author: Stone, J. Fellows, J.

text:
    DETTLOFF v. HAMMOND, STANDISH & CO.
    1. Torts — Joint Tortfeasors — Negligence—Death.
    In an action for the negligent killing of plaintiff’s decedent, a driver of a milk wagon employed by a creamery company, whose death was caused by defendant’s motor truck, defendant’s liability rested solely upon its tort, and the creamery company was not a joint tortfeasor with defendant.
    2. Master and Servant — Workmen’s Compensation Act — Liability of Employer — Contracts.
    The liability of an employer, by virtue of the workmen’s compensation act, rests solely upon contract.
    3. Accord and Satisfaction — Payment—Tender—Contracts.
    An agreement between a beneficiary under the workmen’s compensation law in her individual capacity and also as administratrix of the estate of deceased, and the employer, insurance company, and claimant’s attorneys, providing for suit to be brought against the owner of the motor truck which caused decedent’s death, and preserving to claimant her rights under said law, agreeing to release the employer and its insurer from liability in case the amount recovered was greater than the amount payable under the law, was not an accord and satisfaction; there-having been no payment or tender of money.
    4. Master and Servant — Workmen’s Compensation Law — Election of Remedy.
    Where plaintiff’s husband was killed by a collision with, a motor truck while in the course of his employment, and she brought suit against the owner of the truck, such suit amounted to an election under the workmen’s compensation law, and defendant could not again be subjected to a suit at the instance of the employer or insurance company. Act No. 10, pt. 3, § 15, Extra Session 1912.
    5. Same — Agreements Between Employer and Employee — Validity.
    All agreements with reference to compensation arising-from accidental injuries under the workmen’s compensation law are under the direct supervision of the State and they must be filed with, and be approved by, the industrial accident board, and such approval may not be given unless, the terms conform to the provisions of the act, and the contract is not final and binding upon the parties until filed and approved.
    6. Contracts — Public Policy — Statutes.
    A contract is void if it contemplates acts that are illegal or contrary to public policy, and a contract which, in its execution, contravenes the policy and spirit of a statute is equally void as if made against its positive provisions.
    7. Master and Servant — Workmen’s Compensation Law — Agreement to Release Employer and Insurer — Validity.
    An agreement between the beneficiary of a deceased em- * ployee releasing the employer and its insurer from liability under the workmen’s compensation law, not approved by the industrial accident board as provided in said act, if not void ab initio because opposed to public policy and the express provisions of the statute, became so when suit, in accordance with the agreement, was-instituted against the owner of the truck causing decedent’s death.
    Error to Wayne; Mandell, J.
    Submitted January 10, 1917.
    (Docket No. 69.)
    Decided March 29, 1917.

      Case by Mary Dettloff, administratrix of the estate of Joseph Dettloff, deceased, against Hammond, Standish & Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Bishop & Kilpatrick, for appellee.
   Stone, J.

Action on the case by plaintiff as admin.stratrix of the estate of her husband, Joseph Dettloff, for damages, under the “death act,” arising out of his death caused by the defendant. On the 7th of July, 1914, plaintiff’s decedent was driving a milk wagon for the Detroit Creamery Company, at a salary of $21 a week. A motor truck belonging to the defendant, and driven by one of its employees, collided with the wagon which Dettloff was driving, capsizing the wagon upon him, and killing him instantly. On July 30, 1914, the plaintiff made some inquiry in writing of the industrial accident board. On August 3d, the board, by its secretary, answered this inquiry, and inclosed in the letter duplicate blanks for the use of claimant in giving notice under the workmen’s compensation act, so-called. Nothing further was done in this matter by the plaintiff. She never made out or filed with the Detroit Creamery Company any claim for compensation under the act, and never received any compensation or sum of money from it, and never received any money from the Massachusetts Bonding & Insurance Company, hereinafter mentioned, and the said blank claims were never made out or filed with the industrial accident board. On October 14, 1914, the plaintiff was duly appointed administratrix of the estate of her deceased husband, and in November, 1914, the exact day not appearing, she executed, acting both as administratrix of her husband’s estate and on her own behalf, a written agreement, to which was attached a supplementary undertaking on her part in the form of a letter, dated December 11, 1914. These instruments were as follows:

“Memorandum of agreement made and entered into this -day of November, A. D; 1914, by and between Mary Dettloif, of the city of Detroit, Wayne county, Michigan, in her individual capacity and also as administratrix of the estate of Joseph Dettloif, deceased, party of the first part, and the Detroit Creamery Company, a Michigan corporation, and the Massachusetts Bonding & Insurance Company, parties of the second part, and M. H. Bishop and A. W. Kilpatrick, copartners doing business under the firm name of Bishop & Kilpatrick, parties of the third part, witnesseth:
“Whereas, Joseph Dettloif, the former husband of the party of the first part was employed by the Detroit Creamery Company, one of the parties of the second part, for some time prior to July 7th, 1914, as a driver and route foreman at a salary of $21.00 per week, and whereas, on said July 7th, 1914, said Joseph Dettloif while working for said Detroit Creamery Company, in the course of his employment was injured by reason of a collision between the wagon driven by him for said Detroit Creamery Company and a motor vehicle or motor truck owned and operated by the Hammond-Standish Company at the corner of St. Antoine and Winder streets in the city of Detroit, the said injuries causing the death of said Joseph Dettloif; and whereas, the said Joseph Dettloif left surviving Mary Dettloif, his wife, party of the first part, and Evelyn Dettloif, his daughter aged two years, and John Dettloif, a son aged six months, the sole and only heirs at law of said Joseph Dettloif, and dependents of said Joseph Dettloif within the terms and provisions of Act No. 10 of the Public Acts, Extra Session, of 1912, of the State of Michigan, commonly known as the workmen’s compensation law; and whereas, the aforesaid dependents are entitled to compensation from the parties of the second part under the terms and provisions of the said workmen’s compensation law; and whereas, it is the belief of the parties hereto that under the common law and the laws of this State, the administratrix or personal representative of said Joseph Dettloff is entitled to maintain-suit and recover damages from said Hammond-Standish Company for the benefit of the persons entitled thereto under the law, because of the negligent killing of said Joseph Dettloff, and it is contemplated and intended by the parties hereto that a proper action will be instituted against said Hammond-Standish Company for the purpose of recovering the aforesaid damages; and whereas, it is the express intention and desire of the parties hereto to have such suit instituted and prosecuted without prejudice or injury to and without waiving the rights and benefits accruing to the aforesaid dependents from said second parties under and by virtue of the aforesaid workmen’s compensation law, but to have the rights and benefits provided in said workmen’s compensation law and accruing to said dependents under the provisions of said workmen’s compensation law, fully preserved, protected and assured; and whereas, the said parties of the third part represent and are attorneys for said party of the first part, and propose to institute proceedings against Hammond-Standish Company on behalf of said first party; and whereas, because of the financial condition of said first party, said third parties have advanced her certain sums of money for the support of herself and the other dependents and propose to continue so to do from time to time as the condition of said dependents may require such financial assistance:
“Now, therefore, it is hereby mutually agreed by and between the parties hereto, as follows:
“First. The party of the first part, as the administratrix or personal representative, as the case may be, of said Joseph Dettloff, deceased, or her successor, may institute and prosecute such action as may be necessary or desirable against the Hammond-Standish Company to recover damages for the negligent killing of said Joseph Dettloff.
“Second. If the actual amount of money received by the plaintiff in such suit from said Hammond-Standish Company either by settlement, compromise or judgment, shall exceed the amount due and payable by said second parties to the aforesaid dependents under said workmen’s compensation law, then, and in that event, said dependents shall have no claim against said second parties for compensation as aforesaid, and said second parties shall be released and discharged from any and all claims, demands and liability by reason of the death of said Joseph Dettloff so employed by said Detroit Creamery Company.
“Third. If the amount received by said plaintiff from said Hammond-Standish Company, either by suit, settlement, compromise or judgment, shall be less than the amount .of compensation due and payable to said dependents by said second parties under the provisions of said workmen’s compensation law, then, and in that event, said second parties promise and agree to pay to said third parties for the use of said dependents and said first party the difference between the amount so received from said Hammond-Standish Company, and the amount due said dependents under said workmen’s compensation law. And it is further understood and agreed by and between the parties hereto that on payment to said third parties for the use of said first party and dependents of the amount of compensation as aforesaid, that said third parties shall be entitled to deduct from the amount of compensation thus received and the amount recovered from said Hammond-Standish Company any and all sums which have been or may hereafter be advanced by said third parties to said first party for the support of said dependents and said third parties after deducting the amount of said advancement, do promise and agree to pay the balance of the amount received to said dependents.
“Fourth. If said plaintiff fails to recover anything from said Hammond-Standish Company, either by suit, settlement, compromise or judgment, then, and in that event, said second parties promise and agree to obey and comply with all the provisions of said workmen’s compensation law requiring the payment of compensation to said dependents and said second parties agree to pay such compensation according to the provisions of said act to those entitled thereto, and in the time and manner therein specified, said compensation to date back to the time of the death of said Joseph Dettloff, and such back payment to be made in a lump sum. And it is further understood and agreed, and the said first party hereby consents that said second parties, in the event that said plaintiff fails to recover anything from said Hammond-Standish Company, shall pay to said third parties the amount of said compensation due as aforesaid and said third parties are hereby authorized to deduct from the amount of such compensation by them received any and all sums which have been or may hereafter be advanced by said third parties to said first party for the support of said dependents, and said third parties after deducting the amount of said advancements, do promise and agree to pay the balance of the amount of compensation so received to said dependents.
“Fifth. Said first party may at any time desired by her serve notice upon said second parties and present her claim for compensation under the workmen’s compensation law.
“5A. It is understood and agreed that no compromise or settlement of said action against Hammond-Standish Company shall be made by the party of the first part without the consent of the Massachusetts Bonding & Insurance Company.
“And it is further understood that nothing shall be done by the said party of the first part which shall in any manner interfere with or deprive said Massachusetts Bonding & Insurance Company of its rights under section 15 of part III of the workmen’s compensation act, and in the event that said action is discontinued by the said party of the first part, and the Massachusetts Bonding & Insurance Company shall pay to her the compensation mentioned herein, the said bonding company shall have the right to institute a suit against the said Hammond-Standish Company, under the provisions of said act, to recover the said sum or sums of money thus paid and to be paid to the said party of the first part, and the said party of the first part shall give any and all reasonable aid to the said bonding company in the prosecution of said action that she may be called upon to give.
“Sixth. It is further expressly agreed by and be-: tween the parties hereto that all notices and claims of whatsoever character or nature required to be served or given said second parties, or any other persons,; are hereby expressly waived as well as the time, place and manner of the giving and serving of said notices or claims, it being the express intention of the parties hereto not to take advantage of or insist upon compliance with or performance of the terms and provisions of said workmen’s compensation law with reference to any notice, claim, act or demand upon the part of said dependents, and the rights of said dependents shall in no manner be affected or jeopardized by the failure or neglect to serve the aforesaid notices, claims, or demands as provided in said act.”

This agreement was signed by all of the parties thereto.

“Ex. 9 (E. H. C.)
“Detroit, Mich., Dec. 11th, 1914.
“Detroit Creamery Company,
“Detroit, Michigan.
“Gentlemen:
“In view of the fact that the Massachusetts Bonding & Insurance Company has heretofore undertaken to indemnify and save you harmless from any liability on account of the death of Joseph Dettloff, one of your employees, and the further fact that considerable time will elapse before the conclusion and termination of the suit proposed to be brought against the Hammond-Standish Company as provided in the contract this day entered into between the undersigned Mary Dettloff in her individual capacity, and also as administratrix of the estate of Joseph Dettloff, deceased, as party of the first part, and the Detroit Creamery Company, a Michigan Corporation, and the Massachusetts Bonding & Insurance Company as parties of the second part, and Bishop & Kilpatrick as parties of the third part, we beg to advise you that we are willing and do hereby agree as follows, to wit: If the said Massachusetts Bonding & Insurance Company, because of its financial liability, shall default in its said obligation of indemnity to you, the said Detroit Creamery, or fail, refuse or neglect because of its financial inability to pay the compensation to the dependents of said Joseph Dettloff as provided by law and as contracted in the aforesaid agreement, then and in such event you, the said Detroit Creamery Company, shall not be liable to pay such compensation. This shall constitute a supplemental agreement to the agreement aforesaid referred to.
“Yours very truly,
[Signed] “Mary Dettloff,
“Administratrix of Estate of
“Joseph Dettloff, Deceased.
“Mary Dettloff.
“Bishop & Kilpatrick.”

Neither of these instruments was ever filed with, or approved by, the industrial accident board.

This action was begun by summons issued January 8, 1915, in pursuance with the contract made between the parties aforesaid. The declaration was filed January 19, 1915. On February 23, 1915, the industrial accident board wrote the plaintiff, stating that they had not received an answer to their previous letter to her, and inquiring her attitude in the matter. She did not reply to this letter. The issue in the case came on for trial on April 14, 1916, and resulted in a verdict «and judgment for the plaintiff in the sum of $10,000. To review this judgment the case is brought to this court by writ of error, by defendant. Counsel for appellant state in their brief that the record presents a single question of law, namely: Can the plaintiff maintain this action in view of the agreement above set forth? It is said that all other questions raised upon the trial were waived when the bill of exceptions was settled, and in the assignments of error the only exceptions referred to are those relating to this one question.

The said agreement was offered in evidence by counsel for appellant, and was excluded by the court upon objection of plaintiff’s counsel that it was immaterial and irrelevant, to which ruling defendant’s counsel duly excepted. We do not understand that there is any question here upon the pleadings. Section 15, pt. 3, of the act in question (2 Comp. Laws 1915, § 5468) reads as follows:

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”

As' we understand the claims of appellant, they are as follows:

(1) At the common law an'agreement similar to the one above set forth would be a complete satisfaction of plaintiff’s claim.
(2) Under the Michigan workmen’s compensation law, the claimant has an election of remedies, and he may choose either, but not both. He loses one when he elects the other, and certainly one satisfaction ends his rights against both parties.
(3) The agreement in question evidences an election of remedies by the claimant; also it evidences a satisfaction of her claim.

In support of the first proposition counsel urges that the common-law doctrine that a person can have but one satisfaction, no matter how many claims he may have arising out of the same matter, was early applied in this country to actions against joint tortfeasors, and they cite Brown v. City of Cambridge, 3 Allen (Mass.), 474, and quote from page 476; also Leddy v. Barney, 139 Mass. 394 (2 N. E. 107); Chapin v. Railroad Co., 18 Ill. App. 47; McBride v. Scott, 132 Mich. 176 (93 N. W. 243, 61 L. R. A. 4451, 102 Am. St. Rep. 416, 1 Am. & Eng. Ann. Cas. 61).

In support of the second proposition, appellant’s counsel quote section 15 of our statute, and call attention to Grand Rapids Lumber Co. v. Blair, 190 Mich. 518 (157 N. W. 29), in which case we found that said section 15 is identical in substance, and apparently copied almost verbatim from section 6 of the English workmen’s compensation act of 1897, and it is said that the same can be said of the Massachusetts statute. Counsel cite English cases as follows: Edwards v. Godfrey, 2 Q. B. (1899) 333. The headnote of this case is quoted as follows:

“Where a workman who has been injured by an accident arising out of and in the course of his employment brings, an unsuccessful action to recover damages against his employer, and is desirous of having compensation for his injury assessed under workmen’s compensation act 1897, he must follow the procedure prescribed by section 1, sübsec. 4, of that act, and must apply then and there to the judge trying the action for an assessment of compensation; he cannot at a subsequent date initiate independent proceedings against his employer by a request for arbitration under that act.”

See, also, Thompson & Sons v. Marine Engineering Co., Ltd., 1 K. B. (1903) 428.

Counsel lay much stress upon this Thompson Case, and we quote from the brief as follows:

' “This was an action by an employer to be indemnified by the third party for payments made to plaintiff’s employee under the act of 1897. The record showed that the injured employee gave notice of the accident, and without further proceedings, as provided by the statute, and the rules adopted in 1898 applicable thereto, the employer (being the plaintiff in this case) entered into an agreement with its employee, providing for the payment of compensation, and later did pay the same, and it was for these moneys that this action was brought against the defendant, which the plaintiff claimed was legally liable for the accident and damages resulting therefrom. By its verdict the jury found that the defendant was negligent, and the opinion of the court is given upon _ a consideration of the same questions which we have in this ca,se, arising under section 6 of the English compensation act of 1897. * * * After stating the facts above referred to, from which it appeared that no award was made in pursuance with the act, the position of the defendant is stated, namely, that the employer 'can only be reimbursed for any compensation paid in “proceedings” taken against them by the workman, and that no “proceedings” have taken place here/ Evidently an ingenious argument was made on behalf of the defendants, to the effect that a voluntary settlement was not within the language of the statute. The court takes up this question, and in the course of its opinion cites some previous decisions of the English courts, and he concludes from the whole purpose and language of the compensation law that voluntary action between the employer and the workman was, within the meaning of this, section, a ‘proceeding’ under the act.”

Counsel also cite Cribb v. Kynoch, Ltd., 2 K. B. (1908) 551, 1 B. W. C. C. 43; Page v. Burtwell, 2 K. B. (1908) 758, 1 B. W. C. C. 267. In the Page Case, a workman arranged with a company on whose premises he was injured, but who were not his. employers, that in consideration, that he made no legal claim against them they would pay his wages, less such part as he might be entitled to recover from his employer or the head contractor, during incapacity, and his doctor’s bill, for a period not exceeding six months. The workman subsequently claimed compensation under the act from his employer. It was held that the claim would not lie, the workman having already “recovered” damages. against the company; that the word “recover” used in section 6 did not necessarily mean obtained by legal proceedings. In this case the difference between the 1906 statute and that of 1897 is pointed out, namely, that the statute of 1906 left the injured employee with both claims until he secured satisfaction.

Woodcock v. Railway Co., 3 K. B. (1913) 139. In the last-cited case the plaintiff, while working for a colliery company, which had come under the 1906 compensation law, was injured, and thereafter made a claim for compensation against his employer, and received from that company payment for some 34 weeks, under a voluntary arrangement with his employer. Thereafter the employee brought this action at common law against the railroad company, claiming that his injuries resulted under circumstances creating a legal liability within the meaning of the statute. The court said:

“In these circumstances it was very properly only faintly contended on behalf of the plaintiff that he had not recovered compensation, because, as the authorities stand, if a man puts forward a claim for compensation, or takes payments as compensation, knowing that they are compensation, he ‘recovers’ compensation within the meaning of Workmen’s Compensation Act, 1906, although no resistance is offered to the claim when it is made, and therefore no adverse or hostile step to recover compensation has been taken.”

Mahomed v. Maunsell, 1 B. W. C. C. 269, is also cited by appellant’s counsel, claiming that the Massachusetts compensation act of 1911 is in substance the same as the English act of 1897 and the Michigan statute. Counsel cite Barry v. Street Railway Co., 222 Mass. 366 (110 N. E. 1031). That case holds that where, in an action against a street railway company for personal injuries received by the driver of a team which was run into by a street car of the defendant, the defendant alleges and proves that the plaintiff was subject to the provisions of the workmen’s compensation act, and had made with the company insuring his employer an agreement in regard to compensation, which had been approved by the industrial accident board, and had received full payment as provided by the agreement, the plaintiff, in order to show that he was not precluded from prosecuting his action by the provisions of the statute to the effect that under such circumstances he could not both receive compensation under the act from his employer and also proceed at law against the defendant may show that, although the agreement was approved by the board, was signed by him, his signature was procured by false representations ; that it was void and was not an election, so that the board had no jurisdiction to approve it. It was held, however,- under the facts in that case, he having received all payments in. accordance with the agreement and signed each week a receipt stating that the payment was made subject to the workmen’s compensation act, and a final receipt which stated that it was in settlement of compensation under the act “for all injuries” received by him in the collision, the plaintiff was estopped to deny the validity of such agreement and settlement. In the course of its opinion the court said:

“The plaintiff and the insurer signed and filed with the board * * * a memorandum of the agreement in question. * * * If he had expressly stated or made known to the insurer that the agreement and receipts were given ‘without prejudice/ as was found to be the fact in Oliver v. Nautilus Steam Shipping Co. [1903], 2 K. B. 639, upon which he places much reliance, the insurer would have paid with notice that the employee claimed and understood the right of election had been reserved. The right, however, under our statute is exercised when with the approval of the board a settlement is made and compensation thereunder is received during disability.”

In support of appellant’s third proposition it is urged that the agreement had precisely the effect of a, money payment; that it evidences an “election” on the part of the plaintiff within the meaning of the statute, and that the doctrine of accord and satisfaction applies, citing Strobridge Lithographing Co. v. Randall, 78 Mich. 195 (44 N. W. 134). It is said that:

“To permit an injured person to come to the agreement shown in this record with his employer and its insurance company, which will give the employee all that he would get if he strictly followed his rights under the compensation law, and at the same time preserve to him his right to sue at common law a third party, would be indorsing, a palpable evasion of the statute, and it would result, not only in the evils referred to in some of the opinions of the courts, when applying the doctrine of satisfaction in the case of joint tortfeasors, but the evils would be aggravated, because there would then be a race between the insurance company which indemnified the employer, and the insurance company perhaps which indemnified the third party, and between the two competitors even the injured employee would, as a rule, suffer.”

On the other hand, it is said by plaintiffs counsel that it has been the policy of the law, since the passage of the death act, to permit one situated as is this plaintiff to recover against a wrongdoer; that since the enactment of the compensation act the wrongdoer must still respond, but there is therein provided an innovation which permits the employer, or insurance company carrying the risk, to prosecute the action, where they have paid the compensation under the act to the dependents; that this defendant, a wrongdoer, is liable in any event. Under the one situation the liability runs to the personal representative, the plaintiff in this case; and under the other condition the liability runs to the employer, or insurance company. It is said that the agreement of the plaintiff in the contract to institute this suit, followed by its actual prosecution, constitutes an election on her part to be content with damages from this defendant, and she has been particularly careful not to resort to the. machinery provided in the act for the securing of compensation, and not to demand or receive such compensation, and that the uniform purpose of workmen’s compensation acts, under the facts as they appear in this record, is to make the negligent third party ultimately liable for the damages caused by its wrongful act, citing Lester v. Elevator Co., 90 Misc. Rep. 649 (153 N. Y. Supp. 1058); Id., 169 App. Div. 613 (155 N. Y. Supp. 524); McGarvey v. Oil & Grease Co., 156 Wis. 580 (146 N. W. 895), and other cases.

Referring to the first proposition of appellant, counsel for plaintiff take the position, and in this we agree with them, that the doctrine of McBride v. Scott, supra, relating to joint tortfeasors, does not apply here. That rule is inapplicable to the facts appearing-in this record, for in no sense can it be claimed that the Detroit Creamery Company and this, defendant are joint tortfeasors. Defendant’s liability rests solely upon its tort, and upon this record it was alone negligent.

On the other hand, the liability of the creamery company, by virtue of the workmen’s compensation act, rests solely upon contract. As was said in Lavin v. Wells Bros. Co., 272 Ill. 609 (112 N. E. 271):

“The liability is a contract liability not different in its nature from any other liability arising out of contract.”

Neither do we agree with counsel for appellant that the doctrine of accord and satisfaction applies here. Henderson v. McRae, 148 Mich. 324 (111 N. W. 1057). There has been no payment or tender of money. Ogilvie v. Hallam, 58 Iowa, 714 (12 N. W. 730).

In discussing the second proposition of appellant, counsel for plaintiff discuss the Thompson Case, and call attention to the fact that the court reserved its decision on the question of election, but was obliged to hold there had been a “proceeding” under that section of the act in view of the fact that:

(1) The employee gave notice to the employer of the accident.
(2) The employee claimed compensation from the employer.
(3) An agreement was entered into between employer and employee.
(4) The agreement was filed in the way provided in the act.
(5) Compensation was paid under the agreement.

In the instant case, none of the foregoing steps was taken except that an agreement was entered into. It is urged that the court in the Thompson Case would have encountered great difficulty in arriving at the decision it did if no compensation had been paid and facts 1, 2, and 4 had not existed; and attention is called to the facts that in the instant case the employee has given no notice, and made no claim upon the employer for compensation, and the agreement was not filed and approved as required by the act (resulting in the contract not being final and binding upon the parties), and no compensation has been paid.

Counsel for plaintiff discuss the English cases cited by appellant and point out the difference in the facts between them and the instant case. Attention is called to the fact that the opinion of Mr. Justice Jelf in Oliver v. Nautilus Steam Shipping Co., supra, was relied upon by the court in the Thompson Case, and that the Oliver Case was subsequently reversed and a contrary conclusion arrived at. 19 T. L. R. 607. That was a case in which plaintiff was injured by the act of a third party, who was the defendant. The plaintiff wrote his employers, and the insurance company paid plaintiff various sums of money for which receipts were given, and the payments were accepted by plaintiff “without prejudice.” It is true, as suggested by counsel for appellant in their reply brief, that the ease was reversed on the facts. In that case, Lord Justice Romer said, among other things:

“Now under section 6 it could not be said that the workman ought necessarily to be held to have exercised the option thereby given to him merely because he had taken some ‘proceeding.’ Whether the ‘proceeding’ would, on the facts, be such as to bind the workman must depend upon the circumstances of each particular case, including a consideration of what would result from the ‘proceeding,’ and whether or not any injury would result from the proceeding, or from holding that it did not irrevocably bind the workman. * * * His Lordship thought that a proceeding would not be held irrevocably to bind the workman unless the proceeding did result in some compensation being paid to and received by the workman, and under circumstances sufficient to bind the workman.”

Some of the English cases cited by counsel for plaintiff arose under the amendment of 1906, and hence are not in point. The Barry Case is clearly distinguished from the instant case, and it cannot be said that any of the English cases cited by counsel for appellant is on “all fours” with the instant case, but some of them are somewhat analogous in principle.

It is a fair question whether the agreement here may not have been “without prejudice,” and ruled by the Oliver Case. The contract in the instant case in no sense injured the defendant. Its liability remained unchanged. The bringing of this suit was, under the act, clearly an election. That right to sue has not been taken away by the compensation act. This defendant cannot again be subjected to a suit at the instance of the employer, or the insurance company.

Finally, it is urged by plaintiff that the agreement is not binding and is void:

(1) Because made upon a contingency and condition.
(2) Because it was not filed with, and approved by, the board.

Under the first point we are referred to Carpenter v. Forging Co., 191 Mich. 45 (157 N. W. 874), where we said, referring to the agreement under the act:

“In our opinion the statute contemplates an agreement and settlement made without contingency or condition, and not one based upon a possible or probable event that may render it inoperative. An agreement and settlement, based on the strength of such a condition or contingency, is not such as the statute contemplates.”

Upon the second point it is urged that the State through its officials, the industrial accident board, is intrusted with the enforcement of the provisions of the act, and the spirit, as well as the letter of the law, prohibits the employer and employee from frittering away its salutary provisions; that this is evidenced by the fact that while the act countenances and encourages agreements between the employer and employee with reference to compensation arising from accidental injuries, yet all such agreements are under the direct supervision of the State, and they must be filed with, and be approved by, the board, and that such approval may not be given unless the terms conform to the provisions of the act, and the contract is not final and binding upon the parties until filed with, and approved by, the board. We think this- position well taken. The interest which the State has in these matters is well expressed by the Ohio Industrial Commission in Rosensteel v. Forge & Manfg. Co., 7 N. C. C. A. 798. See, also, the language of the Illinois Industrial Board in Fitt v. Public Service Co., 7 N. C. C. A. 800, note.

Part 2, § 20, of the Michigan act reads:

“No agreement by an employee to waive his rights to compensation under this act shall be valid.”

We have been unable to find any similar provision in the English act. On the contrary, in Ryan v. Hartley, 5 B. W. C. C. 407, it was held that there was nothing in that act to prevent an adult workman, before entering a claim, and before any weekly payment had been made, from coming to an arrangement by way of compromise with his employer to accept a sum of money in satisfaction of his claims; and no registration of such agreement is .required. A reference to the Michigan act will mark the difference between the two acts. This court has frequently called attention to these provisions. Foley v. Railway, 190 Mich. 507 (157 N. W. 45); Estate of Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971, Am. & Eng. Ann. Cas. 1916E, 886). If counsel for appellant are correct in their claim as to the legality of the agreement set forth, it must follow that the industrial accident board would not have approved it, because it did not comply with the act.

A contract is void if it contemplates acts that are illegal or contrary to public policy. Drake v. Lauer, 182 N. Y. 533 (93 App. Div. 86, 75 N. E. 1129). A contract which in its execution contravenes the policy and spirit of a statute is equally void as if made against its positive provisions. Hunt v. Knickerbacker, 5 Johns. (N. Y.) 327; Wetmore v. Brien, 3 Head (40 Tenn.), 723.

We are impressed with the* claim that the agreement in question was void ab initio, because opposed to public policy and express statute. If not void in the beginning, it became so when this suit was instituted, and therefore was immaterial and irrelevant to the issue upon the trial. Counsel for appellant have expressed some concern as to what will become of the judgment in excess of $3,000. We hardly think counsel are serious in this claim. This plaintiff is the personal representative of the estate of the deceased, and is authorized to bring this suit (sections 10427, 10428, 3 Comp. Laws [3 Comp. Laws 1915, §§ 14577, 14578]) and the money recovered under the judgment goes to her to be disposed of as the statute directs.

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

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

Fellows, J.

I concur in the affirmance of this judgment on the ground of the invalidity of the contract. If it could be said that the contract is valid and enforceable, it amounts to' an election to proceed against the employer for compensation under section 15, pt. 3 of the act in question. (2 Comp. Laws 1915, § 5468). Under section 6 of the contract, all notices and claims required by the act are waived. This is tantamount to giving the notices and filing the claims required by its terms. Estate of Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971, Am. & Eng. Ann. Cas. 1916E, 886). If the contract by its terms, and I think it does, secures to the dependents compensation under the act, and waives proceedings thereunder, this is equivalent to actual proceedings before the board and is an election. But the contract being unenforceable without the approval of the board, it follows that the election is void and unenforceable.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BLAESS v. DOLPH.
    Master and Servant — Workmen’s Compensation Law — Infection —Undertaker’s Assistant — Course of Employment.
    Where deceased, an undertaker’s assistant, died from a virulent type of streptococcus infection, testimony that-deceased helped his employer handle the body of a person who had died of the same infection, that the sharp-edged tools used in embalming the body were cleaned by him, that he had a slight cut in the finger through which the infection came, that such virulent infection could come only from contact with a dead body, that the only dead bodies handled by him was in the course of his efhployment, that within 36 hours he began to suffer from the infection, held, sufficient to justify the finding of the industrial accident board that deceased received the infection in the course of his employment, entitling his widow to compensation under the workmen’s compensation law.

    Certiorari to Industrial Accident Board.
    Submitted January 10, 1917.
    (Docket No. 84.)
    Decided March 29, 1917.
    Bertha Blaess presented her claim for compensation against Ray A. Dolph for the accidental death of her husband in defendant’s employ. From an order granting compensation said defendant and the Fidelity & Casualty .Company of New York, insurer, bring certiorari.
    Affirmed.

      Chas. H. Rutile (Florian, Moore & Wilson, of counsel), for appellants.

      Arthur Brown', for appellee.

       On workmen’s compensation acts, generally, see extensive note in L. R. A. 1916A, 23; particularly as to injuries “arising out of and in the course of” the employment, see p. 232 of same note.

   Stone, J.

In this case a writ of certiorari was issued to the industrial accident board, inquiring into the regularity and merits of an award for compensation made to the claimant, as the result of the death of her husband, Herman O. Blaess, an employee of Ray A. Dolph, one of the defendants, herein. The defendant Dolph was an undertaker at Ann Arbor, and had employed claimant’s, husband for over one year as his assistant. Both parties, were operating under the terms of the workmen’s compensation act, defendant Dolph being insured by the defendant the Fidelity & Casualty Company of New York. Claimant’s. husband died on December 8, 1915, from a virulent type of streptococcus infection. In its petition for the writ of certiorari of the defendant the Fidelity & Casualty Company it is claimed:

(1) That there was no testimony introduced before the committee on arbitration or the industrial accident board from which it might be concluded that the injury to claimant’s deceased arose out of and in the course of his employment.
(2) That the injured himself did not know where, or when he received the injury and infection; and, although it was amply proven that he might have received it in the course of his employment, ■ there is no testimony upon which a legal conclusion can be based that he did so receive it.

The return of the industrial accident board .to the writ contains the following:

“We hereby further certify and return that from the evidence submitted we made the following finding-of facts: That said Herman O. Blaess was employed by respondent Ray Dolph at the time of the accident complained of, as assistant undertaker at the city of Ann Arbor; that on the 1st day of December, 1915, in the course of his employment, Blaess cleaned and sterilized instruments which had been used by his employer to embalm the body of a woman by the name of Mrs. Roy; that Mrs. Roy died from streptococcus infection on November 30, 1915; that prior to the 2d day of December, in a manner not disclosed by the evidence, Mr. Blaess received a cut upon his ring finger of the left hand; that Mr. Blaess died on the 8th day of December, 1915, from a virulent type of streptococcus infection. We are satisfied from the circumstances as disclosed by all of the evidence, and find as a fact that Mr. Blaess became infected from streptococcus infection on the 1st day of December, 1915, by accidentally becoming infected with said germ while cleaning the instruments which had been used upon the dead body of Mrs. Roy, who had died of streptococcus infection; that the infection from which Mr. Blaess died was the type which comes from the second incubation, that is, this type of germ comes from an infection from a dead body; that the only dead bodies disclosed by the evidence that Mr. Blaess had anything to do with were those that he had to_ do with during the course of his employment, which eliminates, in the judgment of the board, with reasonable certainty, that he may have received it from a source outside of his employment. And therefore the industrial accident board finds that the streptococcus infection entered the body of the deceased while he was working for his said employer, and that this particular type of infection was one of the dangers of the undertaking business, an accident which arose out of and in the course of his employment.”

It is the contention of defendants that during all of this year there had been an epidemic of streptococcus infection at Ann Arbor, in which many people had died, the germs of which were so virulent that death usually resulted in a very short space of time, that the sources of infection were so many that the claimant’s physician could not enumerate them, and that there was no testimony which would permit the sustaining of an award except on the basis of conjecture, speculation, and the merest guess. 'A careful reading of the testimony will show that the claim that there had been, or then was, an epidemic of streptococcus infection at Ann Arbor is not sustained. It did appear that during the two years previous there had been “several of them, and the most of them had died.” There was no evidence that there was on November 30, 1915, any other case than that of Mrs. Roy, who died about noon of that day. The body of this woman had been embalmed by Mr. Dolph and his wife that afternoon, and Mr. Dolph himself testified that Mr. Blaess cleaned the instruments that had been used in the Roy case, “sterilized them, and boiled them and put them in my grips.” Mr. Dolph testified:

“Q. Will you describe to the commission of what your instruments consist, the character of the instruments, whether they are instruments with a dull edge, or a keen edge?
“A. They are keen-edged instruments, most of them.
“Q. How many?
“A. Why, what an ordinary undertaker would use, well, quite a kit of instruments. That would take quite a little bit of time. We have to carry nearly as much as a surgeon would carry, the scalpel, and knives, and different instruments. * * * All the instruments-that I used on this case were put in a separate grip and sterilized by Mr. Blaess after I got home. I always sterilized all instruments and everything used on a case when we got through with it.
“Q. Did Mr. Blaess do that?
“A. Yes, sir; that night. I got home about 5 o’clock. Then he had this man Smith.”

It appears that a man by the name of Smith had died that day at the University Hospital, and Mr. Blaess had taken that body to the medical building for an autopsy, and had then brought it to the undertaking rooms of Mr. Dolph. There is no evidence or claim that the man Smith had died of, or been afflicted with, streptococcus infection. A man by the name of Wagner had died on November 16th or 17th, some two-weeks before, from this infection. He was a butcher-had cut himself, and became infected and died of the infection — and Mr. Blaess had assisted in embalming the body. This was about two weeks before Mr. Blaess’ infection. Mr. Dolph testified that Mrs. Roy’s funeral was on December 3d, and that 'Mr. Blaess helped him dress and put her body in the casket. There was evidence to the effect that Mrs. Roy died of streptococcus infection, that the sharp-edged instruments used in embalming her body were immediately thereafter handled and cleaned by Mr. Blaess; that within 36 hours thereafter he began to suffer from a virulent streptococcus infection which came through a small cut in his finger, which cut was received in a manner not disclosed by any direct evidencethat such virulent infection could only come, according to the medical testimony, directly from a body containing a streptococcus infection; and that no other case of streptococcus infection was shown to have existed where Mr. Blaess could.have acquired the infection, as it would develop' within 24 to 48 hours, and might develop sooner than 24 hours. Dr. Gates, who attended the deceased from the beginning, testified that deceased had a small sharp cut on the ring finger of his left hand, which, when he first saw it on December 2, was red and inflamed. His diagnosis of the trouble was:

“Streptococcus septicemia, gaining entrance through this cut in this finger, escaping the lymphatic glands in his arm and lodging in the lymphatic glands in his neck and breast.”

He testified that the deceased was infected with a very virulent strain of streptococcus, as appeared from the fact that it escaped the lymphatic glands in the arm and lodged in the neck; that germs which lie about the outside of bodies are partly deadened by the action of the sunlight, and produce a less virulent infection, but that when a germ is put through a body, and is then taken from that body and put into another body, it is very active, and will produce “a great deal of trouble in a short time. That must have been •the case in this case.” He also testified that such active germs could not have been picked up from the street, or anything like that, but must have come from some, active source immediately, and that there were no other active sources from which such germs could come, except a body.

• We cannot quote all of the testimony upon this branch of the case as it is lengthy, but do quote the following:

Dr. Gates testified:
“Q. This germ — you said that this germ is a very virulent germ, and wouldn’t come from the outside, that is, wouldn’t come from the dust, or the earth, or from the table here, is that it?
“A. That is it.
“Q. Where would it come from?
“A. It would probably come from some direct source of infection, for instance, if it had been in another body, and had become virulent in that body, a live germ.”

On cross-examination he testified:

“Q. Isn’t it possible that this infection in Mr. Blaess could have been acquired some place else?
“A. I don’t believe it. I sincerely don’t believe it. The whole cause is — if you had followed it through as I did, if you had laid awake as many nights and thought of it as I did, you would know more about it. I tell you this man was infected in this finger, and it must have come from some body. I don’t think that germ was lying around in the dust, or on a box or something of that kind. That germ got busy at once.”

The claimant testified that she first saw the cut on the finger of her husband on the early morning of December 2d, when he complained of its paining him. She described it as a clean cut, as though made with a sharp instrument. There was no evidence that Mr. Blaess used gloves when handling or cleaning the embalming instruments, but claimant testified that he told her he did.

Counsel for appellants say there was no connection between Mrs. Roy’s case and the infection received by Mr. Blaess. We are unable to agree with this contention. We think there was some evidence of this connection. We recognize the rule as stated in McCoy v. Screw Co., 180 Mich. 454, 458 (147 N. W. 572, 573, L. R. A. 1916A, 323) that:

“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant.”

We are of the opinion that an inference favorable to the claimant can be arrived at from the evidence in the case, without indulging in any guess or speculation. Germs cannot be traced in their individual wanderings, like persons. No one ever saw a germ go from a source of infection to its victim’s body. Means and sources of infection are, as a general rule, based on observed conditions.

In our opinion the evidence was sufficient to justify the board in reaching the conclusions stated by it in its return to the writ. At least it' cannot be said that there was no legal evidence upon which to base such conclusion.

The award of the industrial accident board is affirmed.

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


text:
    SHELHART v. SHELHART.
    Divorce — Nonsupport.
    Where a husband, during the three years of married life, neglected to contribute anything to the support of the wife, although during the last two years he had sufficient ability to at least contribute to her support, the wife was entitled to a decree of absolute divorce under the provisions of 3 Comp. Laws, §§ 8622, 8623 (3 Comp. Laws 1915, §§ 11398, 11399).

      Appeal from Berrien; Bridgman, J.
    Submitted January 2, 1917.
    (Docket No. 10.)
    Decided March 29, 1917.
    Bill by Cora A. Shelhart against Joshua U. Shelhart for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Reversed.

      Gore & Harvey, for appellant.

      ‘On the question of failure to support as grounds for divorce, see notes in 29 L. R. A. (N. S.) 618; 43 L. R. A. (N. S.) 261.
      On failure to furnish support as ground of divorce or separation, see note in 43 L. R. A. (N. S.) 255; particularly failure to support as cruelty, see p. 260 of same note.

   Stone, J.

The bill of complaint in this case charges nonsupport and prays for absolute divorce.

There was service by advertisement pursuant to the provisions of the judicature act. The defendant did not appear. An order pro eonfesso was seasonably entered, and the testimony on the part of the plaintiff was taken in open court. After hearing the testimony of the plaintiff and her witnesses, the trial court dismissed the bill of complaint, and a final decree to that effect was entered. The plaintiff has appealed.

The bill was filed under the provisions of sections 8622 and 8623, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11398,11399). Section 8622 provides, among other causes, that a divorce from bed and board forever, or for a limited time, may be decreed on the complaint of the wife when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do. Section 8623 provides that a decree from the bonds of matrimony may be decreed for either of the causes mentioned in the preceding section whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do.

The parties were married at St. Joseph, Mich., April 20, 1913. The defendant after the marriage was ill and unable to work for about one year. During that time the plaintiff supported him by her labor as a dressmaker. The defendant regained his health under his wife’s care, but did no work, and never contributed a dollar to her support, although able so to do. Finally, in 1915, and about a year before the filing of the bill of complaint, defendant abandoned the plaintiff and went to Indiana, where he engaged in business as a barber, having a shop of his own. There was testimony that he said he had a nice business. He never sent any money to the plaintiff, and it is undisputed that he has never contributed anything to her support during their married life.

The record shows a total failure and neglect on the part of the defendant during three years of married life to contribute one cent to the support of the wife. It appears that during two years of that time he had “sufficient ability” to at least contribute to her support. She has no means of support except such as she earns for herself. If a divorce on the ground of gross nonsupport may be granted at all, we think the plaintiff made a case entitling her to relief. In our opinion, the following cases support this conclusion: Brown v. Brown, 22 Mich. 242; Dashback v. Dashback, 62 Mich. 322 (28 N. W. 812); Whitacre v. Whitacre, 64 Mich. 232 (31 N. W. 327) ; Cary v. Cary, 106 Mich. 646 (64 N. W. 510) ; Gellatly v. Gellatly, 185 Mich. 382 (151 N. W. 1037).

In Brown v. Brown, supra, Justice Cooley, speaking for the court, said:

“In suing for divorce on that ground [non-support] it was not «necessary to aver any cruel treatment, except what was involved in the gross, wanton, and cruel neglect and refusal of the defendant to support his wife, he being of sufficient ability.”

In Gellatly v. Gellatly, supra, Chief Justice BROOKE said:

“The record clearly establishes the following undisputed facts:
“(1) The husband is of good health and sufficient ability to earn a living for the wife.
“(2) The wife is without means of support, except such as she earns for herself as a telephone operator.
“Under this evidence we think it clear that the defendant’s refusal to support is gross, wanton, and cruel within the meaning of the statute.”

The evidence in the instant case shows that the neglect to support was gross, that defendant was of sufficient ability, and that is all that the statute requires to entitle the wife to relief.

The decree of the court below is reversed, and a decree will be entered here in accordance with the prayer of plaintiff’s bill of complaint.

Kuhn, C. J., and Ostrander, Bird, Moore, Steers, Brooke, and Fellows, JJ., concurred.


author: Stone, J. Ostrander, J.

text:
    POMEROY v. EVERETT.
    1. Husband and Wife — Married Women — Bills and Notes — Consideration — Separate Estate.
    In an action by tbe administrator of an estate on joint notes given to deceased by defendant husband and wife, evidence that defendant wife recognized her indebtedness in conversation with the administrator and in a claim filed by her in probate court, was sufficient to take the case to the jury on the question as to whether she received the consideration for the notes. Ostrander, J., dissenting.
    2. Witnesses — Bills and Notes — Contracts—Matters Equally Within Knowledge of Deceased.
    In such action, the defense being that the wife was relieved from liability because she was a married woman and the consideration did not go to her separate estate,, and further, that the obligation was discharged by furnishing board and lodging to deceased in pursuance of an oral agreement, both the husband and wife, being parties to the contract, were incompetent to testify to said defense under the provisions of section 12553, 3 Comp. Haws 1915, prohibiting testimony as to matters equally within the knowledge of the deceased.
    3. Same — Principal and Agent — Estates op Decedents.
    The statute declaring any person who acted as agent to be‘ incompetent to testify to any contract in suit claimed to have been made with deceased, the wife was incompetent to testify to said alleged oral agreement claimed to have been made by her as agent of her husband.

      4. Trial — Married Women — Instructions.
    It was not error for the trial court to instruct the jury that defendant wife should be held liable as joint maker of the notes sued on if there was any evidence that she received the consideration for the notes, and that it would not have to be very much evidence because no evidence had been introduced on the part of defendant. Ostrander, J., dissenting.
    Error to Cass; Des. Voignes, J.
    Submitted January 4, 1917.
    (Docket No. 26.)
    Decided March 29, 1917.
    Assumpsit by George T. Pomeroy, administrator with the will annexed of the estate of Albert R. Shaw, deceased, against Edgar C. Everett and another upon two promissory notes. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      David, Anderson, for appellants.

      John R. Carr and A. Lynn Free, for appellee.
   Stone, J.

Action of assumpsit brought by the administrator of the estate of Albert R. Shaw, deceased, against the defendants to recover the amount of two promissory notes payable to the said Albert R. Shaw, or order, both dated April 10, 1908, one for the sum of $300, due one year after date with interest at 6 per •cent, per annum, upon which $15 had been received and indorsed to apply on the interest May 6, 1912; the other note being for $50, due at the same time and bearing the same rate of interest as the other note, upon which was indorsed $5 to apply on the interest May 6, 1912. Both notes were signed by both of the defendants as makers thereof. The defendants are, and were at the time the notes involved in this suit were made, husband and wife. The notes were given for money loaned by Albert E. Shaw. He died in December, 1913, testate, and the plaintiff was appointed administrator of his estate. He attempted to collect the notes from the defendants, and first demanded payment in March, 1914. They refused payment, and suit was brought April 7, 1915. Upon the trial the plaintiff recovered a judgment for the full amount of his claim.

Upon the trial it was the claim of the defendants, and they offered to show by their own testimony, that the money for which these notes were given was loaned by Albert E. Shaw to defendant Edgar C. Everett, and that the consideratión did not pass to defendant Orley G. Everett, and therefore she could not be ñeld liable on the notes; that at the time the money was loaned by Mr. Shaw an agreement was made by the defendants and Mr. Shaw that the latter, having no separate home of his own, desired to make his home with the defendants, they being relatives; that he had in fact been making his home with them from about the month of August, 1907, and desired to continue so doing; that he was a carpenter by trade, and intended to go wherever his work might call him, and to come and go to and from the Everett home as his convenience might dictate; that he would keep his things and his room at the Everett home, and have his board there when he pleased, and that when he desired the interest on these notes he would ask for it, and it should be paid to him; and if at any time he deemed he needed the principal of the $50 note, this should be paid to him on demand. But it was the claim of the defendants that the principal of the $300 note and any part of the principal of the $50 note, and any part of the interest on either note not actually called for, should be the compensation of the defendants for so furnishing a home and board and care for Mr. Shaw. The defendants further claim that they did furnish a home and board, according to the agreement, to an amount considerably exceeding, in fact, the amount of these notes, and that they paid Mr. Shaw' whatever he asked them to pay oh the notes and fulfilled the arrangement on their parts, and that the notes were thereby paid. The defendants were unable to produce any evidence of this claimed arrangement, except as it rested in the knowledge of the defendants themselves. All such offered testimony on the objection that it was prohibited by the statute the court excluded, so that this claimed arrangement was not submitted to the jury at all.

Upon the trial of the case the plaintiff testified to certain interviews which he had had with the defendant Orley G. Everett relative to the liability of - the defendants upon these notes. This witness testified that said defendant had at no time claimed that the notes had been paid; and there was considerable conversation about defendants making a loan at the bank with which to pay the notes. They claimed in the statement to the plaintiff, according to his testimony, that they had some claim against the estate; that there was a balance due them upon book account from Mr. Shaw, and that he had boarded and made his home with them for a time. In these conversations, in referring to the liability of the defendants, Mrs. Everett used the word “we” in speaking of the liability as though it were a joint matter.

The defendant Orley G. Everett filed the following claim in the probate court:

“Estate of Albert R. Sbaw, Deceased, in Account with Mrs. Orley G-. Everett, Marcellus, Micb.
“To amount due for care, attention, washing, mending, board and room furnished for said deceased at home of claimant from August, 1907, at different periods up to the time of his decease ............................... $500.00
“This item is based upon an arrangement and agreement which existed between the parties as follows:
“In June, 1908, the said deceased had some money which he delivered over and took claimant’s, notes which were signed by claimant’s husband and herself upon the understanding that should he at any time or intervals desire the interest it would be paid, but that at his death said notes would be regarded as canceled and belong to and become the property of claimant for the furnishing of a home in the manner aforesaid ; that claimant did furnish a home and did wash and mend for said deceased and did care for him and look after him and provide him with room and board whenever he wished thereafter.
“Orley G. Everett.”
“On this 11th day of September, 1914, before me the subscriber, a notary public in and for said county personally appeared Mrs. Orley G. Everett known to me to be the claimant named in and who subscribed the above and foregoing statement of claim and made oath that said estate is indebted to her in the amount above set forth over and above all legal offsets.
“Gale H. Cavanaugh.
“Notary Public, Van Burén County, Michigan.
“My commission expires February 5, 1917.”

This claim was offered in evidence by the defendants on the cross-examination of the plaintiff. The defendants claimed that there was no evidence at all that the consideration for these notes passed to defendant Orley G. Everett, and that the court should direct a verdict in her favor. The court, however, held that the statement of claim filed in the probate court, together with the testimony of the plaintiff, constituted some evidence that the consideration did in fact pass to the defendant Orley G. Everett, and upon objection by the plaintiff’s counsel, the trial court refused to permit defendant Edgar C. Everett to testify in his wife’s behalf as to who received the consideration. The court directed a verdict against Edgar C. Everett, and submitted the case to the jury on the question of whether Orley G. Everett received the consideration, and they returned a verdict against both defendants. There was some dispute as to exactly what was stated by the defendants to the plaintiff as to whether they had any offset' against the notes. At the close of the plaintiff’s case the defendants moved the court to direct a verdict of no cause of action, because it appeared that the defendant Orley G. Everett was the wife of defendant Edgar C. Everett, being a married woman at the time the notes were made, and there was no evidence whatever that the consideration of these notes was for the benefit of her separate estate. This motion was overruled, and defendants excepted. The court also refused, on objection that it was prohibited by the statute, to permit the defendant Orley G. Everett to testify as to what was said between the parties at the time the notes were signed and the money received. The defendants have brought the case here for review upon writ of error, and error is assigned as follows:

(1) In refusing to direct a verdict for defendant Orley G. Everett.
(2) Error in refusing to permit the defendant Edgar C. Everett to testify as to whether or not his wife, Orley G. Everett, received the money borrowed on these two notes.
(3) Error in refusing to permit the witness Orley G. Everett to testify as to what was said between the parties at the time the notes were signed and the money received.
(4) Error in the charge of the court as given, wherein the court charged the jury as follows:
“Now, gentlemen, as I have said upon this question, if you find under the evidence here any fact or circumstance in the evidence that satisfies your mind by a preponderance of the evidence — and it would not have to be very much evidence, because no evidence has been introduced on the part of the defendant here —but there must be evidence here that satisfies your mind, and which has in it the preponderance, bears the preponderance or weight in your mind, which convinces you that she received the full consideration on these notes, in order to recover as against her. * * * The only question for you to consider so far as this affidavit is concerned, as to whether or not, as I have already stated, it helps you in any way, sets forth in any way or circumstances, whereby the defendant can be said to have charged herself as having admitted that she received the full consideration on these notes. While it is the rule that the plaintiff must prove that the wife received a consideration for signing the notes, yet if it appears from any evidence that she did receive the full consideration, then you should find against her as well as her husband.”

It is the contention of the defendant Orley G. Everett that there was no evidence in the case that she received the consideration for these two notes herself. We think it may be said that, except as testified to by the plaintiff, and as shown by her statement filed in the probate court, there was no evidence that would take the case to the jury upon that subject. We think, however, that there was some evidence upon the subject, as appears by an examination of her claim filed in the probate court, and above quoted. It seems to be a claim filed by her, setting forth that she did furnish a home and render certain services to decedent, and in the jurat to the claim she made oath “that said estate is indebted to her in the amount above set forth over and above all legal setoffs.” This, in connection with the testimony of the plaintiff, which tended to show a recognition of her indebtedness, was, we think, sufficient to carry this question to the jury.

The second and third alleged errors may be considered together. The statute prohibiting the admission of testimony in cases of this kind is contained in section 10212, 3 Comp. Laws as amended (3 Comp. Laws 1915, § 12553), also in 5 How. Stat. (2d Ed.) § 12856. This statute has been before this court so many times that we do not deem it necessary to reproduce it here. Both of these defendants were parties to the notes, or contracts, sued upon. It is conceded that the money was procured of the deceased by the giving of these notes. Manifestly, both of these defendants are within the letter of tho statute, and we are of opinion they are within the spirit of the statute.

It was held by this court in Union Trust Co. v. Morgans, 140 Mich. 134 (103 N. W. 568), that in an action by an administrator on a promissory note payable to his decedent, the maker could not impeach his written promise. For the general rule, see Downey v. Andrus, 43 Mich. 65 (4 N. W. 628).

To have permitted the defendant Edgar C. Everett to testify as to whether or not his wife received the money that was borrowed on these notes, would have been to place the obligation of payment of the notes on either himself or his wife, as he might testify. If, since the signing of the notes, he had become financially irresponsible and his wife still remained responsible, the effect of his testimony would cause the shifting of the liability on the notes from a responsible to an irresponsible party. No one could contradict this evidence but the wife, and her testimony would be inadmissible. The only other party to the contract who was present when it was made was the deceased, and death has closed his mouth. To have permitted either of the defendants to testify as to matters equally or alike within the knowledge 'of the deceased upon this material question would have been to permit them to avoid payment of the notes by their own testimony, given in their own interest, and which it was impossible to contradict because of the death of the other party.

We do not agree with counsel for the defendants that Edgar C. Everett was not an interested party upon that question. He was not a third party. He certainly is a proper party to this suit, and is interested, upon the question of liability for payment of the notes. The defendant Edgar C. Everett is liable upon the notes upon the face of the record. Is his wife liable? She being a married woman at the time she signed the notes, it is contended that the presumption is that she is not liable. This is so, and, unless the consideration for which the notes were given went to her, she is not liable. If the consideration did go to her, then she would be liable as well as her husband. No one living knows the facts surrounding the transaction or to whom the money was paid except the two defendants. The statute says they cannot testify as to any matters equally within the knowledge of the deceased. We think it was the duty of the administrator to make both parties to the notes defendants, and there is some testimony tending to show that the wife received the consideration for the notes.

If the wife made the arrangement as is1 claimed by her for her husband relating to the payment of these notes of the husband, then, under the statute, she, as his agent, having made a contract with the deceased would be excluded from testifying; the statute providing that:

“No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”

We have had occasion many times to call attention, to this statute as amended. In re Van Dyke’s Estate, 171 Mich. 195-199 (137 N. W. 79); Helmer v. Van Wormer, 187 Mich. 1, 7 (153 N. W. 1); In re Reidy’s Estate, 162 Mich. 154, 157 (127 N. W. 254). Many other cases might be cited to the same effect.

In any view of this question which we are able to take we are of the opinion that the trial court did not err in refusing to receive the testimony of either of the defendants in the instances ruled upon.

There being, in our opinion, a question of fact which took this case to the jury as to the defendant Orley G. Everett, we find no prejudicial error in that part of the charge of the court complained of. The judgment of the court below is affirmed.

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

Ostrander, J.

I think there is no testimony which warranted the court in submitting to the jury the' question of the liability of the wife. ■


text:
    KING v. DAVIDSON.
    Master and Servant — 'Workmen’s Compensation Law — Loss oe Several Fingers — Measure oe Compensation.
    A servant wlio lost the little finger, ring finger, and tbe first joint of the second finger of Ms riglit band in tlie course of bis employment was properly awarded as compensation tbe sum of tbe specific awards for tbe loss of each finger, under section 10, pt. 2, of tbe workmen’s compensation act, said award not being in excess of tbe amount provided for tbe loss of a band.

    Certiorari to Industrial Accident Board.
    Submitted January 18, 1917.
    (Docket No. 47.)
    Decided March 29, 1917.
    Wilson King presented his claim for compensation against James Davidson for injuries to claimant’s hand while in defendant’s employ. From an order awarding compensation defendant brings certiorari.
    Affirmed.

      Be Foe & Converse, for appellant.

      E. M. Sharpe, for appellee.

      On workmen’s compensation acts, generally, see extensive note in L. R. A. 1916A, 23.

   Stone, J.

The claimant was injured on February 1, 1916, while in the employ of the defendant; such injury occurring in the course of his employment. As a result of this injury claimant lost the little finger and ring finger of his right hand at the palm of the hand and the large finger at the first joint. In due time an application was made to the industrial accident board, and a hearing by a committee on arbitration was held. This committee awarded the claimant compensation at the rate of $6.95 a week for a period of 50 weeks; said 50 weeks being determined by adding together the 15 weeks allowed by the act for the loss of the little finger, 20 weeks for the loss of the third or ring finger, and 15 weeks for the loss of the large finger at the first joint. A review of this award was asked by the defendant, and the award of the arbitration committee was affirmed by the industrial accident board.

It was the claim of the defendant in the hearings before the arbitration committee and the industrial accident board, and it is his sole claim here, that, as the act pays compensation for disability only, the claimant was only entitled to compensation for a period of 20 weeks, such period being the longest period of time allowed by the act for the disabilities complained of.

Section 10, pt. 2, Act No. 10, Extra Session 1912, commonly called the compensation act, in treating of partial incapacity, provides in part (.2 Comp. Laws 1915, § 5440):

“In cases included by the following schedule the disability in each such case shall be deemed to continue 'for the period specified, and the compensation so paid for such injury shall be as specified therein, to wit: * * *
“For the loss of a second finger fifty per centum of average weekly wages during thirty weeks;
“For the loss of a third finger, fifty per centum of average weekly wages during twenty weeks;
“For the loss of a fourth finger, commonly called little finger, fifty per centum of average weekly wages during fifteen weeks.
“The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half the amounts above specified;
_ “The loss of more than one phalange shall be considered as the loss of the entire finger or thumb: Provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.”

In construing this act, its words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed. Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97 (142 N. W. 271, L. R. A. 1916A, 366, Am. & Eng. Ann. Cas. 1915B, 877).

Under the New Jersey statute, where for disability partial in character, but permanent in quality, the compensation is based upon the extent of disability, under a schedule similar to ours it was held in George W. Helme Co. v. Middlesex Common Pleas, 84 N. J. Law, 531 (87 Atl. 72), that, where several fingers were permanently injured in the same accident, the total award was properly composed of separate awards for the injury to each finger as fixed by the statute, not to exceed, however, the amount provided for the loss of a hand. The court said:

“The intent of the legislature is made plain by the proviso * * * that in no case shall the amount received for more than one finger exceed the amount provided in the schedule for loss of a hand.”

. See, also, 1 Bradbury’s Workman’s Compensation (2d Ed.), p. 655.

The fair construction of this clause of the statute contained in the proviso above quoted would apply it to the loss of more than one finger m the same accident.

Counsel for appellant have cited the following cases: Weaver v. Motor Co., 186 Mich. 588 (152 N. W. 993, L. R. A. 1916B, 1276); Limron v. Blair, 181 Mich. 76 (147 N. W. 546). In our opinion neither of-these cases is controlling of the instant case. The Weaver Case deals with the loss of a remaining eye, the claimant having, seven years before, lost the other eye. We held that the absence of either accident would have left claimant partially incapacitated only, and that total incapacity could not be entirely attributed to the last accident. In the Lim/ron Case we held that additional compensation could not be awarded for a specific loss in addition to compensation awarded for total disability. There the disability was total. In the instant case the claim is not for specific loss in addition to total disability, but only a claim for the specific loss for partial incapacity as provided in the schedule.

We are of opinion that the industrial accident board did not err in its award, and its order is therefore affirmed.

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


text:
    FRAZER v. HOVEY.
    1. Vendor and Purchaser — Land Contract — Time—Waiver.
    Where the vendor in a land contract neglected to furnish an abstract, as he had agreed, at the date named for closing the deal, and both parties continued to negotiate without claiming a forfeiture, the time for consummating the contract was waived. '
    2. Same — Land Contracts — Time for Performance — Essence of Contract.
    The time of performance of a land contract may be extended by parol, especially where time is not expressly of the essence of the contract.

      3. Specific Performance — Land Contracts — Tender.
    Where the vendee appeared at the appointed time and place ready and willing to pay, and the vendor failed to appear, sufficient tender was made to entitle the vendee to specific performance of a land contract, and it was not necessary to prepare and tender a deed to be executed by the vendor.
    4. Same — Evidence—Modification.
    Where the evidence was sufficient to justify a decree in the court below for specific performance the same will be affirmed, .with such modification as may be required from the fact that all the purchase money is now past due.
    Appeal from Wayne; North, J., presiding.
    Submitted January 15, 1917.
    (Docket No. 133.)
    Decided March 29, 1917.
    Bill by John-P. Frazer against Frank D. Hovey for specific performance of a land contract. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Frank D. Andrus, for appellant.

      Harold H. Emmons, for appellee.
   Stone, J.

The bill of complaint herein was filed to compel the specific performance by the vendor, the defendant, of a land contract, admittedly duly entered into by the parties and reading as follows:

“Agreement made this fourth day of October, 1915, between Frank D. Hovey of Detroit, Michigan, hereinafter described as the party of the first part, and John P. Frazer, of the same place, hereinafter described as the second party.
“Witnesseth: That the party of the first part in consideration of the within covenants of the party of the second part and of two hundred ($200.00) dollars hereby deposited as a showing of good faith, and which shall be applied on the purchase price upon closing of the deal, agrees to sell and convey, and the party of the second part, in consideration of the within covenants of said first party, agrees to purchase all that certain piece or parcel of land, with the buildings and improvements thereon, situated in the city of Detroit, county of Wayne, and State of Michigan, and further described as follows: Lot No. 282 and the easterly five (5) feet of 283 of Woodward Park subdivision, according to the plat thereof recorded in the office of the register of deeds for the county of Wayne in Liber 22 of Plats, page 94. For the consideration of seventy-nine hundred ($7,900.00) net dollars, payable to the said first party as follows: Two thousand ($2,000.00) dollars upon delivery of the land contract, and the balance as follows, to wit: Fifty-nine hundred ($5,900.00) on or before June 1, 1916.
“Said first party hereby agrees to furnish to said second party an abstract, extended to date, showing merchantable title and to convey said premises by a good and sufficient warranty deed.
“It is mutually agreed that the deal shall be closed on or before November 1, 1915. It is understood by the parties hereto that the Stormfeltz-Lovely Company were the inducing cause of this deal.
“No verbal agreement shall be binding on either party hereto.
“The stipulations aforesaid are to apply to and to bind the successors, heirs and assigns of the respective parties.
“Witness the hands and seals of the above parties.
“Frank D. Hovey,
“Party of the First Part.
“John P. Frazer,
“Party of the Second Part.
“In presence of Rex Humphrey, Salesman.”

Plaintiff had for a number of years been engaged in the North Woodward avenue district of the city of Detroit in the business of erecting high-grade residences. Rex Humphrey (a real estate dealer connected with the Stormfeltz-Lovely Company) called to plaintiff’s attention the lot in question, which is located on Chicago boulevard, a high-class and highly restricted residence street. Humphrey negotiated the sale, prepared the contract, took it to the plaintiff for signature, and then to defendant, together with plaintiff’s. check for $200. Thereupon defendant gave Humphrey a receipt reading as follows:

“Detroit, Mich., Oct. 4, 1915.
“Received of Rex Humphrey two hundred dollars ($200) first payment on lot 282 and easterly five (5) feet of lot 283, Woodward Park subdivision- balance payable per agreement.
“Frank D. Hovey.”

Humphrey then asked defendant for an abstract, and defendant said the abstract was in the office of the Newberry estate. There is a conflict, in the testimony at this point. Defendant testified:

“I told him that I wouldn’t get an abstract for him until the deal was closed, or until the title was taken, and the final payment made, then I would. He said, ‘John,’ meaning plaintiff, ‘wants an abstract,’ and I replied, ‘That is all right, but I will not furnish an abstract now.’ He said, ‘Will you have any objections to my getting it?’ I said, T have no objections, but it is up to you.’ He said, T will take care of that/ I said, T will have absolutely nothing to do with the abstract at this time/ ”

Humphrey testified that, because his office was in the same building as that of the Newberry estate, he offered to save defendant the trouble of going after it, by getting the abstract for defendant from the Newberry estate. But the Newberry estate refused to do anything about the abstract, except on defendant’s order, and that defendant then telephoned the person in charge of said estate instructing him to bring the abstract down to date, which was done. In the meantime, the 1st day of November, the date named for closing the deal, had passed. When the abstract was ready for examination, the Newberry estate refused to deliver it except upon defendant’s order, and, upon Humphrey reporting this fact to the defendant, the latter gave Humphrey an order reading as follows:

*‘Mr. Smith:
“Kindly let the bearer have the abstract for the 'sixty-five foot lot on Chicago boulevard, and oblige. Dated Detroit, November 12, 1915. ■
“Frank D. Hovey.”

Humphrey got the abstract and delivered it to plaintiff, who had it examined by his attorney. The latter’s •opinion disclosed that defendant did not have legal title to the property, but that the title was in the New-berry estate. At this point the plaintiff testified as follows:

“I did not know that before when I signed the agreement. When I discovered it, I immediately called Mr. Hovey, and told him I had just gotten an opinion from my lawyer, and found that he didn’t have title to the property. Mr. Hovey seemed much surprised, and said: ‘There must be some mistake.’ * * * He said he would attend to it right away. Then I called .'him up about a couple of days afterwards, and told him I was anxious to get that deal closed, because I 'was going East Thanksgiving time, and I was anxious to close that deal before I went, and he said, ‘Don’t worry.’ I returned about the 2d or 3d or 4th of December. I tried to get Humphrey, and I tried to get Mr. Hovey on the phone to find out whether he had .recorded that deed, and couldn’t reach him. I got Humphrey busy. I couldn’t get him. and I figured it was up to him, his agent, to run it down, and so I put it up to Mr. Humphrey. He came back and said all Mr. Hovey had was a contract with the Newberry estate. He said that Hovey owed' about $3,200. I wanted to try and persuade Mr. Hovey, if I could, to get the title in himself; that he understood the business I was in, and I was going to build a house that I would sell for from $30,000 to $35,000 on the property, and I would feel much safer to have Mr. Hovey have title to the property.”

Plaintiff testified, also, that he offered to pay, not •only the $2,000 called for by the contract, but also an additional $1,200, so that defendant could pay the balance which he owed to the Newberry estate and take title in himself. Negotiations looking to this end were begun, but defendant delayed definite answer until December 18th, when he wrote the following letter:

“Hotel Eldorado.
“Detroit, Mich., Dec. 18, 1915.
“John P. Frazer Construction Co.,
“528 Majestic Building,
“City.
“Gentlemen:
“Your option on lot No. 282 and easterly 5 feet of lot 283 of Woodward Park subdivision according to the plat thereof, recorded in the office of the register of deeds for the county of Wayne in Liber 22 of Plats, page No. 94, has expired on November 1, 1915.
“Therefore your deposit by check for $200 is forfeited and the option void according to the agreement signed on Oct. 4, 1915. Although by rights entitled to the forfeited deposit, I am not inclined to take advantage of it and I am holding your check at your’ disposal at my office in the Hotel Eldorado, upon return of the abstract to the Newberry estate.
“With best regards and compliments of the season, I am Yours very truly,
“Frank D. Hovey.”

The evidence showed that this letter was not mailed until 9:30 p. m. of December 19th. Both the plaintiff and Humphrey testified that, upon the plaintiff receiving this letter, they at once called on defendant, who. said that he was ready to go ahead with the deal and have it closed up, and told plaintiff to call in a day or two and he would let him know whether or not he would go and pay the $3,200 or would insist on the original deal. Several further interviews, personal and by phone, took place between the parties during the next few days. Finally, according to the testimony of the plaintiff, the defendant told him that he ought to pay more money for the land, and after some discussion defendant agreed to meet plaintiff at 2 o’clock of that day. At 2 o’clock defendant telephoned plaintiff that he “was sticking to the original letter and the deal was all off,” whereupon the plaintiff sent to defendant the following:

“Detroit, Mich., Dec. 21, 1915.
“Mr. Frank D. Hovey,
“Eldorado Apartments,
“Detroit, Mich.
“Dear Sir:.
“Received your message this afternoon transmitted to me apparently by the elevator boy, and I hereby notify you that I will hold you to the terms of the contract on Chicago boulevard, and will take legal proceedings to hold you to same, having been put to the expense, I shall hold you for the expense for your refusal in carrying out the contracts.
“Yours truly,
“John P. Frazer.”

The plaintiff was ill until after Christmas. On December 24th, Humphrey, according to his testimony, saw defendant, and, upon being informed that plaintiff was ready to go ahead with the deal, the defendant said:

“ ‘Well, I have decided that John is the man to have that lot/ and I said, ‘Now Mr. Frazer is sick in bed, unable to leave his bed today, but Monday we will méet you and close it up/ and he said, ‘You just tell John not to worry at all, as everything is all right; that he shall have the lot/ ”

That defendant thereupon appointed Monday, December 27th, at 10 o’clock a. m., to close the deal, and defendant phoned plaintiff postponing the meeting until 2 p. m.; that at 2 o’clock plaintiff and Plump.hrey called at defendant’s office prepared to pay $3,200 if defendant would grant plaintiff's request, or $2,000 if defendant refused the request and insisted on the terms of the original contract. Defendant was not in his office, and plaintiff was unable to learn where he was, or when he was expected to return. The plaintiff and Humphrey both testified that, at no time did plaintiff refuse to close the deal on the terms of the contract, but that he did urge defendant to allow him to pay enough additional to enable defendant to take title, and thus justify plaintiff in proceeding to erect a costly house on the lot.

There is considerable conflict in the testimony. But an examination of the testimony of defendant shows that he did not treat time as of the essence of the contract, for he testified that after November 1st he Was ready to go ahead with it, and that even down to the day this suit was started the plaintiff “could have had that property if he had come up and paid his money, and carried out the contract,” and that he would have taken the money on December 27th, but said there was a misunderstanding as to the hour of the meeting. Defendant testified as follows:

“Q. But still you were ready at that time to close on the terms of the original contract, if he had given you the $2,000?
“A. Yes, I would have done it if he had come. I understood the appointment was at 3:30.
“Q. And apparently théy thought it was 2 o’clock?
“A. It seems that way.”

Defendant’s witness Walter A. Fry was at defendant’s office when the plaintiff and Humphrey called on December 27th. He testified:

“Both of the gentlemen came in, and Mr. Hovey was not there. They simply asked for Mr. Hovey, and they then went away. I heard Mr. Hovey say that he would not deviate from his original contract; that he would live up exactly, still, to the terms of the contract, and give them a show. Some time was mentioned, 3 o’clock, or something like that, to go ahead and give him the money, pay him the balance, and go ahead according to the first agreement that was closed. * * * There was one occasion, about 5 minutes previous to the service of the injunction, that I overheard a telephone conversation, in which I heard Mr. Hovey say that he would still be ready to go ahead, if they would come over and close the thing up.”

The parties having failed in their proposed meeting of December 27th, the plaintiff evidently became suspicious that defendant might sell the lot to others, and promptly started this suit. There is considerable confusion and contradiction in the testimony of the defendant. The learned circuit judge, who saw and heard all of the witnesses (save one) testify, found the facts to be as claimed by the plaintiff, and decreed specific performance of the contract. The defendant has. appealed.

It is contended by defendant that the plaintiff forfeited the contract, by not complying with its terms, and that time was of its essence.

We are of opinion that defendant first breached the contract by not furnishing the abstract in accordance with its terms, and for this reason, and others covered by the testimony, the deal was not closed “on or before November 1, 1915,” the time named in the contract therefor. By the conduct of the parties, this time was waived, and they continued to negotiate down to the day the bill was filed.

Defendant’s counsel insists that the witness Humphrey was the agent of the plaintiff, and not of the defendant. We do not think the matter controlling.

Time of performance of a contract may be extended by parol, and this is especially true where time is not expressly made the essence of the contract. Loveridge v. Shurtz, 111 Mich. 618 (70 N. W. 132). We think that was done here. By his own testimony, we think defendant understood that the contract was still in existence, and that he agreed to close it on December 27th. Defendant contends that no sufficient tender was made by plaintiff.

When the vendee appears at the appointed time and place ready and willing to pay, and the vendor fails to appear, sufficient tender has been made, and it is not necessary, to prepare and tender a deed to be executed by the other party. Daily v. Litchfield, 10 Mich. 29; 36 Cyc. p. 706.

There was, in our opinion, sufficient evidence to warrant the decree below, and the same is affirmed, with such modification as may be required from the fact that the whole amount of the purchase money is now past due. The plaintiff will recover his costs to be taxed, the same to be deducted from the amount due defendant.

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