author: Carpenter, J.

text:
    BRADBURN v. WABASH RAILROAD CO.
    1. Master and Servant — Personal Injuries — Assumption of Risk — Negligence.
    An implied contract exists between an employer and his employé that the latter shall assume the risk of all dangers obviously incident to the employment; and the assumption of such risks is entirely independent of the questions of negligence and contributory negligence.
    2. Same — Railroads—Switchmen—Knowledge op Danger.
    A switchman, whose foot was crushed between a car and a pile of lumber placed near the track in a lumber yard contrary to custom, did not assume the risk, where he did not know, and there was no evidence to show that he should have known, of the proximity of the lumber to the track.
    3. Evidence — Custom.
    The testimony of witnesses whose business as switchmen had taken them into lumber yards of various cities, that it was customary to pile lumber four or five feet from the tracks, was sufficient evidence of the custom for its submission to the jury.

      4. Railroads — Negligence—Dangerous Places — Warnings.
    A railroad company, having knowledge of the existence of a pile of lumber placed, contrary to custom, so near to a side track as to be dangerous, is guilty of negligence in sending a switching crew over the track with a train without warning them of the danger.
    5. Same — Contributory Negligenoe.
    A switchman, under the necessity of boarding a car in motion, was not guilty of contributory negligence in jumping upon the side of the car as it passed, and standing in the stirrup until he could swing around the corner to the brake-beam in the rear, instead of stepping upon the brake-beam in the first instance, where, by attempting to do so, he would have fallen over broken boards in the middle of the track.
    6. Same — Dangerous Plages — Warnings.
    A notice by a railroad company to its employés, purporting to give non-clearing points, described 17 points, opposite which were the words, “Will not clear a man hanging on side of a car.” Below the eighth point were printed in the same type the words, “Material piled alongside of tracks.” Held, that this described the character of the danger at the eighth point, and was not notice that material might be found piled alongside any of the tracks.
    Error to Wayne; Hosmer, J.
    Submitted June 5,1903.
    (Docket No. 34.)
    Decided October 27, 1903.
    Case by William G. Bradburn against tbe Wabash Railroad Company and the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Alfred Bussell, for appellant Wabash Railroad Co.

      Frederick W. Stevens, for appellant Pere Marquette Railroad Co.

      Baymond F. Van Syekle, for appellee.
   Carpenter, J.

Plaintiff sustained personal injuries while in the employ of the Union Terminal Association, a co-partnership composed of the two defendants. He brought this suit for compensation, and recovered a verdict and judgment in the court below.

Plaintiff received his injuries early in the morning of August 26, 1901, on a track known as the “Parker Siding,” in the city of Detroit. He was then, and had been for about two years, employed in defendants’ yard at Detroit, in charge of a switching train. This Parker siding was situated on the ground of private individuals, adjoining defendants’ tracks on the north. It formed a junction with defendants’ tracks at the property of the Detroit Gas Company. It ran in a westerly direction through the property of said company, and through some adjacent lumber yards, a distance of 377 feet, nearly parallel with defendants’ tracks. On the morning in question, plaintiff had occasion to take out of said siding four empty cars, which were located near the western end of the siding. After attaching these cars to the engine, plaintiff ordered the engineer to move said train to defendants’ main track. When he gave this order, plaintiff stood on the north side of the siding, about 15 feet from the rear'end of the rear car. (This rear car was a Hocking Valley gondola car — so described — of extra width.) He jumped on the moving car as it passed him, and stood in the stirrup that hung underneath its side, near its rear end. He then undertook to swing himself around the corner of the car to the brake-beam which hung underneath its rear end, in order that he might not, as we infer, be injured by collision with a coal chute standing on the gas-works property, which came within six or eight inches of the track. Before he had completed this change in his position, his left foot, which he had not yet removed from the stirrup on the side, was caught and crushed between said car and a pile of lumber situated about 25 feet beyond the property of the gas company.

This pile of lumber was in the lumber yard, and situated very close to the track.' It was about three feet in height. It had been there from 60 to 90 days. Before plaintiff’s injury, defendants had notified the proprietor of the lumber yard, “to move the piles of lumber along said track.” We think this testimony warrants the inference that the existence and situation of the particular pile of lumber under consideration was known to defendants, for it certainly interfered with their business as much or more than any other pile of lumber in said yard. Plaintiff testifies that it was so dark at the time of his injury that he could not see the pile (though he made a vigilant use of his eyes), and that he had no prior knowledge of its existence. He explains this ignorance by testifying that he had never been on the siding before, that the lumber pile could not be seen from the main track because the view of it was hidden by other piles, and that he made his entrance into the siding on the occasion of his injury, not by passing up the siding, but by walking through the lumber yard from a point on the main track to a point near.the end of the siding. He also testifies that, when he reached the siding, he noticed that lumber was piled all along the south side (except at intervals left for passageways) close to the track, while, so far as he could see, the north side was clear. Plaintiff also testifies that it is customary in lumber yards to pile lumber four or five feet from the track, so as to leave “room enough for a man to walk alongside and do his work.” He also testifies that, where platforms are found on one side of the track, “the other side is always clear.” Other witnesses testified that there was a custom in lumber yards to pile lumber close to the track only on one side, so as “ to leave one side open for the shoving in and out of lumber out of a car door.” There was evidence that plaintiff was notified in writing of certain points of danger in defendants’ yard. This notice,, as we shall point out later in this opinion, in our judgment had no material bearing on the case.

It is contended by defendants that a verdict should have been directed in their favor, because: First, plaintiff’s injury resulted from an assumed risk; second, there was no evidence of defendants’ negligence; third, plaintiff was, as a matter of law, guilty of contributory negligence. It is also contended that the court erred in his charge to the jury respecting the construction of the notice served upon plaintiff.

Did plaintiff’s injury result from an assumed risk ? The principle which prevents recovery when an emplojm has assumed the risk should not be confounded — though it sometimes is — with the principle which prevents recovery when he himself is negligent, or when his employer is free from negligence. If the principle of assumed risk — as many seem to suppose — has application only to cases in which the employer would be held free from liability either on the ground that he has not been negligent or on the ground that the employe has been guilty of contributory negiigence, it must be confessed that it is a principle of no great importance. While it must be conceded that the principle of assumed risk does sometimes furnish an additional ground for declaring the employer free from liability in cases where he is free from negligence and in cases where the employé is guilty of contributory negligence, that principle is nevertheless a distinct principle, and may be applied in cases in which the employer is negligent and the employé free from contributory negligence. The fact that the principle of assumed risk is sometimes applicable in cases where the employer is free from negligence and sometimes where the employé is guilty of contributory negligence only proves that the three principles — negligence, contributory negligence, and assumed risk — are consistent. It by no means proves their identity.

The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employé that the employé shall assume the risk of all dangers obviously incident to his employment. See Bauer v. American Car & Foundry Co., 132 Mich. 537 (94 N. W. 9). The employé assumes the risk of all dangers obviously incident to his employment, whether the employer is negligent or free from negligence in exposing him to those dangers. If the employer is not negligent in exposing the employé to those dangers, he is not liable for any injury resulting, for two reasons: (a) He himself is free from negligence; and (6) the employé has assumed the risk. When, however, the injury to the employé results from an assumed risk to which an ordinarily prudent employer would not have exposed him, there can be no recovery; not because the employer was not negligent, for he was negligent, but because the employé assumed the risk. It is equally clear that the principle of assumed risk is not confined in its application to cases in which the employé is guilty of contributory negligence. Cases, of course, often arise in which the employé has assumed a risk which an ordinarily prudent person would not assume; and these, of course, may be disposed of on the double ground of assumed risk and contributory negligence. Cases also arise where the employé has assumed a risk which it was not negligent to assume, and these must be disposed of, not on the ground of contributory negligence, but on the ground of assumed risk.

Can we say in the case at bar, under the showing made by plaintiff, that he assumed the risk which caused his injury? The doctrine of assumed risk applies, and is limited in its application, to dangers which the employé either actually knows or should know. Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592). Clearly, we cannot, without discrediting plaintiff’s testimony, say that he actually knew the danger in question. Can we say that he should have known it? We cannot say that he should have known it, unless he should have inferred it from some fact or circumstance known to him, or open to his observation. If we credit his testimony, there was no fact known to him from which he could have inferred this danger. Was any fact open to his observation from which he should have inferred it? If he had repeatedly passed in sight of this pile of lumber (see Ragon v. Railway Co., 97 Mich. 265 [56 N. W. 612, 37 Am. St. Rep. 336]; Miller v. Railway Co., 133 Mich. 564 [95 N. W. 718]), or if there was a custom which should have led him to anticipate that it might be piled in close proximity to the track (see Pahlan v. Railway Co., 122 Mich. 232 [81 N. W. 103]), it would be our duty to say that there was open to his observation some fact from which he should have inferred the existence of this danger. If his testimony is believed, — and this was a question peculiarly for the jury, —plaintiff had not, before this occasion, been in sight of this pile of lumber. Can we say that he should have anticipated the existence of this danger from the existence of a custom to pile lumber close to the track, open to his observation ? If there was in fact such a custom, the case of Pahlan v. Railway Co., supra, is an authority for the proposition that plaintiff was bound to notice it, and from it infer the existence of the danger to which he was exposed. There is, however, in this case, no evidence of such a custom, but, on the other hand, there is evidence that it was not customary to place these piles of lumber so close to the track.

It is earnestly argued by the defendants that the testimony of the plaintiff respecting this alleged custom was inadmissible and insufficient, on the ground that, “before a custom can be permitted to govern and modify the law in relation to the dealings of parties in any case, it must be uniform, certain, and sufficiently notorious to warrant the legal presumption that the parties contracted with reference to it.” We do not think the testimony of plaintiff is open to criticism under this rule. He himself testified that his business had taken him into the lumber yards of Bay City, West Bay City, and Detroit; that there was a custom, as before stated, to pile lumber four or five feet away from the track. This testimony is corroborated by other witnesses. One of plaintiff’s witnesses testified, as heretofore stated, that there was a custom in lumber yards to pile lumber close to the track only on one side, so as to “leave one side open for shoving in and out of lumber out of a car door.” If this testimony is true, the inference might properly be drawn that defendants knew of said custom, — an inference which is supported by the circumstance that, as heretofore stated, they notified the proprietor of the lumber yard “to move the piles of lumber along said track. ”

Is there force in the possible suggestion that, because plaintiff assumed the risk of injury from collision with permanent structures adjacent to the siding, he assumed the risk under consideration ? If plaintiff’s foot had been crushed by collision with the coal chute, located only a few feet distant, then clearly, under the authority of Pahlan v. Railway Co., supra, we would be bound to say that he assumed the risk, and could not recover. That holding proceeds upon the theory:

“ If he is not acquainted with the particular dangers of the line upon which he is to work, it is his duty to give attention tQ them. He must be on the lookout for buildings near the tracks, and know what persons usually know of the uses of side tracks and such dangers as naturally follow.”

It was not intended by this decision to hold that an employé assumes the risk of dangers which he neither knows nor should know. The decision proceeds on the theory that the employé should know what is usually known, and that “it is usual for sidings to be so constructed as to permit cars to stand close to buildings.” Clearly, this decision is no authority for the proposition that an employé assumes risks which are unusual, and which are not in fact known to him. It can scarcely be contended that the decision is an authority for the proposition that the employé assumes the risk of dangers of every description which he may encounter while riding on the side of a car on a side track. It is not to be inferred from that decision that an employé must or must not ride on the side, on the rear, or on top of a car on a siding. That decision only illustrates the principle, often before declared (see Michigan Cent. R. Co. v. Austin, 40 Mich. 247; Batterson v. Railway Co., 53 Mich. 125 [18 N. W. 584]; Pennington v. Railway Co., 90 Mich. 505 [51 N. W. 634]), that the employé assumes the risk of all dangers usually incident to his work on the siding. He assumes such dangers whether he encounters them when riding on the side of the car, on top of the car or on its rear. It was not intended by this decision to overrule Balhoff v. Railroad Co., 106 Mich., at page 611 (65 N. W. 592), where we distinctly held that, if the employé neither “knew” nor “ought to have known” of the danger, he did not assume the risk.' Nor can it be contended that plaintiff’s injury was due to his failure to save himself from the consequences of a collision with the coal chute. It may be fairly inferred from his testimony that he was taking the step necessary to prévent such collision. We cannot, therefore, hold that plaintiff’s injury resulted from an assumed risk.

Were the defendants free from negligence ? The testimony of plaintiff tends to prove that the defendants knew of the existence of this pile of lumber, and exposed plaintiff to the danger which occasioned his injury. We think it clear that the jury could have inferred that an ordinarily prudent employer would have taken a different course. It is urged that the defendants are not liable, because they had no control of the lumber or of the ground upon which it was piled. It is sufficient to say of this contention that, though the defendants were not liable on the ground that the lumber was not properly piled, or removed, they were not justified in exposing plaintiff to this danger, known to them and unknown to him. See Baxter v. Roberts, 44 Cal. 187 (13 Am. Rep. 160). Though defendants could not have removed the lumber, they could have refused to use the siding in its defective condition, or they could have apprised their employés of the danger to which its use exposed them.

Was plaintiff guilty of contributory negligence ? It is urged that the plaintiff was guilty of contributory negligence because he did not at once get on the break-beam at the rear of the car, and also because due diligence on his part would have apprised him of the situation of the pile of lumber. It is sufficient to say, in answer to this claim, that plaintiff testifies that he could not get on the brake-beam before the train started, ‘ ‘ on account of broken boards lying in the middle of the track; if I did, I would be liable to stub my toes, or scrape my shins, or falland that it was so dark that, though he looked, he could not see the pile of lumber in question.

Error in the charge of the court. Defendants introduced in evidence a printed notice signed by their superintendent. Its opening sentence was, “ Below I give you nonclearing points on Union Station & Terminal Association’s tracks.” Then followed a description of 11 distinct points, opposite which were these words: “-Will not clear a man on top or side of a car.” Below was a description of 17 distinct points, opposite which was stated: “Will not clear a man hanging on side of a car.” The eighth of these points was: “American Car & Foundry Company, Forge Department.” Underneath this was printed, in the same type as used generally in the notice: “Material piled alongside of tracks.” Below that was this: “Salt Sheds, 12th Street Yard.” At the bottom of the notice was the following: “I have carefully read the foregoing, and hereby agree to thoroughly familiarize myself with the nonclearing points mentioned. [Signed] Wm. Bbadburn” (plaintiff). At the same time plaintiff filled in in his own handwriting an application for employment containing this :

“I have also received a list of-the danger points, or places where special care is required of trainmen to prevent collisions with bridges above or obstacles at the side of the tracks, on the line of tracks of said association, arid I agree to take notice of all.such bridges and obstacles, and so perform my duties as not to be injured by them.”

It is the contention of defendants that this was a notice to plaintiff that material might be piled alongside of any of the tracks. The trial court, however, in speaking of this contention, said:

“It does not seem to me that the notice in question, or the contract of employment, or the application for employment, whatever it may be, cuts as much of a figure in the case at bar as perhaps either of the counsel may think.”

Were the defendants prejudiced by this statement ? If they are right in their claim that this was a notice apprising the plaintiff that he might find material piled alongside of any of their tracks, they were prejudiced. If, however, he was simply notified that material might be found piled alongside the tracks of the American Car & Foundry Company, they were not prejudiced. We think the words, “Material piled alongside of tracks,” related solely to the tracks of the American Car & Foundry Company. Our reasons are these: The notice purports to be an enumeration of “ nonclearing points.” Seventeen such points are clearly specified. Between the eighth and ninth of said points, and immediately below “ American Car & Foundry Company, Forge Department,” we find these words: “Material piled alongside of tracks.” These words have no relation to the expressed object of the notice, except upon the theory that they describe the character of the danger at the point specified immediately above them. As a matter of fact, the testimony shows that at that point that particular danger existed. One receiving this notice would have a right, in our judgment, to place that construction upon it. If defendants intended to notify their employés that material might be found piled alongside of any of their tracks, there is no injustice in requiring them to make that intention manifest. ' In our judgment, therefore, the court did not err to defendants’ prejudice by the use of the language complained of.

It results from these views that the judgment of the court below should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BROWN v. SWARTHOUT.
    Specific Performance — Contracts—Uncertainty.
    A contract between the owners of a patent and complainant to assign the patent to a corporation to he organized, for one-fourth of the capital Stock, the balance to go to promoters, represented by complainant, to procure capital to manufacture and sell the invention, is too uncertain in its terms to justify a decree of specific performance, since it does not determine the amount of capital stock the corporation should have.
    Appeal from Wayne; Rohnert, J.
    Submitted June 10, 1903.
    (Docket No. 64.)
    Decided October 27, 1903.
    Bill by Henry N. Brown against George M. Swarthout, Edward Stein, and George E. Kerwin to enforce the specific performance of a contract. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Robert M. Brownson, for complainant.

      IS. J. Stoddard, for defendant Swarthout.

      Parker & Burton, for defendant Kerwin.
   Montgomery, J.

This is a bill filed to enforce the specific performance of a contract which, after reciting that defendants Swarthout and Stein are the owners of patents for generating gas from oil and water, proceeds ' as follows:

“And whereas, said Swarthout and Stein are wishing to interest capital to manufacture and put on the market the above-named inventions and appliances. In order to do so, the above-named parties of the first part agree with Henry N. Brown, of Detroit, Michigan, party of the second part, that, if the said party of the second part interest capital to form a company to manufacture and market said inventions and appliances, they, the said parties of the first part, will contribute all their inventions now made, together with all improvements that may hereafter be made, and, for their part in said company to be formed, will assign to said company above patents and improvements that may be made. Said interest in said projected company to be one-fourth of the entire capital of said company; the said one-fourth to be paid-up capital, and to be divided between, said Swarthout and Stein as they themselves may direct. The balance of stock of said projected company is to go to the promoters of said company, herewith represented by Henry N. Brown, party of the second part, for the purpose of procuring capital to make said appliances and market them.
“This agreement shall hold good for six months from date, arid if experiment plants made and put in are not good or have no value, and no permanent company is formed, then at the end of the above six months this agreement is null and void.
“ When money is available to erect experimental plants, said Swarthout and Stein shall have first employment, and shall have direction of making and setting up said plants at $2.00 per day and traveling expenses, both if needed; if only one at first, then that one to be Swarthout. The remuneration of $2.00 is only to apply during experimental period. After the experiments are proved successful, then company is to be formed with sufficient capital to carry on the business. Amount of capital to be determined as soon as successful experiments are made and successful plants in operation.”

The bill then avers that complainant interested three other parties, William S. Yreeland, George S. Wallace, and George E. Kerwin, who, together-with complainant, agreed to contribute such an amount of money as would be necessary to erect an experimental plant and defray the expenses of incorporating the projected company; that immediately thereafter complainant notified defendants Swarthout and Stein that he had interested the capital necessary to do the experimental work and organize the proposed company, and requested Swarthout to come to Detroit and begin the erection of the experimental work; that Swarthout, on one pretext or another, neglected to carry out his part of the contract until the 1st of May, 1902, when he came to Detroit; that it was not until the 9th of May that he began the erection of the experimental plant; and that he continued to carry on said work until May 31st.

The bill further alleges that complainant carried out his part of the terms of said contract with Swarthout and Stein; that he paid Swarthout the salary agreed upon, and furnished him with the materials, tools, and appliances he needed or asked for; that, prior to June 1st, he had interested sufficient capital to form a stock company to manufacture and market said hydrocarbon burners; that on May 31st he arranged with one Prof. Charles L. Weil to make certain experimental tests, the results of which tests were to determine the amount of capital stock of said projected company; yet the said Swarthout refused-to proceed with said tests, and also refused to further carry out his part of the contract. The bill further charges that Swarthout, in defiance of complainant’s rights, has sold and assigned, or is about to sell and assign, the patents to George E. Kerwin, the defendant. The bill prays a specific performance. To this bill a demurrer was filed, and from a decree sustaining the demurrer complainant appeals.

We think but one question need be discussed. The contract, in its inception, was not only not mutual, but it was too uncertain in its terms to justify a decree of specific performance. While it may be true, as claimed by complainant’s counsel, that a contract which, in its inception, is not mutual, may be enforced where the party having the option to proceed with the contract has performed on his part, so that- a specific performance upon agreed terms may be decreed, such is not this case. Here it is assumed that the experimental work was undertaken to make a test for the purpose- of ascertaining how much capital stock should be required for the company. Who is to determine this question? Certainly no court can say, and whose judgment is to prevail ? The business might be conducted upon a small scale or a large scale. The contract contains no provisions for this, nor for the employment of an expert to ascertain and determine the proper amount of capital stock. Up to this time no corporation has been formed; no stock is provided or within the reach of the defendants. The complainant is not, by the terms of this contract, entitled to any portion of the capital stock, except what he pays for. The agreement is that, after one-fourth of the capital stock is divided between Swarthout and Stein, the balance of the stock is to go to the promoters of said company, represented by complainant, Brown, for the purpose of. procuring capital to make said appliances and market them. Brown would not become the owner of this stock. It would have to be converted into money to be used for the purposes of the business. We think the bill is defective, in that it fails to show that a company was organized. It is true, it asserts that complainant had interested sufficient capital to form a stock company, but in the next sentence it asserts a default in defendant for failing to make a test for ascertaining how much capital should be required to form a stock company. These two statements are hardly consistent. The fault with the contract is that it made no provision for determining how much capital stock should be required, and defendants cannot be said to be in default for refusing to arrange to submit that question to Prof. Weil, — a contract that in its terms is too indefinite and uncertain to be susceptible of specific performance.

The decree will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    ANDERSON v. VAN BUREN CIRCUIT JUDGE.
    Intoxicating Liquors — Local Option — Illegal Sales — Per- . jury — Jeopardy.
    A conviction of a druggist for selling liquor contrary to the provisions of the local option law is not a bar to a prosecution for perjury in making a false statement to the prosecuting attorney of his liquor sales.

      Mandamus by David Anderson, prosecuting attorney of Yan Burén county, to compel John it. Carr, circuit judge of said county, to vacate an order quashing an information.
    Submitted September 15, 1903.
    (Calendar No. 19,991.)
    Writ granted October 27, 1903.
    The “Local Option Law,” so called, is in force in the county of Yan Burén. Section 1 of the act (Pub. Acts 1899, Act No. 183) prohibits the sale of intoxicating liquors as a beverage. Druggists are permitted to sell for certain purposes. Section 25 requires every druggist to make a statement, either written or printed, signed and sworn to' by himself or his clerk, on thé first Monday of each week, giving the full statement of his sales of liquor for the week previous, and the names and the residences of those to whom they are sold. Section 16 provides the penalty fo.r any violation of sections 1 and 25.

      One Charles H. Rogers kept a drug-store in the city of South Haven, and under this act was prosecuted for selling liquor contrary to its provisions during the week ending July 7, 1902. To that information he pleaded guilty, and was duly sentenced. After that information was filed, another information was filed against him, charging him with perjury, under 3 Comp. Laws, § 11306, which reads as follows:
    “If any person authorized by any statute of this State to take an oath, or if any person of whom an oath shall be required by law, shall willfully swear falsely in regard to any matter or thing respecting which such oath is authorized or required, such person shall be deemed guilty of perjury, and shall be punished by imprisonment in the State prison as provided in the preceding section. ”
    To this information Rogers filed a special plea in bar, setting forth the former suit, and judgment thereon, as a bar to this prosecution. The court sustained the plea in bar, and quashed the information. The relator, the prosecuting attorney, asks the writ of mandamus to compel the vacation of such order, and the direction to the respondent to proceed with the trial of the case.

      David Anderson, Prosecuting Attorney, in pro. per.

      Thomas J. Cavanaugh, for respondent.
   Grant, J.

(after stating the facts). The court was in error. The liquor statute referred to provides for the punishment of two offenses only: (1) Selling liquor contrary to the provisions of section 1; (2) the neglect to file the weekly report of sales as provided by section 25. It contains no provision for the punishment of perjury in making the affidavit required by section 25. Perjury for making a false affidavit is a separate and distinct offense from that of an illegal sale or a failure to make the report. Conviction of either of those offenses forms no bar, therefore, to the prosecution for perjury. People v. Saunders, 4 Parker, Cr. R. 196. A conviction for burglary with intent to commit larceny is no bar to a prosecution for the larceny. People v. Parrow, 80 Mich. 567 (45 N. W. 514). See authorities there cited.

The writ will issue as prayed.

The other Justices concurred.


text:
    BROWN v. RAPID RAILWAY CO.
    1. Railroads — Ejecting Passengers — Tickets.
    The conductor of a railway train has a right to eject therefrom a passenger who does not produce a ticket apparently good on its face, or pay his fare.
    2. Same — Damages.
    ^Where a railway conductor detaches the wrong coupon from a passenger’s ticket, and the passenger is afterwards, by another conductor, ejected from the car, without unnecessary force, for failure to pay another fare, the railroad company is liable only to the amount of the additional fare, j
    Error to Wayne; Brooke, J.
    Submitted October 7, 1903.
    (Docket No. 9.)
    Decided October 27, 1903.
    Case by Carrie Brown against the Rapid Railway Company to recover damages for her expulsion from defendant’s car. From a judgment for plaintiff, on verdict directed by the court, for an alleged inadequate amount, she brings error.
    Affirmed.

      Fink & O’Connor, for appellant.

      L. S. Trowbridge, Jr. (Gray & Cray, of counsel), for appellee.
   Montgomery, J.

This case is a companion case to that of Samuel J. Brown v. Rapid Railway Co., 130 Mich. 483 (90 N. W. 290). The present plaintiff is the wife of the plaintiff in that case, and was his companion on the occasion there adverted to. It appears in this case without dispute that the plaintiff’s husband purchased for her a coupon ticket, composed of eight parts, the eighth part of which was signed by the general manager. The coupons attached thereto contained the statement, “Void if detached from signature coupon.” Through no fault of plaintiff or her husband, these coupons were taken up separately by defendant’s conductors, and, through an error, instead of taking up one of the coupons attached, one of the conductors took up the signature coupon, leaving in the hands of the plaintiff or her husband only the coupons without the signature. These detached coupons were accepted by various conductors until the second conductor on the return trip, a Mr. Gordon, objected to receiving them. The circumstances of how the ticket came to be detached were explained to the conductor, but the conductor assured the plaintiff that the ticket was no good, and demanded the payment of the fare, and, upon the plaintiff’s husband refusing to pay the fares, the plaintiff was removed from the car without the use of any unnecessary force. The recovery of the plaintiff was limited to the amount paid for additional fare. Plaintiff brings error.

The rule of law in this State has been settled from the decision of Frederick v. Railroad Co., 37 Mich. 342 (26 Am. Rep. 531), that, as between the conductor of a railway train and the passenger, it is incumbent upon the passenger to produce as a ticket one which is apparently good upon its face, or pay the fare in cash, and that, failing to do this, the conductor has the right to eject the passenger from the car. Any other rule would result in unseemly contests between the passenger and conductor, and would put upon the conductor the burden of determining at his peril, by facts not evidenced by the ticket produced, whether the passenger was entitled to a ride. This determination was reaffirmed in Mahoney v. Railway Co., 93 Mich. 612 (53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 538); also Heffron v. Railway Co., 93 Mich. 406 (53 N. W. 802, 16 L. R. A. 345, 31 Am. St. Rep. 601), in an opinion by Mr. Justice Morse, where the case of Hufford v. Railroad Co., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859) is distinguished on the ground that in the Hufford Case the ticket was one purporting on its face to cover the distance to be traveled by Hufford. This case was again distinguished in the case of Van Dusan v. Railway Co., 97 Mich. 439 (56 N. W. 848, 37 Am. St. Rep. 354), and upon the same identical ground. The rule of law cannot be said to be in doubt in Michigan. The cases cited from other jurisdictions do not support the broad contention necessary to maintain the plaintiff’s case. The case of Scofield v. Pennsylvania Co., 112 Fed. 858, 50 C. C. A. 553, much relied upon by plaintiff’s counsel, was a case in which it was shown that the railroad company had provided by its rules that a passenger should not be expelled from its trains without the case being first reported and passed upon by its representative, who would have an opportunity to get information and act advisedly. No such fact appears in the present case. We are not only content with the Michigan rule, but it is abundantly well shown by the cases cited in the brief of defendant’s counsel that this rule is in full accord with the holding in other States.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    PETERSON v. MARK.
    Lost Child — Reward—Evidence.
    Testimony that a boy, for whom defendant had offered a reward, was, when seen by plaintiff, several miles from home, and that he said he was going home, but was in reality going in the opposite direction, and that plaintiff then kept possession of him until he was delivered to his friends, warrants an inference that the boy was lost.
    Error to Gogebic; Haire, J.
    Submitted October 7, 1903.
    (Docket No. 8.)
    Decided October 27, 1903.

      Assumpsit by George Peterson against Samuel L. Mark to recover a reward offered for a lost boy. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Julius J. Pateh, for appellant.

      Herb. M. Norris, for appellee.
   Carpenter, J.

One Ben Mullewitch, a 16-year-old boy, was for several days lost in the woods of the Upper Peninsula. Defendant offered a reward of $150 “ for the delivery of the boy.” Plaintiff, claiming that he was entitled to the reward, brought this suit, and recovered in the court below. Defendant seeks to reverse the judgment on the ground that it appeared by the undisputed testimony that the boy was not lost when plaintiff discovered him.

Three witnesses, namely, the boy, Ben Mullewitch, one Mary Mullesza, and the plaintiff himself, testify on this subject. According to the testimony of the two witnesses first named, the boy, in his wanderings, after striking the road upon which he was traveling when he met plaintiff, followed it five or sis miles, until he came to the house of Mary Mullesza. There he was given his breakfast and informed of his location. He then started on this road for North Bessemer, and after going about half a mile he met the plaintiff. We should infer from the testimony of these witnesses that the boy at this time knew his whereabouts, and was on his way home, with full appreciation of his location and surroundings, and fully possessed of all his faculties, and was therefore in no sense lost.

Can a different_ inference be drawn from the testimony of the plaintiff ? Plaintiff drove a stage between Bessemer and North Bessemer. He testifies that on the 17th of July, 1902, while waiting for the arrival of the train at North Bessemer, he left his stage, and walked a short distance “down the road, to find the boy.' I found him in the highway, coming towards North Bessemer. He was picking berries. * * ■* Then I took him in the stage. * * * We stayed there and talked a few minutes, and he says, ‘I guess I will go home.’ * * * I just thought to myself which way he wants to go, and he got out of the bus and walked towards the depot, and started up towards Thomaston. * * * I says, ‘ Come back; you are going the wrong way;’ and I got him back into the stage, and he got to questioning me about a bridge that crossed over from Cariada into this country. He asked me how far we were from that bridge.” (We may take judicial notice that the bridge referred to was at Sault Ste. Marie, several hundred miles distant.) Plaintiff gave further testimony indicating that he kept possession of the boy until he was taken by friends, who delivered him in accordance with the conditions of the reward.

We think it may be inferred from this testimony that the boy, when plaintiff met him, had not yet learned to fully appreciate his location and surroundings; that he had not yet recovered such possession of his faculties as to enable him to find his home; and therefore that he was, in a sense, a lost boy.

No other prejudicial error is complained of.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    OHRNS v. WOODWARD.
    1. Wills — Testamentary Guardians — Approval by Court-Waiver op Objections.
    A widow, by consenting to the probate of her husband’s will appointing a guardian for his children, does not waive her right to object to the approval of the appointment, required of the probate court by 3 Comp. Laws, § 8706.
    2. Same.
    The probate court may refuse to approve of the appointment of two testamentary guardians, on the ground that the ward’s interests would not be properly subserved with two guardians who were distrustful of each other.
    3. Same — Discretion op Court.
    An appellate court will not reverse the action of the probate court in refusing to approve of the appointment of a testamentary guardian, except in a case of a clear abuse of his discretion.

      Certiorari to Wayne; Hosmer, J.
    Submitted October 7, 1903.
    (Docket No. 7.)
    Decided October 27, 1903.
    Petition by Henry Ohrns for his appointment as testamentary guardian of Etta and Rosa Woodward,’ minors. The petition was denied in both the probate and circuit courts, and petitioner brings certiorari.

    Affirmed.
    One Mills D. Woodward died testate April 5, 1898. Appellant, Ohrns, was his executor, and Mr. Ohrns and the widow, Louise Woodward, were made testamentary guardians of the estate of his two children. Controversies arose between Mr. Ohrns, the executor, and the widow in regard to her right to take her share under the statute or under the will. An appeal from the probate of the will by the probate court was taken to the circuit court. While the suit was pending there, the differences were amicably settled by agreement. Mrs. Woodward was allowed to take under the statute, and the probate of the will was affirmed. Subsequently Mr. Ohrns applied to the probate court to be appointed testamentary guardian. A hearing was had before the judge of probate, and his petition denied. Thereupon he appealed to the circuit court, and the decision of the probate court was affirmed. He thereupon appealed to this court.

      James H. Pound, for appellant.

      Dohany & Dohany, for appellee (Louise Woodward).
   Grant, J.

{after stating the facts'). The statute provides that every father may by his will appoint a guardian or guardians for his children. The statute contains a proviso that, when the mother of such children shall survive the father, the appointment of such guardian shall not be operative until approved by the judge of probate, and after opportunity offered to the mother to show cause in opposition thereto. 3 Comp. Laws, § 8706. The widow appeared and objected. A hearing was had, proofs taken, and the issue held by both the probate and circuit courts against the appellant’s contention. His reasons for asking a reversal of the judgment appear to be (1) that, by her consent to the probate of the will after her appeal, she lost her right to object under the statute; (2) that the reasons shown were not sufficient for nonapproval by the probate court; (3) that the widow, who has had the main charge of the estate, has run it in debt, and that she is responsible for that indebtedness.

The widow did not waive her right to object to the approval of Mr. Ohrns’ appointment by her consent to the probate of the will. The statute contemplates a subsequent proceeding after the probate of the will, in which the widow, the mother of the children, may appear and oppose the appointment.

The reason given by the circuit judge for his conclusion is that serious questions had arisen between Mrs. Woodward and Mr. Ohrns, and that there was a mutual distrust each of the other. He held that this was a sufficient reason to set aside the testamentary appointment. The statute confers original jurisdiction in this matter upon the probate judge. It requires his approval before the testamentary appointment can become operative. Only when there is a clear abuse of this power will an appellate court interfere. Whether he may act arbitrarily, we need not determine. It was apparent to the probate court and to the circuit court that the interests of the minors could not be properly subserved with two guardians who were mistrustful each of the other. In this we concur. We think the facts and circumstances justified the action of the lower courts.

The judgment is affirmed.

The other Justices concurred.


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    DETROIT LIGHT GUARD BAND v. FIRST MICHIGAN INDEPENDENT INFANTRY.
    1. Unincorporated Societies — Actions.
    The statute (3 Comp. Laws, § 10025) providing for suits by' or against an unincorporated association in the name by which it is known does not prevent a suit against the association by name and its members jointly.
    2. Same — Withdrawal oe Members — Recovery.
    Where an unincorporated association made a contract with defendants that its members should render services for defendants in consideration of the payment of a certain sum to its treasurer, the association may recover for the whole sum, notwithstanding a portion of the members had, at the time of the beginning of the suit, withdrawn from the association, and did not wish to press their claims.
    3. Same — Contracts—Individual Liability.
    A member of an unincorporated association, in making a contract in behalf of the association, binds himself individually.

      Error to Wayne; Donovan, J.
    Submitted October 7, 1903.
    (Docket No. 10.)
    Decided October 27, 1903.

      Assumpsit by the Detroit Light Guard Band against the First Michigan Independent Infantry, Joseph H. Hansjosten, and others, for services rendered. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, and against one defendant only, plaintiff brings error.
    Reversed.
    This case originated in justice court, where the plaintiff recovered a judgment against all of the defendants for the sum of $147.33. The suit is based upon the following contract:
    “Know all men by these presents, that according to a contract duly made and entered into this 29th day of June, 1900, between the Detroit Light Guard Band, party of the first part, and First Michigan Independent Infantry, party of the second part, said party of the first part contracts 'to furnish to the party of the second part a uniformed band of fifteen musicians, including drum major, for the encampment of the regiment, and to be under the orders of said colonel of the First Michigan Independent Infantry, party of the second part, from 9 o’clock a. m. on Sunday, July 1st, 1900, until 10 o’clock p. m. on Sunday, July 8th, 1900. And as remuneration for said services said First Regiment Michigan Independent Infantry, party of the second part, agrees to pay to H. W. Schmemann, treasurer of the Detroit ‘Light Guard Band, party of the first part, two hundred and fifteen dollars, and expenses, which will consist of transportation and subsistence dur- ^ ing the period of this contract.
    [Signed] “W. C. Smith,
    “For the Detroit Light Guard Band.
    [Signed] “Jos. H. Hansjosten,
    “Col. Comdg. 1st M. I. I., “For 1st Rgt. M. I. I.”
    The services were performed, and defendant Hansjosten paid plaintiff thereon $76. Hansjosten alone appealed to the circuit court. He, as the commanding officer of the regiment, had charge of all the proceedings throughout the encampment for which the services were performed.
    Plaintiff and defendant are unincorporated volunteer associations. Upon the trial, one Hayes, an attorney, appeared, and stated that he represented 8 of the 15 members who performed the services; that they did not authorize the bringing of the suit; that they were satisfied, and did not wish to pursue their claim against the defendants. These 8 persons had, prior to the commencement of suit, severed all connection with the plaintiff. The court found that, under the arrangement between members of the plaintiff, the 15 men would receive $15 each under the contract; that, after certain expenses wefe paid, the net amount each would receive would be $13.85; that the treasurer had paid $5 to each, leaving each to receive $8.85. Each of the 8 persons was indebted to the band. The court directed a verdict for $61.95, making $8.85 each for the 7 men. The court also directed a verdict in favor of Hansjosten, holding that he acted simply as agent for the association, and was not liable as principal. The judgment was rendered against the defendant association.
    In 1897 the legislature passed an act reading as follows:
    “ That whenever any unincorporated voluntary association, club, or society shall be formed in this State, composed of five members or more, having some distinguishing name, actions at law or in chancery may be brought by or against such association, • club, or society by the name by which it is known: Provided, that this act shall not take away the right of the litigant to proceed against all the members of such association, club, or society, if such litigant shall so elect to proceed. ” 3 Comp. Laws, § 10025.

      Harry H. Wait, for appellant.

      Navin & Sheahan, for appellee Joseph H. Hansjosten.
   Grant, J.

(after stating the facts). Does the statute prevent the plaintiff from suing the association and members thereof jointly? It does not abrogate the right to sue the members. Jenkinson v. Wysner, 125 Mich. 89 (83 N. W. 1012). It is conceded by defendant’s counsel that plaintiff could pursue a remedy against either the association or against the individual members. The only remedy before the enactment of the statute was against the individual members. Clark v. O’Rourke, 111 Mich. 108 (69 N. W. 147, 66 Am. St. Rep. 389). The statute authorizes suit to be brought by or against any such association, and provides that it shall not take away the right of a litigant to proceed against the members. This does not preclude the plaintiff from suing them jointly. It only provides an additional or cumulative remedy. The doctrine of election of remedies does not apply. Plaintiff has not elected to proceed against one, but against both. See Jenkinson v. Wysner, 125 Mich. 90 (83 N. W. 1012).

The court was in error in holding that the plaintiff could not recover, as an association, the total amount due. The money was due, not to the individual members of the plaintiff association, but to the association itself, and was payable to its treasurer. It was then to be apportioned to those performing the services, according to their financial standing with the association. If the individual member was in debt to the association, the amount of his debt was deducted from the amount due him. The identity of the plaintiff association was not affected by the withdrawal of these eight members. The remaining members were entitled to all the rights, privileges, and property of the association. If the withdrawing members had any enforceable interest in the association, their remedy was against the association or the members thereof, and they were not authorized to interfere in a suit brought by the association upon a contract made in its name and for its benefit. Schiller Commandery v. Jaennichen, 116 Mich. 129 (74 N. W. 458); Curtiss v. Hoyt, 19 Conn. 154 (48 Am. Dec. 149); Nib. Mut. Ben. Soc. § 158.

It is urged that defendant Hansjosten is not liable, because he was acting as agent for his principal, and did not intend to bind himself. If he had made the contract in the name of an individual or a legally organized corporation, the authorities cited by the defendant would apply. But members of these voluntary associations are personally liable, and in making contracts they bind themselves as well as other members. Hansjosten was a co-contractor and a co-promisor, and is liable on the promise made by himself for himself and others. If other members liable on the contract were not made parties, this defense could be interposed only by plea in abatement. Kierstead v. Bennett, 93 Me. 328 (45 Atl. 42).

The judgment is reversed, and new trial ordered.

The other Justices concurred.


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    CLARK v. CLARK.
    Partition — Sale—Division op Proceeds — Contract por Support op Parent — Compensation.
    On division of the proceeds of a partition sale, defendant is not entitled to compensation for the care and support of the mother of himself and complainant, where it appears that he had the use of the property sold for a number of years, under, an agreement with complainant to maintain their mother, although the use of the property belonged to the mother.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 8, 1903.
    (Docket No. 11.)
    Decided October 27, 1903.
    Bill by Albert M. Clark against Arthur S. Clark, Jennie E. Clark, and Gideon L. Hoyt, trustee, for a partition. From a decree denying the claim of defendants Clark for a special allowance from the proceeds of the sale, they appeal.
    Affirmed.

      J. W. Bennett and A. J. Sawyer & Son, for complainant.

      Frank E. Jones, for appellants.
   Carpenter, J.

This is a suit to partition a house and lot, which complainant and defendant, who are brothers, own as tenants in common. The decree of the lower court ordered the property to be sold, and the proceeds of sale divided. Defendant claims compensation, out of these proceeds, for the reasonable worth of caring for and maintaining for many years the aged mother of complainant and himself. The trial court disallowed said claim, and the correctness of this decision is the sole question raised by this appeal.

We think the claim was properly disallowed. The testimony clearly proves, as found by the trial judge, that defendant maintained his mother under an agreement with complainant that, as compensation therefor, he should have the use of the property in suit, and that he did have the use of said property. Nor was defendant’s agreement any less effectual because the consideration which supported it — the use of the property — belonged to the mother, and not to complainant. Rorabacher v. Lee, 16 Mich. 169.

The decree will be affirmed, with costs.

The other Justices concurred.


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    CHEEVER v. FLINT LAND CO.
    1. Taxation — Purchase of State Tax Lands — Payment of Tax Claims.
    A purchaser of State tax lands under section 84 of the general tax law (Act No. 262, Pub. Acts 1899) is compelled to pay a claim held by the State under a sale which, at the time of the purchase, is subject to redemption.
    2. Same — Redemption.
    The owner of land, in order to redeem from a tax deed under sections 140 and 141 of the general tax law (Act No. 204, Pub. Acts 1899), must pay to the purchaser 200 percent, of all sums paid by him to the State, including tax liens for years subsequent to that for which the land was sold.
    3. Same. ■
    Payment by the owner of land to the auditor general to redeem from a tax sale under section 74 (Act No. 262, Pub Acts 1899) is unauthorized, where a third person has, before such payment, paid to the State its claim for such tax in order to obtain a deed of the land under a former sale to the State; redemption in such case should be made under section 141.
    Appeal from Ogemaw; Sharpe, J.
    Submitted October 9, 1903.
    (Docket No. 28.)
    Decided October 27, 1903.
    Bill by Noah W. Cheever against the Flint Land Company, Limited, to enforce an alleged right of redemption from a tax deed. From a decree dismissing the bill on demurrer thereto, complainant appeals.
    Affirmed.

      Noah W. Cheever (F. L. Snodgrass, of counsel), in pro. per.

      McFarlan & Wilson, for defendant.
   Carpenter, J.

In his bill of complaint, complainant avers that he is the owner of the lands in controversy; that said lands were sold for the taxes levied thereon for the years 1892, 1893, and 1899, and bid in by the State; that the proceedings for the sale under the tax of 1893 were duly canceled by the auditor general; that the time of redemption under the tax sale of 1899 did not expire until May 1, 1903; that on September 23, 1902, defendant purchased the State’s title growing out of the sale for taxes of 1892, and paid therefor $33.10, and received a tax deed of said lands, dated November 10, 1902; that at the same time defendant paid the State on account of the tax for the year 1893 $29.94, and on account of the tax for the year 1899 $14.99; that on January 23, 1903, complainant paid the auditor general $15.36 to redeem said lands from the sale for the taxes of 1899, and received a redemption certificate in due form, and also $30.50 to pay the taxes for the year 1893; that on February 2, 1903, complainant made a legal tender to defendant of double the amount paid by it for the tax of 1892, the amount paid by it on account of the tax of 1893, with 12 per cent, interest per annum (also other small sums, to which defendant was entitled, not material to this decision), and thereupon requested defendant to convey said land to him; and that the defendant refused to accept said tender and to make said conveyance. The bill prays a decree compelling said conveyance. To this bill, defendant demurred on 'the ground of the insufficiency of the amount tendered. This demurrer was sustained, and the question before us is whether that decision was correct.

The question involved in this cáse is whether defendant was entitled, upon this redemption, to demand 200 per cent, of the amount paid on account of the taxes for the years 1893 and 1899, as well as 200 per cent, of the amount paid for the State’s bid. Defendant made its purchase by virtue of section 84 of the tax law (see 1 Comp. Laws, § 3907, as amended by Act No. 262, Pub. Acts 1899). That section required the purchaser to pay the auditor general “ the amount for which the same was bid off to the State, with interest, * * * together with the other taxes which have been returned to the auditor general and remain a lien on such lands at the time of the purchase so made, with the interest thereon at the rate provided in this act.” While the bill of complaint avers that defendant made its payments on account of the taxes of 1893 and 1899 “as provided by the statute,” the point is made in the brief that the statute did not, according to the proper construction, require defendant to pay the tax of 1899. It is urged that, as a sale had been had on account of the nonpayment of this tax, it was not included in the language “other taxes which have been returned to the auditor general and remain a lien on such lands,” contained in section 84. We cannot approve this construction. It was the obvious purpose of this section to compel the purchaser to pay at the time of his purchase all claims which the State had against the land, growing out of the nonpayment of taxes thereon; and, in our judgment, it would be a strained and narrow construction of the language used, to decide that it did not include a tax under which a sale had been made, but which had not yet ripened into a title. We conclude, then, that defendant was bound by section 84, ás a condition of purchasing the title of the State, to pay the tax for the year 1899, as well as for the year 1893.

Had it a right to demand a repayment of the amount paid for these taxes, and 100 per cent, in addition thereto, as a condition of a reconveyance to complainant? This depends upon the construction of sections 140 and 141 of the tax law (see 1 Comp. Laws, §§ 3959, 3960, as amended by Act No. 204, Pub. Acts 1899). By section 140 the purchaser is required to notify the owners and other parties in interest that they are entitled to a reconveyance “ upon payment * * * of all sums paid upon such purchase, together with 100 per cent, additional thereto,” etc.; 'and by section 141 he is required to make “a reconveyance of such interest in such lands so held upon payment * * * of the amount paid upon such purchase, together with 100 per cent, in addition thereto,” etc. As all the money to be repaid the purchaser under these sections is to be repaid together with 100 per cent, in addition thereto, it follows that, if there is any requirement whatever for the repayment of the amount paid for taxes, 200 per cent, of that amount must be repaid. In our judgment, the proper construction of the language above quoted entitles defendant to a repayment of all the money he has advanced to the State to procure the title. The language, “all sums paid upon such purchase,” “the amount paid upon such purchase,” clearly indicates the legislative intent that, as a condition of reconveyance, the purchaser of the State’s title shall he repaid all that he has been compelled to advance to obtain his title. He would not obtain “the amount paid upon such purchase” unless included therein was the amount he had been required to pay for the tax liens on the land. Unless this construction is adopted, the owner redeeming from such title is under no. obligation whatever to pay the amount paid by the purchaser from the State to discharge the lien for taxes on the land, and this would often permit — indeed, in this case it would permit — the owner to redeem on repayment of less than the amount advanced by the purchaser.

In making the foregoing statement, we have not overlooked the contention of complainant that the result of his redeeming from the sale for the nonpayment of the taxes for the year 1899 leaves in the hands of the auditor general the redemption money belonging to defendant, and which defendant can get on presentation of its certificate of sale. It is a sufficient answer to this contention to say that it was never contemplated by sections 140 and 141 that complainant should acquire any part of the defendant’s interest in or claims against the land by payments to the auditor general. The only way complainant, or one situated like him, can acquire defendant’s interests in the land, is by payment to the defendant or to the register in chancery. The payment to the auditor general was therefore unauthorized, and in no way reduced defendant’s claims. Complainant urges, against this construction of the statute, that it, in effect, repeals section 74 of the tax law (see 1 Comp. Laws, § 3897, as amended by Act No. 262, Pub. Acts 1899), which gives the owner the right to redeem from a sale for the nonpayment of taxes on the payment of the amount for which the land was sold, and interest at the rate of 12 per cent. We do not think that the effect of this construction is to repeal section 74. It is true, it makes that section inapplicable where the tax for which the land was sold has been paid by a purchaser of "the title of the State. This is not inconsistent with the terms of the section itself. If any one having an interest in the land had paid this tax after the land had been sold, no other party in interest would have a right to redeem. Complainant has no more right to redeem from that sale than he has to pay to the auditor general the tax for the year 1893. Defendant has paid to the State the tax for the year 1899, as well as the tax for the year 1893.

It results from this reasoning that the decree of the court below should be affirmed, with costs.

The other Justices concurred.


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    HOLLIDAY v. WRIGHT.
    1. Corporations — Subscription to. Stock — Time as Essence op Contract.
    Time is not of the essence of a contract of subscription for stock of a corporation, unless made so by the terms of the subscription.
    2. Same — Waiver.
    If time was made of the essence of a contract of subscription for stock of a corporation, acceptance of payment of the full amount after a delay would constitute a waiver.
    3. Same — Delay in Payment op Assessments — Damages.
    A stockholder of a corporation cannot recover damages of a subscriber to the stock of the corporation for his delay in paying assessments, as the damage, if any, is suffered by the corporation.

      Error to Wayne; Hosmer, J.
    Submitted October 9, 1903.
    (Docket No. 35.)
    Decided October 27, 1903.

      Assumpsit by William P. Holliday against Charles Wright for the breach of a contract to repurchase certain corporate stock. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Defendant was the owner of certain trade-marks, copyrights, and good will of the business of the sale of certain dentifrice articles, and sought to organize a corporation for the purpose of manufacturing and selling such articles on a large scale, and building up a business by means of extensive advertising. Accordingly, on January 9, 1900, a subscription list for the stock was opened; the company to be styled “The Charles Wright Chemical Company,” with a capital of $150,000. Several parties subscribed for the stock. Plaintiff was requested by the defendant to subscribe, and did so, on April 2, 1900, under the following agreement:
    That, whereas, the Charles Wright Chemical Company was to be organized for the prosecution of a dentifrice business, with capital stock of $150,000; defendant to receive $100,000 thereof for trade-marks, copy-rights, and good will, thé remaining $50,000 to be sold at par, defendant to transfer to each purchaser an equal amount of the stock to be issued to him for the trade-marks, etc.:
    “Therefore, it is mutually agreed between the parties hereto that, in consideration of the subscription of $5,000 cash to be paid by said party of the second part [plaintiff] to said Charles Wright Chemical Company for stock therein to said amount, the said party of the first part [defendant], on payment by said second party of his subscription which he hereby agrees to make to said capital stock of said proposed Charles Wright Chemical Company, said party of the first part agrees to transfer to said second party $7,000 worth of the stock of said Charles Wright Chemical Company which he is to receive in payment for said trade-marks, copyrights, and good will. Said $2,000 of extra stock of said Charles Wright Chemical Company is to be transferred to said second party in consideration of said second party’s present relations to said Charles "Wright Company business.
    “It is also mutually agreed that within one year after the organization of said Charles Wright Chemical Company, and issuance of said $12,000 worth of stock therein to said second party, and payment therefor by the latter of the $5,000 subscription aforesaid, said second party shall have the option to surrender said $12,000 worth of stock to said first party, who, within six months from notice of said election, shall repay to said second party the amount paid therefor, to wit, $5,000.”
    Defendant, upon execution of the contract, transferred to plaintiff 500 shares of stock in the Charles Wright Chemical Company, as security for the performance of the contract on his part.
    The contract of subscription was as follows:
    “The undersigned desire to form a corporation to be organized under the manufacturing and incorporation laws, being Act 232 of the Public Acts of Michigan of 1885, as amended, with a capital stock of $150,000, to be called-the Charles Wright Chemical Company, for the purpose of carrying on in Detroit and elsewhere the business of manufacturing and dealing in dentifrices, and to that end hereby agree, each in consideration of the agreements of the others, to join in the organization, and to subscribe for and take stock in such a corporation to the amounts, par value, set after our respective names. All details of said organization, other than the foregoing, may be determined by a majority in interest of the signers hereof.”
    The articles of association were executed April 18th,. plaintiff being one of those who executed and acknowledged them. On the same date a stockholders’ meeting was held, and plaintiff was elected a director. The directors were authorized to call in the subscriptions as the amounts should be needed. On April 20th the directors made a call for 25 per cent. Plaintiff did not pay, but on June 11th following wrote defendant that he would take advantage of the above agreement between them, and advising that he get some one to take his place. Other correspondence passed between them, plaintiff apparently being under the impression that he could take advantage ■of the agreement without the payments therein provided. The corporation brought suit against the plaintiff for the assessments made upon his stock. He then paid the full amount, with interest and costs of suit, and defendant transferred to him the other stock provided in the contract. Before the expiration of the year, plaintiff tendered back his stock and demanded repayment of the $5,000, in accordance with the agreement. Defendant refused to pay, and thereupon plaintiff instituted this suit. At the close of the testimony, the court, at the request of the plaintiff, directed a verdict in his favor for the full amount and interest.

      George W. Radford, for appellant.

      Barbour, Rexford & Field, for appellee.
   Grant, J.

(after stating the facts). The defense is that time was of the essence of the contract between plaintiff and defendant; that plaintiff did not comply with his contract in paying for his stock as the assessments were made, and cannot, therefore, maintain suit.

The corporation had no interest in the contract between plaintiff and defendant. In contracts of subscription for the stock of corporations, time is not of the essence thereof, unless it is expressly provided or necessarily implied. If, however, time was of the essence of this contract, the corporation waived that feature of it by accepting payment of the full amount after the delay. Malone v. Gates, 87 Mich. 332 (49 N. W. 638); Foster v. Worthington, 58 Vt. 65 (4 Atl. 565); Nibbe v. Brauhn, 24 Ill. 268; Phillips, etc., Construction Co. v. Seymour, 91 U. S. 646.

If any damages accrued by plaintiff’s failure to comply with his subscription contract, the corporation alone suffered them. Individually,, the defendant was not injured thereby, but only in the capacity of a stockholder, if injured at all.

The court was correct in directing a verdict, and the judgment is affirmed.

The other Justices concurred.


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    ANDERSON v. WIRTH.
    1. Ejectment — Plats—Boundaries.
    Plaintiff’s right to recover in an action of ejectment depended upon his establishing the east boundary of a lot as platted to be at the east side of a certain warehouse. The plat showed the east line of the lot to be located 50 feet west from the-center of a railroad track. The undisputed evidence showed that shortly after the plat was made, and before the warehouse was built, the track was moved 3 or 4 feet to the east. The warehouse was built 50 feet from the center of the track after it was moved. Held, that a verdict should have been directed for defendant.
    2. Boundaries — Surveys.
    The fact that a city surveyor assumed that a warehouse marked the boundary of a lot, and made surveys upon that assumption, is no evidence of the true boundary.
    Error to Wexford; Chittenden, J. ’
    Submitted October 9, 1903.
    (Docket No. 36.)
    Decided October 27, 1903.
    Ejectment by Andres P. Anderson against Henry Wirth. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      Sawyer & Bishop, for appellant.

      Charles A. Withey (J. E. Bichardson, of counsel), for appellee.
   Carpenter, J.

This is the second time this controversy has been in this court. On the former occasion (see 131 Mich. 183 [91 N. W. 157]) it was reversed on account of error in excluding testimony respecting the location of the railroad track hereafter referred to. On the second trial, as on the first, plaintiff recovered a verdict and judgment. The controversy relates to the ownership of a strip of land 6 inches in width, which the plaintiff claims as a part of lot 5, block 1, Mitchell’s revised plat of the city of Cadillac, and which the defendant claims as a part of lot 6 of said block. Lots 5 and 6, block 1, face on Harris street, which is a street running from Lake street, on the west, to the right of way of the Grand Rapids & Indiana Railroad Company, on the east. According to the plat, the distance from Lake street to the right of way is 319 feet. It is the claim of plaintiff that in fact this distance is 333 feet and 3 inches, and that the excess of 3 feet and 3 inches is to be apportioned among the lot owners; and, so apportioned, plaintiff is entitled to the 6 inches in controversy. If there is no excess, the defendant is entitled to recover.

There is no dispute as to the location of the eastern boundary of Lake • street. That boundary is fixed by original monuments, now standing. Plaintiff’s claim of an excess is based upon the fact that the distance from the boundary to the east side of a warehouse situated< at least partly on lot 6 is 333 feet and 3 inches. If this east side •of the warehouse can be treated as an original or fixed monument, plaintiff is entitled to recover; otherwise he is not. It is 50 feet from the east side of this warehouse to the center of the railroad track, on the railroad’s right of way, according to its present location; and the plat of this subdivision, made in July, 1873, fixed 50 feet as the distance between the center of said railroad track and the boundary of lot 6. The undisputed evidence in this case proves that shortly after the plat was made, and before the warehouse was built, the track was moved 3 or 4 feet to the east. Assuming, as we must, on the present record, this testimony to be true, it follows that the distance from the center of the track as at present located to the east boundary of lot 6 is not 50 feet, but 53 or 54 feet, and therefore that the east side of the warehouse does not mark said boundary. It could not mark said boundary, under this hypothesis, except upon the impossible assumption that the boundary moved when the track was moved.

There is other evidence, of a persuasive character, which tends to prove that the east boundary of the warehouse does not correctly mark the east boundary of lot 6. On the assumption that it does, the lot lines in the other parts of the subdivision, some of which were fixed by occupancy shortly after the land was platted, and about which there has been no dispute, are improperly located.

“As between old boundary fences and any survey made-after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are.” Diehl v. Zanger, 39 Mich. 601.

The eastern boundary line of this plat was a straight line extending for several blocks. The warehouse in question is not the only monument standing near this-boundary. There are other buildings. Some of these are 51, some 51£, and there is a fence 54 feet from the center-of the track.

In support of the claim that the east side of the warehouse does afford evidence of the location of the east boundary of lot 6 are these circumstances: First. Defendant’s principal witness, Mr. Teed, city surveyor, assuming that it did fix such boundary, made several surveys of the land in question in 1880, and located the boundaries of a park immediately opposite. We need spend no time to prove that this affords no evidence of the true location of said boundary. Second. The warehouse in question was built in its present location in 1874 or 1875 by Mr. Mitchell,, who made the plat of the whole subdivision in question. This circumstance amounts, at most, to a declaration on the part of Mr. Mitchell that the east side of the building marked the east boundary of his lot. If he made a mistake at that time, as we are bound to say, upon this record, he did, we know of no principle which entitles plaintiff to the benefit of that mistake, or which estops defendant from now asserting that the mistake was made. The-location of said building affords precisely the same evidence of the location of the boundary line as is afforded by the location of the other buildings along said line, and that, under the circumstances stated in this opinion, is no-evidence whatever. •

It results from these views that the trial court erred in not directing a verdict for the defendant,

judgment reversed, and new trial ordered.

The other Justices concurred.


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    HARTWIG v. MAYOR AND COMMON COUNCIL OF MANISTEE.
    1. Mandamus — Title to Office — Street Commissioner.
    Where a street commissioner was removed from office by a common council having the power to do so, the courts will not review the regularity of the proceedings on an application for mandamus to compel the city to pay his salary.
    2. Same — Quo Warranto.
    On an application for mandamus to compel a city to pay the salary of an official during the time he was suspended from office, the court will not presume that there was not some person performing the duties of the office, against whom quo warranto proceedings might have been instituted.
    3. Public Officers — Suspension—Salary—Mandamus.
    Where a street commissioner’s unfitness for office is conceded, mandamus will not be granted to compel the city to pay his salary during the time between his suspension and the date of his removal, even if such suspension was unauthorized.

      Certiorari to Manistee; Chittenden, J., presiding.
    Submitted October 6, 1903.
    (Calendar No. 19,305.)
    Decided November 3, 1903.

      Mandamus by Claus Hartwig to compel the mayor and common council of the city of Manistee to pay an amount claimed to be due relator for salary as street commissioner. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Thomas Smurthivaite and Frank L. Fowler, for relator.

      John H. Grant, City Attorney, for respondents.
   Carpenter, J.

This is a mandamus proceeding brought to this court by a writ of certiorari. Relator was street commissioner of the city of Manistee. His term of office expired, according to his claim, on the 19th of April, 1901. His salary was $800 per year, payable in monthly installments. On the 19th of June, 1900, respondent passed a resolution suspending relator from his office, pending an investigation of the charge that he was “incompetent and unreliable in his work and in the management of the affairs of the city.” September 19, 1900, after an investigation of these charges as amended (the amendment made the charges more specific), a resolution was adopted by respondent, removing relator from said office. Respondent body had authority, after hearing and investigation, to remove relator from office. It is claimed, however, that those proceedings- were irregular, and that there was no authority to spend him. Relator seeks in this case a mandamus compelling respondents to pay his salary for the three months intervening between his suspension and removal, during which time he did not, though willing to do so, perform the duties of his office. The trial court refused to issue the writ.

We cannot, as requested by relator, inquire into the regularity of the proceedings which resulted in his removal. He was in fact removed from office, after a hearing and investigation, by a body possessing the authority to remove him. If relator wished to raise the claim that, notwithstanding this removal, he was de jure the street commissioner of Manistee, he should have proceeded by quo warranto. Fuller v. Attorney General, 98 Mich. 96 (57 N. W. 33). He cannot raise that issue on an application for a writ of mandamus. See Pipper v. Wayne Circuit Judges, 122 Mich. 688 (81 N. W. 962); Ashwell v. Bullock, 122 Mich. 620 (81 N. W. 577); People v. Common Council of Detroit, 18 Mich. 338; School Dist. No. 8 of Tallmadge v. Root, 61 Mich. 373 (28 N. W. 132); Pariseau v. Board of Education of Escanaba, 96 Mich. 302 (55 N. W. 799).

In reaching this conclusion we have not overlooked the contention of relator that proceedings by quo warranto •could not have been instituted, because there was no officer disputing relator’s title to the office. We cannot draw this inference from the record. It is true that it appears that, at the time these proceedings were instituted, relator’s successor had not .been nominated and confirmed. But it‘also appears that, during the investigation, one Ernest Nitz acted as street commissioner. We are not warranted in inferring that Nitz did not continue to perform the duties of that office until relator’s successor was regularly appointed. We cannot, therefore, infer that there was not' some person performing the duties of this office, against whom quo warranto proceedings could have been commenced.

Full effect cannot .be given to the action removing relator from his office without presuming him guilty of the charges made against him. It must be assumed that relator was guilty of these charges, as he has been adjudged to be. We must assume, therefore, that relator was unfit to perform the duties of his office during the period for which he now seeks to recover his salary. Under this- assumption, relator is not (even though he was illegally suspended from office), under the authority of McQueen v. Common Council of Detroit, 116 Mich. 90 (74 N. W. 387), entitled to a writ of mandamus compelling the payment of that salary.

The order of the court below will therefore be affirmed, with costs.

The other Justices concurred.


author: Hooker, C. J.

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    KAHLER v. KERTSON.
    Appeal — Question op Fact.
    This case involved only a question of fact, and the decree was held justified by the evidence.
    Appeal from Kent; Perkins, J.
    Submitted October 8, 1903.
    (Docket No. 19.)
    Decided November 3, 1903.
    Bill by Charles H. Kahler against Louis A. Kertson to' compel the assignment of certain corporate stock. Prom a decree for complainant, defendant appeals.
    Affirmed.

      L. E. Carroll, for complainant.

      F. W. Clapp, for defendant.
   Hooker, C. J.

The bill in this cause was filed to compel the defendant to assign to the complainant one-half of 100 shares of stock received by the former from a corporation organized through their efforts, and to which they transferred a stock and business which they had previously owned and conducted as copartners at the city of Battle Creek.

The cause was heard upon the merits, and a decree was made in accordance with the prayer of the bill. It involves a question of fact, of no especial interest to any but the parties, and requires no discussion of the testimony. Our examination satisfies us of the correctness of the decree,, which is therefore affirmed, with costs

The other Justices concurred.


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    SCHMID v. VILLAGE OF FRANKFORT.
    1. Municipal Corporations — Bonds—Bona Fide Purchasers.
    Where plaintiffs, before purchasing village bonds, examined the proceedings of the council submitting to the people the question of raising money for park purposes, and a letter from the prosecuting attorney declaring that the proceedings were valid on their face, and took a guaranty of payment from the person negotiating the bonds, a charge that plaintiffs were not bona fide holders if they .did not rely solely upon the recitals in the bonds, was error.

      2. Same — Escrow—Evidence.
    Testimony in relation to the understanding of aldermen in regard to the effect of directions on an envelope containing bonds deposited in escrow is inadmissible.
    3. Same.
    In an action by the holder of municipal bonds purporting to have been issued for public purposes, but in fact to aid a private enterprise, evidence that the person in whose aid they were issued had not put his factory in operation is inadmissible.
    4. Appeal — Judgments—General and Special Verdicts.
    A judgment will not be entered in the Supreme Court for the plaintiff on reversal of a judgment for the defendant, where there is no special verdict or finding of facts to warrant it.
    Error to Benzie; Chittenden, J.
    Submitted October 8, 1903.
    (Docket No. 17.)
    Decided November 3, 1903.

      Assumpsit by Frederick Schmid, surviving partner of the firm of Mack & Schmid, against the village of Frankfort, upon municipal bonds. From a judgment for defendant, plaintiff brings error.
    Reversed.

      B. M. Thompson, for appellant.

      D. Gr. F. Warner and Thomas Smurthwaite, for appellee.
   Hooker, C. J.

A review of a former trial of this cause will be found in 131 Mich. 197 (91 N. W. 131), where the facts are stated. It has been tried a second time, and a verdict for the defendant was followed by judgment, and the plaintiff has again brought error. The points now raised relate to the question of plaintiff’s bona fides in the purchase of the bonds.

The proof upon the later trial was much the same as upon the former; the only substantial difference being that it was shown upon the later trial that the plaintiff and his copartner had before them upon the day that the bonds were purchased the proceedings of the common .council providing for the submission to the people of the city of the question of the raising of money for park purposes, and the payment some 17 days later of the last $500 of the purchase price, at which time they received a written guaranty of payment of said bonds from Chandler, the person who negotiated them. It is claimed by the defendant that these facts, together with others proved, which were the same as upon the former record, entitled defendant to have the question of plaintiff’s bona fides submitted to -the jury. The court was of that opinion, and instructed the jury that the plaintiff and his copartner did not rely solely upon the recitals of the bonds, for the reason that they relied in part upon the statements of Chandler and the letter of the prosecuting attorney, and that, if they should find that the plaintiffs did not rely solely upon the recitals of the bonds, the verdict should be for the defendant. The plaintiff’s counsel contends that this was error, and that, under the testimony, the court should have directed a verdict for the plaintiff.

We think that the court erred in instructing the jury that the plaintiffs were not bona fide purchasers if they did not rely solely upon the recitals in the bonds. It was equivalent to saying that any reliance on additional evidence of the validity of a bond would deprive the purchaser of the benefit of the recital. Such a rule would put a premium upon omission to inquire further. In this case the plaintiff and his copartner examined the confirmatory-evidence, viz., the letter and the proceedings of the council, and were thereby encouraged to part with $2,200 of their money for the bonds. Subsequently they took a guaranty of payment from Chandler, at which time they paid the remaining $500 of the purchase price. There is no evidence in the case which justifies the conclusion that the plaintiffs did not act upon the honest belief that the bonds were what they appeared to be, viz., park bonds. We have no means of knowing how they were led to take a guaranty. It may have been offered, or it may have been required; but the fact cannot be said to imply a notice or cause for distrust. See the case of Davis v. Seeley, 71 Mich. 220 (38 N. W. 901), and cases there cited.

The testimony in relation to the understanding of the aldermen in regard to the effect of the directions on the envelope in which the deposited bonds were contained was inadmissible. The effect of the deposit was settled in the former opinion.

It was immaterial whether or not Seeley had put his factory in operation before the bonds were delivered to him by Chandler.

Counsel for the plaintiff asks that we enter -judgment here for his client. We are unaware of a precedent for such practice upon reversal of a case not based upon findings or.a verdict. See the recent case of Central Sav. Banker. O’Connor, 132 Mich. 578 (94 N. W. 11).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    HALE v. KNAPP.

    1. Real-Estate Agents — Services and Expenses — Liability of Purchaser.
    A real-estate agent cannot recover from a prospective purchaser, in the absence of a contract to that effect, for his services and expenses in.showing the buyer property which he has been employed to sell by the owner.
    2. Same — Evidence—Illegal Charges — Instructions.
    Where a real-estate agent sued a prospective purchaser for services consisting of several items, one of which was for services and expenses in showing him the property, an instruction that such item was illegal, and that the jury might consider its character in determining whether the other items were legitimate, was not error.
    3. Trial — Instructions—Preponderance of Evidence — Harmless Error. t

    An instruction that plaintiff must have a clear preponderance of evidence, although improper, was not prejudicial, where the court said that that did not mean that he must produce the greater number of witnesses, but that the testimony of his witnesses must have the greater weight, and that, if the evidence was evenly balanced, the verdict must be for defendant, because plaintiff must establish his case by “a preponderance of the evidence.”
    Error to Benzie; Chittenden, J.
    Submitted October 12, 1903.
    (Docket No. 104.)
    Decided November 3, 1903.

      Assumpsit by Leo E. Hale against Myron A. Knapp for services rendered. From a judgment for plaintiff for less than the amount claimed, he brings error.
    Affirmed.
    Plaintiff was areal-estate agent in the village of Frankfort. The defendant was a manufacturer residing in Chicago. Plaintiff advertised two sawmills for sale. Defendant saw the advertisement, and opened a correspondence in regard to them. One was situated at Frankfort, the other at Mesick. At the request of plaintiff, defendant went with him to Mesick to see the property there, but refused to buy it. The citizens of Frankfort were anxious to get defendant’s manufactory located at that place. Plaintiff, with others, interested himself in the negotiations. Defendant fin all y located at Frankfort. Plaintiff then rendered ■a bill to defendant for $250 for services in procuring the location. The bill was not itemized. Defendant denied liability, except for some services which he had specially requested plaintiff to perform. Plaintiff, kept no memorandum of his services. Upon defendant’s refusal to recognize liability, plaintiff brought suit. The bill of particulars sets up 35 items, running from July 5th to November 22d, amounting to $503.87. The case was submitted to a jury, who rendered a verdict for the plaintiff for $39.15. Plaintiff alleges error.

      Louisell & Nevius, for appellant.

      D. G. F. Warner, for appellee.

       Rehearing denied March 15, 1904.

   Grant, J.

(after stating the facts). The principal assignments of error relate to the charge of the court. Counsel assert that the charge was “argumentative, contradictory, inconsistent, and unduly emphasized the theory of the defense.” We have carefully examined the charge, and do not consider it subject to this criticism. The issues were fairly submitted to the jury. Among the items was one for $25 for a day’s trip with defendant to Mesick to see the property of which plaintiff had the sale for other parties, and another item of expense in going and coming. The court instructed the jury to reject these items, and we think correctly. He instructed them that, these items being illegal and no claim against the defendant, they had a right to take them into consideration in determining whether the other items in the bill of particulars were legitimate or not. We do not think this was error, in view of the character of the claim for services in going with defendant to see the property at Mesick.

In one portion of his instruction the court said that the-plaintiff must have a clear preponderance of evidence. Standing by itself, this, as we have held, would be error but the court, near the close of his instructions, explained to the jury what he meant, in the following language:

“That does not mean that he must produce before you the greater number of witnesses, but that the testimony of the witnesses he does produce must carry greater weight with you — have more convincing force — than the other. In other words, if the testimony is, in your judgment, evenly balanced, your verdict must be for the defendant, because the plaintiff must establish his case by a preponderance of the evidence.”

Under this instruction we think there was no prejudicial erroir.

Counsel allege error upon some remarks of counsel for defendant in his argument to the jury. We are not prepared to say that they were not justified by the evidence.

Several questions are raised upon the admission and rejection of testimony. We find no error in them, and do not regard them of sufficient importance to the profession to merit discussion.

The judgment is affirmed.

The other Justices cbncurred.