text:
    WARD v. COOK.

    1. Pleadinu — Inconsistent Counts — Election—Assumpsit.
    A count for the recovery of money advanced under a contract to give plaintiff employment as a branch manager, which has been rescinded for breach of its conditions, may be joined with counts to recover for the advances made, founded on the theory that the contract has been rescinded for fraud, and the court cannot require the plaintiff to elect on which theory he will proceed.

      2. Same — Fraud—Sufficiency of Declaration — Representations.
    Allegations of a declaration are sufficient to admit proof of fraudulent representations when it charges that the defendant falsely represented that he intended to establish a permanent branch office at Des Moines, Iowa, that he was the largest exclusive manufacturer of perfumes in the country, that the goods were equal in quality to the highest standard, and that experience was unnecessary to handle them.
    3. Fraud — Contracts—Rescission by Parties — Evidence.
    Correspondence between the parties prior to the making of the contract was admissible to show the representations made and relied on.
    4. Same — Evidence—Conduct.
    It is not error to admit testimony that the defendant did not invite tests of the goods to be furnished.
    5. Same — Subsequent Correspondence and Conduct.
    No error is committed in receiving in evidence letters and acts of the plaintiff subsequent to the execution of the contract to show performance on his part and rescission of the contract.
    6. Same — Fraud—Breach of Contract.
    Evidence that the office was fitted up with second-hand furniture, and that the goods were poorly packed and displayed, was admissible to show that the office was not intended to be permanent and that the defendant committed a breach of the contract.
    7. Same — Quality of Goods.
    A sample case containing samiples of the goods furnished was admissible to identify the subject-matter of tests made for the plaintiff- of the quality of goods furnished.
    8. Same — Representations as to Size -of Business.
    The plaintiff was properly permitted to testify that he after-wards became suspicious as to the statement made by tbe defendant to the effect that he conducted the largest exclusive manufactory of the goods.
    9. Same — Evidence of Similar Frauds.
    Evidence of other similar contracts and transactions entered upon by the defendant is admissible to show fraudulent intent.

      10. Same.
    Where the defendant objected to, and obtained the exclusion of, evidence that experience was necessary to sell the goods, testimony on his part that it was unnecessary was properly rejected.
    11. Same — Evidence—Cross-Examination.
    Cross-examination to show where the defendant got the form of contract used was competent as bearing on the misrepresentation concerning the business which was referred to in the contract.
    IS. Same.
    Testimony tending to prove that the plaintiff relied on the false representations was admissible.
    IS. Same.
    The admission of such evidence as bore upon his reliance on representations which the court refused to submit to the jury was not prejudicial.
    14. Same — Trial—Instructions to Jury.
    A charge which informs the jury of the questions which may be determined by them is sufficient, in the absence of requests to charge that certain testimony should not be considered, where the court indicated during the trial his opinion as to the testimony.
    15. Same.
    The words in an advertisement for a branch manager, “experience unnecessary,” may be submitted to the jury as a fraudulent representation.
    16. Contracts — Breach—Agreement to Instruct in Business.
    Under the terms of a contract providing that the defendant should instruct the plaintiff in business which he was entering upon, until, in the estimation of the defendant, he was sufficiently instructed, the plaintiff was entitled to reasonable and good faith instructions.
    17. Damages — Loss of Other Employment.
    Evidence of a loss of other employment caused by the fraud of the defendant was a proper subject for the consideration of the jury on the question of damages.
    18. Trial — Practice—Special Questions — Jury.
    Special questions as to the plaintiff’s reliance on the fraudulent representation that the defendant intended to establish a permanent office, the truth of the statement, and the amount of instructions given, were controlling of the issue, and were properly submitted to the jury.

      Error to Wayne; Murphy, J.
    Submitted February 19, 1909.
    (Docket No. 23.)
    Decided October 4, 1909.
    Assumpsit by John W. Ward against Cliff R. Cook for the recovery of moneys advanced under a contract of employment. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.
    Frazer, Griswold & Slyfield, for appellant.

      Graves, Hatch & Wasey, for appellee.
   McAlvay, J.

Plaintiff, a resident of the State of Iowa, recovered in the Wayne circuit court a judgment against defendant, a resident of Detroit, for certain money paid and losses sustained under a certain contract between the parties. The defendant in 1905 caused to be inserted in newspapers in several States an advertisement reading as follows:

“ Man, trustworthy. To manage branch office and distributing depot for large manufacturer; salary to start with $1,500 first year, and extra commissions and expenses. Applicant must have good reference and $1,000 cash. Capital secured, experience unnecessary. Address Manufacturer, 31 West Atwater Street, Detroit, Michigan.”

Plaintiff saw this in the Chicago Record-Herald, and on September 35, 1905, answered it, stating his business experience, habits, present occupation, and ability to give references, and asked for full particulars. Defendant replied at length on September 37th, using the trade-name “The Elysian Manufacturing Co.,” under which he was doing business. This letter contained statements that—

“It is our intention to open an office and distributing depot in your locality at an early date, and to enter into a business arrangement with a trustworthy and responsible man to manage the business. * * * We are willing to enter into a permanent arrangement with a satisfactory party, and will pay $1,500 per year, payable monthly for the first two years, and to this we will add a commission of 5% on all goods sold through this department. * * * The office and distributing depot is opened and furnished at our expense. We shall pay all the running expenses of the business, such as rents, postage, advertising, typewriting, clerical help, etc. * * * We expect to send a man from our experienced staff to instruct the manager thoroughly in all details of the work. * * * The cash capital required on your part ($1,000) * * * can be withdrawn in full at the expiration of any arrangement we shall make with you. * * * Your capital is perfectly secure, as you always have on hand either the cash or its equivalent in merchandise.”

Other letters followed, in one of which from defendant was inclosed a booklet, which the letter stated was “descriptive of part of the goods which we manufacture, and which will give you some idea of our line.” Another letter stated:

“Inasmuch as we are the largest exclusive manufacturers of our line of goods in the country, we are in position to meet any and all competition.”

The description given in the booklet reads:

“Quality. Our perfumes and floral waters are equal to the highest standard of such goods in this country or Europe. We manufacture all the leading flower odors, and after ten years’ experience and successful manufacturing, we challenge comparison with any other like goods without regard to price.”

At the invitation of defendant plaintiff came to Detroit and went to defendant’s office. Plaintiff claims that he was met by a man named McGuire, who stated that defendant was busy, and could not see him, but he could attend to the business just as well; that during the conversation which ensued, relative to the business, he asked McGuire as to the quality of the goods manufactured, and he produced a copy of the booklet, saying, as he referred to the page, that it described the quality of the goods they manufactured; that he was taken into Mr. Cook’s office arnd introduced to him by McGuire, who did practically all the business, even to preparing the contract; that he saw defendant but a few moments at the time the contract was signed.

There is a sharp dispute between plaintiff and defendant as to what occurred at this time. McGuire was not produced as a witness.

The contract is as follows:

“ This agreement, made and entered into this tenth day of October, 1905, by and between the Elysian Manufacturing Company, party of the first part, and J. W. Ward, party of the second part, witnesseth:

“That the parties hereto, after a personal interview, and after a personal examination by said second party, of the goods manufactured by said first party, have embodied the result of all previous and present negotiations into this writing, said agreement being as follows, to wit:

“(1) Said first party hereby engages the said second party in the capacity of general sales agent, to conduct a sales agency in the city of Des Moines, State of Iowa, for a period of two (2) years from the date that the sales office is opened for the second, as hereinafter provided for, and for and in consideration of the faithful performance and fulfillment of each and all of the several agreements herein contained and agreed to between the parties, the party of the first part agrees to engage the said second party for a period of twenty-four (24) months, and agrees to pay the party of the second part one hundred and fifty dollars ($150) per month, as hereinafter provided, and give five per cent. (5%) additional commission on all sales of said office during the continuance of this contract.

“ (2) The party of the first part agrees, at its own expense, to open and fit up an office or salesroom for the use of the party of the second part, at said city, in which the party of the second part shall carry on said business as herein provided for, and the party of the first part further agrees to supply stationery and circulars for the proper handling of the business. Also to sell and deliver such stock as it manufactures and sells as the trade of said office may require from time to time at forty per cent. (40%) discount from retail list prices, and to supply merchandise for all moneys received from said second party, and to instruct said second party in the details of handling the business, until he is sufficiently instructed in the estimation of said first party.

“(3) At the expiration of the term and fulfillment of this agreement, the party of the first part further agrees to repurchase from said second party all stock that he may have on hand, purchased from said first party, paying therefor in cash the same prices originally charged him.

“In consideration of the foregoing and subsequent agreements, the said second party agrees to the following:

“(1) The said party of the second part will and does hereby engage and agrees to become general sales agent for the goods manufactured and sold by the party of the first part, as heretofore stipulated, for a term of two (2) years, and that he will devote his whole time and. efforts to advancing his success of the business, and to satisfactorily perform the duties herein required of him, dealing honorably with the party of the first part, the public, and all persons with whom he may have business relations.

“ (2) That the said second party will supply no stock to agents, dealers, nor other purchasers from him that will in any way demoralize the trade, and only for cash with orders, or thirty (30) days’ time, if secured by the indorsement of some financially responsible party, or on some satisfactory letters of credit. Said second party is to use due care and diligence in looking up the standing of people to whom goods are sold on credit, and then, if any losses arise, these losses are to be charged as an item of expense to the business.

“ (3) Said second party further agrees to carry a stock of merchandise amounting to one thousand six hundred and sixty-six dollars and ($1,666.66) at list prices, which’ shall be an assortment of the various goods manufactured or handled by the said first party, such stock and assortment to be selected by the party of the first part,' or to be jointly selected, and to be billed to said second party at forty per cent. (40%) discount from retail prices, amounting to one thousand dollars ($1,000) net.

“ (4) The party of the second part further agrees to furnish the said first party with daily and weekly reports, and, at the end of each month, to forward to the party of the first part a report of all business done during the month, giving the names and addresses of any and all agents appointed, a full and accurate statement of expenditures, amount of goods sold, of money collected, and any other information regarding the business that may be desired by the party of the first part.

“(5) As the permanent success of this business will depend upon a reasonable amount of merchandise being sold, it is understood and agreed that the sales of each month shall amount to five hundred dollars ($500), which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract. If the sales of any month shall not amount to the minimum amount, namely, five hundred dollars ($500), and during the succeeding months sales should be in excess of the minimum amount to make up an average of five hundred dollars ($500) per month, this contract will thereby be fulfilled in this respect by the party of the second part.

“ If the sales at the end of the first year shall not have averaged five hundred dollars ($500) per month, the party of the first part reserves the right to cancel this contract, if it so desires, and upon such cancellation, shall repurchase from said second party, all stock that he may have on hand, purchased from said first party, at prices originally charged.

“All sales to be made to agents, demonstrators, and dealers at a discount of thirty-three and one-third per cent. (33£%) from list of retail prices.

“ (6) It is mutually understood and agreed between the parties hereto that the said second party shall have the right and authority to collect all moneys for business done through said office, and that at the end of each month, after deducting from the receipts of this office, the amount of his own remuneration, to wit, one hundred and fifty ($150), and the necessary expenses, such as rent, necessary office help, postage, advertising matter, office sundries, commission, salary and commission to salesmen and demonstrators, etc., he shall remit with his monthly account the cash balance to said first party at its offices in the city of Detroit. When such remittance is received, the party of the first part will then replace all the stock sold during the previous month by the party of the second part, as herein provided, without additional charge or expense to said second party, and in case the minimum amount of business required to be transacted shall not be sufficient to pay the necessary expenses of the office as herein provided for, the cost of replacing stock, etc., such deficiency shall be made good by said first party at the end of each month.

“ (7) It is further mutually agreed by both parties hereto that the said second party shall have the right to renew this contract at its expiration, it being understood by both parties that the expenses incident to the opening of this office constitute the necessity of a permanent arrangement.

“ In witness whereof, the parties of this contract have hereunto set their hands and seals in duplicate the date and year first above written.

“The Elysian Mfg. Co.,

“Per C. R. Cook. [Seal."

“J. W. Wabd. [Seal.]

“Received of J. W. Ward, one thousand dollars (|1,000) in payment for stock as per above contract.

“The Elysian Mfg. Co.,

“Per C. R. Cook.”

Plaintiff returned to his home in Iowa, and soon after, by appointment, met the accredited representative of defendant, who by his written instructions was authorized to open the office for plaintiff and thoroughly instruct him in all the details of the business. The only evidence as to these instructions is the testimony of plaintiff. The agent, Mr. Doud, was not called as a witness. Plaintiff says all the instructions he received were given him at an interview at a hotel of about 45 or 50 minutes, and consisted in the agent producing and opening a few samples, which he had, and reciting what the “booklet” said about them. He instructed him to insert “blind advertisements ” in three newspapers in Des Moines for canvassers ; to confine his bookkeeping to two small books, costing from 35 to 60 cents, and afterwards to use a complete set of books, which defendant would forward, and which never came. The next day Mr. Doud, in this city of from 60,000 to 70,000, rented an office for $8.33 a month, purchased second-hand furniture for the same, worth $17.25, and purchased stationery to the amount of $1.55, which constituted the equipment of the office.

Just before leaving he presented the following typewritten receipt for plaintiff to sign, which receipt was already prepared except the date:

“Des Moines, Iowa, October 25, 1905.

Gentlemen: We have opened the office to-day — also stock which has arrived. The following expenses have been paid out by your representative:

Rent............................................„ §10 00

Furniture........................................ 17 25

Drayage .......................................... 1 00

Stationery ..........................1............. 1 55

§29 80

“Tour representative has fitted up my office in a satisfactory manner and instructed me thoroughly in the details of the business. You have fully complied with your contract to date, and I feel well qualified to go ahead. You can rest assured of receiving my hearty co-operation at all times.

“ Yery respectfully yours,

“ J. W. Ward.

“Room 526, Good Block.”

Plaintiff says that he had objected to the kind of furniture provided, and the stock had not yet arrived, of which he had notified defendant by letter the day previous. The agent stated he was required to have a receipt for money expended, and plaintiff signed the statement. He followed the instructions given him and wrote for further instructions, and received reply that there were no personal instructions. The goods had not been consigned to him, but to “R. H. Gaines,” a person unknown to him. He wrote several letters to defendant to trace the goods, and received the shipping bill to the above consignee, and found the goods on November 9, 1905. Plaintiff could get but few canvassers from the advertising recommended by the agent. He testifies that he became suspicious of the representations made to him by defendant that his concern was the largest of its kind from the unattractive appearance of the packages, and also as to the quality of the goods, and upon this consulted a chemist.

He wrote many letters to defendant reporting what he was doing as to canvassers and the business generally. On November 24, 1905, plaintiff sent defendant his monthly statement with a letter. This was replied to by defendant, November 28th, calling his attention to paragraph 5 of the contract, which fixes a sale of not less than 1500 a month as the minimum amount of business necessary to constitute the fulfillment of the contract. His letter and this statement are not in the record. He consulted an attorney, and presented for his examination the contract with defendant and all the correspondence, and instructed him to rescind the contract. This he did by letter to defendant, December 14, 1905. Plaintiff made a final statement, duly itemized, of all expenses incurred in the business, goods sold, goods received, and goods in storage, as follows: Expenses, $103.01; goods sold, $82.51; goods received, $1,002.12; goods on hand in storage, $918.30. Defendant refused to recognize the rescission of the contract, and Suit was brought. The record presented to us upon a review of this case, which is brought to this court by defendant, is voluminous.

It will be proper first to refer briefly to the pleadings. There are three counts to plaintiff’s declaration to which defendant pleaded the general issue. It is urged by defendant that the first count is inconsistent with the second and third counts in that the first is founded upon a breach of contract, and the second and third upon fraud, and that the court erred in not requiring plaintiff to elect upon which theory he would proceed, and cites Haas v. Malto-Grapo Co., 148 Mich. 359 (111 N. W. 1059). We think that the cases are distinguishable, although the contracts involved are identical. In the case at bar the first count is founded upon a rescission of the contract, tender of the goods, and a demand for $1,000 paid by plaintiff, on account of the refusal of defendant, pursuant to the contract, to instruct the plaintiff sufficiently in the details of handling the business, thereby preventing the fulfillment by plaintiff.

In the case cited the suit was brought upon the contract for the breach thereof, thereby affirming the contract. The second and third counts were also founded upon a rescission of the contract on account of false representations as to the quality of the goods. In neither of these counts is there an affirmance of the contract and a recovery sought upon defendant’s promises. The only distinction between the counts is the grounds for the rescission.That there was a rescission of the contract on the part of plaintiff is not disputed.

The court was not in error in refusing to require plaintiff to elect upon which count he would ask for a recovery. Under the first count the court allowed the plaintiff to introduce evidence tending to prove one of the four grounds for rescission declared upon, namely, that defendant had not sufficiently instructed plaintiff as agreed in paragraph 2 of the contract, and refused to do so. The fraudulent representations relied upon, which plaintiff claimed were made orally and in writing, and upon which the court allowed him to go to the jury, were: That the defendant and his agents fraudulently represented to him that he intended to establish a permanent branch office and distributing depot at Des Moines, Iowa; that defendant fraudulently represented that he was the largest exclusive manufacturer of this line of goods in this country, and that he fraudulently represented the goods manufactured by him and shipped to plaintiff were equal in quality to the highest standard of such goods in this country or in Europe; and that experience on the part of plaintiff was unnecessary.

Evidence upon each of these propositions relied upon in his declaration was offered by him to establish his case, and was received by the court. Defendant argues at length that the declaration was not sufficiently broad to warrant the court in permitting much of this evidence to be received, and that error was committed in so doing. All of this evidence was material to the issue, and, in our opinion, the declaration was sufficiently broad to warrant its admission.

The errors assigned by the defendant in his first group of 10, as classified by him, relate to the admission of letters which passed between these parties; the conversation with McGuire, who furnished a copy of the “ booklet,” describing the goods and their quality; and the answer of a question as to whether McGuire invited him to test any samples. These letters were material. They all of them contained inquiries on the part of plaintiff, and answers and representations on the part of defendant, which tended to establish plaintiff’s claim of defendant’s representations as to the quality of his goods, the magnitude of his production, and his statement of intention to establish a permanent branch and distributing depot. These were- express statements, some of them in answer to direct inquiries of plaintiff, which plaintiff claimed were false and by which he was induced to enter into the contract. McGuire represented defendant, and the ‘1 booklet ” he furnished was a copy of the same one defendant had previously sent to plaintiff. The letters also show the history of the transaction leading up to the contract, and that the advertisement which plaintiff claims contained a false statement was the inducement to the correspondence. That no tests were invited by McGuire might be considered as bearing upon, the good faith of representations of quality furnished by him. It would be the only way that the quality of perfumes and toilet goods could be ascertained. It was not error to admit this proof in the case.

Twenty-five assignments of error upon exceptions to the “admission in evidence of letters, documents, evidence of acts of plaintiff, and other testimony relative to transactions between the parties, etc., all subsequent to signing the contract,” are urged as errors prejudicial to defendant. Such of these as are claimed erroneous, and the evidence inadmissible, because of the claimed inconsistencies between the counts in the declaration, need no discussion, for the reason that our construction of the declaration, herein given, has disposed of the objection. His testimony and letters as to the canvassers employed by him, the difficulties in procuring them, and results, were material upon the question of defendant’s having given sufficient instruction to him, and representations as to the necessity of experience before undertaking this work. The letters from the Iowa and Michigan attorneys were admissible to show rescission. The last one was an affirmance of the first and a more explicit tender of goods. A letter notifying defendant that his agent Doud had been there and of the nonarrival of the stock, also relative to insurance on the stock and the answer thereto, were properly admitted. Errors are assigned upon the admission of three exhibits, which were after-wards stricken out. Such action cured the error, if any was committed. Short extracts from them were after-wards allowed only as bearing upon the matter of payment of salary. Two letters or parts of them were read in evidence, one written by plaintiff to defendant, and the other his answer. They related to the understanding of the parties relative to expenses of the business and salary. Each states his view. If error was committed, it was harmless in view of the fact that the court took from the jury later all consideration of the matter of expenses and salary. Ward’s testimony, describing the office as furnished and fitted by defendant, was admissible as bearing upon intention to establish a permanent branch distributing depot; how the goods were packed and displayed also.

The court allowed in evidence a sample case, furnished by defendant, containing 50 samples of products of defendant, which were the basis of tests made by plaintiff of the quality of these goods. Defendant objected because not sufficiently identified. It appears that this was an old sample case and was not locked when received by plaintiff with its contents. The evidence offered relative to its identity was proper to submit to the jury to determine identity.

Under this subdivision the only objection, for which a reason is given, was to an inquiry as to whether or not plaintiff became suspicious as to the statement of defendant about conducting the largest exclusive manufactory of these goods. It was clearly admissible.

Errors are assigned upon evidence admitted relative to other similar cases, which in the briefs are called cob lateral cases. The record shows that there were 30 persons attracted by this advertisement, who entered into contracts indentical with the one plaintiff signed. Pour of these agents were produced as witnesses by plaintiff and allowed to testify. This testimony was offered and admitted to show similar transactions by defendant with other parties as bearing upon the fraudulent intent of defendant. The testimony of these four witnesses shows that that same advertisement was answered; the same preliminary letters and later correspondence was had; the same contract was signed, and $1,000 cash was paid by each after coming to Detroit, and being met in the same way and told the same story, which was relied upon; the circumstances of fitting out the office; giving instructions; securing the prepared written receipt; the sudden departure of the representative; the late arrival of the goods; the old sample case and contents; and the representations made were in each case practically indentical with those in plaintiff’s case. This evidence was admissible upon the ground claimed. Beebe v. Knapp, 28 Mich. 53; Stubly v. Beachboard, 68 Mich. 401 (36 N. W. 192), and cases cited.

It is urged that the court allowed too great latitude in the examination of these witnesses, permitting them to give their understanding of the contract. It was necessary and proper to go into the entire history of each of these cases. The allowance of this evidence objected to, in view of the exact and explicit charge upon this line of proof, was not prejudicial to defendant. The fact that the other contracts were made, as stated by these witnesses, was not disputed, nor was it denied that the letters sent before and after the contracts were executed were sent by defendant.

On the offer by plaintiff “ to show that sales of merchandise, such as that manufactured hy the defendant, could not be made without experience,” the testimony was excluded on the objection of defendant. The defendant .was the next witness called, and on his direct examination, after testifying that he had talked with plaintiff about the matter of the statement in the advertisement, and also testified to his own lack of experience, was asked:

“Q. As a matter of fact, in order to sell your goods, does a man have to have any experience in selling that line before ? ”

Plaintiff objected and called attention to the above ruling of the court upon the same ground in defendant’s favor. The court sustained the objection. This was not erroneous. Defendant was simply required by the court to be consistent. Any other course in the trial of a cause would lead to great confusion and would be disastrous.

On cross-examination of defendant, relative to the form of this contract, he was asked, under objection, where he obtained it, and was permitted to answer. It is claimed that in this the court was in error. From this cross-examination it appears that in the contract the words “it’’and “its” were used in referring to defendant instead of “he” or “his.” He testified that he did not get the contract from a corporation; that he obtained the idea from a concern which recommended it to him. He, however, insisted that he wrote this contract specially for the plaintiff; that in using these words he referred to himself and the business. We think the cross-examination was proper in this case where fraud was charged. It would be a legitimate inference for the jury to draw from this testimony that the purpose of defendant was to misrepresent, in using these words, the character and importance of his concern.

Several errors are assigned upon testimony of plaintiff permitted by the court relative to his reliance upon the representations of defendant (a) that experience was unnecessary; (b) that the quality of goods was the highest ; (c) that he proposed to establish a permanent branch office at Des Moines; (cl) that salary and expenses of the office would be paid monthly when he entered into the contract. The objection made is that the evidence was immaterial, irrelevant, and incompetent, and not within the allegations of the declaration. The court indicated that he would permit the declaration to be amended if necessary. We have already held that the declaration was sufficient in law to sustain a recovery in this case. It follows, therefore, that this evidence, except that relative to salary and expenses, was material to the issue and properly admitted. The court in charging the jury refused to charge as requested by plaintiff as to the representations as to salary and expenses, and refused in his general charge to submit that question to the jury. This eliminated all pf the evidence relative to representations as to salary and expenses from the case.

In our opinion, when plaintiff closed his case, he had presented evidence sufficient to entitle him to have it considered by the jury, and it was not errox to deny defendant’s motion for an instructed verdict.

Many of the assignments of error to the charge are upon the ground that the court did not specifically point out to the jury that he withdrew from their consideration all evidence in the case relative to the alleged fraudulent representations in regard to the payment of salary and expenses. In this case defendant presented to the court no requests to charge, and did not call the attention of the court to what he now claims in these assignments to be erroneous omissions to charge.

This charge of necessity was very long, and the court clearly and distinctly stated to the jury the questions which mjght be considered by it. As already stated, the matter of these representations was not submitted to the jury. The rulings of the court, during the whole of the trial, distinctly show that was the view he took of the question, except in one instance, where one question was allowed to stand, evidently by some oversight, and which, we have said, was cured by the charge. We think the charge was sufficiently explicit upon the question not to mislead the jury. Defendant’s duty to the court was to call its attention by written requests or orally to this matter. The court is not inclined to extend the scope of the statute allowing assignments of error to the charge after the trial.

Errors are assigned to parts of the charge as given.

(1) Relative to the advertisement, the court said that if they could find—

“ That the defendant meant by the use of that language that no experience in the handling of these goods as a general sales agent was necessary, then I say to you that that language may be the subject of a fraudulent representation.”

Turning back to this advertisement, it will be seen that it contains the words “experience unnecessary.” This portion of the charge is claimed to be error because the court failed to define the word “necessary.” This was language adopted by defendant in what plaintiff claims was part of a fraudulent scheme to relieve applicants of $1,000. We have before us in this record the fully developed scheme, and this advertisement was in fact for general sales agents in this defendant’s line. It may now be read and considered in the light of the whole case made by plaintiff. There is no denial that this was the business, and these were the agents sought by defendant in his advertising invitation to applicants having “$1,000 and good references,” to undertake to manage a “branch office and distributing depot for large manufacturer.” The court properly instructed the jury upon this advertisement.

(2) Defendant claims that the court erred in charging that it was not necessary for plaintiff to prove all of these fraudulent representations in order to recover, but that, if they should find any one a fraudulent representation, plaintiff was entitled to recover, and it was prejudicial and misleading. It is not claimed that this does not state the law, but that it does not occupy the proper place in the charge. The objection is without merit.

(3) The court charged the jury at great length upon that feature of the case which related to instructions given to plaintiff by defendant under the contract. In one clause of the contract defendant agreed to instruct plaintiff in the details of handling the business until he was sufficiently instructed, in the estimation of defendant. The court, among other things, said that defendant must deal fairly and justly with plaintiff; that the clause must be construed reasonably; that defendant was called upon under the contract to do what he in, good faith thought was reasonably necessary in instructing plaintiff in the duties of a general sales agent. After saying this, and much more of like effect, he finished by giving the paragraph excepted to:

“ If you shall find, then, from the evidence, that the defendant knew, at the time the plaintiff rescinded the contract, that the plaintiff was not sufficiently instructed in the details of handling the business, then defendant broke his contract,” and this breach was such as authorized the rescission, and, if they so found, plaintiff was entitled to recover.

The record contains much evidence upon this subject tending to show defendant did not sufficiently instruct plaintiff. It appears that plaintiff had no experience in this line of business; that all the instructions he received from defendant were meager; that he wrote defendant nearly every day, and in many of the letters he is asking for instructions and information. The answers were before the jury, as also one in which defendant practically states that plaintiff needs no personal instructions. The court was correct in saying that this pledge in the contract to instruct meant a reasonable and good faith instruction by defendant. The evidence made this a question of fact for the jury;

There was testimony in the case relative to damages sustained by plaintiff by reason of loss of other employment to1 entitle its submission to the jury.

Special questions were submitted to the jury on the part of the plaintiff as follows:

(1) Did plaintiff when he signed the contract rely on the statement made to him by defendant, Cook, that • defendant, Cook, intended to establish a permanent branch office and distributing depot at Des Moines, Iowa P The jury answered, “Yes.”

(3) Did defendant, Cook, on October 10,1905, intend to establish a permanent branch office and distributing depot at Des Moines, Iowa? The jury answered, “No.”

(3) Did defendant, Cook, instruct or' cause plaintiff, Ward, to be instructed in the details of handling the business, until plaintiff, Ward, was sufficiently instructed, in the estimation of defendant, Cook ? The jury answered, “No.”

Defendant argues that they are not questions which control the issue. We disagree with counsel for defendant, and refer to the questions as conclusive upon the proposition, and cite the authority upon which he relies. Cousins v. Railway Co., 96 Mich., at page 389 (56 N¿ W. 14), et seq. These questions do not ask for findings upon facts not vital to the case, but findings necessarily conclusive of plaintiff’s right to recover.

It follows as a necessary conclusion, from the view we take of this case, that the motion for a new trial by defendant was properly denied by the court. The case was submitted to the jury by the court in his charge by a clear and correct statement of the law, as applied to the facts of the case. The jury under this charge found a verdict in favor of plaintiff. This, in our estimation, was amply justified by the evidence.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    GAULT v. GAULT.
    Landlord and Tenant — Equity — Jurisdiction — Adequate Remedy at Law.
    A landlord has an adequate remedy at law where he made an oral lease for three years, which, when reduced to writing, defendants refused to execute, continuing in possession after the first year, and refusing to permit the landlord to make repairs or enter upon the land, or to pay rent until an action was brought for it; and equity has no jurisdiction to construe the lease, or enter a decree of dispossession.
    Appeal from Wayne; Brooke, J.
    Submitted April 9, 1909.
    (Docket No. 30.)
    Decided October 4, 1909.
    Bill by James Gault against Frank Gault and Neta Gault for the possession of certain real estate. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      James H. Pound, for complainant.

      Ari E. Woodruff and Frank W. Atkinson, for defendants.
   Moore, J.

This is a chancery appeal from a decree in favor of complainant. The bill of complaint avers that complainant rented April 1, 1907, to Frank Gault, defendant, his farm at an annual rental of $3 per acre, payable $6.25 per month, and $156, payable at the year’s end, and that the use of personal property owned by him was permitted the defendant; that defendant went into possession of the farm, and has remained there ever since. The bill further avers that no written lease was ever executed between the parties to this cause, though there was some talk looking to the execution of a lease. It is further averred that complainant turned over to defendants a quantity of personal property consisting of live stock; that complainant was also a creditor of defendant, and also surety on different obligations; that complainant had indorsed a note for Frank Gault in the sum of $55, which at the time of the filing of the bill of complaint was unpaid, and that complainant was an indorser on a note for $105 given to the Flat Rock Savings Bank. It further avers that said Frank Gault is pecuniarily irresponsible; that he has not paid the rent nor farmed the farm in a manner comporting with good husbandry; that he has allowed the weeds to grow, and the fences and buildings to become out of repair, and the value of the farm to become greatly depreciated by reason thereof; that defendant threatens to sow fall crops, such as wheat, and the like fall grains, on said farm this season, and insists on his right to harvest the same during the summer of 1908; and that defendant has announced his purpose of holding said farm for the period of three years from April 1, 1907, and has threatened complainant with personal violence if he attempts to come upon said farm to make any necessary repairs on said farm, and to prevent waste. The bill also-avers that Frank Gault has disposed by bill of sale of all his property to his wife, Neta Gaúlt, to defraud complainant, as he believes, of his rent, and to render him, complainant, liable to pay said promissory notes, on which complainant is indorser, and to lose those due him; and that said transfer is a fraud upon complainant’s rights, and is without any consideration whatever.

There is a prayer for specific relief not very clearly stated, and a general prayer for relief. The answer admits some of the averments of the bill and denies others. The defendant admits that defendants intend to sow fall wheat on the land described in said bill of complaint, and claims the right to harvest the crops, and admits that the said Frank Gault intends to hold said farm for three years from April 1, 1907. Then follows a prayer in the nature of a cross-bill, which clearly shows that an agreement was made which was to be reduced to writing, and that, acting upon said agreement, defendants entered upon the premises. The prayer was for affirmative relief. Complainant answered the cross-bill. After complainant had put in his proof, the following occurred in open court:

“Complainant thereupon rested. Counsel for defendant thereupon asked leave of the court to withdraw their cross-bill for the reason that on account of the title to the property being in complainant and his wife that decree in this cause would be of no value to them. Leave was granted and the cross-bill withdrawn. Counsel for defendants thereupon moved the court to dismiss the bill of complaint for the reason that all of the relief prayed for in the bill of complaint had been given complainant. Counsel for complainant thereupon moved the court to construe the lease under the prayer for general relief, to which counsel for defendants objected. The court thereupon said: ‘ I will tell you what I will do, Mr. Atkinson. I will pass upon this question, and you may have — although you have rested you may have permission now to introduce such testimony regarding the tenancy as you desire; I will pass upon it. I will construe the prayer of the bill generally, the general prayer of the bill to be sufficiently broad to entitle the complainant to this relief, in spite of the fact that you have withdrawn your cross-bill, in which you ask for certain relief yourself.’

“Mr. Atkinson: ‘I think, your honor, under the circumstances, we will leave the order withdrawing the cross-bill and take the case up and have it passed upon.’

“Counsel for defendants not desiring to put in any testimony, the court said: ‘ Under the testimony you may take a decree to the effect simply that the tenancy by which the defendant holds here is as a tenant from year to year and will expire on the 1st of April, 1909.”

The decree went farther than the above suggestion, and granted affirmative relief.

The solicitors for defendants present the following propositions as involved:

“ (1) To what extent is the power of a court of equity to grant relief not specifically prayed for limited by the nature of the pleadings and the relief specifically prayed for, when there is a prayer for general relief ?

“(2) When all the relief specifically prayed for has been granted, can the court grant relief for which there is an adequate remedy at law, for the purpose of avoiding litigation ?

“ (3) If in this case the court under the pleadings had power to construe the lease, is the construction made by the decree the proper one ?”

Each of these propositions is argued. On the examination of the complainant the following testimony was given by him:

“I did not get any rent until I sued for it. * * * We served them notice to pay the rent, and proceeded before the circuit court commissioner. We had a hearing in July, 1908. They paid me $243, which was rent for one year and two months. They also paid the July, 1908, rent.”

We think the record discloses a case where the complainant has so complete and adequate remedy at law that the aid of equity ought not to be invoked.

The decree is reversed. The bill of complaint is dismissed, with costs, but without prejudice.

Blair, C. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    NELSON v. PITTSBURG COAL DOCK CO.
    Master and Servant — Defects in Appliances and Machinery —Inspection.
    In an action for personal injuries resulting in the death of plaintiff’s intestate, evidence that a defective bolt in a hoisting apparatus, which broke and permitted a coal bucket to fall and cause the injuries, ipight have been detected by an ordinary inspection, raises an issue of fact as to the negligence of defendant.
    Error to Delta; Stone, J.
    Submitted April 16, 1909.
    (Docket No. 75.)
    Decided October 4, 1909.

      Case by Swan G. Nelson, administrator of the estate of Louis Oscar Nelson, deceased, against the Pittsburg Coal Dock Company for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Albín W. Norblad (Newton O. Spencer, of counsel), for appellant.

      G. B. Wmpson {E. G. Eastman, of counsel), for appellee.
   Montgomery, J.

This action is brought to recover damages for personal injuries resulting in the death of plaintiff’s intestate, which injuries were sustained while in defendant’s employ on their coal docks at Gladstone, Mich. The coal dock was used for the purpose of unloading coal from boats placed at the side of the dock onto the dock. On the top of the trestle work built over the dock proper, and over the platform, were placed a number of coal-hoisting derricks. The boats were moored alongside the dock, after which the hoisting derricks would be moved on top of the dock in such a position that the booms of the derricks could be placed immediately over the hatchways of the boats. Coal buckets would then be lowered from the derricks into the hold of the boats through the hatchways, where they would be filled with coal by men stationed there. The men stationed in the hold of the boat were in the employ of the defendant, and among their number was plaintiff’s intestate, who worked as a coal heaver or shoveler. In the hold of the vessel the men were provided with two buckets, so that, when one was full and being hoisted and emptied of its contents, the other was being filled.

The hoisting apparatus can best be understood by the following diagram:

A hoister was stationed in the place where the hoisting drum is designated as being placed. The dotted line running up from the hoisting drum and continuing over the pulley or sheave, underneath the bolt which broke, and from there continuing down around the carriage and pulley which supported the coal bucket, was the hoisting line, which raised the bucket from the hold of the boat up to the dumper or tripping apparatus. This unlatching would instantly cause the bucket to trip and empty the coal into the hopper or pocket underneath it. The carriage line was attached to the front, or, according to the diagram, the right end of the carriage, and was simply for the purpose of allowing the carriage to run out a certain distance on the boom or runway. The spot designated “bumper” above the word “ carriage ” was a stop at the top end of the boom. While the deceased was at work in the hold of the vessel, the eye-bolt broke, the bucket descended, and caused the injuries which resulted in his death.

The questions of fact involved on the trial were whether the breaking of this eye-bolt was due to a defect in the bolt itself, or due to improper management on the part of the hoister; it being the defendant’s claim that the evidence, fairly construed, shows conclusively that the carriage must have been allowed to proceed with such force against the bumper as to place an extraordinary strain upon the bolt, and that this was the fault of a fellow-servant.

The plaintiff’s claim, on the other hand, is that there was testimony which shows that the eye-bolt broke before the bumper was reached by the carriage. The plaintiff contends that there was testimony tending to show that this eye-bolt was defective, and that it had such defects as an ordinary inspection would disclose.

The circuit judge was of the opinion that there was no evidence to show a want of proper inspection on the part of the defendant’s servants charged with that duty, and that from an inspection of the bolt itself it could be determined that the break was a fresh one, and that there was no defect in it which could have been discovered by inspection.

The testimony offered on the part of the plaintiff to show a want of proper inspection, and a condition of the eye-bolt which would have made an inspection of value, was that of Adam Henry, L. J. Anderson, A. D. Linn, and Carl Nyberg. Mr. Henry is engaged in a business which includes blacksmithing, although he himself is not now working at the trade, and it appeared never did except occasionally. He, however, appears to have qualified himself, to the satisfaction of the circuit judge, to speak, and he testified that, in his opinion, upon an examination of the eye-bolt, at the point where it broke, there was a defect before the breaking which could have been discovered upon an examination; that, when the iron was welded, there was a hole or a flaw, and that whoever fixed it tried to hide it by pounding; that that was the way it looked to him; that the weld was poor workmanship; that the bolt had been overheated, and that it had been broken and rewelded; that he based this opinion upon the fact that it could not have lapped over in the way it did when it was welded in the first place. He was unable to state what the tensile strength of the bolt was.

Mr. Anderson, called as an expert by the plaintiff, testified, in answer to the question as to whether the weld was so open that it would have disclosed that fact by tapping, that it was not united, and would have been noticed if it had been tapped. In answer to the question, Could you have seen it also ? ” he replied:

“ Well, that I couldn’t say, because on account of the strain on the bolt it might have made this a little different, and I couldn’t say.”

When pressed: “In your opinion, could it have been seen ? ” he replied:

“You might have noticed some defects, to some extent.

“Q. Would there have been any opening in the bolt at the place where it broke ?

“A. Well, it looks that way. Of course, you can’t tell exactly, now. I wouldn’t say that you would certainly tell. You could certainly tell if you tapped it.”

Mr. Linn testified in answer to the question: .

“ Can you tell by the inspection of a piece of iron that had been broken whether there was a visible defect in it before the break ?

“A. At times you can; yes. * * *

“Q. What is your judgment as to whether there was a visible defect ?

“A. Yes; I think there was. I am positive there was, because it is partly burned in making. * * * The iron was spoiled by the man who made it..

“Q. Could it be ascertained by an examination ?

“A. Yes; it shows, shows it right here. It wasn’t welded hardly half.

“Q. What test would you apply to ascertain whether there had been a proper weld or not ?

“A. That I couldn’t state; but, if I was making it, I could see when the iron is welded. It shows all the defects that are in it after it is cooled off. If hammered together, it is hard for a man to see if it is solid or not. If it is hammered together and then smoothed off, like, then it is hard to say. * * *

“Q. Do you know of any known way or method of testing such a piece of iron after it is welded, to ascertain whether it is sound or not after it is finished ?

“A. The only way would be to hammer on it.

“Q. Would that disclose whether it was ?

“A. It would; yes.

“Q. Is that a usual and customary method ?

(‘A. No; it is not by the general blacksmith, because a man who is a workman he generally makes a good job of it, if he can.

“Q. Suppose an eye-bolt was brought to you for examination. What would be your method of testing it ?

“A. If it was brought to me to find out, I would bend it, and bend it when it was cold, which would show you.

“Q. Was there such a defect in that piece of iron before as would show plain and open, obvious, visible ?

“A. Yes.”

Carl Nyberg, a blacksmith, who had worked in different machine shops and general blacksmith shops and had made eye-bolts and welded- iron, testified that from an examination of the bolt he could see a hole in the eye-bolt, and was sure he could have seen it before it broke.

The testimony offered on behalf of the defendant tended to show that the eye-bolt in question was manufactured by a reputable firm of whom the apparatus was bought, and that it was inspected by the employés of the defendant within a few weeks before the accident, and that it was then placed in the timber, and that daily such inspection as could be made without taking it out of the timber was given it. There was testimony, also, on the part of the defendant, tending to show that an inspection of such a bolt by the hammer test was not adopted by those who use them ordinarily.

While the testimony showing that this bolt, when last put in place, had a defect which could have been discovered by a visual inspection was meager, we are constrained to hold that there was enough to carry the case to the jury, and that an examination of the eye-bolt does not conclusively establish that plaintiff’s witnesses are mistaken.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


author: Blair, C. J. Brooke, J.

text:
    BROUSEAU v. KELLOGG SWITCHBOARD & SUPPLY CO.

    1. Master and Servant — Assumption of Risk — Implied Contract.
    The principle of assumed risk by the servant rests upon the ground that it is an implied contract by the employé to assume the risk of all dangers obviously incident to his employment.

      2. Same — Risks not Assumed — Promise to Remedy Neglect.
    In Michigan a promise by the employer to remedy a danger, of which his servant complains, relieves the latter of obvious risks in both simple and complicated machinery, tools, and implements.
    3. Same — Promise to Repair or Remedy Defect — Sufficiency.
    By complaining to his employer that a pair of tongs used by the plaintiff in loading poles on a car were so dull that the poles could not be safely held, and receiving a reply that there was no time to have them sharpened then, and that plaintiff should use them until they could be sharpened or replaced, a question of fact for the jury was raised as to the sufficiency of the assurance to relieve the servant of the assumption of risk.
    4. Same — Contributory Negligence.
    The fact that plaintiff continued to use the tongs although the poles continued to slip after the complaint was made, does not show contributory negligence per se, where it was infer-able that he believed he could escape injury, and where the tongs were subsequently used by other servants without injury. Brooke, Grant, and MoAlvay, JJ., dissenting.
    Error to Delta; Stone, J.
    Submitted April 16, 1909.
    (Docket No. 73.)
    Decided October 4, 1909.
    Case by Walter Brouseau against the Kellogg Switchboard & Supply Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Albín W. Norblad (Newton O. Spencer, of counsel), for appellant.

      I. C. Jennings (E. G. Eastman, of counsel), for appellee.

       Rehearing denied December 10, 1909.

       As to rights of servant continuing work on master’s promise to remove a specific cause of danger, see note to Illinois Steel Co. v. Mann (Ill.), 40 L. R. A. 781.

   Blair, C. J.

Plaintiff brought this action to recover damages for injuries received by him while assisting in the loading of poles upon a car in defendant’s assembling yard. The poles were loaded onto the cars by means of a derrick.

There is a boom hanging over the center of the car and a cable running along it. At the end of the boom is fastened a pulley, in which the cable passed, hanging down from the side of the car, and the end is fastened to a pair of tongs; the other end of the cable being fastened to the whiffletree of the horses. It was my duty to take the tongs and hook them to the poles, and I would give the word to the teamster to go ahead and the pole would go to the top of the car, which was a flat car. The pole would go up to 12 feet. They were 8 inches at the top end and 15 to 18 at the butt end. I would fasten the tongs as near the center as I could judge, to balance it.”

On the afternoon of February 29, 1908, a pole which plaintiff had hooked the tongs onto fell while being raised, and caused the injury complained of. The negligence charged is that the defendant, disregarding its duty to furnish a suitable and proper pair of tongs, furnished him with tongs that were unsuited to the work, in that the points were dull and would not hook into and properly hold the poles; that plaintiff notified defendant’s superintendent of the defective condition of the tongs, and continued his work upon defendant’s promise to repair them or furnish a new pair.

The court directed a verdict for defendant, on the ground that plaintiff assumed the risk of using so simple a tool as the tongs, and was also guilty of contributory negligence.

• “ It is a simple contrivance. I do not think there was any duty with so simple a contrivance as this on the master to inspect them to see that their condition was proper. And it does not appear from the testimony in this case— which I have scrutinized pretty closely — that there was any promise to repair, or anything equivalent to a promise to repair. It is rather the opposite of that. The master didn’t say he would repair. The plaintiff claims he said, ‘ No,’ they didn’t have time to repair it, to go ahead and use this tool until they could get it sharpened, or get another pair. I do not believe this is equivalent to a promise to repair which would naturally have misled the plaintiff. But I think when he continued to use that tool, knowing its condition, so apparent and simple as it was, that he was guilty of contributory negligence, and that he also assumed the risk.”

Plaintiff brings the record to this court for review upon writ of error. He testified, among other things, as follows :

“In the afternoon we started loading smaller poles. We did not use the same pair of tongs that we used in the morning. I went and got them on the gondola car on the northwestern spur, where we had been loading the day before. * * * I had used them about a half an hour on the morning of the 28th, loading shingle bolts. I had some trouble with the tongs at that time. They slipped from the shingle bolts. They were dull. At noon on the 29th I had a talk with Mr. Enfield regarding these tongs. Well, when I went and got the tongs, I was sent for the tongs, and I brought them back, and I told him these t6ngs were as dull as the ones we had been decking ties with when we started to load shingle bolts on the morning of the 28th. * * * He told me they were not any duller. They were no worse. I asked him if he could have them sharpened. He says, ‘No; we haven’t any time.’ * * * Mr. Enfield replied to me that he didn’t have time to sharpen the tongs then. He told me to go ahead and use them until he could have them sharpened, or get another pair. That was about 1 o’clock, and I worked with the tongs until 3 o’clock, when I was hurt. * * * Several of them had slipped owing to the tongs being dull; and, when sending up a pole, I generally watched it until the man on the car got his hand on it. Then I would turn and get another one ready to send up. I did so in this case, and turned around to get another pole to send up, and, without any warning at all, a pole came down and hit me on the ankle, and knocked me down. It struck me on the left foot about 3 o’clock in the afternoon. I did not see the pole coming. I was getting another pole to send up. I did not know where the pole was at the time it fell. It was in the air. It was part of my duty to get another pole ready. The pole was in Ole Lund’s hand on the top of the car at the time it slipped. * * * The top of the poles that were being loaded was about nine feet from the ground. There was about three feet space in the immediate vicinity where I was working that I could move in. The rest of the space was occupied by poles and the car. * * * The tongs were dull, because the timber slipped with them. I had seen it slip before. I could see that they were dull. I had had experience enough loading poles to tell whether they were dull or whether they were sharp. * * * I had seen the same shingle bolt slip four or five times from these tongs. It would slip out of the tongs. The shingle bolts were all the way from eight to about sixteen inches. About four or five poles had slipped out of the tongs before the one that struck me. These had slipped out that afternoon between 1 and 3 o’clock. We would have to have the horse back up and hitch on again, put the tongs on again. The same pole slipped more than once. One pole slipped twice, as I remember. * * * It was necessary for me to stand under the pole when I got another one ready, after the one had gone up. There was three feet of space that I could move in. It was necessary for me to stand under the pole, because there wasn’t room for me to get away. I couldn’t back up. I could go towards the end of the car. I could have gone toward either end of the car. * * * I could not have performed my duty in any other way than I did without delaying it. If I had stepped to the south, I would still be under the pole, unless I crawled under the car. I could not have gotten another pole ready and performed my duty, if I had stepped to the side as Mr. Eastman suggested. I would have to keep the whole crew waiting.”

The principle of assumed risk rests upon the ground that it is an implied contract between the employer and the employé that the employé shall assume the risk of all dangers obviously incident to his employment, and is independent of the negligence of the employer or the contributory negligence of the employé. Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); Sipes v. Starch Co., 137 Mich. 258 (100 N. W. 447).

If the employé, after notifying the employer of a dangerous defect, is induced to continue his work by the employer’s promise to remove the defect, his implied contract to assume the risk of such defect is suspended for a reasonable time, and the employer impliedly contracts to assume the risk of injury therefrom himself. Regarding the employer’s promise to repair as a temporary assumption of the risk on his part, it appears to us illogical to hold that the employe is no longer charged with the obvious risks of a complicated machine, but still assumes the obvious risks of a simple implement. We deem it more in accordance with the principle upon which the doctrine of assumed risk rests in this State to hold that it applies alike to simple tools and complicated machinery. See 1 Labatt on Master & Servant, pp. 1223, 1224; Louisville Hotel Co. v. Kaltenbrun, 26 Ky. Law Rep. 208, 669 (80 S. W. 1163, 82 S. W. 378); Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102); Lyttle v. Railway Co., 84 Mich. 289 (47 N. W. 571); Brown v. Lennane, 155 Mich. 686 (118 N. W. 581).

We do not think it should be held, as a matter of law, that the directions of the master’s representative did not amount to a promise to repair, upon which the plaintiff had a right to rely. Neither can it be affirmed, as a matter of law, that plaintiff was guilty of contributory negligence without entirely depriving him of the protection afforded by the master’s temporary assumption of the risk. It is clear that, if the mere use of the dull tongs under the surrounding circumstances of peril constituted contributory negligence, the rule absolving plaintiff from the assumption of the risk which his employer had agreed to assume for the time being would be wholly valueless, since the rule only applies where the danger is not so imminent that an ordinarily prudent man would not assume the risk itself. Mann v. Railway Co., 124 Mich. 641 (83 N. W. 596).

If plaintiff was guilty of contributory negligence, therefore, it was because he went on using the dull tongs which the employer requested him to continue using. According to his testimony, he used them with proper care, in reliance upon the orders and promises of his employer.

The plaintiff, “it may reasonably be assumed, would to some extent have his fears allayed by the commands of a master, whose duty it would be not to send him into danger, and who might therefore be supposed to know, when he gave the command, that the dangers were not such or so great as the servant had apprehended. * * * Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may and should where practicable come to an understanding between themselves regarding matters of this nature.” Cooley on Torts, pp. 556, 559, quoted with approval in Roux v. Lumber Co., supra.

It is difficult to believe that any employer would induce an employé to continue a service which he believed would probably result in his serious injury. It is obvious that the plaintiff believed that, notwithstanding the apparent danger, he could escape injury in. continuing his work. He had used the tongs without injurious results from their slipping up to the time of his injury.

Defendant’s witness Lund testified:

These tongs were used afterwards in the same kind of business. We finished the car after he got hurt. We did not stop to sharpen them. We kept right on going. * * * After Brouseau was hurt, I think it was Mr. Enfield himself who hooked the tongs into the poles, if I am not mistaken.”

That no poles slipped afterwards. Mr. Enfield, the superintendent, testified:

“ I observed the other men when they were loading the car to see how they were doing their work. I didn’t see any poles slip on the tongs while Brouseau was at work there. After Brouseau was hurt, they may have been used off and on. We didn’t load many poles. Maybe a car a month or so; perhaps not that. I mean a car load a month, about, since he was hurt. These tongs have worked in the meantime satisfactorily. There has not been any slipping of poles or accident from the use of these tongs that I know of. * * * Since the accident I have not been looking at every pole that went up, but in a general way I have, and I would say that there has been no slipping through the tongs. These tongs have never been sharpened since we have had them, that I know of.”

In the light of the testimony as to the results attending the use of the tongs before and after the plaintiff’s injuries, I do not think that it should be determined, as a matter of law, that the danger was so imminent and great that it was sheer recklessness on the part of the plaintiff to obey the directions of his employer, relying upon his assurances.

The judgment is reversed, and a new trial granted.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred with Blair, C. J.

Brooke, J.

(dissenting). A sufficient statement of the facts in the case, and of the circumstances surrounding the plaintiff at the time of his injury, is found in the opinion of my Brother Blair.

The plaintiff’s testimony shows that the tongs were of the greatest simplicity, and that they were obviously dull; that he had used them the day before he was hurt loading shingle bolts, when they frequently slipped; that, after his protest to the master, he continued to use them from 1 o’clock until 3 o’clock, when he was injured. During this interval four or five poles slipped from the tongs, one of them slipping out twice. Under these circumstances, we are asked to say that it becomes a question of fact for the determination of the jury whether or not the plaintiff was guilty of contributory negligence in continuing to use the defective appliance. I believe that the plaintiff should be held to be guilty of contributory negligence, as a matter . of law. He was obliged to stand in a narrow space between the car and the pile of poles he was loading, with scant opportunity to avoid a falling pole by stepping aside. Yet, by great good fortune, he had escaped four or five such during the two hours preceding the accident. He continued to use the dull tongs, and was injured. Conceding that the promise to repair was made by the master and relied upon by the plaintiff, it is not true that every promise to repair by the master relieves the servant from the assumption of risk or from the effects of his own negligence.

In Hough v. Railway Co., 100 U. S. 213, the court laid down the rule, in effect, as follows:

“ If the nature of the defect is not such as to impress a prudent man with a feeling or consciousness of imminent danger, then the master is liable.”

In Mann v. Railway Co., 124 Mich. 641 (83 N. W. 596), this court said:

“Was the condition which presented itself to plaintiff so obviously a dangerous one that an ordinarily prudent man would not, even in reliance on the promise of defendant to repair, attempt what he attempted ? * * * Nor do we think we should hold, as matter of law, that the course of the plaintiff was so reckless as to preclude him from asserting a reliance on the promise to repair. The new machine had not been set in motion by escaping steam prior to the time of the accident, and the danger was not so obvious that we can characterize the plaintiff’s attempt to tighten the nut as reckless.”

Again, in Wheaton v. Coal Co., 151 Mich. 100 (114 N. W. 853), Mr. Justice Montgomery, in discussing a pair of ice tongs (similar in construction to those in the case at bar), said:

“ In fact, there is nothing about a pair of ice tongs that would seem to require expert testimony to instruct either acourtor a jury. Both appeared to be equally sharpattbe points. The Holland tongs curved a little less sharply than the Wheaton tongs, so-called, and it resulted that they would not grasp with equal efficiency a large cake of ice. In other words, the capacity of these tongs to grasp a cake of ice was limited. But it was a perfectly obvious limitation. Any one using such a tool would be able to know at a glance whether a sufficient hold had been secured upon the ice to support its weight, and any insistence on making use of the tongs without having a sufficient hold on the ice to support the weight was plainly negligence.”

So, in the case at bar, the fact that the tongs would not grasp the poles sufficiently to sustain their weight was a perfectly obvious one, and one, too, which had received many illustrations for the plaintiff’s benefit before his injury. His continued insistence in making use of them in the face of his experience was an act of the plainest negligence. See, also, Illinois Steel Co. v. Mann, 170 Ill. 200 (48 N. E. 417, 40 L. R. A. 781, 62 Am. St. Rep. 370), and notes; Gunning System v. Lapointe, 212 Ill. 274 (72 N. E. 393).

The judgment should be affirmed.

Grant andMcALVAV, JJ., concurred with Brooke, J.