author: Blair, J.

text:
    EWING v. McINTYRE.
    1. Wills — Probate—Lost Wills — Evidence—Sufficiency.
    In proceedings to probate a lost will, as in other civil cases, a preponderance of the evidence is all that is necessary to establish the will, there being no intermediate rule in this State as to the amount of proof required between that which obtains in civil and criminal cases.
    2. Same — Evidence—Admissibility.
    In proceedings to probate a lost will, declarations of the testator are competent to rebut' the presumption of revocation.
    3. Same — Evidence—Sufficiency,
    On proceedings to probate an alleged lost will, evidence examined, and held, to require submission to the jury of the questions whether testator in fact made the will, and whether he destroyed it with an intent to revoke.
    4. Same — Contents—Secondary Evidence.
    Where, on proceedings to probate an alleged lost will, there is testimony tending to show that the scrivener only made one will for testator, and that immediately after the will was executed a draft or memorandum of its contents, in the scrivener’s handwriting, was found in the same room and near the same table at which the will was executed, which memorandum was in the same condition at the time of the trial as when the will was drawn, such memorandum is admissible in evidence.
    Error to Wayne; Hosmer, J.
    Submitted June 15, 1905.
    (Docket No. 14.)
    Decided October 2, 1905.
    Petition by Augusta Ewing for the probate of a lost will, alleged to be the last will and testament of Archibald P. McIntyre, deceased, to which Delos McIntyre and others filed objections. The petition was denied in the probate court, and proponent appealed to the circuit court. There was judgment at the circuit for contestants on a verdict directed by the court, and proponent brings error.
    Reversed.

      Maybury, Lucking, Emmons & Helfman (Harrison Geer, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellees
   Blair, J.

Archibald P. McIntyre died at his home in Sand Hill, Bedford township, Wayne county, on the 13th day of May, 1900. He left surviving him as his heirs at law two brothers, Franklin and Delos, who were residents of the State of New York, and a daughter of a deceased brother, Mrs. Helena Lamphe're, who resided at Yassar, in this State. No will being found after Mr. McIntyre’s death, administration of his estate, amounting to $135,000 as appraised, was granted to one Bosworth, who administered and distributed the estate under the order of the probate court. After the distribution of the. estate, but before it was finally closed, the appellant, Augusta Ewing, filed her petition, which, as amended later on, alleged, among other things, the following:

“5. That, as your petitioner is informed and believes, the said Archibald P. McIntyre, during his lifetime, in conformity to law, duly executed in writing a certain paper, and, being of full age and in sound mind, did publish and declare the same to be his last will and testament.
“6. That the witnesses to the execution of said will were William A. Smith and Emma A. Yerkes. That said witnesses were competent and duly attested said will in the presence of the testator and in the presence of each other. That the exact date of the execution of said will cannot now be stated, but your petitioner alleges, on her information and belief, that the same was executed and published as aforesaid between September 1st and October 31st, 1896.
“?. That the contents, terms, and provisions of said will, as your petitioner is informed and believes, were substantially as follows:
“ I direct the payment of my just debts.
“ I direct that my executor have my name and dates of my birth and death cut on my monument.
“ I direct that my executor discharge the mortgage held by me against Carrie Hessey.
“ I direct that my executor discharge the mortgage held by me against Calvin Parker and wife.
“ I give to Almond Harris, of California, a nephew of my deceased wife, $5,000.
“ I give to the grandchildren of my deceased sister in Wisconsin, $5,000.
“I give to Helen S. Lamphere, a daughter of my deceased brother Joseph, 100 acres of land off the east side of my farm and lying next to Thomas Burt’s farm, south of the Grand River road.
“Igive to Augusta Ewing, niece of my deceased wife, $5,000.
“I give to Emma Du Bois, niece of my deceased wife, that part of my farm in Redford, lying between Grand River road and the Waterford road, and east of the north and south road running on the west side of the hotel, including the store opposite said land facing on Grand River road, and also to her, $2,500.
“ I give to Susan Stringer, niece of my deceased wife, the part of my farm lying west of said north and south road, and between Waterford road and Grand River road.
“ I give to the person who has stayed with me and managed my household affairs and cared for me for at least two years, including the entire period of my last sickness, the hotel and contents thereof.
“I give to the two daughters of Eva Kenyon, formerly Eva D. Harris, the gold watch, jewelry, and wearing apparel of my deceased wife, and to the son of said Eva D. Kenyon [Archibald Kenyon] my gold watch, jewelry, and wearing apparel.
“ I give all the residue of my real estate, personal and mixed, to the son and two daughters of Eva D. Kenyon herein mentioned, share and share alike.
“I nominate Wm. B. Ewing my executor.
[Signed] “Archibald P. McIntyre.
“And duly attested and subscribed as witnesses in the presence of the testator and of each other by William A. Smith and Emma A. Yerkes.
“7a. That after the execution of said will as aforesaid, as your petitioner is informed and verily believes, the same was placed by said testator in a certain private box kept by himself in a desk wherein were kept private papers, and to the time of his death the said will of the said testator was in existence and in full force and was .never revoked by him, and by his demise became operative for the benefit of the persons heretofore recited as beneficiaries thereunder.
“7b. That your petitioner has caused a most careful and diligent search for said will to be made, and that said will cannot now be found.
“8. Your petitioner is informed and believes that the said Delos McIntyre and a nephew named Harold [son of the said Franklin McIntyre], at the time of the death of deceased or immediately thereafter, took possession of and removed all of the private papers of the deceased, and after the funeral was over they hastily and unexpectedly departed to the State of New York, with the said papers in satchels and otherwise. And your petitioner charges the fact to be that they either destroyed the said will of deceased, which they found among his said papers, or have suppressed or concealed the same. That they have not returned the said papers [and other tangible property], and have not presented the said will for probate in the county of Wayne, but instead, on petition of said Helen Lamphere, proceeded with the administration of said estate in their own interest as the heirs at law of said deceased, wholly ignoring the rights of the said beneficiaries in the said will named.
“9. That Helen Lamphere, Herbert Babcock, Myrtie De Mund, and Nettie Coleman, who are named as beneficiaries under said will are respectively the same persons as the heirs at law above mentioned by said names.
“That the relationship, ages, and residences of the other beneficiaries under said will are as follows:
“ Almond Harris, anephew to the wife of said deceased, over the age of 21 years, and residing at Columbia, in the State of California.
“ Susan Stringer, niece of deceased’s wife, over 21 years of age, and residing in the city of Detroit, in said Wayne county.
‘ ‘ Emma Du Bois, niece of said wife, over 21 years of age, and residing in the city of Detroit.
“Alice Kenyon, over 21 years of age, and Bessie Kenyon and Archibald Kenyon, minor children of Eva D. Kenyon, deceased [who was a niece of said deceased wife], residing at Grand Ledge, in the State of Michigan.
“Your petitioner [Augusta Ewing], a niece of said deceased wife, over 21 years of age, and residing in Delray, as aforesaid.
“Therefore your petitioner prays that the said will of Archibald P. McIntyre, deceased, when produced or established as a lost or destroyed will, may be admitted to probate, and that the said estate may be distributed pursuant to the terms thereof.”

Proponent’s petition having been denied on hearing by the probate court, she appealed to fhe circuit court, where a verdict was directed for the contestants, and she has appealed to this court.

The circuit judge held that there was sufficient evidence of the lawful execution of the alleged will to go to the jury, but directed a verdict for the reason stated by him, as follows:

“ Now, gentlemen of the jury, I think the only further question there is in the case, and the matter on account of which I remove it from your consideration, is the question whether the legal presumption is, at the present time, that that will was revoked. I think, under the testimony in this case, the evidence shows that the will was revoked, and that there is not sufficient evidence introduced by the proponent which has a legitimate- tendency to show that this will was still in existence at the time of the decease of the testator. The only testimony which I may say squints in that direction, and I don’t believe it amounts to a scintilla, is the evidence of Mrs. Yerkes, and the only evidence of Mrs. Yerkes is the evidence that Harold McIntyre, who was one of the blood relatives, took a certain pocke'tbook and took from there money, which he concealed in the barn. There is no evidence on her part or on the part of anybody else that he took a will, or that there was a will in existence at the time of the old gentleman’s decease. There is some testimony, I think, of declarations not long before his death — if I recall it, the last declaration was in December — that he had made provisions for certain persons; but I do not think that that evidence is sufficient to overcome the presumption of the law of the revocation of the will which had been excluded. The rule of the law, as I understand it, in the absence of testimony which would tend to show a suppression of the will, or tend $o show the loss of the will, is that when such will is not found that there is a revocation, and when, as in the case at bar, the property is devised, the revocation would result in leaving the property to those who are of his own blood, it seems to me, gentlemen, that the presumption of revocation must be even stronger.
“Now, for these reasons, gentlemen, I feel constrained to remove this from your considerations, and direct a verdict as against the proponent.”

Counsel for appellee submit that the court was in error in holding that there was any evidence legitimately tending to establish the execution or contents of the alleged lost or destroyed will, and that in such cases only the clearest and most stringent evidence suffices. We think the trial judge was clearly correct in his holding in this regard. There is no intermediate rule in Michigan as to the amount of proof required between that which obtains in civil and in criminal cases. In testamentary as well as in other civil cases, a preponderance, of evidence is all that is required to sustain the issue. Aikin v. Weckerly, 19 Mich. 482.

The sole question, therefore, under the charge, is whether there was any evidence in the case legitimately tending to overcome the prima facie presumption of revocation arising from the nonproduction of the will. In determining this question, we must give to the testimony the most favorable interpretation and the greatest probative force that it will legitimately bear in support of the proponent’s case. Moreover, the testator’s papers, including the will, if there was one, fell under the control of the contestants, who had a powerful motive for suppressing it.'

“ This is a consideration which could not be overlooked in a discussion turning on the influence of presumptions. Schultz v. Schultz, 35 N. Y. 653. The presence of motive and opportunity could not be wholly disregarded.” Stevens v. Hope, 52 Mich. 65.

Considering the testimony in the light of these rules, the jury would have been warranted in finding:

1. That the testator, in the full possession of his mental faculties, made his will in September, 1896, whereby he intended to and did dispose of all of his property, giving nothing to his two brothers.

2. That he entertained a kindly feeling for all of the ■devisees, most of whom are relatives by affiliation or blood, and a deep affection for the residuary legatees.

3. That he entertained a feeling of bitter hostility towards his two brothers in New York, and died without ■.material change of sentiment in this regard.

Mrs. Yerkes testified that before and after the making of the will she heard the testator say of his brothers:

“He never got a dollar from them and they never would get anything of his. * * * I heard him say it a number of times.”

Mr. Lee testified that testator said to him:

“So far as his brothers was concerned, they never would help him when he called upon them, and he would be damned if they should ever have a dollar’s worth of his property if he could help it.”

Kate Du Bois testified that she heard him say in the summer of 1899:

“My people shall never have any of my money when I am gone.”

Joseph McEcheran testified:

“ From conversation that I have had with Mr. McIntyre, I know that he felt very hard towards his brothers (Franklin and Delos). * * * I have heard Mr. McIntyre say that when he disposed of his property that his brothers should not have any of it. * * * I could not say how many times I have heard him make this statement. I have heard him make it a good many times while I was there.”

Abram Shepherd testified:

“I heard him say there was a time when he wanted some help; that his brothers might as well have helped him as not; they were in condition so they could; they would not do it, but he had got so that he did not need any help; now they were willing to be neighborly and friendly with him, or about to that effect — that was the meaning of it — but now he did not want anything to do with them. I have heard him say that he did not calculate that his brothers would have any of his property. He said this a number of times. I could not say how many times; but at different times we would talk about this thing and that thing, and about our relations and so on, and that seemed to be his mind. He seemed to be quite bitter against his brothers for the way they had used him before.”

And that in the fall of 1899:

“ On that occasion the conversation came up in something, I forget just how now, about relatives, and so on, and he said in substance that he had fixed it or would fix it so that his brothers would have nothing of his property. I could not say which he said, but in that way it was that his brothers would not get any of his property. That is the meaning of it. * * * He said he did not want his brothers to have it, a number of times before that, along in 1885, ’86, and ’87.”

Dr. Holcomb testified:

“ The only words I ever heard from Mr. McIntyre about his folks was his feelings against his brothers. I have heard him speak in favor of a great many different people, but I never heard him say anything in favor of any of his relatives. * * * I know Harold McIntyre. I remember of his coming there some time during his last illness. I think he came about a week before Mr. McIntyre died. I don’t just remember. He was there several days. I believe Mr. Bosworth wrote him a letter. Before Bosworth notified Harold to come, I had a conversation with Mr. McIntyre about sending for any one. I asked him if we hadn’t better telegraph or send his brother word about his sickness, and he said, ‘No.’ That was before Harold came. * * * There was something said about Delos, and Harold said, why, something about, if Mr. A. P. McIntyre got better and he knew he sent for Delos, he would not like it, something to that effect; and he asked me to ask for Franklin McIntyre, and Mr. A. P. McIntyre first said, ‘No,’ and then he said, ‘Well, the boy is here and we will see about that,’or ‘will look after that’ — something to that effect. The express language I cannot remember. At the time I asked him if I should telegraph for his brother, I informed him of the fact that he was a very sick man. ”

4. That he recognized the will as still in existence as late as December, 1899.

He told Mr. Lee:

‘ ‘ That he had enough to take care of Eva or her children and that he had already provided for Eva’s children. * * * That talk was the last time that I saw him; I think the 28th day of December, before he died in the spring.”

Mr. Rogers testified that he had a conversation with him in the fall of 1899:

“He says: ‘ Charlie, I don’t know whether I will pull through to spring or not.’ I remarked to him: ‘Why, Mack,’ referring to him (McIntyre). We always called him ‘ Mack.’ I says: * Why, Mack, I guess you will pull through. You are a pretty strong, rugged man yet.’ ‘ Well,’ he says, ‘I don’t know. Iam feeling pretty bad.’ I said he hadn’t ought to work. I said: ‘ I suppose you have got your business all arranged satisfactorily to you.’ ‘Why, yes,’ he says, ‘I have got that all fixed up; got the will made and everything fixed up.’ ”

Mr. Wright had a conversation with him in March, 1900.

‘ ‘ He asked me if I knew whether Mr. Perry had made a will, and I told him that I did not, but I did not think that he had a great deal to will; that his stuff was mostly all mortgaged. ‘ Well,’ he says, ‘ that is too bad,’ he says, ‘when a man gets to Perry’s, age and mine,’ he says, ‘they ought to have their property fixed so that they would know where it was going to.’ He says: ‘I have got mine fixed that I know who is going to get it, so there won’t be any quarreling, and I thought Perry had his.’ ”

Mr. McEcheran had a conversation with him, in which he mentioned the death of Mrs. Kenyon, the mother of the residuary legatees:

“ And he took her death very hard. That was after she died. He felt very bad about it. And he said at that time that he had provided for her children by will. That was in the spring of 1897. * * * When I said Mr. Smith told me he had already made a will, Mr. McIntyre said he had. He said he thought he had better have it done while he was in shape to do it, and he said he had provided for these Kenyon children in that will; and he said at that time Bill Ewings — William Ewings — was to be executor of the will.”

5. That Harold McIntyre, a son of Franklin, and Delos McIntyre, a brother of Franklin, had an opportunity to and a motive for suppressing the proposed will, if it existed.

Mr. McIntyre died about 6 o’clock Sunday evening, May 13, 1900. A week previous, Harold McIntyre had come from New York in response to a letter from Bosworth. During this last week he and Mrs. Yerkes were the only persons who were about the hotel. Until Friday, Harold worked in the barn; but on Thursday Mr. McIntyre grew worse, and from that time on Harold spent his time in the hotel. On Friday McIntyre grew worse, and in the evening it was decided to operate on him. This was performed on Saturday. For two or three days he was in a semi-comatose condition. After the operation he never regained consciousness, and died Sunday night. In preparing him for the operation on Saturday morning, Dr. Holcomb found a pocketbook in the sleeve of McIntyre’s shirt, containing $1,000 in money, some checks, and some keys. The doctor and Harold went upstairs and counted the money, and then Harold took possession of the pocketbook and all its contents. At this time McIntyre was in a comatose condition, and unable to appreciate what was going on. These keys opened the desk and. tin box in which McIntyre kept his papers. From this time until 8 p. m. Sunday night these keys were in Harold’s possession. During this time Harold was continuously in and out of the room where McIntyre lay. He slept on a couch by the door, and had free and complete access to this desk at all times. About noon Sunday, while McIntyre was unconscious, Harold removed from the desk $600 in cash and secreted it in the barn, saying it was “damn right his.” A short time after McIntyre’s death Harold approached Dr. Holcomb and said that there was money there which some one ought to look after, and asked him to assist in the search. Bosworth, Willmarth, Harold, and the doctor together went to the secretary or desk. Dr. Holcomb called for the key. Harold handed it to him, taking it from his pants pocket. The doctor opened the desk, and examined the contents to see what money could be found. A largé amount of papers of. various kinds were found, among them some notes, and mortgages. The notes and mortgages, together with the money, were placed in the safe in Bosworth’s store across the street. The majority of the papers were not examined at all. No search was made for a will. They were looking for money. Immediately after the funeral on Wednesday, Harold hurriedly took all the papers out of the drawers, pigeon holes, etc., in the desk, stuffed them in pillow cases, and placed them in a telescope. Together with his Uncle Delos, he left for New York State that night, taking the telescope and papers with them, where they remained until Thursday or Friday of the following week. Harold McIntyre testifies:

“ Uncle and I left Sand Hill about 7 o’clock that night; I think 7 or 8 o’clock. I carried this grip full of papers. I did not take with me any of the papers which had been placed in Mr. Bosworth’s safe and afterwards placed in the Wayne County deposit box. I had the key to that deposit box. I traveled with my uncle to Evanston, N. Y., and his home was four miles below there, and I left him at Leonardsville. My uncle had the telescope with these old papers.”

Dr. Holcomb testified that the bills in the long pocketbook in the desk—

“Looked as though they had been handled in some way. They were not out smooth. They were, crinkled up apparently. That was easy to be discerned. Looked as though they had been handled by somebody, and after they were straightened out they were put back in the pocketbook.”

If the declarations of the testator were admissible as evidence, then we think the case should have been submitted to the jury. Here was a very large estate, in the eyes of the parties interested, and the desire to possess it would furnish a powerful motive for suppressing a will which would divert it entirely into other channels. Both immediately before and after the death of Mr. McIntyre, his papers came into the hands and were under the control of those who had this powerful motive, and, without having made any specific search for a will, they immediately after the funeral removed the vast majority of the papers from the State of Michigan and left them in charge of the brother whom Harold was afraid to send for. The secreting of the testator’s money by Harold was also a suspicious circumstance, which the jury were entitled to consider in determining whether he would be likely to take advantage of his opportunities to secrete a will, if one existed. The inveterate hostility of the testator towards his brothers, which was in large part the cause of his making the will, in order that they might get none of his property, might also give rise to *a legitimate inference that the brothers, whose motive would lead them to destroy the will, actually did destroy it, rather than the man whose motive would lead him to preserve it.

But counsel for contestants contend that the declarations of the testator were not competent evidence to rebut the presumption of revocation, and that the great weight of current authority is to that effect, citing Throckmorton v. Holt, 180 U. S. 552; In re Kennedy, 167 N. Y. 163; Clark v. Turner, 50 Neb. 290 (38 L. R. A. 433); Mercer’s Adm’r v. Mackin, 14 Bush (Ky.),434; Lane v. Moore, 151 Mass. 87; Meeker v. Boylan, 28 N. J. Law, 274; Walton v. Kendrick, 122 Mo. 504 (25 L. R. A. 701); Hayes v. West, 37 Ind. 21; Couch v. Eastham, 27 W. Va. 796; Gordon’s Case, 50 N. J. Eq. 397; Leslie v. McMurtry, 60 Ark. 301; Gibson v. Gibson, 24 Mo. 227.

We do not deem it necessary to enter upon a discussion •of the authorities, to determine on which side the weight of authority lies, since the rule has been established in this State against contestants’ contention. Lawyer v. Smith, 8 Mich. 412; Harring v. Allen, 25 Mich. 505; In re Hope, 48 Mich. 518; In re Lambie’s Estate, 97 Mich. 50; Cheever v. North, 106 Mich. 390 (37 L. R. A. 561).

The Throckmorton and Kennedy Cases, supra, repudiate the doctrine of Sugden v. Lord St. Leonards, L. R. 1 Prob. Div. 154. That case is cited with approval in the Lambie Case, supra, by this court. See, also, in support of the rule as adopted in Michigan, Patten v. Poulton, 1 Swab. & Trist. 55; Morris v. Swaney, 7 Heisk. (Tenn.) 591; Southworth v. Adams, 11 Biss. (U. S.) 267; Gardner v. Gardner, 177 Pa. 218; Gavitt v. Moulton, 119 Wis. 35; In re Page, 118 Ill. 576; McDonald v. McDonald, 142 Ind. 55.

As said by Chief Justice Appleton in Collagan v. Burns, 57 Me. 449:

‘ ‘ The declarations of the testator may have been false and uttered to deceive; or, being true, they may have been misunderstood, in whole or in part, from inattention. They may have been misrecollected from forgetfulness or misreported from design. But all this affects the degree of credit to be given the testimony, not its admissibility. It shows that caution should be used in weighing it, not that it should be excluded. The exclusion of evidence, relevant and material, from the fear that it may not receive its just degree of credence, is the rude resort of barbarism. Civilization hears, weighs, examines, compares, and then decides.”

But one other question remains for consideration: The trial judge excluded a certain paper alleged to be the original draft of the alleged will, and upon this ruling error is assigned. It was proved by the testimony of two of the scrivener’s sons that the draft or memorandum was Undoubtedly in their father’s handwriting. The draft agrees in most respects with the oral testimony as to the contents of the will and the expressed intentions of the testator. There was evidence from which the jury might legitimately find that Mr. Smith, the scrivener, read the will over to testator and it was then executed by the testator and witnesses, without change; that in the evening of the same day the draft was found upon the floor of the same room and near the same table at which the will was executed; and that the draft was in the same condition as then. If this paper actually was the draft from which the will was drawn, and the will had been destroyed, the draft was manifestly the best evidence in existence of its contents. The testimony indicates that this was the only will which Mr. Smith had ever prepared for Mr. McIntyre, and we think the question should have been submitted to the jury whether the paper was the preliminary draft from which the will was drawn. If it was, it was admissible in evidence.

The judgment is reversed, and a hew trial granted.

Carpenter, Crant, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    NEAL v. GILMORE.
    1. Highways — Obstructions—Removal.
    Act No. 243, Pub. Acts 1881, relating to obstructions and encroachments on highways and the removal thereof, does not abrogate the common-law remedy of abatement of nuisances by the mere act of individuals.
    2. Same — Nuisance—Abatement. .
    An unauthorized obstruction across a public street is a public nuisance which any citizen desiring to travel along the street may abate.
    3. Same — Abatement—Special Interest.
    If a special grievance on the part of an individual abating an obstruction in a highway be necessary, such grievance exists in the case of the highway commissioner by virtue of his office.
    4. Same — Acceptance or User — Question eor Jury.
    Evidence of the acceptance of a highway by doing work thereon and of its use by the public considered, and held,t sufficiently in conflict to make the question one for the jury.
    5. Same — Opening and Working.
    The fact that no part of a highway was opened and worked within four years after being laid out, as required by section 4063, 2 Comp. Laws, does not prevent the establishment of the highway by user under section 4061, but would merely require a user of ten years, instead of eight.
    6. Same.
    It is not essential that every part of a highway should be worked, in order to show the intention of the public authorities to accept the entire highway.
    /
    7. Trespass — Trial—Instructions.
    In trespass for removing fences from premises claimed by plaintiff, and alleged by defendant to be a highway, the court instructed that “on the part of plaintiff, * * * who has the burden of proof to show that a wrong has been committed against him, the issue becoming one as to whether this was a public and lawful way, the plaintiff claims that it was not, and that he had a right to inclose the strip of land.” In a subsequent part of the charge the jury were told that they must find for plaintiff, unless they found that the road was established as claimed by defendant. Held, that, taking the charge- as a whole, plaintiff could not complain that the burden was cast on him to show that the alleged highway was not a lawful road.
    Error to Tuscola; Beach, J.
    Submitted June 20, 1905.
    (Docket No. 38.)
    Decided October 2, 1905.
    Trespass quare clausum fregit, by John W. Neal against John Gilmore and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Porter & Haffey (Simonson, Oillett & Ciarle, of counsel), for appellant.

      B. L. Bans ford (Quinn & Wixson, of counsel), for appellees.
   Blair, J.

Plaintiff is the owner of the N. E. i of the N. E. J of section 28, and the S. E. £ of the S. E. £ of section 21, in township 14 N., of range 7 E. Plaintiff pur-' chased his north 40 in 1875, and constructed a fence on the south side thereof, about two rods distant from the east and west section line between sections 21 and 28. In 1877 plaintiff circulated a petition for the laying out and establishing of a highway commencing at the State road, some 80 rods east of the common corner of sections 27, 22, 28, and 21, and running west one mile to Saginaw Bay. Plaintiff obtained the signatures of seven freeholders of the township to this petition, and delivered it to the highway commissioner for action thereon, informing him, as he claims, that, if he did not lay out all of the proposed highway, he did not want any of it. The township records show that on September 4,1877, a survey was made for the proposed highway, and that on September 5th the same was laid out, except that part between sections 22 and 27. It was conceded at the trial that the records produced did not show a lawful laying out of the highway. About 1879 the then owner of plaintiff’s south 40 constructed a fence along the north side thereof, about 8 rods distant from the plaintiff’s fence, and thenceforth the east 80 rods of the alleged highway was inclosed by such fences. Some time in 1902 or 1903 plaintiff purchased his south 40 of one Bradford, and soon thereafter constructed three fences across the east 80 rods of the alleged highway. In June, 1903, the highway commissioner made an order, and served a copy thereof on plaintiff, requiring him to remove the obstructing fences in accordance with the provisions of the statute relating to the obstruction of highways and encroachments thereon. In response to this order, the plaintiff served notice on the commissioner, denying the existence of the highway, etc. No further steps to enforce his order were taken by the commissioner, but in December, 1903, he, with the other defendants herein, cut down and removed the fences. Thereupon the plaintiff brought this action of quare clausum fregit, to which the defendants pleaded the general issue, with notice that the close where the injuries were alleged to have been committed was a public highway, that defendant Gilmore was highway commissioner, and the other defendants were acting under his direction, in pursuance of the provisions of chapter 6 of Act No. 243 of the Public Acts of 1881, entitled “ The Obstruction of Highways and Encroachments Thereon.” The verdict of the jury was in favor of defendants, and plaintiff brings the record to this court for review.

The important questions presented by the assignments of error, and the only ones to which we think it necessary to refer in this opinion, are as follows:

(1) That the statute relating to obstructions and encroachments is exclusive of all other remedies, and, defendants not having proceeded under the statute, verdict should have been directed for plaintiff as requested.
(2) That there was no evidence of user by the public or as to the acceptance of the highway by the public authorities, and particularly as to the east 80 rods thereof, and therefore plaintiff was entitled to recover.
(3) That the court erred in refusing requests, and in giving instructions as to what facts would warrant the finding of the establishment of the highway by user.

1. This precise question was before the supreme court of New York in Wetmore v. Tracy, 14 Wend. (N. Y.) 250. It was there held that the statute authorizing commissioners of highways to order the removal of fences by the erection of which highways have been encroached upon does not abrogate the common-law remedy of abatement of nuisance by the mere act of individuals. The remedy given by the statute is cumulative. We fully concur in the reasoning and the result reached in this decision. The case before us is not one where the highway is only partially encroached upon or obstructed, but where the highway is entirely obstructed and closed to travel. In such a case, as said by Mr. Justice^ Champlin in Pontiac, etc., Plank-Road Co. v. Hilton, 69 Mich. 115.

“ An unauthorized obstruction across a public street is a public nuisance, which any citizen desiring to travel along the street may abate.”

If it were necessary to show a special grievance on the part of the individual abating the nuisance, we think such grievance exists in the case of the highway commissioner by virtue of his office, which gives to him “the general care and superintendence of highways ” in the township.

See Hart v. Mayor, etc., of Albany, 9 Wend. (N. Y.) 589.

2. The evidence of an acceptance of this highway by the doing of work thereon by the public authorities is not very convincing, and, if it lay within our province to determine the question of fact, we might arrive at a different conclusion from that reached by the jury; but we cannot say that there was no evidence tending to support the verdict in this regard. Mr. Lark, who owned some 60 acres of land west of plaintiff, testified that he had done most of his highway labor since 1887 upon this road:

The overseers allowed me to do my highway labor on that road. I can’t say what year. Mr. Gould, who is dead, allowed me the road work there a number of years. I can’t remember what years. I wouldn’t say, because I don’t know. It must be 12 or 15 years ago, maybe 10. * * * Whether it was Mr. Gould or somebody else, they always allowed me to do my road work on that road there, because I wanted to use it for a highway. He allowed me for my road work. I graded and dug ditches. In order to make the grades, I had to dig the ditch on the north side of the road. I don’t say on the disputed part of the highway; it was west. I never did any work on the disputed part of the highway; it was west. What Gould allowed me was for doing work on that road, but west of the disputed part, west of Neal’s. I did the work at my quarter line east and west, a little west, up to where the land was a little higher, in order to raise the road up, so that I could draw stuff over that part of the road.”

He also testified that at his request the highway commissioner put in a box drain at the east end of the road, where plaintiff had dug out the ditch so he could not cross it.

When the box was put in, there was dirt enough put over it so I could get over it; that made a connection between the two highways. Before the box was put in I couldn’t travel it at all. After it was put in I could get across it.”

Charles Daniels testified:

“I was overseer of highways there I think three years ago, and this year I. caused statute labor to be worked out on that highway. I think it was three years ago Mr. Bradford did six or eight days’ work on that road. I talked with Mr. Bradford before he' did the labor. I allowed him for the work on his highway labor. There was enough of the work done so that I accepted it. I went over it. I called it a good fair job of road work. I can’t tell you what he used, but he did a good job. He graded up the road the same as any road work. I allowed Mr. Lark for doing labor on that highway, I think it was three years ago. They were the only two in there interested to do work on that highway. I allowed them their highway work. Mr. Lark cut down some trees one year as .part of the highway work, so as to clean them out of the road and make it convenient.”

As to the use of this road by the public, there was testimony by several witnesses that the road throughout its length was traveled by such of the public as desired to use it going to ;a summer resort or picnic grounds, known as “Spencer’s Grove,” on Saginaw Bay; in hauling water from the bay in times of drought; in drawing fishing nets and apparatus to the bay and hauling back fish; and by Mr. Lark in hauling out his crops. There were no residences or buildings along the road, and the portion west of plaintiff’s land was obstructed to some extent, sometimes impassable, and was not so good as the east 80 rods, where practically all of the witnesses agree it was a reasonably good highway. Mr. Roscoe Black, a witness for defendants, testified:

“At the time this road was first laid out, it was practically used for the people to turn their cattle out onto, and then, of course, when they began to fence up these prairies, the cattle had to go to the bay. Then at the time of dry weather people had to draw water. Most every one had to at least, and they drove down that way. Well, at that time that was the route we used; just down through this first 80 rods from the east. Then this piece that Mr. Lark now owns wasn’t fenced. We usually turned off the highway there and went across Mr. Lark’s place to the shore, after passing this first 80 rods. Then, when he fenced that up, of course, we had to keep straight on down. We kept straight down, when we wanted to go to the grove or something like that. That fence was built on Mr. Lark’s place, I suppose about 15 years ago. First he built part way down, I think 80 rods, and afterwards he built the balance. Since that time it has been used for travel to the grove in the summer, and drawing water, ice, etc., in the winter, and logs. They pick up quite a good many logs on the shore. The east end has always been used for public travel since it was laid out, until it was shut up this last time, but the west part was closed up about 18 years ago by the high water and the logs coming in there. I can’t say how long that continued to keep it closed. It wasn’t very long. I passed through other times when the obstructions were pretty close, simply a little track where you could drive through. But there has always been a good beaten track from the time the fences were first built across the first 80 rods. Since Mr. Lark built his fence there has always been a good beaten track the balance of the way at all- times. I used it occasionally. I frequented the grove by that route. We would drive generally. Sometimes we would walk.”

Mr. Buchanan, a witness for plaintiff, testified:

‘ ‘ It is a fact that the road as far as the west end of Mr. Neal’s 40 is a pretty good highway. The road as far as the west line of Mr. Neal’s 40 from the east side is a pretty good highway; always has been since I have known it. * * * If I owned Lark’s place, I would not think of discontinuing that highway. So far as I know, I suppose Mr. Lark draws all his produce from his land in section 21 to his own farm on that road.”

Lester Briggs, a witness for the plaintiff, testified:

“Between Mr. Neal’s and Mr. Bradford’s the first 89 rods is a pretty passable roadway; a well-beaten track, where they drawed things over. It is quite a looking highway that portion.”
Mr. Ward, a witness for the plaintiff, testified:
“ It was a good road at the point where Mr. Neal fenced it in; yes a good highway for 80 rods.”
Mr. John Bradford, a witness for the plaintiff, testified:
“ I got charge of Mundy’s land shortly after he bought it, after he got it fenced. I think I bought of Mundy in ’85. I think I bought it a year or two before it was assessed to me. For several years before I had charge of the Mundy property I think I done the road work or saw it was done. At the time I got charge of this Mundy land there was not a road fence on the north side of it'. I helped Mr. Mundy build a good deal of it. The east 20 of it was fenced, I think. I think there was a pole fence there. It was built right, I think, somewhere near where the fence is now, or where it was when I bought it; I don’t know where the line is. We have had it resurveyed since. I think it was not on the line. When I bought it, I supposed that there was a highway there. I treated it as such. * * ■ * I have known that strip between the two fences to be used as a road for the public to travel over ever since I knew the place. * * * It was commons for a good while. Finally, when it was fenced up to a definite line, people could travel between the fences. That quarter line road from the south is a little better than this in some places. That isn’t much of a road there. Now the lower parts of them there isn’t either of them very good roads. Between Neal’s 40 in 21 and the one he recently bought, that is a pretty fair line, of road; fairly good road in dry time most any time. It is better than the lower end of the road.”

Plaintiff produced evidence tending to shotV that no work had ever been done upon the road by the public authorities, and that it was not used by the public. The evidence was conflicting, and we think the case was properly one for the jury. Village of Grandville v. Jenison, 84 Mich. 54; Gage v. Township of Pittsfield, 120 Mich. 436.

The fact that no part of the highway was opened and worked within four years after its being laid out, as required by section 4063, 2 Comp. Laws, does not prevent the establishment of the highway by user under section 4061. The failure to open and work the road within four years would merely require á user of ten years instead of eight; and it was open to the jury, under the evidence in this case, to find a user much longer than ten years. The evidence is undisputed that no work was done upon the 80-rod strip between the fences, which was obstructed by the cross-fences torn down by defendants; but it is also substantially undisputed that this 80 rods was a reasonably good highway, which did not need to be worked. It is not essential that every part of a highway should be worked in order to evidence the intention of the public authorities to accept and maintain the entire highway. The jury might properly find, under the evidence in this case, that the portions worked were so worked for use in connection with the 80 rods not worked.

8. Plaintiff contends that the court improperly instructed "the jury that the burden of proof was upon the plaintiff to show that the highway was not a lawful road. The court said to the jury upon this subject:

“Now, upon the part of the plaintiff, who brings the action here and who has the burden of proof, practically, to show that a wrong has been committed against him— the issue becoming one as to whether this was a public and lawful highway — the plaintiff claims that it was not, and that he had a right to inclose the strip of land in front of his tw.o 40’s, or dividing his two 40’s, and had a right to the exclusive use and control of it.
“On the part of the defendant, it is claimed that this is a lawful highway, and, while it is admitted, it is claimed that proceedings were attempted to be taken in 1877 by the commissioner of highways to lay out a highway from the section corner between sections 31 and 38, west to the bay shore, on the section line between sections 31 and 38, while it is admitted that what appears from the record here does not constitute a regular and lawful paper laying out of the highway, it is claimed that as a matter of fact the highway was laid out while the proceedings were irregular and defective, and not complete; that it was as a matter of fact laid out by the commissioner; and that, following that laying out, the road has become a road by user by the public for more than eight, for more than ten years.”

No request to charge was presented upon this subject, ■nor was the attention of the court called to the error, if any, in the instruction. In subsequent portions of the charge the court substantially instructed the jury that they must find for the plaintiff, unless they found that the road was established by user as claimed by the defendant. Taking the charge as a whole, we do not think the plaintiff was prejudiced by the instruction complained of. We think the-charge was fair, and correctly presented the issues to the jury for their determination, and contained the substance of plaintiff’s requests, so far as they properly reflected the law.

The judgment is affirmed.

MoAlvay, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    VILLAGE OF WAYNE v. GOLDSMITH.
    1. Certiorari — Sufficiency of Return — Matters Considered.
    Where a justice’s return to a certiorari to review a judgment in favor of a village for delinquent taxes states that it includes all the testimony, but neither the tax roll, the return roll of delinquent taxes, nor the extension of the village treasurer’s warrant are set out in the return, or contained in the record, an assignment of error that the judgment is not supported by the evidence cannot be considered.
    2. Same — Record—Supplying Omissions.
    The attachment of an exhibit to the record in the circuit court on certiorari, without further return from the justice, is without authority of law, and an exhibit so attached will not be considered.
    3. Attorney and Client — Authority to Appear — Statute— Application.
    Section 762, 1 Comp. Laws, does not require a village treasurer, bringing suit in the name of the village for taxes, to prove his authority to appear for the plaintiff.
    4. Certiorari — Return—Sufficiency—Matters Presented.
    On certiorari to review a judgment of a justice of the peace in favor of a village for delinquent taxes, an assignment of error that the tax roll showed on its face that the village treasurer had no authority to bring the suit cannot be considered where the tax roll is not in the record.
    5. Appeal and Error — Matters not in Record — Affidavits.
    The affidavit of counsel cannot be accepted on error as showing what was proven by official documents not in the record.
    6. Municipal Corporations — Power of Treasurer — Suit for . Taxes — Authorization by County Treasurer.
    Under sections 2868, 2871, 1 Comp. Laws, a village treasurer need not be authorized by the county treasurer to bring suit for delinquent taxes.
    Error to Wayne; Donovan, J.
    Submitted June 21, 1905.
    (Docket No. 182.)
    Decided October 2, 1905.
    Assumpsit in justice’s court by the village of Wayne against Earl Goldsmith for the taxes of 1903. Plaintiff had judgment, and defendant removed the case to the circuit court by writ of certiorari. The judgment was affirmed at the circuit, and defendant brings error.
    Affirmed.

      Edward M. Vining, for appellant.

      Hiram L. Bice, for appellee.
   Blair, J.

This is an action of assumpsit for the recovery of certain personal taxes assessed by the plaintiff against the defendant. The suit was brought by William H. Brewer, who claimed to be the village treasurer, in the name of the municipality, before a justice of the peace of said village. Plaintiff declared orally and filed a bill of particulars as follows:

“ 1903, June 15th. To personal taxes assessed by and in favor of the plaintiff, the village of "W ayne, and against the defendant, Earl Goldsmith___ $14 00
1903, July 25th. To collect fee of 4% on same.. 56
“Total..........................-.....$14 56”

Defendant pleaded the general issue, and by consent of the parties, the said Brewer claiming to represent plaintiff, and defendant being present in person and by attorney, the cause was adjourned. With reference to the appearance of the parties at this time, the justice’s return is as follows:

“December 3d. Case called at our name in adjournment of this cause. Both parties present — ■ village of Wayne by W. H. Brewer, village treasurer; defendant by E. M. Yining.”

On the adjourned day defendant amended his plea by giving notice of special matter. The case was tried by the court without a jury, and resulted in a judgment for plaintiff, which defendant removed to the circuit court by writ of certiorari. The judgment of the justice’s court having been affirmed in the circuit, defendant has removed the cause to this court.

The return of the justice to the affidavit for the writ of certiorari, so far as it relates to the testimony and proceedings on the trial, is as follows:

“ December 10th, 1 p. m. Case called at our name in adjournment, both parties present and in court — plaintiff by William H. Brewer; defendant by E. M. Yining. I, the said justice, proceeded to try the said cause without a jury. On the trial of said cause Anthony Snyder, a witness sworn on the part of the plaintiff, testified that he represented the county treasurer. Tax roll was offered in evidence. Defendant objected to the introduction of the so-called tax roll as void, for the reason stated on December 3, 1903, and for the further reason that it is incompetent, irrelevant, and immaterial. This objection is overruled. Defendant had an exception. Return roll of delinquent tax of Wayne village, pages 1 to 12, inclusive, offered in evidence. Objected to by defendant for the reason that it is incompetent, irrelevant, and immaterial, and for the reason stated on December 3, 1903, and for the further reason that there is no proof showing that the taxes have not been paid. Objections overruled and exception to defendant. Extension of the village treasurer’s warrant by the county treasurer offered in evidence. Defendant objected to the introduction of warrant signed by F. F. Snow, for the reason that -it is incompetent, irrelevant, and immaterial, and does not set forth in what year the persons mentioned therein are purported to have not paid their tax, except that said warrant says that said taxes were not paid in the year 190-, at which time the State of Michigan or the United States was not in existence. Overruled. Plaintiff rests. Defendant further moves to dismiss for the reason that there is no proof of any kind in this case, either in the writ or otherwise, that the village treasurer or any person acting for him is represented in this suit. Overruled. Defendant offered no testimony. And I also certify that the foregoing is all the testimony given on the said trial, and that, after hearing the proofs and allegations of the parties, I, the said justice, did take four days to render my decision. On December 14th I did render judgment in favor of the plaintiff and against the defendant for $14.56 damages and also $8.53 costs.”

The first assignment of error is that there was no evidence to support a judgment for the plaintiff. This assignment is based upon the certificate of the justice that his statement in the return comprised “ all the testimony given on the said trial.” But neither the tax roll, the return roll of delinquent taxes, nor the extension of the village treasurer’s warrant are set out in the return, or contained in the record. The attachment of Exhibit S to the record in the circuit court, without further return from the justice, was without authority of law and cannot be considered. The most material evidence in the case not being before us, we cannot consider this assignment.

The third and sixth assignments of error are based upon the failure of Mr. Brewer, upon demand therefor, to prove his authority to represent the plaintiff, as required by 1 Comp. Laws, § 762. This statute does not apply to a case like the present. The village treasurer’s authority to bring the suit is conferred upon him by statute, and upon proof that he is village treasurer the authority to proceed with the case is complete. The return of the justice shows that Mr. Brewer was village treasurer, and the assignments are without force.

The fourth assignment of error alleges that the tax roll showed on its face that the village treasurer had no authority to bring the suit. The tax roll is not before us, and we therefore cannot consider this assignment.

The fifth assignment alleges that there was no certificate, or warrant or proof of any kind that the county treasurer had authorized the village treasurer to bring said suit. The return roll, to which defendant’s counsel refers in discussing this assignment, is not before us, and we cannot accept the statements of his affidavit as to what is proved by official documents. He should have procured a further return and have made these documents part of the record. We do not think, however, that the village treasurer needs authority from the county treasurer to bring such a suit. 1 Comp. Laws, §§ 3868, 3871; Village of Chelsea v. Holmes, 137 Mich. 195.

We find no errors in the record, and the judgment is affirmed.

McAlvay, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    DAY LEATHER CO. v. MICHIGAN LEATHER CO.

    1. Brokers — Memorandum of Sale — Contract—Previous Conversations.
    A memorandum of sale made in triplicate and signed by a duly authorized broker, containing the names of the parties and the essentials of a contract, is a written contract which supersedes previous conversations between the parties relied upon to show an express warranty.
    2. Sales — Warranty—Breach—Duty of Buyer.
    In the absence of an express .warranty, the buyer, on receipt of the goods, must act promptly after an opportunity is given to inspect, and reject them within a reasonable time.
    Error to Wayne; Rohnert, J.
    Submitted February 7, 1905.
    (Docket No. 100.)
    Decided October 31, 1905.
    Assumpsit by the Day Leather Company against the Michigan Leather Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Adolph Sloman (Edmund M. Sloman, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.

      Rehearing denied December 30, 1905.

   McAlvay, J.

Plaintiff, an Indiana corporation, sued defendant, a Michigan corporation, in assumpsit for a balance claimed to be due for certain goods sold and delivered by it to defendant. The negotiations for the sale of the goods were had through G. A. Lilly & Co., brokers acting for plaintiff. The memorandum or order upon which the goods were shipped was in triplicate as follows:

“The Day Leather Co.,
“Michigan Leather Co.,
“ Detroit, Mich.
“At once.
“Terms, 2?» 30 days.
“30 rolls No. 1 harness, 22/26 lbs. at 30c.
“ 75 rolls B. harness, 22/26 lbs. at 29c.
“ Ship in one car and secure carload rates.
“ REMARKS.
“Confirming telegrams.
“Yours truly,
“G-. A. Lilly & Co.
“Jan. 24th, 1903.”

A copy of this order was sent to each of the parties. Twenty-one rolls of No. 1 leather and 72 rolls of B. leather were shipped to and received by defendant. Plaintiff claims that these grades of leather were of a kind and quality well known to the trade, that this leather was received by defendant at Detroit in good condition, and was of the class of goods described in the order. The goods were received at Detroit February 4, 1903, and delivered to defendant. The leather was in rolls, wrapped in paper. Defendant did not make any inspection of the leather, but at once shipped out many rolls on orders already taken, and put the balance in stock and continued to sell from this stock. On February 13th defendant wrote plaintiff that complaints were made as to the quality of the leather. Considerable correspondence passed between the parties. Finally plaintiff, not admitting defendant’s claim that the goods were not of standard quality, requested that the goods not sold be returned. This was done, and defendant given credit on account. The amount of the bill of goods sold to defendant was $6,590.80, upon which defendant has paid $3,000 cash. Other credits for goods returned, etc., leave a balance claimed by plaintiff of $1,314.95. Defendant gave notice of recoupment under the plea, claiming damages on account of defective goods, breach of warranty, loss of business and profit, and damage to good will of business. The case was tried before the court with a jury, and resulted in a verdict and judgment for plaintiff for the full amount claimed. From this judgment defendant brings the case to this court by writ of error.

The contention of the defendant is that there was an express warranty by the plaintiff as to the quality and grade of goods, and that the goods delivered were not as represented. In this transaction we find from the record that an offer had been made through Lilly & Co., brokers, on 100 rolls Day leather by Mr.. Frank, general manager and secretary of defendant, and declined. Defendant later inquired of Lilly & Co. what he could procure 100 rolls B Day leather for, and best terms. The answer to this inquiry was by telegram, January 21, 1903, as follows: “Can sell 100 rolls Day leather One and B 22-6 pounds, ship direct. Answer.” Mr. Lilly testified: “I received the final order for this leather, I think it was,the same day the order was forwarded as a submission of sale to be submitted.” January 24th the order in evidence was made in triplicate and a copy sent to both plaintiff and defendant. Mr. Lilly testified that this order was in confirmation of a telegram. Mr. Frank testified: “I didn’t know definitely until January 24th that I was going to have this leather.” This order amounted to a contract between these parties, and the court was not in error in excluding the conversations previous to entering into this contract offered by defendant to show express warranty. That defendant so considered it appears from the record.

In sales of this kind the law is well settled that, in the absence of an express warranty, the vendee on receipt of the goods must act promptly after an opportunity is given to inspect, and reject them within a reasonable time. Upon this branch of the case the court correctly instructed the jury. He also correctly instructed the .jury as to the implied warranty of fitness, and the kind and quality of goods plaintiff, under the order given, was required to furnish, and as to the measure of damages in case of failure so to do. The defendant’s requests not given were properly refused.

In this case the defendant admits that no proper inspection of the goods was made, although there was ample opportunity, leaving only the question of fact to be determined as to whether the goods sold and received were merchantable No. 1 and B harness leather of standard quality, as known to the trade. The charge of the court was not prejudicial.

It is not necessary to discuss the other assignments of error. We find no error in the case.

The judgment of the circuit court is'affirmed.

Moore, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: MgAlvay, J.

text:
    CUMMINGS v. BAKER.
    1. Appeal and Error — Findings—Conolusiveness.
    Findings supported by the evidence are conclusive.
    2. New Trial — Newly Discovered Evidence.
    Alleged newly discovered evidence that is mostly cumulative and does not clearly appear to be newly discovered is not ground for a new trial.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted April 5, 1905.
    (Docket No. 19.)
    Decided October 31, 1905.
    Assumpsit by J. Avery Cummings against Eugene E. Baker for money had and received and for work and labor done. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dunham & Malcolm, for appellant.
    ' E. A. Maher, for appellee.
   MgAlvay, J.

Plaintiff• sued defendant in assumpsit to recover for money and wages claimed to be due and owing him under the following circumstances: Plaintiff was a bartender in the saloon of one Parish in Grand Rapids, who was owing him $200 for wages, and claims that, by an arrangement between defendant, Parish, and plaintiff, defendant, on October 2, 1903, purchased by contract in writing from Parish his saloon, stock, and fixtures for $1,350, and that defendant paid cash $500 and by mutual agreement between all the parties the $200 which Parish owed plaintiff was applied and received on said purchase, leaving a balance of $650, which by the terms of the contract defendant agreed to pay in monthly installments of $50 each. On the same date, for the purpose of allowing the saloon to run without apparent change of ownership, and also, as plaintiff claims, because. defendant did not want his name to appear in the business on account of membership in certain societies, Parish gave plaintiff a power of attorney to run and operate the saloon. Plaintiff also claims that he gave defendant at different times $150 cash, under an agreement that, if he purchased one-half interest in the business, he was to be credited with all these amounts. Plaintiff claims that this arrangement was not carried out, that defendant and Parish combined to get rid of him, and that defendant refused to pay on his contract, and Parish took possession on forfeiture. Defendant and Parish afterwards jointly leased other premises in which Parish was to run a saloon. The wages claimed are for 16 weeks’ services as bartender at $10 per week.

The claim of defendant is that he loaned plaintiff $500 to make a payment on the saloon which plaintiff purchased from Parish, that the contract was made with him for the purpose of securing this loan and for no other purpose, and that plaintiff never worked for him and is indebted to him for a balance unpaid on said loan. The case was tried by the court without a jury, and facts found and conclusions of law thereon favorable to plaintiff. Amendments to these findings were presented by defendant and denied; the court at the same time further filing more extended findings of fact. To these findings defendant also proposed amendments, which were denied, and defendant excepted to such denial. A motion for a new trial was also denied.

The evidence presented on the trial by the parties was extremely contradictory; but there was abundant proof to support the findings of the trial judge. We do not find any error in the refusal to grant a new trial. The judgment was not excessive under the evidence, and, as already stated, was supported by the evidence. The claimed newly discovered evidence was mostly cumulative, and we agree with the court that it did not clearly appear to be newly discovered.

The only other exceptions' properly brought to the attention of this court by defendant in his brief relate to questions allowed by the court upon examination of the defendant and one of his witnesses. These questions were asked on cross-examination, and those asked defendant were clearly proper. The other witness was an attorney, and but one of the questions objected to is questionable, and, if the court allowed considerable latitude in this examination, the answer to the question could not be prejudicial. We find no error in the case.

The judgment of the circuit court will be affirmed.

Carpenter, Geant, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J. Grant, J.

text:
    HUNTER v. VILLAGE OF ITHACA.
    1. Municipal Corporations — Defective Sidewalks — Notice-Evidence.
    As bearing on the question of notice to a village of a defect in a sidewalk, whereby a pedestrian was injured, it is competent to show the condition of the walk throughout the block, where the attention of the street commissioner and his workman was called to the walk as an entirety.
    2. Same — Duty to Inspect.
    When village officials have actual notice of conditions which call for the inspection of a sidewalk, an examination is required such as a prudent man would make under like circumstances.
    3. Same — Evidence—Examination After Accident.
    In an action for injury from a defect in a sidewalk, testimony as to examinations of the walk by tests two or three months after the accident is not too remote.
    4. Evidence — Expert Testimony — Hypothetical Question.
    An objection that a physician testifying as an expert was asked whether an injury, such as the witness discovered, produced in the manner described, could cause an injury to the medulla, rather than whether such an injury would be likely to cause such results, goes to the weight of the testimony, rather than to its admissibility.
    5. Same.
    That a question to a physician as to certain results being caused by an injury was in such form as to permit him to use knowledge of the injured person’s condition not embodied in the question may not be complained of, where it appears that the physician’s opinion was based on conditions discovered by him and previously fully detailed to the jury.
    Error to Gratiot; Stone, J.
    Submitted June 13, 1905.
    (Docket No. 42.)
    Decided October 31, 1905.
    Case by Maranda Hunter, administratrix of the estate of Bruce Hunter, deceased, against the village of Ithaca, for negligent injuries to her intestate, resulting in his death. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John M. Ever den (Searl & Monfort, of counsel), for appellant.

      John T. Mathews, for appellee.
   Montgomery, J.

The plaintiff sued for damages for injuries sustained by her husband which are claimed to have caused his death. Plaintiff recovered, and defendant brings error. The decedent, while walking with his son on South street in the defendant village, was tripped and thrown forward by one end of a loose plank. The son stepped on the plank near the end, and it appears that the stringers were defective and decayed, causing the plank to become loosened and fly up. It also appears that the stringers were originally so placed as to leave 12 to 14 inches of the planks overhanging on one side of the walk. Complaint is made of rulings admitting testimony as to the condition of the walk at points on the same block and near to the place of injury. Complaint is also made of rulings as to notice of the defect, and of the instructions upon that subject.

The undisputed testimony showed that the village street commissioner had his attention called by a member of the common council to the sidewalk on South street. This was shortly before the accident. He walked over the entire length of it, and directed repairs to be made, but did not discover the defect in question. He employed one Wood to make these repairs, instructing him to fix the sidewalk on the north side of South street between Pine River street and Elm street, to find out what was defective and fix it. The inspection made by the street commissioner was by walking over the walk, and that made by Wood was made in the same manner. Neither discovered the defects. We have no doubt that, as bearing upon the question of notice, it was competent to show the condition of this walk through the block, particularly as it was to this walk as an entirety that the attention of both the street commissioner and his workman was called. Strudgeon v. Village of Sand Beach, 107 Mich. 496, and cases cited; Will v. Village of Mendon, 108 Mich. 251.

The instruction upon the subject of notice was as follows :

“Now, in connection with that, the defendant has asked me to charge, and I do charge you, respecting ordinary sidewalks, such as the one in question in this case — ■ I charge you that there is no duty on the part of the defendant to make an inspection of the substructure, in the absence of actual notice. Municipalities are only liable for such defects in sidewalks as are apparent or are suggested by appearances, or which are disclosed by a test in the nature of the ordinary use of such walks.”

This instruction was given at the request of defendant. The court added on his own motion the following:

“I would explain in that connection_by ‘ordinary use of such walk,’ or by the use of the words ‘ in the nature of the ordinary use of such walks,’ is not meant such as a person walking over the walk with no regard for the walk would have, but such as a person going over the walk in the ordinary way that people go over walks, at the time being mindful of its condition, and having particularly in mind the duty of ascertaining the condition of the walk with reference to whether it was safe and fit for public travel. If they made that kind of an inspection, they would have discharged their duty, even though they might have failed to have found the loose board. And if the board at that time, you should find from the evidence, was insecure, and, as I said before, in a condition so it was not safe and fit for public travel, then the village would not be liable in this case.”

We think this was a very proper modification of defendant’s request to make it applicable to the case in hand. It is to be kept in mind that the commissioner had been notified that a strip of walk, including that in which the defect causing decedent’s injury was located, was defective. If the casual examination of an officer’s passing over the walk would be sufficient in ordinary cases, it does not follow that it would be due care in such circumstances.

An examination of the cases discloses that a distinction has often been noted between cases in which there was a mere neglect of the authorities to ascertain a condition, unaccompanied by any circumstances which should have given rise to a suspicion' of danger calling for investigation, and cases in which such circumstances exist. This distinction is pointed out by Mr. Justice Hooker in Thomas v. city of Flint, 123 Mich., at page 37 (47 L. R. A. 499). See, also, Township of Medina v. Perkins, 48 Mich. 67, and Randall v. Township of Southfield, 116 Mich. 501. And note the limitations placed on the latter case by Mr. Justice Hooker in Thomas v. City of Flint, at pages 29 and 30. There may be notice to the authorities which, not amounting to exact notice of the defect, is yet such as should put a prudent man on inquiry, and of itself create a duty to examine. Thomas v. City of Flint, at page 27. This being so, it follows that the care in making an examination required is such as a prudent man, having such notice, would exercise under the circumstances, and it cannot be said as matter of law that merely walking over the sidewalk in a casual way is such care.

It is urged that this instruction as given imports that there is a duty of inspection, and that it conflicts with the rule laid down by the court in Thomas v. City of Flint, supra. The case of Thomas v. City of Flint does not hold that there may not be a duty of inspection in some circumstances. On the contrary, as pointed out above, the duty to inspect may arise when the officials have actual notice of conditions which call for inspection. We think the testimony as to examination of the walk, tests made two and three months after the injury, was not too remote.

Error is assigned upon a ruling admitting a question to Dr. Porter, stating hypothetically the circumstances of the injury to the deceased, and asking whether an injury such as the witness discovered, produced in this manner, could cause an injury to the medulla. This question was objected to on two grounds, first, because it did not call for a statement that such an injury would be likely to cause such results; and, second, because it permitted the doctor to use knowledge of the patient’s condition not embodied in the question. The first objection went rather to the weight of the testimony than its admissibility. The latter would, under Fuller v. Mayor, etc., of Jackson, 93 Mich. 301, be entitled to weight, were we not satisfied that the opinion of the doctor was based upon conditions discovered by him and previously fully detailed to the jury.

We think there was a case for the jury.

Judgment affirmed.

Carpenter, McAlvay, and Ostrander, JJ., concurred with Montgomery, J.

Grant, J.

(concurring). Liability for damages resulting 'from defective streets depends entirely upon the statute, which has received construction in many cases by this court. I do not understand that any of them has held a municipality liable for failure to inspect or for defective inspection. It is of no consequence what or who causes the defect. When the municipality has notice or knowledge of the defect, it is then, and then only, liable for damages, if it fails to repair within a reasonable time. It is immaterial how this knowledge is acquired or the notice brought home to the municipality. It must have, however, either actual or constructive notice. As we .said, speaking through Brother Hooker, in Thomas v. City of Flint, 133 Mich. 10, 37 (47 L. R. A. 499):

“ The act [the statute] plainly limits liability to a case arising after knowledge or notice of the defect causing the injury. * * * The law is plain, and we should not hold that a city or township is liable because it negligently omitted inspection, when the legislative intention to limit recovery to cases arising from known defects is clear.”

I do not understand that the opinion in Thomas v. City of Flint recognizes a duty of inspection, the failure to make which is a ground of liability for damages. In this case the attention of the proper officers was called to the defective condition of this sidewalk, and the proper officers were sent to inspect it. They did inspect it. The defects were such that it is claimed that they ought to have seen them. The inspection made by the officers, and the character of the defects, were competent as evidence from which the jury might infer actual knowledge of the defects. While there are expressions in the instruction of the court which, standing alone, would imply a liability for failure to inspect, or for improper inspection, I think the instruction, taken as a whole, correctly states the law, and could not have misled the jury. At the very conclusion of the instruction the court said to the jury:

“The plaintiff cannot recover, unless the proof is made of notice of such defect by the defendant, or knowledge of such defect; and this notice or knowledge must be of the particular defect complained of in the declaration. The particular defect complained of in the declaration, gentlemen, is the defect of a loose plank at a point 16 or 18 feet west of the railroad.”

I think the instruction as a whole could not have been misunderstood by the jury, and therefore concur in affirming the judgment.


author: Moore, C. J.

text:
    BARKUME v. PHELPS, BRACE & CO.
    1. Equity — Decree—Filing Opinion — Jurisdiction—Review.
    Whether the chancery court lost jurisdiction by failing to file its decree within six months of the final submission of the cause, as provided by section 558, 1 Comp. Laws, cannot be determined on a record that shows when the testimony was taken and when the decree was filed, but not when the case was argued and submitted.

      2. ^Homestead — Exemption—Extent—City Lots.
    Two city lots, having a combined frontage of 60 feet, occupied by a family dwelling standing one-hálf on each, the whole property not worth more than the amount allowed as an exemption, may be exempt as a homestead.
    Appeal from Wayne; Frazer, J.
    Submitted October 6, 1905.
    (Docket No. 19.)
    Decided October 31, 1905.
    Bill by Charles Barkume and Mary Barkume against Phelps, Brace & Company to restrain an execution levy and sale. From a decree for complainants, defendant appeals.
    Affirmed.

      James H. Pound, for complainants.

      George B. Greening, for defendant.
   Moore, C. J.

This is a bill filed to remove a levy made upon land claimed as a homestead. From a decree made in accordance with the prayer of the bill, the case is brought here by appeal.

The circuit judge found that the property was of less value than the exemption, and we think he was warranted in so finding from the testimony. The levy was made upon lots 7 and 8 of J. C. D. Williams’ subdivision of lot 17 of private claim 30. Mr. Barkume’s testimony is in part as follows:

“ I live on the land described, 60 feet front on the west side of McKinstry avenue, and have for the last 28 years. There is a two-story frame house on the land. When I moved on this land, it was in Springwells township. The building was built 29 years ago. It has been used by me as my dwelling, for myself and family, ever since being built. I am a married man and have children, seven of them. The house is now in the same place as it always was. The house is built in the center of the piece of land, 11 feet on each lot. The house is 22 feet wide.”

This testimony is not contradicted.

The solicitor for defendant raises two questions. First, he claims the court lost jurisdiction because the judge did not decide the case within six months after it was submitted to him, citing a statute which provides that cases in chancery shall be decided within six months after they are submitted. [1 Comp. Laws, § 558.] It is not necessary to construe this statute in this case. The record shows when the testimony was taken and when the decree was rendered, but it does not disclose when the case was argued and submitted.

The second question is stated by counsel as follows:

“Are the complainants entitled to an exemption of two lots within the corporate limits of the city of Detroit?” We think the question is answered by King v. Welborn, 83 Mich. 195 (9 L. R. A. 803).

The decree is affirmed, with costs.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.