text:
    HARRISON WAGON CO. v. BROWN.
    Evidence — Written Contract — Sales—Parol Evidence.
    Where a contract establishing an agency for the sale of wagons contains an order for wagons “complete,” and which refers to them as to be shipped, and it appears that it was intended that certain wagons in the hands of a prior agent in the same place were to be turned over to the buyer, the buyer’s claim, when sued for the price, that the wagons were to be placed.in merchantable condition and that the seller had not performed, should be submitted to the jury, it being apparent that the contract did not contain the entire agreement.
    Error to Shiawassee; Smith, J.
    Submitted February 13, 1906.
    (Docket No. 137.)
    Decided September 20, 1906.
    Assumpsit by the Harrison Wagon Company against Fred Brown for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. L. Chandler and F. J. Northway, for appellant.

      F. S. Atherton, for appellee.
   Moore, J.

Plaintiff sued defendant to recover a balance of' 1351.42 which it claims was due it for goods consigned to defendant who was acting as its agent, which goods had been in his possession more than 12 months before a draft was made upon him, payment of which was refused. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

The record is quite long. It contains more than' 100 assignments of error. The index is faulty. The record shows that counsel and court were in almost constant dispute and many things occurred between them which ought not to have occurred. The counsel was provoking and the judge was evidently ill and irritable. For reasons we shall state hereafter we think the ease must be reversed. We.shall not attempt to discuss all the assign-' ments of error for by the least effort upon the part of counsel there is not likely to again occur the conditions of which he complains.

It is the claim of plaintiff that it made a contract in writing with defendant, the material parts of which are as follows:

‘ ‘ This agreement entered into the 17th day of March, 1903, between the Harrison Wagon Company of the city of Grand Rapids, Kent county, Michigan, party of the first part, and Fred Brown of Durand, State of Michigan, party of the second part, witnesseth as follows:
“First. The party of the first part has appointed and does now appoint the party of the second part to act as their agent for the sale of their wagons in Durand and Yernon and vicinity, State of Michigan. '
“Second. The party of the second part hereby undertakes and accepts the said agency and agrees to the following conditions, viz.: * * * Will so conduct the business that the time of final payment at Grand Rapids shall not exceed twelve months from date of shipment, will transmit to the office of the party of the first part the proceeds of each cash sale or part cash sale on the day that the sale is made or by the first mail thereafter, and further, on the last day of every month will make out an account of sales for the current month, * * * and at any time after twelve months from date of shipment to pay cash for balance of consignment unpaid if so required by party of the first part, but nothing herein shall be construed as amounting to a positive sale without said requirements, and that during the continuance of this lease they will sell no other wagon than the Harrison wagon.
This order and contract constitute the only agreement made in relation thereto, verbal statements contrary notwithstanding.
“Durand, Michigan, March 17th, 1903.
“Harrison Wagon Company,
“Grand Rapids, Michigan.
“ Please charge me on the 17th day of March, 1903, or as soon thereafter as practicable, Grand Rapids, Michigan, the following wagons complete with double boxes, steel spring seat, whiffietrees and neck yoke, stay chains, side steps and braces, patent rub iron and name on boxes. * * *
“Above goods to be delivered free from freight or expenses. Please send 75 fence signs free and printed matter. Freight allowed in car loads only in future shipments. The above to be delivered free on board cars at Grand Rapids, Michigan, and to be settled for according to contract and terms on the opposite side of this sheet. 50 cents allowed for reshipping wagons. ' This order and contract given subject to our approval. And nothing but your written acceptance can be considered binding on you to fill the same.
“For Harrison Wagon Company,
“By B. W. Chase, Agent.
“Fred Brown, Signer.”

It is the claim of plaintiff that at this time it had the .goods for which this suit is brought in the hands of Shaw & Cole at Durand,, and that they were then turned over to the defendant and that they had a right to treat them as a shipment then made and to exercise their, option 12 months later to treat them as the goods of defendant and to require him to pay for them in full. It was the claim of the defendant that the goods at Durand were not complete wagons; that they had been exposed to the weather and were not merchantable; that they had wheels not adapted to the markét at Durand, that before they were to be regarded as goods coming within the contract they were to be made as good as new. It was his further claim that these goods were never put in order and never came within the terms of the contract; that he had settlements from time to time with the company, when it agreed to ship these goods somewhere else. It is his further claim that he had a settlement with the company indicated by the following paper:

“Grand Rapids, Michigan, November 4, 1904.
“Mr. Fred Brown,
“Durand, Michigan,
“ To Harrison Wagon Co., Dr.
“1904
Nov. 4. To balance rendered..........................$551 40
Contra.
Nov. 10. By 4-3 GW RY 3, 40.80........................ 163 30
* * * * * *
By goods on band ............................351 43
By notes on account.......................... 194 00
5 69
39
$551 40
“Settlement made and notes and cash received by B. W. Chase, Agent.”

—And that at this time it was agreed the company would take back the goods then on hand. He gave or offered to give testimony tending to establish his several claims.

The circuit judge charged the jury in part as follows:

“ I charge you that the talk between Mr. Chase, agent of said plaintiff, and Mr. Brown, about shipping some goods to Flushing or Yernon, unless said goods were shipped since November 10, 1904, the date of the last settlement, said conversation is immaterial and should not be considered by you.
“ I charge you that the goods delivered to Brown from the Shaw & Cole stock would be considered and come under the contract the same as though they were shipped from Grand Rapids.”

He declined to give the following requests:

“ In this cause I charge you that if the plaintiff between the 17th of March, 1903, and the date of the beginning of this suit, upon a sufficient consideration, agreed with the defendant to take back the goods mentioned in plaintiff’s bill of particulars or any part thereof and either replace them with other goods or ship such goods away, and the defendant by reason of such agreement has in good faith acted upon such agreement and been misled or injured by reason of such agreement of the plaintiff, then the plaintiff is estopped in this suit from denying such agreement and could not sue for the goods which the plaintiff had agreed to take back or take away.”
“ In this cause if you find from the evidence that the plaintiff agreed to furnish new, salable, and complete wagon gears and parts of wagons mentioned in plaintiff’s bill of particulars and that those furnished by the plaintiff, instead, were unpainted, imperfect, broken, and unsalable, then the plaintiff cannot recover in this action for the goods which it had agreed to furnish and did not, and if defendant received said second-hand, unpainted, and unsalable goods upon such order, he, the defendant, would not be bound to pay any more for the goods received than what such goods would be fairly and reasonably worth in the market.”

A reference to the contract and to the receipt signed by the defendant will fail to show that anything was said about goods that day delivered to defendant which had previously been shipped tp Shaw & Cole. It will also be observed that in the so-called order it is said:

“ Harrison Wagon Company,
“ Grand Rapids, Michigan.
“Please charge me on the 17th day of March, 1903, or as soon thereafter as practicable, with the following wagons complete,” etc.

If the wagons were then complete, and to be then charged to defendant, it is difficult to see the need of using this language. It is, to say the least, consistent with the claim of defendant that these wagons were to be made merchantable before they became chargeable to him. It is quite apparent that the two papers do not contain all of the agreement. Strictly speaking, they refer to goods to be shipped. The option in the contract which it is claimed was exercised refers to goods “ at any time after twelve months after date of shipmentas a matter of fact the goods' for which this suit is brought were shipped a long time before the contract was made. It is apparent that without oral testimony supplying what was omitted in the contract plaintiff could not maké a case. We think the defenses claimed by defendant should have been submitted to the jury.

Judgment is reversed, and new trial ordered.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    KAMIN v. KAMIN.
    Cancellation of Instruments — Deeds—Undue Influence.
    On a bill to cancel a deed conveying all of grantors’ property to two of their children, excluding the others, evidence examined, and held, not to show that the grantors were incompetent or were unduly influenced to thus dispose of their property.
    Appeal from Wayne; Mandell, J.
    Submitted February 27, 1906.
    (Docket No. 193.)
    Decided September 20, 1906.
    Bill by Gustave Kamin and another against Charles Kamin and others to set aside a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      James H. Pound, for complainants.

      Charles C. Stewart, for defendants.
   Moore, J.

Complainants are the two oldest of the five children of John and Caroline Kamin. The defendants Charles Kamin, Julius Kamin, and Johanna Kotcher, are the three remaining children. The bill is filed to cancel a deed made by John and Caroline Kamin to Charles and Julius Kamin in January, 1900, upon the ground of fraud, undue influence, and duress, practiced by the two sons toward the father. The court below dismissed the bill of complaint. The case is brought here by appeal.

To the bill of complaint various answers were made. That of Caroline Kamin was a sworn answer. It contained among other statements the following:

“This defendant states that on January 2, 1900, John Kamin and this defendant, his wife, who were tenants in the entirety of said property, made a warranty deed thereof to the said Charles and Julius Kamin for a good and sufficient consideration; that the said deed contained a proviso requiring the said Charles and Julius Kamin to pay to Johanna Kotcher $800 one year after the death of this defendant. Said deed has since been recorded. This defendant denies the said deed could in any way affect the right of the complainants to inherit from the said John Kamin the property described in the said bill, as the interest of the said John Kamin did not pass to his heirs at his death, but ceased to exist; the entire property so held jointly belonging to this defendant at his death by right of survivorship. * * *
“ This defendant shows that she has not in any degree lost her mental faculties and fully understands everything that she does. She shows that she has always been treated with affection by her sons Charles and Julius, and she has never been ill treated by them or felt the slightest fear of them. She shows that the said Charles and Julius are carrying out in good faith the contract made by them with her and the said John Kamin. That they made the last years of her husband pleasant and the time of this defendant also passes by pleasantly in their society, which is far differently with the complainants who ill treat her and abuse her whenever they meet her. This defendant shows that she fully understood what she was doing when she signed the deed with her husband. That they were endeavoring to obtain a proper maintenance during their lifetime, and that the properly should thereafter go as they wished to will it.
“This defendant shows that the said Gustave Kamin received financial assistance years ago from the said John Kamin for more than what would be his proper share in the estate. This defendant shows that no one has ever questioned her soundness of mind or her right to dispose of her property as she saw fit.”

Complainants filed an amended bill of complaint containing the following:

“That complainants have since the filing of their bill of complaint learned that it is claimed that the title of the land described in the bill of complaint stood in the name of John Kamin and Caroline Kamin as tenants by the entireties, but they aver that even if this be true, of which fact they are not sure, they aver that said Caroline Kamin is an old, incompetent, and feeble old woman, strictly under the dominion of Charles Kamin and Julius Kamin, who have her terrorized so that, besides from her natural imbecility arising from old age, she dare not protect herself if she could, and could not in any event.
“ Complainants therefore ask that said Caroline Kamin may be made a defendant herein, a guardian ad litem appointed for her and her property preserved in her as is but just, and for such other relief as to this court shall seem just and meet.”

No guardian ad litem ever was appointed. Defendant Caroline Kamin is now dead. The record is a very long one. It has had our careful attention. The testimony is very conflicting. It shows, however, that complainant Taepke was married and left home in 1870. That the other complainant was helped by his father to purchase a 60-acre farm, though complainant testifies that he returned to his father all the assistance that was furnished him. At the time the deed in controversy was executed the record discloses that Mr. and Mrs. Kamin were alone with the official who drew it and took the acknowledgment thereof. The testimony of that official, who appears to be a reputable and intelligent man, is that the deed was drawn as the parties wanted it, and that they appeared to be entirely competent to make it. His testimony is corroborated in part by the testimony of his wife who witnessed the deed. The sworn answer of Mrs. Kamin from which we have quoted indicates her understanding of the situation. Even after her husband died, and after her attention was called to the situation by this proceeding and when, had it not been for the deed, the property, because she was the survivor of her husband, would have all been hers, she desired the deed to stand.

While there is much in the record to show that the relation of the Kamins toward each other was far from being an ideal one, the record does not show an adequate legal reason for the court to make a different disposition of the property of this father and mother from what they made in their lifetime.

The decree is affirmed.

Carpenter, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    SMITH v. DETROIT UNITED RAILWAY.
    Carriers — Street Railroads — Taking up Passengers — Care Required.
    In an action against a street-railroad, company for injuries to a passenger by starting the car while she was attempting to board it, following another passenger for whom the car had been stopped, an instruction that assumes that the conductor, when he started the car, was not bound to use any care to determine whether he would thereby endanger the safety of persons intending to become passengers, is properly refused.
    Error to Wayne; Rohnert, J.
    Submitted February 27, 1906.
    (Docket No. 197.)
    Decided September 20, 1906.
    Case by Harriet Smith against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      James H. Pound, for appellee.
   McAlvay, J.

Plaintiff sued for injuries received while boarding a car of defendant company January 3, 1903. Defendant was charged with negligently starting the car while plaintiff was in the act of getting on. At 5:40 o’clock in the morning of the day in question, before daylight, plaintiff, intending to go to her work at the city hall, where she was employed as assistant janitress, on the corner of Canfield and Trumbull avenues, in the city of Detroit, signaled a car going south. A man named Pendergrast was also at this place to take this car. The car overran the crossing and came to a stop some distance away. These parties ran to it. In getting on plaintiff claims she was injured by the sudden starting of the car after she had put her foot on the step, having hold of the rear stanchion of the platform; that the jerk threw her around with her back against the end of the platform, straining her arm and hurting her back, and that she was dragged with her right foot on the pavement for a considerable distance. This was a closed car, with a door in the middle on the side and a rear door. The conductor was inside at or beyond the middle of the car. Pendergrast got on the front end of the platform. Plaintiff was getting on at the rear end of the platform. It is not disputed but that the conductor saw Pendergrast, and, when he saw that he was on, gave two bells to start the car. The signal was obeyed by the motorman, and this starting is claimed by plaintiff to have caused the injury. On. the part of the plaintiff and her witness, Pendergrast, the testimony tended to show that she was on the step with one foot and had hold of the stanchion at the same time, and when the car started she was thrown around with her back towards the rear of the car; that the conductor cried out to Pendergrast to catch her; that Pendergrast threw his arm around her and pulled her' up on the platform; that the car moved some distance before it stopped.

On the part of defendant the conductor gave testimony tending to show that plaintiff caught up to the car after Pendergrast got on, and that he saw her immediately after he had given two bells, and at once gave a third, and the car moved no more than a foot or two, and it was stopped, when plaintiff got on, and that plaintiff was not thrown around by the jerking of the car and dragged along. He denies that he called out to Pendergrast to catch her, but admits that Pendergrast did assist her onto the platform. These are the only witnesses to the occurrence. The case was submitted to the jury, and a verdict returned for plaintiff.

We are asked by defendant to reverse the judgment entered upon the verdict on account of errors assigned on the refusal to give its second and third requests to charge. The second request is as follows s

“If you find that Mr. Murphy, the conductor, was in the car and standing in such a position that he could see any one getting upon the back platform when he rang two bells to go ahead, and that after that plaintiff ran up to the car, took hold of it, and attempted to board the car, and that the conductor saw the plaintiff as soon as she attempted to get on the car, and immediately rang to stop the car, and that there was nothing to lead the conductor to suppose that any one else would come up behind the car after Mr. Pendergrast got on, then I charge you that there has been no negligence shown on the part of defendant, and your verdict should be no cause of action.”

The request was properly refused. It assumes that the street car conductor when he started the car was not bound to use any care whatever to determine whether he would thereby endanger the safety of persons intending to become passengers. We cannot say, as a matter of law, that he was not under such an obligation.

No other questions are discussed in the briefs.

The judgment of the court below is affirmed.

Carpenter, C. J., and Ostranrer, Hooker, and Moore, JJ., concurred.


text:
    HOYT v. GARLOCK.
    Highways — Frightening Horses —Action — Variance — Steam or Gas Engine.
    Where the declaration, in an action for frightening plaintiff’s horse, claims that defendant forced great quantities of steam from his engine into the highway, thereby causing the injury complained of, and the proof shows the engine to have been a gasoline engine, which emitted no steam, and that the noise of its exhaust frightened plaintiff’s horse, there is a fatal variance.
    Error to Livingston; Smith, J.
    Submitted April 12, 1906.
    (Docket No. 64.)
    Decided September 20, 1906.
    Case by William N. Hoyt against Edward Garlock for injuries to plaintiff’s horse. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Shields & Shields, for appellant.

      Willis L. Lyons and Louis E. Howlett, for appellee.
   Moore, J.

This case was commenced in justice’s court. It was appealed to the circuit court where it was tried by a jury, and a small verdict rendered in favor of the plaintiff. The case is brought here by writ of error.

There are a great many assignments of error, but we deem it necessary to discuss but one. The declaration was in writing. Omitting its formal parts, it reads:

While the said plaintiff was lawfully passing along, over and upon a public highway * * * with a horse of ordinary gentleness, and under the control of the said plaintiff, and hitched to a vehicle in which the said plaintiff was riding, and while so riding and driving, * * * and while the said horse was under the control of the said plaintiff, and while he was without negligence or undue care of any kind or description, the defendant wrongfully, carelessly, recklessly, and negligently ejected and forced and emitted great quantities of steam through an exhaust pipe which extended from the buildings of the said defendant in the highway which plaintiff was passing and permitted steam to be forced through pipes extending from the building of the said defendant in the highway aforesaid, and while the plaintiff was passing the said highway opposite or nearly opposite the said building, the said defendant wrongfully, carelessly, recklessly, and negligently started machinery in the said building which permitted and forced steam through pipes extending in the highway upon which the said plaintiff was at the time passing, without in any manner giving the plaintiff notice that he was about to force steam in this manner in the highway or without coming personally or sending his servants in the highway for the purpose of notifying plaintiff of the danger which he encountered because of the said steam, and without in any manner assisting in driving his horse through the highway opposite the building from which the said steam was being emitted, and without having the machinery which he was so operating and starting in view of people passing along, over and upon said highway, and in such a position that the plaintiff could see and know that machinery was being operated or was about to be operated near the said highway; and that while so passing as aforesaid, the said defendant wrongfully, recklessly, carelessly, and negligently permitted the said machinery to be operated and permitted the said steam to pass through pipes extending in the highway in such a manner as to produce loud and unusual noises calculated to frighten horses of ordinary gentleness; and the plaintiff avers that by the said wrongful and negligent acts of the said defendant in operating the said machinery adjacent to and within the Said highway, and in permitting great quantities of steam to be forced through the said pipes in the highway and towards the plaintiff’s horse, and in having the view to the said machinery from the highway wholly obstructed and in operating the same in the manner aforesaid and causing the same to make the loud and unusual noises that the said horse of the said plaintiff was frightened and became unmanageable,” etc.

Before putting in any proof counsel for plaintiff made an opening statement of the plaintiff’s claim from which it appeared plaintiff claimed his horse was frightened while being driven in the highway, because ‘ ‘ Mr. Garlock placed a gasoline engine on the premises close to his barns, and about a foot from the road fence, and covered it over with a building so that it was entirely hidden from passersby, and ran the exhaust pipe to the gasoline engine out. through the building and out through the fence and about a foot into the highway,” and when plaintiff was passing; “suddenly this gasoline engine through the exhaust pipe, gave a chuck, very loud, and it frightened Mr. Hoyt’shorse; It jumped to one side. Then the engine gave another chuck and another, and at that time the horse became unmanageable, ran away, broke his cart to pieces,, and did considerable damage to Mr. Hoyt.”

When proof was offered to sustain this claim of counsel,, objection was made to its reception because the proof was inconsistent with the averments of the declaration. The motion was overruled, and plaintiff was permitted to testify that “ the horse got scared at the noise produced by his engine. I heard the noise, it came from the exhaust pipe projecting into the highway through the building, and through the fence, I should judge, about a foot.”

On the cross-examination the plaintiff testified, among other things:

“ I was looking in the direction of the exhaust pipe that day, and I saw it after the runaway when I came along back. It had a cast iron muffler on the end which was supposed to muffle the sound, but it didn’t seem to stop it though. There was no vast cloud of steam blowing out of there. I did not see anything of that kind at all. * * * I don’t claim that I saw any cloud of steam, or anything, coming out of there at all, and I don’t claim the horse saw anything of that kind, and there wasn’t anything of that kind to see, and I did not smell any gas, or anything of that' kind along there while I was in the buggy.”

It has long been settled in this court that the evidence-offered must correspond with, and support, the material and necessary averments in the declaration. Lull v. Davis, 1 Mich. 77. See, also, Batterson v. Railway Co., 49 Mich. 184; Hatheway's Appeal, 52 Mich. 112; Parker v. Armstrong, 65 Mich. 176; Thurstin v. Luce, 61 Mich. 292; Wilkinson v. Spring Works, 73 Mich. 405; Cowan v. Railway Co., 84 Mich. 583; Mitchell v. Prange, 110 Mich. 78 (34 L. R. A. 182). It is evident the statement of counsel and the proof which the court permitted made a different case than the one averred in the declaration.

Judgment is reversed, and new trial ordered.

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


author:
Ostrander, J.
      Hooker, J. Montgomery, J.

text:
    GERAGHTY v. WASHTENAW MUTUAL FIRE-INSURANCE CO.
    1. Insurance — Mutual Company — Farm Property — What Constitutes.
    A policy of fire insurance, issued by a mutual company organized under chapter 195, 2 Comp. Laws, upon “farm products, farm implements, carriages, and live stock on premises,” does not cover the fixtures and utensils of a slaughterhouse, conducted by the insured, and used in a wholesale meat business in which he is engaged.
    2. Same — Knowledge of Officer — Estoppel.
    A farmers’ mutual fire-insurance company is not estopped to, deny liability for loss on property not insurable under its charter, by the act of its president in accepting the application and issuing the policy with full knowledge of the character of the property attempted to be insured.
    Error to Washtenaw; Kinne, J.
    Submitted April 5, 1906.
    (Docket No. 17.)
    Decided September 20, 1906.
    Assumpsit by James A. Geraghty against the Washtenaw Mutual Fire-Insurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.
    The defendant is organized under the provisions of chapter 195, 2 Comp. Laws, for the purpose of mutual insurance of the property of its members against loss by fire or damage by lightning. Under its articles of association, it may insure—
    “ On farm property, both buildings and their contents, farm implements, hay, grain, wool, and other farm products, live stock, wagons, carriages, harness, farm tools, household goods, wearing apparel, provisions, musical instruments, pictures and books, being upon the premises of the insured; also detached dwellings and accompanying outbuildings and their contents, belonging to members of this company; also country schoolhouses.”
    The language of the statute, after enumerating the classes of personal property which may be insured, is, “ being upon farms as farm property.” The policies issued by the company contain the charter and by-laws of the company. Plaintiff made written application for insurance to the amount of $600 upon property estimated to be of the value of $900, described as “farm products, farm implements, carriages and live stock on premises,” and received the policy of defendant, dated November 8, 1902, in which the property insured is described as in the application. The only location of “ premises ” in either instrument is by section number and township. Plaintiff paid assessments as demanded, and on or about January 2, 1904, a fire occurred which burned and destroyed, as the plaintiff claims, property insured by this policy of insurance. His claim was rejected by unanimous vote of the directors, for the reason that the property destroyed was not insured by the policy, but was, and the fact seems to be undisputed, the fixtures and utensils of a slaughterhouse, conducted by plaintiff, and used in the wholesale meat business in which plaintiff was engaged, and some dressed beef. The slaughterhouse leased by plaintiff was situated on an acre of ground, also leased by him, upon which he did not live, which was no part of any farm owned or occupied by him. There were on the premises, besides the slaughterhouse, a hogpen, wagon shed, and cattle barn. „
    Suit was begun on the policy in justice’s court. On appeal to the circuit court, a verdict for defendant was directed for reasons stated by the trial judge as follows:
    “ I say to counsel and to the jury in this case this action is brought to recover for the contents of a slaughterhouse, the paraphernalia or utensils used in a slaughterhouse. I think the testimony shows, although that is not very important, that the cattle that were burned there after being slaughtered were cattle that had been purchased for the purpose of slaughtering and sale, but I do not think a loss of that kind was contemplated or provided for in this policy which provides for loss on farm products, farm implements, carriages and live stock. In my opinion the articles that were used in this case were never farm products, farm implements, or carriage or live stock. I don’t think, therefore, there can be any recovery in this case under that contract.
    “ I am inclined to think, also, although that is not very important, that it was incumbent upon the plaintiff before he brought this suit to submit to an arbitration, but that is not very important. I should render the decision upon this proposition, that this insurance is not within the terms of this policy, and I therefore direct a verdict accordingly.”

      Lee N. Brown, for appellant.

      Frank E. Jones, for appellee.
   Ostrander, J.

(after stating the facts). The question is not whether the identical property which was destroyed was insurable by defendant if it was upon a farm and used as farm property, because it is conceded that it was not upon a farm nor used in. any way in connection with a farm or with farming. Kept in a building rented and used for a slaughterhouse, and a part of the paraphernalia of the business of slaughtering there carried on, it was not, in fact, property such as, under the statute referred to, the defendant had the right to insure.

Aside from a contention raised by the defendant that plaintiff should have submitted his demand to arbitrators, the case of the appellant in this court is made to rest, as we understand the brief, upon the testimony, either offered ;and rejected or offered and received, tending to show that the president of the company knew what property plaintiff desired to have insured and with that knowledge took the application, making it out himself, and issued the policy ; that the same property, or property in the same building, had been before insured in defendant company; that after the fire the president of the company had admitted that he always knew that it was a slaughterhouse, and that by accepting the application, when the director and president of the defendant knew that the building in which the property was situated was a slaughterhouse, .and receiving assessments from the plaintiff for two years, the defendant is estopped to deny liability; that, in any event, the testimony should have been submitted to the jury with proper instructions.

The testimony offered for the plaintiff does not tend to prove that he acquainted the president of the company at the time of making his application with the fact that he was carrying on at the place in question the business of slaughtering animals, or that the property which was sought to be insured was used in carrying on said business. Nor does it appear that the president of the company knew that the property which plaintiff desired to have insured was, in its use or otherwise, property not insur.able by the company. . But, admitting that if defendant was a stock company, authorized to carry on, generally, the business of fire insurance, the testimony was sufficient to require the case to be submitted to a jury to determine whether the company was estopped to deny liability, it does not follow that the court below committed error. Defendant is not authorized to insure any and all personal property, but to insure certain classes of personal property, “being upon farms as farm property.” In form, the contract of insurance described property insurable by de. fendant. No such property was destroyed. A contract insuring the risk which plaintiff claims was actually covered, the defendant company could not lawfully make. Plaintiff was hound to know this. He was both insurer and insured. As contract holder, he is presumed to have knowledge of the terms of his contract, and as member of the defendant company, to have knowledge of its powers.

In Eddy v. Insurance Co., 72 Mich. 651, it appeared that the business of the company was, by the act of incorporation, restricted to certain territory. An amendment to the statute removed the territorial restrictions. The amendatory law was held to be invalid. A risk taken upon property outside the original territorial limits of business, during the time the amendatory statute was ^supposed to be in force, was held to be void as one which the company had no power to assume, although the company received and retained a premium of 1100, and was, upon the facts, otherwise liable.

It has been held that where a statute prohibits mutual companies from insuring property not owned by members of the company, regular members were not estopped by having received the benefit of insurance to deny liability to assessment to pay losses on policies issued by the company to nonmembers of which they had no knowledge. Corey v. Sherman, 96 Iowa, 114 (32 L. R. A. 490). So, where mutual companies were forbidden to insure one not a member or to receive premiums, it was held that a policy, issued to one not a member and who paid a' premium, was void, and that the company was not estopped to plead that the contract was ultra vires, since the insured was presumed to know that the contract was prohibited. In re Assignment of Mutual Guaranty Fire-Ins. Co., 107 Iowa, 143. And see, generally, 21 Am. & Eng. Enc. Law (2d Ed.), pp. 267, 268.

The judgment is affirmed.

Grant and Blair, JJ., concurred with Ostrander, J.

Hooker, J.

I concur in the affirmance of the judgment in this cause upon the ground that by the policy itself the plaintiff was apprised of the want of authority on the part of defendant to make the contract of insurance sued upon. Pfister v. Gerwig, 122 Ind. 568; Mitchell v. Insurance Co., 51 Pa. 402; Burger v. Insurance Co., 71 Pa. 422; Susquehanna Mut. Fire-Ins. Co. v. Leavy, 136 Pa. 500; Van Loan v. Insurance Ass’n, 90 N. Y. 280.

I am not satisfied to rest the denial of the application of the doctrine of estoppel upon the ground that the plaintiff was a member of the company, and that therefore he is to be treated differently in that respect than he would be were the defendant a stock company, or the policy issued by this company one which was inconsistent with such membership. See Farmers & Merchants’ Ins. Co. v. Smith, 63 Ill. 187; Illinois Fire-Ins. Co. v. Stanton, 57 Ill. 354; Given v. Rettew, 162 Pa. 638; In re Assignment of Mutual Guaranty Fire-Ins. Co., 107 Iowa, 143; In re Minneapolis Mut. Fire-Ins. Co., 49 Minn. 291; Osius v. O’Dwyer, 127 Mich. 244.

To hold that one dealing with a corporation must know the limit of its power to contract in all cases, upon the ground that it will be presumed to know the law, would seem to be fatal to all cases of estoppel when ultra vires is set up as a defense. While there is a conflict upon this doctrine between the Federal cases and those decided by most of the State courts, this court has followed the latter, and it is now too late to question the doctrine. That this is the general doctrine is established by many authorities. See 29 Am. & Eng. Enc. Law (2d Ed.), pp. 50, 51, and cases cited. The cases of Eddy v. Insurance Co., 72 Mich. 651, and Corey v. Sherman, 96 Iowa, 114 (32 L. R. A. 490), and In re Assignment of Mutual Guaranty Fire-Ins. Co., supra, are distinguishable for the reason that in each the statute under which the company was organized contained an express prohibition against the making of the contract. In the latter case the distinction is pointed out, and the statement made that—

“ Were it not for the statutes prohibiting mutual companies organized under section 1160 (Code 1873) from taking premiums and from doing business on the stock plan, we would be inclined to hold that, as the corporation had accepted and used the premium paid for the policy in suit, it should be estopped from pleading ultra vires as a defense. Indeed, the modern authorities seem to sustain that rule. Thompson v. Lambert, 44 Iowa, 239. See Denver Fire-Ins. Co. v. McClelland, 9 Colo. 11; Matt v. Protective Society, 70 Iowa, 455; 2 Beach, Private Corporations, § 423, and cases cited.”

In our own case of Eddy v. Insurance Go., supra, the express prohibition is found, the act expressly limiting the issue of policies to three contiguous counties. There are many cases since decided, which are at variance with this case, and which, of necessity, overrule it if this distinction be disregarded. Thus, in Fourth Nat. Bank of Grand Rapids v. Olney, 63 Mich. 58, a mining corporation was held to be estopped from denying the authority to contract. The opinion was written by the same justice who a short time afterwards wrote the opinion in the Eddy Gase, and it is improbable that he overlooked the earlier case, or the distinction referred to which is essential to consistency. The case of Day v. Buggy Co., 57 Mich. 146, recognizes a difference between a contract which has been performed and one which has not, and is cited by Mr. Justice Sherwood in the case of Cleveland Paper Co. v. Courier Co., 67 Mich. 158, in support of an estoppel. The plea of ultra vires was overridden in the case of Carson City Sav. Bank v. Elevator Co., 90 Mich. 554, and in Dewey v. Railway Co., 91 Mich. 351, while in Coit v. City of Grand Rapids, 115 Mich. 494, a majority of the court applied the doctrine to a municipal corporation, while Mr. Justice Montgomery, who dissented as to the application to a city, used the following language:

“ The settled rule is that executed contracts of private corporations, not unlawful, but ultra vires, will be treated as binding upon the corporation. Carson City Sav. Bank v. Elevator Co., 90 Mich. 550; Dewey v. Railway Co., 91 Mich. 351. But the weight of authority is opposed to the contention that a municipal corporation can estop itself from asserting a want of power to enter into an engagement which is in fact ultra vires.”

The rule was again applied in Rehberg v. Surety Co., 131 Mich. 135. There is as much reason why this doctrine should be applied to the contracts of insurance companies as to those of other corporations, and mutual insurance companies should be equally subject to the rule, unless it be where its contract is with one who is, or by the very terms of the contract becomes, a member. There it has been said that such person sustains a double relation to the company, and some cases attach significance to it, from which we may infer that it would avoid an estoppel.

In the case of In re Assignment of Mutual Guaranty Fire-Ins. Co., 107 Iowa, 143, the assured was not a member, and therefore that case throws no light upon this question.

There are many cases where the courts seem to have disregarded the rule that every one is presumed to know the law, and apparently rested their decisions upon the strong equity in favor of one who has faithfully carried out his agreement, as against one who would retain the consideration and deny liability upon the ground of ultra vires. 29 Am. & Eng. Enc. Law (3d Ed.), pp. 50-54b; and note 1; Holt v. Winfield Bank, 25 Fed. 812; Tennessee Ice Co. v. Raine, 107 Tenn. 151; Peterson v. Saving Ass’n, 124 Mich. 573. I am not convinced that a member of a mutual insurance company or other corporation is precluded, by the mere fact of his membership, from asserting an estoppel as against the company. Willcuts v. Insurance Co., 81 Ind. 307; Wallace v. Mystic Circle, 121 Mich. 263. In the case of Russell v. Insurance Co., 80 Mich. 407, an estoppel was recognized as an answer to a claim of ultra vires. See, also, Carson City Sav. Bank v. Elevator Co., 90 Mich. 554; Osius v. O’Dwyer, 127 Mich. 244. Some building and loan cases have an analogy to the question. Peterson v. Saving Ass’n, 124 Mich. 573, 580, and cases cited.

In some of the cases cited the mere fact of membership appears to be conclusive of the question of notice, but in this casé the statute and by-laws are printed upon the policy, and nothing implies a want of knowledge of them, if that would make a difference, which we do not intend to imply. Whether the plaintiff might, in a proper action, recover the amount paid by him to the company, is a question not arising upon this record.

Montgomery, J.

I concur in the result on the first point above stated.


author: Ostrander, J.

text:
    NICHOLS v. PERE MARQUETTE RAILROAD CO.
    1. Master and Servant — Injuries to Servant — Defective Appliances — Notice of Defect.
    No negligence, arising from failure to properly inspect a ladder leading to the top of a railroad water tank, is shown, where it appears that the ladder had been in use for upwards of twelve years, that it was properly inspected six months before it broke, that it broke from concealed rot not discoverable by ordinary inspection, and there is nothing to show the ' nature of the wood used in its construction, nor how long it might be expected to resist decay, nor how fast decay, once started, would progress.
    2. Same — Discoverable Defects — Contributory Negligence.
    In an action for damages occasioned by plaintiff’s fall from a wooden ladder on a water tank, evidence examined, and
      held, that whether the defect in the ladder from which it broke was obvious and discoverable by the ordinary care required of one using it was for the jury.
    3. Same — Defective Appliances — Duty to Inspect.
    It cannot be said, as a matter of law, that a 35-foot ladder attached to a water tank, only occasionally used, is a common tool or appliance within the rule which exempts the master from the duty to inspect them upon the presumption that those using them will, and should, first discover defects.
    Error to Ingham; Wiest, J.
    Submitted May 1, 1906.
    (Docket No. 132.)
    Decided September 20, 1906.
    Case by Jeremiah Nichols against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    A water tank belonging to defendant company, located at Fowlerville, was reached by a vertical ladder about 35 feet long, leading from the ground, fastened to the tank. There was a steam pumping station connected with the tank, and on the tank an indicator designed to show the depth of the water therein. Plaintiff is an engineer by profession, and for a number of years had been employed by defendant at different times, and had been in charge of such plants at various points along the road, including the plant at Fowlerville. On January 2, 1904, he was sent to fill the tank at Fowlerville, taking the place there of one McCormick, who was ill. On the morning of the 3d of January, plaintiff discovered that the indicator, on account of an accumulation of ice, was not in good order, and he went up the ladder for the purpose of learning how much water there was in the tank. The nest day, January 4th, he went again to Fowlerville, from Williamston, Where he lived, to fill the tank, and again climbed the ladder to ascertain the state of the water. When he descended the ladder, a slat or rung of the ladder gave way, and he fell to the ground. He sustained injuries, and brought this suit. There was a verdict and judgment in his favor. In this court, it is contended that the circuit judge should have directed a verdict for defendant (as he was requested to do) because (1) the plaintiff failed to make out a case of negligence on the part of the defendant;' (2) the undisputed testimony shows that the defect, the cause of the injury, was a risk of the employment assumed by the plaintiff.
    It is not alleged that the ladder was unsafe when constructed, and the jury were told that the original construction was proper, and that the claim of plaintiff was that it was not kept in reasonable repair, and that reasonable, suitable inspection would have disclosed the need of repair. Defendant’s foreman of water service inspected the pumping station at Fowlerville July 2, 1903. He testified:
    “ I ascended the ladder, and tried the rounds as I went up and also sounded for defective places which might not be visible, sometimes in old ladders and buildings, sometimes the paint covers over and makes a coating and that might be hollow inside, and still not visible to. the eye, in such cases we sound them to see if we can find any defects.
    “ Q. After making that inspection, what was your opinion as to the condition of that ladder ?

      “A. That the ladder was safe.”
    On cross-examination, he testified that the ladder was not new, but he did not know how old it was. (It was constructed of side timbers 5$ by If inches in size, set 18 inches apart, fastened to the tank, and on the outer narrow face of each timber notches or gains \ inch deep and 3 inches wide were cut. In these gains, the slats or rungs 2f inches wide and f inch thick were nailed.) He further testified:
    “ Q. And wasn’t even gained in the full width, the full thickness of the slats, was it ?

      “A. Hardly, nearly so.
    “ Q. Aman in climbing up that ladder taking hold of the slats, it would throw his whole weight they would be pulling off all the time ?

      “A. Yes, sir.

      “ Q. In other words, it would be just the opposite of a leaning ladder where he would be pushing down upon it ?

      “A. There would be a difference there.
    “ Q. Now, the only examination you made was to look at it and climb up it and tap it, what did you tap it with ?
    “A. I tapped it with — I could not say what I used at that time, a hammer, I think.
    “ Q. You recognize the fact that timber and ladders exposed are liable to get out of order, don’t you ?

      “A. Yes, sir.
    “ Q. They are apt to get old ?

      “A. Yes, sir.
    “ Q. The weather affects them ?

      ‘‘A. Yes, sir.
    “ Q. They become rotten, you say, where you cannot see them ?

      “A. Yes, sir.
    “ Q. And that is the reason you tap them, because they conceal rots ?

      “A. Yes, sir.
    “ Q. Now a ladder of this kind is more liable to get rotted inside of the gains, than anywhere else, isn’t it; there is a crack there Where the water runs in, it is more liable to rot there than anywhere else, ain’t it ?

      “A. I think so.
    “ Q. And if a ladder of that kind standing perpendicular and with nails of this kind should become rotten inside of the gains there would be more liability of the slats pulling off if a man wanted to climb it, wouldn’t there ?
    “A. If the ladder is old enough and it gets rotten enough it will certainly pull off.”
    The defendant’s inspector of buildings inspected the tank and ladder June 1, 1903, going up the ladder to the top of the tank, taking hold of and using each one of the rungs. He was at the time at Fowlerville to examine a sidewalk, and took occasion to go over the water tank. He found the ladder in good condition, and did not find any of the rungs of the ladder in any way loosened. The slat which gave way was shown to him, and the following testimony was given:
    “ Q. Did you notice these slats were simply held by nails ?
    “ A. Yes, sir.

      “ Q. That a man climbing and haying hold of the slats would be pretty.apt to fall if the nails gave way ?
    “ A. Yes, sir.
    “Thereupon counsel for plaintiff handed witness the slat, Exhibit 1, which gave way with the plaintiff, and continued the cross-examination as follows:

      “ Q. What would you say about the safety of that sort of a slat, look at the holes and nails ?

      “A. The slat looks all right.
    “ Q. It looks all right to you as a safe slat, held by nails ?

      “A. No; not very, no, sir.
    “ Q. Did you observe that it was not safe at the time you investigated ?

      “A. No, sir; the slat was fastened on with nails, of course.
    “ Q. Would you say that was an old defect of long standing F

      “A. No, sir; part of the slat is rotten, a part sound.
    “ Q. You think it is recent ?

      “A. In the last year or so when it was on there.
    ‘ ‘ Q. Oh, within the last year or so when it was on the ladder, then would you say that defect existed at the time you tested it ?

      “A. I cannot say.
    “ Q. What would be your opinion as an expert in wood ?
    “ A. That it was defective.”
    The witness McCormick, who had been in charge of the pumping station, testified that he used the ladder in the latter part of December,* 1908, because the indicator was frozen, and discovered, about December 18th, that the first slat below the platform on which the tank rested was loose at one end. “ I noticed it when I went up; I caught it with my left hand, and it kind'of give, and I noticed it was loose.” He intended to repair it but forgot it. He did not repair it, or report it. It was this slat which plaintiff pulled out. A son of plaintiff testified that two days after his father was injured he was employed by defendant to take his father’s place as pumper; that he examined the ladder, and discovered that the nails which held the slat had pulled out of the timber on the west side of the ladder where there was a spot of decayed wood an inch long and three-quarters of an inch wide, in the center of the timber; that when the slat was' up, the decayed portion was behind the slat; that with this exception the ladder looked all right. There was testimony tending to show that the ladder had been in position for from 12 to 15 years. I find no evidence of periodical inspection of such property or of any rule of the company upon the subject. There is evidence of supervision, by the foreman of the water service whose duty it is to see that the water tanks and pumps are in condition, by the carpenters who inspect all plants, by the supervisor of buildings who looks after the maintenance of all buildings, water stations, and coal trestles. It does appear that the man in charge of a pumping plant is required to report, and, if he can, repair, breakages. Plaintiff had at one time been in charge of the plant at Fowlerville, but had never used the ladder. It was his opinion and his knowledge, so far as he had knowledge, that the ladder from which he fell had been maintained for upwards of 12 years. He had worked at carpenter work for many years, and knew the effects of the weather upon timber. There is also this testimony of the witness McCormick:
    “The first time I went up I was very careful about the ladder. It was a little shaky and it is quite a little ways for a man of my age to go up there.”
    And the defendant’s inspector of buildings when he inspected the ladder in the summer discovered that it had been loosened from the tank and refastened by using wire around the tops of the timbers and over the roof. He did not repair it.

      F. W. Stevens (Thomas, Cummins & Nichols, of counsel), for appellant.

      Trask & Cairns (Person & Person, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). Does the testimony to which reference has been made present a question of law or of fact upon the subject of the negligence of defendant ?

It is assumed that the plaintiff in rendering proper service to defendant was required to use the ladder. The ladder was an instrument of such service, provided by the master. The law requires that the master shall use ordinary care and diligence to provide safe instruments of service. When, as in this case, such care is originally exercised and the default charged is in maintenance, it must, generally, be made to appear that the master had actual or constructive notice of the particular defect complained of. The master is held generally to have constructive notice of whatever ordinary care and-diligence would discover. He is not liable to a servant for defects of which he had no notice and which ordinary care would not discover. It is not claimed that the defendant had actual notice of the particular defect. So far, then, as the defendant’s negligence is concerned, plaintiff’s case rests upon the theory of a constructive notice and this upon the failure to properly inspect or to inspect at proper intervals of time. The case is even narrower. It is not claimed by plaintiff that in July, 1903, the- particular defect was obvious. Indeed, it is denied that there was an obvious defect when plaintiff used the ladder. He testified:

"There was not anything either time I went up the ladder to attract my attention to any danger — the ladder was painted — I cannot tell why I did not pull the slat out when I went up unless it was that I happened to take hold on the right side where the nails held. The slat set in notches and in stepping on it it might have held unless it was stepped on in a certain way. ! had no notice of the ladder being defective in any way.”

Counsel for plaintiff say in the brief:

"No man could see. that the nails had rusted off, or that the wood they went into had rotted.”

Plaintiff’s case rests, therefore, upon the alleged failure to discover such, if any, concealed unsound condition as existed in July, 1903, and upon failure to repeat, within six months, the inspection. Upon neither of these points is there testimony tending to show negligence of the defendant. The nature of the wood used, how long it might be expected to resist decay, how fast decay, once started, would progress — none of these facts appear. Assuming that the age of the ladder, its exposure, the defect discovered, raised the presumption of negligence on the part of defendant in the absence of proper inspection of the ladder, it appears that it was inspected in June and in July, 1903, in manner already described. The character of the inspection which the master is bound to make, where failure to inspect would be evidence of negligence, is variously stated in the opinions of courts and in the textbooks. It may be described as such as a person of ordinary prudence would have made under the circumstances. 1 Labatt on Master and Servant, § 161. Going along with this idea of a standard of inspection is the further one that the tests shall be ‘ ‘ such as are ulual and ordinary in the business,” “such tests as custom and experience have sanctioned,” “usual tests,” “ordinary inspection,” “ careful and skillful application of the ordinary and approved tests,” — all- of which descriptive terms have been used by courts. Whether the examination which is made conforms with the standard is usually a question for the jury. Labatt on Master and Servant, § 161, and notes. This does not mean, however, that juries may act upon conjecture, or that courts are bound, without regard to the state of the evidence, to ask juries to determine whether a proved inspection was proper inspection, or whether inspections were made as frequently as they should have been. Without in any respect resting the ruling upon a presumption that an inspection made is properly made, there is, in this case, no conflict of testimony upon the subject. Nor may two opposed inferences be reasonably drawn from the facts. The appliance was simple, could be looked at and examined from all sides, was not, like active machinery, worn out by use or subjected to strains. That the inspection made satisfied a proper standard of inspection, is not disputed by testimony; it was according to the custom of defendant. No one assumes to say that any reasonable test would have discovered, in July, 1903, such defect, if any, as then existed. The inspection which was made having discovered no defect, that six months intervening inspections was too long an interval is not shown by any testimony. It is not claimed that what is wanting in the testimony is supplied by common knowledge and experience of men. In saying this, we have not overlooked a certain concession of counsel for defendant, made at the trial.

The case, is to be distinguished, upon the facts, from Howe v. Railroad Co., 139 Mich. 638, in the following important particular: It appeared in that case that the safety of the floor depended upon the soundness of the nails used in the stringers which supported it. These stringers were toe-nailed. There was testimony that the nails were rusted off. when the floor gave way a few weeks after the inspection. The inspector did not see the nails, though he knew of the particular construction. It was held that it could not be said, as matter of law, that proper inspection of the building did not require an examination of these nails to see if they were rusted off, the building having been erected some 15 years prior to the injury of plaintiff.

As the case must go down for a new trial and upon such trial the evidence of defendant’s negligence may be more complete, it is necessary to notice the further contention made for defendant. Various approved rules of law are stated in the brief; their application to the facts is questionable. We are satisfied, for example, that whether the defect in the ladder was obvious or discoverable by the ordinary care required of one using the ladder was for the jury. We are as well satisfied that the duty of plaintiff to inspect the, ladder cannot be said to have been established. So far as the argument proceeds upon the theory that the simplicity of the appliance determined, conclusively, the risk assumed by plaintiff, it is believed to be not well supported. Undoubtedly, the degree of care exercised by McCormick would have saved plaintiff from injury. We are not disposed to hold that a 35-foot ladder attached to a water tank, only occasionally used, is a common tool or appliance within the meaning of the rules which exempt the master from the duty to inspect them upon the presumption that those using them will, and should, first discover defects. It is true that in the case at bar the plaintiff knew the age and the exposure of the ladder as well as did the defendant. But we think it cannot be said that all defects arising from age or decay, which ordinary inspection for the purpose of inspecting would discover, would necessarily or probably be discovered or discoverable by a servant in its use, even if due care on his part was exercised. Twombly v. Electric Light Co., 98 Me. 353 (64 L. R. A. 551).

The judgment is reversed, and a new trial granted.

Carpenter, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    WOOD v. SCHOOLCRAFT.
    1. Trusts — Voluntary Conveyances — Liability of Trustee.
    Where complainant and defendant owned land in common, and complainant, for convenience, quitclaimed his interest to defendant, who contracted for the sale of the same to third person and assigned the contract to a creditor of complainant, and the creditor assigned it to the complainant, defendant held the legal title of complainant’s interest in trust for the benefit of the third person and for the security of complainant for the purchase price, and it was a breach of trust to sell or mortgage the land and appropriate the proceeds to his own purposes, and thereby destroy the security for the purchase price.
    2. Same — Management of Trust Property.
    Complainant and defendant owned land in common, and complainant, for convenience, quitclaimed his interest to defendant, who contracted to sell it to a third person. Defendant and the third person platted the property, built houses thereon, mortgaged it, and sold portions of it. Held, that defendant as trustee for complainant had no right to subject complainant to the dangers of such speculation by selling or pledging the property, and such transactions could not be the subject of an accounting against complainant in a suit by him for the purchase price.
    3. Vendor and Purchaser — Vendor’s Lien — Enforcement — Parties.
    Complainant, a tenant in common, having conveyed, without consideration and for convenience, his interest to his co-tenant, who contracted to sell it to a third person, is entitled to sue in equity to enforce his security for the purchase price against the third person, and his co-tenant, holding the legal title to some of the property, is a necessary party.
    4. Same — Amount of Recovery.
    Where a tenant in common conveyed, .without consideration and for convenience, his interest to his co-tenant, who contracted to sell it to a third person, and the lien of the tenant for the purchase price was lost through the conduct of the co-tenant, a decree against the purchaser and the co-tenant for the amount due\>n the contract of sale, being the only redress that circumstances permit, is not improper.

      Appeal from St. Clair; Law, J.
    Submitted May 2, 1906.
    (Docket No. 91.)
    Decided September 20, 1906.
    Bill by Sheldon A. Wood against Eugene J. School-craft and William L. Jenks for an accounting. From a decree for complainant, defendant Jenks appeals.
    Affirmed.

      C. K. Dodge and Stevens, Graham & Stevens, for complainant.

      P. H. Phillips (J. B. McIlwain, of counsel),, for appellant.
   Hooker, J.

Jenks and Farrand owned certain premises in common; each owning an undivided half. At Jenks’ solicitation Wood, the complainant, purchased Farrand’s interest for $400, taking it subject to a mortgage of which he paid one-half. On June 30, 1890, Wood quitclaimed his interest to Jenks; no consideration being paid. He claims that this was done for convenience in platting the premises, which was done, and for which, with taxes, etc., complainant has paid $448. He has paid one-half of the taxes assessed, interest, and other expenses since, up to the time Schoolcraft purchased his interest. On February 2,1894, defendant Jenks made a contract of sale of a half interest in the property, to Schoolcraft, being the interest of complainant. Jenks assigned his interest in this contract to Butterfield, a creditor of the complainant, and Butterfield has since assigned it to complainant. As subsequently replatted, the property was divided into 12 lots. Wood visited Port Huron occasionally, and learned that houses were being erected on the property and supposed that they were being built by Jenks and School-craft, and, believing his security was ample, did not press payment. September 7, 1899, complainant received a letter from Jenks, stating that all of the property had been sold except two lots, and it developed later these were mortgaged by Jenks for nearly their full value. Failing to get a settlement, Wood filed the bill in this cause for an' accounting. Schoolcraft was defaulted. J enks answered, and a decree was given complainant for the amount due on the contract, against both defendants. Jenks has appealed.

The only question is whether, under the facts shown, Jenks is liable for the amount due upon the contract, with Schoolcraft. It appears that Jenks has disposed of the land in such a way that the contract cannot be enforced against it.. Whether a trust subsisted, by reason of the relation of the parties prior to the contract with Schoolcraft, we need not inquire. Jenks sold his land to Schoolcraft. He became, in equity, thereby, the holder of the legal title in trust for Schoolcraft, when he should perform his contract and as security for such performance. Wing v. McDowell, Walk. Ch. (Mich.) 175; President, etc., of Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225; House v. Dexter, 9 Mich. 246; Fitzhugh v. Maxwell, 34 Mich. 138; Walker v. Casgrain, 101 Mich. 608; Bowen v. Lansing, 129 Mich. 119 (57 L. R. A. 643); City of Marquette v. Land Co., 132 Mich. 132.

Recognizing that Wood, the complainant, was the real vendor, he assigned his interest in the contract to his creditor, who in turn assigned to Wood. Had this been done by deeds, the legal title would have been revested in Wood, subject to Schoolcraft’s contract rights. But it was not, and the effect of the assignment was in equity to leave in Jenks a legal title in twist, (1) for the benefit of the purchaser Schoolcraft, (2) for the security of Wood for the contract priée, which claim Jenks assigned. It was a breach of trust for Jenks to sell and mortgage the land and appropriate the proceeds to his own purposes, and those of Schoolcraft, a misapplication of the trust fund, and he was liable for such act if the security was lost by reason thereof. It is contended that the security was lost through shrinkage in values. The proof shows a replatting of the property by J enks and Schoolcraft, the building of houses thereon and mortgaging the land, and selling portions of it. He had no right to subject the complainant to the dangers of these speculations by selling or pledging his property therefor, and such transactions are not the subject of an accounting against complainant.

We are of the opinion that complainant might sue in equity to enforce his security against Schoolcraft, and that Jenks, holding the legal title to some of the property, was a proper and necessary party. The decree was rendered on the theory that complainant’s lien had been lost to him through the conduct of Jenks, and that the amount due him on the contract was the measure of his right against Schoolcraft and the,, measure of his damages against Jenks, the only redress that the circumstances permit.

This was a just decree, and is affirmed, with costs.

' McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.