author: Grant, J. Moore, C. J.

text:
    COESSENS v. RAPID RAILWAY.
    Street Railways — Negligence—Duty op Motorman — Children.
    Plaintiff’s intestate, a child 3£ years of age, when first observed, about 150 feet away, by the motorman of an approaching suburban car, was playing in the road with other children. She ran towards and upon the track, and was killed; the motorman being unable, by the most strenuous effort, to stop the car in time to avoid the accident. Held, that, as the motorman was under no obligation to act until the child started to run towards the track, the evidence was insufficient to establish negligence. Moore, C. J., dissenting as to the facts.
    Error to Wayne; Hosmer, J.
    Submitted November 5, 1903.
    (Docket No. 91.)
    Decided May 17, 1904.
    Case by Joseph Coessens, administrator, etc., against the Rapid Railway, for the alleged negligent killing of his intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      S. E. Engle, for appellant.

      Brennan, Donnelly & Van DeMarlc, for appellee.
   Grant, J.

I think this case should be affirmed, and for the reasons stated by the learned circuit judge who heard the case, as follows:

“ I feel constrained, under the evidence which has been offered in this case, to remove the matter from your consideration. I think that the testimony of the motorman and the conductor tends to show that the child was in the street at the time it was first observed. Now, there is no testimony, in my opinion, which tends to. negative this statement. Some of you are familiar with the premises in this case, as it is the house just immediately below the Quirk house, on Gratiot avenue, where we went in the case immediately preceding this. All the testimony tends to show, I think, that the child started to run, and that the running of the child towards the track was the first intimation to those in charge of the train that there was any intention on the part of the child to approach to a position, with reference to the track, that was unsafe. Therefore I feel constrained to say in this case that there was no obligation on the part of the motorman to slacken the speed of the train until the instant that the child started towards the track. That being so, under the evidence that has -been given here, I think the interval of time which passed between the time the child started for the track and the time of the accident was not sufficient to predicate negligence on the part of the defendant, and I therefore feel constrained, gentlemen of the jury, to direct you to render a verdict for the defendant in the case at bar.”

The learned and careful circuit judge went with the jury to the place of the accident, and was familiar with the distances and surroundings. No witness for the plaintiff, except Catherine Cooper, even attempts to fix the distance from the car to the place of the accident" when it became evident that the girl intended to go in front of the car. The car was running at a lawful rate of speed. I cannot agree with my Brother Moore that the testimony quoted by him shows that the car was four or five hundred feet away when the child started towards the track in such a manner as to indicate its intention to go upon it. Catherine Cooper is the only witness who testified to seeing the car and the child when she heard one of the women call to the child. She testified:

“ I turned to see, and I saw the car coming not very far away, and its distance away, when I first noticed it, would be about around near that next house there on our side of the street, just the other side of the little brick church,- — -a little the other side of it when I first saw it.”

The church, according to, the distances marked on the plat which was in evidence, is 252 feet from the place of the accident.

On cross-examination she testified:

Q. When you first saw the child, it was over on the other side of the road ?
“A. Yes, sir.
Q. And started towards the track on a run ?
“A. Yes, sir.
“Q. And there were a number of children playing around there ?
“A. Yes, sir.
Q. And just the moment you saw the child start on the run, you knew that the car was so close that if the child went on its track it would be run over, — you thought so?
“A. Why, yes; I surely must have, or I would not have run. That was my first thought, — that it would be struck.
Q. Of course, where the car was at that instant you could not swear now, could you ?
“A. Well, not exactly; no.”

The motorman testified that he saw some children playing in the road in front of Coessens’ place when he was about 125 or 150 feet away, that he saw the child start to run across the track, and that, as soon as he saw her start, he shut off the power and put on the air. He is corroborated by the conductor. I think the judge was correct in holding that there was no testimony tending to negative their statement. The motorman was under no obligation to act until he saw or should have seen that the child was in danger.

Judgment affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J.

Moore, C. J.

(dissenting). This action was brought to recover damages for the death of the 3-ij-year-ol'd daughter of the plaintiff, who was killed one afternoon in April, 1899, while in the public highway, by a car belonging to the defendant company. The circuit judge was of the opinion that the time which passed between the time the child started for the track and the time of the accident was not sufficient to predicate negligence on the part of the defendant, and directed a verdict for the defendant. The case is brought here by wr t of error, and it is insisted there was sufficient evidence of negligence to make the case one for the jury.

To understand the evidence, it will be necessary to know something of the location where the accident occurred. The highway runs east and west. The car came from the east, and was going west. The child was visiting, with other members of its family, at the residence of its aunt, Mary Coessens, whose house was on the north side of the' highway, and stood a little back from it. The kitchen door was near the northwest corner of the house, in the west side thereof. West and nearly south of the kitchen door, a distance of 21 feet, was a well. A path running nearly south from the kitchen door through a gate led to the highway. There was a strip of land parallel with the highway fence, and between it and the traveled portion of the highway was a ditch. Then came the planked portion of the highway, then the dirt road, then the suburban railway track, then a strip of land, and then the south highway fence. East of the Coessens gate 156 feet to the corner of the house was the Quirk bouse. East of that house, and 96 feet from the southwest corner of it, was a brick church. All of the buildings above mentioned were north of the highway. Directly opposite from the Coessens gate there were planks across the ditch which has already been mentioned. Nearly across the highway from the Coessens gate, but 21 feet west thereof, was a gate leading from the highway to the home of Miss Cooper, which house was 85 feet south of the south line of the highway. East of Miss Cooper’s house at a distance of 484 feet was a house belonging to Mr. Ruehle. This was the first house in that direction south of the highway.

It was the claim of plaintiff that the mother of the child, left it at the kitchen table getting some candy, while she with some other women stepped out near the well; that the child slipped out of the door, followed the path through the gate, passed across the plank over the ditch, across the planked portion of the' highway, across the dirt road, then upon the railway track, and was killed. It is the claim of the plaintiff that if the motorman had been doing his duty, instead of talking with a person in the vestibule with whom he was visiting, he would have seen the dhild, would have seen it intended to go upon the track, and would have had time to stop the car and avoid the accident. It is the claim of the defendant that the child was playing at the gate with other children, and that suddenly it left them and ran upon the track, and, before there was time to stop the car, the child was struck. The question involved is whether there was evidence which, if believed, sustained the charge of negligence on the part of defendant.

Mr. Pipper testified he was a passenger on the car, taking it at Mt. Clemens,—

“And this man was in the vestibule with the motorman then, and continued there the whole trip till the time of the accident, but I don’t know whether they were talking or not. The car was near my home, and I had risen and motioned the conductor to stop. I did not see the child before it was killed. I did not notice anything till there was a sudden stop, and I turned around and saw the child between the tracks. It was within a block or a block and a half from the accident. I was on my feet so as to be ready to get off, and went towards the back end of the car. They stopped the car, I should judge, in about— The sudden stoppage kind of threw me to one side. I took hold of the seat to stop me from falling. My attention was towards the back end of .the car then. I saw the child between the tracks, apparently dead. That same man in the vestibule was there yet. The car was under full speed, and the motor was on at every point, up to that time. I know it.”

The mother testified in part as follows:

“Just before the accident she went to the kitchen, and I followed. As I walked to the kitchen door, I saw her at the table helping herself to candy, and I was about to stay there with her, when my sister-in-law, standing at the well, called me, and I turned my back towards the child, and walked towards the well, and we saw two men coming in the distance. We were about trying to make out if they were ours. All at once some one said the car was coming. I did not pay much attention, and one of the ladies said, ‘ Clara is on the road;’ and I jerked back to look, — turned around to look,- — thinking she was in the house. One of my other girls was dressed j ust like her, and I thought it was she on the street; but I could see it was Clara, and I hollered and screamed for her to stop, that the car was coming; but she did not look back, and then I hollered, ‘ Catch her! Catch her! Catch her! Catch her!’ running at the same time. Mrs. Augena was there on the side of me next to the street. I do not know whether I passed her in getting through the gate first, because my eyes were to the child. They can tell better than I which overtook the other. The child was in the middle of the road when I saw her. I had supposed she was in the house at the table. I think it was about one-half a minute from the time I left her with the candy till the noise of the car was heard. When some one said the car was coming, I was near the well, and I supposed she was in the house. Then I looked to the street, and noticed her.
‘ ‘ As you pass through the gate, there is first a little sidewalk, and then three or four planks laid over a ditch to walk to the road. Next comes the plank road, then the dirt road, then the railway track. When I first saw Clara, she was away out there past the plank road, in the middle of the road, where she was toddling along out there in the middle of the street. She never stopped or looked around. Before all this happened, I heard the others say the car was coming. I ran from where I stood as fast as I could, and got to the end of the boards that lay over the ditch, when I saw she was struck, and her body flew up, and I could not go any farther.”

Mrs. Augena testified in part as follows:

“The men were out in the field when this happened. We stood out by the well looking towards them, and saw them coming back. I heard the car coming while we were near the well; I could not see the car then; and I hallooed out, CA car is coming,’ and I turned around, and saw the little child run across the plank which was over the ditch. She was over the ditch when I saw her. There is a plank across the ditch, but she was between the plank and the middle of the street, — between the plank and the dirt road there. She was near that. Mrs. Coessens and I ran at the same time. We started to run. I was ahead first, but Mrs. Mary Coessens, sbe ran past me; that is the auntie; she got ahead of me, and the mother ran. The three of us started together. Mrs. Mary Coessens got through the gate first. • The mother got through the gate, too. When I came out past the house, I saw the car. I know where that little church .is above there. The car was nearer by them than that church. The car was just above the first telegraph post that way when I got past the house so I could see it. I waved my handkerchief and looked at the car, and looked at the child at the same time, and signaled the car. It took no notice of me, but was going just as fast. After the child was killed, the car stopped quite a ways from there. It did not begin to stop before that. * * * The two Mrs. -Coessens and I were up near the well when we heard the car coming, and I turned around and noticed the little child, and she was on the highway running straight towards the track, and we all instantly ran after it. She went right on. She did not stop. She tripped on the track, and tried to get up, and fell down again, and was struck with the car.”

Miss Cooper, who lived just across the street from the Coessens house, testified:

“I had been down to the front gate, and one of the ladies had called to the child, and my attention was drawn to it, and I turned to see, and I saw the car coming not very far away, from the direction of Mt. Clemens, and its distance away, when I first noticed it, would be about around near that nest house there on our side of the street, just the other side of the little brick church, — a little the other side of it when I first saw it. I could not tell how fast it was coming. They used to go pretty fast, I know, though, and at that time they did. I had noticed the cars much, speeding along, and T used to think they came at a very rapid gait till they struck the city limits. I do not know their rate per hour. I saw the car first up somewhere beyond the little church, and several children were outside the gate, and when I noticed this child it had started to run across the road. When I first saw it, it was going across the road. You could tell it intended to run across, and had no thought of the car coming. It seemed bound to go right across. I cannot tell how long the little child was in sight so it could be seen by the motorman, because, as soon as I glanced to see the car coming, I started to run. I thought I did not want to see it killed. I was frightened myself, and went right away. I only gave one thought, one glance at the car, and then i’an. All I saw was the child and the car coming, and ran. At that time I think the car was in front of the house next to us, or near the church, coming, as near as can be. I looked back once, and the little child was under the car. It ran directly from their gate, you know, — Coessens’ gate; must have been struck, of course, right straight across from Coessens’ gate, and that is a number of feet east of our gate. I think the place where they picked it up was just about in front of our gate.”

. It is suggested the effect of the direct examination of Miss Cooper is nullified by her cross-examination, which closed as follows: “Q. Of course, where the car was at that instant you could not swear, now, could you P A. Well, not exactly; no.” She was then asked by counsel for plaintiff, “ But what you have said in that respect you believe to be correct?” and replied “Yes; as near as anybody could say.” My impression of the effect of the cross-examination is to show great caution upon the part of a witness who is honestly trying to tell what occurred, and not do away with the effect of her testimony.

The testimony I have quoted tends to show the car was four or five hundred feet away when the child, after it passed into the highway, started towards the track in such a manner as to indicate its intention to go upon it. As already stated, the testimony of the witnesses for the defendant tended to show an entirely different state of facts. Under the testimony, I think the question of negligence should have been submitted to the jury. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99, and the many cases there cited; Hassenyer v. Railroad Co., 48 Mich. 205 (12 N. W. 155, 42 Am. Rep. 470); Nelson v. Mining Co., 65 Mich. 288 (32 N. W. 438); Lehman v. Steel Works, 114 Mich. 260 (72 N. W. 183), and the cases therein cited.

I think the judgment should be reversed, and a new trial ordered.


source: Caselaw Access Project

author: Hooker, J. Moore', C. J.

license: Public Domain

text:
    COMSTOCK v. McDONALD.

    Partnership — Sale of Partnership Realty — Secret Bonus for Assent" to Sale — Firm Assets.
    Where the administrator and widow of a deceased partner refused to consent to a sale of partnership real estate at a price agreed to by the surviving partners, but later entered into a secret agreement with the prospective purchaser whereby he was to pay the agreed price for the property, and an additional sum to the administrator and widow in consideration of their assent, and the sale was completed accordingly, held, that the sum paid to the administrator and widow must be treated as, an asset of the copartnership, and accounted for by the administrator to the surviving partners. Moore, Q. J., dissenting.
    Appeal from Wayne; Carpenter,. J.
    Submitted November 18, 1903.
    (Docket No. 77.)

    Decided May 17, 1904.
    Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From the decree rendered, complainants appeal.
    Modified.

      Frank Fmerick, for complainants.

      McDonell & Hall and Elliott G. Stevenson, for defendants.

       Rehearing denied October 27, 1904.

   Hooker, J.

The complainants and a brother were co-partners in a lumber business, the latter having a ninth interest. The copartnership was dissolved by the death of-the brother, and the bill in this cause was filed by the surviving partners for an accounting and some other relief unnecessary to further mention. During the pendency of the cause, one Ryan sought to purchase certain timber limits in Canada belonging to the firm, and had negotiations whereby it was ascertained and agreed that the complainants would consent to an option upon said property for $500,000 if the widow and administrator of the deceased brother would do so. An interview was had with them, and they refused to consent, expressing the opinion that the property was worth much more, and the complainants informed Ryan that the deal could not be made. A day or two later, Ryan and the administrator made a written contract whereby it was agreed that the representative of the deceased brother would consent to a sale of said property for $500,000, in consideration of the payment to the administrator by said Ryan of the sum of $44,444.45 upon the consummation of said sale. The contract is as follows:

“ Articles of agreement, made and entered into this 18th day of September, 1899, by and between M. Louise Com-stock, of Alpena, Michigan, widow of Joseph B. Com-stock, deceased, and guardian of his infant children, and George R. McDonald, administrator of said estate, parties ■of the first part, and Peter Ryan, of the city of Toronto, Ontario, party of the second part, witnesseth:
Whereas, the party of the second part represents to the parties of the first part that he is the owner and holder of an option from Andrew W. Comstock and William B. Comstock, of said city of Alpena, survivors of the firm of Comstock Brothers, of said city, to purchase the property known as the ‘Canadian Limits,’ situated in and comprising the townships of Trill, Poster, Nairn, and Ermatinger, in the Dominion of Canada, for the sum of five hundred thousand dollars, according to and under the conditions named in said option; and
Whereas, the said estate of Joseph B. Comstock is interested in, and the owner of an undivided one-ninth interest in, said property and limits, and is desirous of and willing to sell the same for what the parties of the first part deem a suitable price for such interest, which suitable price the said parties deem to be one hundred thousand dollars ($100,000) for such one-ninth interest:
“ Now, therefore, the parties of the first part hereby agree that in consideration of the sum of forty-four thous- and four hundred and forty-four and forty-five one hundredths dollars ($44,444.45), to be paid to them by the party of the second part, in addition to the sum of five hundred thousand dollars ($500,000) to be paid the said Andrew W. Comstock and William B. Comstock under such option, the same to be paid at the time and in the manner hereinafter set forth, they will and do hereby assent to such sale, and will use reasonable and speedy endeavor to secure, from the circuit court in chancery for the county of Alpena, an order permitting the said Andrew W. Comstock and William B. Comstock and said estate to sell the said property and limits.
“The party of the second part hereby agrees that, in consideration of the premises, he will pay to and into the Bank of Montreal, of the city of Toronto, Ontario, to the credit of said M. Louise Comstock, guardian and widow, the said sum of forty-four thousand four hundred and forty-four and forty-five hundredths dollars ($44,444.45) concurrent with the transfer of said property, limits, and the licenses therefor, and will pay to said Andrew W. Comstock and William B. Comstock the further sum of fivehundred thousand dollars ($500,000) in addition thereto, according to the terms and in the manner provided in such option; the said money so paid into such bank to be and become the property of said M. Louise Comstock, as widow and guardian, at once upon the transfer of the title of such property and limits to the said party of the second part.
“ In witness whereof,' the parties have hereunto set their seals and signed this agreement the day and year aforesaid.
“Mrs. M. Louise Comstock,
“ Widow and Guardian.
“George R. McDonald,
“ Administrator.
“ McDonell & Hall,
‘ ‘ His Attorneys.
“ Peter Ryan.”

The option was thereupon given, and read as follows:

“Articles of agreement, made this first day of September, 1899, by and between Comstock Brothers, of Alpena, Michigan, of the first part, and Peter Ryan, of the city of Toronto, Province of Ontario, party of the second part, as Eollows:
“ Said first parties agree to sell the timber berths numbers 94, 98, 99, and 102, known as the townships of Nairn, Foster, Trill, and Ermatinger, north shore of. Lake Huron district, Province of Ontario, for the sum of five hundred thousand dollars ($500,000) in lawful money of the Dominion of Canada, with New York exchange, payable as follows: The sum of ten thousand dollars ($10,000) cash in hand, the receipt of which is hereby confessed and acknowledged, and the balance, four hundred and ninety thous- and dollars ($490,000), in New York exchange aforesaid, on or before the first day of November, 1899, at the office of the Crown Land Department, in the Parliament Buildings, in the city of Toronto. Said parties of the first part further agree that they will transfer said licenses for the above timber berths at the time and place and concurrent with the payment of said four hundred and ninety thous- and dollars ($490,000).
“ Said party of the second part agrees to purchase said property, and pay therefor the sum of five hundred thous- and dollars ($500,000) at the time and in the manner above stated.
‘ ‘ It is, however, further agreed that said second party may,' at any time before said first day of November, 1899, surrender to said parties of the first part this contract, by delivering the same, canceled, at the office aforesaid, and, in the event of said contract being surrendered, said parties of the first part shall keep and retain the said sum of ten thousand dollars ($10,000) as their own money, in consideration of their releasing said party of the second part from his obligations under this contract.
“ If said party of the second part shall fail to pay said sum of four hundred and ninety thousand dollars ($490,-000) at the time, place, and manner herein agreed, then said failure shall be regarded by both parties hereto as an irrevocable election on the part of the party of the second part to surrender and abandon this contract, and this contract shall, upon said failure, become ipso facto void, and said ten thousand dollars ($10,000) shall be retained by the first parties for and as the consideration above stated.
“In witness whereof, the parties hereto have signed this contract, on the year and day first above written, in duplicate.
“Comstock Bros.
“ Peter Ryan.
“ Witnesses: De Yere Hall.
“Geo. Wm. Moore.”

The following order was. entered in this cause, then pending, by consent, viz.:

“At a session of said court held at the court-house in the city of Alpena, in said county, on the 2d day of October, A. D. 1899.
“Present: Hon. R. J. Kelley, Circuit Judge.
“On reading and filing of a petition in this cause by the complainants, defendants consenting thereto, praying for leave to sell and transfer so much of the copartnership, assets in said cause as are known and described as the timber berths or limits numbers 94, 98, 99, and 102, comprising the townships of Trill, Ermatinger, Foster, and Nairn, on the Spanish river and tributaries, in the Province of Ontario, to Peter Ryan, of the city of Toronto, Ontario, for the sum of $500,000, after consideration thereof, it appearing to the court that the complainants, under the name of Comstock Bros., by and with the consent of said defendants and their counsel, have entered into a contract and agreement, with the said Peter Ryan to sell and dispose of such berths and limits for said sum, and that the title to the same stands in the name of. Com-stock Bros., and that said Comstock Bros, consists of the complainants herein and of Joseph B. Comstock, deceased, who is represented by the defendants herein, it is hereby ordered and decreed that the parties hereto be, and they are hereby, authorized to make a sale thereof for an amount not less than said sum, and that said complainants and defendants join in the execution of the papers and documents transferring and selling said berths and limits.
“ It is further ordered and decreed that the interest of the said complainants in and to said limits is eight-ninths part thereof, and that they are entitled and authorized to receive such proportionate sum of the amount for which the same shall be sold to the said Peter Ryan, and that the interest of the defendant M. Louise Comstock, in her individual right and as guardian of said minors, in and to said limits, is one-ninth part thereof, and that she, in her individual right and as such guardian, is entitled and au-. thorized to receive such proportionate sum of the amount for which the same shall be sold, under this order, to the said Peter Ryan; and that upon the payment to the complainants by the said Peter Ryan of eight-ninths of the amount for which the said limits shall be sold to him, and the payment to the said M. Louise Comstock, in her individual right and as such guardian, of one-ninth of the amount for which said berths and limits shall be sold to the said Peter Ryan, and not less than the sum of ($55,-555.55) fifty-five thousand five hundred fifty-five dollars and fifty-five cents, that the complainants and defendants herein are hereby authorized to convey and transfer the said berths and limits.
“ It is further ordered and decreed that of the said sum of ($55,555.55) fifty-five thousand five hundred and fifty-five dollars and fifty-five cents the said M. Louise Comstock is hereby required and ordered to deposit in her name, individually and as such guardian, the sum of ($20,000) twenty thousand dollars in the Bay City Bank, of Bay City, Michigan, and the further sum of ($20,000) twenty thous- and dollars in the Wayne County Savings Bank, of Detroit, Michigan, and the further sum of ($15,555.55) fifteen thousand five hundred fifty-five dollars and fifty-five cents in the First National Bank of said city of Detroit, there to remain until the further order of this court: Provided, that so much of this order as relates to the payment of said sum to the said M. Louise Comstock shall, as against the said Peter Ryan, be satisfied by the payment to her of the sum of ($55,555.55) fifty-five thousand five hundred fifty-five dollars and fifty-five cents to the said M. Louise Comstock at the office of the Crown Lands Department, in the Parliament Building, in the city of Toronto, Ontario.
“It is further ordered and decreed that the aforesaid described copartnership asset, involved in this cause, be, and the same is hereby, eliminated from the other assets in controversy in said cause, and by this order and decree the same shall be treated as if a partition thereof were made of the same before sale thereof. This consent order and decree is in no wise to affect the further accounting and determination of the rights of the parties as to the remainder of the property and assets involved in this suit.”

The purchase was made by Ryan, and the defendant •administrator was paid the one-ninth share of the purchase price, and also the sum of $44,444.45, provided for in his contract with Ryan. It seems to be admitted that the arrangement between Ryan and defendant, whereby this one-ninth interest was made to produce $44,444.45 more than an equal share of the purchase price, was kept secret, and did not come to the knowledge of the complainants until some time after the transaction was closed and the sale confirmed. Upon the hearing of this cause, the matter was brought to the attention of the circuit court, which, acting under direction of this court (see 126 Mich. 155 [85 N. W. 579]), considered the question of the accounting; and a claim was made by complainants that this sum of $44,444.45 should be treated as an asset belonging to the copartnership. The circuit court held otherwise, and the complainants have appealed.

Counsel for the defendants say that a dissolution of a copartnership by death makes the surviving partners trustees for the representatives of the deceased, but that there is not a similar reciprocal relation, and that the representative, having none of the authority of a copartner, has none of the obligations of such. If it be admitted that the representative has no active share in the settling of the partnership business, we think that it does not follow that he owes no duty toward his intestate’s copartners, but is at liberty to seek the furtherance of his own interests to the injury of theirs. If it is true that he may sell his interest in each individual piece of property owned by the firm (which we do not affirm), and captiously insist on a bonus over and above his share of the proceeds of each piece of property that the surviving partners may seek to sell, enforcing the claim by a denial of their authority to sell, and threats to prevent it by litigation, it is not difficult to see that serious embarrassment, if not loss, to the others would result.

In the present case the defendants appear to have been correct in the opinion that the complainants were offering this property at too small a price, and no fault can be found on account of their objection to the sale. The sequel has proved that the property was worth much more. Their opinion was confirmed by Ryan’s willingness to pay a large additional sum. Had this been communicated to the complainants, it is not improbable that it would have resulted in their selling the property for a sum mpre nearly approximating its value; but, instead of this, defendant acted upon the assumption that he might sell his assent to the contract to sell for $500,000, and thus keep all of the additional price offered, to the exclusion of the other interested parties, who were allowed to complete the sale in the honest belief that the price was $500,000, whereas in fact it was $544,444.45.

The theory that this was a sale of the defendant’s interest is fallacious. It is plain that it could not have been sold to Ryan, who wanted the entire property or none; and the agreement shows that the consent was to the sale of all, and payment of the $44,444.45 was conditional upon it. It is not difficult to see that the defendant might not have been able to realize as much out of the property in any other way; for it is shown that Ryan would not have given $900,000 for the property, and a sale for anything less than that sum would have made defendant’s legitimate share less than $100,000. There was, therefore, a premium upon secrecy, both for Ryan and the defendant. Ryan bought the property for a low price, while defendant got the benefit of a high price; and this was accomplished by leading the complainants to believe the property was going for $44,444.45 less than the real price. If we are to say that the defendant in this case had the right to make such a contract as this, it is not easy to see why any copartner, not actively engaged in settling the partnership affairs, or his representatives or assigns, may not do the same; and that would mean that it is legitimate for copartners and their representatives to speculate out of co-partnership assets at the expense of their copartners, and the consequences can readily be imagined.

We must treat this property as sold for the full amount received for it, and the bonus received by defendant as an asset of the firm, to be accounted for by defendant. In other respects the decree is affirmed. The complainants will recover costs of this court. The balance due complainants is a matter of computation, and will be fixed in the decree.

Grant and Montgomery, JJ., concurred with Hooker, J.

Moore', C. J.

(dissenting). I cannot reach the conclusion to which Justice Hooker has arrived. The case was heard in the court below by Judge Carpenter, now Justice Carpenter, who made so clear a statement of the questions involved that I quote from the written opinion he prepared in the case:

“ This is a continuation of a suit for an accounting reported in 126 Mich. 142 (85 N. W. 579). It is conceded that defendants are entitled to a decree against complainants, on the state of the accounts up to and including September 30, 1901, for $2,714.49, unless complainants are entitled to participate in the distribution of a fund of $44,-444.45, received by defendants under the following circumstances :
‘ ‘ Complainants and defendants, as representatives and heirs of Joseph B. Comstock, deceased, owned certain timber berths in the Province of Ontario. These berths stood in the name of Comstock Bros, (the name in which said complainants and said Joseph B. Comstock, prior to his death, in 1894, had carried on business as copartners). As the debts of said copartnership were only nominal, these berths were owned by the parties in proportion to their copartnership interests; that is, each of said complainants owned four-ninths, and defendants, as representatives and heirs of Joseph B. Comstock, owned one-ninth.
“On August 24, 1899, one Peter Ryan, a prominent timber dealer, residing at Toronto, Ontario, addressed a letter to Comstock Bros., Alpena, Mich., requesting their lowest price for said timber berths, stating:
‘“I can sell them, if you will give me two months to overlook them. Fires are now raging in your territory, and, though I am not sure that there is any on your berths, yet you must realize that settlers, hunters, Indians, and, worst of all, mining prospectors, are very apt to do quite a lot of mischief.’
“Receiving no answer, on September 1st Mr. Ryan wrote again, addressing his letter, as before, to Comstock Bros., stating:
“ ‘ May I ask you to let me have an answer to my letter of the 24th ? I am informed that townships of Foster and Nairn [two of the timber berths in question] have been on fire and much burned.’
“September 5, 1899, complainant Andrew W. Com-stock answered the letters of Peter Ryan, stating:
“ ‘ We are not anxious to sell our berths. The fires are not injuring them. We have a man on the ground watching them. That is our last report. We will sell the four berths for §500,000 net. If you wish to examine them, we will not sell to other parties while you are looking, or before November 1st. We will give no option to any one.’
‘ ‘ On receipt of this letter, Mr. Ryan dispatched men to examine the berths, and wrote the following letter:
“ ‘ 8th September, 1899.
"“Messrs. Comstock Brothers,
“ ‘Alpena, Mich.
“ ‘ Dear Sirs: Yours of the 5th inst. at hand. I beg to say that I am sending my men to examine the berths, and beg to express my appreciation of your ofEer, and hope to be able to close with you before the time mentioned in your letter.
“ ‘Yours truly,
“ ‘ Peter Ryan.’
“ Before this letter reached Alpena, complainant Andrew W. Comstock had left Alpena for Detroit, and the other complainant was in Toledo, Ohio, so that this letter was not received by complainants until after the interview next below mentioned had occurred between them and Peter Ryan. On the 11th of September said Ryan met said complainant Andrew W. Comstock in Detroit, for the purpose of securing a formal option in accordance with the correspondence above referred to. Said Andrew W. Com-stock would not give said option until his brother, William B. Comstock, who was then in Toledo, Ohio, should give his assent to the arrangement. To secure this assent, said Ryan and Andrew W. Comstock visited Toledo on September 12th, and had an interview with said William B. Comstock, who approved the proposed arrangement. Either on the 11th of September or the 13th, — just which time it seems to me to be unimportant, — said Andrew W. Comstock informed said Ryan that he could not sign the proposed option until the defendants should yield their assent. This was the first information that said Ryan liad that the defendants had any interest in the timber berths in question. On said September 13th a formal op-. tion was prepared by the solicitor for complainants, whereby said Ryan was to have the right to purchase said timber berths on or before November 1, 1899, for the sum of $500,000. He was to advance $10,000, which was to become forfeited in case the berths were not paid for as agreed. It was arranged that said Ryan should leave his •check of $10,000 either with Mr. Comstock or his solicitor, which was to be used by Mr. Comstock in the event of his signing said option, and not otherwise, and that his signing said option depended upon the assent of defendants to the proposed arrangement.
“ On said 13th day of September, 1899, both Mr. Ryan and the complainant A. W. Comstock communicated by telephone with Mr. Hall, of the firm of McDonell & Hall, of Bay City, representatives of the defendants. This was the first intimation that any one representing the defendants had of the proposed sale. Mr. Hall declined to assent to the sale, on the ground that he believed the property to be of much greater value than $500,000. When he was assured that reports had come that the timber was damaged or threatened by fire, he stated his desire to examine said reports. Accordingly it was arranged that on the following Saturday, September 16th, he should meet said complainant Andrew W. Comstock at his office in Alpena, and examine said reports. In accordance with this arrangement, both Mr. Hall and his partner, Mr. McDonell,' and their client, Mrs. M. Louise Comstock, had an interview with said Andrew W. Comstock at his office in Alpena. Together they examined the letters indicating that the timber had been damaged or was then threatened by fire. Defendants were not satisfied that it was for their interest to have the sale proceed. They stated to complainant Andrew W. Comstock that, according to his testimony given the previous December, said timber was worth $1,350,000, and according to the appraisal of his brother, and his own report as administrator of the estate of Joseph B. Comstock, deceased, the interest of said estate in said timber was worth $127,000. Mr. Hall, speaking for his clients, tried to induce complainant Andrew W. Comstock, at the expense of all parties interested, out of the funds of the partnership remaining in his hands, to have an investigation made to ascertain the then worth of said timber. Mr. Comstock declined to do this, and Mr. Hall then said, ‘ Mr. Comstock, that means that Mrs. Comstock has got to adopt her own course to protect her interest in this property;’ to which complainant Andrew W. Comstock replied, ‘ That is right.’ It was finally concluded that complainants would advance to Mrs. M. Louise Comstock, widow of Joseph, the sum of $500, to be charged to her account, for the purpose of making an investigation (though this advance, owing to the circumstances hereafter stated, was not made), and a telegram was sent to Mr. Ryan, at Toronto, stating that, until this investigation was made, the estate represented by defendants would decline to yield its assent to the proposed arrangement.
‘ ‘ On Sunday, September 17th, said Peter Ryan, who in the meantime had received the telegram last above referred to, called on Mr. Hall at his office in Bay City, and represented to him that he had a valid and. binding contract with Comstock Bros. Mr. Hall threatened to obtain an injunction preventing the carrying out of this contract. Mr. Ryan indicated his great anxiety to have the contract promptly and faithfully executed, and asked Mr. Hall to name a figure which would induce his clients to yield their assent to the proposed arrangement. In response to this suggestion, Mr. Hall, assuming the value to be $900,000, and a one-ninth interest in said timber to be worth $100,-000, agreed, if Mr. Ryan would give $ái,iáL45, in addition to what they would receive as their one-ninth of the $500,000, to advise his clients to consent to the option being executed in accordance with the arrangement already made. To this proposition Mr. Ryan finally gave his assent, and on the following morning, in the city of Detroit, a writing embodying this agreement was executed. Very shortly thereafter Mr. Ryan and Mr. Hall met complainant Andrew W. Comstock, and Mr. Hall informed him that the defendants yielded their assent to the proposed arrangement, and subsequently on the same day the option prepared on the 13th of September was executed by Andrew W. Comstock in the name of Comstock Bros., and delivered to Mr. Ryan, and the $10,000 check was cashed. Subsequently said Ryan sold said berths for $937,000, and on or about November 1, 1899, carried out his contract, both with complainants and defendants. Nearly all of the berths were sold by said Ryan before November 1, 1899.
“The question — and it is a question of law — is whether or not complainants are entitled to eight-ninths of the $44,444.45. If the complainants had been informed, before they executed the option on the 18th of September, that the defendants were receiving this amount in addition to the one-ninth, and after such information had proceeded to execute the contract, no one could possibly contend that they had a right to participate in the fund in controversy. Their claim hinges, then, upon the neglect of defendants to disclose the receipt of this sum in addition to the interest in the $500,000. Was there any obligation on the part of the defendants to make that disclosure to complainants? It is earnestly insisted by the learned counsel for com-: plainants that the relation existing between complainants and defendants was one of trust and confidence. Cases are cited holding that such a relation exists, not only between copartners, but between the representatives of deceased partners and the former partners of their intestate. I have no doubt that such a trust relation often does exist. If the representative of a deceased partner undertakes to deal with the assets of the partnership, respecting such an undertaking he occupies a relation of trust toward every one having an interest in said assets. The authorities cited in the brief of complainants’ counsel relate, as I understand them, to such situations, and not to a case like that under consideration. Here defendants did not undertake to deal with any asset of the copartnership, nor with any interest in which complainants were-concerned. They simply undertook, in their dealing with Ryan, to dispose of their interest — that is, the interest of the estate of Joseph B. Comstock, deceased — in the asset in question, an-d in truth they did not receive for that interest any more than it was reasonably worth, as shown by the amount realized by Ryan. Defendants, so far as complainants were concerned, had a right to sell their interest in that asset for any price which they could get.
“Was there any obligation on the part of defendants to say to complainant Andrew W. Comstock, ‘ We are receiving from Ryan $44,444.45 in addition to one-ninth of this $500,000?’ Was Andrew W. Comstock in any position to say, ‘ I have been misled by your silence ?’ It seems to me obviously not. Complainants had fixed the value of this property at $500,000 for the purpose of making the deal with Ryan. In fixing this value they had not consulted defendants. They had consulted their own opinion and their own interests. They had promised Ryan that he should have the land at that figure if the defendants would assent. I am not sure that their letter of September 5th would not have legally obligated them to carry out that agreement. But, whether or not there was a legal obligation, there was the strongest kind of a moral obligation on their part to perform their agreement and to sign the option. It would not have been good faith on their part for them to have said to Ryan, ‘ Because you have paid defendants $44,444.45 more than their one-ninth of $500,000, you must also pay us eight times this amount, or we will not do as we have agreed.’ Complainants, therefore, cannot truthfully say that they have been misled by the silence of defendants, because they have done only what they were bound to do by every principle of morals.
“ This is not a case wherein it can be urged that it was the duty of the defendants to make complainants acquainted with facts of which they were ignorant. This is not a case where silence was fraudulent. There was no trust relation which made it the duty of the defendants to speak. Complainants suffered no injury, because they did nothing but pursue a course which, in honor, they were bound to pursue.
“It results, therefore, that complainants, in my judgment, are not entitled to participate in the distribution of the fund in question, and that a decree should be entered in favor of defendants against complainants for $2,114.49.”'

I can add but little to what was said by Judge Carpenter. The case, briefly stated, is that Comstock Bros, were the owners of certain timber limits in Canada. After the death of one of the brothers, whose interest is now represented by the defendants, the complainants, who are the surviving partners of the firm, and who in the main had managed its affairs, and were very capable business men, thought it best to sell the timber limits, and offered them to Mr. Ryan for $500,000. It is clear the complainants thought that was all the limits were worth, and were willing to sell for that price, and to take eight-ninths thereof as compensation for the eight-ninths interest which they had in the lands. The widow of the deceased partner thought the lands were more valuable, and was not willing to have the lands sold unless she and her children, who sueceeded to the rights of her deceased husband, obtained more than one-ninth of $500,000 for their interest. The record is barren of any testimony indicating that complainants were influenced in any way by any act of the defendants in fixing a price upon the lands at the time they gave the option to Mr. Ryan. By the arrangement entered into by the defendants with Mr. Ryan, the amount which was to be received by complainants was not diminished in the least. The Complainants put one price upon the limits. The defendants and Mr. Ryan thought they were worth more. . An arrangement was made which was satisfactory to the defendants and Mr. Ryan, by which the latter was. able to carry out to the letter his agreement with the complainants. I cannot understand how the arrangement entered into by defendants with Mr. Ryan was wrong either in law or morals. Especially I cannot consent to the proposition that defendants, who declined to part with their interest in the limits for less than $100,000, and who received that amount for it, shall be compelled by a decree of this court to have upwards of $39,000 taken from the amount paid them and given to the complainants, when complainants have already received every dollar of value they placed upon their interest in the limits, and all they were to receive under their contract. To do so compels the widow and children to take for their interest what they were not willing’ to take, and gives to complainants nearly $40,000 more than they themselves asked for their interest.

I think the decree entered by the trial court was right, and should be affirmed.

Carpenter, J., did not sit.


author:
Moore, C. J.
      Grant, J.

text:
    BELYEA v. CITY OF PORT HURON.
    1. Municipal Corporations — Defective Sidewalks — Personal Injuries — Knowledge of Defect — Contributory Negligence —Question for Jury.
    Where plaintiff was injured in the night-time by reason of a defect in a sidewalk of which he had knowledge, and for which he was on the lookout, it was not error to submit the question of contributory negligence to the jury, under an instruction that it was his duty to act carefully and prudently, and to use such reasonable care and caution as a prudent man would ordinarily exercise, in view of the recognized danger. Grant, J., dissenting.
    8. Same — Negligence—Defenses.
    Where a section of a public sidewalk 50 feet in length had been removed, leaving a drop in the walk of some 15 inches on either side of such space, and a pedestrian stepped off the end of the walk and was injured, the city could not escape liability on the ground that there was no walk at the place of the accident, and it was not bound to construct any.
    Error to St. Clair; Law, J.
    Submitted January 5, 1904.
    (Docket No. 3.)
    Decided May 17, 1904.
    Case by William N. Belyea against the city of Port Huron for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Joseph Walsh and Carl A. Wagner, for appellant.

      William T. Mitchell (Stevens, Graham & Stevens, of counsel), for appellee.
   Moore, C. J.

The plaintiff recovered for injuries received because of a defective sidewalk..- Its condition was described by one of the witnesses as follows:

Starting from our place and going east, there is first Mellon’s house, then a vacant lot, and then Allen’s house. The vacant lot is between Mellon’s and Allen’s, and is between 40 and 50 feet wide. I recollect that the walk was torn up about the 10th of August. It was torn up by Mr. York. Father was injured about two months and a half after the walk was torn up. Nothing whatever was done to put up guards so as to prevent persons from getting into the opening, caused by the tearing up of the walk. They tore the sidewalk up in front of the vacant lot. It left the place where the walk had been a deep hole, a hollow in the ground under the sidewalk where the sidewalk had been torn up. The walk had evidently been built and raised on posts, kind of blocked up, whether pieces of posts or blocking. I did not measure the depth between the surface of the walk and the bottom of the hole or trench that was caused by the taking up of the walk, but it was probably 15 inches. A person stepping off the easterly end into the opening would go down, say 14 to 16 inches. The hole where the walk was torn up was rather deeper at the east end than it was towards Mellon’s. The walk was not torn up in front of Mellon’s. The walk had been 'built of 4x4 stringers, running lengthways, with cross-planks. I think it was a four-foot walk there. The plank had been torn off the top of a pair of stringers towards the east, leaving them extending out into the opening; I did not measure how far, but anywhere from two to four feet.”

The plaintiff is a man 54 years old. He was hurt between 10 and 11 o’clock at night. He knew when the walk was torn out, and knew of its condition. He claims he had visited at Mr. Allen’s; that it was a dark night; that he knew there was a tree each side of the walk near its end; and tljat he was looking for the .trees and the end of the walk, and that he fell off the end of the walk and was severely hurt. It is now said he cannot recover because he was guilty of contributory negligenee.

The court charged the jury, among other things, as follows :

“ In case you conclude that the defendant is guilty of negligence as just set forth, the next question for you to consider is whether or not the plaintiff was himself in the exercise of due and proper care at the time he alleges he was injured. Plaintiff must also establish this proposition in his favor by a preponderance of evidence before he can recover. If he was not, he is guilty of contributory negligence, and cannot recover in this action. Contributory negligence is defined to be some act or omission by a person injured which an ordinarily prudent man would not have done, or would not have left undone, under the same circumstances, and which directly aided in causing or contributing to the injury received. Hence, under the law of this State in reference to this suit, if plaintiff has done any act which an ordinarily prudent man would not have done, or omitted to do any act which an ordinarily prudent man would have done, he is guilty of contributory negligence, and cannot recover. * * *
“ If the jury find that on the 31st day of October, 1900, the walk in question was in a condition not reasonably safe and fit for public travel, and that it had been and remained for several weeks in that condition, and the defendant either knew or ought to have known the existing condition, and the plaintiff, at or about 11 o’clock, came out of a lighted room, and was proceeding carefully along the walk, and endeavored to locate the dangerous place, the location at that time he not having distinctly in mind by reason of the darkness of the night, and by reason of the fact, if the jury find it to be a fact, that his observation was dimmed upon coming out of the lighted room into the darkness, that he momentarily failed to locate the dangerous place, and to detect the landmarks which he was endeavoring to distinguish to use as a guide past the dangerous place, and, while using reasonable care to avoid the dangers, he momentarily lost his bearing and was precipitated into the excavation, then he may be entitled to recover.
“ In relation to this question of contributory negligence, you should consider the rapidity which the testimonyshows the plaintiff to have been walking, whether the night was dark or moonlight, and these things you will have to determine from the testimony. If you determine that there was sufficient light for the plaintiff to have seen the alleged defect by using his sense of sight, you have a right to say that his failure to do so is contributory negligence. You may consider whether or not the plaintiff is guilty of contributory negligence because he did not pass around the alleged defective walk, instead of approaching near to it or attempting to pass over it. The knowledge of the alleged defects which the testimony shows he possessed placed upon him the duty to exercise such ordinary care, to act himself carefully and prudently in view of the recognized danger, and to use such reasonable care and caution as a prudent man would ordinarily exercise in view of such fact, and in view of all the circumstances that surrounded the plaintiff at the time and place of the alleged injury, taking his knowledge of the condition of the place in question into consideration.”

It has been repeatedly held that a man is not precluded from traveling over a highway or sidewalk simply because he knows there is a defect in it. He is bound, however, to exercise such care and diligence as a prudent man would exercise in view of the danger. "We think the following cases justify the charge of the learned judge: Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Brezee v. Powers, 80 Mich. 172 (45 N. W. 130); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Corcoran v. City of Detroit, 95 Mich. 84 (54 N. W. 692); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341); Schwingschlegl v. City of Monroe, 113 Mich. 683 (72 N. W. 7).

It is claimed the city is not liable because no sidewalk existed at the point the accident occurred; citing Williams v. City of Grand Rapids, 59 Mich. 51 (26 N. W. 279), and Shietart v. City of Detroit, 108 Mich. 309 (66 N. W. 221). In the first of these cases no cross-walk had ever been built by the city, and it was held plaintiff could not recover for the neglect of the city to build one. In disposing of the case the court used the following language :

“ The law says nothing about the construction of'crosswalks, and imposes no duty to build them. It evidently means, when it imposes a duty upon municipalities to keep in good repair, that where bridges, cross-walks, culverts, and new sidewalks have once been erected or constructed in the discretion and judgment of the common council, or other authorities having these matters in charge, because of the needs of the traveling public, they shall then thereafter be kept in good repair, and in a condition reasonably safe and fit for public travel. It does not intend to force, by a penalty in damages, the building of these, any more than it does the opening of new streets and highways. The city of Grand Rapids must determine for itself the necessity of opening a street to public travel, and the building of cross-walks over it. For a failure to do either no right of action exists, even if damage or injury is occasioned thereby. When a street is opened or a cross-walk built, then the law steps in and commands that the street or cross-walk must be kept in good repair and fit for travel without danger, ór the city pay the damages arising from defects.”

In Shietart v. City of Detroit, Justice Montgomery was of the opinion there was a question for the jury. Justice McGrath took no part in the decision. Justice Hooker concurred in the result, upon the ground that the defect, if any, was obvious, and the walk was safe to all except the heedless. In the opinion written by Justice Grant, and concurred in by Justice Long, it was said: “ The sidewalk was not out of repair. It had not been built.”

Justice Morse, who wrote the opinion in Williams v. City of Grand Rapids, supra, wrote the prevailing opinion in Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071), where it was held that the ruling in Williams v. City of Grand Rapids did not preclude a recovery where a sidewalk had been built, and afterwards a portion of it removed.

The testimony was very conflicting as to the situation where this injury occurred. The case was submitted to the jury under a very careful charge, and I think the judgment should be affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Moore, C. J.

Grant, J.

(dissenting). Beard street runs east and west in the outskirts of defendant city, about a mile and a half from its center. On the south side of the street are no residences, buildings, or sidewalks. Plaintiff resides on the north side of the street. The second lot from plaintiff’s was vacant. On the other side of this vacant lot was the house of one Allen. A plank sidewalk had formerly been built on that side of the street. Opposite this vacant lot it had become out of repair, and, under the directions of the superintendent of public works, it had been removed, for a distance of about 50 feet, some 3 months before the accident, leaving the surface of the ground in substantially the same condition that it was before the walk was built. The evidence on the part of the defendant tended to show that the sidewalk inspector banked up the ends of the remaining walk with dirt, making a slant from the edge of the walk to the ground. The evidence on the part of the plaintiff contradicts this, and shows a fall at that point of 15 to 20 inches. Alongside this vacant space was a smooth path used by pedestrians and bicyclists. The ground where the sidewalk had been was soft sand, and the sides were covered with sod. Passengers left the walk opposite the next house to plaintiff’s, and took the path alongside the walk, again taking the walk in front of Allen’s house. Plaintiff passed this walk every day, and hence was perfectly familiar with the situation. On the evening in question he made a call at the house of Mr. Allen. It was between 30 and 40 feet from Mr. Allen’s house to the end of the walk. On his return he stepped off the end of this walk and was injured, for which injury he recovered a verdict. He testified that he was perfectly familiar with the situation; that the walk terminated near an elm tree on one side, and a fir tree upon the other; that he was walking along at his usual gait, looking for these trees, and, while so doing, stepped off.

It is claimed that the defendant was guilty of no negligence, under the decisions of Williams v. City of Grand Rapids, 59 Mich. 51 (26 N. W. 279), and Shietart v. City of Detroit, 108 Mich. 309 (66 N. W. 221). I deem it unnecessary to decide this question. The plaintiff was clearly guilty of contributory negligence. He knew exactly what the defect was, and where it was; he knew there was a path at the side; he knew the location of the trees and the end of the walk. He had the situation and the danger in mind. Yet in the darkness he walked at his usual gait, when it is perfectly' apparent that, by going slowly and carefully, he could have avoided stepping off. He simply made a mistake in estimating the distance, and supposed he had not reached the end. Shall the city be held liable for his mistake? If, on coming out from his neighbor’s house, it was difficult for him to see before his eyes had become accustomed to the light, the law imposed upon him the duty to go slowly and carefully, knowing there was danger ahead. It is indisputable that proper precaution would have avoided the accident. It was his duty to use it. Failing in this, he cannot recover. Black v. City of Manistee, 107 Mich. 60 (64 N. W. 868); Irion v. City of Saginaw, 120 Mich. 295 (79 N. W. 572); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Church v. Village of Howard City, 111 Mich. 298 (69 N. W. 651, 66 Am. St. Rep. 396); Cloney v. City of Kalamazoo, 124 Mich. 655 (83 N. W. 618).

Judgment should be reversed, and new trial ordered.


author: Hooker, J. Grant, J.

text:
    GEORGE N. FLETCHER & SONS v. ALPENA CIRCUIT JUDGE.
    1. Mandamus — Return—Conclusiveness.
    Where no issue is joined in mandamus proceedings, the answer of respondent is conclusive as to the facts.
    2. Corporations — Usurious Contracts — Bo^ds.
    The issue of 6 per cent, bonds by a corporation, to be sold at 75 cents on the dollar, is usurious.
    S. Same — Ultra Vires — Defenses—Waiver.
    A usurious contract entered into by a corporation is not ultra vires, in the ordinary sense of the term, as 2 Comp. Laws, § 4857, expressly declares such contracts not to be void, and they are good in the hands of bona fide holders, and good as to all the world except the debtor, who may waive his right to treat them otherwise by neglecting to plead usury.
    4. Same — Injunction—Rights of Stockholders.
    A stockholder in a corporation may enjoin it from making a usurious contract, where it is not inequitable for him to do so as between himself and other stockholders, and where he will suffer injury from the transaction; but it cannot be said that he is entitled to such relief under any and all circumstances.
    5. Mandamus — Practice.

      Mandamus is a discretionary writ, and should not issue when it will work an injustice.
    8. Same — Injunction—Discretion of Circuit Judge.
    The discretion of a circuit judge in refusing to continue an injunction will not be interfered with by mandamus unless relator has a clear legal right to the relief sought, or such discretion is otherwise clearly abused.
    7. Same — Corporations—Usurious Contracts.

      Mandamus will not issue at the instance of a stockholder of a corporation to compel the circuit judge to continue a preliminary injunction restraining the corporation from making a usurious contract, without regard to the equitable considerations which induced the denial of such relief. So held where a corporation, under the stress of necessity, and supported by a vote of a majority of the stockholders, was about to issue its bonds, and sell them so far below par as to make the interest payable exceed 7 per cent. Grant and Carpenter, JJ„, dis-seating, on the ground that the minority stockholders had no other remedy, and being of opinion that it was an abuse of discretion not to retain the injunction until the hearing.

      Mandamus by George N. Fletcher & Sons to compel Frank Emerick, circuit judge of Alpena county, to continue an injunction restraining the sale of certain bonds.
    Submitted February 2, 1904.
    (Calendar No. 20,355.)
    Writ denied May 17, 1904.

      Charles H. Henry (Russel <& Campbell, of counsel), for relator.

      Joseph H. Cobb, for respondent.
   Hooker, J.

The relator is a stockholder in a corporation named the Alpena Portland Cement Company. A bill of complaint was filed by it, in which it was sought to restrain the sale of certain bonds by said cement company, and a preliminary injunction was issued as prayed. An. application to dissolve this injunction was heard, and tho court rendered, an opinion in which the facts found by him were stated, and an order made continuing but so modifying the injunction that the defendants might sell the bonds (which draw 6 per cent, interest) at a price not below 75 cents on the dollar. Thereupon this application was made for a mandamus to compel a continuance of the injunction as originally made.

In accordance with our uniform practice where no issue is joined, we must take the answer of the circuit judge as, conclusive of the facts. From this we may say, in brief, that the Alpena Portland Cement Company found it necessary to change its machinery, so as to make its product by an improved method, in order to compete with others, and let contracts for such machinery to a large amount. Having no means to meet its obligations, it decided to issue the bonds of the company bearing 6 per cent, interest, and to sell them below par. Counsel for relator insist that such action would conflict with the usury law. We think that such an issue and sale of bonds would be usurious, and, in the absence of a statute forbidding it, the defense of usury might be successfully made by the corporation against a plaintiff who should be shown not to be a bona fide holder. But such a contract is not void, and usually such defense can be made only by the debtor, or possibly one in privity with him. 2 Comp. Laws, § 4857, and cases cited.

If it be conceded that the relator’s claim, that the threatened transaction would be usurious if consummated, is correct, we must nevertheless refuse to interfere with the discretion of the circuit judge, unless we must say, from his finding of facts, and the law applicable to the case, that the relator has a clear legal right to this relief, regardless of any equitable considerations, or, as counsel seem to argue, an absolute right to prevent the corporation from making a usurious contract.

We cannot hold that this contract is “ultra vires,” in the ordinary sense of the term, for, while illegal contracts generally might be, it is everywhere settled that usurious contracts are good in the hands of bona fide holders, and, as we have seen, our statute not only does not make them criminal, but it does not in terms prohibit them, and expressly declares them not to be void; and they are good as to all of the world, except the debtor, and he may waive his right to treat them otherwise by neglecting to plead usury.

We are of the opinion that a stockholder may enjoin the making of a usurious contract where it is not inequitable for him to do so as between himself and other stockholders, and when he will suffer injury from the transaction. See 10 Cyc. p. 968, subd. 9. The claim is made in this case that great injury will result to the corporation, and consequently to other stockholders, if it be not permitted to proceed with the sale of its bonds, to provide money with which to pay its obligations, a failure to do which means bankruptcy, and it is further stated that complainant’s opposition is based upon a design to embarrass the corporation, and acquire its property at a nominal price through a foreclosure of a prior mortgage, of the bonds secured by which complainant is a large holder. It is clear that such action, if taken, would absorb the interest of other stockholders. Whether or not there is a foundation for such a charge, of for the counter-charge which complainant’s counsel make, we cannot consider, except as it may appear from the finding of fact; and from this, and the record in the case, we must admit the possibility of such a situation as the defendants allege.

We have often held that mandamus is a discretionary writ, and should not issue when it would work an injustice. Van Akin v. Dunn, 117 Mich. 423 (75 N. W. 938); Tennant v. Crocker, 85 Mich. 328 (48 N. W. 577); Pistorius v. Stempel, 81 Mich. 133 (45 N. W. 968); Baker v. Board of State Canvassers, 111 Mich. 380 (69 N. W. 656); MacKinnon v. Auditor General, 130 Mich. 554 (90 N. W. 329). This rule is as applicable to the circuit court as to this court. The complainant invokes the equitable remedy by injunction. Ordinarily this court will not review the exercise of the judicial discretion of the chancellor, and it is only when the issue or denial of an injunction violates a clear legal right, or is a clear abuse of discretion, that this court will interfere. That cannot . be said in this case unless we can say that the stockholder is entitled to enjoin a usurious contract, under any or all circumstances, as a matter of law. This we cannot say. See Gamble v. Water Co., 123 N. Y. 108 (25 N. E. 201, 9 L. R. A. 527); Handley v. Stutz, 139 U. S. 417 (11 Sup. Ct. 530). See, also, 10 Cyc. p. 968, subd. 9, and p. 970, subd. 146.

The writ is denied.

Moore, C. J., and Montgomery, J., concurred with Hooker, J.

Grant, J.

{dissenting in part). I concur with my Brother Hooker that the proposed issue and sale of the bonds in this case is usurious. The defendants in the chancery suit admit that they proposed to sell the bonds at auction for what they would bring. The court, in its order upon the hearing to dissolve the temporary injunction, authorized a sale at not less than 75 cents on the dollar, thus sanctioning a rate of interest of about 31 per cent. It needs no argument to demonstrate the usurious character of the transaction. It is said in Schermerhorn v. Talman, 14 N. Y. 93, 117, “It would seem hardly to require either authority or argument to prove that a person cannot sell his own promises to payand it is held that this applies to corporations as well as to individuals. It is also said in Farmers’ Loan & Trust Co. v. Carroll, 5 Barb. 616:

“ I hold it to be law that in all cases of a loan, where it appears upon the face of the transaction that the lender is in any manner to receive more than the legal rate of interest as a compensation for forbearance upon the thing .loaned, it is usury per se.”

This rule applies to corporations. Commissioners of Craven v. Railroad Co., 77 N. C. 289.

18,525 shares of the capital stock of this corporation voted against the issue of the bonds, and 31,105 for it. As my Brother Hooker has said, the defense of usury is one which the debtor may or may not interpose. In the case of a corporation, the corporation in its entity is the defendant in the suit. Stockholders are not parties, and cannot interfere except by suit in equity. The bonds might be purchased by the directors themselves. Upon suit thereon this defense of usury could not be interposed -against a bona fide holder. Undoubtedly, the majority .in control of this corporation would not interpose such a defense. Therefore the minority stockholders are powerless and remediless if the issue and sale be accomplished.

The sole question, therefore, is, May these minority stockholders enjoin the transaction, and thus avail themselves of the only remedy they have ? If the order of the circuit judge stands, the question is permanently disposed of. There will be no occasion for a hearing upon the merits, because the bonds will before that time have been issued under the sanction of the court. As I view it, the question is not one of discretion. The sole ground for refusing the relief is that of necessity, to wit, that the corporation cannot raise money by any other method. This is based upon the conclusion reached by the learned circuit judge that the capital stock of this corporation, to wit, $500,000, has all been paid in and is nonassessable. The circuit judge must mean nothing more than that the stock is issued as fully paid and nonassessable. Both the bill and answer recognize the fact that the stock has not been fully paid, unless payment in “water,” rather than in money or its equivalent, is to be regarded as payment. It is asserted in the bill of complaint that the actual amount paid by each stockholder on his subscription is only 37] cents on the dollar. The answer does not deny this. It alleges that the marl and clay lands were put into the corporation at a value of $150,000, but were in fact paid for by the issue of only $60,000 fully paid stock of the corporation. The answer asserts that “the stockholders [aside from the former owners of the lands] were to pay in full for said stock 62] cents on the dollar for the remainder of the stock.” It also asserts that, under an arrangement with the relators and others, said stock “ was declared fully paid up and nonassessable for the amount they had already paid upon the stock, to wit, the sum of 37] per cent.” As against creditors, this stock is not fully paid. Relators assert in their bill of complaint that it is assessable, and that the requisite funds can be raised by assessment. Whether the stockholders, _ as between themselves, are estopped, we need not determine.

Charges and counter-charges are made against the respective parties by the bill and answer. Counsel for the. defendants in the chancery suit states in his brief that he desires to treat this as a final hearing, and for that purpose has sent to this court — not under the certificate of the judge — a portion of the, testimony taken before him at the hearing on the preliminary injunction. This testimony has not been considered by us. The merits must abide the hearing. The sole question presented is, Should the preliminary injunction be maintained until the hearing ? The judge does not find that the relators (complainants in the chancery suit) come into court with unclean hands. He bases his conclusion and order, as above stated, solely upon the ground of necessity.' The question, therefore, is, Can a majority of the stockholders of a corporation issue bonds and dispose of them at a usurious rate of interest against the remonstrance of the minority? If, as in this case, under the plea of necessity resulting from the insolvency of the corporation, the majority can issue notes ■or bonds of the corporation at 31 per cent, interest, they can issue them at 50 per cent., or any other sum commensurate with the supposed necessity of the corporation to obtain a given amount of money. In other words, if a corporation needs $10,000, and the majority of the stockholders think that with that $10,000 they can make the corporation a success, they may issue bonds or notes for $100,000 to secure the $10,000. To me this is a startling proposition. A more effectual way to “freeze out” a minority of the stock is inconceivable. ' If two of three partners of an insolvent partnership determine, on the ground of necessity, that if 'they had $10,000 they could make the partnership business a success, and could find ;some one who would let them have the $10,000 upon the delivery of a note or bond and mortgage for $20,000, would not equity, at the instance of the third partner, restrain the action of the majority on account of the usurious nature of the contract ? There is no difference in principle between such action on the part of a partnership and the majority of the stockholders of a corporation. The injury to thq minority stockholder differs only in degree from that of the partner. The minority stockholder must pay his proportionate share of the usurious interest. It requires no argument to show that he is injured. When thus injured, and he comes into court with clean hands, he is entitled to the strong hand of equity to restrain the oppressive action of the majority.

In Commissioners of Craven v. Railroad Co., 77 N. C. 289, stockholders (how many does not appear) filed a bill to restrain the carrying out of a usurious contract, and their right to do so was sustained.

It is said in 7 Am. & Eng. Enc. Law (2d Ed.), 784, subd. c:

“In the absence of express restrictions, a corporation may issue its bonds or debentures at discount, under an-express or implied authority to raise money or pay debts,, provided it does not violate the usury law.”

If, however, the issuance or maintenance of the injunction is discretionary with the court, to refuse it is, in my judgment, an abuse of discretion, which this court should correct. I think the injunction should he retained until a-hearing upon the merits. If retained until then, the-rights of all the parties can be properly protected. If the injunction be now removed, the complainants in the chancery suit will lose whatever rights they have in the case..

I think the writ should issue.

Carpenter, J., concurred with Grant, J.


author: Grant, J.

text:
      In re ALEXANDER.
    1. Incompetent Persons — Petitioner’s Disqualification — Hearing on Merits — Waiver.
    On petition under 3 Comp. Laws, § 8709, of one alleging himself to be a second cousin and next of kin, but showing a sister of respondent still living, respondent, on a hearing on the merits, was adjudged by the probate court to be mentally incompetent, and a guardian was appointed. On appeal to the circuit court, respondent for the first time obj ected to the validity of the petition on the ground that petitioner was not a relative who would be entitled to share in the distribution of her estate. Held, that the objection was waived by respondent’s consent' to go to a hearing on the merits in the probate court.
    2. Same — Appeal —Sufficiency of Evidence — Question for Jury.
    The sole issue in the circuit court on appeal was the competency of respondent to manage her own affairs; and, it appearing that there was evidence justifying a verdict of mental incompetency, and that the question was submitted under proper instructions, the judgment was affirmed.
    Error to Washtenaw; Kinne, J.
    Submitted February 4, 1904.
    (Docket No. 83.)
    Decided May 17, 1904.
    Petitions by William S. Savage and Amos E. Lohr for the appointment of a guardian for Adelia Alexander, an alleged incompetent. The petitions were granted in the probate court, and respondent appealed to the circuit; and, being again defeated, she brings error.
    Affirmed.
    Two petitions were filed on the same day in this cause in the probate court for the appointment of a guardian for Adelia Alexander. One was filed under section 8709, 3 Comp. Laws, by one Savage, setting forth that he was a second cousin and next of kin. The other was filed under the provisions of section 8712, by a justice of the peace, alleging that her estate had become so spent, wasted, and lessened as to expose her to danger of want and suffering, and the county and township of which she is a resident to the charge and expense of her support. Both alleged that she was mentally incompetent to have the charge and management of her property and estate. The same day was fixed for the hearing of both petitions. The issue was the same in each, and the hearing was had upon both as one without objection. The sole issue tried before the probate court was her competency. Testimony was taken, and the probate court adjudged her incompetent and appointed a guardian. An appeal was taken to the circuit court under 1 Comp. Laws, § 669.

      The reasons for the appeal stated in the petition are that she had once been decreed competent, that she was then competent, and that she had a contract with one Bassett to handle and control her property. When the case came on for hearing in the circuit court, objection was made to a hearing upon the two petitions, and a motion made to dismiss them. The court denied the motion, and ordered the case to proceed upon the petition filed under section ■8709, 3 Comp. Laws. Testimony was taken, and a jury found her to be incompetent. The petitions alleged that the said Adelia Alexander “had, some time ago, a sister living at or near Kansas City, Mo., whose present name and whereabouts are unknown to your petitioner.”

      A. J. Sawyer & Son, for appellant.

      Frank E. Jones and M. J. Cavanaugh, for appellee Savage.
   Grant, J.

(after stating the facts). The objection to the validity of the petitions comes too late. The objections now made to the petitions in the probate court were such as could be waived, and were waived by consenting to go to a hearing upon the merits. The statute also requires, when an appeal is taken, that the reasons for such appeal be stated. Parties are not at liberty to raise technical objections on an appeal which were not raised in the probate court or in the petition for appeal. The sole issue in the circuit court under the appeal was the competency of Miss Alexander to manage her own affairs. The evidence was conflicting, and raised an issue of fact, which the jury have passed upon, the evidence was sufficient to justify the verdict, and the instructions of the court were correct.

The judgment is affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


author: Carpenter, J.

text:
    McGRAW v. UNION TRUST CO.
    1. Bills and Notes — Indorsement Before Delivery — Joint Makers.
    A third person who indorses a promissory note before delivery is liable as a joint maker.

      2. Same — Prinoipal and Surety.
    Two joint makers of a note given for the indebtedness of one of them are, as between themselves, prinoipal and surety.
    3. Same — Set-Off.
    Where two joint makers of a note sustain to each other the re-' lation of principal and surety, under 3 Comp. Laws, § 10075, subd. 6, providing that, in actions upon a note against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal defendant, and against the plaintiff, may be allowed as a set-off, the principal can set off against his liability on the note a claim for moneys'due him from the payee and holder thereof.
    Appeal from Wayne; Donovan, J.
    Submitted April 5, 1904.
    (Docket No. 7.)
    Decided May 17, 1904.
    Petition by William T. McGrayv against the' Union Trust Company, as receiver of the-City Savings Bank of Detroit, to offset a claim as a depositor against a note held by said bank. From an order denying the petition, petitioner appeals.
    Reversed.

      James Swan, for petitioner.

      Bowen, Douglas, Whiting & Murfin, for defendant.
   Carpenter, J.

When the City Savings Bank went into the hands of a receiver, petitioner had on deposit therein several thousand dollars. He was also a party to .a demand note for $1,000, dated February 21, 1899, payable'to the order of the City Savings Bank, signed “H. Watson & Co., per W. T. McGraw,” indorsed on the back “ W. T. McGraw.” Petitioner seeks by these proceedings to offset a part of his claim as depositor against said note. The circuit court denied this petition. The material circumstances are these: The name “H. Watson & Co.” was intended to describe the corporation Harry Watson & Co., whose paid-up capital stock was $1,020. One-thousand dollars of this stock was taken for petitioner in the name of his attorney, and the proceeds of this note went to the credit of said corporation in payment of this stock. - **

It is obvious that, under our decisions, petitioner and Harry Watson & Co., if that company is liable at all on the note, are joint makers thereof. Wetherwax v. Paine, 2 Mich. 555; Peninsular Sav. Bank v. Hosie, 112 Mich., at page 356 (70 N. W. 890), and cases cited; Dow Law Bank v. Godfrey, 126 Mich., at page 523 (85-N. W. 1075, 86 Am. St. Rep. 559). While it is contended by petitioner’s counsel that petitioner had no authority to-use the corporate name in making this paper, we are by-no means clear that such authority could not, under the-circumstances of this case, be inferred.

But it does not follow, because the corporation and petitioner were joint makers on this paper, that the prayer of the petition should be denied. This note was given to secure the payment of an indebtedness of petitioner. As between him and the corporation, he was principal and the corporation surety for the payment of that indebtedness. In Smith v. Shelden, 35 Mich., at page 48 (24 Am. Rep. 529), this court, speaking through Mr. Justice Cooley, said:

“Now, a surety, as we understand it, is a person who,, being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person, who ought himself to have made payment or performed before the surety was compelled to da so.”

We think the case is covered by subdivision 6 of section 10075, 3 Comp. Laws, which provides:

“ That in actions upon a note * * * against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal defendant and against the plaintiff, or any former holder of the note who transferred the same after due, * * * may be allowed as a set-off.”

It results from these views that the trial court improperly denied appellant’s petition. The prayer of that petition is granted.

Moore, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


text:
    BENTON FUEL CO. v. O. W. SHIPMAN CO.

    1. Sales — Construction op Contract — Failure to Deliver— Damages.
    Where a contract for the sale of coal required it to be shipped during three consecutive months, defendant’s requested instruction, in an action for damages for nondelivery, that it was entitled to the full period of three months for the delivery of the coal, and that plaintiff had no right to purchase coal in the meantime, and charge the excess in price to defendant, was properly refused, since the parties, by their contract, contemplated a delivery of part of the coal each month.
    2. Same — Instructions—Set-Opp.
    Defendant claimed a credit for coal delivered outside the contract, and for coal delivered under the contract; and the trial judge said to the jury that it was agreed, in reference to the former claim, that, if a plea of set-off was necessary, the pleadings might be amended accordingly, and, if the ques- ■ tion were passed upon by the jury, it would be a bar to any suit for coal delivered outside the contract; and that no plea was necessary for coal delivered under the contract. Held, sufficient to advise the jury that the two amounts were to be allowed to defendant, and it was not error to fail to direct the jury, in express terms, to deduct them from any damages they might find plaintiff had suffered.
    3. Same — Restriction op Damages.
    Plaintiff wrote defendant for a quotation on a quantity of a specified kind of coal for schoolhouse use, and subsequent correspondence resulted in a contract for the sale of coal of the kind specified. Held, that it was not contemplated by the parties that the coal was to be used exclusively for schoolhouses, and plaintiff’s damages for nondelivery should not be limited to its loss on coal used for such purpose.
    Error to Wayne; Frazer, J.
    Submitted April 5, 1904.
    (Docket No. 5.)
    Decided May 17, 1904.

      Assumpsit by the Benton Fuel Company against the O. W. Shipman Company for the breach of a contract to furnish certain coal. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, a corporation, a dealer in coal at Benton Harbor, Mich., on July 10, 1902, wrote to defendant, a coal dealer in Detroit, buying the output of mines and selling to jobbers and retail dealers, the following letter:
    “At what price can you furnish us 500 or 600 tons Jackson Ohio lump coal for schoolhouse use, to be shipped during August, September, and October ? Your early reply will oblige.”
    To this defendant replied:
    “We have yours of the 10th, asking for price on from five to six hundred tons of Jackson Hill lump coal, to be shipped during August, September, and October. We beg to quote you price f. o. b. Benton Harbor of $3.10. On this quotation we should expect to be allowed to ship ,: as much of this order as possible during the month of August and fore part of September.”
    Printed in red ink on the margin of this letter is the following :
    “ The conditions of sale on back of this sheet are absolutely the only manner in which we will make sales.”

      On the back of said Exhibit 2, printed in red ink, is the following condition, the only one material to the issue:
    “All sales and deliveries of coalare made subject to delays and losses in railroad transportation; to combinations, turnouts, or strikes among miners, or any cause beyond our control.”
    To this letter plaintiff replied:
    “Yours of the 11th received. Please enter our order for 600 tons Jackson Hill Ohio lump coal at $3.10, to be shipped during August, September, and October, as per our inquiry of July 10th. We have no objections to your shipping a large part of the orden during August and September, if you find it necessary to do so.”
    To this defendant replied:
    “We have yours of the 15th, placing your order for 600 tons of Jackson Hill lump, to be shipped during August, September, and October, which has been placed with the mine, with request that the principal part of this order be shipped during August and September, and final shipment to be completed during the month of October. In case you find coal is not reaching you fast enough, kindly call our attention to samé.”
    The above correspondence constituted the contract. Two car loads — 53 tons — were shipped under it. Defendant had sold to another dealer in Benton Harbor eight cars of coal of another kind, which that dealer refused to accept. These cars remained in the yard of the railroad company, undelivered, until the demurrage, with the freight, amounted to $628.85. Defendant called plaintiff by telephone on July 29th, and an agreement was reached by which plaintiff agreed to buy those eight car loads at $3 per ton. Plaintiff contended that this purchase had no reference to the contract here involved, while the defendant insisted that it was to apply on that contract. That issue was submitted to the jury. After plaintiff paid the freight and demurrage, there was due from plaintiff to defendant only $87.38. There was also due for the two car loads delivered $86.30. These amounts plaintiff has never paid.

      Plaintiff brought suit to recover damages for the failure of the defendant to deliver the coal. The plea was the general issue. During the progress of the trial, the court held that it was not necessary to plead set-off as to the amount due for the coal delivered under the contract, but that, if the eight cars were not delivered under the contract, notice of set-off was essential. It was then agreed that the plea should be considered as amended to admit a set-off, and end all litigation about the matter. The case was submitted to the jury, who rendered a verdict for plaintiff for $487.81.

      Corliss, Andrus, Leete & Joslyn, for appellant.
    Gr. M. Valentine and Barbour & Field, for appellee.

      Rehearing denied July 8, 1904.

   Grant, J.

(after stating the facts). Defendant requested the court to instruct the jury as follows :

“ ‘Defendant was entitled to the full period to and including October 31, 1902, for the delivery of the coal under its contract, and the plaintiff had no right to purchase coal before that date upon the open market, and charge excess of price to defendant.’
“ If the court refuses to give this request, then defendant submits:
“ ‘ The defendant having the right to deliver coal during August, September, and October, 1902, the damages, if any, awarded, must be based on pro rata delivery during each month, in equal installments, and the difference between the contract price and the market price on the last day of each month, August, September, and October, for each month’s proportionate delivery, is the measure of plaintiff’s damages.’”

We think the parties, by their contract, contemplated a delivery of a part of the coal each month, and that the first part of the instruction was properly refused. The latter part of the instruction was in accord with the theory of the defendant throughout the taking of testimony. The defendant’s attorney objected to any testimony of the price ■of coal “ unless it is limited to the last day of each month ■during the contract.”

It is alleged as error that the court did not, as requested, direct the jury to deduct from any damages they might find plaintiff had suffered the balance due for coal •delivered. The court did say to the jury:

“ It is agreed on' this question that, if a set-off is necessary, these pleadings may be amended so that a set-off may be pleaded. At any rate, if it is passed upon by you under the charge I have given you, it would be a bar to .any other suit concerning these eight cars of coal.”

It is true that the court did not, in express terms, as he might properly have done, direct the jury to allow this .set-off. But the amendment was allowed in the presence of the jury for the sole purpose of ending all litigation between them. Besides, the court said, in the presence of the jury, that no plea of set-off was necessary as to the coal delivered under the contract. Any j ury of intelligence would understand that these two amounts were to be allowed to defendant. We are also of the opinion that the jury did deduct them. There was no dispute about the ■amount of the coal, and the price of coal on the last day ■of each month was established by the evidence.

It is urged that the court erred in not instructing the jury that, if plaintiff sustained no loss on coal used for school purposes, it could not recover. It was not contemplated by the parties that this coal was to be used exclusively for schoolhouses. Plaintiff did not contract to use it solely for that purpose. It made no difference to •defendant to whom or for what use plaintiff might sell it. Defendant contracted to furnish the coal for whatever purpose plaintiff might desire to use it. The jury, under proper instructions, found that defendant had no legal excuse for not fulfilling its contract.

We find no error upon the record, and the judgment is affirmed.

The other Justices concurred.

       This part of the instruction was given, in substance.