boys of his age. He was paid the same wages and did the same work as all the others. There was nothing in his appearance to indicate any physical defect or weakness, nor had he ever made any complaint. So well had he done his work, as shown by the evidence, that the judge instructed the jury that there was no evidence from which any one could infer “anything but that he was adequate to perform those duties, or but what the company had reasonable ground for believing he was adequate to perform those duties, which had theretofore been cast upon him.” If, therefore, any cause existed why he had not strength sufficient to move the molds, it was some hidden weakness or defect, unknown to Long, and the existence of which he had no reason to suspect. Horn did not inform him that his arm had been broken, or that it was weaker than it would be if it had not been broken, or that it was not then as well as usual. On the contrary, he testified that his arm was in its customary condition, and he was feel-' ing as well and as strong as. usual. Long, therefore, assumed, and had the right to assume, that he was dealing with a boy of average size and strength, — one ordinarily competent to do the work, and who had shown himself competent by experience. To- Long the statement meant no more than that Horn did not consider a shifter of average size and strength strong enough to move the molds. In fact, such a shifter is, as a rule, competent, and defendant cannot be held guilty of negligence for the exercise of the honest judgment of Long, though it turn out, by after experience, that he was not competent. Let us suppose that Long had? stopped to examine Horn, and found that his arm had been broken. He would also have ascertained that it was broken when he was nine years old, that it was in the same condition that it had been during his term of service, and that he had moved much heavier weights than these. Six molders testified that Horn had moved molds heavier than these, and they gave the size and weight. Horn alone -denies this, but cannot give the size and weight of the molds he moved. Two others also testified that they had seen him move molds as heavy as these. Had Long inquired of plaintiff, he would have ascertained that he had worked by the side of Horn for nearly six months in the trimming room and as shifter, and that he had moved molds as heavy as plaintiff had and as those he was then instructed to move; that he had heard no complaint, and had seen nothing to indicate any weakness. But suppose that Long had stood by to watch Horn for a while to see if he was able to do the work. He would have seen that he moved 32 molds properly, and that he had lifted, carried to, and thrown upon the dump pile the greater part of them, — a labor involving greater strength than pulling them back. If he had seen Horn do half the work pr'operly and well, would he not have, been justified in leaving him then to complete it? Experience had demonstrated - to Long two things: (1) That boys of his age and size were competent; and (2) that Horn had done like work for six months before to the satisfaction of all with whom he had worked. He was therefore justified in instructing Horn to do this work, notwithstanding his statement.

4. The risk was one plaintiff assumed. He was perfectly familiar with Horn’s ability. As already shown, he had worked with him and beside him, and had seen him do work requiring as much strength as that in which they were both then engaged. He was under plaintiff’s direction and control from the beginning of the work to its close. It was his duty to see that Horn did his work well. It was equally Horn’s , duty to inform plaintiff of any danger to him whifeh he saw that plaintiff did not or could not, by exercising ordinary care, see. It was also his duty to inform him if he felt his strength failing so that he could not do the work properly. Plaintiff knew more about Horn’s strength than did Long, having had better opportunity to observe it. He accepted his service without objection, and cannot now be heard to insist .that defendant is liable for a weakness unknown to Long.

5. Was there evidence that the molds were not drawn back the proper distance? They were drawn back so far that plaintiff had no difficulty in passing between the four of the sixth row and those of the seventh, carrying his ladle. If there was room for him to pass one way in safety, it is difficult to understand why he could not as well pass the other way in safety. There was no fixed distance established or required. The distance varied according to the shifter and the room. Plaintiff on this point testified as follows:

“Q. Do you know how far the molds are drawn back wards after they are filled ?
“A. No, sir.
“Q. How did you use to draw them when you were a shifter?
“A. Just as far as I pleased. I might pull them as far as I pleased. Nobody told me how far I had to pull them back.
“Q. So there is no particular distance then?
. “A. No, sir; not that I know of.
“Q. Had you shifted for your father sometimes?
“A. Yes, sir.
“Q. Did he never tell you how far to pull the molds back?
“A. No.”

Again he testified:

“In pulling the molds back.it depends somewhat upon how much room you have. Sometimes you have got a lot of room, and sometimes you ain’t. Sometimes you pull them further, and sometimes not so far.”

It follows from this testimony that plaintiff had no right to rely upon any particular distance, much less upon the three feet alleged in the declaration to be necessary. Horn testified that he usually pulled them back about three feet. He also testified that he pulled the four of the sixth row back about a foot. In this he is clearly mistaken, because he had pulled the fourth mold back so that plaintiff walked between that and the fifth. Each mold was 14 inches long. Molds of the same size’ were placed upon the floor of the court room, arranged in the same manner as upon the floor of the foundry. Horn then moved them so that, as he testified, they were in the same relative position as at the time of the accident. The distance between the molds of the sixth and seventh rows, after he had moved the four of the sixth, was 19, 20, 20, and 21-£ inches, respectively. He testified that all four stood substantially on a line, but that some stood a little crooked. He also admitted finally that they were moved back at least 18 inches, and that he had told the attorney of plaintiff that he moved the sixth row back about 2 feet. It is therefore clearly established that the passageway between the rows was at least 18 inches. Horn does not pretend that there is any customary or fixed distance. He only pretends to state what he usually did, but when he says that he usually moved them 3 feet he is clearly mistaken, as is shown by his subsequent testimony. One Frexelius, a molder and a witness for plaintiff, illustrated with the'molds the usual manner of moving them, and by actual measurement he left a space of 19 inches. It is established by clear and positive evidence that the distance varies from 15 to 20 inches. The conclusion seems to me irresistible that Horn performed his full duty, and therefore the entire charge of negligence falls. If there was negligence anywhere, it was that of the plaintiff in stepping back too far, and in moving backwards instead of forwards while filling the molds. Other molders testified that in filling they moved forwards from left to right, or from right to left, as they are right or left handed, and that this was the proper way. Plaintiff gave no reason why he moved backwards.

6. It remains to notice one other error in the instruction of the court upon the care which it was the duty of the defendant to exercise in the employment of servants. As already shown, the court had in effect and correctly charged the jury that the defendant had exercised proper care in the original employment of Horn, and in his retention in the work of a shifter, and the only question was, had Long exercised proper care in placing him to act as shifter for plaintiff? In instructing the jury upon this point the court said:

“It is essential that the employer should use that care —that responsible care — in the selection of his servants that will, so far as possible, reduce the question of liability to accident to, we may say, in the ordinary course of affairs of life, a minimum.”

No such rule governs in the ordinary affairs of life, and especially in a case where the work to be done requires only sufficient strength and a moderate degree of intelligence. The reduction of danger to a minimum requires the exercise of the highest degree of care attainable. The law imposes no such duty upon the employer, but only the exercise of that reasonable care which the ordinarily prudent and careful man exercises in like or similar work.

The judgment should be reversed, and, inasmuch as no different case can be made upon a new trial, none should be ordered.

Long and Hooker, JJ., concurred with Grant, J. Montgomery, J., concurred in the result. McGrath, C. J., did not sit.


source: Caselaw Access Project

author: McGrath, O. J.

license: Public Domain

text:
    Lewis Cohen v. The Supreme Sitting of the Order of the Iron Hall.

      Mutual benefit associations — Action on certificate — Foreign receiver— Action in State court.

      1. The articles of association of a mutual benefit society provided that the benefits to which members were entitled should be paid at such times as might be provided by the laws governing such payment, or in the certificate of membership. After the issuance of a certificate which provided that if the member to whom it was issued should for seven years pay his assessments punctually, and maintain himself in good standing in the order, he should be entitled to a sum not exceeding the principal amount named in the certificate, less the amount which he might have already received as benefits, etc., a by-law was adopted providing that final benefits should, when found correct, he adjusted within 90 days from the date of the expiration of the certificate. And it is held that the by-law applied only to such certificates as, by their terms, made the benefit payable at the time fixed by the by-law.
    2. On the same day that a receiver was appointed in another state for a foreign benefit association having local branches in this State, a member to whom a certificate had been issued by one of said local branches brought suit thereon in- this State, and supplemented such suit by garnishment proceedings. And it is held that, in the absence of proof that the appointment of the receiver preceded the commencement of the garnishment proceedings, the pendency of the suit in which such appointment was made did not deprive the member of his remedy at law which he was seeking to enforce.*
    Error to Wayne. (Hosmer, J.)
    Argued February 12, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      O. E. Warner, for appellant.

      Washington I. Robinson, for plaintiff.
   McGrath, O. J.

The articles of association of the defendant order provide that “this association shall have power to make and change its own constitution and laws,” and that, one of the objects of the order is to “establish a benefit fund, from which members of the said order who have complied with all its rules and regulations, or the heirs of such members, may receive a benefit, in a sum not exceeding $1,000, which shall be paid in such sums and at such times as may be provided by the laws governing such payment, or in the certificate of membership, and when all the conditions regulating such payments have been complied with.” Its constitution declares one of the objects of the organization to be to pay to members “an amount of not more than $1,000 when they have held a continuous membership in the order for seven years.”

On the 20th day of July, 1885, the association issued to plaintiff a certificate, the material portions of which are as follows:

“For and in consideration of that Lewis Cohen has become a member of local branch No. 5, Order of the Iron Hal, and has objigated himself to obey all lawful commands of this order, whether emanating from the local branch of which he may be a member, or from this supreme sitting, or from any other duly constituted authority, and of the sum of $2.50, which he has paid to said local branch as an assessment on account of the relief fund of this order, and of further assessments of a like amount to be paid as may be regularly and lawfully called for, and of an explicit compliance with all the laws, rules, and usages of thfs order, also all laws which may hereafter be enacted, and especially with the conditions herein set forth, do grant unto the said member this certificate, and declares him to be entitled to all the rights and privileges properly belonging to members of his rank and standing, including a benefit of not exceeding $1,000 from the relief fund of this order, which sum shall be paid in the manner and upon the conditions hereinafter mentioned, to wit:
“First. In case the said member shall continue to pay all assessments, dues, and demands which may be legally made against him, or against this certificate, for the full term of seven years from its date, making all such payments punctually within the prescribed time, and shall in all particulars maintain himself in good standing in the order, then the said member shall be entitled to a sum not exceeding the principal amount named herein, less the amount which he has already received as benefits from the order on account of sickness or other disability, or otherwise.”

The certificate contains no other reference to the laws, rules, or usages of the order, or to the time of payment of the principal sum named therein. The certificate matured July 20, 1892, and this suit was instituted August 23, 1892.

It appeared that on July 29, 1892, Albert R. Baker and others commenced a suit in the superior court for the county of Marion, Ind., against the defendant, for the purpose of dissolving the corporation; having a receiver appointed to take possession of all the assets and books of account, to collect all amounts due, and to disburse the same in such manner as the court might order and direct. On August 23, 1892, James F. Failey was appointed receiver by said court of all the property and effects of the defendant corporation; and the defendant, by such order, was required to make, execute, and acknowledge an assignment of all debts, securities, bonds, notes, mortgages, and collaterals to the receiver. On August 24, 1892, an assignment was made by the defendant to James F. Failey, receiver. On December 2, 1893, a final decree was entered in said court and cause, in which it was declared that the defendant corporation was at the commencement of the action, and ever since had been, and then was, insolvent; that its assets and property should be reduced to money, and paid and applied upon its debts; that Failey should be continued as permanent receiver; and that all the members of the corporation, whether in the state of Indiana or elsewhere, in good standing, should participate in the distribution by said foreign receiver. This decree provided alike for all members of the order in other states as well as in Indiana, and fully preserved the equities of all. On September 27, 1892, Lewis P. Durkee also filed a bill in the circuit court for the county of Wayne, in chancery, substantially as in the case of Baker and others, against the defendant corporation, and praying that a receiver might be appointed ancillary to the foreign receiver. On October 1, 1892, Stephen Baldwin was appointed receiver in Michigan, with authority to collect and gather in the property; and on February 9, 1894, a final decree was entered in the court and cause, declaring that the corporation was on July 29, 1892, and ever since had been, insolvent, and unable to- carry on its business, and that Baldwin be continued as permanent ancillary receiver, with authority to gather in the property of the corporation, etc.

It further appears that sometime after the issuance of the said certificate the association adopted a by-law which provided that:

“Final benefits shall be, when found correct, adjusted within 90 days from the date of the expiration of the benefit certificate, and claims for such final benefits must be filed within 30 days from the date of expiration.”

It is contended:

1. That suit was prematurely brought.
2. That it was the duty of the plaintiff to resort to the Indiana court, and that suit could not be maintained by him in the Michigan court.

In the case of Sabin v. National Union, 90 Mich. 177, the certificate provided that the sum should be paid “pursuant to the provisions of the laws of this order governing said fund, upon sufficient proof,” etc. The reference to the laws of the association in the present case cannot be said to relate to the time of payment,but rather to the affirmative obligations assumed by the holder of the certificate. Especially is this so in view of the fact that the articles of association expressly provide that the amount shall be paid “at such times as may be provided by the laws governing such payment, or in the certificate of membership.” The fundamental law therefore recognized the time of payment as fixed by the certificate, and the by-law subsequently passed applied only to such certificates as, by their terms, made the sum payable at the time fixed by the by-law.

Upon the second point, defendant cites Rundel v. Association, 10 Fed. Rep. 721; Davis v. Association, 11 Id. 781; Taylor v. Association, 13 Id. 493; Fry v. Insurance Co., 31 Id. 197; Parsons v. Insurance Co., 31 Id. 305; Weingartner v. Insurance Co., 32 Id. 314; Relfe v. Rundle, 103 U. S. 222. In all of these cases a decree of dissolution had already passed and a receiver had been appointed at the domicile of the corporation. .Several of them were cases in which the theory was that the funds in the hands of a branch association constituted a trust charged with the payment of the policy holders of that state. The Fry and Weingartner cases were attachment suits commenced in other states after the insurance commissioner had commenced proceedings under the statute of the state where the company was organized, and after a receiver had been appointed. The bill in the present case was not filed by a statutory officer charged with the supervision of insurance matters, and empowered, in a given contingency, to proceed, but was filed by members of the corporation. Although it was filed in July, 1892, no decree was entered until December, 1893, and in the mean time a supplemental bill had been filed. The receiver was appointed August 23, 1892, and on the same day this suit was commenced, and an ancillary writ of garnishment was issued. In the absence of any statute recognizing fractions of days, it has been held that all judgments entered on the same day will be regarded as if entered at the same time. Freem. Judgm. § 370; Rockhill v. Hanna, 4 McLean, 554; Bruce v. Vogel, 38 Mo. 100; Bank v. Gorman, 8 Watts & S. 304, 308; Burney v. Boyett, 1 How. (Miss.) 39. In Louisville v. Bank, 104 U. S. 469, the court held that when the priority of one legal right over another, depending upon the order of events occurring on the same day, is involved, the rule that for most purposes the law regards the entire1, day as an indivisible unit is necessarily departed from. But, where a case turns on the question of which of two things was done first, the party having the burden of proof fails in merely showing that both were done on tin same day. Richards v. Fox, 52 N. Y. Super. Ct. 36. If it be conceded that the prior appointment of a receiver by the Indiana court would have relegated plaintiff to that court, it does not appear, under either rule, that such appointment preceded the commencement of the present suit. We are of the opinion that under the rule laid down in Granger v. Circuit Judge, 27 Mich. 406, the pendency of the proceedings in the Indiana court did not deprive plaintiff of his remedy at law.

The judgment is affirmed.

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

       As to the exclusiveness of jurisdiction by the appointment of a receiver, and the time when it attaches, see note to Re Schuyler's Steam Tow-Boat Co., (N. Y.) 20 L. R. A. 391.


author: McGrath, C. J.

text:
    In the Matter of the Application of the Flint & Pere Marquette Railroad Company to Abandon Certain of its Tracks.
    [See 91 Mich. 293.]

      Railroad companies — Abandonment of road — Reimbursement of contributors — Glaim of appeal — Amendment.
    1. A claim of appeal was filed by seven defendants. An eighth defendant, whose name was by oversight omitted from the claim for appeal, executed in his own behalf and in the behalf of said seven appellants the required statutory bond, to which was attached a stipulation signed by the solicitors for non-appealing defendants and by the solicitor for the complainant, accepting such bond, waiving any question as to the sufficiency of the sureties, and all further notice of entering said appeal. And it is held that an amendment of the claim of appeal, by including the name of the eighth defendant therein, might be made.
    2. Where, pursuant to 3 How. Stat. §§ 3457a, 34576, a railroad company is permitted to abandon or cease to operate its road between two stations, and makes no provision for the reasonable accommodation of the traffic originating at or destined to said stations, the company must under Act No. 125, Laws of 1.891, amendatory of the statute first cited, pay back to each individual, private or public corporation, or to the heirs, executors, administrators, successors, or assigns of such individual or corporation, all moneys received by such railroad company from such individual or corporation as. a bonus, and interest thereon at the rate of 6 per cent, per annum from and after the time such bonus was granted, not to exceed five years.
    3. After the reversal of a decree dismissing the petition of-a railroad company for leave to abandon a portion of its road,, and the remanding of the case for further proceedings under . the statute, claims were filed by several of the defendants who had not appeared prior to said decree. And it is heldr that there Is no force in the objection of the railroad company to the allowance of said claims; that the statute contemplates that an opportunity be given the parties in interest for a hearing, and that the decree itself may be conditional.

      4. The statute expressly limits the recovery of interest to five years from and after the time the bonus which is sought to be recovered back was granted.
    5. The claims of parties who gave aid notes, and afterwards paid the notes by granting rights of way, should not be allowed, but the decree should provide for the reconveyance by said railroad company to said claimants of the rights of . way granted by them.
    6. Two claims were filed in the names of deceased persons, whose estates had not been administered upon. The decree directed the payment of one of the claims to the daughter and sole heir at law of the claimant, to whom he had in his lifetime turned over and .assigned all of his estate, and ordered the other claim paid to the claimant’s widow, or to the solicitors who filed the claim. And it is held that the railroad company is entitled in each case to a bond of indemnity before payment, the terms of which may be fixed by the final decree.
    Appeal from St. Clair. (Eldredge, J., presiding.)
    Submitted on briefs February 14, 1895.
    Decided May 21, 1895.
    • Petition by a railroad company for leave to abandon certain of its road. Petitioner and eight claimants appeal.
    Decree modified.
    The facts are stated in the opinion, and in 91 Mich. 298.

      W. L. Webber and Atlmison & Wolcott, for petitioner.

      William Gowan, for appealing claimants.

      H. W. Stevens, for appellees.
   McGrath, C. J.

This matter was before this Court in 91 Mich. 293. It appears that there has been amisapprehension of that decision. The matter then before the Court was. the appeal of the petitioner from an order dismissing the petition. This Court reversed the decree of the court bélow, held that the act of 1891 was applicable, and directed that parties contributing be allowed to appear and prove the amount of their contributions, and recover the same, with interest. The difficulty grows out of the application of the reasons given by this Court for the reversal of the decree of the court below, and the granting of petitioner’s prayer, to the rights of the claimants. The statute fixes the right of the claimants, and clearly provides that all parties contributing to the discontinued road shall be entitled to have refunded the amount of their contributions, with interest. Petitioner had originally constructed its road from Port Huron northerly, via Zion, to Sand Beach, or Port Austin. In 1880 it determined to construct a branch from Zion westerly to Yale, and the contributions sought to be recovered are those made to the construction of this branch. The exception in the statute makes its purpose more apparent. It provides that —

“This act shall not apply to the abandonment by any railroad company of its tracks between two stations only, where provision is made for the reasonable accommodation of the traffic originating at or destined to such stations by another line of road operated by the same company.”

Zion is a station in the northern portion of Clyde township, northwesterly from Port Huron, and on the line of the road leading north to Rand Beach and Port Austin. The road from Port Huron to Zion and north is yet in operation. The new line from Port Huron to Yale runs almost due west, through the southern portion of Clyde township, about half way across the adjoining township of Kenokee, and then north-westerly to Yale, leaving out all the stations on the old line between Port Huron and Yale, including Zion. No provision is made for reaching any of these stations by rail, except that Zion and those stations east thereof may be reached by going east on the new road to Port Huron, and then west on the old road to Zion. The claimants have contributed to the construction of the road between Zion and Yale. That portion of the road has been abandoned, and no provision can be said to have been made for the reasonable accommodation of the traffic between those two stations. In such case, the statute is imperative that the contributions made for that construction must be refunded. The appealing claimants are entitled to a decree accordingly, and the same will be entered here.

At the hearing, petitioner for the first time raised the question as to the standing of appealing claimants in this Court. There are eight such appellants. The claim of appeal did not contain the name of Wm. H. Palmer, but, within the statutory time for filing such claim, a bond was filed by “William H. Palmer, principal, for and on behalf of himself and” the other appealing claimants, naming them. Appended to the bond was the following, signed by the solicitors for the non-appealing claimants and petitioner:

“We hereby accept the within bond on appeal, and waive any question on the sufficiency of the sureties and amount, and also waive all further notice of entering appeál on the part of appellants within named.”

It is now insisted that William H. Palmer made no claim of appeal, and that the other appealing claimants are not before the Court, because they have not given a bond under the statute. It is clear, however, that William H. Palmer did, by a writing duly filed, manifest an intention to appeal, and that the omission of his name from the written claim of appeal was an oversight. This is apparent from an act done under the same statute in the statutory manner, within the time prescribed for filing the claim of appeal. A claim of appeal was made,. and from the face of the record it appears that he supposed his name appeared in the claim, and intended that it should so appear. We think that, under the general rule, an amendment of the claim of appeal, in accordance with the manifest' intention appearing upon the face of the papers, may be made. 1 Enc. PI. & Prac. 658-669.

Petitioner appeals from the allowance of certain of the claims. Objection is made to the allowance of claims to persons who had not appeared prior to the decree dismissing the petition. There is no force in the objection. The statute contemplates that an opportunity be given the parties in interest for a hearing. The decree itself may be conditional.

Interest was allowed upon all claims from the date of payment of the subscription until the date of the decree. This was erroneous. The statute expressly limits the recovery of interest to five years, and the former opinion must be read as though the words, “not exceeding five years,” followed the language there used. James H. Lapien, Martin Meddaugh, and Robert Jackson gave aid notes, but afterwards paid the notes by granting rights of way. The statute contemplates that all rights of way shall be conveyed back to the donors, and that such reconveyance shall be satisfaction. The claims of these parties should not have been allowed. Provision should be made in the decree for a reconveyance to them.

The statute prescribes upon what terms railroad companies may abandon their roads, provided they proceed by petition in the proper court, and for redress in case they undertake to abandon without leave of court. All parties are here in a proceeding under the first section of the act. After the dismissal of the proceedings in the first instance by the court below, and before a reversal of that decree, it is claimed that petitioner actually tore up and abandoned the portion of the road described in the petition. What the rights of these claimants were under such circumstances we are not called upon to determine. Claimants have seen fit to seek reimbursement in this proceeding under the first section of the act.

Respecting tbe claims allowed to Hiram Peasley and Julia Vincent, petitioner is entitled to a bond of indemnity in each case before payment, the terms of which may be fixed by final decree.

The other questions raised seem to us to have been disposed of by the former opinion.

Otherwise the decree is affirmed, without costs to either party.

The other Justices concurred.

       The decree below was entered April 17, 1891. Act No. 125, Laws of 1891, was approved June 12, 1891, and took immediate effect. One of tbe points made by the petitioner upon tbe present hearing was that the law of 1891 was not applicable to the proceeding. No rehearing, however, of the prior decision had been applied for. Two successive applications for rehearing of the present case were subsequently denied.

       Hiram Peasley gave an aid note. He died April 22, 1892. I-Iis estate had not been administered upon. The decree directed payment to be made to the decedent or his solicitors, who had included the amount of his note with other claims filed by them.
      Julia Vincent was the daughter and sole heir at law of Joseph Michaels, who died June 16, 1890, and who, before his death, had turned over and assigned to his daughter all of his estate, to whom the claim filed in his name was decreed to be paid.


author: Montgomery, J.

text:
    John Eakright v. John Torrent.

      Logging contract — Quantum meruit — Conclusiveness of scale.

    -In a suit by a contraeter to recover upon the quantum meruit the reasonable value of the work performed under a logging-contract, the full performance of which had been prevented by the defendant, it appeared that the contract provided that the scale of the logs, made by scalers agreed upon by the parties, should be conclusive as to the quantity of timber cut, hauled, and delivered by the contractor, as far as regarded payments to be made therefor. And it is held that, in the absence of fraud or gross error,

       the scale so made and established and reduced to writing became the superior and conclusive evidence upon the subject.

      Error to Muskegon. (Russell, J.)
    Submitted on briefs February 15, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Sessions, Nislcern & Bassett, for appellant.

      Nelson De Long {John A. McLaughlin, of counsel), for plaintiff.

       It was held in Malone v. Gates, 87 Mich. 332, 336, that the term “gross mistake,” as used with reference to a log scale, is a mistake which is clearly shown to have left out some of the logs, or to have increased tire scale by a mistake in the tally or in the addition of the amounts on the tally sheets, or something of that nature, and not an honest error of judgment in the sealer.

   Montgomery, J.

Defendant was the owner of certain timber in the townships of Muskegon and Dalton, in Muskegon county, and entered into a contract with the plaintiff, by the terms of which the plaintiff agreed to cut, haul, and deliver to the defendant, at his mill in the city of Muskegon, all the timber upon the descriptions of land named, at the agreed price of $á per thousand feet, payable at stated intervals. The plaintiff offered evidence tending to show that, after about 6,000,000 feet of the logs were cut, the defendant prevented the completion of the contract by the plaintiff and this suit is on the quantum meruit, to recover the reasonable value of the work which plaintiff performed under the contract before the defendant interposed to prevent its completion. Among other provisions the contract contained the following:

“It is hereby mutually agreed between the parties that the logs mentioned in and covered by this contract, as fast as skidded in the woods, shall be measured or scaled by a competent person or persons, to be agreed upon by the parties hereto, and in accordance with Doyle’s rule or scale in use upon Muskegon river. Such scaler or scalers shall, at the time of making such scale, mark each log with such recorded log mark or marks of first party as he shall designate. Each party shall pay' one-half of the wages and expenses of such scaler or scalers. The scale of such logs so made shall be final and conclusive as to the quantity of timber cut, hauled, and delivered by second party under this contract, as far as regards payments to be made therefor. Duplicate scale sheets or bill, if required, shall be made by the scaler, and delivered to. each party promptly.”

The theory of the plaintiff is that as defendant has broken his contract, and failed of performance on his part, the plaintiff is entitled to recover for the work already done on the quantum meruit, and that, in an action to recover on this basis, he is not bound at all by the ■stipulations of the contract, and may ignore that relating to the conclusiveness of the scale made by the agreed scaler.

It is a rule that has been applied in a certain class of cases that if there has been a special contract, and the plaintiff has performed part of it according to its terms, and has been prevented by the act of the defendant from completing it, he may recover upon the quantum meruit the reasonable price of the services already performed. See Hemminger v. Assurance Co., 95 Mich. 357, and cases cited. But see 3 Amer.& Eng. Enc. Law, 921, 922; and McGregor v. Estate of Ross, 96 Mich. 103; 2 Suth. Dam. (2d ed.) § 713.

The circuit judge charged the jury, not only that if the jury found that a breach was committed by the defendant, by a refusal to permit the plaintiff to continue in a performance of the contract, the plaintiff might recover the reasonable price of the work done, but also charged the jury that in such case the scale of logs already manufactured would not be binding upon the parties. The instruction upon this subject is as follows:

“If you find that this contract was violated by defendant, by himself or his' superintendent discharging the plaintiff before his work was completed, then I instruct you that no portion of the contract is binding upon the plaintiff; and therefore the plaintiff would not be bound by the scale made by the scaler, unless the scale should be found by you to be correct, but may prove the amount of timber cut, skidded, and hauled by any competent, evidence.”

. Does it result, in a case where a party to such a contract as the present is entitled to sue and recover upon the quantum meruit, that such a stipulation as that contained in the present contract, relating to the scale, may he wholly set aside? If the breach of this contract by defendant had been a refusal to pay when the work was completed, there can be no doubt that the stipulation would be binding. 13 Amer. & Eng. Enc. Law, 1034; Johnson v. Howard, 20 Minn. 370; Malone v. Gates, 87 Mich. 332. There is a dictum in Chapman v. Dease, 34 Mich. 375, which tends to sustain the view adopted by the circuit judge. But no such holding was necessary to the determination of the question in that case, as the case turned upon the point that the contract between the parties did not give the scaler the right to determine the percentages of different qualities contained in the logs, and that was the question to which the testimony was directed. Unless the defendant is to be punished beyond the actual damages sustained by the plaintiff for a breach of the contract, we can see no good reason why the scale fixed by agreement of the parties should not be controlling whenever the quantity becomes the subject of judicial inquiry in a suit between the parties. If it be said that it doe* som.-tines r-su’t under the rule permitting a recovery under the quantum meruit that the defendant is punished by being compelled to pay more than the contract price, the answer is that this is permitted upon the theory that it is one means of measuring the damages of the plaintiff, and, in case of a non-severable contract, perhaps the only means. But the stipulation relative to scaling is a rule of evidence established by the parties, and no logical reason has been suggested why this rule of evidence should not control on the trial of any issue which may arise between the parties where the subject-matter to be determined is that which they themselves •have fixed a means of determining. kThe rule is analogous to that which makes the written evidence of a com tract the controlling and only admissible evidence. In fact, in practice, the scale is entered in writing, and the opportunity to obtain correct information oftentimes passes by when the scale is entered and the logs banked or put afloat. The contract has been to this extent acted upon and executed by both parties, and the scale established and reduced to writing becomes the superior, and, we think, conclusive, -evidence upon the subject, in the absence of fraud or such gross error as is referred to in Malone v Gates, 87 Mich. 332. The danger of any other rule is well illustrated in this case. Loose testimony, based upon’ an inspection of the stumps left upon the ground, was admitted, and guesswork as to the number of logs per thousand which a proper scale would show was permitted to overcome the actual s'cale of the scalers mutually agreed upon; and .the jury were, under the instructions, authorized to accept this testimony, even though the scaler committed no fraud, and though no error as to the number of logs was pointed out, and though no actual scale subsequently made showed even any error in judgment. We think it would be unjust to permit this kind of testimony to overcome that which the parties themselves have seen fit to fix as the only competent testimony to determine the identical question which the jury are called to pass upon.

The view which we take of this question renders it unnecessary to consider numerous of the exceptions taken to the introduction of testimony.

Error is assigned upon some rather intemperate remarks of counsel, which it is unnecessary to set out, as it is not likely that they will be repeated upon another trial.

For the error stated, the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    Sigmund Simon and Isaac Mendelson v. The Detroit, Grand Haven & Milwaukee Railway Company.

      Cross replevin.

    This case is ruled by Simon v. Leland, ante, 226.
    Error to Shiawassee. (Wisner, J.)
    Argued April 2, 1895.
    Decided May 21, 1895.
    Replevin. Plaintiffs bring error.
    Affirmed.
    The facts are stated in Simon v. Leland, ante, 226.

      Watson & Chapman, for appellants.

      Lyon & Booling, for defendant.
   Per Curiam.

This case is ruled by Simon v. Leland, ante, 226.

The judgment is affirmed.


author: Long, J.

text:
    Sigmund Simon and Isaac Mendelson v. William Leland, Sheriff of Clinton County.

      Cross replevin.

    This case is ruled by Simon v. Leland, ante, 226.
    Error to Clinton. (Daboll, J.)
    Argued April 18, 1895.
    Decided May 21, 1895.

      Replevin. Plaintiffs bring error.
    Affirmed.
    Tbe facts are stated in Simon v. Leland, ante, 226.

      Watson & Chapmm, for appellants.'

      Lyon & Booling, for defendant.
   Long, J.

This case is ruled by the case of Simon v. Leland, ante, 226, and must be affirmed.

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


text:
    Frank J. Sarmiento and Charles C. Bowen v. The Davis Boat & Oar Company and George S. Davis.

      Corporations — Appeal bond — Authority of president — Corporate seal.

    1. The president of a corporation, who is also its general manager, has general authority to appear, to employ counsel, and to answer to suits brought against the corporation, and ' is authorized, without special authority from the corporation, to execute a bond for the corporation on appeal from one . court to another.
    2. Act No. 162, Laws of 1893, which provides that any corporation may have a common seal, which it may alter at pleasure, and that such seal affixed to any instrument purporting to be executed by the corporation shall be prima faeie proof of the due adoption of said seal, and that it was affixed to said instrument by due authority, and that said instrument was in fact lawfully executed by • such- corporation, does not require that the corporate seal be attached to such instrument, but only makes it prima fade proof of due authority whenever it is attached thereto.

    Motion by complainants to dismiss appeal.
    Argued April 2, 1895.
    Denied May 21, 1895.
    The facts are stated in the opinion.

      Edward A. Gott (Alfred Bussell, of counsel), for the motion.

      Ed. E. Kane and Bussel & Campbell, contra.

       See Act No. 198, Laws of 1895, which provides that all deeds and other instruments in writing executed by any private corporation not having a corporate seal, and now required to be under seal, shall be deemed in all respects to be sealed instruments, and shall be received in evidence as such, provided the word “seal” or the letters “L. S.” are added in the place where the seal should be affixed; and that any instrument or writing duly executed in the corporate name of a corporation which shall not have adopted a corporate seal, by the proper officers of tlie corporation, under any seal, shall be deemed to have been executed under the corporate seal.

   Grant, J.

This suit was brought under the watercraft law of this State. The vessel, which had been attached, was released upon the filing of a bond, signed “The Davis Boat & Oar Company, by Edgar A. Davis, President.” Judgment went against the boat company and George S. Davis, the surety on the bond. Both complainants and defendants appealed to this Court. The appeal bond was signed by the Davis Boat & Oar Company in the same manner as was the bond upon which the judgment is based. No objection was taken to the form of that bond, and the authority of Mr. Davis, its president, to execute it was not questioned. Complainants now move to dismiss the appeal in this case for the reason that the company has filed no such bond on appeal as is required by law, “there being no evidence in writing that the Davis Boat & Oar Co., a corporation, has authorized Edgar A. Davis to execute the bond filed, or affix a seal.” The sole objection is that no corporate seal was attached to the bond. In reply to this motion, Mr. Davis has filed an affidavit, showing that his authority was so extensive as to authorize the signing of the bond. The usual scroll as a seal was affixed to the bond. Mr. Davis is shown to be the general manager and to have entire control of all the business of the corporation. Hé is therefore presumed to have authority to execute the bond.

The only statute cited by counsel for the complainants upon which they rely to show the requirement of the use of the corporate seal is Act No. 162, Laws of 1893, which reads as follows:

“Any corporation, joint stock company, or partnership association, limited, may have a common seal, which it may alter at pleasure, and such seal affixed to any instrument purporting to be executed by any such corporation, joint stock company, or partnership association, limited, foreign or domestic, shall be.prima facie proof of the due adoption of said seal, and that it was affixed to said instrument by due authority, and that said instrument was in fact lawfully executed by such corporation, joint stock company, or partnership association, limited.”

This act does not require the corporate seal, but only makes it prima facie proof of due authority whenever it is attached. It would be impracticable to require every railroad or vessel corporation, doing business in many counties of the State, where it has litigation, and also in other states, to use its corporate seal in every such case. The complainants rested content with a bond to release the vessel executed in the same way. The chief executive officer of a corporation has general authority to appear, to employ counsel, and to answer any suits brought against it. Mr. Davis, having general authority to manage all the affairs of the corporation, will be held authorized to execute a bond for appeal from one court to another. Insurance Co v Oakley, 9 Paige, 500; Bank v. Benton, 2 Metc. (Ky.) 244; Oakley v. Benevolent Soc., 2 Hilt. 488. See, also, Preston Nat. Bank v. Purifier Co., 84 Mich. 381, 384, and authorities there cited.

The motion is denied, with costs.

The other Justices concurred.


text:
    John H. Rice and James B. Sturgis, Executors, etc., v. William H. Hosking, Jr.

      Constitutional law&emdash;Probate of will&emdash;Notice to foreign consul&emdash; Jurisdiction.

    1. Act No. 64, Laws of 18S7 (3 How. Stat. § 6812), which makes it the duty of the judge of probate, in case any of the heirs of a deceased person upon whose estate administration is sought, or whose will is sought to be probated, are resi-dents of a foreign country, to notify by letter the proper con-sul of such foreign country of the pendency of and the day appointed for the 'hearing of the application for letters of administration or the probate of the will, provides simply for an act on the part of the probate judge not in conflict with How. Stat. § 5801, which provides for public notice by personal service, or publication of the order of the hearing of such application, and therefore is not in conflict with section 25, art. 4, of the Constitution, which provides that no law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length, nor with section 20, art. 4, of the Constitution, which provides that no law shall embrace more than one object, which shall be expressed in its title.
    2. Only foreign heirs, for whose sole benefit the act of 1887 was enacted, can take advantage of a failure to give the required notice, and they may waive such notice at any time before the estate is closed.
    3. In a suit by executors upon promissory notes belonging to the estate of the testatrix, it appeared that all of the heirs, except the husband of the decedent and a legatee named in her will, resided in Canada; that the will was admitted to probate in the county where decedent died, and where her husband and said legatee resided; that the judge of probate failed to give the notice required by Act No. 64, Laws- of 1887, ' and that no waiver by said 'foreign heirs of said1 notice had been filed. And it is held that the- failure of the probate judge to comply with the statute diid not deprive Aim of jufisdiction, which he acquired upon the filing of the petition; that the probate of the will was valid as to all parties living within the United States; that the foreign heirs are the only ones who can have any interest in contesting the will, or in setting aside the probate; that the executors and their bondsmen- are liable for all the money collected, which must be distributed under the order and direction of the probate court; that payment to them by debtors is valid, and a complete bar to-any further liability; and a judgment) in favor of the defendant, upon a finding that the probate court acquired no jurisdiction to probate the will by reason of the failure of the judge of probate to give said notice, is reversed.

    4. The circuit judge found that the notes sued upon were executed by the defendant, and delivered to the payee; that the testatrix; at the time of her death, was the owner of the notes, and entitled to recover thereon; and that there was due on the notes the face amount thereof, with interest from their date at a stated rate. The defendant relied solely upon the alleged want of jurisdiction in the probate court to- probate the will. And it is held that, if the defendant had other grounds of defense which he considered fatal, he should have requested the court so to find, so that the entire controversy might have been settled upon this appeal; that he chose to rely upon the one point, but for which judgment would have been rendered by the court below for the plaintiffs; and that judgment in their favor should be entered in the Supreme Court.
    Error to Houghton. (Hubbell, J.)
    Submitted on briefs April 4, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiffs brings error.
    Reversed, and judgment entered into this Court for plaintiffs.
    The facts are stated in the opinion.

      Chadbourne & Rees, for appellants.

      A. T. Streeter (0. R. Brown & Son, of counsel), for defendant.

       As to the collateral impeachability of findings as to jurisdictional facts on which administration of a decedent's estate is based, see note to Bolton v. Schriever (N. Y.), 18 L. R. A. 242.

   Grant, J.

Plaintiffs, as executors, brought suit upon two promissory notes, dated July 22, 1887, and executed by the defendant, payable to the order of Isaiah C. Watson, and by him indorsed to the order of Martha D. Watson. In the petition filed for the probate of the will, it appeared that some of the heirs of the deceased resided in Canada. Upon the filing of the petition the probate court made the usual order for the hearing under How. Stat. § 5801, and required the same to be published three weeks in a newspaper in Houghton county. The hearing was had within 60 days of the time of filing the petition, and letters testamentary were granted. This law was enacted prior to the Revised Statutes of 1846, and under it the courts of probate of this State have proceeded in the probate of wills. It required public notice by personal sendee, or by a publication of the order for three weeks, successively, previous to the time appointed. ■

In 1887 the Legislature passed an act entitled—

“An act requiring judges of probate in certain cases to give notice to foreign consuls of an application for administration in the estate of deceased persons.”

This act is as follows:

“Whenever it shall appear upon application to any probate court for letters of administration, or to prove the will of any deceased person, that the heirs at law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of such probate court to notify the consul resident in this State, if there be one of such foreign nation where the said heir or heirs may reside, and, if no such consul reside in this State, he shall notify the consul of such foreign nation in the city of New York, of the pending of and the day appointed for hearing such application. And such notice may be given by letter addressed to such consul, and deposited in the postoffice, with the postage prepaid thereon, at the city or village where such application was made, at least 60 days before such day of hearing, unless such heir or heirs shall file in such probate court a waiver of such notice, in writing and under oath.'5, 3 How. Stat. § 6812.

The judge of probate gave no notice as required by this section. The circuit court found, as a conclusion of law7, that the probate court acquired no jurisdiction to probate the will by reason of the failure of the probate judge to give this notice. This presents the sole question upon the record.

The plaintiffs’ contentions are:

1. If the act of 1887 is to be regarded as an amendment of section 5801, it is an amendment by indirection, and prohibited by section 25, art. 4, of the Constitution, which reads:

“No law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length."

2. It is in violation of section 20 of art. 4, which reads:

“No law shall embrace more than one object, which shall be expressed in its title.”

3. The provisions of the act are not mandatory or jurisdictional, but, if mandatory as to foreign heirs, they are not mandatory as to parties and interests within the country.

4. If the provisions be held mandatory, the failure to comply with them can be complained of by foreign heirs only.

We think the first two points are not well grounded. While the last act might properly have been passed as an amendment to How. Stat. § 5801, yet it is not necessarily an amendment. It provides simply for an act on the part of the probate judge which is not in conflict with the other provision, and does not, of necessity, change it. Two statutes relating to the same subject will be so construed as to allow both to stand where they do not contain inconsistent provisions, and the provisions of both can be carried out. Connors v. Iron Co., 54 Mich. 168; Tillotson v. City of Saginaw, 94 Id. 240; Merriman v. Circuit Judge, 96 Id. 606. Section 5801 does not require the hearing on the petition to take place at any specified time. It cannot be less than three weeks, because there must be three successive weeks’ publication previous to the time of hearing. The court may fix the time at 60 days or more from the date of the order, and thus be enabled to comply with the latter statute. We see no repugnancy between the two.

The failure of the probate judge to comply with the statute did not deprive him of jurisdiction, which he acquired upon the filing of the petition. Parties interested in the estate were residents of Houghton county.. The object of the statutory notice, while the proceeding itself is in nature in rem, is to give the heirs and legatees, and others interested in the distribution of the property of the estate, an opportunity to be heard. Debtors of an estate are not parties in interest, within the meaning of the statute. They are not concerned in the proceedings any further than to protect themselves by the payment of their debts to the proper'representatives of the estate. Although the notice may be insufficient, and the proceedings declared void upon seasonable objection by a party in interest who has not waived it, yet an appearance will waive the defect, and bind all those who, so appear. As to the parties in interest living in Michigan, the notice was sufficient. The finding of facts states that “none of the foreign heirs filed any waiver of such notice.” Whether they appeared at all in the case is not shown. The petition stated the residence and postoffice address of each heir living in Canada. They may appear at any time before the estate is closed, and file their waiver. They can only be interested in the probate of the will, which affects the distribution of the property. The court below held the proceedings in the probate court absolutely void. It must be conceded that these foreign heirs might have appeared in the probate court at any time after the judgment in this case was rendered, waived the notice, and thus validated the entire proceeding. We would thus have the anomalous situation of a valid decree in the probate court, probating the will, and authorizing the executors to collect the estate, and a judgment in the circuit court, in a collateral proceeding, holding, the decree void, and cutting off the estate from a large portion of its assets. 'Certainly, the Legislature did not contemplate such a situation. Obviously, the statute was enacted for the sole benefit of foreign heirs, and it is but reasonable to hold that they are the sole persons who can take advantage of a failure to comply with its provisions. Other heirs, legatees, creditors, and debtors are neither benefited nor injured by this requirement that the judge of probate shall- write and send a letter which may or may not result in notice to the foreign heirs.

The statute of Wisconsin is the same as section 5801, above referred to. In O’Dell v. Rogers, 44 Wis. 136, the supreme court of that state, in an able and exhaustive, opinion, has discussed the jurisdiction of probate courts, and the effect of a failure to publish the notice within the time required by the statute. In that case the publication fell short of the statutory three weeks, and it was held that the decree admitting the will to probate was valid as to all who were duly notified, or who appeared and assented to the proceedings. An infant heir was not represented upon the hearing, and it was held that she could not be charged with laches, consent, or ratification during minority. After she became of age she filed a petition in the probate court alleging want of notice of the time and place of probate, by personal service or due publication, and alleging acts of fraud to impeach subsequent proceedings of the executors, and denying the jurisdiction of the probate court, and prayed that the probate of the will, and all subsequent proceedings, be set aside. Her petition did not question the validity of the will, or its due proof, and asked relief only consistent with a valid probate. It was held that her petition and complaint operated as an assent and submission on her part to such probate and appointment. It was there said that—

“The death of the testator gives to courts of probate general jurisdiction; and proof of the domicile and situation-of the estate, both the general jurisdiction of the subject-matter and jurisdiction of the particular case;’’ and “that whenever the courts, deciding upon the question of the effect, upon a decree of the court of probate, of a want of notice to persons in interest, or of their nonappearance, use the word 'void/ it is used, not in the sense of an absolute nullity, but of invalidity, and as to such persons only.”

Many authorities sustaining this proposition are there cited and commented upon.

In the present case the executors have given a bond; the probate of the will was valid as to all parties living-within the United States; the foreign heirs are the only ones who can have any interest in contesting the will, or in setting aside the probate; the executors and their bondsmen are liable for all the money collected, which must be distributed under the order and direction of the probate court; and payment by debtors to them is valid, and a complete bar to any further liability.

The judgment must be reversed, but it is insisted by the defendant that a new trial should be ordered. We cannot agree with this contention. The case was tried before the court without a jury, and the judge made the following findings:

“From the testimony in the case, the court finds that the notes offered in evidence were executed by the defendant, Hosking, and delivered to the payee therein.
“That the said Martha D. Watson, at the time of her decease, was the owner of said notes, and that there was and is now due thereon the face amount thereof, with interest from the 22d day of July, 1887, at 7 per cent, per annum.
“That Martha D. Watson, the deceased person represented by the plaintiffs, had become and was, at the time of her decease, the owner and holder of the notes described heretofore, and was entitled to recover upon the same against the defendant.”

It thus appears that the merits of the controversy upon the evidence were determined by the circuit court in favor of the plaintiffs; and the only ground upon which judgment was rendered for the defendant was that above stated. If the defendant bad other grounds of defense which be considered fatal, be should have requested the court so to find, so that the entire controversy might have been settled upon this appeal. He chose to rely upon the one point, but for which judgment would have been rendered by the court below for the plaintiffs.

It follows that tbe judgment must be reversed, and judgment entered in this Court for tbe plaintiffs, with the costs of both courts. .

The other Justices concurred.


author: Hooker, J.

text:
    Anna A. Grady v. Frank T. Warrell.

      Exeeutors and administrators — Lease of decedent’s realty — Tenancy from year to year — Termination.
    1. How. Stat. § 5875, gives to executors the right to lease the real estate of the testator from year to year, subject to the contingency of its being turned over to the heirs or devisees on their mating it appear to the probate court that there are no debts or liabilities outstanding and unpaid against the estate, or that the personal estate is amply sufficient for the payment of all claims or liabilities outstanding or allowed against the estate.
    2. A lessor died during the life of the lease, and 24 days before the expiration of the term his executors leased the premises for two years to the assignee of the lessee, who was in possession. The term of said lease was to conunence two months after the expiration of the original lease. About nine months after the commencement of the term of the new lease, the leased premises were set off on partition to one of the' heirs of the lessor, who, after giving notice to quit, brought summary proceedings under the statute to recover possession of the leased premises. And it is held that, by accepting the lease from the executors, the tenant precluded himself from claiming to be holding over under the lease from the testator, and whatever rights he has depend upon the nature of his tenure under the lease from the executors.

      Z. The term “from year to year,” as used in How. Stat. § 5875, which authorizes an executor to lease the real estate of the testator from year”to year, should be construed according to the well-understood meaning of the term; and a lease executed by executors for two years, being void, creates a tenancy from year to year, as in ordinary eases, terminable under Z How. Stat. § 5774, at the expiration of one year from the time of the service of a notice to quit.
    Error to Kent. (Grove, J.)
    Submitted on briefs April 4, 1895.
    Decided May 21, 1895.
    Summary proceedings to recover the possession of leased premises. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Hatch & Wilson, for appellant.

      Dwnham & Preston, for defendant.
   Hooker, J.

Complainant appeals from a judgment against her in summary proceedings to recover possession of' the west 32 feet of lot 8, block 6, Campau’s plat, in the city of Grand Eapids. Upon lot 8 was an hotel and bam, the premises being known as the '“Michigan House.” Jacob Nagle, complainant’s ancestor, was the owner in fee, and he made a lease of the premises for the term of three years from May 1, 1887, to Ira O. Hatch. .On July 5,1888, he extended the lease for two years more. In 1889 the barn burned, and a new lease was made by the same parties dated November 1, 1889, for two and a half years from September 1, 1889, rent payable quarterly. Hatch never occupied, but assigned to the defendant, who remained in possession and paid the rent. Jacob Nagle died March 6, 1891, and on February 4, 1892, his executors attempted to lease to Warrell the premises for two years, the term to commence upon May 1, 1892, rent being payable monthly. This lease was in writing. On February 9, 1893, the lands of the deceased were partitioned among his heirs, and the west 32 feet of lot 8 was set off to the complainant. On March 11, 1893, the complainant gave defendant notice^ to quit, and these proceedings were commenced on May 22, 1893.

The defendant claims- that he was entitled to a notice of a year, under 3 How. Stat. § 5774. This is upon the theory that the lease for two years, though not authorized by the statute (How. Stat. § 5875), was a valid lease from year to year. On the other hand, the complainant contends that the lease was void, for the reason that there was no necessity for the executors to take possession of the real estate, inasmuch as there was more than sufficient personal property to pay the debts. The case of Rough v. Womer, 76 Mich. 375, is cited in support of this claim. She asserts, further, that if it should be held that the executors might make a valid lease, it could be for one year only, and would terminate at the end of the year without notice, though in terms a lease for two years.

The authority under which executors may lease is derived from .the statute (section 5875), which reads as follows:

“The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may lease the same from year to year, and cancel or modify any existing lease or leases given by the deceased in the same manner that the deceased might have done in his lifetime, and may receive the rents, issues, and profits of the real estate until the estate shall have been settled, or until delivered over by order of the probate court to the.heirs or devisees; and shall keep in good tenantable repair all houses, buildings, and fences thereon which are under his control: Provided, that whenever, on application of the heirs or devisees, or any of them, it shall be made to appear to the said probate court that there are no debts or liabilities outstanding and unpaid against said estate, or that the personal estate of said deceased is amply sufficient for the payment of all claims or liabilities outstanding or allowed against the said estate, the said probate court shall thereupon, by order, deliver over the said real estate of said deceased to the heirs or devisees of said estate, although the said estate shall not then have been finally settled, and thereupon the right of the said executor or administrator to the possession of the real estate of said deceased, and to receive the rents, issues, and profits thereof, shall cease: Provided further, that the provisions of this act shall not be construed to interfere with the possession of the homestead.”

This section gives the executor the right to lease, subject to the proviso which permits the heirs or devisees to move the probate court for an order to the executor to deliver over the premises, where it appears that the personal estate is ample to pay the debts and liabilities of the estate. The case of Rough v. Womer, relied upon by counsel for the complainant, is not a.t variance with this. In that case the testator’s son, to whom the wheat in question and the farm on which it grew were specifically devised, brought trover for the wheat taken from his possession by the executors. It appeared' that the peK sonal estate was ample to pay all claims and liabilities, and the court said that it was not only unnecessary for the executors to take the wheat, but that it was inexcusable, arbitrary,- and unjust; that the plaintiff was in lawful possession of the land at the time; and that the acts of the executors were willful and malicious. It was said further that, the plaintiff being in possession, there was no occasion for him to apply to the probate court under the statute.

But the case here arises, not between the heir and the executor, but between the heir and one who has taken a lease under the statute, under which he was allowed to take and keep possession. It would not do to hold that such lease is invalid, for a lessee under this statute cannot be required to ascertain, at • his peril, whether an estate is solvent, before contracting, where the executor is in apparent control of the land and able to give possession.

The case, therefore, resolves itself into the question whether the two-year lease created a tenancy from year to year, or was merely a lease for one year. By accepting this lease, and paying rent under it, the defendant precluded himself from claiming to be holding over under the lease from the testator, and whatever rights he has depend upon the nature of his tenure under the lease from the executors. If that instrument was a valid lease for one year and no more, the notice of March 11 was sufficient to terminate it, if notice was necessary. If, however, this lease created a tenancy from year to year, the defendant was entitled to a notice of a year, under the statute. 3 How. Stat. § 5774; Huntington v. Parkhurst, 87 Mich. 38; Ganson v. Baldwin, 93 Id. 217. The authority of the statute only enables the executor to lease at all. The language of the statute is that he may lease “from year to year.” Evidently the design of the statute was to permit temporary letting, and there is force in the contention that it should not be so construed as to permit an executor to make a lease for two years, which it is said he practically does when he makes a lease from year to year. But this is not necessarily true, for, under the statute (3 How. Stat. §5774), a tenancy from year to year may be terminated in one year by giving a notice at any time. There are reasons for thinking that the Legislature .may have intended to allow executors to give technical leases from year to year. It is well known that farming lands are almost invariably leased in the spring. Such a lease for a single year does not permit the raising of a crop of wheat, which is' the great staple crop of the State, and without the privilege of raising which the rental value of farming lands would be lessened. The heir, when he comes into possession, may terminate the lease in a year, and meantime he receives the rents. Both are protected, — the heir by the statute, which gives him the rent, and the tenant by the same statute, which enables him to sow fall crops with an assurance that he may reap. We therefore conclude that we should copstrue this statute according to the well-understood meaning of the term “from year to year” (see How. Stat. § 2, subd. 1), and not limit the right to a lease for one year, and that, therefore, the void lease for two years created a tenancy from year to year, as in ordinary cases.

The judgment of the circuit court will be affirmed.

The other Justices concurred.


text:
    Alonzo Vincent v. John E. Defield et al.
    [See 98 Mich. 84.]

      Summary proceedings — Bond on appeal — Evidence.
    1. In an action on a bond given by a lessee on appeal from a judgment of ouster in summary proceedings to recover possession- of the leased premises, conditioned for the payment of all rent due or to become due up to the time when the lessor should obtain possession of said premises, a lease made prior to the expiration of the first lease, for one year after that date, at a fixed rental, is admissible as evidence of the rental value of the leased premises for the time covered by the bond.
    2. Plaintiff having testified to such rental value, it was competent on cross-examination to show that he actually received a less sum the year before for the use of said premises, and that he furnished heat for the same, said proposed evidence tending to contradict or weaken his testimony as to said rental value.
    Error to Berrien. (Coolidge, J.)
    Argued April 3, 1895.
    Decided May 21, 1895.

      Debt. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      George W. Bridgman and M. L. Howell, for appellants.

      George M. Valentine and George S. Glapp, for plaintiff.
   Hooker, J.

The plaintiff having recovered in summary proceedings to regain the possession of land from his tenant, Defield, the defendants joined in an appeal bond, conditioned to pay all rent due or to become due up to the time when Alonzo Vincent should obtain possession of the premises, with costs of suit. A judgment in plaintiff’s favor was affirmed in 98 Mich. 84. The plaintiff thereupon brought an action upon the bond, and from a judgment in his favor the defendants have brought error. The questions in the case relate to the subject of damages.

The premises consisted of a ground floor room in a two-story building. The plaintiff was not the owner of the premises, and offered in evidence a lease from one Brant, the owner, to him, of the .entire building, for the period of five years. The plaintiff identified a writing as a lease of the room in question and another room from himself to one Eyman, for the period of a year from May 1, 1892. This lease was admitted against objection, as was also a lease from Eyman to Murphy, of the saloon, for $900 a year. The plaintiff was allowed to testify that Defield said that Murphy was to pay a bonus of $100 for Ms lease. All of these transactions took place before May 1, 1892. The defendants’ counsel sought to prove upon cross-examination that the premises had rented for less the year before, and that heat had previously been furnished; but the court excluded the testimony, and confined the cross-examination to the rental value for the year in question, which the plaintiff stated to be $900. This last statement was in answer to a question by the court, and with this exception the plaintiff seems to have relied upon these leases as his only evidence of rental value for the year.

The defendants’ counsel contend that consent in writing to the subletting was not obtained; that the leases were void, and consequently not admissible; but there was proof tending to show a waiver of the condition by Brant. If these leases, made respectively in November and March previous, were bona fide transactions, they were cogent evidence of the rental value of the premises. Whether they were bona fide is open to controversy. There was no error in admitting this evidence.

We think, however, that the court should have permitted cross-examination of the plaintiff as to rent previously received, as what premises have rented for during preceding years is admissible in an action for use and occupation. 3 Suth. Dam. 111; Fogg v. Hill, 21 Me. 529. It was competent to cross-examine plaintiff as to what he actually received the year before, and whether he furnished heat in previous years, as it tended to contradict or weaken his statement that the premises were worth a rental of $900.

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

McGrath, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.