author: Fellows, J. BIRD, J.

text:
    PEOPLE v. SPAULDING.
    Intoxicating Liquors — Criminal Law — False Label — Common Carriers.
    Evidence, in a prosecution for violation of tlie Pray act (2 Comp. Laws 1915, § 7118 et seq.), that defendant had liquor shipped under a fictitious name, from Chicago to a point in a wet county, and then transported same by means of a common carrier dray line into a local-option county, held, sufficient to sustain a conviction. Ostrander, C. J., and Bird, Brooke, and Kuhn, JJ., dissenting.
    Exceptions before judgment from Calhoun; North, J.
    Submitted January 18, 1918.
    (Docket No. 195.)
    Decided March 28, 1918.
    Fay Spaulding was convicted of violating the local-option law.
    Affirmed by a divided court.

      Howard W. Cavanagh and John W. Bailey, for appellant.

      Adrian F. Cooper, Prosecuting Attorney, and James Cleary, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

I do not agree with Mr. Justice Bird in the result reached in this case. The record satisfies me, as it did the jury, that the shipment of these goods to Parma was camouflage, pure and simple,.so transparent as to deceive no one when the actual facts were developed. The jury found, and they were justified in finding, that these eight barrels and the one box of whisky were shipped by Morand Brothers at Chicago to defendant at Battle Creek, via Parma, with a fictitious consignee, and a fictitious point of consignment.

Defendant was not transporting liquor upon his own person or in his own conveyance into a local option county, but was completing its transportation from Chicago to Battle Creek by means of a dray line employed by him for that purpose. The drayman, who describes himself, and properly so, as a public carrier, was in the business of transporting merchandise by auto truck, at the rate of fifty cents per mile one way, and was, in the contemplation of this act, as much engaged in the business of transportation as was the Michigan Central Railroad Company which brought this liquor part way on its journey. In Lawson v. Judge of Recorder’s Court, 175 Mich. 375, this court, speaking through Mr. Justice KUHN, said:

“Persons who are engaged in the business of dray-, men or truckmen for transportation of goods and merchandise within a city are held to be common carriers. A common carrier has been defined as ‘one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.’ 6 Cye. p. 365. The business of a public moving van company clearly comes within this definition and there can be no question that they carry on their business subject to the rules governing common carriers. The business being public in character, it has been repeatedly held by- the courts that it is subject to reasonable public regulations.”

In the case of People v. Bola, 197 Mich. 370, cited by Mr. Justice BIRD, it was stated by Mr. Justice Brooke:

“The only question involved is whether a resident in a so-called local option county may purchase liquor in a county where such purchase and sale is lawful and transport the sanie, either upon his person or in his own conveyance, into a local option county for his own personal use, without having the packages labeled in-accordance with the section above quoted.”

In that case defendant had purchased the liquor in a “wet” county and brought it to his home in his own conveyance, so that there was neither consignor nor consignee. This is made clear by what was further said by Justice Brooke:

“The legality of the sale of the liquor in Saginaw county to respondent is not involved. He became its owner in a "wet’ county. Thereafter he was neither consignor nor consignee of the same, and the section in question has no application to him in relation thereto.”

■ The instant case, however, is radically different. Here we have a consignor (Morand Brothers), a consignee (the defendant, not the fictitious A. J. Wise who did not exist), a common carrier (the auto truck dray line), which was, by direction of defendant and in his employ, transporting liquor through a dry county with a false label upon it, completing the last lap of its journey from Chicago to Battle Creek via Parma. Under such circumstances the “Pray act” was being violated, both in letter and spirit, and it does not require judicial legislation to say so. If defendant had employed the interurban line between Parma and Battle Creek to complete the transportation of this liquor with its false label, from Chicago to Battle Creek, no one would seriously contend that the “Pray act” had not been violated. What difference does it make that he selected another common carrier, one using the public highway instead of steel rails, using gasoline instead of steam for its motive power? None whatever. This legislation must not be rendered nugatory by too narrow a construction. As this presents the only meritorious question in the case I think the conviction should be affirmed.

Moore, Steere, and Stone, JJ., concurred with Fellows, J.

BIRD, J.

(dissenting). Respondent, Spaulding, was informed against and convicted of the offense of having shipped, or caused to be shipped, into Calhoun county eight barrels and one box of whisky with false labels thereon, in violation of the so-called “Pray law,” the same being Act No. 381 of the Public Acts of 1913 (2 Comp. Laws 1915, § 7118 et seq.). It is charged that said labels were false in that they did not give the true name and address of the consignee. There was very little conflict in the testimony. The record discloses that respondent is a druggist in the city of Battle Creek, Calhoun county; that the sale of intoxicating liquors in that county is prohibited by law; that said liquor was shipped by Morand Bros., of Chicago, via Michigan Central Railway to A. J. Wise, of Parma, Jackson county, a so-called “wet county”; that defendant engaged a truck and drove to Parma, produced the bill of lading, and was given possession of the whisky; that the same was loaded on his truck and while he was returning to Battle Creek and while in Calhoun county, the truck was intercepted by the sheriff of Calhoun county, who seized the whisky and arrested respondent.

It was the claim of the people that the liquor was the property of respondent and that he was the real consignee and, therefore, the labels were false.

The contention of the respondent is that the information does not charge an offense known to the law and that the testimony does not prove a violation of any law of this State. That part of Act No. 381 material to this controversy is section 2, which reads as follows:

“It shall be unlawful for any person to consign, ship or transport in any manner whatsoever, or deliver any of the liquors mentioned in section one of this act to any person in any township, municipality or county where by law, either local or State-wide in its operation, the manufacture and sale of such liquors for beverage purposes is prohibited, or for any person residing in such prohibited territory to receive any such liquors, unless there appears upon the outside of the package containing any such liquors the following information: Name and address of the consignor; name and address of the consignee; kind and quantity of liquor therein contained, and the statement either that such liquors are for personal and family use of the consignee, or for medicinal, mechanical, chemical, scientific or sacramental purposes, or that consignee is a person authorized to sell such liquors for medicinal, mechanical, chemical, scientific or sacramental purposes. Any consignee accepting or receiving any package containing any such liquors upon which appears a false statement, or any person consigning, shipping, transporting or delivering any such package, knowing that said statement appearing upon the outside thereof is false, shall be deemed guilty of violating the provisions of this act.”

It will be observed that this act operates only in counties, where the sale of liquor is prohibited. By reason of this the provision in regard to labels would be in force in Calhoun county but not in Jackson county. Inasmuch as the whisky was consigned to respondent in Jackson county and delivered to him there it was unimportant what labels the packages bore, or whether they bore any. It is, charged by the people and admitted by respondent "that the whisky was his property. It being his property he had the right to remain in Jackson county with it, or proceed to Calhoun county with it. People v. Bola, 197 Mich. 370. (The question as to whether the provisions with reference to storing and selling were violated after he arrived in Calhoun county are questions with which we are not concerned on this record.) But the prosecutor argues that it was a transportation which reached from Chicago through Parma to Battle Creek. In other words, that it was a continuous transportation between Chicago and Battle Creek, and, therefore, came within the inhibition of the act. The difficulty of considering it a continuous transportation from Chicago to Battle Creek via Parma is that the transportation contemplated by the act had ceased at Parma when the carrier delivered the packages to their owner, the respondent. Between Chicago and Parma there were consignor, consignee and carrier. Between Parma and Battle Creek there was no consignor nor carrier, simply the consignee conveying his own property. The undisclosed intention of respondent to convey the liquors from Parma to Battle Creek tacked on to the bill of lading would not, within the meaning of the act, constitute a shipment between Chicago and Battle Creek. Had respondent purchased the liquor for himself in Jackson city, and carried it into Calhoun county, he would have violated no provision of this act. (People v. Bola, supra.) We think the present situation is no different in principle. If we were to give this act the construction contended for by the prosecutor, we should be obliged to go farther than the legislature has gone, and also set at naught our holding in the case of People v. Bola.

The judgment of conviction should be set aside and the respondent discharged.

Ostrander, C. J., arid Brooke and Kuhn, JJ., concurred with Bird, J.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FROHLICH v. AIKMAN.
    New Trial — Newly-Discovered Evidence — Cumulative Evidence —Reopening Case.
    On petition of plaintiff to reopen a chancery case and allow the introduction of alleged newly-discovered evidence, where such evidence, which might have been brought out but for objection of plaintiff’s counsel, would be cumulative only, other witnesses having testified upon the same point, and, if admitted, no different result should be reached, the petition will be denied.
    Petition by Edward Frohlich against William Ademan, Jr., revived against Henry I. Armstrong and another, executors, to reopen a case in chancery on the ground of newly-discovered evidence.
    Submitted January 8, 1918.
    (Calendar No. 26,828.)
    Petition denied March 28, 1918.

      Edward Cahill, for petitioner.

      R. F. Eldredge (Angelí, Bodman & Turner, of counsel) , for defendant.
   Per Curiam.

In this case a decree dismissing plaintiff’s bill of complaint was entered upon an opinion filed March 29, 1917, 194 Mich. 569. Later a motion for rehearing was made and denied. Another petition is now filed by plaintiff in which he sets out the fact that on November 7, 1917, he met one George Scheffer in the city of Detroit, to whom he said:

“The Supreme Court beat me and held the .deed was not a mortgage

that thereupon said Scheffer said to plaintiff:

“I know that is not the fact, because Aikman himself told me that he loaned you the $2,500 and took the deed as security for the loan.”

Plaintiff prays:

“That the record and all proceedings heretofore taken in this cause be remanded to the circuit court for the county of Macomb in chancery for the purpose of submitting to said court and for its determination thereon, the testimony of George Scheffer relating to an interview or interviews between him and William Aikman in the lifetime of said William Aikman, wherein the said Aikman discussed with the said George Scheffer, the $2,500 loan and the quitclaim deed given as security therefor.
“That in the event this court should conclude that instead of remanding the proceedings and record herein as above prayed, a more suitable practice would be to proceed by bill of review, then that this petitioner be authorized and empowered to file a bill of review in the circuit court for the county of Macomb in chancery whereby the newly-discovered evidence to the effect that the deed in controvérsy was a mortgage, may be made, and become a part of the proofs in this cause, and may be considered, reviewed, and determined by the circuit court for the county of Ma-comb, in chancery.”

This petition is supported by the affidavit of George F. Scheffer to the effect that Mr. Aikman told him that he, Aikman, had loaned Edward Frohlich $2,500, and that Mr. Frohlich had deeded to him his undivided interest in the lands owned by said Frohlich and Aikman in partnership.

We are of opinion that the prayer of the petition should be denied upon several grounds: The evidence offered is not newly-discovered evidence within the rule. Scheffer was a witness upon the trial and the following question was asked him:

“Q. Did you have any talk with either Frohlich or Aikman so that you knew of the fact that Mr. Frohlich had deeded to Mr. Aikman his interest in the property up there?
“A. Mr. Aikman told me some time before he died — ■
“Mr. Erskine (counsel for plaintiff): We object to that.”

It is the claim of plaintiff now that because Scheffer was called as a witness for the defendant it never occurred to him to ask Scheffer whether he had any information relating to the deed in question and that he assumed from the fact that defendants called Scheffer that he knew no facts favorable to plaintiff’s position. Plaintiff was advised by the unfinished answer of the witness, Scheffer, while upon the stand that he did know something about the transaction, but through his own counsel he prevented the testimony from being elicited. It has been held that if the testimony given suggests inquiry as to what is claimed is n'ewly-discovered evidence, a reopening is not granted. Sherwood v. Savings Bank, 104 Mich. 65, and Detroit Savings Bank v. Truesdale, 38 Mich. 444.

The testimony at most if received would be cumulative only as plaintiff’s mother, Mrs. Frohlich, William Rose, and Fred J. Rose all testified upon the point. Finally, even if admitted, no different result should be reached.

The prayer of the petition is denied.

Kuhn, J., took no part in the decision.


author: Bird, J. Ostrander, C. J.

text:
    ARNETT v. HAYES WHEEL CO.
    1. Master and Servant — Relation—Right to Control During Temporary Employment. '
    A person, who avails himself of the use, temporarily, of the services of a servant regularly employed by another, may be liable as master for the acts of such servant during the temporary service; the test being as to who retains, the right to control the servant.
    2. Same — Workmen’s Compensation Aot — Temporary Employment — Liability.
    Where a blow-pipe company contracted to install in the factory of a wheel company an extension to its blow-pipe and dust arrester system; the latter company furnishing certain helpers to assist in the work, and while it was ih progress the blow-pipe company was in full control of the work and of the men engaged therein, it was liable, under the workmen’s compensation act, for the death of one of the helpers so furnished, although he continued on the pay roll of the wheel company. Ostrander, C. J., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1918.
    (Docket No. 34.)
    Decided March 28 1918.
    Rehearing denied June 20, 1918.
    Mamie Arnett presented separate claims for compensation against the Hayes Wheel Company and the Grand Rapids Blow Pipe & Dust Arrester Company for the accidental death of her husband in defendants’ employ. From an order awarding compensation against the Hayes Wheel Company, it and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring, certiorari.
    Reversed, and award entered against the Grand Rapids Blow Pipe & Dust Arrester Company and the Fidelity Casualty Company, its insurer.

      Beaumont, Smith & Harris, for appellants.

      Guy W. Moore and Hal P. Wilson, for appellees.

      Kerr & Lacey, for plaintiff.
   Bird, J.

The defendant Grand Rapids Blow Pipe & Dust Arrester Company, a manufacturing company of Grand Rapids, made a written offer to the Hayes Wheel Company of Jackson to install.in its factory an extension to its blow pipe and dust arrester, on 'the following terms:

“In regard to further changes and additions to your dust collecting system at above address, will say that we will furnish you with the following equipment. (Here follows an inventory of materials needed and price of same.) We will also furnish you with the necessary expert erecting mechanics to install the system at the rate of sixty cents (60c) per hour arid you to assume their railroad fare from Grand Rapids to Jackson and return, and also their board and lodging while on the job, the latter not to exceed one dollar per day. The contractor is to design the system and guarantee successful operation of the same and furnish the necessary skilled mechanics to install it according to the specifications' hereto attached, putting the same in first-class working order. The purchaser is to set up and belt the fans, furnish supports for the discharge pipes, fans and dust arresters, and such scaffolding as is required, cut the boiler front for the feeder chute, do the carpenter and mason work and furnish labor to help at his own expense. * * *
“The purchaser agrees that the machines to be piped will be placed in positions designated when the measurements for the system are taken and that the contractor will not be delayed in his work by machinery not being in position when he is ready to pipe same. Also that he will test the system thoroughly on completion in order to designate any poor results and have them made to work properly before the mechanic leaves. The contractor is to start work at once after the order is given and carry the same forward to completion.
“Terms, one-half of which is to be paid on delivery of material and the balance thirty days after completion. All material furnished by the contractor is to remain his property until the cash is paid.” * * *

The offer was accepted, the materials were shipped and work begun. In accordance with the contract three skilled mechanics were furnished and the Jackson company was called upon to furnish each one of them a helper. Among the helpers furnished was Cecil Arnett, husband of plaintiff, who was employed and assigned as helper to Harry Byle. On November 8, 1915, during the progress of the work, while Byle and Arnett were in the boiler room attempting to connect the blow pipe extending from, plant No. 1 to plant No. 2, an explosion occurred resulting in the death of both Byle and Arnett. Plaintiff, being in doubt to which company she should look for compensation, filed a claim against both. Both companies denied liability and each insisted that the other was liable.

The matter was presented to an arbitration committee and they found that plaintiff was entitled to an award and that the Grand Rapids company was liable therefor. Upon appeal the full board affirmed the finding that plaintiff was entitled to an award, but reversed the finding of the committee that the Grand Rapids company was liable therefor and held the Jackson company liable. The 'matter is now in this court on certiorari and the sole question is, Which company is liable? ’

The question to be determined is, Whose servant was Arnett when he received his injuries? This question is one which not infrequently arises, and the following rule, as gathered from the adjudicated cases, is suggested by Cyc. as an aid in determining the question.

“A person who avails himself of the use, temporarily, of the services of a servant regularly employed by another person may be liable as master for the acts of such servant during the temporary service. The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the-person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under the control of a third person. Subject to these rules, the original master is not liable for injuries resulting from acts of the servant while under the control of a third person; but on the other hand the original master is liable, and the third person is not liable where the control of the servant is retained by the original master.” 26 Cyc. p. 1522.

This rule is a fair statement of the holdings of the adjudicated cases and one which has been approved by this court in Janik v. Ford Motor Co., 180 Mich. 557.

By the terms of the contract the Grand Rapids company was to furnish the skilled mechanics and the Jackson company was to furnish the common laborers. After the laborers were employed and turned over to the Grand Rapids company, nothing, was left to be done by the Jackson company but to pay them. After they were placed subject to the orders of the Grand Rapids company they worked with the servants of that company, used the tools of that company upon materials owned by that company, obeyed the orders of that company, worked the particular hours designated by that company, and obtained the consent of that company if they desired to absent themselves for a time. The Grand Rapids company was familiar with the work of installing the machine and apparatus, and knew, or was supposed to know, the safe way and the unsafe way of doing the work, and it did direct how and when the work should be done. The Jackson company did not reserve the right to direct or interfere with the work, and, so far as the record shows, it did not. -It simply contracted for results and as a consequence it had little interest in the details of the work leading up to a fulfillment of the contract. It had few duties, in connection with the construction of the work until a test of the machines and apparatus showed that the guaranteed results had been attained. When the foregoing rule is applied to these facts and circumstances we think it must be said that the Grand Rapids company was the master and Arnett its temporary servant.

But it is argued that Arnett was the servant of the Jackson company because employed and paid by it. Ordinarily these are strong factors in determining the question, but they are not controlling where it is shown that the employee was actually under the control of another person during the progress of the work. Janik v. Ford Motor Co., supra; 1 Bradbury’s Workmen’s Compensation (2d Ed.), p. 109; 1 Labatt’s Master & Servant (2d Ed.), pp. 63-67. See, also, Spooner v. Detroit Saturday Night Co., 187 Mich. 125; Opitz v. Hoertz, 194 Mich. 626.

Entertaining this view of the matter, the award against the Hayes Wheel Company must be vacated and one entered against the Grand Rapids Blow Pipe & Dust Arrester Company. The Hayes Wheel Company and Mamie Arnett, the plaintiff, will recover their costs in this court and tax them against the Grand Rapids Blow Pipe & Dust Arrester Company.

Moore, Steere, Brooke, Fellows, Stone, and Kühn, JJ., concurred with Bird, J.

Ostrander, C. J.

(dissenting). In my opinion the finding of the board should be sustained for reasons given in its opinion.


author: Bird, J.

text:
    MILLER v. GRAND TRUNK WESTERN RAILWAY CO.
    Master and Servant — Railroads—Interstate Commerce — Workmen’s Compensation Law — Federal Employers’ Liability Act —Jurisdiction.
    Where plaintiff’s husband was accidentally killed while inspecting and repairing an air hose on a train engaged exclusively in interstate commerce, the industrial accident board was without jurisdiction to make an award under the workmen’s compensation act; her remedy, if any, being under the Federal employers’ liability act (35 U. S. Stat. 65). Carey v. Railway Co., 200 Mich. 12.
    Certiorari to Industrial Accident Board.
    Submitted January 11, 1918.
    (Docket No. 60.)
    Decided March 28, 1918.
    Annie Miller presented her claim for compensation against the Grand Trunk Western Railway Company for the accidential death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and award set aside.

      Stewart & Jacobs (Harrison Geer, of counsel), for appellant.

      Verner W. Main, for appellee.
   Bird, J.

On October 23, 1916, plaintiff’s husband, James L. Miller, was employed by defendant as a car inspector at the city of Battle Creek, one of defendant’s divisional points. It.is claimed that while deceased was inspecting and repairing an air hose on one of defendant’s trains he was injured, and that his death afterward resulted from such injuries. A death award was made by the industrial accident board and defendant has brought the proceedings to this court with the claim that the award is without authority of law because the Michigan industrial accident board was without jurisdiction to entertain the case. This contention is based upon the claim, which does not appear to be disputed, that the train upon- which the deceased was working at the time his injuries were received, was ah interstate train and was being used in interstate commerce, and that if plaintiff is entitled to recover she must do so under the Federal act. We think the point is well taken. The case is ruled by Carey v. Railway Co., 200 Mich. 12.

The award made by the industrial .accident board must be, and is -hereby, vacated.

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


author: Moore, J.

text:
    SAYLES v. MURPHY.
    1. Landlord and Tenant — Summary Proceedings — Title.
    Summary proceedings will not lie wñere a question of title is involved.
    2. Same — Claim of Title.
    But a mere claim of title will not defeat summary proceedings, and where both parties trace title to the same person and claim under him, there is sufficient privity between .hem to sustain the proceeding.
    3. Same.
    Where plaintiff sublet premises to defendant to a certain date, when his lease expired, and before the expiration thereof plaintiff secured a second lease to begin at the expiration of the first one, or before if the premises were vacated, lie was entitled, on expiration of the original lease, to possession of the premises as against defendant who claimed under a bill of sale of personal property from one who had no interest in the leased premises.
    Error to Muskegon; Sullivan, J.
    Submitted January 25, 1918.
    (Docket No. 139.)
    Decided March 28, 1918.
    Summary proceedings by Frank Sayles against George E. Murphy for the possession of certain leased premises. Plaintiff had judgment of restitution before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Cross, Foote & Sessions, for appellant.

      Turner & Turner, for appellee.
   Moore, J.

This is a summary proceeding to recover the possession of lands, commenced before a circuit court commissioner, where plaintiff recovered judgment. Upon removal of the case to the circuit court a verdict was directed in favor of the plaintiff and a judgment duly entered. The case is brought here by writ of error.

We quote from the brief of counsel for the appellant:

“The questions involved relate chiefly to the error of the trial court in allowing conflicting claims of title to be litigated and determined in summary proceedings, when'the plaintiff’s sole and appropriate remedy, if any, was either an action in ejectment or an action for damages.”

It is important to have the facts disclosed by the record in mind: George McGowan is the owner of the real estate known as No. 5 West Western avenue in the city of Muskegon. On April 4, 1913, he executed a lease of the premises to Charles F. Tonnelier for a period of ten years, a clause in the lease gave Mr. Tonnelier the right to sublet the premises. On February 2, 1914, Mr. Tonnelier executed to Frank Sayles a lease of the premises for a term of three years. This lease contained a clause prohibiting second party from subletting the premises without the written consent of the first party.

On February 9, 1915, Frank Sayles executed to George E. Murphy a bill of sale conveying to the second party certain personal property and containing the following:

“All the rights of the party of the first part in lease of building in which is contained the Lion Theater belonging to said party of the first part and now in his possession at No. 5 West Western avenue in the city of Muskegon aforesaid.”

It is the claim of plaintiff that the rent was to be paid to Mr. Tonnelier in the name of Mr. Sayles. Mr. Murphy took possession under this paper and for a time paid the rent to Charles F. Tonnelier in the name of Mr. Sayles. After a time and up to the expiration of the lease on February 2, 1917, Mr. Murphy paid the rent to Charles F. Tonnelier.

On December 9, 1915, Charles F. Tonnelier executed to Frank Sayles another lease covering the same premises for the term of five years, the term to commence February 2, 1917, “or sooner should the tenant now occupying the said premises see fit to terminate his lease, or in the event of the premises becoming vacant,” and Mr. Sayles at once notified Mr. Murphy of this fact. Mr. and Mrs. Sayles both testified that at this time Mr. Murphy said he would vacate the premises February 2, 1917, or sooner. Mr. Murphy denies this agreement.

On August 25, 1914, Charles F. Tonneliey executed a bill of sale to Victor L. Tonnelier, his brother. This bill of sale conveyed the personal property contained in the premises known as No. 5 West Western avenue, but did not mention the original lease given by George McGowan to Charles F. Tonnelier, nor the one given to Mr. Sayles. It is claimed the parties intended to transfer the interest of Charles F. Tonnelier in the original lease and personal property to Victor L. Tonnelier, and that manual delivery of the lease was made to him. We are unable to find any proof in the record of a manual delivery of the lease at this time.

On April 10, 1916, Victor L. Tonnelier executed a bill of sale to George E. Murphy of the personal property, and the paper contained the following:

“All my interest in the fixtures and lease .of the film theater in the city of Muskegon, Michigan, commonly known at the present time as the Lion Theater.”

This instrument was attached to the original lease given by George McGowan to Charles F. Tonnelier on April 4, 1913, and both were delivered to George E. Murphy, who caused the same to be recorded in the office of the register of deeds on April 21, 1916.

May 6, 1916, plaintiff caused a notice to quit to be served on defendant. We quote from the brief of appellant:

“Up to February 2, 1917, defendant held possession of the premises in controversy under and by virtue of the bill of sale of date, February 9, 1915, from plaintiff to defendant. Thereafter he continued in possession of said premises under the bill of sale of date April 10, 1916, from Victor L. Tonnelier to defendant and the original lease from McGowan to Charles F. Tonnelier. From and after February 2, 1917, plaintiff claimed the right to possession of said premises by virtue of his said lease from Charles F. Tonnelier, dated December 9, 1915. He demanded from defendant possession thereunder which demand the defendant refused, claiming that he held possession under title paramount traced through McGowan, Charles F. Tonnelier and Victor L. Tonnelier. * * * It is a well established rule of this court that summary proceedings will not lie where a question of title is involved. Title is defined in Bouvier’s Law Dictionary, Volume 2, page 1121, as being ‘the means whereby the owner of lands hath the just possession of his property.’ ”

Counsel cite many cases. There is no dispute about the general rule, but a mere claim of title will not defeat summary proceedings.

In Green v. Gill, 47 Mich. 86, the headnote, which fairly states what was decided as to that feature , of the case, reads:

“Where both parties to a summary proceeding to' recover possession of lands trace, title to the same person and claim under him there is sufficient privity of estate between them to sustain the proceeding.”

In the case of Gage v. Sanborn, a summary proceeding case, 106 Mich., at page 278, Justice Hooker, speaking for the court, said:

“We have discussed both propositions, but the fur-j ther claim is made that these claims raise a question of title, which cannot be tried in this proceeding. It is true that questions of title cannot be tried in summary proceedings; and when it appears that the de-’ cisión must turn upon a question of adverse title the case must be dismissed. Butler v. Bertrand, 97 Mich. 59, and cases cited. But this must be understood tó mean a question of legal title and it must be raised by the evidence offered in the case. If this were other-, wise, a mortgagor could always defeat summary proceedings by denying the validity of the foreclosure or, asserting that the premises had been redeemed.”

This case was quoted with approval in Chapman v. Nehman, 128 Mich. 295, and again in Tefft v. Tefft, 154 Mich. 239, where there is a collation of the authorities.

In the instant case Mr. Murphy went into possession by reason of a paper which gave him the right to possession until February 2, 1917, under a lease running to the plaintiff, who obtained a further lease which began February 2, 1917, or sooner, if Mr. Murphy vacated the premises. Mr. Murphy was at once given notice of this lease. He now seeks to defeat plaintiff’s right of possession, without surrendering to him the premises, by virtue of the paper dated April 10, 1916, from Victor L. Tonnelier containing the clause:

“All my interest in the fixtures and lease of the film theater in the city of Muskegon, Michigan, commonly known at the present time as the Lion Theater.”

Mr. Victor L. Tonnelier at this time had no interest in the lease, and, of- course, could not convey what he did not possess.

Judgment is affirmed, with costs to the plaintiff.

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


author: Steere, J.

text:
    MURPHY v. SAYLES.
    1. Landlord and Tenant — Subletting—Right to Question.
    ' One in possession as subtenant of a lessee could not question his landlord’s right to sublet to him, so long as his use and occupation of the property remained undisturbed.
    2. Same — General Rule — Surrendering Possession.
    It is the general rule that a tenant may not question his landlord’s title without first surrendering to him the possession acquired under such relation.
    3. Same — Nonpayment op Rent — Forfeiture—Equity.
    Where plaintiff purchased the original lease and thereby became tbe landlord of defendant, a subtenant through whom he obtained possession, which he wrongfully retained after the expiration of his term, a court of equity will not recognize or declare a forfeiture for nonpayment of the rent, defendant having offered to pay rent if put in possession.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 25,1918.
    (Docket No. 140.)
    Decided March 28, 1918.
    Bill by George E. Murphy against Frank Sayles to restrain summary proceedings for the possession of leased premises. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Cross, Foote & Sessions, for plaintiff.

      Turner & Turner, for defendant.
   Steere, J.

In this suit plaintiff Murphy seeks by injunction to restrain defendant Sayles from suing out a writ of restitution in certain summary proceedings wherein he had taken judgment, or otherwise interfering with Murphy’s possession of certain premises described as No. 5 West Western avenue, in the city of Muskegon.

His bill was filed on May 29, 1917, after Sayles had obtained a judgment against Murphy for restitution of said premises, in the circuit court of Muskegon county, affirming a judgment in summary proceedings begun before a circuit court commissioner in a case entitled Sayles v. Murphy, which was also appealed by Murphy to this, court and the judgment sustained in an opinion written by Justice Moore, reported ante, 73, to which reference may be made for a history of the litigation, with statement of the essential facts involved in both cases up to the time of filing this bill. In that case Murphy sought to defend his possession under a distinct claim of title, independent of his relations with Sayles, based upon a written transfer to him from Victor Tonnelier, dated April 10, 1916, of the property rights the latter had acquired from his brother, Charles Tonnelier, by a bill of sale of .August 25, 1914, conveying certain personal property connected with and used in the theatrical business conducted at the premises in ques-. tion. Neither of these instruments make reference to any lease, or purport to convey any leasehold rights, as disclosed by the documents themselves, and found by the three successive courts before which he made that contention.

On May 10, 1917, two days after judgment in the summary proceedings was rendered against him in the circuit court, Murphy thought he saw light in another direction, and proceeded to secure from Charles Tonnelier an assignment of the original ten-year lease given him by George McGowan, owner of the property. His attitude thereafter is thus stated by him:

“I claim I am the landlord of these premises and that Mr. Sayles is my tenant and that these assignments changed the relation so that I became landlord.”

Though in possession and use of the property, he then demanded payment of rent from Sayles, followed by notice seven days later of his election to forfeit Sayles’ lease, and on the same day filed this injunction bill to suppress further activity by Sayles in the summary proceedings.

To summarize briefly, the premises in question, known as the Lion Theater, were owned by George McGowan and leased to Charles Tonnelier for ten years by a conveyance containing authority to “sublet or re-lease,” which right if exercised should “in no manner release said second party from his obligation to pay rent,” etc. Tonnelier exercised this right twice, both times subletting the .premises to Sayles, first, by a lease of January 27,1914, for three years from February 2, 1914, which contained a provision restraining assignment of the lease or subletting without written consent of fthe lessor; and, second, by a lease of December 9,1915, for five years, to commence on February 2,1917, or sooner if the premises became vacant. Sayles had turned over possession of these premises to Murphy on February 9, 1915, giving him a bill of sale transferring a quantity of theatrical appliances and paraphernalia together with “all the rights of the party of the first part in the lease of building in which is contained the Lion Theater belonging to said party of the first part and now in his possession,” etc. Thus put in possession by Sayles, Murphy had undisturbed use and enjoyment of the premises during the life of that lease. Sayles became desirous of repossessing himself of the premises as soon as Murphy’s right of possession from him expired, and to that end obtained a second lease from Tonnelier for five years, beginning at the expiration of his former lease, under which he had surrendered possession to Murphy, or sooner if the same became vacant. He notified Murphy of the new lease and his desire to take possession under it, to which Murphy replied that he would vacate the premises February 2-, 1917, or sooner, as Sayles and his wife both testify. Murphy denies this, but admits he learned of the lease.

Although subsequently taking the position that he never was a- subtenant of, or held possession under, Sayles, the testimony is convincing that Murphy recognized and admitted this at the trial of the summary proceedings in the commissioner’s court. Not only is there other testimony to that effect, but the commissioner who heard the case and took notes of the evidence testifies positively that Murphy so stated. His position in this case is that he never was a tenant of Sayles or held in subordination to him but bought him out, took an assignment of his lease, and under it independently took possession. This is not only inconsistent with his first position, but untenable; Sayles had no authority, under the lease which he then held, to sublet or assign without the written consent of his lessor. This he did not obtain, and Tonnelier appears to have interposed no active objection when he learned of it beyond reminding Sayles that he looked to him for the rent. The only right of possession Murphy had was acquired from Sayles, who put him in possession. As between them, Sayles’ right to do this could not be questioned by Murphy, so long as his use and possession of the property remained undisturbed. By the terms of his lease Sayles was to pay his rent when due by depositing the same for Tonnelier in the National Lumberman’s Bank of Muskegon. He neither obtained written permission from nor consulted Tonnelier when he turned possession over to Murphy, and testified that he told him he could not transfer the lease ,to him, but would stand behind him if anything happened, and directed him to make his payments of rent in Sayles’ name, just as he had done, by deposit in the bank, which Murphy did for a time, advising Sayles of the fact and at one time showing him a receipt. Murphy denied any such agreement or understanding, but admitted that after taking possession he twice paid rent at the bank in Sayles’ name, because, as he explained, Sayles requested it, and said “he didn’t want to jump out of there right away and let people know he had quit all at once.” How or to whom he thereafter paid rent, while holding under the first Sayles lease, he does not clearly state; but, referring to his subsequent bill of sale of personal property from Victor Tonnelier, of April 10, 1916, he says:

“It was by virtue of that assignment from Victor L. Tonnelier that I continued to occupy these premises and I have paid the rent during that time to Mr. McGowan.”

This is confirmed by McGowan, who testified that Murphy had paid him the rent every month from February 2, 1917, during which time witness recognized him as his tenant. To what extent McGowan’s lessee, Charles Tonnelier, was consulted in the matter, is not disclosed.

It is undisputed that no rent was due on the original ten-year lease from McGowan to Tonnelier when the first lease from Tonnelier to Sayles, under which Murphy took possession, expired on February 2; 1917. Sayles then held a second lease which entitled him to possession from and after February 2, 1917, vesting in him all possessory rights Tonnelier would have had if such lease were not given. Under it he was entitled to summary proceedings to recover the leased premises. Murphy refused to surrender and maintained possession, asserting an untenable claim of paramount right under a bill of sale of personal property, conferring no possessory rights in the premises, which he had secured by assignment from Victor Tonnelier on April 10,1916. He admits he knew of Sayles’ second lease as early as March, 1916. Of his reason for filing this bill and tenacity in retaining possession, he says:

“My business is a moving picture show and I run what are known as serial pictures which I have to contract for ahead. All pictures have to be contracted for of any consequence. If I vacated the premises I am in at the present time and started in again I could not by any means start with the same advantage in relation to my pictures as I now have. * * * I have been in continuous and uninterrupted possession of these premises in dispute since the 2d day of February last. * * * I have never surrendered possession or offered to surrender possession to Mr. Sayles of this property and I never intended to surrender possession until I was forced out.”

Neither of these parties own this property. Their contention involves only possessory rights between themselves as lessees. Sayles was in possession. Murphy made entry by his permission, with no right to possession from any other source.' Sayles’ landlord did not consent to it in writing, was not a party to their agreement, and apparently did not know of it at the time. Murphy admits that he at first paid rent to the bank in Sayles’ name. In character, the possession Which he took at the time of his entry was in subordination to and as tenant under Sayles. Between them the possession so taken remained stamped with that relation, and precluded him from setting up an adverse claim without first surrendering possession. No citation of authority to sustain the long-established rule that a tenant may not dispute his landlord’s title without first surrendering to him the possession acquired under such relation, is necessary. The rule is thus clearly stated in the early case of Bertram v. Cook, 32 Mich. 518:

“Having obtained possession as tenant, he can do no act inconsistent with, or which would change the relation existing between himself and his landlord, without first yielding and delivering up to the latter possession of the premises which he acquired from him. The landlord has a right to rely upon the relation as a protection. To permit the tenant to do otherwise would be but holding out inducements to him to take advantage of his position for his own benefit and to the injury of his landlord. The law very wisely, therefore, holds all such agreements as being contrary to public policy and void, and sternly refuses to permit the person entering under such an agreement from obtaining any advantage thereby.”

But aside from this infirmity, conceding, for the purpose of the proposition, that, unhampered by the nature of his entry and continuous possession under it, Murphy has by his belated purchase of the original lease become Sayles’ landlord, with all the rights and obligations the lease otherwise confers and imposes, he was nevertheless in possession and use of the property, refusing Sayles the possession and enjoyment his lease entitled him to, on other grounds than nonpayment of rent, and yet litigating that contention to this court at the time he served notice of forfeiture. He testified to the value of that possession to. him, and that he never intended to surrender it until forced out. Sayles had offered to pay the rent his lease called for to his then landlord, Charles Tonnelier, even after he obtained judgment of restitution in the circuit court, and before the date of the assignment to Murphy on May 10th, which was refused, and when notice with demand from Murphy as owner of the original lease was served on him he again offered to pay the rent if they would give him possession.

While retaining the exclusive use, possession, and enjoyment of the property to himself, and refusing Sayles’ right of entry on other grounds, Murphy was in no position to declare a forfeiture of Sayles’ lease for nonpayment of rent, without first tendering him possession on payment, and in the meantime an equitable suspension of payment arose against him.

Under the circumstances disclosed by this record, an equity court will not recognize or declare a forfeiture, and the decree rendered by the Muskegon circuit court, in chancery, dismissing plaintiff’s bill of complaint, is affirmed, with costs to defendant.

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


author: Moore, J. Ostrander, C. J.

text:
    GREEN v. BUICK MOTOR CO.
    Master and Servant — Workmen’s Compensation Act — Partial Report — Effect of Settlement.
    Where the employer, in its report to the industrial accident board of an injury to one of its employees, reported only the loss of the third and fourth fingers of the left hand, although the second finger of the same hand had been lacerated by the same accident, an award under the workmen’s compensation act for the loss of the two fingers, approved by the board, and receipted for in full by claimant, would not bar further proceedings for the injury to the second finger.
    Certiorari to Industrial Accident Board.
    Submitted January 11, 1918.
    (Docket No. 62.)
    Decided March 28, 1918.
    Ralph Green presented his claim for compensation against the Buick Motor Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.
    Affirmed.

      Frank J. Riggs, for appellants.

      Vincent D. Ryan, for appellee.
   Moore, J.

This is certiorari to review a decision of the industrial accident board awarding compensation to applicant. On August 17, 1915, claimant, while operating a punch press, sustained an injury which so severely lacerated the third and fourth fingers of his left hand that it was necessary to amputate them. The second finger was also lacerated but was not amputated. On August 26, 1915, claimant entered into a written agreement with respondent insurer, in which it was stated, as to the accident:

“While blanking gas tank support flanges one stuck in die and while knocking same out punch came down and cut off third and fourth fingers of the left hand at second joint.”

On September 28, 1915, said agreement was approved by the industrial accident board. On October 4, 1915, claimant regularly filed and served notice of claim for injury which he stated as follows:

“The loss of third and fourth fingers, also laceration of second finger.”

On May 16, 1916, claimant received the last of the payments provided for in the agreement mentioned and signed a receipt which contained the following:

“This receipt means a final settlement. Do not sign it unless you intend to end payments of compensation and close the case.”

On July 28, 1916, claimant filed with the industrial accident board a petition alleging that in addition to the loss of the third and fourth fingers, he had partially lost the use of the second finger of his left hand; that he had been compensated for the loss of the third and fourth fingers, but that he had received no compensation for the injury to the second finger, and he therefore prayed that the case might be reopened and he be allowed further compensation. The board made an order granting said petition, and, after a hearing, it was provided that said claimant was entitled to compensation amounting to one-half the difference between his average weekly wages before the injury and the average weekly wages he was able to earn thereafter.

The appellant’s contention is stated by counsel as follows:

“First. That there is no evidence in the record tending to support a finding that claimant has been deprived, by the injury to his second finger, of compensation through any disability in performing the work at which he was engaged when he sustained his injury.
“Second. That by reason of the agreement and settlement made by claimant with respondents, regardless of the contention just referred to, claimant is not entitled to compensation through injury to his second finger.”

In the return of the industrial accident board the following appears:

“That in the report of the accident the injured employee suffered, which report was filed in its office on September 18, 1915, the respondents reported only the amputation of the third and fourth fingers of the left hand, and that said respondents did not report any injury to any other finger; and that in the agreement filed in the office of the industrial accident board on September 18, 1915, nothing was said about any injury except the injury to the third and fourth fingers of the left hand, which fingers had been amputated.
“(b) Said industrial accident board further reports that on October 4, 1915, Ralph Green, the injured employee, regularly filed and served notice of claim for injury, which he stated as follows: ‘The loss of third and fourth fingers, also laceration of second finger.’ * * * The industrial accident board found, from the testimony, proofs and evidence in this case that applicant had suffered a severe and serious injury to the second finger of his left hand, which injury he suffered at the same time that he suffered the injury which caused the amputation of the third and fourth fingers of his left hand, that said second finger of the left hand was also damaged, cut and lacerated by the punch press he was operating; that the said second finger is stiff, and that there is practically no grip in it, and that he cannot use it to any advantage; that the tissues and tendons of said second finger were badly lacerated, and that said finger is practically useless, and that it is not likely to recover to any considerable extent; that the muscles are atrophied and the nerves injured, and that the condition of said finger seriously impairs the ability of the applicant to use his left hand. The said applicant was before the full board on September 27, 1916, and the proofs in the case include the inspection of the injured finger by the members of the full board, and they based their conclusions in part upon their own examination of the finger and the applicant’s whole hand.
“(e) The full board found that applicant was partially disabled because of the injury to said second finger, and as a matter of fact such finding is absolutely uncontradicted by the testimony in the case.
“ (/) Said board further returns that the testimony showed that the applicant, prior to his injury, had been running a punch press, and also running rotary shears, but that the running of rotary shears was the real occupation of the applicant; that applicant had only operated the punch press for about three hours when he was hurt, and that applicant is substantially unable to resume his work at either running a punch press or operating rotary shears on account of the injury to the second finger of his left hand. * * *
“1. Said board avers that there was a loss to claimant’s second finger, and that it was not accounted for in the agreement entered into and complied with by the said defendants, and that the board would never have approved said agreement had it been advised by the respondents that said agreement did not cover the entire injury to the applicant. And said board says that the difficulty in this case arose from the neglect of the respondents to fairly and frankly report to the industrial accident board the entire injury to the applicant; that evidently said respondents thought that if they reported the amputation of the third and fourth fingers, and paid for the third and fourth fingers, the applicant would be satisfied and would not make any other complaint, and the board says that the respondents have done their full duty as far as the third and fourth fingers are concerned,.and that their own neglect to report to the board the injury to the second finger was and is inexcusable.”

There is an abundance of evidence in the record to sustain the findings of the industrial accident board which we have quoted. There is also testimony showing that if it had not been for the injury to the second finger, applicant could have done the work he had done previous to the injury, but was now unable to do so because of the injury to the second finger.

The decision is affirmed, with costs to the applicant.

Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.

Ostrander, C. J.

Plaintiff in certiorari is not complaining about the fact that a disability claim is presented after loss of fingers is compensated. I therefore concur in sustaining the award.

Brooke, J., concurred with Ostrander, C. J.


text:
    REISS v. NORTHWAY MOTOR & MANFG. CO.
    Master and Servant — Workmen’s Compensation Act — Premature Return to Work — Reopening.
    Where an injured employee returned to work before a broken leg had entirely healed because the employer’s physician told him to do so, and after working a few days he rebroke the leg on his way home from work, the industrial accident board was justified in reopening the case and reinstating compensation as for total disability.
    Certiorari to Industrial Accident Board.
    Submitted January 17, 1918.
    (Docket No. 114.)
    Decided March 28, 1918.
    Paul Reiss presented his claim for compensation against the Northway Motor & Manufacturing Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.
    Affirmed.

      Frank J. Riggs, for appellants.

      James H. Lee, for appellee.
   Moore, J.

This is certiorari to review a decision of the industrial accident board awarding compensation to applicant. On April.5, 1915, applicant was injured by having his foot caught between a belt and a pulley, resulting in a fracture of his left leg. He was taken to the hospital, where he remained five weeks, after which he was confined to his house for about four months. The fore part of August, 1915, he returned to work. He testified he did so because the doctor, employed by the company, told him to do so, and he was afraid of losing his job if he did not go back. On August 25, 1915, applicant entered into an agreement with respondent providing for “compensation at the rate of $7.50 per week during the period of disability.” This agreement was filed with the industrial accident board on September 18, 1915, and approved by it on September 27, 1915.

After the return of the applicant to his work he worked for two weeks running a freight elevator. On August 26, 1915, while on his way home from work he rebroke his leg. He was taken to the hospital again, where he remained about four months. After this second injury he was laid up for a year. Various proceedings were had, when, on April 21, 1917, an order was entered reopening the case and finding that “the disability complained of by applicant was the result of the accident of April 5, 1915,” and providing that “the agreement on file herein is reinstated and applicant is entitled to receive and recover from said respondent at the rate of $7.50 per week during the period of his total disability.”

The appellant insists that the case was settled, and should not be reopened. It also insists that the second breaking of the leg cannot be traced to the original accident and that it should not be held liable therefor. There was a full hearing before the industrial accident board. In its return appears the following:

“Based upon the testimony in the case the board finds:
(a) That the applicant .received a very serious injury to his leg in the employ of the respondent employer on April 5/1915.
“(5) That he was paid compensation by the employer amounting to $145, the same beginning as of April 5, 1915, and being at $7.50 per week for 19 1/3 weeks.
“(c) That on August 13, 1915, the laborer returned to work but was not able to go to work and should not have been put to work at that time; that he went to work before he was able to go to work because the physician of his employer insisted that he should go to work.
“(d) That at the time he went to work his leg had not healed and was in bad shape and in such condition that it was liable to be reinjured by very slight exertion.
“(e) That on his way home from work, on August 28, 1915, he fell over the curb in the street and the leg was reinjured, but that this was not a new break, but simply a natural result of the first break; that the employer is responsible in this matter and that the original breaking of the leg was the proximate cause of his falling over the curb and rebreaking the leg in the old place.
“(f) That the laborer received less wages when he went back to work on August 13, 1915, than he had been receiving before he was hurt; that before he was hurt he had been receiving 24 cents per hour, but the record does not show how many hours per day he worked. As he only worked a few days before the re-injury the board will disregard the time while he was working and not attempt to give him any compensation for that time, although he was then partially disabled.
“(gr) That when the employee went back to work on August 18, 1915, he was put at easy work for the reason that his leg was not fit for him to use; that his' employer knew this.
“(h) That there was really not a second accident, but that the rebreaking of the leg on August 28, 1915, was a direct result of the accident of April 5, 1915, and that the employer and its insurer are responsible. * * *
“(j) That the employee has never signed any papers ending his compensation in this case, and that the board has never approved any final settlement of the matter, and that said matter has never been finally settled and has never been closed, but that the agreement between the parties, which- was not approved by this board until September 21, 1915, is still in full force and effect.
“ (7c) That the laborer is entitled to receive from both the respondents compensation at the rate of $7.50 per week beginning August 28, 1915, during the entire period of his total disability.”

We have quoted only a small portion of the return. There was v’ery considerable testimony upon, which to base the findings of the industrial accident board. See Reck v. Whittlesberger, 181 Mich. 463.

The decision is affirmed, with costs to the applicant.

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


author: MOORE, J. Brooke, J.

text:
    TAUTENGAN v. ZOLLER.
    1. Appeal and Error — Directed Verdict — Evidence.
    On appeal from a directed verdict, appellant’s testimony should be given the most favorable construction it will bear.
    2. Master and Servant — Personal Injuries — Negligence—Question for Jury.
    In an action for personal injuries received by a servant when a scaffold on which he was working gave way, th6 negligence of the master, who had not elected to come under the provisions of the workmen’s compensation law, held, a question for the jury, under the evidence. Brooke and Fellows, JJ., dissenting.
    Error to Wayne; Codd, J.
    Submitted January 8, 1918.
    (Docket No. 11.)
    Decided March 28, 1918.
    Case by Joseph Tautengan against Ernest Zoller for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Harry J. Lippman, for appellant.

      Zimmer & Chedester, for appellee.
   MOORE, J.

The plaintiff, a carpenter, was engaged by the defendant to do carpenter work on a house in Detroit. The plaintiff was injured by falling from a scaffold under such circumstances as he claims makes his employer liable to him in damages, to recover which he brought this suit. At the close of the testimony offered by the plaintiff the circuit judge instructed the jury that

“This case is brought by the plaintiff against the defendant, who has not elected to come under the provision of the workmen’s compensation act, passed by the legislature in 1912, being Act No. 10. That act provided that in the event that an employer does not elect to come under the workmen’s compensation act, in event of a suit against him for injuries caused to persons in his employ, that the following defenses are not available to the defendant: First, That the employee was negligent, unless it should appear that said negligence was wilful. Secondl, That the injury was caused by negligence of a fellow employee, and that the employee had assumed the risk arising out of the employment or arising from a failure to provide and maintain suitable appliances, etc. Therefore, gentlemen of the jury, it is my duty to eliminate such defenses. * * * However, there can be no recovery in a case of this character, in the absence of evidence of negligence on the part of the defendant.”

The judge was of the opinion that the accident was caused by a latent defect not discoverable by inspection, for which defendant was not responsible, and directed a verdict in his favor. The case is brought to this court by writ of error.

We are not favored with a brief on the part of the appellee. There are many assignments of error discussed by counsel for the appellant, but they all depend upon whether the judge erred in directing a verdict instead of submitting the question of negligence to the jury.

In considering appellant’s contention, we must give the most favorable construction it will bear to the testimony offered on his behalf. The plaintiff and a fellow workman were at work putting up a cornice, while standing upon a platform consisting of planks laid upon metallic brackets. The perpendicular side of these brackets had lugs or projections that slipped into slots cut in the sheathing boards nailed to the studding of the house. The perpendicular side of the bracket was riveted to the other parts of the bracket. The head of the upper rivet pulled out of the hole through which it passed, the 'other part of the bracket gave way and the plaintiff was thrown to the ground, about 20 feet below,- and was severely hurt. The other man on the platform caught hold of the cornice and was rescued uninjured.

The plaintiff testified in part as follows:

“Q. Did you test that scaffold that morning?
“A. Yes.
“Q. Why?
“A. Because we tested that way. When we put up the scaffold the brackets were looking weak, and rusty, and I did not trust it right away, so I thought I would test it to see if they were safe.
“Q. What do you mean when you say, ‘They looked weak’ ?
“A. Rusty, and some were. bent. The bracket that fell looked good. It was a little bent at the top- but otherwise the rivets looked good.
“Q. Based upon your experience as a carpenter for eleven years would you say that this one bracket was heavy enough for this sort of work?
“A. Not quite heavy enough. I kicked right away.
“Q. What kick did you make?
“A. I told him that they were not safe. They were too weak and old and rusty:
“Q. You told him that when he brought them?
“A. Yes.
“Q. What'did he say?
. “A. He said ‘They are all right. . They are strong enough to hold you and two. or three more.’ He said, ‘put them up they are all right.’
“Q. Did you put them up because he told you to put them up ?
“A. Yes.
“Q. If he did not teil you to put them up would you have used them?
“A. No, I wanted to build a wooden scaffold, — I had before — and he would not let me. I asked him the day before, and he said he would have the brackets there. He said he would bring his iron brackets up. He said, ‘Don’t build a wooden scaffold.’ I myself hung the bracket that fell, and I cut the hole into which to hang it an inch and a half by an inch and a quarter. When the. bracket was in that hole, it was entirely solid. I put a shingle behind the hooks. Exhibit 10, shown me, is the same sort of a bracket that I used on that day.
“Q. Did you consider this bracket heavy enough to use on that sort of work?
“A. It is kind of weak for a high scaffold.
“Q. Did you tell Mr. Zoller that?
“A. Yes, I told him.
“Q. And then he told you to go ahead and use them?
“A. Yes.
“Q. That it would hold you and two or three more?
“A. Yes.”

The man who was on the scaffold when it fell corroborated this testimony in all its essentials.

The following appears in the testimony of ' defendant :

“Where had you had these brackets before you brought them to the job?
“A. Stored in my barn.
“Q. How long had they been in your barn?
“A. They had been in and out from one job to another — perhaps within a week or two, perhaps a month.
“Q. Did you look these brackets over before you brought them to the job on Wilson street?
“A. No. I didn’t look them always — didn’t look them over, but the orders were ‘always be careful about the brackets and examine them before you put them up.’
“Q. Why?
“A. Because when you take down a scaffold to the ground, the ground is sometimes frozen and if they are dropped down and hit brick or stone or frozen ground, they generally spring something.
“Q. It might spring a rivet?
“A. It might sometimes.
“Q. So your instructions were to be careful with the brackets?
“A. Yes.
“Q. You were afraid of them?
“A. I was always afraid of a scaffold myself because I had a few falls.
“Q. How did it happen before you brought them over that you did not examine them yourself?
“A. I expected the men to build the scaffold and examine the brackets. I told them to be careful and every time they built a scaffold to be sure and drive plenty of nails in for the hook — where the hook goes behind the sheeting.
“Q. You expected when you told the men to be careful that it was up to them to be careful?
“A. Yes, sure.
“Q. It was up to him to look after the bracket and see that it was all right?
“A. Yes.
“Q. And you were through with it when you had given it to him?
“A, Yes.
“Q. After the brackets were delivered and put in use, did you go around there and inspect the brackets?
“A. No, sir. He could put them up himself. He knew how.
“Q. Did you inspect this bracket that fell?
“A. No — yes. I inspected it the next morning when I found it standing where it fell,
“Q. You mean the next morning after it fell-?
“A. Yes.
“Q. Well, I mean before it fell?
“A. No.
“Q. You never inspected any of these brackets before the morning after it fell?
“A. I did not inspect any of them.”

He also testified:

“The scaffold upon which the men were working the day it fell was put up possibly two or three days before. I saw that particular piece of scaffold every day ■and they did not have any studding under it. The same day it fell I told them to put studding under it. That was the first time I told them that; they then had it ready for the cornice.”

Both of the men on the scaffold denied that he gave any such direction.

In view of this testimony, we think it was error to refuse to submit the question of the negligence of the defendant to the jury. See Johnson v. Spear, 76 Mich. 139; Tangney v. Wilson & Co., 87 Mich. 453; Anderson v. Railroad Co., 107 Mich. 591; McDonald v. Railroad Co., 108 Mich. 7; Woods v. Railway Co., 108 Mich. 396; McLean v. Railroad Co., 137 Mich. 482; Carnell v. Halpin, 159 Mich. 42; Maki v. Mining Co., 176 Mich. 497; Eberts v. Sugar Co., 182 Mich. 449.

The judgment is reversed, and a new trial ordered, with costs to the plaintiff.

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

Brooke, J.

(dissenting). The learned circuit judge, in directing a verdict for the defendant in this case, assumed it was the duty of defendant to provide safe machinery and appliances for the plaintiff, and by continued inspection at proper intervals to ascertain whether the appliances continued in a safe condition, and, if not in a safe condition, to put them in a safe condition. He held, however, that the injury to plaintiff was caused by a latent defect in the bracket, and that an inspection by defendant would not have discovered the latent defect.

I am of opinion that this instruction was warranted by the testimony of John Neff, a witness sworn on behalf of the plaintiff, who gave a circumstantial account of the daily inspection in the following language:

“The brackets were made like a bracket on a building, a brace down this way; they were riveted, like building brackets. The two parts on the top of the bracket are riveted and the bottom of the bracket hooks together. The accident happened the fifth day that we had used the brackets.. I put some of the brackets up and Mr. Tautengan put some of them up. Some of the brackets on the building were put up by Mr. Zoller’s son. The bracket that broke was on the north side of the building. Mr. Tautengan put that bracket up, and I helped him. I ‘took the bracket and examined it and handed it to Mr. Tautengan. He examined it and put it up. I examined the rivets and then handed them to Mr. Tautengan, and the rivets were all right when I examined them. There were about three brackets on that one piece of scaffold that fell down, and I examined all of those three brackets. When I handed the brackets to Mr. Tautengan he examined them and then put them up. I saw him examine them and I saw him put them up. I was there. After he put them up I went up there to see whether they-were all right, and they were hooked in right. Every day before I went on the platform I examined the brackets. We tested them when we got on the scaffold by our weight and they were all right. Before starting to work, in order to test them, we would take hold of the studding and put our weight on it to see if they were strong. I did that-every day before starting to work, and so did Mr. Tautengan. Each bracket was all right:”

Judgment should be affirmed.

Fellows, J., concurred with Brooke, J.


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    PEOPLE v. KIRCHOFF.
    Intoxicating Liquors — Criminal Law — License—Residence District — Consent oe Property Owners.
    In a prosecution for conducting a saloon in a residence district without complying with the provisions of section 7066, 2 Comp. Laws 1915, evidence that the building occupied by defendant, had been used for business purposes for many years, and that on three sides the street was given over to business houses, held, sufficient to require a directed verdict in favor of defendant.
    Exceptions before judgment from Ottawa; Cross, J.

      Submitted January 18, 1918.
    (Docket No. 196.)
    Decided March 28, 1918.
    Joseph E. Kirchoff was convicted of maintaining a saloon in a residence district'in violation of section 37, Act No. 291, Pub. Acts 1909.
    Reversed, and respondent discharged.

      Lillie, Lillie & Lillie, for appellant

      Fred T. Miles, Prosecuting Attorney, for the people.
   Moore, J.

Respondent was convicted of violating section 37 of the so-called Warner-Cramton Act of 1909 (Act No. 291, Pub. Acts 1909, 2 Comp Laws 1915, § 7066). This case is here on exceptions before sentence. The facts are not in dispute. Joseph E. Kirchoff was given permission by the township board to run a saloon in the Berlin hotel in the village of Berlin, commencing May 1,1917. The township board, on the 24th day of September, 1917, on the filing of a new bond, gave respondent permission to move his saloon to the building on lot 92 in said village, and he did so on the 25th day of September, 1917. Respondent did not get the consent of any property owners' within 300 feet of said saloon. It is claimed it was in a residence district and it was within that part of the act that forbids establishing any saloon or bar “in any residence district unless the consent of all the property owners within three hundred feet of said proposed bar or saloon be obtained.”

The testimony, the village plat, and the photographs show that the saloon on lot 92 was a part of the business district, of the village. The testimony indicates that the saloon building had been used for business purposes a good many years. West of the building and adjacent thereto was a blacksmith shop. South of this building, and on both sides, the street was given over to business houses, while north of this building were residences.

We think the trial judge should have directed a verdict in favor of the respondent as requested.

The case is reversed, the conviction set aside and the respondent is discharged.

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


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    PIGOTT-HEALY CONSTRUCTION CO. v. H. A. JONES REAL ESTATE CO.
    Arbitration and Award — Definiteness —Subject to Liens.
    Where the time for filing mechanics' liens on a building had expired, an award of arbitrators to the subcontractors on the building of a certain definite sum, subject to the liens filed, was not open to the objection that it was too indefinite to sustain a judgment in the circuit court, on petition to affirm the award, since the law fixes the place where liens should be filed, and the amount was easily ascertainable.
    Error to Wayne; Hally, J.
    Submitted January 24, 1918.
    (Docket No. 173.)
    Decided March 28, 1918.
    Petition by the Pigott-Healy Construction Company against the H. A. Jones Real Estate Company for confirmation of an award. Judgment for petitioner. Defendant brings error.
    Affirmed.

      Douglas, Eaman & Barbour, for appellant.

      Wilkinson, Routier & Hinkley, for appellee.
   Moore, J.

The plaintiffs were subcontractors under the H. A. Jones Real Estate Company for certain construction work on two buildings known as the Towar building and the Smith building. Differences arose between the parties upon an attempt to come to an understanding which they submitted to arbitration. After a hearing an award was made which was filed in the circuit court for the county of Wayne, to the effect that there was due to the plaintiff on the Smith building the sum of $9,346.62, and.on the Towar building the sum of $3,457.90; the last paragraph of the award reading as follows:

“The payment of the above amounts by the defendant are subject to the plaintiff discharging any and all liens including costs which may be standing against these buildings or the property on which they are situated, which liens have been served by any material man or subcontractor serving the plaintiffs.”

A petition filed in the circuit court to confirm the award was opposed for several reasons, the important one of which is that the -award was not final and definite. At the hearing an order confirming the award in every respect was entered. Later a motion to vacate the award was made and this was heard in connection with a motion to enter judgment on the award. At the hearing the question of the construction of the word “serving” in the last line of the award was raised. To explain this the affidavits of two of the arbitrators were filed, to the effect that the word “serving” was used in the award in the sense of '“working for or furnishing material to.” The records of the register of deeds were offered showing liens in which the Pigott-Healy Construction Company was named as a party as follows:

1. Gypsum Fireproofing Company, in which the amount stated to be due is $1,114.

2. Pudrith Roofing Company, in which the amount stated to be due is $468.72.

August 31, 1917, judgment was entered against the defendant and the Lion Bonding & Surety Company, surety, for £he sum of $12,804.52, “less liens heretofore filed by persons who furnished materials to and performed labor for the Pigott-Healy Construction Company upon the Joseph N. Smith building, so-called, and the Frank Towar building, so-called, namely, Gypsum Fireproofing Company, work done and materials furnished on Joseph N. Smith building, $1,114; Pudrith Roofing Company, work done and materials furnished on Frank J. Towar building, $468.72, or a net judgment of $11,391.80, with interest from the first day of August, 1917.”

The case is brought here by writ of error. Defendant contends the judgment should be set aside and the award vacated for two reasons:

1. That the award was not final and definite.

2. That even though the award is free from objection the judgment entered thereon is not in accordance with the award.

1. Counsel say as to this head:

“We find no case directly in point in which similar facts are involved but the general proposition that an award, to be valid, must be final and definite, is too well established to require argument. Mather v. Day, 106 Mich. 371; 3 Cyc. pp. 693 and 706.”

2. As to this head counsel say:

“The judgment entered in this, award was the sums found to be due by the arbitrators on the two jobs involved amounting to $12,804.52,, less the sum of $1,-582.72, the amount named as due in two liens filed in the office of the register of deeds, or a net judgment of $11,391.80. It is so evident that such a judgment in no way conforms to the award as made, that argument is useless. * * *
“In 3 Cyc., at p. 771,.the rule is stated as follows:
“ ‘Where the duties imposed upon one party by an award are to he performed simultaneously with, or as a condition precedent to, those required of the other party, the former cannot enforce the award against the latter until he has performed or offered to perform on his own part.’
“This statement is sustained by the authorities there cited.”

The diligence of counsel has not resulted in calling our attention to any case on all fours, but the principle involved has been before the courts. In 5 C. J., at page 150, it is said:

“Award capable of being rendered certain.- When an award furnishes a substantial basis by. and through which the parties can, by calculation, by reference to a fixed standard or rule of law, or by the inspection of particular things or documents, work out the contemplated result in accordance with the principles settled by, and the rights of the parties declared in, the award, it will be regarded as sufficient. In such cases courts give much force to the maxim, Cerium est quod cerium reddi potest. The rule is applied even where the award, instead of setting out the particulars of the conclusions arrived at, refers to and adopts a previous decision or report, the contents of which are ascertainable with certainty.”

The case of Clement v. Comstock, 2 Mich. 359, and the case of Bush v. Davis, 34 Mich. 190, are cited in the notes, as well as many other cases. See Morse on Arbitration, pp. 251-374, 408; Caldwell on Arbitration, at p. 250.

In Clement v. Comstock, supra, the award referred to property taken by virtue of two chattel mortgages and a writ of replevin. It was decided that, as the presumption was that the mortgages and writ would describe the property, the award was sufficiently certain. The case is cited with approval in Bush v. Davis, supra. In the instant case the law fixes the place where claims of liens should b© filed and the time in which they must be filed. The time in which they must be filed had expired. The number and amount of them was easily ascertained.

We think the trial court was right in rendering judgment on the award.

The judgment is affirmed, with costs.

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


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    MOSHER v. BORDEN.
    Execution — Levy—Limitation.
    Where a judgment was obtained on March 17, 1904, and on January 24, 1913, execution was levied on lands to satisfy the judgment, a bill to restrain the threatened sale on the ground that the judgment was outlawed was properly dismissed, since under section 12323, 3 Comp. Laws 1915, action might be commenced within ten years after the judgment was obtained, and under section 12899, 3 Comp. Laws 1915, the lien might be enforced any time within five years from the date of the levy.
    Appeal from Ionia; Davis, J.
    Submitted January 23, 1918.
    (Docket No. 165.)
    Decided March 28, 1918.
    Bill by Wallace E. Mosher and another against Page Borden, administrator of the estate of Henry N. Miller, deceased, and others, to restrain a sale of land on execution. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Hawley & Eldred, for plaintiffs.

      John Nichol, for defendant.
   Moore, J.

This bill of complaint was filed for the purpose of setting aside a certain levy of execution upon real estate, and to restrain by injunction a sale of the premises in question under said levy. The plaintiffs' are husband and wife. The plaintiff is the owner of 40 acres of land he claims is worth about • $2,500, which is mortgaged in the sum of $1,100. The plaintiff claims homestead rights in said premises, and his wife also claims homestead and dower rights. The defendants claim the land is worth much more than $2,500. On the 17th day of March, A. D. 1904, a judgment was rendered in favor of John Galloway, as administrator, against Wallace E. Mosher in the sum of $292.38. On the 22d day of January, A. D. 1913, an execution was issued out of the circuit court upon said judgment, and upon the 24th day of January, 1913, said execution was levied on the lands described in the bill of complaint. No action was taken to enforce the levy until about two weeks prior to the filing of the bill of complaint, when the defendants began to threaten that they would sell the lands under said execution levy for the purpose of satisfying said judgment. To prevent such action and to remove the cloud of said execution levy upon the title of said premises this bill was filed. The defendants answered. A hearing was had and the bill of complaint was dismissed. The case is brought here by appeal.

We quote from the brief of appellant:

“Practically the sole question, therefore, involved in this case, is whether any proceedings can be instituted to sell lands upon execution levy, after the judgment, upon which such execution was issued, has become outlawed and barred by virtue of the statute of limitations. We insist that it cannot be done.
“Our statute of limitations is both a statute of presumption and a statute of repose. This court has uniformly held that a statute of limitations has a twofold purpose: (a) It raises a presumption of payment; (b) It is a statute of repose and takes- away the remedy. Jewett v. Petit, 4 Mich. 508; McKisson v. Davenport, 83 Mich. 211, and cases cited.”

Counsel also cite Jerome v. Williams, 13 Mich. 521; People, ex rel. Parsons, v. Wayne Circuit Judge, 37 Mich. 287; George v. Middaugh, 62 Mich. 549; Ludeman v. Hirth, 96 Mich. 17, and other authorities.

An examination of the authorities cited show that none of them, unless it is Ludeman v. Hirth, supra, which case we will consider later, is controlling. In Jerome v. Williams, supra, it was held that an execution could not issue, February 15, 1865, against a surety on a stay of execution on a judgment entered March 10, 1855, in justice’s court, which judgment had been certified to the circuit court June 20, I860. In People, ex rel. Parsons, v. Wayne Circuit Judge, supra, it was held that an execution could not issue upon which judgment is barred by lapse of time. In the course of the discussion it was said in part:

“The statute in force when the judgment was recovered did not name a time the lapse of which should be an absolute bar to suit upon a judgment, but it provided that the judgment should 'be presumed to be paid and satisfied at the expiration of ten years’ after it was entered. 2 Comp. Laws 1857, .§ 5384. Another section of the statute provided for the issue of execution without any limitation of time, and that 'successive or alias executions may be issued one after another, upon the return of any execution unsatisfied in whole or in part, for the amount remaining unpaid upon any such judgment.’ Ibid. § 4442 (2 How. Stat. § 7664). While these provisions remained unchanged there is reason for saying that an execution might be taken out notwithstanding the lapse of ten years, and that the court would not be justified in setting it aside without some showing of actual payment. In other words, that while the presumption of payment might protect the defendant as against any suit upon the judgment until.there was some showing that payment had not been made, yet that when the defendant invoked the assistance of the court in an affirmative proceeding instituted by himself, some showing of the fact of payment, which must be supposed within his knowledge, might properly be required of him. This statute, however, was changed in 1869.”

We do not find the case cited by counsel as George v. Middaugh, 62 Mich. 549. In McKisson v. Davenport, 83 Mich., at p. 215, the court said in part:

“This court has repeatedly recognized the doctrine that while the statute of limitations is to be favorably regarded by the courts, as being one of repose as well as of presumption of payment, affording security against stale claims, yet injustice must not be done by an undue strictness of construction, nor the statute be defeated by such construction, but the legislative intent must be carried into effect. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508; Jenny v. Perkins, 17 Mich. 28; Gorman v. Newaygo Circuit Judge, 27 Mich. 138; Palmer v. Palmer, 36 Mich. 487; Toll v. Wright, 37 Mich. 93; Proctor v. Bigelow, 38 Mich. 282.”

Counsel for appellants place great reliance upon the case of Merchants Nat. Bank v. Braithwaite, 7 N. D. 358. We think a few lines taken from the opinion will show the case is not controlling under our statutes. We quote:

“No action on a judgment can be brought after 10 ■years. Revised Codes, sections 5199, 5200. No execution can be issued after ten years. Section 5500. At the expiration of that period it. ceases to be a lien on real estate. Section 5490.”

It. may be well to call attention to our statutes. 5 How. Stat. (2d Ed.) § 14158 (3 Comp. Laws 1915, § 12323), reads:

“When action upon judgment shall be brought: Every action upon a judgment or decree heretofore rendered, or hereafter to be rendered, in a court of record of the United States, or of this State, or of any other State of the United States, shall be brought within ten years after the entry of the judgment or ■decree, and not afterwards: Provided, That in all cases of judgments, or decrees entered nine years or more before this act shall take effect, one year from the time when this act shall take effect shall be allowed for the commencement of an action or proceeding upon such judgment or decree, to revive the same: Provided, further, That no judgment or decree shall be revived, an action to recover or enforce which is now legally barred.”

5 How. Stat. (2d Ed.) § 13015 (3 Comp. Laws 1915, § 12821), provides:

“Whenever an execution shall be issued against the property of any person, his goods and chattels, lands and tenements, levied upon by such execution, [it] shall be bound from the time of such levy.”

'' Another section (4 How. Stat. [2d Ed.] § 11386, 3 Comp. Laws 1915, § 12898) in relation to the filing of the notice of levy in the office of the register of deeds, reads:

“Such levy shall be a lien thereon from the time when such levy shall be so deposited.”

Section 11387, 4 How. Stat. (2d Ed.) (3 Comp. Laws 1915, § 12899), reads:

“That each and every levy by execution on real estate heretofore made shall cease to be a lien on such real estate at the expiration of five years from the time when this act shall become a law, unless such real estate be sooner sold thereon; and all liens by execution on real estate hereafter to be made shall become and be void at and after the expiration of five years from the making of such levy, unless such real estate be sooner sold thereon.”

Effect should be given to each of these provisions if possible, but counsel for appellant urge that the last quoted section of the statute does not refer to the judgment or in any wise extend its life nor provide that the lien of the levy may outlive the judgment. We quote from his brief:

“It does require the plaintiff under an execution levy to enforce such levy within five years. It does not permit him to wait until the very day that the judgment will be outlawed and barred and then permit him to make a levy of execution upon real estate thereby extending the life of his execution five years beyond the time when the judgment is outlawed. In other words it does not extend the life of the execution levy and lien for -five years after the judgment itself is dead.”

In Ludeman v. Hirth, 96 Mich. 17, a judgment was entered April 2, 1878, and execution issued and levy made on the same day. March 29, 1888, the land was advertised for sale; it was sold May 16, 1888, and a deed executed August 28, 1889. It was urged there as here, that when the statute had run against the judgment all subsequent proceedings must fail, but it was held that the deed was valid though the sale took place more than ten years after the rendition of the judgment.

A case quite in point is that of Brown v. Hopkins, 101 Wis. 498. Winslow, J., speaking for the court said in part:

“The question is whether an execution which is duly issued and partially executed by levying upon property within twenty years from the entry of a judgment expires at the end of the twenty year period, or whether it remains valid and effective so that the property so levied upon may be thereafter sold and applied to satisfy the command of the writ. Our statute provides (R. S. 1878, Sec. 4220) that a judgment of a court of record outlaws at the end of twenty years from the date of its rendition; and further (R. S. 1878, Sec. 2968), that fin no case shall an execution be issued, or any proceedings had on any judgment, after twenty years from the time of the rendition thereof/ It is very evident from this latter section that a valid execution may be issued at any time up to the last day of the twenty years; and the question is whether, when so issued it is rendered void by the limitation upon the judgment. Our statute requires no order of confirmation of the sheriff’s sale, nor any other proceeding by the court, to perfect the purchaser’s title. • No further proceedings upon the judgment are contemplated or required by the statute. The sale of the property by the sheriff, and the payment or application of the proceeds, are simply the carrying out of the commands of his writ, which, when issued, was perfectly valid. If .these acts can be called ‘proceedings’ at all, they are strictly proceedings upon the execution, and not upon the judgment. Any other construction would practically interdict the issuance of an execution to be levied upon real estate for nearly a year and a half prior to the expiration of the twenty-year limitation, because the sheriff must advertise the sale for six weeks, and the time of redemption (fifteen months) must be allowed to expire before the sheriff can make a deed to the purchaser. R. S. 1878, sec’s. 2993, 3001, 3007, 3017. No such result was contemplated by the statute, nor do we think that the words of the statute require such a construction. Our conclusion is that the sheriff could complete the execution of his writ after the expiration of the twenty years, and hence that the execution and levy .were wrongly set aside.”

As the execution had been issued and the levy made during the lifetime of the judgment, the levy should not be set aside or the sale restrained.

The decree is affirmed, with costs.

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


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    CONNOR v. HEIDE.
    Cancellation of Instruments — Deeds—Evidence — Sufficiency —Undue Influence — Comfetency.
    On appeal from a decree dismissing the hills of complaint in proceedings for the cancellation of certain deeds on the ground of mental incompetency and undue influence, evidence held, insufficient to sustain the averments of the hills.
    Appeal from Wayne; Lamb, J., presiding.
    Submitted January 25, 1918.
    (Docket No. 7.)
    Decided March 28, 1918.
    Bills by Catherine Connor against Christine Heide and Thomas Reardon and others to set aside certain deeds. From a decree dismissing the bills, plaintiff appeals.
    Affirmed.

      McHugh & Lee, for plaintiff.

      Edward D. Devine (Guy A. Miller, of counsel), for defendants.
   Moore, J.

These are two actions in chancery to set aside two deeds made by Christine Wagner of Detroit, now deceased, July 13, 1907, one to defendant Christine Heide, and one to defendants Thomas Reardon and Millie Reardon, his wife. The cases were consolidated and tried as one in the court below, and on the hearing the bills of complaint were dismissed. The case is brought here by appeal. Plaintiff is a niece of Christine Wagner. She alleges that the conveyances in question were executed by Mrs. Wagner when she was mentally incompetent and subjected to undue influence. Christine Wagner was the widow of John Wagner who died February 22, 1906, leaving six parcels of land in which, he was tenant in common with his brother, and two parcels which he owned by the entireties with his wife. These latter two parcels are the subject-matter of these suits. Mrs. Wagner had no children. Christine Heide was her half-sister and had lived with Mrs. Wagner a long time. Millie Reardon is a niece of Mrs. Wagner and the wife of Thomas Reardon. The other defendant bought for church purposes part of the land conveyed to Mr. Reardon. The bills of complaint were filed March 24, 1915.

It will be observed that the deeds were made in 1907, that Mrs. Wagner died in 1913, and the bills of complaint were filed a little more than two years later. When the deeds were made Mrs. Wagner was not 60 years of age.

The case was tried in open court. The decisive issues are questions of fact. It would profit no one to quote from the testimony and we shall content ourselves by saying that a careful examination of the somewhat voluminous record discloses that plaintiff failed to sustain the averments of her bills of complaint.

The decree of the court below is affirmed, with costs to the defendants.

Ostrander, C. J., and Bird, ¿teere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.