text:
    HEBINGER v. ROSS.
    1. Limitation of Actions — Account Current — Evidence.
    In an action for the price of logs delivered to defendant under special contract which provided among other things for payment on receipt of scale bills, defendant, who was not proved to have kept an open account with plaintiff but who sent a final statement and check for the balance that defendant claimed to be due, could not be held liable as on an account current more than six years after the last item of credit upon the indebtedness as shown by defendant’s statement of the amount due.
    2. Same — Memorandum Acknowledging Liability.
    A statement in writing signed by defendant showing the several items of the account as contended by defendant, differing, however, in amount from the sum claimed to be due by plaintiff whose claim as to the provisions of the contract were at variance with defendant’s and with said statement, was nót a sufficient acknowledgment of liability to extend the period of the statute of limitations.
    3. Same.
    An express denial that a contract is continuing cannot be ' treated as an admission of its continuance.
    Error to Bay; Collins, J.
    Submitted January 28, 1913.
    (Docket No. 35.)
    Decided May 28, 1913.
    Assumpsit by Frederick Hebinger against John C. Ross and another for goods sold and delivered and on a special contract. The court directed a verdict for plaintiff for less than the amount claimed. Plaintiff brings error.
    Affirmed.

      Frank S. Pratt, for appellant.

      Stoddard & McMillan, for appellees.
    Under date January 24, 1905, the defendants wrote to the plaintiff a letter in which they offered to take—
    “What beech and soft maple sawlogs you may have on the Gladwin Branch of the M. C. R. R. estimated at about three or four train loads, at the price of $7.50 per M. feet f. o. b. cars at Nine-Mile station. It is understood that these logs are to be sound, smooth, straight body logs, and to be 8 inches and up at the small end. Same to be loaded with at least 2,500 feet to the car. We will accept railroad scale as a basis of settlement on these logs, and are (will) pay by cash on receipt of scale bills. These logs are to be loaded during the next two months.”

      At the bottom of this letter,.plaintiff wrote: “Accepted” and signed, “F., Hebinger & Co.” Pursuant to this contract, plaintiff shipped 74 car loads of logs to the defendants, beginning January 27, 1905, and continuing to March 16, 1905. Under date April 6, 1905, defendants wrote to plaintiff the following letter:
    “Herewith inclosed we hand you our check No. 1829 for $2.54 in full payment of lumber and logs bought of you per inclosed statement dated April 1st. We think you will find this statement correct. Kindly acknowledge receipt and oblige.”
    With this letter went defendants’ check for $2.54 as stated, as well as a statement of logs delivered, reduced to board measure, in which the plaintiff is credited with 169,979 feet of lumber of the value of $1,912.24 and charged with cash and other items amounting to $1,909.70. Defendants’ check was returned to them; plaintiff claiming that a larger sum was due him.
    This suit was begun in the circuit court for the county of Bay by summons, issued March 31, 1911, delivered to the sheriff on the same day, and served on both of the defendants April 1, 1911. The declaration contains the common counts in assumpsit and a special count for the price and value of 200,000 feet board measure of sawlogs sold and delivered by the plaintiff to the defendants at $7.50 per thousand, pursuant to the contract already referred to. The particulars of the plaintiff’s demand as set forth in a bill of particulars filed in said cause are a charge against defendants for 180,000 feet of sawlogs at $7.50 a thousand, amounting to $1,350, with credits to defendants of $923.37, and a claim for interest upon the balance at 5 per cent, from April 1, 1905. The plea was the general issue with a notice of various special defenses, among them the one that the cause of action mentioned in the declaration did not accrue to plaintiff at any time within six years next before the commencement of suit.
    When plaintiff rested his case, defendants asked for a peremptory instruction to the jury, and the motion was granted; a verdict for $2.54 (interest upon which was waived by plaintiff) being directed and judgment entered on the verdict. Motion for a new trial was made and was denied. This ruling and direction of the court and the refusal of the court to grant a new trial are assigned as error.
    It is conceded that the claim sued upon is barred by the statute of limitations unless saved by the letter of April 6th and the statement of account inclosed therewith and the check for the balance of the account according to the statement. It is noted that plaintiff testified concerning the return of the check:
    “The gist of the talk in part at least was that I claimed they owed me more, and they claimed that covered all they owed me.”
    Appellant contends: (1) That the account between the parties was a mutual account current, of which account the last item should be and is the payment or tender of payment by check on the 6th day of April, 1905, for which reason the statute had not run against the claim under the provisions of 3 Comp. Laws, § 9732; (2) that the statement rendered to the plaintiff by the defendants with their letter of April 6, 1905, together with the check accompanying it, was .an acknowledgment, in writing, of the existence and obligation of the contract sued upon within six years before the commencement of suit under the provisions of 3 Comp. Laws, § 9740.
    The sections of the statute already referred to will be read .with 3 Comp. Laws, § 9728, which provides, generally, that all actions of assumpsit founded upon any contract or liability, express or implied, shall be commenced within six years next after the cause of action shall accrue and not afterwards. If the suit be begun to recover the balance due upon a mutual and open account current, the cause of action is deemed to have accrued at the time of the last item proved in said account (section 9732), and if a promise or an acknowledgment is relied upon as evidence of a continuing contract, whereby to take a case out of the provisions of the statute, or to deprive any person of the benefit thereof, such acknowledgment or promise must be in writing, signed by the party to be charged thereby (section 9740).
   Ostrander, J.

(after stating the facts). 1. Was this suit begun to recover upon a mutual and open account current? It does not appear that plaintiff opened or kept an account with defendants. The case made for plaintiff, at the trial, tended to prove the making of the written contract heretofore referred to; that, pursuant thereto, on various days, the first one January 27th and the last one March 16th, he loaded and sent to defendants a total of 74 car loads of logs, containing 3,375 pieces, scaling 179,130 feet, worth, at $7.50 per thousand, $1,343.47; that defendants ought to have credit for $900 paid to plaintiff in cash and for $23.37 for a freight allowance on account of some car loads containing less than the contract minimum quantity of logs. It does not appear that defendants opened or kept an account with plaintiff. They made a statement, it is true, and sent it to plaintiff; but a comparison of the two statements produced by plaintiff at the trial, one made by plaintiff and the other by defendants, does not make it clear that they relate to the same transaction. In the statement prepared by plaintiff, it is indicated that the last logs were loaded March 16th. In the statement prepared by defendants, the last credit for logs is under date March 22d. Both show the sum of $900, paid in cash by defendants and received by plaintiff. Beyond this, the statements are apparently made according to wholly different theories. In defendants’ statement plaintiff is credited with logs at various prices per thousand feet — some at $7, some at $19,, and some at $8, $9 and $12 per thousand. It is true that in the statement prepared by defendants, and. sent to plaintiff, in which the last items appear under date March 22d, a balance is struck and brought down,, showing $2.54 due to plaintiff. Mathematically, this, balance is the correct one, was the correct balance on. March 22d, and until a new or further item is entered, will always be the correct balance. Otherwise, it is not a proved item of the account.

Turning our attention to the contract sued upon, we find that plaintiff was entitled thereby to be paid for logs, in cash, on receipt of scale bills. There is no. testimony showing when scale bills were received except that furnished by the credit which in their statement defendants gave to plaintiff. Accepting this, plaintiff’s right of action accrued March 22d, and this suit was not begun within six years thereafter. See, upon this subject, Kimball v. Kimball, 16 Mich. 211, 217, 218; Campbell v. White, 22 Mich. 178, 25 Mich. 463; Sperry v. Moore’s Estate, 42 Mich. 353 (4 N. W. 13). Compare In re Hiscock, 79 Mich. 536 (44 N. W. 947); Lester v. Thompson, 91 Mich. 245 (51 N. W. 893); Hollywood v. Reed, 55 Mich. 308 (21 N. W. 313); Id., 57 Mich. 234 (23 N. W. 792).

2. Was the statement rendered to the plaintiff by the defendants, their letter of April 6, 1905, and the accompanying check, an acknowledgment of a continuing contract, within the meaning of the statute? It negatives the existence then, or at any time, of the contract sued upon and relied upon by plaintiff at the trial. We think this is a fact of importance. The present action is founded upon an express contract. The terms of the contract are asserted by plaintiff, and testimony was offered by him tending to prove the contract declared upon. The alleged acknowledgment of defendants of former dealings of the parties is not evidence of the continuance of that contract. The provision of the statute relied upon by plaintiff applies “in actions founded upon contract express or implied.” It is that “no acknowledgment * * * shall be evidence of a continuing contract, * * * unless * * * contained * * * in some writing. * * V’ An acknowledgment which would be evidence that a particular contract was continuing would not be evidence that another and different contract was continuing. The acknowledgment relied upon in this case is not a general acknowledgment which may be referred to any existing contract. The letter, read with the statement, and the check, refers to a particular dealing,- or course of dealing, not the one sued upon. Aside from this consideration, the writings relied upon negative acknowledgment of a continuing contract. They amount, at most, to an admission that the defendants had had certain logs, or lumber, of the plaintiff, the last on March 22d, and that they owed him on that day, namely, on March 22d, a balance of $2.54.

An express denial that a contract is continuing cannot be treated as an acknowledgment that it is continuing. We have examined Crane v. Abel, 67 Mich. 242 (34 N. W. 658) ; In re Estate of King, 94 Mich. 411 (54 N. W. 178); Rumsey v. Settle’s Estate, 120 Mich. 372 (79 N. W. 579); Jewell v. Jewell’s Estate, 139 Mich. 578 (102 N. W. 1059); McGregor v. McGregor’s Estate, 156 Mich. 487 (120 N. W. 1071); Walsh v. Mayer, 111 U. S. 31 (4 Sup. Ct. 260) — as well as various decisions of the courts of sister States to which we are referred by counsel for plaintiff, with the result that we think none of them supports the contention of plaintiff that the letter, statement and check of April 6th are, within the meaning of our statute, an acknowledgment, whereby to take the case out of the provisions of the statute. We recognize the fact that some distinctions may be made between cases where an acknowledgment is made before a demand is barred by the statute and those where a promise is relied upon to revive or restore a demand barred by the statute at the time the promise is given. See Home Life Ins. Co. v. Elwell, 111 Mich. 689, 692 (70 N. W. 334), and cases cited in opinion; Miner v. Lorman, 56 Mich. 212, 216 (22 N. W. 265); Craig v. Seitz, 63 Mich. 727 (30 N. W. 347). But we perceive no reason for saying that an acknowledgment must be less distinct and unqualified than a promise made under similar circumstances; that is, if both are made before, or both made after, the demand is barred, in either case one must be as unqualified as the other. An acknowledgment that a certain sum is due is not to be treated differently from a new promise to pay a certain sum.

The judgment must be, and it is, affirmed.

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

       3 Comp. Laws, § 9740, 5 How. Stat. (2d Ed.) §14147.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    DAHROOGE v. SOVEREIGN FIRE ASSURANCE CO.
    1. Insurance — Policy—Standard Form — Waiver—Estoppel.
    Waiver or estoppel because tbe insured acquainted tbe agent of the insurer with the fact that there was an incumbrance outstanding against insured chattels may arise under the standard policy law, Act No. 277, Pub. Acts 1905 (3 How. Stat. [2d Ed.] § 8328), and amendments, although a permit in writing was not attached to the policy.

      2. Same — Assignment—Attorney and Client — Parties.
    Where plaintiff had assigned to his attorneys as security for their fees all his interest in his policy of insurance, they were hound by the result of the action which they commenced in his name and took part in, so that the assignment was not a valid ground of defense to the proceedings.
    3. Same — Interest—Appeal and Error.
    An assignment of error based on the theory that interest should not have been allowed from the date of loss but from sixty days thereafter, is not reviewable on appeal if the point was not brought to the attention of the lower court.
    4. Same — Damages—Excessive Verdict.
    Plaintiff’s insurable interest being shown by testimony to equal or exceed the verdict, the trial court did not err in denying a motion for new trial for alleged excessive •damages.
    Error to superior court of Grand Rapids; Stuart, J.
    Submitted October 17, 1912.
    (Docket No. 123.)
    Decided May 28, 1913.
    Assumpsit by George Dahrooge against the Sovereign Fire Assurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Norris, McPherson & Harrington, for appellant.

      Powers & Eardley, for appellee
   Moore, J.

This is an action of assumpsit on a Michigan standard form fire insurance policy. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

Assured had lived in Grand Rapids since 1906. He had standard form insurance policies issued to him by the same agent prior to the one in question. At the time the policy in suit was bargained for, Mr. Carr, the agent of the company, visited the house, saw the property, and he says the assured told him that the assured owned the property. The assured claims that at that time he told Mr. Carr the insured goods were mortgaged, and that the piano insured was held on contract, and that Mr. Carr said that would make no difference. The chattel mortgage was for $143. It covered not only the property insured, but machinery that was not covered by the policy. It is claimed the value of the property insured exceeded $2,000. The policy was delivered a few days later without permit for the chattel mortgage or the conditional title to the piano indorsed or annexed to it. A fire damaged the property October 14, 1910. Assured made proofs of loss November 30th. His counsel made out the proofs of loss, and at the time of so doing was informed by assured of the state of the title to the piano. In the proofs the assured swore that the property belonged to him in fee, and that no other person had any interest therein. Upon the trial he attempted to explain, and apparently did to the satisfaction of the jury, how that came to be done. Assured made a non-waiver agreement, and was examined under oath touching the loss. This action was brought August 25, 1911. The verdict and judgment was for $679.99.

The errors relied on are grouped by counsel as follows:

“(1) That the court erred in admitting evidence of verbal notice to defendant’s agent of the existence of the chattel mortgage and the piano contract, and of such agent’s verbal consent thereto, and in not directing a verdict for the defendant on the ground that no written consent to such a state of affairs was indorsed on, or annexed to, the policy, also in not granting a new trial for the same reasons.
“ (2) The court erred in refusing requested charges, and in charging the jury of his own motion as to fraud and false swearing.
“(3) Assured had no title to the chose in action, and no right to sue thereon for his own use and benefit.
“(4) The court erred in instructing the jury that plaintiff was entitled to recover interest on the damages claimed from the date of the fire.
“(5) The court erred in refusing to grant a new trial because of the excessive damages awarded the plaintiff.”

The policy contained the following provisions:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership; * * * or if the subject of insurance be personal property, and be or become _ incumbered by a chattel mortgage; * * * provided a loss shall occur on the property insured while such breach of condition continues. * * *99

Groups 1 and 2 may be considered together, as the ruling of the court thereon raises the question as to the effect and proper construction of the standard policy law of 1905 (Act No. 277, Pub. Acts 1905), its related legislation and amendments. Act No. 307, Pub. Acts 1907; Act No. 246, Pub. Acts 1911 (3 How. Stat. [2d Ed.] § 8328). We quote from the brief of counsel:

“Appellant claims that since the adoption of the Michigan standard form fire insurance policy law of June 16, 1905, the entire fire insurance contract made use of in this State, including every term and provision thereof, must be in writing, and that no term of the insurance, and no waiver or estoppel in connection with a fire insurance policy, can exist unless it be in writing, signed by the proper officers of the company, and written on or added to the policy in question.”

This court, in Bryant v. Insurance Co., 174 Mich. 102 (140 N. W. 482), decides this question contrary to the contention of counsel.

3. This error grows out of the fact that plaintiff had assigned his claim as security to his attorneys in this litigation to secure them for their fees. They have taken part in this proceeding. They are bound by its results. Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78).

4 and 5 may be considered together. The first of these relates to the matter of interest. It is claimed the judgment is too large by $7, because of interest being allowed from the date of the loss instead of 60 days later. Defendant preferred several requests to charge, but said nothing in them about when interest should run. The defendant filed a motion/for a new trial, alleging 13 different reasons therefor, but does not mention, in any of them, specifically the matter of interest.

The case of Hartford Fire Ins. Co. v. Landfare, 63 Neb. 559 (88 N. W. 779), is authority for computing interest from the date of the fire in a case like the instant one. As the point was not raised until the case reached this court, we do not pass upon it.

It is urged the jury allowed excessive damages for the injury to the piano. If we assume they allowed the $100, which was stated to be the amount in the proof of loss, the record shows an abundance of testimony of a larger insurable interest than this amount.

The judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Steere, C. J.

text:
    PERKETT v. MANISTEE & NORTHEASTERN RAILROAD CO.
    1. Carriers — Interstate Commerce Act — Federal Regulation— Freight — Liability of Initial Carrier — Constitutional Law.
    By Act of Congress June 29, 1906, chap. 3591, § 7, 34 U. S. Stat. 593, initial carriers of freight were made responsible for the acts and negligence qf a connecting carrier, as agent, and the law being of general operation throughout the United States, and constitutional, is binding on the State courts in actions involving less than the amount required to confer upon the Federal court jurisdiction.

    2. Evidence — Waiver — Correspondence — Self-Serving Declarations.
    Where plaintiff wrote a letter to a connecting carrier over whose line a consignment of apples was sent that was diverted to a point different from the one named in the bill of lading, objections or protests made in the letter were properly received in evidence to rebut defendant's claim that plaintiff consented to or acquiesced in the stoppage; but other statements of fact in plaintiff’s favor were rightly excluded as incompetent.
    3. Same — Bill of Lading — Pleading—Variance.
    Defendant, the initial carrier, being liable for acts of connecting carriers whether it owned a railroad system to the place of delivery or not, the bill of lading which by its terms showed that a connecting carrier was to deliver the consignment at the destination, was admissible in evidence notwithstanding that the declaration incorrectly averred that defendant was a common carrier between' the two points.

      4. Same — Declaration.
    Nor was it a fatal variance to aver under the Federal statute that defendant was liable for the acts of connecting carriers as its agent, though the bill of lading in terms provided that defendant received the goods for transportation over its own line, and as to the remainder of the route acted only as agent: the bill of lading was admissible under the pleading.
    5. Carriers — Bill of Lading — Assignment—Actions—Parties.
    The shipper of freight did not lose his right to recover for injury to the shipment because he indorsed the bill of lading to a bank to collect a draft attached thereto; when it appeared that the bank recognized its position as his agent, and after failing to make collection returned the draft and shipping receipt to plaintiff charging back to him the amount with which his account had been credited.
    6. Same — Conversion—Sales.
    Conceding that at the time of the wrongful diversion of the car of apples, plaintiff had parted with his title, he afterwards re-acquired it and therewith the right to bring the action; such right of action for conversion being assignable in Michigan.
    7. Same — Principal and Agent — Sales.
    Evidence that plaintiff obtained from the consignee directions for shipment of goods sold, that he caused a bill of lading to be issued to the destination given, and sent it with draft attached to a bank at that point which was unable to collect and wrote plaintiff for permission to send the papers for collection to another place where the shipment had been stopped and where the consignee was, that plaintiff gave no directions or consent to the diversion of the freight, which was attached and sold by the consignee, furnished no justification for the conversion and had no tendency to prove the consent of plaintiff, under a bill of lading containing a stipulation that inspection should not be permitted without the written consent of the consignor or unless provided by law.
    8. Same — Evidence—Bill of Lading.
    Prior or contemporaneous oral negotiations are merged in the written bill of lading which cannot be varied or contradicted by parol evidence.
    9. Samf — Trover—Defenses.
    Seizure of a consignment of freight by the purchaser under a writ of attachment is a defense to an action by the consignor only when there was no laches or connivance on the part of the carrier; and where the railroad company diverted the consignment to a point 60 miles from its destination, and left it standing on the tracks, permitting the consignee to open, handle and deal with the property as he saw fit in violation of the contract of carriage, its wrongful stoppage of the car amounted to collusion as a matter of law and the trial court correctly directed a verdict for plaintiff.
    Error to Grand Traverse; Mayne, J.
    Submitted January 13, 1913.
    (Docket No. 69.)
    Decided May 28, 1913.
    Case by Louis F. Perkett against the Manistee & Northeastern Railroad Company for the loss of a car load of apples. Judgment for plaintiff on a directed verdict. Defendant brings errors
    Affirmed.

      Wilson & Wilson (Parm C. Gilbert, of counsel), for appellant.

      H. C. Davis (Reuben Hatch, of counsel), for appellee.

      On the question of State statutes regulating the liability of carriers as to shipments over connecting lines as interference with interstate commerce, see note in 7 L. R. A. (N. S.) 388.

   Steere, C. J.

This action was brought to recover damages from defendant for failure to deliver at its destination a car load of apples shipped by plaintiff, on December 3, 1909, from Traverse City, Mich., consigned to himself at Chamberlain, S. D., with instructions to notify W. W. Davis at Chamberlain. The case was tried in the circuit court of Grand Traverse county before a jury, and judgment entered on a directed verdict in favor of plaintiff for the value of the consignment.

The facts are practically undisputed. In the latter part of October, 1909, W. W. Davis, who resided at Mt. Vernon, S. D., visited Traverse City and purchased from the plaintiff six car loads of apples at $3 per barrel, free on board at Traverse City. Davis at that time gave plaintiff instructions as to billing the cars. All were sent to points in South Dakota according to such instructions; the first to Mt. Vernon, the second to Puckwana, the third to Mt. Vernon, the fourth to Chamberlain, the fifth- to Puckwana, and the sixth to Chamberlain. Three of the first five were diverted by Davis, from the place to which they were billed, to other towns in the vicinity. The first five car loads shipped were all received by Davis at their destination, or at the place to which they were diverted by him, and paid for according to agreement. On December 3, 1909, the sixth car, which is the subject of this litigation, was shipped, in accordance with instructions from Davis, to Chamberlain, S. D. Defendant promptly sent the car forward to its destination, according to a proper routing, which took it, after leaving defendant’s line, over the Chicago, Milwaukee & St. Paul Railroad, on which line Chamberlain is located. The shipment contained 194 barrels of apples. Plaintiff delivered the apples free on board the car at Traverse City, and received from defendant a regular bill of lading, in form required by law and as authorized by the State railroad commission. On the same date, after so delivering the apples to defendant, plaintiff drew a sight draft on Davis for $470.40, which was the balance of the purchase price, a previous payment having been made, and deposited the draft, with the bill of lading and invoice attached, in the First National Bank of Traverse City, for collection. The Traverse City Bank, on the same day, credited the amount of the draft to plaintiff’s account and sent the same forward, with the invoice and bill of lading, for collection to the Whitbeck National Bank of Chamberlain, S. D.

The car load of apples in question never reached Chamberlain, but was stopped at Mt. Vernon, Davis’ residence, 60 miles short of its destination, on December 15 or 16, 1909, where it remained in the yards of the company until January 3, 1910. Owing to the stoppage of the car at Mt. Vernon and the fact that Davis resided there, the Whitbeck National Bank of Chamberlain was unable to collect the check or present it to Davis for payment, and so advised the Traverse City Bank, which thereupon authorized the Whitbeck Bank to send the same to the First National Bank of Mt. Vernon for collection. This was done, and Davis, on presentation of the draft and bill of lading to him, dishonored the same, refusing payment. The draft and papers attached were then returned uncollected to the First National Bank of Traverse City, on January 6, 1910, and by it charged back to plaintiff’s account. No diversion of the car from Chamberlain after it was billed is shown to have been consented to by plaintiff, and he had no knowledge of the fact until December 21, 1909, when, on returning to his office in Traverse City from a temporary absence on business, he found a letter from Davis, received at the office two days before, informing him that the car was at Mt. Vernon, and making complaint as to the quality of this shipment, and previous shipments which he had already accepted and paid for, demanding a reduction in the price previously agreed upon. Plaintiff protested by mail, both to Davis and to the terminal carrier, but to avoid further trouble offered to make a deduction of $100 on the price, to which Davis replied :

“Think I am entitled to $500 damage but to settle will take $150.”

In the meantime the car stood on a siding at Mt. Vernon, and Davis was permitted by the railroad company to have quasi possession of it to look after the apples. He states that he put in an oil stove to keep them from freezing. On January 3, 1910, Davis caused the entire shipment to be seized by the sheriff under a writ of attachment issued out of the district court of Davidson county, S. D., on a suit commenced by himself. On January 8, 1910, the sheriff of said county mailed a notice of said attachment to plaintiff herein. Subsequently Davis obtained a judgment, and the property was sold under such attachment proceedings, the date of sale not being shown in this record. As a result, the consignment was a total loss to the shipper except the $100 paid before shipment. Plaintiff thereafter, and within the requisite time, demanded payment for his loss from defendant, the initial carrier, and duly presented his claim in writing. The same was considered by the proper officials of defendant, and payment refused.

This action was then brought, relying and declaring, amongst other things, upon the Federal interstate commerce act of June 29, 1906, chap. 3591, § 7, 34 U. S. Stat. 593 (U. S. Comp. Stat. Supp. 1911, p. 1307), which provides, in part:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one- State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, -or transcript thereof.”

At the conclusion of the testimony it was agreed, by counsel for the respective parties, that there were no questions of fact in the case for the jury to pass upon, and each side requested the court to direct a verdict in its favor. As to the measure of damages, counsel for defendant contended that, if the court should direct a verdict in favor of plaintiff, it could be only for the amount of his draft. This was conceded by counsel for plaintiff, interest being added from January 4, 1910, and the amount computed without objection was determined to be $522.83. The court thereupon, after argument of counsel on the legal questions involved, directed a verdict and entered a judgment for the amount stated.

The validity and purpose of that portion of the interstate commerce law relied upon by plaintiff is no longer open to question. In Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164, 31 L. R. A. [N. S.] 7), Justice Lurton, in delivering an opinion of the Supreme Court sustaining the constitutionality of the act, said:

“The requirement that carriers who undertook to engage in interstate transportation, and as a part of that business held themselves out as receiving packages destined to places beyond their own terminal, should be required as a condition of continuing in that traffic to obligate themselves to carry to the point of destination, using the lines of connecting carriers as their own agencies, was not beyond the scope of the power of regulation. The rule is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility. The regulation is one which also facilitates the remedy of one who sustains a loss, by localizing the responsible carrier. 'Neither does the regulation impose an unreasonable burden upon the receiving carrier. The methods in vogue, as the court may judicially know, embrace not only the voluntary arrangement of through routes and rates, but the collection of the single charge made by the carrier at one or the other end of the route. This involves frequent and prompt settlement of traffic balances. The routing in a measure depends upon the certainty and promptness of such traffic balance settlements, and such balances have been regarded as debts of a preferred character when there is a receivership. Again, the business association of such carriers affords to each facilities for locating primary responsibility as between themselves which the shipper cannot have. These well-known conditions afford a reasonable security to the receiving carrier for a reimbursement of a carrier liability which should fall upon one of the connecting carriers as between themselves.”

The statute of June, 1906, is a law of general operation throughout the United States, and as such is to be given effect in the State courts, their jurisdiction being concurrent with the Federal courts where the amount in controversy is sufficient for Federal court jurisdiction, and where the sum involved is not large enough the State courts only have jurisdiction. Smeltzer v. Railroad Co. (C. C.), 168 Fed. 420.

Based on its assignments of error, it is urged and argued in behalf of defendant that a verdict should have been directed in its favor, for the reason that the First National Bank of Traverse City, and not plaintiff, owned the car load of apples at the time it was stopped at Mt. Vernon and seized by the sheriff of that county; that both the bank and plaintiff are shown to have acquiesced in the change of destination; that plaintiff’s bill of lading was not admissible under his declaration; and that the case in any event should be reversed because the court erroneously admitted in evidence a certain letter sent by plaintiff on December 22, 1909, to the general freight agent of the Chicago, Milwaukee & St. Paul Railroad, protesting against the stoppage of the car short of its destination, giving his reasons and stating his claim in relation to the matter. Though the court thought this letter admissible in part for certain purposes, yet in disposing of the case by a directed verdict it was not considered by the court, according to the record. The learned circuit judge then said, amongst other things:

“In my opinion the bill of lading constituted a contract for a continuous trip; that this car of fruit should have made one continuous trip from Traverse City to Chamberlain, except as it might be subject to necessary stops in the course of business, and the stop at Mt. Vernon would not come under this head. They had no right, in my opinion, under this contract, to stop the car by order of W. W. Davis. The facts would not warrant any holding that there was a waiver of the right to the performance of the contract by Mr. Perkett or by the bank; and for this reason, as the letter from Mr. Perkett that was offered in evidence, and to which objection was made, contains considerable matter that was in my opinion not admissible and might have been prejudicial, I include it at the present time, the jury being excused and the matter being before the court. I think the plaintiff is entitled to the benefit of the letter, as far as it shows that there was no actual waiver on his part, and I admit it in evidence, and the defendant may have the benefit of an objection or exception so that they may make use of it. I will say that independent of this letter, I find for the plaintiff. If this letter had not been in evidence, or had not been written, my opinion is that the plaintiff would be entitled to recover. I make this decision without considering the letter.”

We think it clear, as the court stated, that much of the letter was inadmissible, being devoted to statements of fact in plaintiff’s favor, and reasons why he protested against the car not being sent to Chamberlain according to its billing. It is true the letter was not directed to defendant or one of its officials, but it was sent to the connecting terminal carrier, then having custody and direct control over the car, and then, as applied to that shipment, the agent of defendant. The letter was written as soon as plaintiff learned the car was stopped at Mt. Vernon, and before its contents were seized by attachment. It was defendant’s claim that plaintiff had acquiesced in the car being stopped there. We think it was competent in that connection to show that he promptly wrote the connecting carrier, who was defendant’s agent then in control of the property, with power to forward it to its destination, protesting and objecting to a violation of the contract of shipment.

It is contended that the bill of lading was not admissible in evidence because “it shows on its face that defendant was not to deliver the apples at Chamberlain, but that this was to be done by the St. Paul road,” while the declaration was drawn on the theory that the defendant operated a railroad from Traverse City to Chamberlain, alleged defendant was a common carrier between those two points, and agreed to carry the apples and deliver them to plaintiff at Chamberlain.

The declaration recites in apt language the cause of action, and the Federal statute under which it is planted. Under that statute defendant’s liability would be the same whether it owned a line clear to Chamberlain or not. The declaration is not misleading. It alleges the delivery to defendant of 194 barrels of apples, for shipping from Traverse City on a certain date, the receipt of a bill of lading by plaintiff from defendant, describing the property in apparent good order—

_ “Consigned to the order of L. F. Perkett, destination Chamberlain, State of South Dakota, notify W. W. Davis at Chamberlain, State of South Dakota, route, Chicago, Milwaukee & St. Paul Railway, car initial, A. R. L., car number 6423, which said defendant, in and by said receipt or bill of lading, agreed to carry to its usual place of delivery at said destination^ if on its road, otherwise to deliver to another carrier on the route to said destination, and said defendant further agreed, in and by said receipt or bill of lading, that the surrender of said receipt or bill of lading, properly indorsed, should be required before the delivery of the property, and that inspection of the property covered by the said receipt or bill of lading should not be permitted unless provided by law, or unless permission was indorsed on the original bill of lading, or given in writing by the shipper.”

It is also urged as a fatal variance between the declaration and the bill of lading that the latter provides :

“In issuing this bill of lading this company agrees to transport over its own line, and except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line.”

The law apparently otherwise provides, treating the connecting carriers as agents of the receiving carrier, and holding the latter liable as principal for the acts of its agents. Atlantic Coast Line R. Co. v. Riverside Mills, supra. We think the shipping bill was sufficiently described in the declaration to entitle it to be received in evidence.

The contention that plaintiff cannot recover because he did not own the apples when stopped at Mt. Vernon and when attached is not tenable. It is true that he had indorsed the bill of lading and delivered it to the bank for collection, and in the meantime had been credited with the amount it .was expected would be collected, thus technically, for the time being, vesting the bank with title to the apples; but the bank, when endeavoring to make the collection, recognized that it was acting for him and under his direction, and obtained his consent before sending the draft to Mt. Vernon for presentation to Davis. On return of the uncollected draft and attached papers, from the Mt. Vernon bank to the Traverse City bank, the draft was promptly charged back to plaintiff, and the papers returned to him. The bank, having failed in making collection, had no further interest in the matter. Plaintiff’s legal title to the property and relations with the defendant carrier then stood as they did when the bill of lading was issued. But, conceding that plaintiff at the time of the alleged wrongful diversion and conversion had entirely parted with the title and then had no interest in the property, a condition fatal in some jurisdictions to his subsequently bringing an action in trover (which is the principle here contended for by defendant) it is, in any event, clear that he had reacquired ownership of the property, with legal title, at the time this suit was brought. This action involves a right of property, incident to which is a wrongful withholding or conversion of the property, and a right of action for conversion is assignable in this State. Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Upham v. Dickinson, 38 Mich. 338; Dayton v. Fargo, 45 Mich. 153 (7 N. W. 758) ; Felt v. Evaporating Co., 52 Mich. 602 (18 N. W. 378) ; Crippen v. Fletcher, 56 Mich. 386 (23 N. W. 56); Smith v. Thompson, 94 Mich. 381 (54 N. W. 168).

We do not find that there is legal evidence that plaintiff and the bank consented to the car being stopped at Mt. Vernon. It is contended that Davis, under his contract with plaintiff, had the right to do so, and that the bank, with plaintiff’s approval, on being advised that the car had been stopped short of its destination, acquiesced in that diversion by sending the shipping bill and draft there for collection. We find no testimony in the record tending to show any agreement between Davis and plaintiff that Davis could, at his option, divert any of the cars from the points to which they were billed. Davis furnished to plaintiff, at the time the apples were purchased, the points to which they should be shipped. He testifies:

“I told him that I would give him the billing of the cars as soon as I could, but probably would want to change the order or billing on part of them; he said to let him know as soon as I found out just where I wanted them.”

They were all billed according to Davis’ directions, and there is nothing in his testimony, or any other that we have discovered, tending to show any authority for Davis to change the destination after the car was once billed and started on its way; neither does the fact that, when the' draft upon Davis could not be presented at Chamberlain, it was sent to where he resided for presentation furnish any evidence of consent to the car being stopped there. Plaintiff testifies most positively that he did not consent to any stoppage or diversion of the cars. After he had shipped them, free on board, billed as directed, though entitled to have them carried to their destination according to the contract, it was immaterial to him what Davis and the railroad did with them so long as the drafts sent to the point of delivery were promptly paid. He is shown to have protested against the stoppage of this car as soon as advised of the fact. He had his contract of shipment, and was entitled to rely upon it, and Davis had no right to change the destination without producing the bill of lading. In Western & Atlantic R. Co. v. Trust Co., 107 Ga. 512 (33 S. E. 821), involving the wrongful stoppage of certain car loads of corn short of their destination, where they were seized under an attachment, the rule is stated as follows:

“The general rule is that a bill of lading, as a contract expressing the terms and conditions upon which the property is to be transported, is to be regarded as the sole evidence of the final agreement in which are merged all prior and contemporaneous agreements of the parties; and, in the absence of fraud or mistake, its terms or legal effect, when free from ambiguity, cannot be explained, added to, or contradicted by parol.”

We conclude there is no competent testimony in this case, written or parol, to contradict or vary the plain terms of the contract of shipment as evidenced by the original bill of lading given plaintiff by defendant at Traverse City.

Under the undisputed facts in this case the seizure of the shipment by legal process at the instance of Davis cannot prevail as a defense. Such a seizure, to furnish an excuse for failure to comply with the contract of transportation, must have been made without laches, connivance, or collusion on the part of the common carrier. In this case the defendant, without any legal authority from the shipper, at the instance of Davis, stopped this car over 60 miles from its destination, in another county, at Davis’ home, and left it standing there for over two weeks upon a side track, during which time it was in the legal custody and control of the terminal carrier, though Davis looked after it and was permitted to open, handle, and examine the packages as he saw fit, in violation of the contract of transportation, which prohibited inspection of the property covered by the bill of lading without written authority from the shipper. The shipper was not consulted at all by the carrier, and the only reason or excuse it had for stopping the car at Mt. Vernon, where Davis could conveniently institute attachment proceedings and seize it in his home county, was that Davis ordered or requested it. While the carrier may have acted in good faith, nevertheless its unauthorized conduct amounted in legal effect to such laches and collusion as preclude interposing as a defense the attending attachment proceedings for which opportunity was afforded by its own misconduct. It is manifest that but for the wrongful stoppage and delay of the car in Mt. Vernon this particular seizure, now urged as a defense, could not have occurred.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    HOSMER v. CITY OF DETROIT.
    1. Wills — Executors and Administrators — Estates of Decedents — Control of Fund — Power in Trust.
    Under a will bequeathing to the city of Detroit for a fountain the residue of an estate amounting to the sum of over $400,000, appointing two executors and conferring on them full power to manage all the estate until the complete execution of -the will, with power to sell, rent, etc., providing, also, that a life-size statue of testator should be placed on the fountain and that the plans thereof should "be subject to approval by the executors, the executors were vested with powers in trust until the completion of the fountain, and the funds or trust estate were to be paid over to the city as work on the structure progressed: the city was not entitled to the control of that portion of the estate bequeathed for the fountain as soon as the debts were paid and the estate collected together.
    2. Same — Interpretation—Intent.
    The intent of the testator must prevail in interpreting 'a will.
    3. Same — Municipal Corporations — Detroit Charter.
    Notwithstanding provisions of the charter of the city of Detroit prohibiting the letting of any contract by the city until the money to be expended is in the treasury or an appropriation made for it, the city is authorized to proceed with the construction of the fountain before obtaining all the funds which remain in the hands of the executors charged with the duty of applying them to the purposes named in the testament.
    4. Same — Cities—Fountain.
    Erection of drinking fountains is a proper municipal purpose, for which a gift or devise may be lawfully received and expended.
    Appeal from Wayne; Mandell, J.
    Submitted January 17, 1913.
    (Docket No. 79.)
    Decided May 28, 1913.

      Bill by George S. Hosmer and Clarence M. Burton, executors of the estate of James Scott, deceased, against the city of Detroit and others for a construction of the last will and testament of decedent. From a decree for complainants, defendant city appeals.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for complainants.

      Walter Barlow (Richard I. Lawson, of counsel), for defendant city of Detroit.
   Steere, C. J.

This suit is before us on an appeal taken by the city of Detroit from a decree of the Wayne county circuit court in chancery construing a clause in the last will and testament of James Scott, deceased, as meaning that complainants were, by the terms of said clause, made donees of a power in trust to carry out the provisions of said will in regard to a fund left to the city of Detroit for the special purpose of erecting a fountain on the “island of Belle Isle.”

The complainants, as executors of the last will and testament of said James Scott, deceased, filed this bill against the three defendants, the city of Detroit, Elm-wood Cemetery, and Jennie Scott, to obtain the construction of certain paragraphs of said will which provide for the erection of a $20,000 tomb on testator's lot in Elmwood Cemetery, and the interment therein of the bodies of certain of his relatives, and, after the payment of certain bequests and legacies not in controversy, for the erection of a fountain on Belle Isle, to be called “The James Scott Water Fountain,” with the proceeds of the residue of his estate. The construction by the court of the provisions of the will relative to the tomb in Elmwood Cemetery was satisfactory to all parties in interest and has not been appealed from.

The estate has been administered by the executors, according to the provisions of the will and without any contention or uncertainties, to the point where a question has arisen over the authority of said executors to retain control of the residue fund yet in their hands, to the extent, and for the purpose, of directing and compelling its proper expenditure by the city, to which it is given, according to the conditions imposed by, and the manifest intent of the testator as expressed in, the will. That portion of the will here involved reads as follows:

“All the remainder of my estate, real and personal, I give, devise and bequeath to the city of Detroit. With the proceeds thereof said city shall build a fountain on the island of Belle Isle. Such fountain shall be built in accordance with plans approved by my executors; said fountain shall be called The James Scott Water Fountain.’ There shall be placed on said fountain a life-size statue of myself, made in accordance with the directions of my executors. * * * I hereby appoint as my executors the Hon. Don M. Dickinson and the Hon. George S. Hosmer or the survivor. They shall have full power to manage all of my estate until the full execution of this will, may rent the real estate, insure it, pay taxes, etc. They shall have power to sell and convey the whole or any part in carrying out its provisions.
“James Scott.”

A codicil to the will provides:

“In the place of the Hon. Don M. Dickinson I make Clarence M. Burton one of my executors, said Burton being at the head of an abstract office in Detroit.”

It is the claim of appellant that, inasmuch as all debts of the testator and the several small bequests have been paid and the estate fully administered and the residue thereof has been assembled and ascertained, ready to be expended under the will according to its provisions, the only remaining duty of the executors is to forthwith turn the same over to the city, to be expended for the purpose it is given, under the direction of the proper municipal authorities.

The testimony in this case shows that testator was in the neighborhood of 75 years of age at the time of' his death, that he left no wife or children, and defendant Jennie Scott, a cousin, is his only heir at law and but for the will would inherit his estate. He was born in the city of Detroit and, with the exception of three or four years, always resided in that city. His will, drawn by Charles A. Kent, an eminent attorney of Detroit, was found in the vaults of the Wayne County Savings Bank. After Scott’s death, which occurred March 5, 1910, Prof. Kent made known the existence of a will. On his suggestion and under authority of the probate court, it was obtained from the bank and admitted to probate on April 20, 1910. The executors duly qualified and each filed a bond of $50,000.

The estate consisted of personal property, inventoried at $43,741.85, and real estate, inventoried at $357,952. In the probation and management of the estate the executors consulted with the municipal authorities relative to the residue which might ultimately go to the city and kept them advised. At the time of hearing in this suit there was estimated to be the sum of $430,000 available for the erection of the water fountain provided for in the will, consisting of $75,000 worth of real estate yet on hand, land contracts amounting to approximately $200,000, and the balance invested in approved municipal, State, and county bonds. Considerable real estate was sold by the executors, under the power contained in the will authorizing them to sell the whole or any part of the real estate of said deceased, and all sales were reported to the common council of the city of Detroit as they were made.

Shortly after the death of testator, when the provisions of his will, making this large donation to the city for the purpose and on the conditions imposed, became generally known, objections to its acceptation developed, and the past life of deceased, which it was claimed by some had not been altogether exemplary, was a fruitful topic of more or less acrimonious discussion. The propriety of the city accepting the alleged tainted money of a gambler to be expended in perpetuating his memory by erecting, on public grounds and in its most beautiful park, an elaborate fountain, crowned by his life-size statue, became a popular subject for moral reflections, both in the pulpit and public press. Protests were filed with the city council and urged at public meetings.

The record of proceedings of the common council show that on November 29,1910, the commissioner of parks and boulevards was directed, in response to a communication from the executors, to accept the gift. As a result of protests presented to the council, the vote of acceptance was reconsidered and the matter referred back to the proper committee. This committee held a public meeting, which apparently took the form of a post mortem inquisition on Mr. Scott’s former life and activities.- On December 20, 1910, said committee reported to the council in part as follows:

“An opportunity was afforded the public to appear before your committee and present their objections, if any, as well as those who were in favor of its acceptance. After considering all that has been said, we are inclined to believe that those objecting have been misled as to the occupation and character of the deceased. The statement is made that ‘his occupation was not in accord with the best interests of society and safe business principles,’ yet not a single voice accused or even intimated in the slightest degree that he was dishonest or ever attempted to wilfully or knowingly wrong any one; no one questioned his integrity, and his occupation was that sought by ninety-five per cent, of the American people, a ‘Retired Capitalist.’ * * * The only thing which is pointed to as being against him are the follies of youth, and those he discarded over 40 years ago. * * * He made mistakes and so have most of us, and when he came to a full realization of it, he not only corrected them with himself, but constantly advised others to shun doing those things which might and would affect their standing in the community, in a social way or from a commercial standpoint”—
and again recommended acceptance of the gift.

With these assurances on the part of the committee the council, on December 20, 1910, approved the report. On December 27th a plebiscite was proposed by a resolution introduced to submit the acceptance or rejection of the gift to popular vote, which was defeated by a large majority. The executors, during this agitation, proceeded undisturbed in the administration of the estate in accordance with the provisions of the will and in due time requested the common council to formally accept the donation, which, as shown, was eventually done. The executors kept the city officials advised of the progress being made in settling the estate, from time to time making reports and submitting their action to the council for approval. The sales of real estate made by them, investment of funds, and general course of conduct in handling and conserving the assets of the estate have been acceptable to the municipal authorities and were formally approved by the common council. Nothing has yet been done towards erecting the proposed fountain except the preparation of some plans by thé city park and boulevard committee, and conferences between the executors and the municipal authorities over such plans and in regard to the location of the fountain. A proposal was made, through the mayor, that a portion of the legacy be devoted to filling in the ground at the lower end of the island to increase its area, at an estimated cost of $200,000, to which the executors would not consent; it being their opinion that such use of the fund was not permitted by the terms of the will. They also took the same view of the suggestion that a portion of the fund be set aside for endowment or maintenance of the fountain.

It is undisputed that the city of Detroit, having formally accepted the gift, is the residuary devisee and legatee of deceased, vested with the title to the remaining funds of the estate, in trust for the erection of a water fountain according to the conditions imposed by the will. For the city, it is contended the time has arrived when it is entitled to the custody and control of% this residue, now defined and ascertained, and the executors should turn the same over to it that it may forthwith proceed with the work of erecting the fountain as provided by the terms of the testator’s will, subject only to the approval by the executors of the plans for the same; that the work of the executors ends and they have fully performed their official duty when they pay the debts, assemble the assets of the estate, and pay over to the beneficiaries their respective portions, and, in case of the fountain fund, approve the plans which the city proposes.

If the will only imposes upon them the duties of ordinary executors, this contention is correct, and the city, after obtaining the fund, would be required to expend it according to the terms of the donation, subject only to the restraint of a court of chancery, which might be appealed to by any one interested, in case the trust was being violated. 'Was it the intent of the testator, as manifested by the will, to leave this, large fund in that condition?

Thé will leaves this residue “to the city of Detroit. With the proceeds thereof said city shall build a fountain on the island of Belle Isle.” That it can only build it in accordance with plans approved by the executors is distinctly stated. Of that duty in relation to the fountain there can be no question, and to that extent, at least, they were to control its erection. The will also confers on them other general powers beyond those of one simply designated and appointed an executor. It specifies that:

“They shall have full power to manage all of my estate until the full execution of this will, may rent the real estate, insure it, pay taxes, etc. They shall have the power to sell and convey the whole or any part in carrying out its provisions.”

Counsel for appellant say this case turns on the meaning of the words “until the full execution of this will,” and contend such language should be construed to mean that stage of the probate proceedings where funeral expenses, debts, and specific legacies have been paid and the residue of the estate assembled and ascertained, so that nothing remains but to render a final account and distribute such residue; that the duties of the executors as such are then closed except for the adjustment of their accounts. In support of this contention counsel cite and rely on Calkins v. Smith’s Estate, 41 Mich. 409 (1 N. W. 1048); In re Lamb’s Estate, 122 Mich. 239 (80 N. W. 1081). The construction contended for was placed upon similar language in those cases in passing upon wills which contemplated a different disposition of portions of the estates in case certain beneficiaries should die before the executors concluded the performance of their official duties. The gist of each of those decisions is that the executors were not required nor allowed to protract the administration of the estate by waiting for some one to die. In Calkins v. Smith’s Estate, the testator provided in his will for other disposition of a bequest of $1,000 to his wife in case she died before his estate was settled. The court interpreted that language in the will, in the light of its other provisions and the facts surrounding the case, as meaning that a settlement of the estate was “the stage of the proceedings when the funeral expenses, debts, and legacies are paid, and when nothing remains but to proceed with the steps for a division of the residue,” saying: .

“That is put beyond doubt by the ninth clause of his will, in which this thousand dollars is named among the sums to be paid before the residue is distributed. * * * Conditions are not favored in law when they defeat estates, and they should not for a moment be subject to be continued at the option or through the misconduct or neglect of others where any other conclusion is reasonable.”

In Re Lamb’s Estate, supra, the court was called upon to construe the language, “but in case of the death of any of the above legatees previous to the probation or execution of this my last will and testament,” the testator having left all of her estate to her brothers and sisters, naming them, share and share alike. As applied to that will, under the circumstances of the case, the court said the word “execution” manifestly applied to something to be done after testator’s decease and contemplated the action of the executor in carrying the will into effect, or execution, by disposing of the assets according to its terms. Speaking of one of the beneficiaries, the court said:

“At her death Mr. Ray received an estate upon the sole condition that he live until the will was executed, and the property ready for distribution. This was the construction placed upon similar language in Scott v. Guernsey, 60 Barb. [N. Y.] 163, 175, and Lambert v. Harvey, 100 Ill. 338, and is not in conflict with Calkins v. Smith’s Estate, 41 Mich. 409 [1 N. W. 1048].”

Each of those cases involved contingencies in the distribution of the estates, depending on the death of beneficiaries, and the court in construing those wills emphasized the rule that the intention of the testator must govern and must be determined from the will taken as a whole in the light of existing conditions as proven.

Conceding that counsel’s contention is correct and that by strict construction the point has been reached where the duties of the executors as such are practically at an end, and the will executed, we still have the more important question before us of the intent of the testator and meaning of his will as to the rights and duties and powers in trust of the executors under the terms of the will “in carrying out its provisions,” whether it be as executors or trustees. That a power may be granted with a devise or bequest to others than the beneficiaries, and such power conferred upon the same persons who are appointed executors of decedent’s will, the authority to exercise, or execute, the power being derived from the will, is beyond question. This rule is recognized in Calkins v. Smith’s Estate, supra, and borne out by many authorities.

Had the testator in this case devised the residue of this estate to the executors in trust with the power of sale, they would be vested with the title; but here the executors are given the power of disposing of the estate without an express devise to them for that purpose; they therefore do not take the legal title to the estate, which is vested in the city. Although the estate is not vested in the executors, they are invested with the power of disposition, or sale, in carrying out the provision of the will. This power of disposition has a significant bearing on the authority or power intended to be given to the city as well as the executors, and implies, read in connection with other parts of the will, certain co-ordinate powers in trust given to each. The will provides that the city shall build the fountain “with the proceeds” of the residue of testator’s estate, real and personal. While manifestly intending that this estate shall be converted into money, which would be the proceeds essential to the erection of the fountain, the executors are not only given full power to manage this property by insuring, paying taxes, collecting rent, etc., but “to sell and convey the whole or any part in carrying out” the provisions of the will; thus clearly, we think, indicating an intention on the part of the testator that, while the title to the residue is vested in the city, the executors are to have the power of managing this property and of converting it into money available for the erection of the fountain in question, it being their duty to pay it to the city as needed to enable it to proceed with its task of building the fountain according to plans which said executors may approve.

The cardinal rule of testamentary construction, that the intent of the testator must prevail, is too well settled to require the citation of authority. Whatever construction may be placed upqn corresponding words in other wills, the natural, manifest, and lawful intent of the testator in the particular will under consideration is not to be defeated. There are no irreconcilable provisions in this will, calling for a strict and technical interpretation of the language used; there are no contingencies or uncertainties as to what is to be done, and what the testator intended should be done, in the application of this fund to a certain project.

It is strenuously contended by counsel for defendant that the funds must all be paid over to the municipality before any steps can be taken for the erection of this fountain, because the city charter prohibits the letting of any contract by the city until the money proposed to be expended under said contract is actually in the treasury or an appropriation made therefor.

We do not regard any provision of the city charter along that line as a serious obstacle to the execution of this trust. Those provisions relate to public improvements, such as pavements, sewers, buildings, and other public work to be paid for with money raised by taxation, and so require that the money be in the treasury “or an appropriation made therefor before the liability is incurred.” The city has authority from its charter to accept and devote to public purposes, either of use or ornament, gifts of real or personal property.

“The erection of a drinking fountain is a proper municipal purpose and a city may take a devise therefor.” 3 Dillon on Municipal Corporations, § 981.

With the funds on hand, held by the trustees whose duty it is to pay it over as the necessities of the work demand, and with this fund in gilt-edged securities, much of it in bonds of the city of Detroit itself, or in cash, we see no difficulty in holding that an appropriation has been made therefor. We think contractors, under such circumstances, would be perfectly safe in entering into a contract with the city for the erection of a fountain according to the conditions imposed by the will, and the contention that such a contract would not be binding upon the city nor create an equitable lien upon the fund in the hands of the trustees is not well founded.

The trial judge has stated very clearly the significance of certain portions of the evidence and the application of the same to the construction of this will in the following language:

“Mr. Scott is shown by the evidence to have been a peculiar man, somewhat self-willed. He was a man of the world, well versed in the weaknesses and frailties of all sorts of men who make up society. He was a man who, with no slight touch of vanity, wanted things as he wanted them, and he usually had his own way. He wanted and willed that the largest portion of his estate should be devoted to the perpetuation of his memory in a beautiful fountain to be named The James Scott Water Fountain,’ and that such fountain should contain a life-size statue of himself. Considering his character and knowledge of affairs as shown by the evidence, he evidently wanted every last penny, left for the purpose, to be strictly and honestly put into the monument. His selection of executors, not from the average business man, nor from among his intimate personal friends, nor from artists who could readily approve plans to be adopted, but of two public men of well-known probity and honesty of purpose who could and would see to it that his desire should be carried out to the letter, taken in connection with the evidence, aid greatly in a determination of what testator meant in using the language employed in the will, and clear up any apparent ambiguity found therein. With the assistance of this evidence it becomes clear that James Scott desired and willed that his executors should see that his intentions with regard to the monument were strictly carried out, and so, in and by the will, he made them more than mere executors; he made them donees of power in trust. * * * The executors are given power in trust to safeguard and manage the estate, to convert it ultimately into money, and out of the proceeds to pay for the erection of a fountain by the city under plans that will meet their approval both as to taste of design and also, as well, of a character that will exhaust the moneys and all of the moneys left by testator for that purpose.”

We conclude it is evident from the language of the will, considered in its entirety, made more clear by facts and surrounding conditions shown, that the testator intended to and did designate his executors to act as an independent controlling authority, free from changing officials and changing public opinion incident to municipal administration, and invested them with restraining power to so guard this large, and, as he well knew, to some, an obnoxious, donation, so that, if it was accepted by the city, the conditions he imposed would be strictly observed. In so providing he vested the title to the property in the donee, in trust for the purpose specified, dominant to which he conferred upon the executors a continuing power in trust to convert the property into cash, or available proceeds, to be conserved by them and only paid to the city as the work done by it, in the performance of its trust, might require. We see no legal obstacle to these parties working in co-operation, within the scope of the special authority given to each, and harmoniously proceeding to carry out the provisions of the will as interpreted.

The construction placed upon said will by the learned circuit judge is sustained, and the decree is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.