text:
    PEOPLE v. HANAW.
    1. Criminal Law — Recognizance—Misnomer of Offense.
    An information charged the felonious breaking and entering in the night-time of a shop not adjoining to or occupied with a dwelling house, with intent to commit the crime of larceny. The respondent entered into a recognizance before the court in which the information was pending, conditioned for his appearance to “answer to an information on file against him for burglary.” Held, that the recognizance sufficiently iden-' tided the offense charged, and that an action thereon was maintainable under 2 How. Stat. § 9485, providing that no action brought upon any recognizance shall be barred or defeated by reason of any defect in the form of the recognizance, if it sufficiently appear therefrom at what court the party was bound to appear, and that the court before whom it was taken was authorized by law to take it.
    S. Same — Continuance—Discharge of Sureties.
    The sureties on a recognizance requiring the principal “ to appear at the next term of the court, and not depart therefrom without leave until discharged,” are not discharged by a continuance of the case to the following term, granted upon the application of the principal at the term at which he was bound to appear.
    3. Same — Judgment—Interest.
    Under 2 How. Stat. § 8457, providing that the judgment upon a forfeited recognizance shall be for the amount of the penalty thereof, interest from the date of forfeiture cannot be included in the judgment.
    Error to Lenawee; Lane, J.
    Submitted June 20, 1895.
    Decided September 26, 1895.

      Assumpsit by the people against Joseph Hanaw and John Kerr on a recognizance. From a judgment for plaintiff, defendants bring error.
    Modified and affirmed.

      Smith & Ware, for appellants.

      Fred A. Maynard, Attorney General, and John E. Bird, Prosecuting Attorney, for the people.
   Montgomery, J.

This was an action on a recognizance entered into in open court in a. proceeding pending against one Joseph Gregory upon an information which charged against Gregory the offense of feloniously breaking and entering, in the night-time, a shop not adjoining to or occupied with a dwelling house, with intent to commit larceny, and, in a second count of the information, the offense of larceny. The condition of the recognizance was as follows:

“If the said Joseph Gregory doth well and truly appear at the next term of this court, and answer to an information on file against him for burglary, and not depart from said court without leave until discharged by due course of law, then the said recognizance to be null and void.”

1. It is contended that the misnomer of the offense rendered the recognizance void. Section 9485, 2 How Stat., provides that—

“No action brought upon any recognizance * * * shall be barred or defeated * * * by reason of any defect in the form of the recognizance, if it sufficiently appear from the tenor thereof at what court the party * * * was bound to appear, and that the court * * * before whom it was taken was authorized by law to require and take such recognizance.”

While this provision does not dispense with the necessity of embodying the substance of the undertaking in the recognizance, it should be construed to cure errors in form which do not affect the rights of the principal or surety. The recognizance must, it is true, identify the proceeding; and, as the offense stated in the recognizance is simply designated as “burglary,” which the offense charged in the information technically was not, if the recognizance had been taken out of court, and conditioned for an appearance to 'answer to an information to be thereafter filed, it may have been an insufficient designation of the offense. In Cole v. People, 37 Mich. 548, on a prosecution for a like offense as that, charged in the information in this case, the record of the sentence designated the offense as “burglary.” The court said:

“The offense is not burglary, but is a statutory offense quite different from that in some particulars. Burglary is the felonious breaking and entering of a dwelling house in the night-time. This offense is the felonious breaking and entering in the night-time of a store not adjoining to or occupied with a dwelling house. But this misnomer in the order for judgment is of no importance. It could not affect the rights of the plaintiff in error, and it would be corrected by the record itself, which shows what the offense really was.”

In the present case a term was employed which, while not the legal, technical name for the offense charged, was a term very commonly employed to designate the Offense. But what is of more importance is that the recognizance was taken before the same court in which the information was then pending, and that information is referred to in the condition of the recognizance. We think the recognizance, in view of this fact, sufficiently identified the offense which the accused was to answer. See Gildersleeve v. People, 10 Barb. 35; People v. Rutan, 3 Mich. 50; Daniels v. People, 6 Mich. 386.

2. At the term of the court at which Gregory was bound to appear, a continuance was granted to the next term, on Iris application. It is contended that this operated to discharge the sureties. By the great weight of authority, this condition is construed to require the appearance from day to day, or from term to term, until discharged. 2 Am. & Eng. Enc. Law, 32; Gallagher v. People, 91 Ill. 590; State v. Tieman, 39 Iowa, 474; Gentry v. State, 22 Ark. 544; People v. Hainer, 1 Denio, 454; State v. Breen, (S. D.) 62 N. W. Rep. 135; People v. Gordon, 39 Mich. 261; Crawford v. Vinton, 102 Mich. 83.

3. We think error was committed in entering judgment for interest on the amount of the recognizance from the date of forfeiture. Section 8457, 2 How. Stat., provides that the judgment shall be for the amount of the penalty of the recognizance. See, also, Fraser v. Little, 13 Mich. 195.

The judgment will be modified, and a judgment entered in this court for the penalty of the bond, $600, and costs of the court below.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PEOPLE v. CONLEY.
    1. Criminal Law — Assault with Intent to Do Great Bodily Harm — Evidence.
    In a prosecution for an assault with intent to do great bodily harm less than the crime of murder, testimony tending to show that the respondent entertained an ill will towards the complaining witness, that on the occasion in question he struck her upon the head with a club, felling her to the ground, at the same time threatening to kill her, and that the blow produced a contused and lacerated wound, is sufficient to sustain a conviction of the offense charged.
    2. Same — Conduct of Prosecuting Attorney — Harmless Error.
    Upon a trial for an assault, the respondent, on cross-examination, admitted having been convicted of a prior assault upon the complaining witness, and the prosecuting attorney thereupon propounded further questions regarding the details of such assault. Objections interposed to such questions were promptly sustained by the court, who also instructed the jury that the fact of such conviction was admissible solely as bearing upon the credibility of the witness. Held, that the respondent was not prejudiced.
    3. Criminal Law — Improper Remarks of, Prosecutor.
    A conviction will not be reversed because of alleged improper remarks of the prosecuting attorney unless he so clearly departed from the evidence and the line of legitimate argument that any reasonable person would conclude that the jury were prejudiced thereby.

      Exceptions before judgment from- Tuscola; Beach, J.
    Submitted June 20,1 895.
    Decided September 26, 1895.
    William R. Conley was convicted of an assault with intent to do great bodily harm less than the crime of murder.
    Conviction affirmed.

      J. E. Kinnane, for appellant.

      Fred A. Maynard, Attorney General, and T. W. Atwoood, Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted of an assault upon oné Anna Bemiss with intent to d'o great bodily harm less than the crime of murder.

1. It is insisted that there was no evidence of any intent to do the great bodily harm contemplated by the statute, and that the court should, as requested, have directed a verdict of not guilty. It is argued that the case is ruled by People v. Ross, 66 Mich. 96; People v. Lennon, 71 Mich. 298; and People v. Pearl, 76 Mich. 208.

Mrs. Bemiss and respondent owned adjoining land. Bitter feeling had for a long time existed between them, owing to a dispute as to their rights in the land. He had assaulted her once before, for which he was arrested, -and pleaded guilty. A fire was burning upon respondent’s land, and in close proximity to the division fence. Mrs. Bemiss, her daughter, and hired man, Frank Lawrence, went upon the respondent’s liand, to put the fire out and save the fence. Respondent oame through the woods with a stick about six feet long, and at once ordered them off his land. Lawrence refused to go, and a fight ensued between him and respondent, in which sticks, or “clubs,” as the witnesses called them, were freely used. Respondent testified that he did not intentionally strike her; that she told Lawrence to stand his ground; that she struck him while he was fighting with Lawrence; and that she was hit by a blow intended for Lawrence. Mrs. Bemiss testified as follows:

“I heard Frank Lawrence say, ‘Here comes the old man/ and I didn’t have a chance to get away if I wanted to. I just went to look up, and he went for Frank Lawrence, and struck him over the head, and then he turned around and strack me oh the head, and I fell. After a while I got up. I went over and hollered to Frank Lawrence, and asked him if he would not throw me his handkerchief; my head was cut. I hollered for the little girl to go for the doctor and the, sheriff as quick as she could. I expected I would be dead before she got back. I said that to her. He said: ‘Yes, damn you. I will kill you before you leave here;’ and he struck me again, and I fell onto the ground, and I don’t remember any more. I didn’t say anything until I put my hand up and said, ‘Old man, I guess you did me up this time.’ He said, ‘Yes, damn you; I will finish you before you leave here.’ ”

The physician testified that he found a contused and lacerated wound on the back of her head, with blood oozing through it in many places; that there were one or two cuts through the scalp; that it must have been a hard blow; that, if the wound was inflicted by one blow, a large club must have been used, but if it was inflicted by more than one blow a small club would have produced the injury.

In the presence of this testimony, the question of intent was properly left to the jury.

2. The respondent was a witness in his own behalf, and on cross-examination, for the purpose of discrediting him, he was asked if he had not been convicted of assault and battery upon Mrs. Bemiss. This he at first denied. He admitted his arrest. Being asked if he did not plead guilty, he replied: “I did not. I told the justice how it was, and he fined me $20.” The prosecuting attorney then proceeded to ask other questions in regard to the details of that assault, but the court promptly sustained the objections to the questions, holding that the witness had admitted his conviction, and that the details were inadmissible. The court, in both this ruling and the charge, instructed the jury that the sole use for which such conviction was admitted was to affect his credibility as a witness. If it was improper to ask the questions, it cannot be assumed that this, in view of the ruling of the court, had a prejudicial effect upon the jury.

3. It is next insisted that the conviction should be reversed because of alleged improper remarks made by the prosecuting attorney in his argument to the jury. Some of these remarks were promptly condemned by the presiding judge as improper argument. We find nothing improper in the other remarks complained of, and do not consider them of sufficient importance to detail them. Ordinarily these matters must be left to the sound discretion of the trial judge, who hears the entire argument of counsel, and can better judge whether the language is justified by the arguments of opposing counsel. Courts of last resort will interfere by granting a new trial only in a case where the prosecuting attorney has so clearly departed from the evidence and the line of legitimate argument that any reasonable person will conclude that the jury were prejudiced by it. This is usually prevented by the prompt ruling of the circuit judge.

4. Upon a motion for a new trial it was insisted that the prosecuting attorney was disqualified, because he had been an attorney for Mrs. Bemiss in suits about the land where the assault was committed. The disqualifying statute reads as follows:

“No prosecuting attorney shall * * * be concerned as attorney or counsel for either party, other than for the State or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced or prosecuted shall depend; * * * nor shall any attorney be permitted to prosecute, or aid in prosecuting, any person for an alleged criminal offense, where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts against such person, directly or indirectly.” 3 How. Stat. § 557.

We find nothing in the record to show that this question was raised upon the trial. Testimony upon this point was taken upon the hearing of the motion, and showed that the prosecuting attorney was not the attorney for Mrs. Bemiss in any suit depending upon the same state of facts as are involved in the criminal suit.

The conviction is affirmed, and the court below directed to proceed to sentence.

The other Justices concurred.


author: Long, J.

text:
    PEOPLE v. SAWYER.
    1. Peddlers — Who Are.
    One who goes from house to house with rugs, mating contracts for leasing them for a specified sum, to be paid in installments, the title to pass when the whole amount of the - rental shall have been paid, is a “peddler,” within the meaning of an ordinance requiring peddlers to procure a license.
    2. Municipal Corporations — Ordinances—Licensing Peddlers— Discrimination.
    Under a city charter authorizing the common council to license and regulate hawkers and peddlers, an ordinance requiring peddlers to take out a license may exempt from its operation mechanics and farmers engaged in selling their own products.
    8. Same — Constitutional Law — Interstate Commerce.
    A municipal ordinance imposing a license fee upon peddlers will not be held invalid, as contravening the interstate commerce provisions of the Federal Constitution (section 8, art. 1), in the case of one who is a resident of this State, and who does not sell goods in the original package, but from a general stock kept within the State.

      Certiorari to recorder’s court of Detroit; Chapin, J.
    Submitted June 20, 1895.
    Decided September 26, 1895.
    Joseph B. Sawyer was convicted of peddling without a license, contrary to the provisions of a city ordinance, and sentenced to pay a fine of $8, and, in default, that he be confined in the Detroit house of correction until such fine should be paid, not exceeding 10 days.
    Judgment affirmed.

      D. F. Glidden, for appellant.

      Frank A. Rasch, City Attorney, for the people.
   Long, J.

Respondent was convicted in the recorder’s court of the city of Detroit of peddling without a license.

It is contended that there is no proof to sustain the verdict. There was proof that he had no license, but the contention is that the business in which he was engaged was not peddling, within the meaning of the charter and ordinances of the city. His business consisted in going from house to house with rugs. His custom was to make contracts of leasing at a certain amount, to be paid weekly, and when the whole amount of rental was paid the title passed to the party renting. On the trial it was shown that the respondent offered the rugs at certain places for sale. The testimony showed that he was employed in the business of hawking and peddling, within the terms of the charter and ordinances. In Graffty v. City of Rushville, 107 Ind. 506, it was said:

“Any method of selling goods, wares, or merchandise by outcry on the streets or public places in a city, or by attracting persons to purchase goods exposed for sale at such places by placards or signals, or by going from house to house, selling or offering goods for sale at retail to individuals not dealers in such, commodities, whether the goods be carried along for delivery presently, or whether the sales are made for future delivery, constitutes the person so selling a hawker or peddler.”

The same rule is stated in Com. v. Ober, 12 Cush. 493; Davis v. Mayor of Macon, 64 Ga. 134; State v. Hodgdon, 41 Vt. 139; City of Chicago v. Bartee, 100 Ill. 61.

The charter provides:

“The said council may also license and regulate auctioneers, hawkers, ped tiers; * * * also the peddling or hawking of fruits, * * * jewelry, merchandise, goods, and other property whatsoever, by hand, handcart, show case, show stand, or otherwise, in the public streets or places.” Local Acts 1889, p. 983.

By section 2, tit. 8, of the ordinances of the city of Detroit of 1890, the mayor is authorized to license any citizen to follow the business or occupation of a hawker or peddler, on his paying into the city treasury the sum prescribed by section 3, and executing a bond, etc. Section 3 fixes the amount of the license fee to a peddler on foot at $25. Section 4 of the ordinance provides:

“This ordinance is not intended to apply to any mechanic of this State selling or offering for sale any article of his own manufacture or construction, or to any farmer selling or offering for sale the produce of his own farm.”

It is contended that the charter provisions do not authorize the discrimination made by section 4 of the ordinance. The exemption of mechanics, in selling their own manufactured articles, and farmers, in selling the products of their own farms, from the operation of the ordinance, is but following the State statute on the subject of licensing hawkers and peddlers. 3 How. Stat. § 1263. The power given by the charter is to license and regulate hawkers, peddlers, etc. Under this power the common council had authority to impose such reasonable conditions and limitations as it saw fit. 1 Dill. Mun. Corp. § 358, and note. The discrimination in favor of mechanics and farmers in the sale of their products is within the power, conferred by the charter upon the common council. These immunities have been recognized for many years. By the statute of 50 Geo. III. c. 41, § 23, real workers or makers of goods within Great Britain were exempt from the payment of the license fee which was imposed upon hawkers and peddlers. Rex v. Faraday, 1 Barn. & Adol. 275; Rex v. Mainwaring, 10 Barn. & C. 66. In many if not in most of the American States, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned.

3. The claim made that the ordinance violates the provisions of section 8, art. 1, of the Constitution of the United States, providing that Congress shall have the power to regulate commerce among the several States, has no force whatever. The respondent is a resident of this State, and has been for several years. His sales are made from a general stock of goods kept in this State, and he is mot selling in the original packages. The testimony in the case clearly shows that the manner of the sales was such as to bring the case out of the interstate commerce provisions of the United States Constitution, over which Congress has exclusive control. In re Wilson, 19 D. C. 341; Com. v. Gardner, 133 Pa. St. 284.

We think the ordinance valid. The judgment must be affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    PEOPLE v. SMITH.
    1. Criminal Law — Appeal—Objections Not Raised Below.
    An objection that the evidence was insufficient to warrant respondent’s conviction of the offense charged, and that the court should have directed a. verdict of not guilty, cannot be urged for the first time on appeal.
    2. Assault with Intent to Do Great Bodily Harm — Evidence.
    Evidence that one struck another upon the head with an iron bar, with sufficient force to produce unconsciousness, justifies the finding of an intent to do great bodily harm less than the crime of murder, although the ulterior motive of the assault may have been robbery

      3. Evidence — Refreshing Recollection of Witness.
    Where a witness testifies that he remembers a certain conversation, the only legitimate use of which would be to'refresh his recollection, it is not error to refuse to permit the witness to repeat the conversation.
    4. Criminal Law — Trial.
    A witness for the people in a criminal case, in reply to the question as to whether he knew the respondent, stated that he was “ unlucky enough to get acquainted with him.” Held? that, the statement having been promptly stricken out by the court, a reversal would not be granted because the court did not expressly rebuke the witness, and instruct the jury to disregard the statement.
    5. Same — Remarks of Prosecuting Attorney.
    A conviction will not be reversed because the prosecuting at torney, in his argument to the jury, commented upon the failure of the respondent to call the parents of his wife as-witnesses, it appearing that they were doubtless acquainted with the facts claimed to establish an alibi, where the court at once ruled that such comment was improper. But whether the-unexplained absence of such witnesses was not a proper subject for comment, — queere.
    6. Same.
    A reference by the prosecuting attorney in his argument to the fact, appearing in evidence without objection, that at the-time of .respondent’s arrest for the offense charged he was in jail for another offense, is not such an abuse of legitimate argument as to justify a reversal, where the statement was-apparently made in reply to the argument on behalf of respondent that he had led a life of usefulness.
    7. Criminal Law — Preliminary Examination — Deposition of Witness — Evidence.
    Where, upon respondent’s offering in evidence a part of the deposition of a witness taken upon the preliminary examination, the court rules that the entire deposition must be received, to which ruling no exception is taken, it is not error to permit the prosecuting attorney to read therefrom in his argument to the jury.
    8. Same.
    Whether the whole of the deposition of a witness was or was not received in evidence becomes unimportant where it appears that the witness testified upon the trial to the facts covered thereby.

      Error to Muskegon; Russell, J.
    Submitted June 20, 1895.
    Decided September 26, 1895.
    James W. Smith was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment in the state prison at Jackson for 10 years.
    Judgment affirmed.
    The respondent was convicted of assault upon one Ate Goudberg with intent to do great bodily harm, less than the crime of murder. The information also contained a count charging assault with intent to murder. The evidence on the part of the people tended to show that Mr. Goudberg kept a feed store in the city of Muskegon, living in an adjoining house. After he had closed his store for the night on the evening of November 28, 1893, and about 8 o’clock, a stranger drove a horse and buggy to the store, and hitched the horse to a post, went to the house, and told Mr. Goudberg that he wanted some feed. Mr. Goudberg lighted his lantern, and went to the store with the stranger. No others were present. Mr. Goudberg had put up four bags of feed, and, while weighing the fourth bag, he was struck upon the head with an iron bolt 22 inches long and an inch in diameter, having a head about If inches square. The blow was so severe as to render him unconscious, to lacerate the scalp, and cause internal hemorrhage. The assailant robbed him of what money he had upon his person, locked him in the store, and went away. It is unnecessary to state further details of the crime. Mr. Goudberg identified the resi>ondent as his assailant, and there was other evidence to corroborate him.

      Nelson DeLong, for appellant.

      Fred A. Maynard, Attorney General, B. J. Macdonald, Prosecuting Attorney, and Charles S. Harr, Assistant Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). 1. The first contention of the respondent is that there was no evidence of any intent to commit the crime for which he was convicted, and that the court should have directed a verdict of not guilty of either intent to murder or intent to do great bodily harm. The difficulty with this defense is that no such contention was made at the trial, and it evidently did not then occur to the learned counsel for the respondent that the question was one of law for the court, and not of fact for the jury, for he made no request to the court to direct a verdict. This objection, therefore, comes too late. The next complete answer is that there was ample evidence to justify the finding of the intent. It is suggested that the intent was to rob. Undoubtedly this is true, but the same state of facts may often show two intents. The assailant evidently intended to inflict a blow of sufficient force to render Mr. Goudberg unconscious while he locked the store and escaped. He used a deadly weapon, and struck a vital part of the body. The intent was to do great bodily harm, in order that he might accomplish the robbery.

2. The defense was an alibi. The respondent introduced evidence tending to show that he and his wife were at his father-in-law’s house, and left and drove home together in the evening, and that, if this evidence was true, it was impossible for him to have committed the crime. A girl, then about twelve years old, was living at respondent’s house, and was a witness for him. Upon the direct examination she was only questioned as to when he cut his whiskers. Upon redirect examination, she testified that she was home on the day the assault was committed, that she had no recollection of the time she went to bed, but that respondent was at home when she did go. Upon the second redirect examination, respondent’s counsel called her attention to a conversation between, him, her, and the respondent’s wife. She testified that she remembered an occasion when respondent and his wife went to town twice in one day, but did not know what day it was, nor what time they came back, but that it was after dark. She also testified that she remembered speaking to Mrs. Smith, when she got home, about the time. She was then asked to state the conversation, which the court refused to premit. The only possibly legitimate purpose for which this conversation could be used was to refresh the witness’ recollection as to the time. She had testified that she remembered it, and it was unnecessary for her to repeat it in order to refresh her recollection. The testimony was properly excluded.

3. A witness for the people, in reply to a question, “Do you know the defendant?” replied, “Yes, sir; I was unlucky enough to get acquainted with him.” The latter part of the answer, which was not, of course, responsive to the question, was promptly stricken out by the circuit judge. The precise complaint seems to be that the judge was not sufficiently severe in rebuking the witness, and in not instructing the jury to give no weight to the statement. Comment upon this. objection is unnecessary. New cases would go unreversed if such trivial objections as this were to prevail.

4. A reversal is asked because of remarks made by the prosecuting attorney in his argument to the jury. The respondent’s wife had testified t.hat she and her husband were at her father’s in the evening, and to the time when they left. This time was very material. Neither her father nor mother was called as a witness. The prosecuting attorney commented upon this fact. The prosecution was under no obligation to call these witnesses. Naturally, they would be called by the respondent. It is difficult to understand why their unexplained absence was not a proper subject of comment. It is not, however, necessary to determine this question, because the court at once decided that it was not proper for the prosecuting attorney to comment thereon.

The prosecuting attorney, in his argument, referred to the fact, which appeared in evidence without objection, that, at the time the respondent was arrested for this offense, he was in jail, under arrest for another one. Counsel for respondent made no formal objection to this, nor did he request the court to instruct the jury in regard to it. He interposed an exception without any objection. The entire arguments of counsel are not in the record, but only those portions of the argument of the prosecuting attorney upon which error is alleged. Bur it is a fair conclusion from the record that this statement, and other similar ones, were made in reply to the argument in behalf of the respondent that he had led a life of usefulness. There was evidence upon which to base these comments. Even if it be conceded that these comments were such that the court might with propriety have checked them, we cannot hold that there was such an abuse of legitimate argument as to justify a reversal of the case.

5. A witness for the respondent, one Monje, testified that Mr. Goudberg said to him that he “did not know the man, but the bolt proved it.” Upon the argument* the prosecuting attorney read to the jury from the deposition of Mr. Goudberg taken upon the examination, in which he testified that he had never seen the bolt before it was then shown him. It was claimed that the conversation occurred before Mr. Goudberg was examined.. From this the argument was made that Monje could not have had such a conversation with Goudberg. It is. claimed by the prosecuting attorney that the entire deposition of Goudberg was received in evidence, while the defense claim that it was not. The defense offered certain parts of the deposition upon Goudberg’s examination, which, it is claimed, contradicted his testimony upon the trial. The court ruled that the entire deposition must be received. The entire deposition was, therefore, in evidence, and without exception. But this question becomes of very little consequence in view of the fact that the witness testified to the same thing at the trial.

6. The remaining allegations of error arise upon the charge of the court and refusal to charge as requested. Respondent’s counsel presented twelve very long requests, five of which were given in full, and one in a modified form. They involve no principles which are not familiar to the profession, and it is unimportant to state them here. The oral charge of the court covers fifteen pages, and is a full and clear statement of the law of the case. It covers every point on which instruction was necessary, and fully protected the . rights of the respondent.

Conviction and sentence are affirmed.

The other Justices concurred.


text:
    PEOPLE v. WATKINS.
    Forgery — Construction op Statute - Chattel Mortgage.
    A chattel mortgage is included within the term “deed,” as used in 2 How. Stat. § 9214, prescribing a punishment for uttering any forged record, deed. etc.
    Error to recorder’s court of Detroit; Chapin-, J.
    Submitted June 20, 1895.
    Decided September 26, 1895.
    Olie J. Watkins was convicted of uttering and publishing a forged chattel mortgage, and sentenced to imprisonment in the state prison at Jackson for three years.
    Judgment affirmed.

      George Cox, for appellant.

      Fred A. Maynard, Attorney General, Allan H. Frazer,
      Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted upon an information which charged the uttering and publishing of a forged chattel mortgage as true, knowing it to be false, forged, and counterfeit. The only contention is that the uttering and publishing of this instrument as true, although false, counterfeit, altered, and forged, is not a crime under the statute under which the prosecution was had.

2 How. Stat. § 0213, provides:

“Every person who Shall falsely make, alter, forge, or counterfeit * * * any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance, or discharge for money or other property, or any acceptance of a bill of exchange, or indorsement or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods, or other property, with intent to injure or defraud any person, shall be punished by imprisonment in the state prison not more than fourteen years, or in the county jail not more than one year.”

Section 9214 provides :

“Every person who shall utter and publish as true any false, forged, altered, or counterfeit record, deed, instrument, or other writing mentioned in the preceding section, knowing the same to be false, altered, forged, or counterfeit, with intent to injure or defraud as aforesaid, shall be punished by imprisonment in the state prison not more than fourteen years, or 'in the county jail not more than one year.”

This chattel mortgage purported to have been given by Samuel W. Nichols and others to respondent, as trustee, to secure the payment of $229.28, and to secure which payment the parties did grant, bargain, sell, and mortgage to respondent the goods and chattels mentioned in the mortgage. The mortgage contained this provision:

“The consideration of these presents is such that if the said first parties shall pay or cause to be paid to the second party, his representatives or assigns, the debt aforesaid, with interest at eight per cent, per annum until paid, according to one promissory note bearing even date herewith, and to which this mortgage is collateral security, executed by said first parties, and the charges hereinafter mentioned, then this instrument and said note shall be void and of no effect; and the said first parties hereby agree to pay the same accordingly.”

The term “chattel mortgage” is not mentioned in the statute, and it is therefore contended that the statute is not broad enough to cover the case of uttering and publishing such instrument.

In the case of People v. Caton, 25 Mich. 388, the respondent was convicted of uttering as true a forged mortgage upon real property. The court there held that the statute could not bear so restricted a meaning as was contended for, and that the term “deed,” used in the statute, covered this mortgage. It was there said:

“The statute employs a general term, which covers instruments given for a great variety of purposes, and it gives no indication of an intent to confine its operation to deeds of lands. * * * There is abundant reason to believe, on the other hand, that the word is used in the broad legal sense in which it is understood at the common law; for the purpose of the legislature has evidently been to give, by the use of general words, such an enumeration of the instruments likely to be the subject of forgery as to'embrace all, the valuable writings by the false making or altering of which innocent persons might be in danger of being defrauded.”

The word “deed,” as used in the statute, must have the common-law definition. A deed is construed at the common law to be “a written instrument under seal, containing a contract or agreement, which has been delivered by the party to be bound and accepted by the obligee or covenantee.” 1 Bouv. Law Diet. (15th Ed.) p. 493; 2 Bl. Comm. 295; Shep. Touch. 50. The definition given by Mr. Washburn is: “A writing containing a contract sealed and delivered by the party thereto.” 3 Washb. Real Prop. 553. As was said in People v. Caton, supra, the statute cannot bear so restricted a meaning ás contended for.

The conviction must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    JAKOBOSKI v. GRAND RAPIDS & INDIANA RAILROAD CO.
    1. Negligence — Railroad Companies — Evidence.
    Where, in an action against a railroad company for personal injuries, founded upon its alleged negligence in leaving certain cars uncoupled upon a side trank, the uncontradicted testimony of the defendant’s witnesses is to the effect that the cars were left coupled to the main train, and it further appears that, from the manner in which the train was handled, the cars must have been so coupled when placed upon the track, the mere fact that the cars were found detached a few hours later, in consequence of which the injury was sustained, is insufficient to justify a submission of the case to the jury.
    2. Same — License to Move Oars.
    A railroad company which has been accustomed to place cars intended for a factory upon an adjoining side track, and to permit the employés of the factory to uncouple and move them as needed, is not bound to anticipate that such employés will uncouple cars that are not to be removed at once, so as to render it liable in damages to one injured by the unexpected shunting of such cars through the concussion of a train.
    Error to Kent; Grove, J.
    Submitted May 3, 1895.
    Decided September 27, 1895.
    Case by Boleslaus Jakoboski, by his next friend, against the Grand Rapids & Indiana Railroad Company for personal injuries. From a judgment for the plaintiff, defendant brings error.
    Reversed.

      T. J. O’Brien and J. B. Campbell, for appellant.

      McBride & Malcolm, for appellee.
   Montgomery, J.

This is an action to recover damages for an injury sustained by the plaintiff on the 15th day of May, 1893. The testimony in the case shows that the plaintiff was at the time three years and eight months old, and that in the afternoon of that day he was run over and had his leg injured by a oar on the side track of defendant’s road at Grand Rapids. This side track extended from Bridge street to Leonard street, a distance of about one mile. The streets between Bridge and Leonard are numbered numerically from First to Twelfth. A switch extended from Seventh street to a point north of Eleventh street. It is a disputed question as to whether Ninth street was open. If it is to be deemed a public street at the time, the Widdicomb Furniture Factory was situated at the intersection of this street with the defendant’s railway track. Tenth street was not open. The furniture factory stood on t’he north side of Ninth street, and between the tracks and the mill was a platform upon which.logs were rolled and unloaded from the cars. North of the-platform was a private driveway, used in connection with the business of the mill, and kept open. There was room for two cars at the mill platform, and between the driveway and Eleventh street there was room for fourteen cars, and north of Eleventh street there was room for a number of cars. There was a slight down grade from the north towards Ninth street. The custom was for the railway employés, when placing cars for the Widdicomb Furniture Company, to place two cars opposite the mill platform, and leave the balance, if any, north of the driveway, so as to keep the driveway open. The mill employés would then unload the cars left at the platform, and move, by the use of a pinch bar, another car back from those situated on the track between Eleventh street and Ninth. On the occasion in question the mill men had unloaded tihe two cars left at the mill platform by the company, had pushed them down south of Ninth street, had moved forward to the mill two other ears from beyond the driveway, and had unloaded the south one of these, the north one being partially unloaded at the time of the accident. The switching crew of 'defendant, having occasion to move the oars which had been left north of the driveway and between that and Eleventh street, backed the train down against the oars standing upon the track, and the concussion of the train with the standing cars started backward three of the cars which had been in some manner detached, the coupling pin having been removed between them and the cars to the north of them.

The circuit judge submitted the case to the jury upon a single question of fact. He said:

“There is but one question of fact for you to determine, and that is whether the defendant was negligent in the manner alleged in the declaration. I told you what the claim of the plaintiff was in that regard, that the cars were left in an unsecured condition; and I told you that the claim of the defendant was that they were properly fastened, and I told you, if they were properly fastened by the defendant, then the defendant was guilty of no negligence. I should have told you, and I now add, that between these two theories the burden of proof rests upon the plaintiff to maintain his case.”

Mr. Campbell then said:

“In regard to this question, your honor, of the way the cars were left, as I understand the record, there is' not any evidence disputing the testimony of the trainmen that they left them coupled.” to shunt in the other cars, it was found that they had been released, the brakes released, and the coupling pins taken out. There is no evidence as to who took them out. There is no evidence that they were not left in that secure condition.”

The Court: “Well, I suppose that is true, Mr. Campbell. You have adduced testimony to show that they were left in a secure condition, and that, when you came

Mr. Campbell: “Whether we are not entitled to an instruction on that point, that that is a point established, that they were so left?”
The Court: “I will leave the matter to the jury, who are the judges of the credibility of the testimony. Unless they see some very good reason, from all the facts and circumstances developed by the testimony in the case, to discredit the testimony of defendant’s witnesses that the cars were left in that secure condition, they ought to be governed by the testimony.”

In this court counsel for plaintiff have failed to point out any testimony tending to show that these cars were left uncoupled in the forenoon, except the bare fact that, they moved backward when the train was moved against them from the north. If there were room for any just inference sustaining the plaintiff’s theory that the cars were left uncoupled in the forenoon, there would be a question for the jury. But we think, in view of the undisputed testimony as to how this train was handled in the forenoon, taken in connection with the testimony of the trainmen, there is not the slightest room' for any such inference, and it is impossible to conceive upon what a jury could base a verdict in favor of the plaintiff upon this ground. The testimony shows that, in the forenoon of the day in question, the same crew that did the switching in the afternoon went to the south end of the track, and took empty oars out of the south end of that track, and then went to the north end, and shoved the cars down to the mill. They then moved the train northward, left 11 or 12 cars between the driveway and Eleventh street, moved the balance of the train forward, leaving an opening at Eleventh street, and left the remainder of the cars north of Eleventh stfeet. Not only did the trainmen swear that these cars were coupled, but, from the manner in which the operation was carried on, it is apparent that it was a physical impossibility to move the train forward so as to clear the driveway, and leave the oars between the driveway and Eleventh street, unless they were coupled. When they came back in the afternoon to do the switching, the cars having been upon the private grounds of the railroad company, and left in this secure condition, they had no reason to apprehend that they were not attached. The testimony of defendant’s witnesses was- entirely unimpeached, and we think the jury should not have been permitted to disregard and set aside the only testimony upon the point. See Apscy v. Railroad Co., 83 Mich. 432; Byles v. Golden Tp., 52 Mich. 612; Lange v. Perley, 47 Mich. 352; Corbett v. Spencer, 63 Mich. 731; Druse v. Wheeler, 26 Mich. 189; Hunt v. Order of Chosen Friends, 64 Mich. 671; Fourth Nat’l Bank v. Olney, 63 Mich. 58; Gillett v. Knowles, 97 Mich. 77.

It is contended that as the mill employés were expected to run cars down from across the driveway, south, they must be treated as licensees of the company, and that defendant was bound to anticipate that they would uncouple cars. It is perhaps sufficient to say that this theory was not submitted to the jury, and that the verdict was not based upon any such view. But, furthermore, this license did not authorize the mill men to uncouple any except such oars at the south end of the detached train as they had occasion at once to run down. It is apparent from the .circumstances of the accident that there was no danger from oars which had been removed, but only from a .collision with an uncoupled car which was in contact with the train, so that the concussion would start the oar southward on 'the down •grade. As soon as the .coupling with the cars was made, ;at the first attempt, in the afternoon, it shows that, had all the cars been attached together as they were left in .the forenoon, they could not have come in contact with anything beyond the driveway, as they would have been nmder the complete control of the engineer.

The judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    LIGGETT SPRING & AXLE CO. v. MICHIGAN BUGGY CO.'
    1. Pleading — Notice of Recoupment — Sufficiency.
    In an action by the vendor upon a contract for the sale of carriage axles, a notice of recoupment which sets forth that the defendant had taken a large number of orders for carriages in reliance upon plaintiff’s agreement to furnish the-axles to be used in their manufacture, and that, in consequence-of plaintiff’s failure to supply the axles within the time contemplated, defendant was unable to fill many of said orders,, and was thereby deprived of large gains and profits which he-would otherwise have made, is sufficiently specific; it is not necessary that the notice should set up the several orders-claimed to have been received.
    2. Written Contract — Parol Evidence.
    Where a contract for the sale of carriage axles provides that specifications are to be furnished by the buyer, and that the axles shall be interchangeable with samples sent, but does not . describe the axles, evidence of the conversation between the parties at the time of the execution of the contract is admissible for the purpose of ascertaining their intention.
    3. Contract — Modification—Evidence.
    Where the parties to a written contract are in dispute as’to the construction to be given to certain of its provisions, a letter afterwards written by one party, agreeing to perform a condition claimed by the other to be imposed upon him, may effect a modification of the original contract to that extent, if not otherwise susceptible of such construction.
    4. Breach of Contract — Damages—Loss of Profits.
    ’The measure of damages for the breach of an agreement to furnish carriage axles, whereby the vendee was prevented from completing certain carriages and filling orders received therefor, is the difference between the cost of manufacture and the selling price of the carriages the sale of which waa thus prevented. Harrow Spring Co. v. Whipple Harrow Co., 80 Mich. 147, approved.
    Error to Kalamazoo; Buck, J.
    Submitted June 11, 1895.
    Decided September 27, 1895.

      Assumpsit by the Liggett Spring & Axle Company against the Michigan Buggy Company for the breach of a contract to purchase goods. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Osborn, Mills & Master, for appellant.

      Boudeman & Adams, for appellee.

       Affirmed on rehearing May 19, 1896.

   Long, J.

The defendant is engaged in the manufacture of vehicles of various kinds at Kalamazoo, this State. It employs a great number of men, and keeps constantly on the road a large number of salesmen. It also has a branch salesroom at St. Paul, Minn., and many salesmen are sent out from that point. It has no facilities for making axles, but purchases them from manufacturers. Prior to September 17, 1892, it had purchased its axles from the Sheldon Axle Company, of Wilkesbarre, Pa. Many of these axles were made from special patterns, to be used on special styles of vehicles, and it was not possible to use any other on buggies and carriages so made. These styles had become staple in the business-.

In September, 1892, a representative of the plaintiff company called upon the defendant, and solicited its .trade; and a contract was entered into by which the defendant agreed to purchase from plaintiff all the axles it was to use in its business up to 10,000 sets. In the contract it was specified: “Axles guaranteed to interchange with samples sent of Sheldon’s axles.” Mr. Lay, the secretary of the defendant company, testified, under objection, to the arrangement with plaintiff’s agent, as follows:

“I told Mr. Black that it meant a good deal to us to make a change of this kind, and I says we cannot think of changing unless we could get these axles just the same as we have been getting them. I says the Sheldon Company, they always sent these bent to form, to fit our patterns, and I says, ‘You can readily see the necessity of that.’ I told him that we had our axle beds cut out iu large numbers, and we had to have our axles to fit that shape. I called his attention to our end spring buggy, which has a drop axle. That was an axle that we were particular about. ‘Oh, well,’ he says, ‘we. can do that just as well as Sheldon, and will do i't for you. All we want is your samples. Now, before you send for axles, 'you fix them up, — your samples,- — and send them along; we will shape them to the axles just to your pattern.’ And he wanted to know about what time we would want our axles to come in. I told him that during November and December we were very busy with cutters, and we would have to have our axles to come in so we could commence on them right after we got through our cutters, probably the last of December or the first of January. ‘Well,’ he says, ‘you will have to get in your specifications then by about the first of December.’ I told him Í thought we could do that. So we drew up the contract, and Mr. Lane signed it.
“Q. Well, have you stated now all the talk that you recall that you had at that time with him?
“A. Well, all that was material in regard to that. Of course, Mr. Black went on to tell— He said that he was taking a good many contracts at that price that he was making, — seemed to catch them. It was a price below what the others were selling. * * * I told him we had been getting our axles from the Sheldon Axle Company of Wilkesbarre, Pa. We had gotten our axles of them (Sheldon) the year before.
“Q. Now, you may state what, if anything, was said at that time about the setting at the collar when Mr, Black was there.
“A. Well, that w-as — We referred to -the number 53 axle; thait is our end spring buggy. That was a drop on the axle, and we told him that we had to have it set right at the collar. We explained to him why. The shape of the axle is different. It was made on a kind of a little arch, — a drop; and, unless it is shaped right at the collar, the wheel won’t run on a plumb spoke.”

Mr. Black was then and there shown the axles which were afterwards sent his company as patterns from which to make sucih axles. The matter was gone over somewhat at this time, and the contract entered into between the parties. The defendant claims if was induced by Mr. Black to enter into this contract because of the reduction in the price of the axles which he made, and because of his representations and promises that the plaintiff would set the axles at the collar, bend them, and make them of the same shape and style for defendant and furnish them to it just as the Sheldon Axle Company had done the previous year.

The defendant sent samples and specifications to plaintiff December 6, 1892', and on .the same date sent an order for a large number of axles. The plaintiff received defendant’s samples December 17th, and on the 24th replied as follows:

“Pittsburg, Pa., December 24, 1892. “Michigan Buggy Company,
“Kalamazoo, Midi.
“Gentlemen: Your favor of 22d. It is simply a question of time, gentlemen. Had you sent the samples right along, as you should have done, immediately after the contract was made, and allowed the specifications to follow within the time specified in contract, it would have been all right. To get out all these patterns and forms will require a month to six weeks of time. . We thought you would rather have this order come regular. Which shall it be?”

Defendant replied to this letter as follows:

“December 26, 1892.
“Gentlemen: I am in receipt of yours of the 24th, and in reply will say that we want the axles as per agreement, made to fit our forms, bent to shape as per sample.. We must have them right away. We know it does not take a month or six weeks to get out a form to fit these axles to,”

Plaintiff replied:

“December 28, 1892.
“Dear Sir: Your letter 26th. Replying to same, we beg to say that there is no agreement, either in the contract or outside of it, providing for the forming of your axles to pattern. There would be no serious objection to this had you advised us and sent the samples promptly after the contract was made. We are now very busy, and it will not be possible to get out these form® and make preparations to do the work in less than the time stated, — a month or six weeks. You-state that you must have the axles promptly. It would not now be possible to make shipments in less than thirty days, regular axles. Give us your definite answer at once, stating whether you will accept the goods regular shapes or not.” .

To this defendant replied:

“December 31, 1892.
“Gentlemen: We are in receipt -of yours of the 28th. Please hurry out the axles ordered, regular; and we want those ordered shaped to pattern, shaped as ordered, even if it takes a month or six weeks.”

Plaintiff shipped, all told, 1,328 sets, of which 505 sets were returned, because they were not made according to the samples, leaving 823 sets retained by defendant out of the 3,575 sets ordered. No axles were received by defendant for a period of two months and eighteen days after the order was sent in by defendant, and the first axles received were not made according to the samples sent, and had to be returned, or were all hinds and no fronts, or all fronts and no hinds, and therefore absolutely useless to defendant unless they were matched up.

The defendant claims to have had on hand a large number of orders and contracts for vehicles, and, because of the failure of plaintiff to comply with the contract, the defendant was not only hindered in its business, but its men were without material to work with; that, when the axles were sent, they were not set at the collar, and, in consequence, the wheels, when put on the spindles, would not stand at right angles with the axles, but would stand in at the top or bottom from one to three inches too far; that such axles as defendant ordered under this contract could not be bought in the open market, but were made of special forms and shapes, and thus made it necessary for plaintiff to have the samples.

The plaintiff made claim for the payment of the axles sent, which was refused, and this action was brought upon the contract. Defendant pleaded the general issue, and gave notice of recoupment of damages. On the trial the jury returned a verdict in favor of defendant.

When the defendant offered testimony in support of its claim under the notice, it was óbjected ho as incompetent, for the reason that the notice was not sufficiently specific, in that it did not set up a single order it had received and accepted and was unable to fill, and therefore presented no fact which could be tried, so far as the alleged loss of profits was concerned. The notice sets forth that defendant had and took a large number of orders and made a large number of contracts* for buggies and carriages relying upon the plaintiff, under its contract, to furnish axles as agreed, to be used in the manufacture of carriages; but, on account of plaintiff’s failure to furnish such axles as agreed and within the time contemplated by such contract, the defendant was unable to finish and complete many of its buggies for which it had orders and contracts, and by reason thereof defendant was unable to fill many of said orders and contracts, and thereby defendant lost the sale of many buggies and carriages, and lost and was deprived of large gains and profits which it otherwise would have made had it not been for plaintiff’s refusal to carry out its aforesaid contract with defendant, and which loss amounted to the sum of $5,000. The notice further sets up that, after endeavoring to obtain axles as agreed upon, the said plaintiff holding out to and promising defendant from day to day to forward such axles as agreed, nearly all of which promises remained unfulfilled, the defendant was obliged at last, to save its entire business from ruin, to purchase some axles elsewhere to take the place of those which plaintiff was to furnish, and for which axles purchased defendant was obliged to pay a greater price than plaintiff was to furnish the same for. The notice also sets up that plaintiff, instead of furnishing axles in sets as ordered, and as it should have done, furnished at times all front axles, and at other times all rear axles, and defendant could not use them in this condition, and was thereby delayed and injured in its work. It also sets up loss of time of employés because of plaintiff's neglect to furnish axles, and some other matters not specially set up, and claims the right to recoup all of the damages so sustained by plaintiff’s neglect and default to furnish axles as agreed, and to have the same set off against plaintiff’s claim, and judgment for any balance.

The notice is not required to contain all the requisites of a special plea under the former practice, nor is it required to contain the substance of a special plea, or be good on general demurrer. Cresinger v. Reed, 25 Mich. 450; Rosenbury v. Angell, 6 Mich. 514; McHardy v. Wadsworth, 8 Mich. 349; Bailey v. Kalamazoo Publishing Co., 40 Mich. 254; Browne v. Moore, 32 Mich. 257; Farmers’ Mut. Fire Ins. Co. v. Crampton, 43 Mich. 421; Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 525. The notice not only apprised the plaintiff of the nature of the defense to be made, but specifically set forth the manner in which the profits were lost. It does not leave them speculative or uncertain, but shows that the loss of profits is upon actual contracts and orders which defendant had taken relying upon plaintiff to furnish the axles. In Briesenmeister v. Supreme Lodge K. of P., supra, the rule was stated as follows:

“The sole test of the sufficiency of a notice of special matter of defense is that it shall apprise the plaintiff of the nature of the defense relied on, so that he may be prepared to meet it and to avoid surprise on the trial.”

We think the notice was sufficient.

It is contended that it was error to permit the defendant to give in evidence the conversations with plaintiff’s agent at the time the contract was made. The contract, however, specified that specifications were to be furnished, and axles guaranteed to interchange with samples sent of Sheldon’s axles. These axles were not described in the contract, and the specifications mentioned were to be furnished in the future. The contract could only be understood in those particulars by what was said at the time of its execution; but, were this not admissible, yet, by the letters of the plaintiff, it was agreed that these axles should be set at the collar and shaped to a certain form. If the original contract did not contemplate such conditions, the letters would constitute a modification of the contract, and could be shown. Bish. Cont. § 764.

It is contended that the defendant sought to show the alleged loss of profits by wholesale. Instead of this, the witness gave the cost of each vehicle mentioned in the orders his attention was directed to, and the whole question was left to the jury under a fair charge, which limited the recovery to such orders for vehicles as defendant had in fact received and was not able to fill by reason of the neglect of plaintiff to supply the axles under the contract. The measure of damages is in accordance with the rule of Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147.

Borne contention is made that the court was in error in refusing certain requests to charge. Substantially, the court gave such of these requests as were proper to be given. The court charged the jury that the burden of proof was upon the defendant to show that the plaintiff agreed to form the axles to pattern and set them at the collar; and upon the question of the measure of damages we find no error in the charge. The case, we think, was very- fairly tried, and all questions of fact left to the jury. We find no error which would warrant a reversal of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    SCHULENBURG v. UFFELMANN.
    Landlord and Tenant — Surrender or Premises — Consent to Repairs — Evidence.
    Where a tenant has vacated the leased premises prior to the expiration of his term, mere knowledge on his part that the landlord has since entered, and is making repairs inconsistent with the occupancy of the premises, is insufficient to charge him with consent thereto, so as to affect the question of his liability for rent accruing subsequent to such entry.
    Error to Wayne; Hosmer, J.
    Submitted June 12, 1895.
    Decided September 27, 1895.

      Assumpsit by Charles Schulenburg against Charles A. Uffelmann for rent. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Malcolm McGregor, for appellant.

      Charles Flowers, for appellee.
   Grant, J.

Defendant was plaintiff’s tenant by the year under a written lease, which terminated May, 1892. Defendant held over, and' thereby became tenant for another year. He occupied until some time in February. January 24th he notified plaintiff that he would surrender the premises February 1st. This notice was given upon the assumption that his tenancy was from month to month. February 1st plaintiff notified defendant that he should hold him for the rent until the 1st of May; that he would endeavor to rent the premises on defendant’s account, and charge him with any loss, and should hold him responsible for damage to the cellar floor by his negligent use of the same, and for damage to the drains by his failure to keep them clean. Some time in February defendant sent the key to plaintiff. Plaintiff entered upon the premises to make repairs. Defendant ascertained that he was liable for the rent, and claims' that he bought 500 barrels of vinegar, intending to take possession of the building and store the vinegar in the cellar. He did not ask for-the key, nor notify plaintiff of his intention to reoccupy. He claims that he wentj to the building, and from the street saw that repairs were going on, and that in consequence the building was' in such condition as to be unfit for occupancy. He did not then notify plaintiff, so that he might, if he could, speedily complete the repairs, and have the building ready for occupancy. Plaintiff brought this suit for the rent. The defense was that plaintiff had accepted the surrender of the premises. The case was left to the jury upon that theory alone. The jury found, in answer to a special question, that the plaintiff did not enter and tear out the floor and repair the wall without the defendant’s consent; and the judge instructed the jury that if the plaintiff entered without the consent of the defendant, and proceeded to make repairs inconsistent with the tenancy, then he would be discharged from paying rent.

The sole question presented by this record is whether there was any evidence of such consent on the part of the defendant. No express assent is claimed, and we fail to find any evidence of an implied assent. The most that can be claimed is that the defendant had knowledge that the repairs were being made. The law did not require him to enter a protest, nor is he chargeable with assent from the mere fact of knowledge. .

For this error the case must be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    HANISH v. KENNEDY.
    1. Findings op Fact — Appeal.
    Findings of fact by the trial court, based upon conflicting evidence, will not be reviewed on appeal.
    2. Bills and Notes — Bank. Stamp op Payment — Evidence.
    A bank stamp upon a promissory note, indicating that it was paid upon a certain date, is admissible in evidence to show the time of such payment, in connection with testimony that the note was so stamped by the bank officer when paid, in accordance with the custom of the bank, and that such stamp was used upon no other occasions.
    8. Evidence — Conclusions op Witness — Harmless Error.
    The admission of the conclusions of a witness in regard to documentary evidence introduced is not reversible error, where it appears from the record that the findings of the court were based upon his own deductions from such documents, and not upon those of the witness.
    4. Bills and Notes — Rights op Accommodation Indorser — Contribution.
    Qne who indorses a promissory note for the accommodation of the principal maker and an accommodation maker can maintain an action against them jointly upon being compelled to pay the note; and this is so although the indorser is not the payee named in the note, and the indorsement was made before its negotiation. The rule as to contribution between cosureties does not apply to such a case.

      Error to Kent; Grove, J.
    Submitted June 13, 1895.
    Decided September 27, 1895.

      Assumpsit by Anthony Hanish against Robert J. Kennedy and James Kennedy on promissory notes. From a judgment for the plaintiff, the last-named defendant brings error.
    Affirmed.

      Wolcott & Ward, for appellant:
    The defendant James Kennedy was no more than a cosurety with plaintiff as to any of the notes; as to a part, plaintiff was a joint maker; and the sole remedy of plaintiff is to sue for contribution. Robbins v. Brooks, 42 Mich. 62; Stewart v. Goulden, 52 Mich. 143; Farwell v. Ensign, 66 Mich. 600; Fay & Co. v. Jenks & Co., 78 Mich. 312, and cases there cited; Stevens v. Hannan, 86 Mich. 305, 88 Mich. 13; Bank v. Trowbridge, 92 Mich. 221; Chaffee v. Jones, 19 Pick. 260.

      Reuben Hatch and A. W. Johnston, for appellee:
    Indorsers are prima facie liable in the order in which they sign the paper (Greusel v. Hubbard, 51 Mich. 95; Sweet v. Woodin, 72 Mich. 393; Farwell v. Ensign, 66 Mich. 600; Cook v. Brown, 62 Mich. 473; Camp v. Simmons, 62 Ga. 73); and accommodation indorsers are no exception to this rule (McGurk v. Huggett, 56 Mich. 187; Shaw v. Knox, 98 Mass. 214; Pomeroy v. Clark, 1 MacArth. 606; Connely v. Bourg, 16 La. Ann. 108).
   Hooker, J.

The plaintiff recovered a judgment against Robert J. and James Kennedy. The latter appealed. The findings of fact show that the court found that the defendants gave their joint and several promissory notes to certain banks, and that the plaintiff was an accommodation indorser, and was obliged to pay the same; also, that defendants gave other similar notes to the plaintiff; and that both defendants were sober when the notes were given. Upon these findings judgment was rendered for the plaintiff. Subsequently the findings were amended, and made to show that, at the time that the several notes were indorsed and taken by the plaintiff, he knew that the defendant Janies Kennedy signed them as surety for his son, the other defendant; and that said notes were all signed by said James Kennedy with his son as joint maker, and for the express purpose of procuring the indorsement of the plaintiff, who indorsed said notes for the accommodation of both defendants; and that both defendants were sober and mentally competent when said notes were given. As a conclusion of law the court found that both defendants were primarily liable to plaintiff as joint makers of the motes. Exceptions were taken to each finding of fact, and to the refusal to find as requested, and to the conclusions of law.

The questions which counsel appear to rely upon are:

(1) Error upon the part of the court on several findings of fact.

(2) His refusal to find that defendant James Kennedy received none of the proceeds of the notes, and that the plaintiff signed them for the accommodation of Robert J. Kennedy, knowing that James-Kennedy was only a surety.

(3) That he erred in admitting a date stamped upon one of the notes with a bank stamp as evidence of the time of payment, as bearing upon the question of defendant Janies Kennedy’s alleged intoxication.

(4) That both James Kennedy and the plaintiff were sureties of Robert J. Kennedy, and, therefore, that plaintiff had not a joint cause of action against the defendants.

The first point may be disposed of by the trite statement that we cannot review the findings of the circuit judge upon questions of fact, where there is a conflict in the evidence. We think that such was the case here upon every material proposition covered by the findings.

We think that the findings do show that James Kennedy did not receive the proceeds of the notes, inasmuch as it is stated that the plaintiff knew that he was an accommodation maker. They also show clearly that the plaintiff was an accommodation indorser.

The claim was made that James Kennedy was drunk when the notes were signed, and, as tending to contradict this as to one of the notes, counsel attempted to show that it was given at a certain and different time than that stated by the witnesses for the defendant, and at a time when he was not drunk. The plaintiff testified that he received the note when it was executed, and used it in payment of a former note, which was produced, which former note was stamped by the bank officer at the time with a certain stamp, and which the bookkeeper of the bank testified was paid upon the day shown by the date of the stamp. It was also shown that the stamp * was one which, according to the custom of the bank, was' put upon papers when paid, and such stamp was used on no other occasions. The paper with the stamp upon it was admitted in evidence, and the statement of the witness that it was paid that day was allowed to stand, against defendant’s objection. Technically this was aj conclusion of the witness, as it was based upon the fact that the note had the stamp upon it, and, perhaps, not admissible. But the court might properly draw the same conclusion from the document and stamp, which were properly admissible as a part of the transaction testified to by the plaintiff. Bennett v. Smith, 40 Mich. 212; Smith v. Holmes, 54 Mich. 105. We cannot hold the error fatal without concluding that the learned circuit judge relied upon the conclusion of the witness. The record clearly implies that the paper and stamp were admitted upon I the proper theory, and that the findings of the court were based upon his own deductions, and not upon those of the witness, which were objected to.

Whatever may be the rule of law as to contribution between cosureties, it has no application to a case where the parties are not cosureties. The court found that plaintiff was not a cosurety with James Kennedy, but that he indorsed for the accommodation of both defendants, which he might lawfully do, though one was an accommodation maker for the other. The evidence is sufficient to> justify this finding.

We find no error in the record, and the judgment must therefore be affirmed.

The other Justices concurred.


text:
    BRESNAHAN v. NUGENT.
    Fraudulent Conveyances — Estates oe Decedents — Remedy of Administrator.
    An administrator cannot maintain a bill in equity under 2 How. Stat. § 5884, to set aside a deed of his intestate as in fraud of creditors, for the sole purpose of reaching the proceeds of crops growing upon the land at the time of the conveyance. The remedy in such case is in an action at law.
    Appeal from Kent; Grove, J.
    Submitted June 13, 1895.
    Decided September 27, 1895.
    Bill by John Bresnahan, administrator of the estate of Daniel Nugent, deceased, against Emanuel Nugent, to subject to the claims of creditors assets alleged to have been fraudulently conveyed by the decedent. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    J. H. Tatem, for complainant.
    Taggart, Wolcott & Ganson, for defendant.
   Hooker, J.

This cause is here upon general demurrer to complainant’s bill of complaint, an appeal having been taken from an order sustaining the demurrer and dismissing the bill.

The bill alleges that the complainant was appointed administrator of the estate of Daniel Nugent on July 19, 1888; that on June 10, 1890, commissioners on claims in said estate allowed claims against said estate in favor of James Nugent to the amount of $2,255.03; that prior to his death, and on March 31, 1879, the intestate conveyed, by bill of sale, to the defendant, all of his personal property in the county of Kent, and, by deed, all of his real estate in said county; that upon said real estate a crop of wheat was growing, which, when ripe, was harvested and sold by the defendant, and $1,040, received therefor, was appropriated by said defendant. Subsequently the land was sold upon foreclosure of a mortgage, except one parcel. The bill states, further, that said transfer was fraudulent as ágainst creditors, and that it has been so adjudicated in an action tried in the Kent circuit court on May 20,1885, as between the parties to this suit, who were the partie:s in interest in that action, and that defendant is thereby estopped and barred from denying the fraudulent character of said deed. It is further alleged that on October 4, 1890, the complainant brought assmnpsit against the defendant to collect from the defendant the amount of the claims of James Nugent, on the ground that'the transfer of personal property was fraudulent and void as against Daniel Nugent’s creditors, and that on December 21, 1892, he obtained judgment-in the Kent circuit for $1,600, wherein said transfer was held fraudulent. Such judgment was afterwards modified and affirmed by this court (Bresnahan v. Nugent, 97 Mich. 359), and the defendant paid $947.25, that being the value of said personal property, as found by the jury, witb interest. Afterwards the parcel of land hereinbefore mentioned as excepted from foreclosure was sold by order of the probate court, and the proceeds applied on the judgment. After crediting all property in the hands of the complainant, $1,232, principal, and $405, interest, is yet due upon this judgment, and there is no available property to pay the same. A decree is asked declaring the deed to the land upon which the wheat grew to be void, and that defendant be required to pay this sum of $1,040, received for wheat, with interest thereon, to the administrator.

This proceeding is commenced under 2 How. Stat. § 5884, which is as follows:

“When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may and it shall be his duty to commence and' prosecute to final judgment any proper action or suit, at law or in chancery, for the recovery of the same, and may receiver, for the benefit of the creditors, all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.”

The bill appears to be filed upon the theory that the wheat in question passed to defendant by the deed of the land, and that he acquired a title that can only be set aside by declaring the deed fraudulent and void, which, it is said, only a court of equity can do. It appears from the bill that all personal property of other kinds was held to have been fraudulently conveyed, and this by a court of law in an action of assumpsit. There can be no doubt that the crop of wheat in question might have been, if it was not, conveyed by the same bill of sale; and, if it was, there would seem to be no reason why the proceeds might not be recovered in an action of assumpsit, as well' as the value of'horses and other chattels. In fact, the record of the former case shows that this was attempted, but apparently, failed, through defective pleading. However that may be, there seems no escape from the position that such recovery might have been had in assumpsit, and that such remedy is adequate, unless it can be said that the wheat did not pass under the bill of sale, 'and did by the deed, and, further, that only a court of chancery can hold such transaction void. It certainly did pass by the deed if it did not by the bill of sale.

But it makes little difference whether it be said to have been conveyed by the deed or bill of sale. If it was in fraud of creditors, it was subject to levy and sále, and the validity might be tried in an action at law, as was held in Pierce v. Hill, 35 Mich. 197. Here the administrator attacks the transfer under the statute, that he may acquire enough of the intestate’s property to pay his debts. As stated by Mr. Justice Marston in Pierce v. Hill, supra:

“In such case it would make no difference whether the sale was a verbal or a written one, under seal or without seal. * * * The law, in dealing with such sales, does not, out of respect to the instrument by which the fraudulent conveyance was made, hesitate to declare such a sale void.”

To reach real estate, the intervention of chancery is usually necessary. When defendant harvested or received money for this wheat, which, while so far partaking of the nature of real estate as to pass with the land by deed, did not sufficiently resemble it to be considered an interest in land, within the statute of frauds, or to pass to the heir instead of the administrator, no good reason appears why this wheat or money should not be subject to recovery by an action at law. No attempt is made to reach the land, which all admit is beyond reach; and we think the invalidity of the transfer may be tried and determined at law as well as in equity. The demurrer was, in our opinion, properly sustained.

Several questions likely to be raised upon a hearing upon the merits are passed without discussion, inasmuch as they do not appear to be within the issue made by the pleadings.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J. Hooker, J.

text:
    PETAJA v. AURORA IRON MINING CO.
    Master and Servant — Injury to Laborer in Mine — Doctrine oe “Safe Place Eellow-Serv ants. *
    Plaintiff was employed in defendant’s mine at loading upon cars and removing the ore as it was brought to the floor by the miners. As fast as the ore was removed, it was the practice to support the roof by a system of timbering, largely temporary in character, which was put in place by a force of men kept for that purpose, upon notiScation by the miners themselves or by the shift boss, who had charge of the work in the mine, subject to the general supervision of a mining captain. Before a newly-opened space had been timbered, and before the timber men had been notified that their services were required, plaintiff was injured by a fall of ore from the roof. Shortly before the accident, the attention of the shift boss had been directed to indications of danger, bnt he said that the roof was all right, and instructed the men to resume work. Held: '
    (1) That, whether the injury was caused by excavating too large a space without placing the timbers, or whether it resulted from the fact that the timbering previously erected had ceased to support the roof by reason of the subsequent dropping of ore therefrom, thus leaving too great an area unsupported, the case was not within the rule requiring the master to provide the servant with a reasonably safe place in which to work; that The so-called “ place ” was a mere incident of the mining operations, the result of the'common labor of those employed in the mine; and that the master’s duty was discharged by the exercise of reasonable care in furnishing suitable material and employing competent men to do the work.

      (2) That, if there was any negligence, it was that of the miners or of the shift boss, who were fellow-servants of plaintiff,
    Error to Gogebic; Haire, J.
    Submitted June 14, 1895;,
    original opinion, September 27,1895.
    Rehearing granted December 30, 1895; final opinion, in affirmance of the earlier one, April 21, 1896.
    Case by Sehfanja Retaja, alias Sam Johnson, against the Aurora Iron Mining Company for personal injuries. From a judgment for defendant, upon verdict directed by the court, plaintiff brings error.
    Affirmed.

      Julius J. Patek, for appellant.

      Clark & Pearl, of counsel for appellant:
    There was negligence in failing to notify plaintiff of the special danger, and assuring him of safety without making proper examination. Cooley, Torts, 661; Railway Co. v. Bayfield, 37 Mich. 210; Swoboda v. Ward, 40 Mich. 424; Brydon v. Stewart, 2 Macq. H. L. Cas. 30, 33 Eng. L. & Eq. 1; Coal Co. v. McGuire, 3 Macq. H. L. Cas. 300; Mellors v. Shaw, 1 Best & S. 437; Ryan v. Fowler, 24 N. Y. 410; Railroad Co. v. Swett, 45 Ill. 197; Schooner Norway v. Jensen, 52 Ill. 373; Snow v. Railroad Co., 8 Allen, 441; Coombs v. Cordage Co., 102 Mass. 572; Walsh v. Peed Valve Co., 110 Mass. 23; Perry v. Marsh, 25 Ala. 659; Strahlendorf v. Rosenthal, 30 Wis. 674; Grizzle v. Frost, 3 Fost. & F. 622; Railroad Co. v. Baugh, 149 U. S. 368, 387; Mather v. Rillston, 156 U. S. 391.
    The master must furnish the servant with a reasonably safe place in which to perform his work. Swoboda v. Ward, 40 Mich. 420; Parkhurst v. Johnson, 50 Mich. 70; Huizega v. Lumber Co., 51 Mich. 272; James v. Mining Co., 55 Mich. 335; Smith v. Car Works, 60 Mich. 501; Adams v. Iron Cliffs Co., 78 Mich. 271; VanDusen v. Letellier, Id. 492; Brown v. Gilchrist, 80 Mich. 56; Morton v. Railroad Co., 81 Mich. 423; Sadowski v. Car Co., 84 Mich. 100; Roux v. Lumber Co., 85 Mich. 519; Palmer v. Railroad Co., 87 Mich. 281, 93 Mich. 363; Tangney v. Wilson & Co., 87 Mich. 453; Schlacker v. Mining Co., 89 Mich. 253; Ragon v. Railway Co., 91 Mich. 379; Gregg v. Railway Co., Id. 624; Dewey v. Railway Co., 97 Mich. 332, 342; Mather v. Rills-ton, 156 U. S. 391.

      The shift boss was not a fellow-servant of plaintiff. Mining Co. v. Kitts, 42 Mich. 39; James v. Mining Co., 55 Mich. 336; Hunn v. Railroad Co., 78 Mich. 515; Harrison v. Railroad Co., 79 Mich. 409; Lyttle v. Railway Co., 84 Mich. 289; Fox v. Iron Co., 89 Mich 387; Palmer v. Railroad Co., 93 Mich. 363; Erickson v. Railway Co., Id. 414; Ryan v. Fowler, 24 N. Y. 416; Flike v. Railroad Co , 53 N. Y. 549; McKinney, Fellow Servants, p. 54; Gardner v. Railroad Co., 150 U. S. 349.

      Julius J. Patek (Clark & Pearl and Cahill & Ostrander, of counsel), for appellant, on rehearing:
    An employé assumes only such risks as are incident to his employment, and do not arise from the negligence of his employer or his deputies in authority over him and his work. Railroad Co. v. Ward, 90 Va. 687; Davis v. Railroad Co., 159 Mass. 532; Elingsworth v. Electric Light Co., 161 Mass. 583; Schulz v. Railway Co., 57 Minn. 271; Railroad Co. v. Shivell, (Ky.) 18 S. W. Rep. 944; Railway Co. v. Hamilton, (Tex.) 30 S. W. Rep. 679; Schlereth v. Railway Co., 115 Mo. 87; Murphy v. Railroad Co, Id. 111; Elledge v. Railway Co., 100 Cal. 282; Promer v. Railway Co, 90 Wis 215; Johnson v Spear, 76 Mich. 139; Engel v. Smith, 82 Mich. 1; Irvine v. Railroad Co., 89 Mich. 416; Piette v. Brewing Co., 91 Mich. 605; Cregg v. Railway Co., Id. 624; Craven v. Smith, (Wis.) 61 N. W. Rep. 317.

      Cahill & Ostrander, of counsel for appellant, on rehearing:
    Plaintiff was entitled to as safe a place to work in as due care on the part of the master would permit, and this duty of the master to furnish a safe place could not be delegated to others so as to relieve him from responsibility for their wapt of care. Kelley v. Mining Co., 16 Mont. 484; Railway Co. v. Jarvi, 53 Fed. Rep. 65; Mining Co. v. Ingraham, 70 Fed Rep. 219; Balhoff v. Railroad Co., post (65 N. W. Rep 592); James v. Mining Co., 55 Mich. 335; Palmer v. Railroad Co., 87 Mich. 290; Pantzar v. Mining Co., 99 N. Y. 368; Coal Co. v. Wombacher, 134 Ill. 57; Mining Co. v. Schaad, 15 Colo. 197.

      Charles B. Miller, for appellee:
    The doctrine of “safe place” is not applicable to the facts of this case (Hoar v. Merritt, 62 Mich. 386; Beesley v. F. W. Wheeler & Co., 103 Mich. 196; Manning v. Railway Co., 105 Mich. 260; Butler v. Townsend, 126 N. Y. 110; Killea v. Faxon, 125 Mass. 485; Peschel v. Railway Co., 62 Wis. 338); and therefore any negligence of the shift boss would be that of a fellow-servant (Bailey, Mast. Liab. 270; Mining Co. v. Kitts, 42 Mich. 39; Adams v. Iron Cliffs Co., 78 Mich. 288; Dewey v. Railway Co., 97 Mich. 332; Beesley v. F. W. Wheeler & Co., 103 Mich. 196; Jenkins v. Iron Ore Co., 10 N. Y. Supp. 484; Geoghegan v. Steamship Co., 22 N. Y. Supp. 749).
    Upon rehearing, counsel cited, upon the question of safe place, the following additional authorities: Fraser v. Lumber Co., 45 Minn 235; Mining Co. v. Clay’s Adm’r, 51 Ohio St. 542; Schroeder v. Railroad Co., 103 Mich. 213; McGinty v. Reservoir Co., 155 Mass. 183; Coal Go. v. Scheller, 42 Ill. App. 619; Waddell v. Simoson, 112 Pa. St. 567.
   Hooker, J.

Plantiff, a trammer in defendant’s iron mine, was injured by the fall of ore from the roof of the room in which he was at work loading ore into a car. The work was conducted as follows: The miners loosened and brought down the ore to the floor of the stope or room made by taking out the ore, which room was constantly being enlarged by the process. This ore was loaded upon ears and removed by common laborers, called “trammers.” As fast as the ore was removed, it was the practice to support the roof by timbers and posts set a few feet apart. These were called “sets,” and were put in place by a force or gang of men who were called from place to place, as wanted, upon notice from the miners themselves, or through the shift boss or foreman, who had charge of the work of the mine. Above the shift boss was a captain, who had general supervision of the work in the mine. The posts were placed about eight feet apart, a set being eight feet square. The post, being two feet in diameter, was capped and braced, and covered with lagging to support the roof, which had a tendency to crumble. Sometimes large masses of ore would fall, as in this instance. The drift or vein was twelve sets wide, and the room in question was being mined across the vein, about forty feet of the vein being its length, while it would be about one hundred feet wide across the vein, when completed. The miners had taken out sufficient ore to make room for five sets into the vein, and so much appears to have been properly timbered up. At the time of the accident they had mined a space in advance of the last set, which the plaintiff claims was wider than should have been taken without support. The testimony differs about its width, but there is evidence that it was not sufficiently cleaned out to permit of-timbering at the time of the accident, and this does not seem to have been disputed. Some indications of danger were noticed by the trammers, who called the attention of the shift boss to it, but, after looking at it, he told them it was all right, and to “quit monkeying,” and resume work, which they did. The accident occurred about 30 minutes later. The court directed a verdict for the defendant.

The claim of the plaintiff is that the master did not furnish a safe place to work. In our opinion, this place where the men were at work was an incident of mining. It was a result of the common work of the miner and the trammer, both of whose labor combined to make it. After the miner had loosened the ore, and the trammer had removed it, it was ready for the timber men, who followed up when notified, -putting in sets, which enabled the process of mining to be carried further. The undisputed evidence shows that the trammers and miners had not. put the newly-opened space in condition for the timber men, and that the miners had not caused them to be notified that their services were required. If there can be said to have been culpable negligence, it was either in mining too large a space before cutting out the corners preparatory for the sets, or in failing to notify the timber men if sets could have been put in before the ore was still further removed. In either case, if the fault of the miner, it was the negligence of a fellow-servant under the plainest rules. And the same is true if it was through a failure upon the part of the shift boss to cause timbering to be done earlier. He was a foreman, who directed When and where blasts should be put in, and where the men should work, and who was appealed to to settle questions arising as the work progressed. His relation to the men under him was similar to that of a foreman of a section gang upon a railroad to his men, or one in charge of workmen upon a train. Schroeder v. Railroad Co., 103 Mich. 213. Unless it can be said that the duty to furnish a safe place to work is involved, the court was right in directing a verdict for defendant.

There are duties which a master owes to emplbyés, which he must perform; and, while he may confide the performance of such to another, the obligation is still the master’s, and he cannot avoid it by authorizing another to perform the act. In such oases it is not an answer to say that he has provided a competent agent, although such agent may be a fellow workman, and in many things a fellow servant, of the injured person. This question has been discussed of late, and authorities cited, in the opinion of Mr. Justice Montgomery in the case of Schroeder v. Railroad Co., supra. See, also, Beesley v. F. W. Wheeler & Co., 103 Mich. 196. In the latter case the distinction between temporary places built to assist in construction, as stagings, and permanent places, within which men are expected to perform labor, is pointed out. The only difference between the Beesley case and this is that in the former the staging was preliminary to the work of construction, while in this it was an incident of the work being done; and we see no difference in principle. The same distinction was made in the case of Coal & Mining Co. v. Clay’s Adm’r, 51 Ohio St. 542. This was a case of injury resulting from a failure to support the roof of a mine, and the court say:

“We need not discuss this proposition, for we have not that case. Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing; and, instead of being a place furnished by the master for the employés, within the spirit of the decisions referred to, Avas a place the furnishing and preparation of which was in itself part of the work which they were employed to perform. The distinction is shown in a number 'of cases” (which are cited in the opinion).

See, also, Butler v. Townsend, 126 N. Y. 110; Benzing v. Steinway, 101 N. Y. 547; Stringham v. Hilton, 111 N. Y. 188.

It folloAvs that the judgment should be affirmed.

The other Justices concurred.

ON REHEARING.

Hooker, J.

The substance of the question which we are disposed to consider upon the rehearing of this cause is whether the fact that mining operations have proceeded beyond a given point in the stope, and the stopo has been “timbered” up to that point, changes the portion so timbered so that it is to be treated as a place to work, within the decisions requiring a master to furnish the servant a reasonably safe place to work. The alleged inaccuracy of the court, in statmg that the testimony showed that the miners had not put the newly-opened space in condition for the timber men, has no bearing upon this question; and we are satisfied Avith the proposition enunciated, — that the failure of the miners or boss to notify the timber men that the place was in readiness was the negligence of fellow-servants of the plaintiff.

But it was urged by counsel that in the discussion of the question the court neglected to consider the fact that, at the time of the accident, the last timbers set did not support the roof of the mine, the lagging being some distance below the roof, by reason of the caving or dropping of ore from the roof, above the lagging, until it left a space between the lagging and the roof of the mine, and that, as this increased the area of roof unsupported, it caused the ore to fall and injure the plaintiff. It is apparent that if we are to adhere to the holding that miners >and trammers are fellow-servants, and that the shift boss, like the foreman of a section gang, is not an exception, there can be no theory upon which the plaintiff can recover, except that, immediately the room was in readiness for timbers, it was the duty of the master to see that they were properly set and maintained. And it is obvious that this claim must be, as it is, planted upon the rule that, in appropriate cases, requires the master to provide a safe place.

The operation of mining, in this and similar mines, is to sink a shaft, and from the shaft start a drift, from which stopes or rooms are excavated across the vein, from the lower to the upper or hanging wall. It is accomplished by caving down and removing the ore. It is manifest that this cannot proceed unless the roof is supported behind the miners, and this is done by putting up timbers to support the roof until the ore shall be excavated beyond. It is said that, when the room has been excavated sufficiently large, it is the practice to cave the room down into the mining sets, and place more timbers on top of the first. Now, if this room can properly be said to be a place furnished to the servants in which to carry on the master’s business, and which he must, at his peril, keep in reasonably safe condition, as a factory or warehouse, then the case should have gone to the jury; but, if it is not such a place, then it falls within that other rule, that the duty of the master is performed by using reasonable care in furnishing suitable material and employing capable and efficient men to do the work.

In view of the cases of Schroeder v. Railroad Co., 108 Mich. 213, and Beesley v. F W. Wheeler & Co., 103 Mich. 196, cited in the former opinion, there is no doubt that a master must furnish a reasonably safe place for a servant to work, if a structure is required for the carrying on of his business; and the briefs furnished in this case upon the part of the plaintiff would render us more assistance, had they called our attention to cases establishing the claim that a master is obliged to make safe the place which the servant makes >and occupies as a means of doing his work, or which results as an incident of the work, although it necessitates his presence in a place, to a greater or less degree, unsafe. In such cases, must the master stay with, or follow up, the servants, to be certain that they make the place safe, so that they or some of them be not injured?

There are many cases which draw the distinction pointed out. Such a case is Beesley v. F. W. Wheeler & Co., supra. Several other cases are cited in the former opinion. In Fraser v. Lumber Co., 45 Minn. 237, it is said: “An important consideration, often overlooked, is whether the structure, appliance, or instrumentality is one which has been furnished for the work in which the servants are to be engaged, or whether the furnishing and preparation of it is itself part of the work which they are employed to perform.”

As we understand from the brief of counsel and the record, — and we do not discover a denial of it, — this stope or room starts from a drift at or near what is called the “foot wall,” which is the bottom as distinguished from the overlying stratum of the vein of ore. Both foot wall and top wall depart from the level, and dip sharply, so that, in running the stope on a level, it can go but a short distance until the top or overhanging wall is reached; and then the operation is repeated above the lagging, removing the lagging and caving down the roof, supporting the new roof thus formed by new sets placed upon the first. Thus, so far as the lagging is concerned, it has a temporary use merely to enable the miners to push the breast through to the overhanging wall, by supporting the roof. It is a part of the operation of mining,, as much as a blast or a staging, and is not a part of the permanent structure.

The following cases confirm us in our opinion that, as an incident or means of excavating the ore, the master has only the duty of furnishing competent men, and furnishing suitable materials for the use of those engaged in the common employment: Hall v. Johnson, 3 Hurl. & C. 589, where it was held that “an underlooker in a mine, whose duty it was to examine the roof, and prop it up if dangerous, was a fellow laborer with a workman.” Waddell v. Simoson, 112 Pa. St. 567, where it was decided that “the operator of a coal mine fulfills the measure of his duty to his employés if he commits his work to careful and skillful bosses and superintendents.” And in Consolidated Coal Co. v. Scheller, 42 Ill. App. 619, the court held that, if a master exercises reasonable or ordinary care in selecting men and materials, a mine owner is not liable if the roof falls. In Quincy Miming Co. v. Kitts, 42 Mich. 34, a workman was injured by a fall occasioned by the breaking of a bridge across a permanent opening, consisting of a winze or perpendicular shaft for ventilation in a mine. The timber man was held to be a fellow-servant, which excludes the theory contended for in this case. A case substantially like the one before us is Coal & Mining Co. v. Clay’s Adm’r, 51 Ohio St. 542 (cited in the former opinion).

We see no occasion to change or modify the opinion heretofore filed in this cause, which disposed of all questions necessary to a decision of the case.

Judgment affirmed.

The other Justices (Long, C. J., Grant, Montgomery, and Moore, JJ.) concurred.