author: McAlvay, J.

text:
    POLI v. JACOBS.
    1. Landlord and Tenant — Lease—Construction—Rent — Estoppel.
    Where landlord and tenant mutually agreed upon an extension of an existing lease, and it was stipulated by an addition to the instrument that in case the lessor’s tax assessment was increased at a date specified, the rent should be increased by three per cent, of the additional valuation, and it appeared that the lessor, being subjected to an increase in the assessed valuation, wrote to the tenant stating the amount to be paid in addition to the previous rental, and where he had received the same over a considerable interval, the landlord and his grantee were estopped to set up a mistake in the sum claimed which had been discovered by the lessor soon after sending the communication to the lessee without having made any objection or notification to the latter: the grantee of such landlord was not entitled to cancel the lease because he claimed the premises were being occupied for a different purpose than that authorized by the contract, his grantor .having accepted rentals for a long period of time with knowledge of the use to which the premises were being put.
    2. Same — Contracts—Taxation,
    And under the agreement that May 1st be fixed as the date when the rent should increase if a change in assessment occurred, the valuation for that year, not taking effect until May 5th, could not be considered in fixing the rental.
    Appeal from Wayne; Mandell, J.
    Submitted January 31, 1913.
    (Docket No. 41.)
    Decided October 1, 1913.
    Rehearing denied January 5, 1914.
    Bill by Louisa Poli against Abraham Jacobs and Julius Stroh for a decree of interpleader. Certain claimants intervened. From a decree for defendant Jacobs, said Stroh appeals.
    Affirmed.

      Alex. J. Groesbeck, for appellant Stroh.

      Lucking, Emmons & Helfman, for appellee Jacobs.
   McAlvay, J.

A bill of interpleader was filed by the principal complainant and others intervening, all being subtenants of portions of a certain building in the city of Detroit under leases from defendant Jacobs. The purpose of this litigation was to determine which of the defendants was entitled to the rentals due from said tenants. The court made an interlocutory decree ordering all tenants to pay rentals into court, and that defendants Jacobs and Stroh interplead and settle the dispute between them. Upon a hearing between the interpleaded defendants, a decree was entered in favor of Jacobs. Defendant Stroh has appealed. The material facts in the case are undisputed.

The premises in question are known as Nos. 232 and 234 Randolph street, Detroit. On June 1, 1904, John McKibbon, owner of these premises, executed duplicate leases of No. 232 Randolph street to the defendant Abraham Jacobs for a period of five years and two months, commencing March 1, 1905, for a monthly rental of $175. On June 10, 1904, he executed similar leases to defendant Jacobs of No. 234 Randolph street for the term of five years and six months, commencing November 1, 1904, at a monthly rental of $125. The terms of both leases were arranged to expire May 1, 1910. These leases did not limit the lessees’ right to assign or sublease. Defendant Jacobs entered into possession of these premises under said leases at the beginning of the terms and paid $300 per month rent for the full terms of the same.

During the year 1909, probably late in the year, defendant Jacobs asked McKibbon for an extension of the leases. He gave his consent and interlined the following words in each lease, “with the privilege of five years more,” which was not contained in the leases as originally drawn and executed by the parties. At or about the same time and in consideration of such extension, as McKibbon claims, there was indorsed on the back of his copies of said leases the following:

“The party of the second part also agrees that if on the 1st day of May, 1910, the assessment for taxes on the property has been increased from the rate assessed at the time this lease was dated, to pay 3 per cent, annually on the amount of such increase.”

It is' undisputed that these indorsements and interlineations were never signed by either of the parties, and Jacobs and McKibbon disagree as to the circumstances surrounding the 3 per cent, memorandum.

On April 26, 1910, McKibbon wrote Jacobs the following letter:

“Detroit, Mich., April 26, x910.
“Mr. Jacobs,
“Dear Sir:
“According to the terms of your lease of the premises 232 and 234 Randolph street with the renewal of the lease after five years an increase of 3 per cent, per annum it was agreed should be added to the rent of whatever difference should have been made in the assessment on the property between 1905 and 1910, the assessment for 1905 was $46,930, the assessment for 1909 was $57,580, an increase of say $10,000. Will you therefore, commencing May 1st, make the monthly checks $325 instead of $300 according to agreement, and oblige.
“Yours truly,
“John McKibbon.”

Accepting the terms of this letter, Jacobs sent his monthly check for $325, beginning May 1, 1910, and continued the monthly payment of such amount to him by check until January 1, 1911. All of which checks were received and accepted by McKibbon.

On February 1st Jacobs sent a check of like amount for that month and on that date received a letter from McKibbon informing him that he had sold the property to defendant Stroh and had forwarded this check to Stroh. Afterwards Stroh telephoned Jacobs in regard to the matter and met him at his office, where he claimed $49 per month additional rental,' making a total of $374 per month. This amount was fixed by Stroh by subtracting the 1904 assessment of $42,270 from the 1910 assessment of $71,700 and computing 3 per cent, thereon. He also claimed 3 per cent, on any subsequent increase of assessment, all of which claims Stroh reduced to writing, by letter sent to Jacobs on the following day:

“Detroit, Feb. 9, 1911.
“Mr. A. Jacobs,
“120 Jefferson Ave.,
“Detroit.
“Dear Sir:
“Referring to my talk with you yesterday in relation to the rent payable for the stores on Randolph street, known as Nos. 232 and 234, I find that under the leases to you executed on the 6th and 10th of June, 1904, respectively, the rent will amount to $300 per month, together with 3 per cent, on the additional assessment from 1904 that was put on this property, which increase now amounts to $29,700. The total rent therefore payable to me under the leases will amount to $374 per month, until a further change should be made in the assessment, and until the present leases expire.
“I would therefore thank you for an additional check for $49, to cover the rent for February, inasmuch as your check to Mr. McKibbon, and mailed to me by him amounts to only $325.
“Hoping you will comply with the above, I am, “Yours respectfully,
“Julius Stroh.”

A dispute arose between the parties over these matters, which was not adjusted. Stroh threatened to cancel the leases and Jacobs under protest in writing paid the extra amount demanded for four months. He then brought suit in justice’s court to recover such sums as paid under duress. He failed to recover in this suit and afterwards tendered Stroh $325 each month ahd refused to' pay more. Defendant Stroh then attempted to cancel the lease and notified the tenants to pay no more rents to Jacobs. Stroh gave complainant Poli notice to quit and similar notice was given by Jacobs to another tenant. Proceedings were instituted by each of these defendants before a circuit court commissioner to oust these tenants. The bill of interpleader was filed because of these complications.

The dispute between the parties is narrowed to the question of the construction of the agreement entered into between McKibbon and Jacobs at or about the time of the extension of the leases relative to the increase in the amount of the rent to be paid by defendant Jacobs.

It is claimed by appellant Stroh that, the premises having been occupied for purposes other than those named in the leases, there was a forfeiture of the leases. Such contention cannot be sustained for the reason that from the beginning it was well known to the owner, McKibbon, that these tenants were not occupying for the purposes named in the leases, and for all the years after until the sale of the property to defendant Stroh he received and accepted the rent from month to month without any objection that the premises were occupied for purposes other than those named in the leases. The indorsements upon the leases by McKibbon for the increase of the rent were acquiesced in by defendant Jacobs, and it may be said that there is no dispute but that in consideration of the extension of the leases for a term of five years this agreement was entered into. It was written by McKibbon at that time. Not long after, and before the change ,in rentals was to take effect, he 'Wrote the letter of April 26th, which was received by defendant Jacobs and acted upon by the payment of the amount demanded monthly from that date until February 1, 1911. This letter is the construction of this agreement for an increased rental which McKibbon gave in writing to Jacobs. It is claimed by appellant that in writing this letter McKibbon was laboring under a mistake, and that he intended to give the increase of the assessment on this property for the year 1910. The agreement reads:

“The party of the second part also agrees that if on the 1st day of May, 1910, the assessment for taxes on the property has been increased from the rate assessed at the time this lease was dated, to pay 3 per cent, annually on the amount of such increase.”

McKibbon says that he discovered in July following that he had not used the 1910 assessment in estimating the increased rental. He did use and had before him at the time his tax receipt for 1909 showing the assessment for that year. When he discovered this fact he said nothing to Mr. Jacobs, and he made no claim to him that the rentals were not increased exactly in accord with the agreement between the parties and continued to accept from him $325 on the 1st of each month thereafter until the 1st of February, 1911, which last check he turned over to his grantee, defendant Stroh. McKibbon gave this paragraph a construction which has been accepted and acquiesced in by Jacobs. Furthermore, McKibbon, after knowledge came to him of all the facts in regard to the assessment for 1910, raised no question whatever about the accuracy of the letter of April 26th but received rent from his tenant as demanded until February 1, 1911, and he never made any claim to Jacobs that an increase in rent had not been made according to the terms of the agreement. He and his grantee are estopped from questioning such construction.

The construction given by the parties is the true legal construction t& be given to this paragraph. There is no ambiguity in this writing. May 1, 1910, was fixed in it as the date to which increased assessments could be considered. The assessment for the year 1909 next preceding was the last assessment made before that date. The assessment for 1910 was not legally in effect until May 5th of that year. Rothschild v. Begole, 105 Mich. 388 (63 N. W. 309), and cases cited.

The decree of the circuit court is affirmed, with costs of this court to defendant Jacobs.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ANDREWS v. AUER.
    1. Intoxicating Liquors — Citizenship op Saloonkeeper — Injunction Against Saloon — Evidence.
    On testimony showing that defendant had admitted he was not a citizen of this country, that he had applied for second naturalization papers, but had been unable to secure them in time to aid his application for license as retail liquor dealer, and that he had made application therefor under oath, stating that he was a citizen of the United States, it is found, on appeal, that he was not naturalized and had committed fraud in his application.

      2. Equity — Injunction — Jurisdiction — Fraud — Intoxicating Liquors.
    While equity has no jurisdiction to restrain the commission of a crime, a bill in the nature of an information, filed by the prosecuting attorney on relation of certain taxpayers, .to restrain am alien from engaging in the business of selling intoxicating liquors at retail is within the equitable jurisdiction of the court: licenses, etc., procured by fraud from State officials or boards are subject to cancellation in equity.
    3. Same — Parties—Prosecuting Attorney.
    The public prosecutor, authorized by the attorney general to commence suit, was a proper moving party.
    Appeal from Berrien; Bridgman, J.
    Submitted January 7, 1913.
    (Docket No. 19.)
    Decided October 1, 1913.
    Bill in the nature of an information by William H. Andrews, prosecuting attorney of Berrien county, on the relation of Judson Webber and another against Rupert Auer for the revocation of a liquor license. From a decree for defendant, complainant appeals.
    Reversed.

      Roger 1. Wykes, Attorney General, and Coolidge, Riford & White, for complainant.

      Burns & Hillman, O’Hara & O’Hara, and Tormey & Skinner, for defendant.

       On the question of discrimination against aliens, by statute or municipal ordinance imposing license or occupation tax, see note in 40 L. R. A. (N. S.) 281.

   Stone, J.

This cause was commenced by an information in the natur.e of a bill in equity filed by the prosecuting attorney of Berrien county, on the relation of certain property owners of the city of Niles in that county, praying for an injunction to restrain the defendant from continuing the retail liquor business in the city of Niles, and that his license be canceled and surrendered.

It appears that the defendant made the usual application under oath for a license to engage in the retail liquor business at 119 Main street, Niles, on March. 12, 1912, in which application it was expressly stated that defendant was at the time a citizen of the United States, and of the State of Michigan, and that his residence was at the number and street above stated. A license was issued to defendant by the county treasurer for the year beginning May 1, 1912, and defendant accordingly engaged in the retail liquor business at the place named in the application, where he so continues to conduct the business.

The bill of complaint was filed on June 10, 1912, stating, among other things, that the defendant was not a citizen of the United States but was born in Germany and was and is a subject of the Emperor of Germany, and that he had never been naturalized as a citizen of the United States. The bill prayed for relief as follows:

(A) That the approval of the application of defendant to engage in the retail liquor business be by the court declared null and void.

(B) That the license issued upon said application be decreed illegal, unauthorized, and void, and that such license be canceled by the order and decree of the court.

(C) That the defendant be restrained and enjoined, by an order and decree of the court, from further carrying on or engaging in such business.

The defendant answered without oath, denying the allegation of the bill that he was not a citizen of the United States.

The cause being at issue, it was heard upon testimony taken in open court, and it appeared that the defendant had taken out his first naturalization paper at Ft. Wayne, Ind.; that in February, 1912, he went to St. Joseph, the county seat, for the purpose of taking out his second naturalization paper and was informed by the county clerk that there must be a publication, and that he would not be able to get his second paper or become naturalized as a citizen of the United States until September, 1912. Upon learning that he could not be naturalized until September, 1912, toó late to afford him any relief as to his proposed liquor license in April, 1912, defendant made no further effort to become naturalized, but on March 12, 1912, made his application, stating under oath that he was a citizen of the United States. It further appeared that defendant had admitted on different occasions that he had never obtained his final naturalization paper. The trial court refused to grant the injunption, denied the relief prayed for, and dismissed the bill of complaint. The complainant has appealed.

Upon the hearing it appeared that authority was obtained by the prosecuting attorney from the attorney general to file the bill of complaint herein.

In the absence of evidence of the defendant, we think the evidence warrants the conclusion that defendant was not a citizen of the United States. It seems to have been the opinion of the learned circuit judge that, there being no evidence that the saloon kept by the defendant was a nuisance as matter of fact, and that it was not a nuisance per se,-a court of equity is without power to grant relief in such a case, and that the complainant should be relegated to the criminal law for his remedy.

The complainant urges that it is clearly established that the license to the defendant was obtained through and by his fraudulent and false representation of citizenship; and that under such circumstances a court of equity has the power to and should cancel the license and order its surrender, although the offense might be punished criminally under the provisions of the statute (section 36, Act No. 291, Pub. Acts 1909). In support of this position our attention is called to the case of State v. Zachritz, 166 Mo. 307 (65 S. W. 999, 89 Am. St. Rep. 711). That case holds that, although equity has no jurisdiction to restrain the commission of a crime, yet it has jurisdiction to enjoin a jockey club from exercising a privilege under a license fraudulently obtained, until such license may be canceled, although the statute makes the exercise of such a privilege, without a license, a misdemeanor. A footnote to the case as reported in the American State Reports above cited is as follows:

“An injunction will not issue to restrain a crime or a criminal prosecution. However, the fact that the acts complained of constitute a violation of the criminal law does not prevent their being enjoined” —citing Paulk v. Mayor, 104 Ga. 24 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. Rep. 128); Klein v. Livingston Club, 177 Pa. 224 (35 Atl. 606, 34 L. R. A. 94, 55 Am. St. Rep. 717); Vegelahn v. Guntner, 167 Mass. 92 (44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443); Columbian Athletic Club v. State, 143 Ind. 98 (40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407); Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212 (32 S. W. 1106, 52 Am. St. Rep. 622); monographic note to Crighton v. Dahmer, 35 Am. St. Rep. 670-681.

The authority of courts of equity to cancel certificates and other instruments executed by government officials or boards, and obtained by fraud, or obtained illegally, is well established. Vanderbilt v. Mitchell, 72 N. J. Eq. 910 (67 Atl. 97, 14 L. R. A. [N. S.] 304).

The Supreme Court of the United States has repeatedly held that bills in equity will lie to cancel patents obtained from the government by fraud of the patentee. Johnson v. Towsley, 13 Wall. (U. S.) 72, and cases there cited.

In the instant case an active fraud is charged and proved. We may well lose sight of the fact that the defendant might be prosecuted criminally, for we have frequently held that the jurisdiction' of a court of equity is concurrent with that of the law courts in cases of fraud. That is especially true where the courts of equity may grant more complete relief, where an instrument is fraudulently obtained, by compelling cancellation or surrender and by rendering equitable relief. The rule is now well established in this State that equity has jurisdiction in all cases of fraud, where complainant is entitled to relief specifically equitable, and such jurisdiction does not, in all cases, depend upon an absence of legal remedy. Where one has obtained an instrument by fraud, equity has jurisdiction to cancel it, irrespective of the legal redress that the injured party may obtain in an action at law, either as plaintiff or defendant. The following cases support this doctrine: John Hancock, etc., Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086); Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Noble v. Grandin, 125 Mich. 383 (84 N. W. 465); Edwards v. Investment Co., 132 Mich. 1 (92 N. W. 491); Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036); Hamilton v. Hulled Bean Co., 143 Mich. 277 (106 N. W. 731); Roberts v. Sholes, 144 Mich. 215 (107 N. W. 904); Fidelity Mutual Life Ins. Co. v. Blain, 144 Mich. 218 (107 N. W. 877); Beaton v. Inland Township, 149 Mich. 558 (113 N. W. 361); Culver v. Avery, 161 Mich. 322 (126 N. W. 439); Gragg v. Maynard, 164 Mich. 535 (129 N. W. 723). So without reference to the question whether a criminal prosecution or other action at law would lie, we are of opinion that the relief asked for here is peculiarly within the jurisdiction of a court of equity.

We think that the right of the prosecuting attorney to file this information upon the authority of the attorney general is recognized in Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744); State v. Zachritz, supra.

A proper disposition of this case does not render it necessary for us to decide whether, in this State, a place where intoxicating liquors are sold contrary to law is a public nuisance per se or not. We are of the opinion that the complainant is entitled to the relief prayed for in his bill of complaint, and a decree may be entered in this court accordingly.

The decree of the circuit court is reversed, with costs of both courts to the complainant.

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

       2 How. Stat. (2d Ed.) §5090.


text:
    KIMBLE v. GILLARD.
    1. Fraud — Evidence—Variance—Reliance on Representations.
    In an action for fraud and deceit, plaintiff’s admission, under oath, that the inducement which led him to make the contract in question was the fact that another person invested his money in the deal at the same time, and nothing else led him to consummate the purchase, constituted a fatal variance from the declaration, which set up the- fact that plaintiff believed and relied on the representations of defendant.
    2. Same — Representations—Elements of Action.
    Fraudulent representations are only actionable if plaintiff relied on them: all material allegations of the declaration must be proved substantially as alleged.
    3. Same — Conspiracy to Defraud — Joint Parties — Evidence.
    Statements made by one of two joint defendants, not in the other’s presence, are inadmissible to show fraud as to the absent party, unless there is evidence of a conspiracy to defraud. Evidence considered, and held, insufficient to establish a conspiracy.

      4. Same — Conspiracy to Defraud — Evidence—Admissions.
    And where the cause was tried against one of two joint defendants who had been served and had appeared,, the other defendant, who had not joined issue and filed a plea in abatement that was undetermined at the time of trial, could not bind the codefendant by his admissions or statements.
    5. Evidence — Conspiracy.
    Declarations of a co-conspirator are competent as to a party to the conspiracy, but are not admissible until the conspiracy has been shown by other testimony.
    6. Same — Compromise—Admissions.
    Alleged admissions made during negotiations for compromise are privileged and should be excluded.
    7. Contracts — Rescission-—Tender—Insufficiency.
    Plaintiff, who claimed to have rescinded his purchase of a moving picture theatre for fraud, failed to establish a sufficient tender, upon a record showing that he operated the theatre for a week, closed and locked it and abandoned the property without taking any steps to preserve it, later making a tender of the keys to defendant in another town, having no knowledge where the property was or what had been done with it.
    8. Same — Keeping Tender Good — Rescission.
    In order to make a valid tender rescinding a contract of purchase it is essential to keep the tender good and to be in position at the trial to re-deliver the property.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted April 8, 1913.
    (Docket No. 1.)
    Decided October 1, 1913.
    Case by William M. Kimble against Joseph R. Gillard and George W. Weeks for fraudulent representations. Judgment for plaintiff. Defendant Gil-lard brings error.
    Reversed.

      Smedley, Hall & Gillard, for appellant.

      Cleland & Heald, for appellee.
   McAlvay, J.

A judgment was recovered by plaintiff in an action for damages for fraud against defendant and appellant and his codefendant, George W. Weeks. The action arises out of a safe of a vaudette located in Ann Arbor, Mich. It was commenced by declaration in the circuit court for Kent county November 5, 1910. Service was had on appellant November 9, 1910. On March 81, 1911, the declaration was served upon defendant Weeks at Detroit. The trial was commenced April 12, 1911, before the time for the appearance of defendant Weeks had expired. No appearance had been entered by him at the time of trial, and he was not produced as a witness. On April 13, 1911, a judgment was rendered against both of the defendants for $750. On April 14, 1911, Weeks appeared in the case and filed a plea in abatement, a demurrer to which was sustained. Later he filed a second plea in abatement, coupled with a plea of the general issue, under the statute. Plaintiff demurred to this plea, which demurrer has not yet been determined.

The. facts in the case necessary to understand the somewhat complicated issues are as follows: Defendant and appellant started this vaudette, or moving picture show, in Ann Arbor in 1907 and continued until June, 1908, at which time James H. Gil-lard, his brother, came there to attend the university and purchased the property from him. Appellant then went to Marquette to practice law until December, 1909, when he removed to Grand Rapids and later became a member of the law firm of Smedley, Hall & Gillard. In March, 1910, James H. Gillard sold the property to a man named Gillman under a contract and moved to California. He gave appellant a power of attorney to care for his interest in the property with full power to sell. Later in the same year, this defendant being at St. Joseph, Mich., on business, he met the defendant Weeks, who at the time was a traveling salesman for the National Film Company, with whom he was slightly acquainted and who knew of the Ann Arbor property. He was informed by appellant of the sale to Gillman and his default in payments. After some conversation as to the price and terms, he testifies that he told Weeks he could purchase it for $750; that Weeks indicated he might take another person into the deal with him. He next heard from Weeks by long distance telephone, who, having been informed that he was still ready to sell, stated that he had found a man ready to go in with him and pay $750, as appellant understood it; that appellant told him to bring the man over and he would make the deal. Gillárd then went to Ann Arbor to investigate the. condition of the property. Gillman had paid nothing' after the first payment and he could get no money from him or any satisfaction, and he informed Gillman he intended to sell.

Two or three days after this trip, and on October 19, 1910, Weeks came to Grand Rapids with plaintiff for the purpose of purchasing the property. He telephoned this fact from the depot and asked the location of his office. Appellant told him and met them as they left the street car. Some negotiations were had at appellant’s office during which he claims plaintiff was told by him that he could give possession within two weeks; that he expected to have trouble with Gillman, perhaps a lawsuit, but he would defend it without cost to him. Terms were agreed upon, and appellant, as attorney in fact for his brother, sold and transferred the property in question for the sum of $750 to the plaintiff by written bill of sale and drew an agreement between Weeks and plaintiff at their request that Weeks could acquire a half interest in the business later on certain terms. He also drew a promissory note for $200 from plaintiff to Weeks.

Plaintiff’s version of this transaction is as follows: That he was at Cadillac about the 18th of October, 1910, having sold his vaudette at Reed City, which he had operated for two years; he was out of business; that he met defendant Weeks, with whom he had an acquaintance because of his business, which was selling films to picture shows, and asked him if he knew of a moving picture show for sale; that Weeks told him of the Ann Arbor property, with which he said he was well acquainted; that it was a good paying business which could be bought from Mr. Gillard of Grand Rapids for $950; that he would put $200 into it and assured plaintiff it was all right; that he would at once go to Mt. Pleasant, telephone Gillard at Grand Rapids, and let plaintiff know about 6 o’clock; that at 3 o’clock Weeks telephoned him, saying: “I have purchased $200 on that place. I want you to meet me there (Grand Rapids) at 4 o’clock” — and further said he had wired the $200, and that if plaintiff did not take the property he would lose the $200; that by appointment plaintiff went to Grand Rapids October 19th and met Weeks at the depot, went to a hotel near by, and heard Weeks telephone to somebody and was allowed to state what he heard; that they then went to Gillard’s office, where the papers were at once drawn by appellant. He claims that he said he did not like to take the place without seeing it; that both defendants said it was all right, and he said he would take it; that appellant said something about the amount of business it had done during some weeks previous, to which he paid no attention. He does not recollect that appellant said anything about transferring a good title, but there was talk about giving him possession. He says that he signed a note to Weeks for $200, but he did not know what was in the contract he signed with Weeks, who took it away. He did not get a copy of it there but later at Ann Arbor got from Weeks what he said was a copy. He paid $750 to appellant at Grand Rapids when the bill of sale was made out and went to Ann Arbor October 24th following, where he met appellant, who gave him possession as he agreed; that he ran the business one week, until the 29th, when he locked the door of the vaudette with this property in it and left it there; that(he made no provision for taking care of it, never saw it again, and did not know where it was at the time of the trial. . The only tender that he made to appellant was on November 3, 1910, when he offered him the keys at Grand Rapids, which he refused to accept.

The principal errors assigned and relied upon by defendant and appellant will be considered. The first relates to the question of claimed variance between the averments of the declaration and the proofs. At the close of plaintiffs case this appellant moved for a directed verdict in his favor for the reason, among others, that there was a fatal variance between the declaration and the proofs. The motion was argued and denied.

The principal allegations in his declaration relied upon by plaintiff are:

First, that the defendant falsely represented he had a right to sell the property as attorney in fact for his brother and such sale was in violation of Gillman’s rights; second, that defendant falsely stated to plaintiff the amount of the receipts of the business during three weeks preceding the sale; third, that defendant falsely stated that the property was paid for; fourth, that defendant told plaintiff that Weeks had paid him $200 on the purchase price, which he. would forfeit unless Kimble paid the $750; fifth, that defendant met Weeks at St. Joseph and entered into a secret arrangement with him whereby Weeks was to induce plaintiff to buy this property, for which defendant was to allow Weeks for such service all of the purchase price over $750.

The declaration avers that all of these representations were believed and relied upon by plaintiff, and that he would not have purchased the property if they had not been made. The first and third allegations were taken from the jury by the court on the ground that there was no proof to sustain them.

After the motion referred to was made, an amendment to the declaration was allowed to cover one of its objections, that the declaration was fatally defective if a rescission of the contract was claimed, in that it showed no tender of the property to defendant. Plaintiff was then recalled and upon examination by his own counsel, after testifying as to the claimed tender, gave the following testimony:

“Q. What was it, Mr. Kimble, that induced you to enter into this contract to purchase?
“A. Mr. Weeks.
“Q. What about Weeks?
“A. I thought if he was willing to put his money into it, I was mine.
“Q. Was there anything else that led you to do it?
“A. Nothing, only that.”

As far as the representations of appellant to plaintiff, relied upon in the declaration, whereby plaintiff claimed to have been defrauded, are concerned, the foregoing quotation from his testimony fatally varies from the declaration, and the court was in error in not so holding.

It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation. Parker v. Armstrong, 55 Mich. 176 (20 N. W. 892); 20 Cyc. pp. 108, 109, and cases cited.

All the material allegations relied upon in an action for damages for false representations must be proved substantially as alleged. The motion of defendant for a directed verdict should have been granted upon this ground.

Appellant contends that there is no evidence of a conspiracy in the record, properly admitted, which tends to support the fifth allegation, which relates to the conspiracy between appellant and Weeks entered into at St. Joseph. Our examination of the testimony received in evidence statisfies us that such contention is correct. Plaintiff relies upon the testimony of himself and his brother-in-law, Shoenhals, as evidence to show a conspiracy on the part of appellant. This testimony relates,to conversations had with Mr. Weeks at Cadillac in the absence of appellant relative to the property in question and that it could be bought for $950. At the time this testimony was admitted, objection was made, and the court ruled that it was not relevant or material unless a conspiracy between appellant and Weeks was shown.

Another item of evidence relied upon to support this contention was testified to by plaintiff to the effect that Weeks had told him he put $200 into this purchase, and if plaintiff did not buy it at $750 he would lose his $200. This was part of a conversation between plaintiff and Weeks in the absence of appellant. This testimony was not admissible. The case was not at issue as to Weeks. His statements made in the absence of appellant could not bind him. The objection of the appellant should have been sustained to this testimony and it should have been excluded.

It was also not admissible for the further reason that it purported to be the admissions of a co-conspirator and no conspiracy had been shown. Solomon v. Kirkwood, 55 Mich. 256, 261 (21 N. W. 336, 338), in which Judge Cooley said:

“The declarations of a conspirator may be evidence against his associates after the conspiracy is made out; but to receive them as proof of the conspiracy would put every man at the mercy of rogues. We find in this case no evidence of the conspiracy except in the statements of Hollander; and, those having been erroneously received, there was_ nothing on that branch of the case to submit to the jury.”

See 6 Am. & Eng. Enc. Law (2d Ed.), p. 868.

Plaintiff was allowed to testify also, over objection, that he heard Weeks at Grand Rapids over the telephone state something about $200, and afterwards when they arrived at the office of appellant he heard Weeks say to him, “Did you get that?” and appellant’s reply that “he did.”

The court on rebuttal also admitted, over objection of appellant, the testimony of one of plaintiff's attorneys detailing a conversation had between him and appellant before suit was commenced, claimed to be an admission tending to , show this conspiracy. The objection made was that it was not rebuttal and that it was a conversation prior to bringing suit, had for the purpose of a compromise. The court sustained the first objection, whereupon plaintiff recalled appellant to lay the foundation for the testimony. He denied that he made the statement claimed and testified that whatever was said was expressly with reference to a compromise between the parties. This was not denied by the witness when upon the stand. The court refused to strike out the testimony. For the reason stated, it was inadmissible and should have been stricken out.

The testimony relied upon by plaintiff to show admissions, if taken as true, would not sustain the contention that a conspiracy was entered into by him to defraud plaintiff. No testimony was introduced in the case supporting the fourth averment of the declaration that appellant told plaintiff that Weeks had paid him $200 down on the purchase, which Weeks would forfeit if plaintiff did not pay $750. It therefore requires no consideration.

In a second motion, as well as in a third, made by appellant for a directed verdict, was included the reason that there' was no showing made by plaintiff that he was at any time in a position to return the property to appellant. These motions were both denied. The record shows that plaintiff went to Ann Arbor and was given possession of this property by appellant on or about the 24th day of October; that he kept it and conducted the business until the 29th, when he locked it up and left it. He testifies:

“I did not take any steps to preserve this property. I just abandoned it, just locked it up, and let it go; that is all.”

He has never seen it since and did not know where it was at the time of the trial.

The tender claimed to have been made, as testified to by plaintiff, was not in law a tender of this property. It had at that time been abandoned by him, and there is no showing made that he was then in a position to deliver it to appellant. At the time of the trial he was not in a position to make the tender good, and his testimony shows he did not keep it good or have any possession of it after he abandoned it. A party who seeks to .rescind a contract is required to make a tender and keep such tender good and must show at the trial that he is able to deliver the property to thé defendant. Ortmann v. Fletcher, 117 Mich. 501, 504 (76 N. W. 63); Potter v. Taggart, 54 Wis. 395 (11 N. W. 678); Jewett v. Petit, 4 Mich. 508. The motion to direct a verdict for this reason should have been granted.

Other errors are assigned upon the admission and rejection of evidence, the charge of the court, and refusals to charge as requested by appellant, which do not require consideration.

For the errors pointed out in this opinion the judgment of the superior court against appellant is reversed, and a new trial granted.

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


author: Kuhn, J. Ostrander, J.

text:
    COKE v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Master and Servant — Contributory Negligence or Brakeman — Violation of Rule Against Coupling on Defective Cars.
    Violating a rule of defendant railroad company, plaintiff, a brakeman, having notice that a freight car carried a defective automatic coupling, attempted to open the coupling by hand so as to make up the car as part of his train, although, under the provisions of defendant’s rule, It should have been put out of the train; in an action -tor personal injuries a verdict for defendant by direction of the trial judge is sustained on the ground that plaintiff was guilty of contributory negligence. Ostrander and Moore, JJ., concurred on the ground that defendant’s negligence, relied upon, was not the proximate cause of plaintiff’s injury.

    Error to Ogemaw; Sharpe, J.
    Submitted April 9, 1913.
    (Docket No. 14.)
    Decided October 1, 1913.
    Case by Russell E. Coke against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Abbott & Abbott, for appellant.

      George M. Humphrey (Cooley & Hewitt, and Humphrey & Grant, of counsel), for appellee.

       The Question of a servant’s disobedience to rules regulating the work of coupling cars is treated in a note in 43 L. R. A. 364.

   Kuhn, J.

This action was brought by the plaintiff against the defendant to recover damages for injuries received on January 22, 1909, while in the employ of the defendant as a freight and yard brakeman.

On the night of the accident, while in the yards at Grayling, Mich., the plaintiff was ordered to couple onto about 30 cars standing off the main line of the defendant company, and proceed with them to Bay City. However, as a passenger train was about due, the plaintiff received orders to proceed to the depot, and there received orders to back into the clear of what was known as “engine lead,” in order to let the passenger train pass. The order to back into the “engine lead” also involved another order to pick up 10 cars of merchandise that were located on a sidetrack, No. 1. Upon attempting to back into “engine lead,” it was discovered that the train was too long for the lead, and plaintiff was ordered to cut off the engine and head car and proceed with the same to sidetrack No. 1, where the 10 cars of merchandise were to be picked up. In order to comply with this order, the plaintiff undertook to uncouple between the first and second , cars in the train by the use of the uncoupling devices with which the cars were equipped. He was on the left side of the train, and tried.to pull the pin to make the uncoupling by using the lever at the head of the second car. This lever runs out on the end of the cars to the outside, so that the brakeman would not have to go between the cars to open the coupler. He tried it several times and jerked and pulled, and also signaled the engineer to start and back his train a number of times; but the uncoupling device would not work, and he then climbed over one of the cars to the opposite side of the train and made use of the lever on the head car, which worked and resulted in uncoupling the cars. Plaintiff then signaled the crew of the engine to go ahead in the direction of sidetrack No. 1, and, as soon as the engine and car passed out of view, stepped in between the tracks at the end of the car, and stood looking at the drawhead with his lantern on the wrist of his left hand. He placed his left hand on the knuckle, and took hold of the pin in an effort to see if the pin could be released, and while thus engaged, through some misunderstanding of signals, the engine and car backed into and against the car which the plaintiff was examining, and plaintiff’s left hand was caught between the drawheads of the two cars and severely injured. The accident occurred about 12:15 o’clock at night, and it was very dark and rainy.

Plaintiff's declaration counts upon a violation of Act No. 234 of the Public Acts of 1907 (3 How. Stat. [2d Ed.] §6729 to 6731), which made it unlawful for the defendant to use on its lines within this State any car not equipped with couplers which could be coupled automatically by impact, and which could be uncoupled without the necessity of men going in between the ends of the cars. At the close of the plaintiff’s case, the court directed a verdict for the defendant, and the question that now presents itself is whether, under all the evidence, the case should have been submitted to the jury.

The only evidence before the court was that given by the plaintiff himself. It was urged in the court below, and is also here, that the undisputed proofs conclusively show that plaintiff himself was guilty of negligence which contributed to his injuries. It was shown that one of the rules of the company, known as No. 629, provided as follows:

“Inasmuch as the couplers of cars or engines cannot be uniform in style, size, or strength, and are liable to be broken, and dangerous to those engaged in coupling them, all employees are enjoined, before coupling cars or engines, to examine and know the kind and condition of the drawhead, drawbar, bumper, link, and coupling apparatus, and are prohibited from placing in the trains any car with a defective coupling, until they have first reported its defective condition to and receive instructions from the yardmaster or conductor. Sufficient time is allowed and may be taken by employees in all cases to make the examination required.”

It appears by a writing signed by the plaintiff that he was furnished with a copy of the printed rules and regulations of the company, and that he had read rule 629, and had agreed to make himself familiar with it and govern himself by it.

It is claimed that plaintiff was, at the time of the accident, endeavoring to do his duty under the existing conditions, and that his first duty under this rule was to make an inspection of the defective coupler, and if he found it to be in improper condition, then to make the report as required by the rule. It appears that at the time of the accident the conductor of the train was at the depot, and the yardmaster in close proximity, as he was the first person to come to plaintiff’s assistance after the accident. It is urged on the part of the defendant that the record does not warrant the claim made by plaintiff, and that as a matter of fact the plaintiff, knowing that the coupler was defective, went into the place of danger to attempt to make it possible to make a coupling with the defective car in order that it could be hauled to Bay City, and had no intention of notifying either the. conductor or yardmaster, and was admittedly violating the rule. The testimony of the plaintiff with reference thereto was as follows:

On direct examination:
“I then gave the engineer the signal to go ahead. I stepped in after that, and the engineer went ahead. Then he went out of sight; he wouldn’t have gone over 20 feet to go out of sight that night. It was very dark, rainy, foggy night. I then commenced to see if I could get this coupler open on the head end of the second car, so that when I went to couple on again I would have a coupler ready to couple onto, so I wouldn’t hav.e to stop and open the knuckle.”
On cross-examination:
“After I had uncoupled, I gave the signal for the engine to go ahead, and they went out of sight. I had a lantern with me. After I gave the signal, and they started, I waited for them to pull away out of sight, which was about 20 feet, before I went in. I didn’t hear the engine when it stopped.
“Q. Didn’t pay any attention to that?
“A. No, sir.
“Q. Then you went right in front of this coupler, did you?
“A. Not direct in front; no, beside it.
“Q. I think you said you turned your back toward the engine?
“A. I did.
“Q. Well, if you turned your back toward the way the engine went, you were fronting the coupler, weren’t you?
“A. I was fronting toward the car, but not direct in front of the coupler. I was alongside of the coupler. I was about even with the end of the coupler.
“Q. Now describe what you did with your hands, what you did?
“A. I placed my left hand on top of the knuckle, took hold of the top of the pin, and tried to work it up, at the same time pushing up with my left hand. I tried to pull up the pin.
“Q. Well, when you tried to do that, was. that when you discovered that the coupler had something wrong with it?
“A. No, sir; I discovered that when I tried to uncouple from the other side. I discovered that the lever would work, but that the pin would not. The lever would work to a certain extent so far as the pm would allow it to go. I couldn’t draw the pin with the lever. When I tried to work the pin up with my hand, I discovered that it was jammed and pounded up.
“Q. Well, didn’t it suggest itself to you that that was an improper car to be hauled by the company?
“A. Yes, sir; it did.
“Q. You thought that the coupler was so defective that the car ought to be put out of the train?
“A. Yes, sir.
“Q. Did you tell anybody to put it out?
“A. No, sir; there wasn’t anybody there to tell.
“Q. Why, I thought you said that Yardmaster Richardson was right there and helped you over to the depot after your injury?
“A. He came just at that time that I got hurt. He wasn’t there at the time I was working on this knuckle.
“Q. Well, you know that he was round there?
“A. Well, I don’t know just where he was, no. I had seen him before, and I' knew that there was a yardmaster on duty there some place in the yard.
“Q. Why didn’t you report it to the conductor?
“A. My conductor was in the depot getting orders.
“Q. Certainly, why didn’t you go over and tell him there was a defective car there unfit to be hauled?
“A. Well, I was going to try first, and see if I couldn’t get it open.
“Q. But you had determined in your own mind that it was not a fit car to be hauled, hadn’t you?
“A. I had in a way, yes.
“Q. Why didn’t you go and tell the conductor so?
“A. Well, I hadn’t thought of it yet.
“Q. Hadn’t thought of it?
“A. No, not yet, I hadn’t.
“Q. What were you adjusting the knuckle for?
“A. To get it open, and have it open and ready to couple on when I come back to it.
“Q. Then you were going to couple those cars onto it?
“A. Yes, sir.
“Q. To the end of that defective car?
“A. Yes, sir.
“Q. What for, to haul it to Bay City?
“A. Yes, sir.
“Q. Why didn’t you tell the conductor?
“A. Well, I hadn’t thought of it yet.
“Q. You intended to leave it in the train and haul it to Bay City without calling anybody’s attention to it?
“A. I was intending to speák to my conductor when I got a chance.
“Q. Well, then, when the engine and other car had left it, why didn’t you report it and uncouple it to be taken out?
“A. I hadn’t thought of that yet.”

It seems to us that the irresistible conclusion from this evidence is that the defendant’s contention is the correct one. At no time does he state that his pur-, pose in going in between the tracks was to make the examination required by the rule, but does positively say that his purpose was to get the knuckle open, “and have it open and ready to couple on when I come back to it,” although he admitted that he knew at the time that the coupler was so défective that the car ought to be put out of the train. Under the repeated rulings of this court, such conduct on the part of the plaintiff has been held to be such contributory negligence as to bar recovery. Lyon v. Railroad Co., 31 Mich. 429; Gardner v. Railroad Co., 58 Mich. 584 (26 N. W. 301); Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358); Wilson v. Railroad Co., 94 Mich. 20 (53 N. W. 797); Lendberg v. Mining Co., 97 Mich. 443 (56 N. W. 846); Loranger v. Railway Co., 104 Mich. 80 (62 N. W. 137); Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323); Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23); Moyer v. Railroad Co., 159 Mich. 645 (124 N. W. 542); Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993).

This conduct was also in violation of a penal statute of this State (section 6286, 2 Comp. Laws [3 How. Stat. (2d Ed.) § 6640] :

“It shall be the duty of every railroad corporation in this State to furnish to each of its employees of every grade a printed or written copy of its rules and regulations relative to their respective duties, and any conductor, engineer, servant or other employee of any such railroad corporation, who shall knowingly violate any of the printed or written rules or regulations of such company, shall be subject, to a fine of not less than twenty-five dollars nor more than one hundred dollars, or to an imprisonment in the county jail not more than three months, or both such fine and imprisonment, in the discretion of the court.”

If he had performed the duty imposed upon him by the rule, and, as soon as he had determined that the coupler was defective, reported the fact to his conductor or yardmaster, the accident would undoubtedly not have occurred. The injuries are therefore directly attributable to his own negligence.

For the reasons stated, a verdict for the defendant was properly directed, and the judgment is affirmed.

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

Ostrander, J.

(concurring). It is allegéd in the declaration that after effecting the uncoupling of the car plaintiff discovered that the coupling would not automatically adjust itself for recoupling;

“that it was . the duty of plaintiff, pursuant to orders given him, to recouple the engine and other car to the said car in question, and thereby connect up his train for its departure.”

It is further alleged that—

“Accordingly, when plaintiff observed that said defective coupling on said car would not automatically adjust itself so as to automatically couple onto the other cars to which the engine was attached, the plaintiff, as his duty required, undertook the work of adjusting the same by hand, and in his efforts so to do,”

—and while he was so employed, the engine and forward car were backed into the car upon which he was working. There is no dispute about the facts. Plaintiff claims that the duty he was performing is imposed by rule No. 629. The trial court was of opinion that the rule imposed no such duty. Upon the argument I was impressed that only by a technical and impracticable interpretation of the rule could it be said that plaintiff was forbidden by the rule to make further examination of the coupler to ascertain whether the engine could be coupled to the car. Setting aside the rule, it would seem to be a proper thing for him to make the examination. There were 28 cars behind it on the siding, and, whether it should or should not be determined’ upon his report to carry the car to Bay City, it was necessary to move it in order to release the other cars. But the court also said, “There is no negligence shown on the part of the company that caused or contributed to his injury,” and with this view I concur. Plaintiff, assuming that he was doing his duty, was injured, not because the coupler was defective, but because of what occurred after its condition was discovered. Betterly v. Railroad Co, 158 Mich. 385 (122 N. W. 635), is an instructive case.

I concur in affirming the judgment.

Moore, J., concurred with Ostrander, J.


author: Kuhn, J.

text:
    SMITH v. SMITH.
    1. Mortgages — Deed as Security — Presumptions.
    In construing an instrument claimed to be a mortgage, but appearing on its face to be an absolute deed, tbe proof ought to be sufficient to overcome tbe presumption that tbe instrument is what it purports to be; evidence that it was intended merely as security should be clear and convincing.
    2. Same — Evidence.
    Conflicting proofs relative to tbe intention of decedent grantor to execute a deed to bis son as security for an indebtedness reviewed, and held, to support the trial court in finding tbat tbe deed was absolute.
    Appeal from St. Clair; Tappan, J.
    Submitted April 10, 1913.
    (Docket No. 29.)
    Decided October 1, 1913.
    Bill by James B. Smith against Angus M. Smith for the cancellation of a deed. From a decree for defendant, complainant appeals.
    Affirmed.

      Burt D. Cady and John B. Mcllwain, for complainant.

      Walsh & Walsh, for defendant.
   Kuhn, J.

The original bill of complaint in this cause was filed to set aside a deed, given by Abram Smith to hi¿ son, Angus M. Smith, of certain lands in St. Clair county, Mich, alleging that at the time of the execution of the deed the father was mentally incompetent to transact business. Upon this bill the case proceeded to a hearing, and at the conclusion of the proofs complainant asked leave to amend his bill so as to have the deed declared a conveyance in trust to Angus Smith for the purpose of selling the land and property, or as a security to him for what was due and owing to him by Abram Smith, if any amount was owing him, and that a full and complete accounting be ordered of the amount due Angus. , The circuit judge allowed the amendment, and dismissed the bill. He found that Abram Smith, at the time of the execution of the deed in question, was in full possession of his mental faculties, and thoroughly understood the nature of his act when he made the deed, and that it was not intended as a mortgage. As the findings of the circuit judge give a succinct and clear statement of the matters in controversy and of his conclusions, they are herewith set forth in full:

‘[The bill of complaint herein is filed by James B. Smith, .complainant, for the purpose of setting aside a certain conveyance of real estate described, and asking for an accounting of the partnership affairs and the accounts of the corporation of Abram Smith & Son.
“The pleadings and proofs show that prior to 1890 Abram Smith was conducting a shipyard at Algonac, this county, at which was built and repaired wooden vessels. It is shown that he had become quite heavily involved in debt, and, at his request, his youngest son, Angus M. Smith, defendant herein, left employment in Ohio and joined his father in a copartnership under the firm name of Abram Smith & Son, and under this copartnership they continued the business of building and repairing wooden vessels. This copartnership continued for a number of years, when the business was incorporated under the name of Abram Smith & Son; the entire stock of the concern being held by Abram Smith and Angus M. Smith, with the exception of one share, which was held by a daughter of Angus M. Smith. In the conduct of the business of the copartnership and the corporation, Abram Smith took a more or less active part until within about the last three years before his death, which occurred January 20, 1910. During the continuance of the copartnership it appears that Angus M. Smith, the defendant, conducted a separate wholesale and retail coal business, and throughout the entire period, both of the copartnership and the corporation, borrowed considerable sums of money at the German-American Savings Bank of Detroit.
“The taking of the proofs has occupied the court for fully three weeks of time; a large portion of the evidence received being directed towards an examination of the books of account of the copartnership and also of the corporation, together with the account of the corporation at the German-American Savings Bank. At the close of the proofs, solicitors for the defendant announced to the court that he would not be requested to attempt to summarize accounts, or to determine on which side of the account between Abram Smith and Angus M. Smith the balance lies. It was suggested, however, that the court refer the matter of an accounting to a circuit court commissioner.
“The proofs show that at the time of his death Abram Smith was 89 years of age. He was born in the township where he died, and had throughout his life been a man of exceptional vigor, of strong mentality, and high standing as an energetic and able business man. During the latter part of his life he had ceased to take an active part in the direct management of his business affairs; his eyesight had become quite seriously impaired, but the proofs show that even during this period he retained a strong mental grasp on affairs in his family, concerning such business matters as were brought to his attention, and a comprehension of the general news of the day, both local and national.
“It appears from the proofs that on July 5, 1904, Abram Smith procured John M. Robertson, a magistrate of Algonac, to draft for him a will, which he executed. By the terms of this, will he gave to his soñ John A. Smith a certain parcel of real estate, and the balance of his property, real and personal, he left to his remaining children, James B. Smith, the complainant herein, Cornelia Seaman, a daughter, Ella M. Moore, a daughter, and Angus M. Smith, the defendant herein, in equal shares. This will was admitted to probate in this county on the 9th day of ■ March, 1910, when it was allowed as the last will and testament of the deceased. It also appears from the proofs that on December 19, 1907, Abram Smith conveyed to his son Angus M. Smith, defendant, a farm of 320 acres, located on the river St. Clair, a short ('distance above the village of Algonac, being private, claim 199, in township 3 N., range 16 E., which deed of conveyance was recorded on the 20th day of December, 1907, in Liber 180 of Deeds, p. 612. The consideration named in this deed was $24,000. By the allegations of the original bill of complaint it is sought to have this conveyance set aside on the ground of mental incompetency, undue influence, and fraud.
“Upon the hearing it was shown that at the date of the execution of this deed by Abram Smith, Angus M. Smith, the grantee, drafted, executed, and delivered to his father, Abram Smith, a written agreement, to the effect that in case Angus M. Smith should sell the farm conveyed to him during the lifetime of his father, Abram Smith, then Angus should pay to his father the excess above $24,000 received as the proceeds of the sale. This agreement also recited that the consideration of $24,000 was comprised of a certain mortgage against the farm given to Mr. Whitney by Abram Smith, a mortgage given to Angus M. Smith, and certain other considerations. The agreement was signed by Angus M. Smith and Abram Smith.
“After the close of the proofs, and upon the final argument of counsel, counsel for complainant proposed an amendment to the bill of complaint, and by this amendment set up the allegation that this agreement and the deed constitute a mortgage against the farm for $24,000, and by the same amendment asked an incorporation in the bill, as amended, of a prayer that the court declare the agreement to be a mortgage, and that an order or decree be entered directing a sale of the property and the payment of the excess to the estate of Abram Smith. The solicitor for the defendant objects to the allowance of this amendment, and made the request in open court that in case the court should allow the amendment that he be permitted to offer proof as to the value of the farm in question.
“It is my conclusion that all questions raised should be settled by this litigation, and for that reason I shall allow this amendment to be made, and the bid will now stand as the amended bill of complaint. Solicitor for defendant will be permitted to .offer such further proof as he may deem necessary in view of the amendments allowed.
“Mental Incompetency, Fraud, and Undue Influence.
“It is my conclusion that not only has complainant failed to establish his allegations of the mental incompetency, undue influence, and fraud in the procurement and execution of the deed of conveyance of the farm in private claim 188 on December 19, 1907, but, on the contrary, the proof is clear and convincing that on that date Abram Smith was in the full possession of his mental faculties, and competent to comprehend and did comprehend the nature of the transaction, and that he was conveying this farm to the défendant, Angus M. Smith. The proofs show that he went alone from his home to the office of John M. Robertson, who had drafted his will and other papers and conveyances for him, and informed Mr. Robertson that he wanted to convey this farm to his son Angus; he directed him to obtain the description and draft the deed, and bring it to his home for execution. All of these directions were given solely by Abram Smith to Mr. Robertson. Mr. Robertson prepared the instrument, took it to the.home of Mr. Smith, and in the presence of his two daughters, Mrs. Seaman and Mrs. Moore, read the instrument to him, after which he executed the deed, and it was witnessed by the two daughters and Mr. Robertson. Both of these daughters testified as to these facts, and that their father was fully competent to understand and did understand, the transaction, and that there was no influence whatever exerted upon him in the procurement or execution of this instrument. These two witnesses are not only not interested^ in sustaining this deed, but, should it be set aside, would, under the terms of the will, each be entitled to a one-quarter interest in this farm. In addition to this evidence, the evidence of citizens and neighbors who had known Abram Smith, some of them a lifetime, all are positive in their opinion that he was mentally competent to execute this instrument. Under these proofs it is my conclusion that the deed in question was executed by Abram Smith, with a full comprehension as to its import and character, and without undue influence or fraud of any sort.
“Is the Deed of December 19, 1907, a Mortgage?
“By the allegations of the amended bill the question is now raised as to whether the deed of December 19, 1907, is an absolute conveyance or a mortgage for $24,000. Inasmuch as the case may be determined upon the proofs as they now stand, I deem it advisable to determine this question at this time. Much time was spent by counsel for complainant in an inquiry as to the character of this transaction, and in an attempt to show that the deed was to operate merely as a security and not as an absolute conveyance. The evidence of Mrs. Moore and Mrs. Seaman is to the effect that the father frequently announced his intention of giving this farm to Angus, stating as his reason that Angus had come to his relief at a time when he needed assistance, that he had assisted him financially, and helped him pay his debts, and that he thought in view of all that he had done that Angus should have the farm. A considerable time after the deed had been executed Abram Smith told his lifelong friend, Mr. Stewart, that he had given the farm to Angus. As opposed to this, not a witness has given evidence to indicate that this transaction was the creation of a lien on the farm. We have the proposition that this agreement of December 19, 1907, signed by Abram Smith and Angus M. Smith, shall, in itself, without any further proof, operate as a mortgage, notwithstanding all of the positive evidence to the effect that Abram Smith intended, by the deed of conveyance, to convey an absolute title to his youngest son. It is my conclusion, as a matter of law and fact, that this agreement does not operate to constitute the deed in question as a mortgage merely; but that instead the conveyance of December 19, 1907, executed by Abram Smith, conveys an absolute title in fee simple in the defendant, Angus M. Smith.
“Further Accounting.
“At the close of the proofs, and upon the argument of counsel, for the first time the court was informed that under the proofs as taken the court would not be asked to strike a balance and determine the state of the account between Angus M. Smith and his father, Abram Smith. Upon petition of complainant’s solicitor the court had entered an order granting complainant’s solicitors and assistants all access to the books of account, checks, bills, and bank account of the copartnership and the corporation at the office of the corporation at Algonac. In pursuance of this order solicitor for complainant procured the assistance of an accountant, who was given full access to all of the books of account, checks, bills and bank books of the concern, and the proofs show that he spent about a week in the performance of this work at the office of the corporation, and in addition he was present in court a considerable part of the time while the proofs were being taken as to these accounts. It was the understanding of the court that this time was being spent for the purpose of determining the exact account for. use in the case an accounting was deemed necessary. It is my conclusion that no further steps should be taken in relation to the matter of an accounting, and this finding concerning this phase of the case is made solely for the purpose of settling this question with the others presented.”

The record is voluminous^ containing 840 pages of printed matter, and no effort seems to have been made to reduce it to narrative form or to eliminate immaterial matter. A large amount of the testimony is directed to the claim made in the original bill of complaint that Abram Smith was incompetent at the time of the making of the deed. This claim is, however, not urged upon this appeal, and the arguments and carefully prepared briefs are directed to the claim made that the deed should be construed as a mortgage. In considering this contention of the complainant, it is well to have in mind the rules of law applicable thereto. In a recent case, Crane v. Read, 172 Mich. 642, at page 647 (138 N. W. 223), Mr. Justice Stone, speaking for the court, said:

“In this class of cases the proof ought to be sufficient to overcome the presumption that the instrument in question truly represents the transaction in its entirety. Schmidt v. Barclay, 161 Mich. 1 [125 N. W. 729, 20 Am. & Eng. Ann. Cas. 1194].”

Again, in Dalton v. Mertz, 173 Mich. 153, 157 (138 N. W. 1055), this court said:

“The proof should be clear and convincing before an instrument which, on its. face, purports to be an absolute conveyance is declared to be a mere security.”

See, also, Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689).

The complainant called to the witness stand the defendant, Angus M. Smith, who stated that the sale of the farm was discussed by him with his father for several days, and also in the presence of his sisters, Mrs. Seaman and Mrs. Moore, and stated that he was to have the farm and the personal property on it for $24,000.

It appears that at the time of the execution of the deed Angus M. Smith gave his father a writing, in which he agreed in case he should sell the farm during the lifetime of his father to pay to his father all moneys he received over and above $24,000. Mrs. Moore and Mrs. Seaman, the daughters of the deceased, were also called by the complainant, and testified that the giving of the deed was the voluntary act of their father, and detailed conversations with him in which he expressed the desire that Angus should have the farm. Mrs. Seaman, being examined by complainant’s solicitor, testified as follows:

“Q. Do you remember the circumstances of the signing of this deed by Abram Smith?
“A. I knew it was in connection with his own affairs and my brother’s.
“Q. Do you remember now the circumstances surrounding the signing of it as a matter of memory?
“A. Yes, it was at home in the dining room. My father’s desk was in the extreme end of part of the dining room.
“Q. Who was present?
“A. My daughter, Mrs. Johnson, Mrs. Moore, Mr. Robertson, and myself.
“Q. Mr. Robertson came there?
“A. He brought the deed there, as I remember it.
“Q. Do you remember whether or not before he brought the deed there you had any knowledge or information from any source that such a deed was to be given?
“A. I don’t know; I don’t remember.
“Q. Did you talk with your sister about it in any way?
“A. No.
“Q. Or your father about it?
“A. No.
“Q. Was the deed prepared when Mr. Robertson brought it there?
“A. I think so.
“Q. All but the signing and acknowledging?
“A. Yes, sir.
“Q. And you saw your father sign it?
“A. Yes, it was read over to my father in my presence.
“Q. And you know it to be the deed of the farm?
“A. Yes, I did.
“Q. Was there anything said there about the three witnesses signing- as witnesses?
“A. No, I have no recollection of it.
“Q. And you don’t have any recollection of what was said before that as to why the deed was given?
“A. I know .that it was my father’s wish to give it. Of course, I knew that he attended to his own affairs, and knew what he was doing.
“Q. What was the purpose of giving it, as you understood it at the time?
“A. To make things a little easier for father, and to pay my brother his indebtedness.
“Q. To pay your brother his indebtedness, and make things easier for your father?
“A. Yes.
“Q. In what way would this make things easier for your father?
“A. He wouldn’t have the worry of those mortgages that were hanging over the farm.
“Q. Wouldn’t have the care of the farm?
“A. No.
“Q. Was that talked of at- that time?
“A. I presume it must have been.
“Q. What was your father to get out of this?
“A. As I remember, iri case my brother sold the farm during my father’s lifetime he was to get anything over the $24,000, in case it was sold during father’s lifetime.
“Q. Was it the understanding that Angus was to nroceed and sell the farm?
“A. I don’t think so; I don’t remember that.”

Both of these witnesses testified against their own interests, ad they would profit together with complainant if the contention of the latter could be sustained. It is intimated that Mrs. Moore was acting in concert with Angus; but we are satisfied that the record does not warrant this claim.

Charles Stewart, a friend of Abram Smith, a man 77 years of age, testified concerning a conversation he had with him as follows:

“A year before he died, or 18 months, it may have been a year and a half, I wouldn’t be certain about that, but he told me that he had sold the farm to Angus, deeded the farm to Angus. He says, ‘I can’t do any more up there, and Angus has done a great deal of work there,’ he says, ‘and I have let him have the farm.’ ”

John M. Robertson, who drew the instrument, testified as follows:

“A. Well, on that day, I think between 10 and 11 in the forenoon — I know it was the middle of the day; it wasn’t evening anyway; my impression is it was the forenoon — Mr. Smith came into my office, and I was sitting there alone. He said: ‘Mr. Robertson, I wish you would draw me a warranty deed of my farm to Angus M. Smith, and put in the consideration. I think it is $24,000; I hain’t seen it since (examines deed) ; yes, $24,000;’ and says, ‘You know the description.’ ‘Yes,’ I says, ‘it is the north half , of private claim 188.’ ‘Yes, you know the description,’ he says; ‘well, you make it right out.’ I says, ‘Yes, sir.’ ‘How long will it take you?’ ‘Oh, not very long.’ ‘Well, would you just as soon make it out, and bring it up to the house? I don’t care to wait.’ I said, ‘Yes, sir.’ ‘Well, you will bring it right up?’ ‘Yes, sir.’ ‘All right, I will go up.’ So there wasn’t any other business and I went to my atlas that lays there on the safe, to be sure it was the north half of private claim 188, 320 acres of land. I made the deed out, and put my stamp there on it, because I didn’t take that with me, ‘Notary Public, St. Clair County, Michigan,’ and date of commission. I took the deed up there, and went into the house and gave it to him, and he took it and looked it over. He either had his specks on or put them on and looked the deed over to see if the description was all right, and I told him I thought it was. He said, ‘Yes.’ He turned it over, and I think he says, ‘Where do I sign?’ And went to the desk in the dining room in the northeast corner, and I showed him, and after I did he signed his name. I took it then, and signed my name as a witness, and put my name here as notary, and I said to Mrs. Moore and Mrs. Seaman who were present— I think I brought the deed and put it on the dining room table — and I said, ‘Come here, girls, and sign this deed; it takes two witnesses.’ So Ella Moore signs her name to the deed; and Mrs. Seaman signs her name' to the deed. When I saw Mrs. Seaman sign her name to the deed, I noticed then, and says I, ‘That is three witnesses on the deed.’ But I took it the reason for both signing was because I said, ‘Come, girls, and sign this deed; it wants two witnesses on this deed,’ and, they not being familiar with whether it took two or three or four, they both signed it. That was about two years before he died that I made the deed, as near as I can remember. I am not sure but Mr. Smith asked the other woman to sign; it seems to me something like that he asked her, that he said, ‘Nellie, here you sign, too’ — something like that.”

Considerable effort was made to show irregularities in the books of the partnership of Angus and his father, and that mortgages which had been given by the father to Angus, and which entered into the consideration of the deed, were given without consideration. It would profit no one to attempt to go into the details of these alleged irregularities. That there were certain irregularities in the keeping of the accounts there can be no question; but upon the vital question in this case, which was one of fact, whether or not the deed in question was given as an absolute conveyance, it seems to us the complainant has completely failed to make out his case, and the proofs are convincing that by the deed of conveyance it was the intention of the father to convey an absolute title to his son. The claim is also made that the value of the farm at the time of the giving of the deed was largely in excess of the consideration named in the deed. Evidence was taken upon this question; but from the testimony of those witnesses we are satisfied that the consideration named was a fair value of the farm at that time. The complainant having failed to establish his case by sufficient proof, the bill was properly dismissed.

The decree of the trial court is affirmed, with costs.

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


text:
    AMANTA v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Crossing Accident — Negligence.
    Evidence that plaintiff was struck by a locomotive at defendant’s crossing, that he looked both ways, and, owing to smoke and darkness, was 'unable to see any train coming, that a freight had just passed on an adjacent track and a passenger train went by making considerable noise, smoke, etc., and plaintiff was unable to hear or see the approaching locomotive, which gave no signal and was running backwards without a headlight and with only small red and white lights displayed, sustained the trial court in refusing to direct a verdict for defendant.
    2. Same — Contributory Negligence — Directed Verdict.
    It is proper to submit to the jury the question of plaintiff’s contributory negligence, if candid' and intelligent men might reach different conclusions upon the question, or the testimony is conflicting.
    3. Same — Lights—Warning.
    Nor did the court err in charging the jury that if the defeudant operated its engine without lights after it was so dark as to obscure approaching objects, defendant was guilty of negligence.
    4. Same — Appeal and Error — Saving Questions eor Review.
    Having requested no instructions on the issue as to darkness, etc., defendant could not review the court’s failure to charge as error.
    5. Same — Evidence—Charge.
    And evidence tending to show that an engine was seen near the place of injury shortly after the accident, running backwards without lights, was not incompetent, where the court instructed the jury not to consider the evidence unless they found that the engine was the one which injured plaintiff.
    6. Damages — Humiliation—Suffering.
    It was not erroneous to permit the jury to determine what damages plaintiff should receive for future pain and suffering and mental anguish for the loss of an arm and a leg though no evidence other than his physical condition was offered on the subject.
    Error to Kent; Brown, J.
    Submitted April 11, 1913.
    (Docket No. 49.)
    Decided October 1, 1913.
    Rehearing denied January 5, 1914.
    Case by John Amanta against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilson & Wilson and Kleinhans & Knappen (Henry Russel and Frank E. Robson, of counsel), • for appellant.

      George E. Nichols and E. F. Phelps, for appellee.
   Kuhn, J.

This action was brought to recover for personal injuries caused, as it is claimed, by the negligence of the defendant company. The plaintiff, who resided in the city of Grand Rapids, on the 7th day of October, 1910, was requested by a friend, named Frank Provenzo, to go with him to visit his sick daughter in St. Mary’s Hospital in that city. They left the home of plaintiff on Fourth avenue about 6 o’clock in the evening. Plaintiff claims that they walked from Fourth avenue .north on Hilton street to Third avenue, where they turned east, walking on the south sidewalk until they reached the system of railroad tracks which cross Third avenue, running north and south. The first track is a long Grand Rapids & Indiana side track; next east, and 11% feet from this side track, is the Grand Rapids & Indiana main track. Eight and one-half feet east of this is the Michigan Central main track. Next east, and from 8 to 9 feet from the main track, is the Michigan Central side track. Still further east are the tracks of the Pere Marquette Railroad Company. It is the claim of plaintiff that when they reached the tracks it was dark and they were stopped by a freight train on the Grand Rapids & Indiana tracks coming from the south, and while waiting for this train to pass they crossed the street to the north side of Third avenue and stood on the walk until the train had passed. When they were -ready to proceed, they saw a passenger train coming from the south on the Grand Rapids & Indiana main track and waited where they were until that train had passed. They then proceeded eastward until the plaintiff had reached a point about halfway between the Grand Rapids & Indiana main track and the Michigan Central main track, when he looked to the north and saw no train or locomotive coming from that direction and heard no bell or whistle; that he then looked to the south and then again to the north but heard and saw nothing to indicate the approach of a locomotive or train from either direction; that, believing themselves safe, they started to cross the main track of the Michigan Central Railroad; Provenzo being about two feet ahead of the plaintiff. As plaintiff stepped onto the track, he was struck by a Michigan Central engine, which had just left its train at the Union Station, about half a mile north of Third avenue, and which was backing on the main track to the roundhouse, which is about a half. mile south of Third avenue. Provenzo crossed in time and avoided being hurt, but plaintiff was struck by the engine and his right arm was severed at- the shoulder and his left leg above the knee.

The negligence relied upon by the plaintiff is that this engine was being backed over the crossing without any lights and without ringing any bell or giving other warning of its approach. The trial court submitted the case to the jury, and a verdict of $8,750 was rendered in favor of the plaintiff. Judgment being had thereon, the case is brought here by writ of error.

It is the claim of the defendant that the engine was properly lighted with a red light on the right side and a white light on the left side, although it is also claimed that it was light enough to see an approaching train without them, as the sun had set within an hour and a three-quarter moon was visible, and there was an electric light about 15 feet above the ground. It is further claimed that the engine was backing slowly, about 6 miles per hour, and that if plaintiff had done as he claims he did, under the conditions existing, he must have seen the engine. Defendant’s counsel requested the court to direct a verdict in favor of defendant on the ground of contributory negligence, which was denied, and in defendant’s requests to charge a similar instruction was requested. On a motion for a new trial this question was again raised, and also that the verdict was against the weight of the evidence and was unsupported by the evidence.

This brings us to the first question discussed in defendant’s brief whether, under the undisputed facts in this case, the plaintiff was guilty of contributory negligence. It is urged that the verdict is predicated upon the finding of a physical impossibility and that therefore the testimony of the plaintiff and his companion that they looked and listened should be disregarded, as the physical facts show that they could not have done so; and the cases of McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631), Strong v. Railway Co., 156 Mich. 66 (120 N. W. 683), and Hamilton v. Railway, 167 Mich. 5 (132 N. W. 453), are cited. It is conceded by plaintiff that, when a train is in plain view and it is impossible to stop and listen without seeing or hearing the train, testimony of the plaintiff that he did not hear or see the approaching train should be disregarded; but it is urged in the instant case, and it is supported by the testimony of witnesses, that at the time the accident happened the hour was dusk; that because of the passing of a long freight train and of the rushing of a passenger train the air was filled with dirt, smoke, and steam, and that because of the darkness, the dirt, smoke, and steam the plaintiff was unable to see the approaching locomotive running backward out of the darkness upon him without any lights on the rear end; that the noise of the other trains which had just passed made it impossible to hear the locomotive; and that under these facts the question of plaintiff’s contributory negligence was properly submitted to the jury. Whether or not plaintiff observed that care which an ordinarily careful and prudent man would have exercised under all the circumstances was, it seems to us, a question for the jury.

The plaintiff and Provenzo testified that there were no lights on the engine and this is disputed by the trainmen. The engineer testified that he knew “the lights were properly lit as the hour was dark.” Other witnesses testified that objects could be distinguished at varying distances of a hundred feet or more.

The question of plaintiff’s contributory negligence should be submitted to the jury when the testimony is conflicting or where candid and intelligent men might reach different conclusions upon the question. Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069). We cannot say that the case is so free from doubt as to warrant the conclusion that the plaintiff was guilty of contributory negligence as a matter of law.

The next point urged by the defendant is that the court in his charge assumed that it was dark at the time of the accident and erred in not submitting the degree of darkness to the jury. At the close of the proofs a colloquy took place between the court and counsel as follows:

“The Court: The defense admits if the lanterns were out or there were no lanterns on the rear end of this locomotive as it passed over this street in question, the defense would admit that it was negligence.
“Mr. Charles Wilson: No, your honor, we do. not admit that, because we do not admit it was dark enough to require them.
“The Court: I say if it were dark at that time, if it were dark enough to have lights, then there would be no question but what you would admit the negligence if there were no lights.
“Mr. Hugh Wilson: Oh, yes, we will admit that. We haven’t any hesitation about that.
“The Court: The question of light or dark is a question for the jury. If it was dark enough so it was necessary to have lights, so that lights would have been needed to have given a warning, then the defense admits that, if they did not have them, they were negligent, just as negligent as you want to make them. Then what would be the benefit of the testimony?
“Mr. Charles Wilson: I would not want to say that we admit we were just as negligent as they claim we were.
“The Court: I am just saying that for the purpose of the argument.
“Mr. Charles Wilson: I do not want that statement to be taken as our admission, your honor.
“The Court: No, but then, as I understand it, there would be no question in the claims, or the claims of the defense, that if it were dark then you would be negligent if you did not have lights.
“Mr. Charles Wilson: Let me state our position; it is this: If it was dark enough to require lights, and it should be found that there were no lights on the rear of the engine, that would be fact to go to the jury on the question of negligence. It would not be conclusive evidence.
“The Court: I do not mean a man could be standing there, looking at the engine, and be run over and claim damages just because there were no lights there.
“Mr. Charles Wilson: That would be a fact to go to the jury, as to whether we were negligent. That is the extent of our admission.”

It is urged that the position of the defendant was made clear in this colloquy, and that therefore it was unnecessary to call further attention to that position by special requests to charge.

The court, in his charge,1 with reference to this phase of the case, said:

“The traveler has a right to rely upon the exercise of proper caution on the part of the railroad company through its employees. It is required to give warning of its approach, if in the nighttime, by necessary lights and other signals, and if it fails so to do it is negligent. The negligence of which it is claimed the defendant was guilty is that the engineer of the engine in question ran and drove the engine backwards in a southerly direction upon the main track of the defendant company, up to and across Third avenue, while it was dark and the air contained dirt, smoke, and steam, without giving any warning whatever of the approach of the engine and without ringing a bell,, blowing a whistle, or displaying lights on the rear end or south end of the engine at the time of its approach to and upon Third avenue. The plaintiff claims that ordinary care for the protection of others required the man in charge of the locomotive, under the conditions as claimed by the plaintiff here, to give warning of its approach to and crossing of a public highway, such warning as I have before stated.”

Again he said:

“I may say to you, however, that if you find that this locomotive was running backwards on the main track of the defendant, without lights on the rear of the tender, the south end going south, after it was dark enough to obscure the approaching locomotive, the defendant as a matter of law was negligent; and if you also find that the plaintiff stopped, looked, and listened, and used ordinary care and caution to detect danger and avoid injury, as he claims he did, then and in that case he is entitled.to recover such damages as he has fairly shown you he has suffered.”

It seems to us that this clearly outlined to the jury the facts which it was necessary for them to find in order to hold the defendant liable and was a proper statement of the law applicablé to this case.

However, if more specific instruction was desired by the defendant, special request for such instruction should have been made and the failure to do so precludes defendant from assigning error. See Pruner v. Railway, 173 Mich. 146 (139 N. W. 48), and cases cited therein.

On the trial of the cause, several witnesses testified that an unlighted engine was seen standing south of Third avenue. A motion was made to strike out this testimony for the reason that there was no evidence to identify the engine which was seen with the engine which struck the plaintiff. The court, in his charge, with reference to this testimony, said:

“Some testimony has been offered by the plaintiff tending to show that an engine was seen south of Third avenue and north of Fourth avenue just after the accident, and that such engine had no lights upon it, head or rear lights. The plaintiff claims that this testimony goes to establish his claim that, at the time he was struck by the engine and injured, there were no lights upon the south end of the engine which struck him. Before you can consider the evidence as to an engine south of Third avenue having no lights upon it, which was not directly identified as being the engine in question, you must first determine, from the evidence in the case and all the facts and circumstances here shown, whether or not such engine was the same engine that injured the plaintiff. If it was not the same engine, then you will not consider the testimony, regarding the lights or no lights on such engine; but, if you find from the testimony that it was the same engine, then you may consider this testimony as bearing upon the question of the presence or absence of lights on the south end of the engine at the time it struck the plaintiff.”

There was conflict in the testimony as to exactly where the engine stopped after the accident. The engineer testified that as soon as the engine struck the plaintiff he stopped the engine within a few feet, and that the cab was immediately over the body when he stopped. This is contradicted by other witnesses, who came to the scene of the accident immediately after it happened, who said that the engine had gone 100 feet or more down the track and was not standing on the street. It seems to us that the court fully safeguarded the consideration of this testimony in charging the jury that, before they could consider this testimony, they must first find that the engine described by the witnesses was the engine that caused the accident.

Complaint is made as to the instruction to the jury with reference to the measure of damages. The extent of the plaintiff’s injuries is not questioned, as the accident resulted in the loss of his right arm and his left leg. The plaintiff testified that he was 31 years old on October 7, 1912, and was a married man; that at the time of the accident his average wages were from $20 to $25 per week. It is claimed that since the accident he has been practically unable to do any work. Mortality tables were introduced in evidence, and it appears that the expectancy of the plaintiff is 34 years and that the present worth of his earning capacity at $20 per week would be $20,384. It is urged that there is nothing in the record to show that he was suffering pain at the time of the trial or that there was any evidence to show that he was likely to suffer pain in the future as a result of the accident, as it was claimed that his wound was entirely healed. The court charged the jury on the question of damages as follows:

“You may determine what compensation he should receive for pain and suffering, and for the humiliation of his condition; this includes the plain and suffering that he has already undergone, the mental condition that he is in and may continue to be in, and the pain arising therefrom.”

It is urged that there is no evidence of humiliation and of future suffering. The physical condition of the plaintiff is a complete answer to this claim and was sufficient evidence to warrant the charge as given.

We have examined the other assignments of error but find them without merit. The judgment is affirmed, with costs.

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