text:
    RAMSDELL v. RAMSDELL.
    1. Deeds — Mental Competency.
    Every man, being of sound mind, and acting according to his own desire, may freely dispose of his own property, by deed or otherwise, untrammeled by the judgment or wishes of another.
    2. Same — Insanity—Lucid Interval.
    A deed by an insane person is valid if made in a lucid interval.
    3. Same — Witnesses—Opinions.
    The opinion of a witness that the grantor in a deed was men- ■ tally incompetent to execute it is of no value if based on the mere fact that his mind had previously been unbalanced.
    4. Same.
    Defendant’s father had been confined in insane asylums at various times prior to 1872, but from that time down to 1896 his conduct gave no indication of mental unsoundness. In the latter year he experienced a recurrence of his trouble, which continued until July, 1897, when his mind seemed to clear. In September following, while still 'apparently rational, he executed a deed of his home farm to defendant, in consideration that the latter should give up certain plans, and live thereon and provide for him. He was then 85 years of age, and had conveyed portions of his property to his other children. At the time of executing the deed he described the premises from memory, and stated to two doctors and a lawyer, who were present for the purpose of ascertaining his mental condition, that he was aware of what he was doing, and realized that defendant might turn him out of doors if he should so desire. There was nothing directly tending to show that his mind was unsettled at this particular time: but sub-. sequently, and down to the time of his death, two years later, there were frequent recurrences of mental disturbance, with apparently rational intervals. Held, that the deed would not be set aside on the ground of mental incompetency.
    Appeal from Ingham; Wiest, J.
    Submitted May 10, 1901.
    Decided July 19, 1901.
    Bill by Newton Ramsdell against John Ramsdell and others to set aside a deed. From a decree for complainant, defendant John Ramsdell appeals.
    Reversed.

      Lawton T. Hemans and L. B. McArthur, for complainant.

      Cahill & Wood, for appellant.
   Long, J.

The bill in this cause was filed to set aside a deed made by Ransler Ramsdell on the 22d day of September, 1897, to his son John Ramsdell, the defendant, upon the grounds of undue influence and incompetency by reason of his insanity. The defendant answered, denying that the deed was executed by reason of undue influence, and denying that the grantor, at the time of executing it, was of unsound mind. Upon these two questions issue was joined, and the cause heard upon proofs taken in open court. A decree was made setting aside the deed on the ground that, at the time of executing it, the grantor was not of sound mind. From this decree defendant appeals.

Ransler Ramsdell died August 10, 1899, aged 87 years. He had lived on the farm where he died about 50 years. Up to the age of 52 years he had been a hard-working man, had cleared up at least two farms, and had taken an active interest in public affairs in his neighborhood. In 1864 it was noticed that he was mentally unbalanced, and he was taken to the asylum at Kalamazoo in October of that year. In December his wife brought him home, but he was not recovered, and in May, 1865, was taken to an asylum m Canandaigua, N. Y. He returned from that place alone in November of that year. Though he was not well, he kept improving, and no serious recurrence of his mental trouble was discovered until 1871. In May of that year he was adjudged insane'by the probate court, and sent to the asylum at Kalamazoo, where he remained until the following October, when his wife brought him home, although not fully recovered. He continued to improve in health, and in the summer of 1872 seemed to have fully regained his mental health.

From the time of his first attack, in 1864, his manner of life, so far as engaging in public affairs, changed. He ceased to go to church or to town, never voted after that, and never personally managed his farm, but leased it to his boys. In 1872 his family consisted of John, the eldest son, Van Ransler, and Newton, and his daughter, Ella Louise, who died in 1878, leaving a daughter. In 1873, being a short time after he returned from the asylum the last time, deceased conveyed to his two sons Van Ransler and Newton 80 acres of land jointly, which they subsequently divided between them. For many years complainant leased the home farm of his father on shares, giving his father one-third and taking two-thirds. From 1872 down to the fall of 1896 there was no recurrence of any active mental trouble, and the old gentleman lived' quietly at home with his wife, transacting very little business. Occasionally he bought or sold some personal property, and attended to minor affairs of his business. He also visited and received visits from the neighbors. He had always been a reader, and continued to be up to the time of his death. He had been a subscriber to the Detroit Free Press for over 50 years, which he read habitually.

During the fail of 1896, and the winter and spring down to June, 1897, there was a recurrence of his mental trouble. His wife was very ill during the winter, and died on the 7th of July, 1897. During her illness his mind seemed to be seriously affected, and continued so until about the last of June, when it cleared up so that he became to all appearances perfectly quiet and rational, and so continued until after the deed was executed, on September 22, 1897, when he had another period of mental disturbance, lasting about three months, and from then on until his death these conditions of mental disorder recurred about once in three months, and lasted about three months. During the intervals he appeared to be rational, although feeble in health.

It appears that, some time prior to 1864, the deceased had deeded to defendant 78 acres of land near the home farm, but he continued to live at home until he was 29 years of age, working for his father on the home farm most of the time. He cleared up the land his father gave him, and raised crops upon it, giving his. father about $1,200 as the proceeds of wheat raised on that land. Another piece of his land was afterwards sold for $1,200, and that money also went to his father towards the building of the house. Soon after the father returned from the asylum the last time, and in 1872, defendant moved to Kent county, and was gone three years. In 1875 he returned at the request of his father and mother, and lived with them for five years. During that time he and his brothers, Newton and Van Ransler, worked the farm together. At the end of that time he went to Grand Rapids, and remained there three years, or until 1883, when his mother again wrote him to come home, and he returned. He took a lease of the place for five years, but stayed only one year and a half, when he returned to Grand Rapids, and stayed there until called back in May, 1897, by a letter from complainant’s wife, telling him of his mother’s serious illness. He came, expecting to return soon, but his mother having died on July 7th, and his father being in feeble health, he did not. He endeavored to persuade his father to go back with him to Grand Rapids, but this his father was not willing to do, but proposed to deed him his farm of 80 acres, and have defendant remain and take care of him. This defendant at first declined to consent to, but finally did consent, upon condition that Dr. Brown, who had been the family physician for 30 years, and Dr. Rowe and Mr. Gildart, an attorney at Stockbridge, should be called in to confer with him, and, if they made up their minds that he was competent to make the deed, he would take it. On September 22d, the three named gentlemen were called to his house for the purpose of talking with the father, and, if they deemed it advisable after such conference, a deed was to be made. At this conference defendant was not present until after the deed was executed. They testified on the trial that at that time they saw nothing to indicate that Mr. Ramsdell was not perfectly rational. He seemed to understand just what he wanted to do, and why he wanted to do it. He was able to describe the land (which consisted of two 40’s, separately described) from memory. He was asked if he perfectly comprehended what the effect of his action might be, and replied in the affirmative. The deed was executed and delivered to defendant, who shortly afterwards sent to Grand Rapids for his family, and they continued to live with, and care for, the old gentleman until his death, in August, 1899.

It was not contended on the hearing in the court below that there was any proof of undue influence, but reliance was had upon the proofs tending to show that the grantor was of unsound mind.

We think the decree by the court below cannot stand. There was no direct proof offered by complainant showing an unsettled mental condition of Mr. Ramsdell on the day the deed was executed, nor for some time before that. Complainant rests his case upon the fact that Mr. Rams-dell had been insane in previous years; also some months preceding the making of the deed, as well as after its execution. The witnesses produced on the part of the complainant seem to have based their opinion as to his competency upon facts which are undisputed in the record, viz., that he had been insane. When pressed upon cross-examination to state any fact or facts as a basis for their opinions, they stated those that had occurred during the period of his admitted insanity. No facts or circumstances were stated by them that occurred between 1872 and 1896 that indicate an unsound mind, unless it be the fact that during those years he remained quietly at home, and refrained from taking part in public affairs. The opinion of a witness as to incompetency is of no weight ■unless he states facts which legitimately tend to show it. O'Connor v. Madison, 98 Mich. 183, 187 (57 N. W. 105).

Counsel for complainant claim that in its equities the case is parallel with the case of Hemphill v. Holford, 88 Mich. 293 (50 N. W. 300). We think the case does not fall within the rule there laid down. It there appeared that Mr. Hemphill transferred his large property to one child, and thus disinherited all his other children and the children of a deceased daughter. In the present case it appeared that Mr. Ramsdell had made transfers of property to his other children prior to that time. It would seem that the father relied upon this son, and wanted to have his care and protection, and desired to deed the farm to him, that the son might be recompensed for his giving up of other plans and devoting himself to this purpose.

It is a general rule that every man, being of sound mind, and acting according to his own desire, may freely dispose of his own property, by deed or otherwise, untrammeled by the judgment or wishes of another. In Peninsular Trust Co. v. Barker, 116 Mich. 333 (74 N. W. 508), it was held that one has sufficient capacity to make a will where he understands the business in which he is engaged, the extent and value of his property, knows who are his relatives, and who would be his heirs at law if no will were made; that the fact that a testator is subject to certain delusions does not invalidate his will if they do not dictate its provisions. In the present case, Mr. Ramsdell was able to describe the land (which consisted of two 40’s, separately described) from memory. The two doctors, who were there for the purpose of ascertaining his mental condition, both testified on the trial that he was competent to make the deed, and this is supplemented by Mr. Gildart, the attorney, who reached the same conclusion from the interview he had with Mr. Ramsdell there on that day. He testified that after the parties had completed their work, and gone out of the house, he said to the two doctors: “Let usgo back; I want to ask him one more question.” They returned to the house, and Mr. Gildart said: “Mr. Ramsdell, do you know what you have been doing ?” “Yes, sir,” he replied, “ I have been making a deed of this farm to John.” “ Do you know the consequence of that ? Do you know that John might turn you out of the house tomorrow, and you would be without a home?” Mr. Ramsdell answered: “Yes, sir, I know that; but Christiana and I raised John; we can trust him;” and one of the witnesses says he then stated, “ I will have a home as long as John has a home.”

As was said in the case of Davis v. Phillips, 85 Mich. 198 (48 N. W. 513):

“While weakness of mind is an important element for the consideration of the court in determining the nature of such transactions, yet weakness of mind alone is not sufficient to warrant the setting aside of a contract otherwise valid and free from any taint of fraud. There are many degrees of competency, but business transactions are not to be measured by degrees. The sole question always is*, Had the party sufficient intelligence to understand the transaction ? ”

We think it apparent that Mr. Ramsdell, at the time the deed was executed, was restored in his mental faculties so far as to be able to comprehend what he was doing, what property he was disposing of, the condition of his family, and his own situation, and was able to act with memory and judgment. It is laid down as a rule of law that a deed is good if made in a.lucid interval. 25 Am. & Eng. Enc. Law, 978. See, also, Jones v. Hughes, 15 Abb. N. C. 141, affirmed by the court of appeals in 116 N. Y. 67 (22 N. E. 446, 15 Am. St. Rep. 386); Lewis v. Arbuckle, 85 Iowa, 335 (52 N. W. 237).

The decree below must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BROWN v. BARLOW.
    Cemeteries — Removal or Dead Bodies — Action for Damages— Evidence.
    Plaintiff buried his wife on a cemetery lot owned by another under the latter’s verbal permission. The grave remained unmarked. The owner of the lot afterwards died, and was huried there. Subsequently the cemetery authorities, desiring the lot for certain improvements, arranged with a' son of the deceased owner therefor, and under his direction removed the bodies buried thereon. Held, in an action for damages, that, there being no evidence of knowledge on the part of the authorities of the burial of plaintiff’s wife on the lot, verdict was properly directed for defendants.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.
    Case by Russell E. Brown against Hernán G. Barlow, Frank E. Pulte, and Frank W. Ball, cemetery commissioners of the city of Grand Rapids, for the alleged wrongful removal of the remains of plaintiff’s wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Wolcott & Pbrkins, for appellant.

      Lant K. Salsbury, for appellees.
   Moore, J.

The defendants are the commissioners of the Valley City and Oak Hill cemetery in Grand Rapids. Jared L. Post during his lifetime was the owner of a lot in the cemetery. When he died, about four years ago, he was buried there. The plaintiff is a brother-in-law of Mr. Post. His wife died in 1892. By the,verbal permission of Mr. Post, she was buried upon his lot. Her grave was never marked with a headstone. In 1899 the cemetery authorities needed the lot owned by Mr. Post, because they wanted to enlarge a building that was upon the grounds* and directed their superintendent to get the lot if he could. The superintendent saw Mr. Creyton J. Post, the son of Jared L. Post, deceased, and arranged with him for the lot, and under his direction removed the bodies that were buried thereon. The graves of Mr. Post, his wife and children, were all marked with headstones. In August, Mr. Brown learned what had been done, and sued defendants for damages. The court below, among other things, charged the jury as follows:

“As far as the evidence shows in this case, while the-body was interred upon the lot of Mr. Post, at the same time there was nothing which distinguished it as belonging to any one, or that any one outside of the owner of the lot had any interest in it. It is not in evidence here, and the evidence does not show, that the commissioners, had any knowledge that the body of Mrs. Brown was interred 'upon that lot. When they wished to make-improvements, they went to the owner 'of the lot, and got his permission to move the bodies. There is nothing in this case which shows that they were informed, or the sexton was informed, or any employe of the city was informed, that any other body except those belonging to the Post family was interred in that lot. I think that some duty is incumbent upon the plaintiff in this case, as well as upon the defendants. I think there should be something done on his part, whereby the city authorities could take notice as to who was buried there; that he had rights, in the lot that they could take notice of. There was. nothing, as far as the lot itself was concerned, that would give them information that he, or anybody else, outside of the,Post family, had any interest in that lot, or any of the remains that were interred therein. The plaintiff in this case did not even mark it with a headstone, so that there was nothing to show that he had any interest there, that his wife or any member of his family was buried there.”

—And directed a verdict in favor of defendants. The case is brought here by writ of error.

The plaintiff claims that, where a body is removed from-its burial place without notice to the relatives, the latter have a cause of action against the person causing the removal; citing a number of cases. We are of the opinion that the record does not disclose such a state of facts as to call for the discussion of any legal question. So far as it discloses anything, it shows the title of the lot was in Mr. Post; that all the graves that were marked were the graves of members* of his family. It does not show that either the commissioners or the superintendent had any knowledge, prior to the removal of the body, of the burial upon this lot of any persons except Mr. Post and the members of his family. It was not the.purpose of the trustees to arbitrarily take possession of this lot, but only to do so by the consent of those having an interest therein. The consent of the. person who had the apparent right to give consent was obtained, and the removals were made under his direction. The court below was Justified in directing a verdict.

Judgment is affirmed.

The other Justices concurred.

       Viz.: Improvement Co. v. Jenkins, 111 Ala. 135 (18 So. 565, 56 Am. St. Rep. 26); Partridge v. Church, 39 Md. 631; Meagher v. Driscoll, 99 Mass. 281 (96 Am. Dec. 759); Thirkfield v. Cemetery Ass’n, 12 Utah, 76 (41 Pac. 564); Jacobus v. Congregation of Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. Rep. 141).


author: Long, J.

text:
    LAWRENCE v. HATHAWAY.
    1. Wills — Construction—Life Estate — Rents and Profits— Incumbrances.
    Testator devised to his wife a life estate in land on which she held a mortgage. The fee of the land he gave in equal shares to the wife and two others. The will provided that the mortgage should be paid from the “avails” of the land, and that no division should be made until the death of the wife. It also directed that another tract be sold' to pay a certain mortgage, and disposed of the surplus “avails” thereof; and then bequeathed the residue of the estate, after the payment of debts “not secured by mortgage.” Held, that the widow was not bound to apply the rents and profits to the payment of the mortgage; it being apparent that testator used the word “avails” in the sense of “proceeds,” and with a view to limiting the fund for the payment of the mortgage to the land itself.
    *2. Same — Accounting by Executor — Res Judicata.
    An order of the probate court allowing the final account of an executor is res judicata as to the propriety of his action under the will in relation to the rents and profits of lands devised.
    Per Long and Grant, JJ.; Montgomery, O. J., and Moore, J., concurring in the result.
    3. Equity Jurisdiction — Venue.
    A bill to set aside a foreclosure sale cannot be maintained in a county where no part of the land is situated. 1 Gomp. Laws, §434
    Appeal from Branch; Yaple, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.
    Bill by Annie Woolsey Lawrence against Electa A. Hathaway to set aside a foreclosure sale and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Dwight Goss, for complainant.

      M. A. Merrifield, for defendant.
   Long, J.

The complainant was the granddaughter of Ei-astus Hathaway, who died February 18, 1894, in Branch county. His estate consisted of real and personal property inventoried at about $8,000. The defendant is the widow of deceased. Mr. Hathaway made his last will August 6, 1892. Mrs. Hathaway was named executrix. The will was admitted to probate, and on April 4, 1895, she filed her final account as executrix, which was allowed on the same day by the probate court of Branch county.

The fourth paragraph of the will provides:

“I give, devise, and bequeath to my wife, Electa A. Hathaway, the use of the west forty-five acres of land in Burlington township, Calhoun county, Michigan, deeded tome December 39,1881, by Frederick Hoeltzel and wife, during her natural life. I also give to her absolutely one-third of the above-mentioned forty-five acres. The other two-thirds I direct that it shall be divided as follows: One part, or fifteen acres, to my granddaughter, Annie Woolsey [the complainant], and one part, or fifteen acres, to the children of my son, Wallace E. Hathaway. The above-mentioned forty-five acres are subject to a mortgage of $600, which must be paid from the avails of said lands, and no division of said forty-five acres shall be made until the death of my said wife.”

The above mortgage referred to in the will was given by said deceased to the defendant on the same day that the will was made and executed, but was not recorded until after the death of Mr. Hathaway. In October, 1897, more than two years after the filing of her final account as executrix, the defendant foreclosed the mortgage by advertisement, and bid in the 45 acres of land at the sheriff’s sale on January 35, 1898, for $908, being the amount claimed under the mortgage. The sheriff’s deed was made to her and recorded on the same day.

On June 30, 1898, the complainant filed the bill in this cause, charging that defendant obtained the mortgage by fraud and undue influence and without consideration; that the said 45 acres are in a high state of cultivation,' and very productive, and have yielded large rents and profits, which have been sequestered by defendant, and no account made thereof; and that the avails of said lands have not been used to pay said mortgage, as required by said will. On information and belief, it is charged that, since the death of Mr. Hathaway, the avails of the land have been sufficient to pay the mortgage and interest due thereon. The prayer of the bill is that the mortgage be decreed to have been obtained by fraud and undue influence, and be set aside for that reason; that defendant render a true account of the avails of the said 45 acres of land since the death of Mr. Hathaway, and that the same be applied to the payment and discharge of said mortgage; that the sale of the premises under the foreclosure, and the sheriff’s deed, be set aside and canceled.

The defendant by her answer denies that the mortgage was obtained by fraud or undue influence, but, on the contrary, alleges that the mortgage was given to secure the sum of $600, loaned by her to her husband, and that the same was money belonging to her in her own right. She denies also that the 45 acres were productive, and alleges that at the death of Mr. Hathaway only about 12 acres of it were under cultivation, the rest being an old slashing, from which all the timber of any value had been taken, and that one-half of said 45 acres yet remains in that condition; that she expended her own money in clearing up what has been cleared; that she has been unable to realize from the avails of the land more than sufficient to pay the taxes on it; that the improved half of the 45 acres rents for only $10 a year; that, being unable to realize anything from the avails of the land to pay the mortgage, and the principal and interest on the mortgage being equivalent to the value of the land, she commenced the foreclosure proceedings in order to obtain the amount due her thereunder.

The cause was heard in the court below on pleadings and proofs, and complainant’s bill dismissed.

We think the court below was not in error in dismissing this bill. The defendant, by the terms of the will, was entitled to the use and benefit of the whole 45 acres of land during her natural life. We think it cannot be contended under such circumstances that it was the intent of the testator that the mortgage was to be paid from the rents and profits of the land. He had already given the rents and profits to the widow. He did not intend to apply them to any other purpose. The language is that the mortgage must be paid from the “avails of said lands.” The word “avails’’was evidently used by the testator to signify that the mortgage was not to be paid from the assets of the estate generally, but from the land itself. The further provision of the same paragraph, emphasizes that intention, as it says: “No division of

said forty-five acres shall be made until the death of my said wife.” The condition of the title to the 45 acres at the death of the testator was this: The widow had a life estate. The complainant and the children of the son, Wallace, had the remainder after the death of the widow. The land was subject to this $600 mortgage, which the testator provided by the will should be paid out of the land, and not out of the assets of the estate generally. We think the use made by the testator of the word “ avails ” in other portions of the will makes manifest the construction of that word as we now construe it. In the third clause of the will he provides:

“I direct that the east half of what is known as the ‘ Collins Farm ’ be sold to pay a certain mortgage given by me to Caroline E. Hurd, and the avails, over and above the amount necessary to liquidate said mortgage, I give, devise, and bequeath to the children of my said son, Wallace,” etc.

Then follows the clause in reference to the 45-acre tract. To forbid the executrix paying the mortgage out of the general assets, the will further provides that, after paying his just debts “ that are not secured by mortgage,” the residue shall go to the widow.

But, aside from these considerations, we think the court very properly dismissed complainant’s bill. The executrix filed her final account three years prior to the filing of this bill, and presumably accounted for all assets in her hands belonging to the estate. Her account was allowed and settled in the probate court. That court had jurisdiction of the matter, and no appeal was ever taken from the order there made. The matters thus determined are res adjudicada '. Fingleton v. Kent Circuit Judge, 116 Mich. 211 (74 N. W. 473); Byrne v. Hume, 84 Mich. 185 (47 N. W. 679).

For another reason the present bill will not lie. The land is situated in Calhoun county. The bill was filed in Branch county. The statute (1 Comp. Laws, § 434) provides that “ every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local.” It has frequently been held that, under this statute, a bill in equity affecting interests in real estate must be filed in the county where the lands, or some part of them, are situated. Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351), and cases there cited.

The decree below must be affirmed, with costs.

Geant, J., concurred with Long, J. Montgomeey, C. J., and Mooee, J., concurred in the result. Hookee, J., concurred in the result upon the last point.


author: Hooker, J.

text:
    McLEOD v. HUNT.
    1. Written Contracts — Parol Evidence — Purchase Prioe of Lands.
    A written contract, containing an unqualified promise to pay a certain sum, cannot be varied by proving a parol promise to pay a less sum. So held where the vendee in a land contract sought to show that the purchase price and the down payment specified therein were each $200 in excess of the amounts actually agreed on, the larger sums having been inserted at the request of the vendor, with a view to inflating the value of his adjacent property.
    2. Land Contracts — Breach—Damages.
    A recovery cannot be had for the breach of a building restriction in a land contract in the absence of proof of damage resulting therefrom.
    3. Appeal — Payments—Computation.
    A contention that the court erred in permitting the jury to find that a note sued on had been paid will not be considered, where a determination of the question involves an extended computation, which appellant’s counsel has not seen fit to incorporate in his brief.

      4. Same — Instructions—Damages.
    An instruction authorizing the jury to award damages on a certain branch of the case “if any have been shown” is not reversible error, though no such damages were proved, where the court was not requested to withdraw the question from the jury, and it does not appear that any such damages were allowed.
    Error to Wayne; Waite, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.

      Assumpsit by Duncan McLeod against Patrick Hunt and Mary Hunt to recover the amounts due on a land contract and a promissory note. From a judgment for defendants, plaintiff brings error.
    Reversed.

      S. E. Engle, for appellant.

      James D. May, for appellees.
   Hooker, J.

Dr. McLeod, the plaintiff, owned a large number of city lots in Detroit. He sold two of them to the defendants upon a written contract. It provided:

‘ ‘And the said parties of the second part, in consideration of the premises, hereby agree to pay to the said parties of the first part, their executors, administrators, or assigns, the sum of one thousand one hundred dollars ($1,100), as follows, viz.: Seven hundred and seventy-five dollars on the sealing and delivery of this agreement; twenty-five dollars on the first day of December, 1888; twenty-five dollars on the first day of March, June, September, and December, 1889; twenty-five dollars on the first day of March, June, September, and December, 1890; twenty-five dollars on the first day of March, June, September, and December, 1891, — with interest at the rate of seven per cent, per annum, to be paid semi-annually on the whole sum from time to time remaining unpaid. And also that they will well and faithfully, in due season, pay or cause to be paid all taxes and assessments, ordinary and extraordinary, for any purpose whatever, upon the said premises or appurtenances, accruing from and after this date, and that they will pay the interest semi-annually at the rate of ten per cent, per annum on all sums of either principal or interest hereon, after they become due until fully paid.”

This action was brought by Dr. McLeod to recover (1) a balance of the purchase price; (2) damages for a failure to comply with the contract in respect to building upon the lots; (3) the amount due upon a promissory note given by defendants. The defendants obtained a verdict of no cause for action, and, judgment being entered, plaintiff took a writ of error.

Upon the part of the defendants it was claimed that the price agreed upon for the lots was $900, the first payment to be $575; that the contract was so drawn, when, at plaintiff’s request, for the purpose of inflating the value of his other property, the defendants consented to an alteration whereby the consideration was made to read $1,100, and the first payment $775; that the sum of $575 was actually paid down, which was accepted by plaintiff as full payment for the amount to be paid down. Evidence tending to show this was admitted against objection, and counsel for the plaintiff insists that this was error, for the reason that it amounted to a parol contradiction of the terms of a written instrument.

An indorsement of an installment of interest, stating the exact amount, as “in full to date,”in the handwriting of the plaintiff, was made. It is claimed by the plaintiff that the court erred in instructing the jury that the same was conclusive; but we may pass this question with the suggestion that the court qualified the above statement. What he had said appears to be a request, and related to the rate of interest, and he qualified it by saying:

“That is true, in the absence of any fraud or mistake, as a matter of fact, which might have been pleaded or shown. You will remember the testimony upon that point.”

The Contract was one which contained defendants’ unqualified promise to make a payment of $775. It was not competent to vary the contract by proving another and a different contract by parol.

The court charged the jury that:

“It is claimed by the plaintiff that there was $200 of the first payment provided for in the contract which remained unpaid on the delivery of the contract. The purchase price mentioned in the contract is $1,100, of which $775 was to be paid upon the delivery of the contract. Now, gentlemen, it is for you to determine whether or not that was paid.
“Mr. Engle: Will your honor excuse me a moment?
The Court: Go on.
‘ ‘Mr. Engle: I will call your attention to the fact that there is no question about that, — whether it was paid or not, — as Mr. Hunt, the defendant, testifies positively that only $575 was paid.
“Mr. May: We claim, may it please the court, that there was $575 paid, but at that time Dr. McLeod gave him credit for $200, and Dr. McLeod doesn’t dispute it.
“The Court: I understand the claim, gentlemen. Now, gentlemen, as between these parties there is no question but that the plaintiff had a right to excuse the defendant from the payment of any portion of that claim that he saw fit. If, as a matter of fact, Dr. McLeod induced the defendant to put in here $775, when under the agreement there should not have been but $575 inserted, and, in an agreement contemporaneous with the delivery of this instrument or subsequent thereto, agreed with the defendants here that $200 should not be paid, but should be credited on this account, then he is bound to do it, because he could not induce the defendants here by promises to put in a fictitious amount for his benefit, and then take advantage of that, and require the full payment, simply because it was written in the contract. Then the question is, Was that $200 discharged by an agreement between Dr. McLeod and the defendants in this case ? If it was, he cannot recover for it, and you are bound' then to estimate the amount due from the figures of $325, which was due at that time. Upon that point, gentlemen, you are to determine from all the testimony in the case (the testimony of Dr. McLeod and the testimony of Mr. Hunt) the manner in which they have treated this account since, when it has been under discussion, — what has been said and done in regard to it, — because if such an agreement existed at that time, procured at the instance of the plaintiff in this case, for his benefit, it would be against morals and equity to allow him to recover at this time.
“ ‘In this case the contract is in writing, as required to be by law, and the terms of the contract cannot be changed by parol testimony. The purchase price named in the contract is $1,100. Both parties agree that the price of $1,100 was intended to be so fixed and stated in the contract. There is no pretense by either party that the price to be written in the contract was anything else than $1,100.’
“ I give you that, gentlemen, in connection with what I have already said as to the manner and method and form of the payment or discharge of any portion of that.”

We cannot say that this was a proper instruction. The parties reduced the contract to writing, and agreed upon $1,100 as the price to be written in the contract. It cannot now be shown that, while they agreed to and signed the writing, it did not represent their agreement.

As to the claim of damages for the breach of the building restrictions, the court told the jury that, no damages having been proven, there could be no recovery on that branch of the case. We do not discover that plaintiff’s counsel has explained how he was damaged. He passes the matter in his brief with this comment:

“Breach of the Covenant to Build a House. The record shows plaintiff had about 50 vacant lots there, and the stipulation to build was very valuable to him. He shows the fact, — the number of his vacant lots; the breach of this covenant is admitted, and the value of the lots shown, — all shown that could be shown,- — -and yet the court refused to submit the question of any damages for the breach.”

We think the court was justified in taking this question from the jury.

The plaintiff claims, as to the note, that it was given on an occasion when the defendants wanted back $100 of the money they had paid on the contract, and he paid it to them, taking their note for $100. It is claimed that the court erred in allowing the jury to find that it had been paid. Whether the note had been paid or not depended upon the truth of defendant’s claim that he had paid the full amount due upon the contract, and the $100 paid back or borrowed. Counsel has not chosen to discuss the payments made, and we must therefore conclude that the court did not err in leaving the question to the jury. We have not felt called upon to go into a computation covering several years, and involving partial payments, especially as Dr. McLeod’s letter of November 20, 1899, claimed but about $200, including what was due upon the note.

The plea is accompanied by a claim of set-off and recoupment, — the latter based upon plaintiff’s omission to deed the property according to the contract. The plaintiff had shown that the defendants filed a bill to compel the giving of a deed after this action was commenced, and there is no evidence that they suffered any damage. The court directed the jury to give defendants damages if any had been shown, and it might include trouble and annoyance. Our attention is not called to a request to take this question from the jury, and', if the jury followed the instructions given, as we must assume that they did, no damages were given hy way of recoupment.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    STONER v. RIGGS.
    1. Actions — Incompetents—Guardians Ad Litem.
    The appointment of a guardian ad litem for an incompetent defendant in an action at law is unnecessary where an appearance has been entered by his general guardian as guardian and attorney.
    2. Accounts — Mutuality—Statute oe Limitations.
    Where plaintiff had charge of the loaning and collecting of defendant’s money for a series of years, and, on submitting an account of the business, defendant promised to pay him for his services, the claim therefor became a part of the mutual account, unaffected by the general statute of limitations, though it was not entered on the boobs, and the value of the services was not agreed upon.
    3. Trial — Evidence—Harmless Error.
    In an action for services in conducting defendant’s business, plaintiff was cross-examined at length as to certain checks drawn by him, but the checks themselves, not being included in the bill of particulars of set-off, were excluded, after defendant’s refusal to amend. Reid, not prejudicial.
    4. Same — Instructions—Preponderance of Evidence..
    An instruction defining the rule as to preponderance of evidence as meaning “simply that the evidence offered in favor of a proposition must be of a little better quality than that opposed to it,” if inaccurate, was not prejudicial to defendant, on whose behalf no direct testimony had been introduced.
    Error to Genesee; Wisner, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.

      Assumpsit by Cicero J. K. Stoner against Fred F. Riggs for services performed and moneys expended. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clarence Tinker (Durand & Carton, Osborn & Mills, and J. L. Topping, of counsel), for appellant.

      W. JEJ. Scott, for appellee.
   Hooker, J.

The plaintiff brought this action against his wife’s father, an incompetent, under guardianship, serving process upon the defendant. . His guardian entered his appearance as attorney and guardian, and conducted the defense, and appears in this appeal. The items for which plaintiff claims a right to recover grow out of dealings which plaintiff alleges to be mutual. They are given in the bill of particulars, as follows:

This action is brought to recover the balance of the following account:

For services rendered from October 27, 1877, to July 30,1894, in oaring for the property, both real and personal, loaning and collecting, étc., for F. F. Riggs, at $60 per year........-.......$1,000 00
To cash, one-half the family expenses from October 17, 1894, to October 6, 1895_________________________________ 201 00
To cash, the family expenses from October 6, 1895, to January 4, 1896, 13 weeks, less $8.70..._________________ 93 19
To cash, the family expenses from January 4, 1896, to. June 20,1897, 24 weeks. 179 21
--$1,473 40
To care and nursing by self and wife, from March 11, 1895, to June 20, 1896, 66 weeks, 16 weeks, at $10___________ $160 00
Living in Riggs’house, 50 weeks, at $7.. 350 00 •
- 510 00

Then followed fourteen items, giving dates, in 1896 and 1897, amounting to $41.60, making a total of $2,025. A claim for interest, amounting to $1,358.15, was included in the bill.

A bill of particulars of set-off included alleged payments of money to plaintiff in defendant’s behalf at different dates in 1878, 1880, and from 1882 to October 17, 1894. A notice of the statute of limitations was given and is relied on.

In support of his claim, the plaintiff testified that he had charge of defendant’s business affairs, by arrangement and employment, from October 27, 1877, to July 30, 1894, during which time he loaned and received money for him, on many occasions, while he was absent in Colorado, and that during the same period he kept an account of the business, which he submitted to the defendant, showing a balance of the trust funds of $430 in his hands, and that defendant then promised to pay him for his ser- ■ vices when he should sell his mine in Colorado. The amount was not mentioned, or payment of the $430 demanded, and the jury probably found that it was treated as an item to be applied on the service. He also testified that about October 17, 1894, he moved into the house with the defendant, under an arrangement that they were to share living expenses equally, and that they lived thus for several years, and that the defendant owes upon yearly balances for moneys expended in that transaction, also for care and nursing by plaintiff and wife in 1895, at a time when defendant was suffering from a broken leg, and for medicines and various other things.

The defendant appealed from a verdict in favor of plaintiff, and has since died.

The briefs of defendant’s counsel state that:

“Concerning the latter arrangement there was little controversy as between the parties. The contention made at the trial concerned the claim for services said to have been rendered between October, 1877, and July, 1894, and the testimony admitted and rejected with reference thereto, and the instructions of the court to the jury.”
“I have carefully examined the record, and there are only two questions in it: First, whether the account, as-made by Mr. Stoner, is a continuing account, or whether the same is governed by the statute of limitations; second, whether it is necessary to have a guardian ad litem appointed in a case like this.”

We feel justified, therefore, in treating the claim for services as the only one in dispute.

At the common law, a distinction existed between actions at law and in equity.

“At law, a lunatic defends in the same manner as ordinary persons. Process is served upon him personally; then, if an infant, he appears by guardian, and, if of full age, by attorney. * . * * In suits in equity the practice is different. In .those he defends by guardian ad litem, and his committee is appointed such guardian as of course, unless there is no committee, or the committee is in interest adverse to him in the suit.” Van Horn v. Hann, 39 N. J. Law, 213.

See Bearinger v. Pelton, 78 Mich. 114 (43 N. W. 1042), where a guardian ad litem was held necessary in a foreclosure case in chancery, where the defendant was an infant. See, also, 3 Comp. Laws, § 10461 et seq., which seems to require the appointment of a guardian ad litem, in all suits against infants. There seems to be no such statute applicable to the insane or non compos mentis. It is said that in most States there need be no guardian ad litem, if the infant have a probate or other authorized guardian competent to act; and the case of Bearinger v. Pelton is treated as involving a statutory exception. Woerner, Guardianship, p. 66, § 21. The same author says (section 145) that “ there is little, if any, difference between guardians ad litem for minors and those for insane litigants. The latter defend by general guardian or committee, if one has been appointed,” etc. See, also, 9 Enc. Pl. & Prac. p. 937; 10 Enc. Pl. & Prac. p. 1229; King v. Robinson, 33 Me. 114 (54 Am. Dec. 614). In this case the guardian, who was an attorney, appeared in both capacities, and we may assume that it was with the •approval of the court, if such approval was necessary. We have considered this question, although no exception was taken upon the trial.

Upon the question whether the item for services was mutual, we find no authorities cited in support of the proposition that such item must be considered by itself, .and not in connection with the moneys received and paid •out by the plaintiff. We see no reason for so holding. The fact that it was not made a book item, while the others were, is not controlling, and the alleged agreement to pay for the services, made in connection with defendant’s examination of plaintiff’s account of the fund in his hands, would seem to make it such within the rule laid •down in the case of Kimball v. Kimball, 16 Mich. 218. See, also, Campbell v. White, 22 Mich. 186, 187; White v. Campbell, 25 Mich. 471; In re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947); Lester v. Thompson, 91 Mich.245 (51 N. W. 893). The court did not err in refusing to take from the jury this question, and the question of the statute of limitations.

Error is assigned upon the exclusion of a large number of checks relating to the business of defendant during the period that the plaintiff had it in charge. It was admitted that the items covered by them were not included in the= bill of particulars, and defendant declined to amend his-bill of particulars when told that by so doing they would be made admissible. They were present, and plaintiff' was examined at length upon many, if not all, of them. We are unable to see where the defendant suffered injury-through their exclusion.

We may say the same in relation to the court’s charge-upon the preponderance of evidence. It was as follows:

“ I have stated to you in what a preponderance consists. It is simply that the evidence offered in favor of a proposition must be of a little better quality than that opposed to it. You are to canvass all the evidence in the case, and, if you act in favor of the defendant [plaintiff], it must be-because you find it preponderates in his favor; but you have no right to cast aside testimony upon any particular point, unless you find it is disputed in some way, either by direct testimony or circumstantial evidence. In this case-there is no direct testimony offered in favor of the defendant, but the defense is claimed to exist by reason of certain circumstances that have been shown in the case, and that matter is entirely for your consideration; the court, has nothing whatever to do with it.”

The other points discussed in the briefs relate to portions-of the charge in which we find no error.

The point that the item for nursing should not have-been submitted to the jury does not appear to be properly raised, and the same may be said of the denial of a motion: : for new trial.

The judgment is affirmed.

The other Justices concurred.


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    McCORMICK HARVESTING-MACHINE CO. v. WALDO.
    Assumpsit — Purchase from Agent — Contract Relations.
    Defendant took a harvesting machine from plaintiff’s local selling agent in payment of a note given by the agent, defendant having no knowledge of such agency, and thereafter, on plaintiff’s demand, refused to pay for or deliver the machine, though still having it in his possession. Held, that assumpsit would not lie to recover the value of the machine, as defendant did not acquire possession through contract with the plaintiff.
    Case made from Ingham; Wiest, J.
    Submitted June 7, 1901.
    Decided July 19, 1901.

      Assumpsit by the McCormick Harvesting-Machine Company against Scott Waldo to recover the value of chattels alleged to have been converted by defendant. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.

      John W. Miner (Grove H. Wolcott and Arthur J. Tuttle, of counsel), for appellant.

      W. F. Cairns (Jason E. Nichols, of counsel), for appellee.
   Hooker, J.

The findings of fact in this case show that the plaintiff’s agents, Herron & Lounsbury, had in their possession for sale the machinery to recover payment for which the plaintiff has brought this action. The authority of the agents was in writing, and restricted them to sales for cash or approved notes. Dana held a past-due note given by Lounsbury, and wanted to sell it to the defendant, who, before purchasing the note, saw Lounsbury, who assured him that the note was all right, but that he would be unable to pay it before the next fall, but if defendant should obtain the note, and desired any machínery, he would turn him out machinery upon the note. Defendant thereupon purchased the note, and thereafter received from Lounsbury a binder and corn harvester for the note. He agreed also to turn over to Lounsbury two old machines, and to pay a small balance of account which he owed Herron & Lounsbury. Herron had nothing to do in the transaction, except that he exhibited the machinery in the implement building. The machines were started by plaintiff’s agents and experts after delivery to the defendant, and were used by defendant in gathering his crop in 1899. Some time after the defendant received the machines, and after they had been so used, plaintiff’s agent demanded payment for them, when defendant claimed that he had paid Lounsbury for them, and refused to pay further, and refused to deliver the machines to plaintiff’s agent upon demand. The defendant made no inquiry, and had no actual knowledge of the agency. This action was then brought in assumpsit to recover the value of the machines, the declaration being the common counts.

The conclusions of law found by the circuit judge are as follows:

“1. Marcena Lounsbury appropriated the property of plaintiff to his own use, and paid his debt to the defendant therewith. The property having been intrusted to him for a special purpose, he committed a tort when he used it as his own to pay his individual debt.
“3. Defendant received the property of plaintiff in exchange for the note of Marcena Lounsbury, and, if it must be assumed he in law was aware of the agent’s authority, he is to be held as participating in the wrong done by Lounsbury to plaintiff.
“3. There existed no contract relations between defendant and plaintiff, either express or implied, and the court cannot construe the acts done into contract relations between plaintiff and defendant. Waldo did not buy the machines of plaintiff. He received them in payment of Lounsbury’s note, from Lounsbury.
“4. The tort of Lounsbury cannot be construed into a contract between defendant and Lounsbury’s principal, the plaintiff.
“5. Waldo, having become possessed of plaintiff’s property by reason of the tort of plaintiff’s agent, and never having converted the same into money, but still having the property, cannot be held to respond to plaintiff in the action of assumpsit.”

The plaintiff has appealed.

The right to waive the tort and sue in assumpsit exists in-at least two classes of cases, — one where the defendant has come into the possession of the plaintiff’s property without his consent, and has received money upon a subsequent sale of the same; the other where he has come into possession through contract relations with the plaintiff, and the contract has been rescinded or failed, and he persists in keeping the property, refusing to deliver it upon demand. Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329). Manifestly this is not a case of the first class, because the defendant has not sold the property, and cannot therefore be said to have received money for the use and benefit of the plaintiff. It would seem that the case must turn upon the question whether defendant acquired possession of this property through contract relations with the plaintiff. We must take the facts as found. We cannot say that the judge should have found that defendant knew of plaintiff’s ownership, or that Lounsbury was its agent, and, if we could do so, we would not be justified in saying that he knew, or was bound to know, that these particular machines were not Lounsbury’s individual property. From the finding we must assume that he supposed that they were Lounsbury’s property. It becomes unimportant whether we say that he bought it of Lounsbury, or took it in payment of Lounsbury’s note. It was a sale and purchase in either case. But it wrs not a sale by the owner. It was a sale by, and purchase from, a wrong-doer, and none the less so by reason of the fact that the vendor was in the lawful possession of the property for the purposes of sale for the owner. The circumstances of the sale negative any inference of contract relations between the plaintiff and defendant. The case is ruled by Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329); St. John v. Iron Co., 122 Mich. 68 (80 N. W. 998). See, also, Watson v. Stever, 25 Mich. 386; Coe v. Wager, 42 Mich. 49 (3 N. W. 248); Loomis y. O ’Neal, 73 Mich. 582 (41 N. W. 701); Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652); Aldine Manfg. Co. v. Barnard, 84 Mich. 632 (48 N. W. 280); Ginsburg v. Lumber Co., 85 Mich. 439 (48 N. W. 952).

The judgment is affirmed.

The other Justices concurred.


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    METCALF v. MOORE.
    Body Execution — When Issuable.
    3 Comp. Laws, § 10412, provides that, when any defendant is in custody on surrender and discharge of bail after judgment, the plaintiff must charge such defendant in execution thereon within three months after such surrender, or, if an execution against his property has been issued, within three months-after the return day of such execution. Held, that, where an execution has been'issued against the property of a defendant, an execution against his body can issue only within three months after the return day of the first execution, irrespective of the existence or nonexistence of the conditions mentioned, in the first part of the section.

      Certiorari to Clinton; Stone, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.
    Action by Nellie L. Metcalf against Richard A. Moore. There was a judgment for plaintiff, and, a ca. sa. having been issued, a supersedeas was allowed, to set aside which plaintiff brings certiorari.

    Affirmed.

      Edwin H. Lyon, for appellant.

      L. G. Palmer and Frank Dumon, for appellee.
   Moore, J.

The plaintiff in this case, then Nellie L. Holton, on the 5th day of December, 1896, recovered a judgment in the circuit court for the county of Clinton against the defendant, in an action in which she would become entitled to an execution against the body of the defendant. On the 20th day of February, 1897, an execution was issued upon said judgment against the property of the defendant. The return day named in such execution was the 15th day of March, 1897. This execution was delivered to the sheriff of Clinton county for service on the day it was issued, and was returned by him nulla bona on the 16th day of March, 1897. On the 20th day of July, 1897, an alias execution was issued against,the property of the defendant, and given to the sheriff of said county for service. This execution was held by such sheriff until the 18th day of July, 1899, upon which day he made return thereof unsatisfied in part. After the return of such alias execution, and on the 19th day of July, 1899, the plaintiff took out a writ of ca. sa., or body execution, upon such judgment, and delivered the same to the sheriff of Clinton county for service. The sheriff executed said writ by taking the defendant into custody, and taking from him a bond for bail to the jail limits of Clinton county. This bond bears date' the 24th day of July, 1899. On the 20th day of April, 1900, the defendant applied to the judge of the circuit court of the county of Clinton for a supersedeas, for the reason that, under sections 10412 and 10413 of the Compiled Laws of this State, it is provided that, if an execution be issued against the property of the defendant, a writ of capias ad satisfaciendum must be issued within three months after the return day of suc]h execution; that an execution was issued upon said judgment, as heretofore shown, against the property of the defendant, and the return day therein named was the 15th day of March, 1897, while the body execution was not issued until the 19th day of July, 1899, or over two years thereafter. The judge of Clinton county allowed a supersedeas, as prayed for by the defendant, and the plaintiff is now here asking that such supersedeas be set aside and quashed by this court. The cause of delay in taking the ca. sa. is said to be the pendency of a chancery proceeding.

Two errors are assigned:

First. That the circuit judge erred in holding that because said capias ad satisfaciendum, or body execution, was not issued within three months after the return day of said execution issued on February 20, 1897, and returnable March 15,1897, said capias ad satisfaciendum was not duly and regularly issued according to law.

Second. That said court erred in holding that, under the facts in said cause, he had any authority to allow, and in allowing, said writ of supersedeas.

It is claimed on the part of the plaintiff that sections 10301, 10303,10304, 3 Comp. Laws, authorize the issuance of the ca. sa. in this case. We cannot agree with this claim. Section 10412, 3 Comp. Laws, reads as follows:

“When any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon within three months after such surrender, or, if an execution against the property of such defendant shall have been issued, within three months after the return day of such execution.”

This section has been construed in Douglass v. Manistee Circuit Judge, 42 Mich. 495 (4 N. W. 225), a case almost like this one, and the construction there given to it sustains the action of the circuit judge. See, also, 1 Green, New Prac. 344.

Judgment is affirmed.

The other Justices concurred.


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    HACKETT v. BROWN.
    1. Drains — Certiorari—Right to Question Proceedings.
    It appearing, on certiorari to review a drain proceeding, that the land contract under which plaintiff claimed had been antedated to enable him to raise objections which his vendor had lost the right to make, the same were not considered by the court.
    2. Certiorari — Conolusiveness op Return.
    The return to a writ of certiorari is conclusive on disputed questions of fact.
    3. Drains — Survey—Application por Special Commissioners.
    Where plaintiff acquired title to part of a tract of land after proceedings had been commenced for the construction of a drain across the same, and a survey had been made, which showed the length of the proposed drain on the land as then owned, in accordance with the statute, he could not object that a subsequent application to the probate court for the appointment of special commissioners did not show the length of the drain on his land.
    4. Same.
    An application to the probate court for the appointment of special commissioners in a drain proceeding need not be accompanied by the original minutes of the survey. 2 Comp. Laws, § 4322. Hence the fact that the minutes filed with such an application are not signed by the surveyor does not invalidate the proceedings.
    5. Same — Certiorari—Right to Intervene.
    One who claims to have purchased land on contract during the pendency of proceedings to establish a drain across the same, but who, with knowledge of such proceedings, neglected to notify the drain commissioner of his claim of ownership, or to have the question of his right to intervene determined on the hearing in the probate court, is not entitled to a review of the proceedings on certiorari.

    Error to Saginaw; Snow, J..
    Submitted June 6, 1901.
    Decided July 19, 1901.

      Certiorari by Eli L. Hackett to review the action of Alonzo M. Brown, drain commissioner of Saginaw county, Newton Burns, drain commissioner of Gratiot county, and Charles J. Sparks, probate judge of Saginaw county, in the matter of establishing a drain. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Gr. W. Davis, for appellant.

      F. L. Eaton, Prosecuting Attorney (F. E. Emerick and K. S. Searl, of counsel), for appellees.
   Long, J.

In August, 1898, application was made for the construction of drain No. 137, the proceedings in laying out which are the subject of controversy here. The cause was removed to the circuit court by certiorari, and comes into this court for review. The lands traversed by the drain are situate in the counties of Saginaw and Gratiot. In September, 1899, on the date set for the hearing for the appointment of special commissioners, Frank Lawrence and William Q. Atwood, owners of certain lands traversed by the drain, appeared before the probate court and filed certain objections. Special commissioners were appointed, but one of their number failed to appear. Thereupon a second set was appointed and made its findings, and on November 25, 1899, the final order of determination was made and filed. On December 11, 1899, William Q. Atwood filed a bill of complaint to set aside the appointment of the special, commissioners. A decree was entered in that case setting aside the order of appointment, and directing the drain commissioners to make a new application for special commissioners. This was done, and a new set of special commissioners was appointed, and on April 10, 1900, the final order of determination was made by the drain commissioners. It appears that on March 30, 1900, the plaintiff appeared in probate court and filed objections to the appointment of the special commissioners, alleging that he had never been served with citation to appear. Certain other objections were also made by him to the proceedings. He claimed in his application that he was the owner of the W. of the S. W. \ of section 28, Lakefield township, which was traversed by said proposed drain; that he had purchased these lands in May, 1899.

It appears that, when the proceedings were commenced to lay out the drain, William Q. Atwood was the owner of the land claimed to be owned by Hackett in his petition to have the proceedings set aside. There is no question but that Atwood had notice of all the proceedings prior to that time. Minutes of survey were made in January, 1899, and the first order of determination was made in June, 1899. The bill was filed by Atwood in December, 1899, and new commissioners were appointed. Hackett, the petitioner here, claims to hold the land under a contract from Atwood dated in May, 1899. On the hearing, however, he admitted that the contract was not made until September 25th or 26th, and dated back to May 26th. It also appears that Hackett resided in Mecosta county; that he never entered into possession of the lands, and did not record his contract until February 1, 1900. Hackett’s claim to the land, therefore, did not arise until the meeting of the second set of special commissioners. The circumstances shown are such that we are led to believe that this pretended sale of the land by Atwood to Hackett was for no other purpose than to permit Hackett to raise certain objections in the proceedings which Atwood had lost the right to make, and that the contract was not a bona fide one. -

It is the claim of plaintiff that the drain proceedings are void for the reason that the drain would divert the flow of water from where it had been accustomed.to run for 20 years. It is a sufficient answer to this that the drain commissioners deny this allegation in their return, which must be taken as true.

It is claimed that the application does not show the length of the drain on Hackett’s land. It is conceded that, as to the parcels described in the application, the statute is followed, but it is claimed that, because the commissioners did not separate Hackett’s land from the remainder of the Atwood land, the proceedings are void. The drain was laid out in June, 1899, and at that time Atwood was the owner of the land, and in possession of it. The minutes of the survey showed all that the statute required at the time. Hackett is now in no position to raise the question, having acquired title subsequent to that time, if he has any title at all.

It is claimed that the proceedings are void because the minutes of the survey accompanying the application to the probate court were not signed by the surveyor. The statute does not require the commissioner to file the original minutes of the survey in the probate court, but only a certified copy of the original application, giving the route, survey, and specifications as set forth in the first order of determination; and while the statute providing for the first order of determination requires a survey to be made, and that such order shall show the width, length, route, etc., it does not require the original survey to be attached thereto. The original survey remains in the hands of the drain commissioner.

We think, however, that the petitioner has no standing in this court. He was present at the meeting of the second set of commissioners, and knew that the drain was being constructed through these lands, and there is no showing that he ever served any notice on the drain com-missioner that he owned these lands. The question was not raised in the probate court, and that court made no ruling thereon.

' From a review of the whole proceedings, we are satisfied that the court below was not in error in affirming the proceedings in the probate court. The order below must be affirmed, with costs.

The other Justices concurred.


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    DIETRICH v. HOEFELMEIR.
    1. Statute of Frauds — Oral Contract Not to be Performed •Within a Year.
    An oral contract whereby plaintiff delivered certain sheep to defendant, who was to return twice the number at the end of four years, is void under the statute of frauds, as a contract not to be performed within a year.
    2. Same — Severability of Contract — Performance—Trover.
    But defendant could not invoke the statute to avoid his obligation under the contract, and at the same time assert title to the sheep delivered by plaintiff, on the theory that the contract was fully performed as to the latter. ‘On the contrary, the contract being void, title to the sheep did not pass to defendant, and plaintiff, after proper demand and refusal, could maintain trover for their value.
    Error to Muskegon; Russell, J.
    Submitted June 6, 1901.
    Decided July 19, 1901.
    Trover by Jacob Dietrich and Leo Dietrich against Benjamin Hoefelmeir. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      John H. Tatem (Myron H. Walker, of counsel), for appellants.

      Sessions & Sutherland, for appellee.
   Moore, J.

This is an action of trover brought to recover the value of 40 sheep claimed to have been converted by the defendant to his own use on the 6th day of January, 1900. The declaration was in the usual form of declarations in trover. The plea was the general issue, with notice of a contract between the parties by which the defendant took 20 sheep from the plaintiffs, to double in four years from the 6th day of January, 1896, and also a notice of tender. Some time in the month of December, 1895, one of the plaintiffs met the defendant at his place of business in Ravenna, when the defendant wanted to know if the plaintiff had any sheep to sell. Plaintiff Leo Dietrich said he had no sheep to sell, but would let defendant have 20 sheep on shares, to double in four years, provided it was satisfactory to his brother Jacob. Soon after that date, and on the 6th day of January, 1896, the defendant went to the place of the plaintiffs to get the sheep, when it was agreed between the plaintiffs and defendant as follows:

“Plaintiffs agreed to let the defendant have 20 sheep, all ewes, and all with lamb, all good size and good grade; the defendant to take said sheep to double in four years, and return at the end of four years 40 ewe sheep, all to be with lamb, and the same grade or quality of sheep, to be delivered by the defendant to the plaintiffs at his ( defendant’s) farm.”

The sheep delivered were from 2 to 6 years old. Defendant was to return sheep not younger than 2 nor more than 6 years old. A demand was made upon him for the sheep. Upon his refusal to deliver them, this suit was brought.

At the conclusion of the testimony for the plaintiffs, counsel for defendant moved the court “to direct a verdict in favor of the defendant—

“First, upon the ground that the contract testified to by the witnesses for the plaintiffs is a verbal contract, and not one to be performed within a year by the defendant, and therefore within the statute of frauds, so called;
“Second, upon the ground that the transaction on January 6th and prior thereto between these parties concerning these sheep, as testified to by the plaintiffs’ witnesses, was a sale of the sheep, and not a bailment, and that the title passed to the defendant, and the plaintiffs have no title or interest in the specific sheep for which they seek to recover in this action of trover; and,
Third (which is covered in that, perhaps), that an action of trover will not lie. If any action would lie, it would be an action of assumpsit.”

The trial judge was of the opinion that the contract was within the statute of frauds and was absolutely void, and directed a verdict for the defendant. The case is brought here by writ of error.

Counsel, in their brief, say:

‘! The position of defendant may be stated as follows:
“1. The contract on the part of defendant to deliver to plaintiffs 40 sheep at the end of four years was not in writing, and by its terms was not to be performed within one year, and therefore was within the statute of frauds. The contract on the part of plaintiffs to deliver to defendant 20 sheep was to be performed presently, and was fully executed, and therefore was not within the statute of frauds.
“2. The transaction constituted a sale, and not a bailment, of the sheep by plaintiffs to the defendant.
“3. The plaintiffs have mistaken the form of their action. While they might have recovered upon the appropriate common counts in an action of assumpsit, they cannot recover in the present action of trover.”

We think this position is not tenable. Were it not for the statute of frauds, this contract would not be void; and, were it completely executed, it would be taken out of the statute, so that neither party could question its validity. Browne, Stat. Frauds (5th Ed.), § 116. The plaintiffs are not invoking the aid of the statute to avoid the contract. That is done by defendant, who has agreed by parol to do something which 'he now refuses to do because the contract was not made in writing, after the other parties have performed their agreement. The defendant cannot separate an agreement, which all the parties regarded as an entire one, into two parts, and say that one of these parts was performed within a year, and therefore makes a complete contract, by which defendant has obtained title to the property, while, as to the other part of the contract, by which defendant was to^ return twice the number of the sheep which he had received, that as that agreement was not to be performed within a year, and has never in fact been performed, it is void because not in writing, and therefore he will not perform it. To allow this contention would be to permit the making of a contract never contemplated by the parties.

Under the provisions of subdivision 1, § 9515, 3 Comp. Laws, the contract the parties undertook to make was void because it could not be performed within a year, and was not in writing. The circuit judge was right in declaring it to be absolutely void. Scott v. Bush, 26 Mich. 418, 421 (12 Am. Rep. 311); Kelly v. Kelly, 54 Mich. 30, 48 (19 N. W. 580); Raub v. Smith, 61 Mich. 543, 547 (28 N. W.. 676, 1 Am. St. Rep. 619); Wardell v. Williams, 62 Mich. 50, 62 (28 N. W. 796, 4 Am. St. Rep. 814); Winner v. Williams, 62 Mich. 363, 366 (28 N. W. 904). If this is so, it did not convey the title of the sheep to the defendant, but the title remained with the plaintiffs. After the defendant has got possession of the sheep belonging to plaintiffs by reason of a contract made void by the statute, he cannot invoke the aid of the statute to defeat the title of the plaintiffs, and say the same contract confers upon himself title to the property. The law is not so unfair and unjust as that would be. The title to the sheep, then, remaining in the plaintiffs, and the defendant, without the consent of the plaintiffs, having sold them, and having, upon demand made, refused to return them, the plaintiffs were entitled to maintain this action.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    ROUSE v. DETROIT ELECTRIC RAILWAY.
    1. Street Railways — Collision with Vehicle — Contributory Negligence — Question por Jury.
    ■ Plaintiff’s intestate was riding in a wagon with a companion, who drove slowly along the beaten 'track of the highway, after dark, between the highway ditch and the track of an electric railway. They were expecting a car to come from behind, and at intervals turned to see whether it was approaching. The last time intestate looked he discovered the car close upon them, and called to his companion to turn out, which the latter attempted to do, hut, owing to the high rate of speed of the car, was unable to get out of the way in time to avert a collision. Held, not to show contributory negligence as a matter of law.
    2. Same — Speed oe Car — Evidence.
    The car men testified that the' car was running only about six miles an hour, and that it could not run any faster on the street where the accident occurred, because of lack of power and rough track. Held, that evidence as to the speed of cars on such street at times other than the occasion of the accident was admissible in rebuttal.
    3. Death by Wrongful Act — Damages.
    To justify a recovery under the statute for death by wrongful act, there must be a showing of some pecuniary injury.
    4. Same — Instructions.
    In an action for the wrongful death of one who left surviving him a widow and several children, of whom one daughter was married, an instruction that the measure of damages would be the present worth of the sum that deceased would probably have given his family during his expectation of life, as shown by the tables, but overlooking the limitations as to the life expectancy of the widow, the minority of the children, the marriage of the daughter, afid deceased’s earning capacity, was erroneous.
    Error to Wayne; Hosmer,J.
    Submitted June 4,1901.
    Decided July 19, 1901.
    Case by Sarab Rouse, administratrix of the estate of Henry Rouse, deceased, against the Detroit Electric Railway, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. T. Leete, Jr., for'appellant.

      Howard B. Bloomer (Alfred Lucking, of counsel), for appellee.
   Long, J.

This action is brought to recover damages for the death of Henry Rouse, occasioned by the claimed negligence of the defendant. It appears that Rouse, plaintiff’s intestate, a teamster, was riding with his son-in-law, one Garlick, also a teamster, in an ordinary dirt wagon, along Oakland avenue, in the city of Detroit, on the night of September 6, 1898. The men had been some eight miles out in the country, and about 8 o’clock that night, in returning, they drove along Oakland avenue. The defendant operates a double-track street railway on this avenue. Its cars in going north pass over the east track, and in returning southward in the city pass over the west track. ' Rouse and Garlick entered upon Oakland avenue north of the north terminus of these car tracks, the tracks there forming a “ Y,” so that the cars may turn and proceed back to the city. After the men had driven over the “ Y,”£going south, they saw the car pass them, going north on the east track. It appears' that they knew that the car must turn and follow them south on the west track. They were going south between the west track and a ditch on the west side of the avenue, the street being an unpaved one. The distance between the car tracks and the ditch is in some dispute; the plaintiff’s witnesses putting it between 9 and Í0 feet, and the defendant’s between 10 and 11. The parties could see that there was a ditch along the side of the wagon track, but Mr. Garlick claims they could not tell in the dark how deep or dangerous it was, or how close to their wheels; and there was some evidence tending to show that at places the roadway was so narrow that teams were driven into the ditch in the daytime when cars were passing. The ditch was from 18 inches to 2 feet deep. They had never passed over this road before; and the plaintiff’s claim is that they were driving carefully and slowly, that the team was on a walk in the beaten track made by the regular travel, and that Garlick, who was driving, kept the reins steadily in his hands, and let the horses go along the regular way. It appears that the footboard of the car lapped over the roadway outside of the rail 2 feet, leaving only 8 feet or less between the ear and the ditch; that the wagon, from hub to hub, lacked 1 inch of 6 feet in width.

It is claimed by the plaintiff that the deceased and his companion expected that the car would go back, and so kept looking around; that Rouse looked around two or three times; that, the last time he looked, he discovered the car not far behind them, coming rapidly; that he called to Garlick to gee out, which Garlick says he did as soon as possible; but that the wagon was struck just north of the alley north of Westminster avenue, and overturned, injuring Mr. Rouse, and from which injuries he shortly after died. It is also the claim of plaintiff that the car was running at a rate of speed of more than 25 miles an hour; that, when the wagon was struck, it was with such force that a new white-oak reach, 5 inches wide by 21-inches thick, was snapped like a pipestem; that the motorman applied the brakes instantly, and yet the car ran 305 feet farther before it could be stopped; that, when the wagon was struck, the horses galloped away; that the car shot past the horses, and, although they were on a gallop or run, they crossed the track behind the car which passed them, 140 feet south of the place of the accident. It is also the claim of the plaintiff that, as soon as the parties discovered the car approaching, Garlick hastened to drive to the edge of the ditch, out of the way of the car, but it was coming with such speed that it was too late to escape it.

It was the claim of defendant that, just before the car struck the wagon, the horses turned towards the track, bringing the wagon so near the track that the car ran against it. The motorman testified on his cross-examination that: “The first I saw of the wagon, it was about 5 feet ahead of my car;” and further that: “I could not swear that I noticed in that 5 feet that they turned nearer to the track, and that I would have cleared them if they had been as far away as they had been 5 feet before.”

The court submitted the question to the jury under the claims of the respective parties. The jury returned a verdict in favor of plaintiff for $5,550.

Defendant’s counsel contends that the negligence of Mr. Garliek, the driver, contributed to the accident, and the plaintiff was not entitled to recover; that the admission of Garliek that he did not see the car until it struck him is conclusive evidence of contributory negligence. We think this contention cannot be sustained. According to Garlick’s testimony, they were on the lookout for the return of the car. Sometimes Rouse looked backward, and at other times Garliek. He testified that the car was running at a very high rate of speed. Counsel for defendant contends that the case is governed by Fritz v. Railway Co., 105 Mich. 53 (62 N. W. 1007); Blakeslee v. Railway Co., 105 Mich. 468 (63 N. W. 401); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36). We think these cases are not controlling of the present. The Fritz Case was put expressly upon the ground that the driver of a milk wagon turned suddenly and unexpectedly in front of the car. It was said in that case: “It is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden.” The Blakeslee Case was put upon the same ground, — that a sudden turning in front of the car, without any effort to ascertain if a car was coming, was the cause of the accident. In the Doherty Case a pedestrian was held guilty of contributory negligence in entering upon the railway track in front of an approaching car, which would have been visible to him had he looked when within two or three feet of the track.

The present case falls within the rule laid down in Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139). In that case a woman was driving a covered milk wagon alongside the track, in the ruts made by travel. She heard a hell behind her, and attempted to turn out farther, but, before she could do so, her wagon was struck. It was held that the question of contributory negligence was for the jury. It was said by this court:

“She had a right to drive down the track, just as she did; and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless, and there is no contributory negligence in the case. * * * A man may drive ahead of you with a wagon, * * * but you must wait until your opportunity comes to pass; and the same rule applies to street cars.”

The court instructed the jury in accordance with the rule in the Manor Case.

It is claimed that the court was in error in admitting testimony as to the speed of the cars upon Beaubien street and Oakland avenue at other times than on the occasion of the accident. We think there was no error in this. The car men had testified that the car was running only about six miles an hour, and evidence was called out from them by defendant’s counsel that the cars could not run any faster there because of the lack of power and rough track. The evidence objected to was admitted in rebuttal.

The principal contention in the case is that the court was in error in its charge as to the measure of damages. The court charged the jury:

‘ ‘ I am asked to charge you, and I do charge you, that there can be no recovery in this case for any pain or suffering or other injury of the deceased caused by the accident to Henry Rouse; that the only damage that can be awarded in this case, if the plaintiff is entitled to recover, is the pecuniary injury which has been occasioned by the death of Henry Rouse. * * * If the plaintiff is entitled to recover, she is entitled to recover that pecuniary damage, that actual, money damage, which she has suffered by being deprived of the money which her husband would have given her — given to the family — during his lifetime. In determining how long he should live, you may take into consideration the American Experience Tables, which are published, I think, in Howell’s Statutes, which show the average expectation of life, at his age, 25.99 years; and you may properly find that Mr. Rouse would likely have lived that much longer. Now, the question is what he would have contributed to his family during that time, — what it is probable he would have contributed. You have heard the testimony as to the amount that he had earned. What was it probable that he would have earned in the future, and what portion of his earnings is it probable would have gone to his family ? It is possible, gentlemen, as the children grew up, that they themselves might have contributed to the family, and his own contribution might not have been so much. It is possible that quite the contrary might have been the case, — that his own contribution as the children grew might have been equally large. But all these are questions for you, and not questions for the court. * * * ”

The deceased left surviving him a widow and seven children, — one of them a married woman, the wife of Mr. Garlick. It is the claim of defendant’s counsel that the charge of the court that the damages would be tbe present worth of the sum that deceased would probably have given his family during the period of 25.99 years, his expectation of life, was erroneous, because four limitations were entirely overlooked: (a) The expectation of the life of the widow; (5) the minority of the children; (o) the marriage of one daughter; (d) the earnings of the deceased.

In Hurst v. Railway, 84 Mich. 545 (48 N. W. 46), the question of the measure of damages for the death of a minor is discussed. It was said:

“ There would be a limit upon this, dependent upon the probable duration of the lives of the parents, as no estimate of such prospective earnings [of the son] could extend beyond the expectancy of the lives of the parents and the survivor of them.”

In that case the measure of damages was also limited to the prospective earnings of the child until he became 31 years of age, taken in connection with his prospect of life, less the expenses of his own care and support.

The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury, by the death. The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact. Hurst v. Railway, supra. See, also, Nelson v. Railway Co., 104 Mich. 588 (63 N. W. 993); Walker v. Railway Co., 104 Mich. 616 (63 N. W. 1032). These damages must be limited to the pecuniary damage sustained by those legally entitled to support. Van Brunt v. Railroad Co., 78 Mich. 530 (44 N. W. 331).

We think counsel for defendant correct in saying that these limitations should have been stated to the jury. Damages should have been limited to the expectation of the life of the widow. As to the children, no damages could be recovered for their support after they each became of age, and none for the maintenance of the married daughter. The court should also have instructed the jury that the amount of the recovery must be based upon the earning capacity of Mr. Rouse as shown by the testimony; that it would be the present worth of the sum of money he might earn during his expectancy of life and devote to his family, but limited by the expectancy of the life of the widow, if her expectancy of life was less than that of her husband, and the minority of the children, so far as they were concerned in the fund. We do not pass on the'question whether damages might be allowed for a dependent child after he becomes of age.

For this error in the charge, the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    WILTON v. CITY OF FLINT.
    1. Municipal Corporations — Defective Sidewalks — Notice of Claim for Injury — Sufficiency.
    Notice to a city of a claim for injuries caused by a defective sidewalk, setting up the place of the accident as on the north side of C. street, in front of the lot on which is located residence No. 326, is sufficiently specific.
    2. Same — Sufficiency of Declaration.
    A declaration for injuries caused by a defective sidewalk, averring that the walk was originally constructed of cement, which had been taken up, leaving a depression of from four to six inches, in which planks were laid lengthwise, which planks were old and warped, their ends flaring up from two to three inches; and describing with particularity the manner of the injury, — sufficiently apprises defendant of plaintiff’s claim.
    3. Same — Contributory Negligence — Question for Jury.
    Where plaintiff was injured by falling oh a defective sidewalk while “trotting along” in the dark with his hands in his overcoat pockets, the walk being covered with snow, but he having no knowledge of its defective condition, the question of his contributory negligence was for the jury.
    4. Personal Injuries — Damages—Instructions.
    A statement by the court in his charge to the jury in a personal-injury case, that a person injured “can have but one right of action; when he comes before a jury once, that is the end of his case,” made in explanation of an instruction that plaintiff, if entitled to recover, should be allowed for his past, present, and future damages, is not reversible error.
    Error to Genesee; Wisner, J.
    Submitted June 7, 1901.
    Decided July 19, 1901.
    Case by Herbert Wilton against the city of Flint for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Daniel Heims (Ed. S. Lee, of counsel), for appellant.

      Black & Brown, for appellee.
   Long, J.

This action was brought to recover damages for injuries received March 18, 1899, on a claimed defective sidewalk. Plaintiff filed a claim with the common council of the city’' on April 5, 1899, in which he set forth his injuries. This claim was disallowed, and on May 25, 1899, the present suit was commenced.

At the commencement of the trial before the jury, defendant objected to any testimony being given, for the , reason that there was no claim filed with the council in conformity to the provisions of the charter; that neither the claim, the affidavit attached thereto, nor the declaration gave the defendant any notice of the particular place on the sidewalk where the injury occurred; that defendant did not have notice of the particular defect. The court stated to counsel:

“ I think that the paper shown me, which I understand is the one that is offered in evidence, is a sufficient compliance with section 42 of the charter, and I therefore overrule the objection so far as that is concerned.”

The notice referred to states:

“I hereby notify you that I have sustained injuries, and have a claim against the city of Flint for such injuries, received on the 18th day of March, A. D. 1899, on a defective sidewalk on the north side of Court street, in front of the residence of Dr. Rice, or nearly in front of the same, the place where such injury occurred being in front of the lot on which said residence is located, said residence being No. 326 West Court street, in the Third ward of the city of Flint.”

The notice 'gives the time of day when the injury occurred, and then states:

“My left foot struck against some plank or obstruction on said walk, and I was thrown with great violence upon said walk, by reason of which I was unable to rise from the .place where I had fallen. * * * That said walk was out of repair, and was notoriously unsafe for travel. * * * That by reason of said fall I was severely wrenched, strained, and bruised. My right hip bone, as I am informed, was broken and dislocated from its socket. That I have sustained severe and painful injuries to the spinal cord, * * * have lost the use and control of my lower limbs, and have become helpless. * * * That I claim damages from the city of Flint to the amount of $30,000, and have appointed Black & Brown, of Patterson Building, Flint, to represent me and act as my attorneys in all matters pertaining to this claim.”

This claim was sworn to by plaintiff, and duly served on the common council of the city.

Section 42 of the charter (Act No. 400, Local Acts 1897), referred to by the court below, provides:

“It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented to the council for allowance,” etc.

This provision, when wholly set out, is almost identical with the provisions of the charter of the city of Owosso, referred to in Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256); and a fuller and more specific description of the place of the injury is set out in the notice in the present case than was there set out. It was held in that case that the notice was sufficiently specific to apprise the council of the claim made. We think the notice in the present case sufficient.

The declaration charges that the walk was originally constructed and built as a cement walk, and had been taken up in the fall of 1898, leaving a depression in the walk of from four to six inches below the surface of the adjoining lot; that planks from four to six inches wide had been placed on each side of such depression in said walk; that said planks were old, warped, and dished in shape, turning up at the ends, and were disconnected at the end of each plank; that some qf the ends of the planks as thus placed flared upwards, and arose above the level of said depression from two to three inches, causing the same' to be unsafe. The third count describes the manner of the injury with particularity. We think the declaration sufficiently apprised the defendant of plaintiff’s claim, and that the court was not in error in overruling the motion. The cause was fully tried before the jury, who returned a verdict in favor of plaintiff for $5,000.

It is contended that, under the plaintiff’s own testimony, he was not entitled to recover. He testified, substantially, that he had lived in Flint over 20 years; that he was 65 years of age, but well and strong before the injury; that he left home on the morning of the injury about 5 or half past 5 o’clock; that it was dark, but there was some snow on the ground; that he was trotting along; that it was slushy and raining a little; that he had on a fur coat, and both hands in his breast pockets, way up high; that he kicked his foot, but did not fall from that, but partly recovered himself, and, if he had had a good place to step, could have done so, but his foot went through the walk or down between the boards. The witness continued:

“ I don’t know which one. I don’t know which way I fell, I fell so quick. I was walking quick. I don’t know whether I fell forwards or backwards or sideways, but I had both hands in my pockets, and when I went to pick myself up I was lying up by the walk.”

We think it cannot be said that the court should have directed the verdict in favor of the defendant. It was a question for the jury to determine whether the plaintiff was guilty of contributory negligence in passing along this walk in the manner he did. It appears the plaintiff was not aware of the condition of the walk at that place at that time.

It is contended that the court was in error in instructing the j ury as follows:

“A person who receives an injury can have but one right of action; when he comes before a jury once, that is the end of his case; and therefore, if he is entitled to recover at all, he is entitled to recover for the injuries he has received in the past, that which he endures at present, and that which he is likely to endure in the future, so far as they are covered by the declaration.”

It is claimed that this charge was misleading, as it would lead the jury to believe that, unless a judgment was rendered in plaintiff’s favor, his right of action would cease. The proofs show that the plaintiff was severely injured, and that he was still suffering from such injuries, We think the court was not in error in this charge.

We have examined all the claimed errors, and find no error in the case. The judgment must be affirmed.

The other Justices concurred.