source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    MERO v. MICHIGAN CENTRAL RAILROAD CO.
    1. Appeal and Error — Common Carriers — Comparative Negligence — Briefs—Practice of Supreme Court.
    The Instructions of the trial court, in a personal injury case, that the rule of comparative negligence had no application to a servant on a boat which was out of commission and was not in use for purposes of transportation at the time plaintiff was injured, eliminated that question from the case so that defendant appellant need not refer to the claim and ruling in its brief.
    2. Master and Servant — Directed Verdict — Inconsistent Positions — Evidence.
    Plaintiff’s testimony being contradictory, and his stories of the manner of injury irreconcilable, the trial court erred in submitting the issue to the jury, permitting them to guess which story was correct, where under one set of facts plaintiff" could not recover.
    3. Same — Lighting Stairways — Assumption of Risk.
    Where an employee who had been cleaning boilers in a ship knew that no other men were present and the light- . ing system was not working, he assumed the risk of attempting to proceed down the hatchway or steps between decks in the dark after having an opportunity to discover its condition as to darkness.
    Error to Wayne; Mandell, J.
    Submitted April 16, 1913.
    (Docket No. 75.)
    Decided March 28, 1914.
    Case by Joseph Mero against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      J. W. Dohany (Frank E. Robson and Henry Russel, of counsel), for appellant.

      Thomas J. Mahon, for appellee.
   McAlvay, C. J.

Plaintiff recovered judgment in this case for damages for personal injuries claimed to have been caused on account of the negligence of defendant. By a writ of error defendant has brought the case to this court for review. The statement of facts contained in the brief of appellant is not questioned except by suggesting an omission to which we will refer later.

The injury complained of occurred upon one of the transfer boats of defendant company, .all of which had gone out of commission by reason of opening its tunnel under the Detroit river and were laid up. Plaintiff had been employed by defendant principally as a fireman upon its transfer boats at Detroit for 30 years, and at the time of the accident was engaged with others for some days previous in cleaning out the boilers and painting the fire boxes of these boats. These boats had been used by defendant in transferring cars across the Detroit river. He had previously worked on this steamer one night as fireman. On the day previous to his accident plaintiff went on board this steamer “Detroit” to prosecute such work, and so continued during the entire day. In going to and from such work on that day he used one of the four similar stairways with which this boat is provided to reach the lower deck where the boilers were located. On the following day, October 20th, he came to this steamer at 6 o'clock, after full daylight, on a bright morning and before any others of the men had arrived. The work began at 6:30 in the morning. He went aboard, opened the door to one of the stairways, and proceeded to descend from the upper, or main, deck to the place of his employment on the lower deck, which is reached by stairs first to the midship deck and from there down to the lower deck. While so proceeding down this stairway he fell and was injured.

The only question of negligence charged and relied upon by plaintiff which the trial court left with the jury was the claimed negligence of the defendant company in not furnishing lights at that time upon the stairway. There was no evidence in the case that the vessel was not properly equipped with proper appliances, or that this stairway, or deck, or any of the equipment was faulty or defective in any degree. The omission above referred to from the statement of facts, claimed by the appellee, relates to the second count in plaintiff’s declaration, where he relied upon sections 1 and 2 of Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§4110, 4111), relative to the liability of common carrier railroad companies for injuries to employees caused by the carrier’s negligence, and the rule of comparative negligence established by such act. The trial court held that this vessel had gone out of commission, and therefore the rule of comparative negligence had no application to this case, and so charged the jury, which made it unnecessary for the defendant to refer to it in its statement of facts.

When this injury occurred, plaintiff was the only person on board the steamer. He was, therefore, the only witness who testified to the circumstances under which the injury to him occurred. He testified that after he had proceeded part way down this stairway from the main deck, the door he had opened closed behind him and left him in the dark, that he proceeded down the stairs in safety until he came to the midship deck and was carefully feeling his way to find the stairs leading to the lower deck, and, coming upon the opening unexpectedly, fell down the whole length of this stairway to the lower deck before he had taken a single step down the stairs. On cross-examination, after a recess, he gave another version of the circumstances surrounding this accident, and testified that he had located the stairway leading down from the midship deck and had gone down three steps in safety when he fell the entire distance to the lower deck, which his testimony shows he knew was nine or ten feet below the midship deck. He explains his fall by saying that he thought he had reached the bottom of the stairs, because there were three steps down on the stairs of the steamer “Transfer” where he had worked. He had in fact fallen about eight steps.

At the close of plaintiff’s case a motion was made on the part of defendant to direct a verdict in its behalf, that no negligence of defendant had been shown, and that the negligence, if any, was on the part of plaintiff. The motion was denied, and an exception taken.

The errors assigned and relied upon by defendant relate to the refusal to grant the foregoing motion, to refusing certain requests to charge, and to certain portions of the charge of the court as given. Such of the assignments of error will be considered as are important and determinative of the questions raised by appellant.

It is contended that the court was in error in submitting to the jury the two versions testified to by plaintiff as to how the accident happened. That two such versions were given by plaintiff and that they are irreconcilable is beyond dispute. The court, in charging the jury relative to the testimony of plaintiff, which was all the testimony as to the occurrence, had stated how he had gone down the stairs to the midship deck, and then proceeded to give his two versions of what occurred afterwards, as follows:

“What occurred after that you will have to determine, because it is left in considerable doubt by reason of the contradictory statements made by the plaintiff, and the whole case as to what occurred after he got on the half deck is left in considerable doubt, and from the very nature of things, that he was the first man there and that there were no other men there, there is no other witness to the accident except himself, and his case must stand or fall upon what you believe to be the truth from the statement he has made.”

The court then related plaintiff’s first statement, that in seeking for the stairs in the darkness he fell through the opening of the stairway into the hold of the vessel, and proceeded as follows:

“That is one story that he has told, and he has told another story. He has told the story that he had reached this place, that he started to go down the second stairway from the half deck to the lower deck and that after he had descended some two or three steps he slipped and stumbled and went down and then sustained the injuries of which he complained in this case. I charge and instruct you as a matter of law that if he had started to descend from this half deck to the lower and slipped in some way, either through his own carelessness or the slipperiness of the deck, he cannot recover. So the question of recovery will depend entirely upon what you believe from the story he has told which I think I am justified in saying is somewhat of a contradictory story. What you believe after seeking all, and hunting through all, his testimony to see what the truth is will depend upon what the circumstances were just prior to the time he started to fall and upon the determination of the question whether he did fall before (after) he started to descend, or prior to it.”

Appellant contends that each of these contradictory stories of the plaintiff which were submitted to the jury by the court left the jury to guess and speculate that the accident happened in one of two ways as testified to by plaintiff, and insists that under the evidence in the case upon this question the trial court should have directed a verdict for defendant. It has been repeatedly held by this court that a jury should not be left “to attribute to a particular cause an injury which may as well be attributable to another.” Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414), and cases cited. In the instant case- there was no evidence how this accident occurred except the two theories testified to by plaintiff, and the jury was left to speculate and guess that one was correct and the other incorrect. In our opinion the case is within the decisions of this court which deny the right of the jury to arrive at a verdict in this way. The court was in error in submitting the case to the jury and should have directed a verdict in favor of defendant as requested.

It is further contended that in any event, under the evidence, plaintiff could not recover, on the ground that he had assumed the risk.' The record shows that this steamer was not at the time of this accident to plaintiff engaged in commerce, but that it had gone out of commission, and plaintiff and the other workmen were at this time engaged in cleaning and laying up its boilers and machinery. Plaintiff knew this, and also knew that when he went on board the morning of his injüry there were no fires under the boilers and that the electric lighting system with which the steamer was equipped was not in operation. From his testimony it appears that when he had proceeded from the main deck to descend to the place of his work, after the door to the stairway which he had opened had closed, while he was on the stairs, he realized that he was not able to see by reason of the want of light. His testimony is that there was no light below, and that he could see no light at all, and that he proceeded and the injury occurred as has already been stated. He had gone down one of these stairways the morning before. His testimony shows that he had spent many years in the employment of defendant upon some of these transfer boats, and that during practically his whole mature life he had been employed upon steam vessels as a fireman. His testimony shows that he knew there were no other men upon the boat at the time, and that he expected to go down to the lower deck and wait until they arrived. As far as the record shows he was a man of ordinary intelligence. When, after plaintiff had gone down this stairway but a few steps toward the mid-ship deck, and the door closed behind him, and he realized that he was in the dark, he chose to proceed down this stairway to the lower deck with knowledge that there was no light anywhere below, it must be held that he assumed the risk of any injury resulting from the absence of light. The learned trial judge at the close of taking testimony in the case, in finally denying the motion to instruct a verdict for the defendant, and also later in his charge to the jury, recognized that this doctrine of assumed risk here invoked was applicable, if he had started to go down the stairway from the midship deck to the lower deck and' fell after he had gone down two or three steps.

The court was in error in not so holding and instructing a verdict on that ground in favor of defendant, as requested.

The judgment of the circuit court is reversed, and, as no different testimony could be produced at another trial, no new trial is granted.

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


text:
    MONEYWEIGHT SCALE CO. v. DAVID.
    1. Appeal and Error — Saving Questions eor Review.
    This court will not pass on questions which were not presented to the trial court.
    2. Recoupment — Sales—Breach op Warranty.
    Recoupment will not lie for breach of warranty of an executory contract of sale, under which title was not to pass on delivery but at the completion of the stipulated payments, and until the price has been paid no right of action on the warranty is available.
    3. Interest — Appeal and Error.
    On error to review a judgment for the price of certain scales which included an excessive amount of interest, the judgment may be entered for the correct amount, which plaintiff’s attorney consented to accept, remitting . the excess.
    Error to Kent; Perkins, J.
    Submitted April 28, 1913.
    (Docket No. 113.)
    Decided March 28, 1914.
    Assumpsit in justice’s court by the Money weight Scale Company against Joseph David and Deeb Hattem on a promissory note. From a judgment for defendants, plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Reduced and affirmed.

      E. J. Doyle, for appellants.

      Hall & Gillard, for appellee.
   McAlvay, C. J.

Plaintiff recovered judgment, against defendants upon a directed verdict in a suit brought on a promissory note executed by them for the amount due upon such note.. Plaintiff is engaged in selling certain computing scales to the trade upon written orders, by the terms of which the title to the property remains in plaintiff until the purchase price is paid; the payment of the price, except the initial sum of $10, being deferred according to the terms of the promissory note printed upon the same blank which contains the contract order for the scales. The contract order is of considerable length. It was given November 8, 1910, by defendants for two computing scales of the capacity of two pounds each, to be shipped to them at Grand Rapids, Mich., for which they agreed to pay the sum of $70, $10 cash with the order, and the balance, $60, payable as evidenced by the note attached to the order, $5 each month, beginning March 1, 1911, and continuing to -February 1, 1912. The order provided, among other things, that, should there be any failure to promptly pay such note or any payment thereon when due, or if plaintiff should feel itself insecure, or if defendants should be sued and their property levied upon, then the whole unpaid balance of the purchase price should, at the option of plaintiff, without notice, become due and payable, and possession might be taken of the scales without legal process, unless an extension in writing was given, and previous payments should be considered as having been made for the use of the scales, during the time they remained in the custody of defendants. It was further agreed that title to the scales should not pass from plaintiff until paid for in full, and until such time the scales would remain the property of plaintiff; also that bringing any suit for the price of the scales would not operate to vest the title thereto in defendants, but such title should remain in plaintiff until any judgment recovered for such purchase price should be paid, and, in case of recovery, all costs and attorney fees should be paid by defendants. It was further agreed that the scales were to be held by defendants at their own risk pending the vesting of title in them, and no injury, loss, or destruction of said scales, by any cause whatever, except plaintiff’s fault, should release defendants from their obligation to pay the purchase price therefor, and the contract was to remain in full force and effect as to any other' scale that might be sent in exchange for those originally delivered. It was agreed that the contract and order should not be countermanded, and covered all the agreements between the parties. Defendants certified that they had read the contract and acknowledged receipt of a duplicate. This contract was duly executed by defendants. The following is a note given at the time:

“$60.00. State, Mich. Town, Grand Rapids. Date, Nov. 8, 1910.
“For value received I (or we) promise to pay to the order of Moneyweight Seale Co., 47 State St., Chicago, Illinois, sixty dollars ($60.00) dollars, payable as follows:
Jan. 1, 1912, $5.00 July 1, 1911, $5.00
Feb. 1, 1912, $5.00 Aug. 1, 1911, $5.00
Mch. 1, 1911, $5.00 Sept. 1, 1911, $5.00
April 1, 1911, $5.00 Oct. 1, 1911, $5.00
May 1, 1911, $5.00 Nov. 1, 1911, $5.00
June 1, 1911, $5.00 Dec. 1, 1911, $5.00
“New York or Chicago Exchange.
[Sign here] “David & Hattem.’

There was printed under the signature a statement that “the above note draws interest at six per cent, per annum from date of shipment or delivery if delivered by salesman,” also if payments were promptly made interest would be waived, otherwise full interest would be charged, and, if the account was paid in 30 days, 5 per cent, discount would be allowed.

After the execution of the order and note, the scales were delivered to defendants at their place of business. A guaranty in writing, dated on the same date, was delivered to defendants by plaintiff’s agent, whereby it was guaranteed that these scales, Nos. 287,521 and 287,606—

“Will weigh correctly any article capable of being weighed on it and should the scales get out of order at any time within two years from date of shipment with ordinary use (not dropped or broken) will repair the same gratis, the purchaser paying the freight or express charges to and from the factory.
“We further guarantee that all pound and ounce graduations within the capacity of this scale which carry corresponding computations are commercially correct, and we hereby guarantee to indemnify and protect the purchaser of this scale against loss resulting from possible suits by competing manufacturers charging infringement of patents.”

This case was begun in justice’s court May 23, 1911.

“Plaintiff declares orally on all the common counts in assumpsit specially on written contract, to plaintiff’s damage, $500. The defendants pleaded orally general issue and recoupment.”

From the time the writings were made and entered into, as stated, and the scales in question were delivered to defendants by plaintiff’s agent, defendants, who were engaged in business as partners, conducting a confectionery store in the city of Grand Rapids, used these scales in their business continuously up to January 1, 1911, when defendant David sold his interest in that business to his partner Hattem and a Mr. Malobey, who, as partners, continued the business and used the scales in question continuously up to February 20, 1911, when, upon inspection by the city sealer of weights, one of these scales was not passed by him, and the firm was ordered not to use it.

Concerning the foregoing facts in this case as stated, there is no dispute in the record. There was a disputed fact in the case between these parties concerning which the court in his charge to the jury said:

“It is claimed on the part of plaintiff that when they were notified that the scales were out of order they immediately sought to repair them, and that the defendants refused to permit a repair and insisted that the plaintiff take that pair of scales back.
“On the other hand, the defendants claim that they notified the plaintiff, and the plaintiff neglected to repair them and continued to neglect to repair them after the suit was brought. That is a question of fact which, if the case should be submitted to the jury, would be for the jury to determine, and it is practically the only question of fact in the case.”

Defendants have removed the case to this court upon writ of error for review. Defendants rely upon but two of the errors assigned, namely, that the court erred in taking the case from the jury and directing a verdict for plaintiff, and also that the court erred as to the amount of the verdict directed.

Defendants in their brief urge that there was a substituted contract or novation. This is based upon the claim made for the first time in this court by them that the guaranty was not given to defendants by plaintiff but was given to their successors, Hattem ,& Malobey, as appears from the copy of such guaranty printed in the record. An examination of the entire record shows that neither by notice under the plea of the general issue, nor by any testimony, nor by any claim made by or on the part of defendants does it appear that the question of novation was mentioned or in any manner brought to the attention of the trial court, and the claim is made for the first time in their brief filed in the case that the guaranty was given to Hattem & Malobey. The rule that questions not raised and passed upon in the trial court will not be considered for the first time in this court is too well settled to require discussion.

The defense interposed in this case is based upon the notice of recoupment. The amount of damages claimed which defendants consider they are entitled to does not appear in the evidence. The court, in directing a verdict, held that this was an entire contract, and, “if the contract is to be repudiated, it must be repudiated as an entirety and not as a part of it only,” and also held that:

“There is no right under the law given to defendants to recoup damages in a case like this. The law is that, until the title passes, there can be no recovery for a breach of guaranty, and the title has not passed to the defendants in this case and cannot pass until they have paid for the scales. And any claim for damages by way of recoupment under these circumstances under the law cannot be allowed.”

By the recoupment sought to be recovered, defendants are undertaking to recover for a breach of the warranty given by plaintiff. In this case it appears that this was an executory contract; that title did not pass and, under the agreement, would not pass until full payment of the agreed price. The court, therefore, was not in error in so holding. Bunday v. Machine Co., 143 Mich. 10, at page 13 (106 N. W. 397, 5 L. R. A. [N. S.] 475), and cases cited. It follows that the court properly instructed a verdict for plaintiff.

Defendants’ next contention is that the amount of the judgment directed was erroneous; that no credit was given for the months of January and February, 1911, which they claim has been paid. This is clearly a mistake, for the reason that the written order and note which was used at the time of the argument and left with the court for examination shows that the first payment became due March 1, 1911, and thereafter on the 1st day of each month following a payment of $5 became due for 12 months, until the amount of $60 would be paid. This would require the payment of $5 to be paid on January 1, 1912, and also a like amount on February 1,1912. The printed blank upon which this order and note were written contains 12 spaces, in 3 columns of 4 each, in which to write payments for each of the 12 calendar months. Beginning with the 1st of March, 1911, when the note shows the first payment was due, down to the 1st of December, 1911, were spaces for but 10 payments, making $50 of the balance due, and no spaces were left for the two remaining payments except on the blank above the first payment. These two last payments are distinctly written in the blank as follows: “Jan. 1, 1912, $5.00. Feb. 1, 1912, $5.00” — so that in position on the note the last two payments are written first and might readily be taken to be the first two to become due, unless care was taken in reading the year in which a payment was to occur.

Neither of the defendants testified that more than $10 ever had been paid upon this contract, nor is there any such evidence in the case.

The sole remaining question is whether interest on the balance due was correctly computed. Each payment on this note would draw interest at 5 per cent, from the date it became due until November 13, 1912, the date of the entry of the judgment. A computation shows that the entire sum of interest amounts to $3.67, which, added to the principal, $60, gives $63.67. This makes an excess of interest amounting to $3.53. During the trial, or when the court directed a verdict for the amount as computed by plaintiffs attorney, no objection whatever was made on the part of defendants that such computation was incorrect.

Other portions of the charge are criticised in appellants’ brief, but, as no exceptions were taken or errors assigned upon them, this court will not consider them.

We find no reversible error in the case, and, as counsel for plaintiff in his brief is willing to remit any excess of interest which may have been included in the amount of the verdict, judgment of the circuit court will stand affirmed for the sum of $63.67, with costs in favor of plaintiff.

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


text:
    ALCONA COUNTY AGRICULTURAL SOCIETY v. COLWELL.
    Boundaries — Adverse Possession — Fences.
    In an injunction suit involving the boundary lines of complainant’s real property, evidence examined, and held, to support a decree for complainant and against defendants’ claim of adverse possession.
    Appeal from Alcona; Connine, J.
    Submitted April 10, 1913.
    (Docket No. 24.)
    Decided March 28, 1914.
    Bill for injunction by the Alcona County Agricultural Society against George W. Colwell and others. From a decree for complainant, defendants appeal.
    Affirmed.

      John H. Kilmaster, for complainant.
    O. H. Smith, for defendants.
   McAlvay, C. J.

Complainant, a Michigan corporation, filed its bill against defendants, who occupy certain premises in the village of Harrisville, Alcona county, adjoining the property of complainant on the west, charging that defendants have wrongfully torn down the line fence erected by it between the lands of the parties, and after it had rebuilt said fence entirely upon its own land defendants threatened to tear it down again and destroy it. It prayed for an injunction to restrain them from so doing, and a decree for all damages occasioned by reason of defendants’ unlawful conduct in destroying said fence, and for general relief. Defendants’ joint answer to this bill of complaint admits the allegations of complainant’s, bill- that it was duly incorporated and had the record title of the premises claimed, but claimed there was a mistake in the description of land in its deed, and it had never had possession of the portion in dispute in this case. Defendants admit that they destroyed the fence in question and threatened after it had been rebuilt by complainant to tear it down again because it was built without authority upon their premises. They further alleged that they have been in the adverse possession of the strip in dispute for 26 years, and claimed by their answer the benefit of a cross-bill, asking that the title to this piece of land be decreed in defendant Mary G. Colwell. The case was heard upon proofs taken in open .court, and resulted in a decree in favor of complainant.

The parties to this suit own and occupy adjacent portions of land situated on lot 2, section 12, in town 26 north, of range 9 east, in the county of Alcona. The record shows that complainant, on March 15, 1883, purchased by warranty deed this description of land from defendants George W. Colwell and wife and others, members of Colwell Bros. & Co., a copartnership, and has owned and occupied it continuously since that time. The description of these premises is as follows:

"Commencing 847 feet east of the southwest corner of lot 1 in section 12 town 26 north, of range 9 east; thence, south 9 degrees and 30 minutes west to Washington street, in the village of Harrisville, as surveyed and platted by H. G. Rothwell, C. E.; thence, south 80_ degrees 30 minutes east 538 feet along the line of said street; thence, north 9 degrees and 30 minutes east to the line between lots 1 and 2 in section 12 in said township; thence west on said line 550 feet to the place of beginning, being a part of lot 2 of section 12 above mentioned.”

The description under which defendants occupy the premises adjoining complainant on the west, which were later, by several deeds from defendant George W. Colwell and others, conveyed to defendant Mary G. Colwell, situated on lot 2, of said section 12, as given in the deed to her, dated October 4, 1901, reads as follows:

“All that part of lot 2 in section 12 in township twenty-six (26) north, range nine (9) east: Commencing at the southwest corner of land owned by the Alcona Agricultural Society; thence, north along the west line of the Alcona County Society’s lands to the north line of said lot two (2) ; thence, west to the east line of the Detroit & Mackinac Co.’s right of way; thence, southerly along the east line of the Detroit & Mackinac Co.’s right of way to Washington street; thence, easterly along the north side of Washington street to place of beginning.”

A voluminous record is returned containing a large amount of testimony of many witnesses, a reading of which satisfies us, as it did the learned trial judge, that much of it is contradictory and irreconcilable. Defendants do not ask to have the claimed error in the description of land conveyed to complainant by its deed corrected, but rely upon adverse possession, and dispute the correctness of complainant’s surveys.

From the descriptions in the deeds as already given, conveying title to the parties to this suit, it will be noticed that the title conveyed to complainant by the members of Colwell Bros. & Co. antedates by more than 18 years the deed to defendant Mary G. Colwell, and both descriptions are by metes and bounds. By these deeds to these parties the west line of complainant’s land coincides with the east line of land claimed by defendants, and the description in Mrs. Colwell’s deed cannot be determined without first ascertaining and locating the west line of complainant’s premises, as is apparent from the description, ■ which reads:

“Commencing at the southwest corner of land owned by the Alcona Agricultural Society; thence, north along the west line of the Alcona County Society’s lands to the north line of said lot 2; thence, west,” etc.

It will be of no benefit for this court to analyze and digest the testimony of the parties and many witnesses produced by them in this case. This has been done with care by the learned trial judge before whom the witnesses were produced and in whose presence they testified. He has carefully stated in an opinion which is in the record the contentions of these parties and his conclusions from the testimony given.

The contention of defendants throughout the case is that the complainant never took possession of this strip of land, but built its first fence 45 feet east of the point where it now contends defendants’ northwest corner is located, and until the year 1909 maintained such fence running south from that point to the southwest corner of its land. Complainant insists that the first fence it built on the west side inclosing the premises deeded to it was constructed upon practically the same line where its present fence is located, and included the piece of land in controversy, which is wedge-shaped, being 45 feet wide at the north end and running to a point something more than halfway to the southwest corner. Defendant Colwell was a member of the firm of Colwell Bros. & Co., and, with his wife as a party thereto, executed and delivered the warranty deed given to it by the grantors.

In our opinion the controversy turns upon the question of fact as to whether the survey recently made by complainant can be accepted as correct, and whether the original fence constructed by it along the west line of the premises described in the warranty deed from the members of the firm of Colwell Bros. & Co. and their wives to it was upon the line coincident with the line of such survey. From our examination of the testimony in this record we are satisfied that the conclusion of the trial court favorable to the complainant upon both these propositions is supported by the weight of the evidence, and that complainant’s survey coincides with the line upon which, the first fence was built, and the fence as now constructed by it along the west line of its premises is located entirely upon its own land.

The decree of the circuit court is affirmed, with costs of both courts in favor of complainant and against defendants.

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


author: McAlvay, C. J. Ostrander, J.

text:
    HOGUE v. WELLS.
    1. Ejection of Remedies — Assumpsit—Waiver of Tort.
    Not knowing at the time of commencing an action that defendant had converted money collected for plaintiff to his own use, the plaintiff did not waive her right to amend her declaration from assumpsit to trover, since full knowledge is essential to a claimed waiver.
    2. Trover and Conversion — Checks—Evidence—Agency.
    Where testimony was introduced tending to prove that plaintiff’s agent received a check in payment for a note in his hands, and that the check had been marked paid by the bank on which it was drawn, and where the trial court refused to permit the agent to testify that he received no money or its equivalent for the check, at the trial of an action of trover, and it appeared that the relation between plaintiff and defendant was of a fiduciary character and not that of debtor and creditor, and defendant had the note in his hands for collection, trover was qorrectly held to be a proper remedy for the unlawful retention of the fund, and the trial court properly excluded the testimony offered to show that the payment by check was not in fact what the transaction, on its face, purported to be.
    Stone, Ostrander, Bird, and Moore, JJ., dissenting.

      Error to Berrien; Bridgman, J.
    Submitted April 24, 1918.
    (Docket No. 48.)
    Decided March 28, 1914.
    Trover by Mary R. Hogue against Benjamin F. Wells for the conversion of funds belonging to plaintiff. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed by an equally divided court.

      John J. Sterling, for appellant.

      Cady & Andrews, for appellee.
   McAlvay, C. J.

In an action in trover brought by plaintiff against defendant for the unlawful conversion of certain money belonging to her, she recovered a judgment upon an instructed verdict. Defendant has removed the case to this court for review and asks a reversal, assigning errors upon the rulings of the court during the trial and in instructing a verdict against him.

The following are the facts in the case: Defendant was at the time of the transaction in dispute, and had been for a period of years prior thereto, assistant cashier of the Benton Harbor State Bank. On September 16, 1909, he sold and assigned to plaintiff for a valuable consideration the following promissory note, together with a certain certificate of stock held by him as collateral security therefor:

“$2,400. Benton Harbor, Mich., Sept. 1, 1908.
“On the first day of each month after date for value received, I promise to pay to the order of B. F. Wells, forty dollars ($40.00) until the whole principal sum of two thousand four hundred dollars with interest on the same at the rate of six per cent, per annum payable annually shall have been paid on all principal sums at any time unpaid, and if the interest is not paid when due it shall become as principal and draw interest- at the rate of six per cent, per annum, payable annually. It is also agreed that A. S. Miles shall deposit with and assign to B. F. Wells all his stock in the Miles Shoe Company as collateral security for the repayment of the said two thousand four hundred dollars and the interest thereon.
[Signed] “A. S. Miles.”

At the same time he indorsed on the back of said note and signed the following written guaranty:

“Benton Harbor, Mich., Sept. 16, 1909.
“For a valuable consideration, I do hereby sell, assign and transfer to Mary R. Hogue, all my right, title and interest in and to the within instrument, and further for a valuable consideration, I do hereby guarantee the payment of the sums of money in the within instrument at the times and in the manner therein specified, I also assign to said Mary R. Hogue the certificate of stock referred to in said note and the same is hereby attached.
[Signed] “B. F. Wells.”

At the time of such transfer there was a balance of $2,200 remaining unpaid on said note. Plaintiff at this time had a credit account in and did business with said bank. She left this note in the possession of defendant with instructions to collect for her and, as from time to time the installments of principal and interest became due, to receive and place the same to her credit in the bank. Defendant received the note from her for that purpose and made collections for her from the maker of said note each and every month thereafter during the years 1909 and 1910 and certain payments amounting to five monthly payments in 1911, and indorsed all of said payments received by him upon said note and placed the amounts so collected for her to her credit in the bank. On June 17, 1911, the maker of plaintiff’s note, who was secretary and treasurer of the Miles Shoe Company, of which defendant had been president for several years, drew the check of said company on the Benton Harbor State Bank, of which defendant was assistant cashier, for the sum of $8,724, payable to the order of defendant; such sum being made up of the amount of a certain $2,000 indebtedness of A. S. Miles to defendant and $1,724.46, the amount of the balance of plaintiffs note. Miles delivered this check to defendant, who‘indorsed it, presented it to the bank, which honored it and stamped it paid, and returned it in due course of business to the maker. The following is a copy of this check, and the indorsement and bank stamp upon it:

“No. 3528.
“Benton Harbor, Mich., June 17,1911.
“Benton Harbor State Bank pay to the order of B. F. Wells three thousand seven hundred and twenty-four and 46-100ths ($3,724.46). A. S. Miles notes.
“The Miles Shoe Co.,
“per A. S. Miles.”

Indorsed on the back: “B. F. Wells.” Stamped on the face of it: “Paid June 17, 1911, Benton Harbor State Bank, Benton Harbor, Michigan.”

Defendant admits that this check represented the amount' of the two items named. This check represented Miles’ personal indebtedness to defendant, and was charged to his personal account at the time in the books of the Miles Shoe Company.

Of this check of $3,724.46, which was received and indorsed by Wells, and paid to him by the bank, he retained the whole amount and did not account for and deliver to her by depositing to the credit of plaintiff the amount of her specific interest therein. At the time of this transaction, when defendant received this check from Miles in payment of the indebtedness to him and the balance of plaintiff’s note, she was in the West visiting. Upon her return, and before the fact that the entire balance on her note had been paid to her agent and collector by the maker came to her knowledge, she began a suit in assumpsit on this note, commenced by summons, and afterwards filed declaration. In this suit there was afterwards a substitution of attorneys, and, when her present attorneys learned through. Mr. Miles of the payment of the note in question, a motion was made by them for leave to withdraw the declaration filed and for permission to file a declaration in trover. This motion was granted and a declaration in trover filed, on payment of costs. Defendant pleaded the general issue to this declaration, with notice that plaintiff had elected to bring suit in assumpsit instead of trover and had therefore waived her right of action against defendant in trover. The trial now under discussion and consideration before this court was the trial had upon this issue. At the close of plaintiff’s case defendant moved for a directed verdict upon the ground stated in the motion attached to the plea.

The contentions of defendant upon the trial of the case were:

(1) That plaintiff had waived her right of action in trover by bringing an action in assumpsit.
(2) That an action of trover for the conversion of this money will not lie against defendant in this case, even if it should be held that he had received it.

The information that the balance unpaid on plaintiff’s note had been fully paid to defendant did not come to the knowledge of plaintiff until after the declaration in assumpsit had been filed in this suit and the substitution of attorneys had been made. The contention that plaintiff had waived a right of action in trover, therefore, cannot be sustained, for the reason that at the time plaintiff had no knowledge that such right of action existed. It is well settled that a party cannot waive a right of which he has no knowledge.

“There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts which would enable him to take effectual action for the enforcement of such rights.” Clare County Sav. Bank v. Featherly, 173 Mich. 292 (139 N. W. 61), citing 29 Am. & Eng. Enc. Law (2d Ed.), p. 1093.

Under this contention defendant urges that this money, for the wrongful conversion of which this suit is instituted, if in his hands, was a general indebtedness on his part to the plaintiff, and that this suit is brought in trover to recover money generally and not a specific fund of money delivered to him to be returned to her in specie. There is no dispute in this case but that the relation between plaintiff and defendant was that of principal and agent. He was a collector for her of the amount of this note and was recognized and had acted as such for nearly two years, about which there is no dispute. A specific portion of the proceeds of the check which Miles gave defendant and which the bank paid him was the property of plaintiff received by defendant to be delivered in a prescribed manner to her. And this is not disputed by defendant, and in fact his contention on this proposition now under consideration admits it. This fund never came to his hands as his money. He never had any right to its possession except for a certain purpose. His relations in this matter to plaintiff were fiduciary. His retention of this fund was therefore an unlawful conversion, and like conduct is defined and punished in this State as statutory larceny. To hold that such wrongful conversion cannot be made the basis of an action in trover would seem to be a stultification of judicial conscience. Under the circumstances of this case, trover was a proper remedy. The trial court therefore was not in error in denying the motion of defendant to instruct a verdict against plaintiff.

Upon the trial defendant made an offer to prove that no payment was ever made by Miles to him of the balance of plaintiff’s note; that he, being a creditor of the Miles Shoe Company to the amount of $2,000, on his individual claim and the bank a creditor of about $2,700, and he having guaranteed the payment of plaintiff’s note when he sold it to her and transferred the collateral, knowing of the uncertain financial condition of the Miles Shoe Company, undertook to get security for the entire amount, $6,800, on these claims; that in furtherance of such undertaking one W. G. Newland took notes of the Miles Shoe Company for $6,300 secured by chattel mortgage upon its entire stock and property, and Newland drew and delivered his check on the Benton Harbor State Bank for that amount to said company; that this check was indorsed by the Miles Shoe Company, presented to the bank, and stamped paid by said bank June 17, 1911; that the check of $3,724.46, which has already been referred to, was drawn against this credit; that in truth and fact no money was ever paid on this transaction, but that it was done in order to accomplish defendant’s plan to get bona fide security for these items of indebtedness above stated.

The court refused to pass upon this offer made by defendant as a whole, for reasons given by him, which will appear in excerpts which we will quote from the record. This offer of proof was made at the close of the cross-examination of Mr. Miles, plaintiff’s last witness, when Mr. Sterling, counsel for defendant, said:

“Mr. Sterling: Before you rest I want to make an offer of proof, and I have a motion to make also. (The jury retired from the courtroom.)
“Mr. Sterling: Since last night I wrote out more in detail what I wanted to put in the record, of what I wanted to show, and I will read it and have it in the record.”

This statement was then read into the record. As given in this opinion it is very much condensed. When the reading was finished, the following colloquy between court and counsel occurred:

“The Court: What do you say?
“Mr. Andrews: I haven’t anything to say. Questions have been asked about everything that has been presented. About half the testimony has been admitted and the other—
“The Court: Do you object to it?
“Mr. Andrews: There is nothing before the court.
“Mr. Sterling: I will make this offer.
“The Court: Plaintiff has rested his case.
“Mr. Sterling: But not until I get the offer in.
“The Court: It is impossible to rule on that offer, Mr. Sterling, in consideration of the condition of the proofs. One part of your offer has been given and received in evidence, so it would be impossible to rule on that offer in general. Some parts have been introduced and some parts the court has sustained the objection to.
“Mr. Sterling: I offer to show all that proof by Mr. Miles, the last witness on the stand for plaintiff.
“The Court: I shall decline to rule on the offer as a whole at this time, irrespective of any technicalities, as it would be impossible, it seems to me, under the condition of the evidence as it now appears. Part of that that you put in there has been admitted.
“Mr. Sterling: Just enough admitted to leave the jury in doubt as to certain points I want to clear up.
“The Court: Under the theory of the court, a large part that you have offered is inadmissible entirely. I shall decline to rule upon the offer as a whole, but if counsel desires to recall Mr. Miles he may recall him arid ask such questions as he desires if you have omitted any question.
“Mr. Sterling: I want to show I offer this testimony, and what the court has said appears on the record, and I take exception to the ruling of the court, and to the attitude of the court to rule either favorably or unfavorably on the testimony.”

Counsel for defendant then made a motion that the court direct a verdict in his favor. This motion included the propositions relative to the declaration in trover, and also that trover was not the proper remedy, which have already been discussed. It was denied, and one of the errors assigned is upon such denial. In this opinion we have already considered and disposed of these questions against the contention of defendant.

A verdict was directed by the court in favor of plaintiff, and upon this direction error is assigned. It is apparent that, if the court was in error in excluding the above offer of proofs made by defendant, such verdict should not have been directed.

Defendant insisted that the court should consider the offer made as a whole, and the exception taken to the refusal of the court “to rule either favorably or unfavorably on the testimony offered” is that relied on. It will be noted that the court did not deny counsel the right to offer testimony in the ordinary way; in fact, the court, in declining to rule upon the offer as a whole, suggested to counsel to recall the witness and further examine him. Counsel was in error in insisting as he did upon a ruling upon the offer as made. He should have followed the suggestion of the court.

This leaves to be determined the question whether the record discloses any evidence in the case on the part of defendant to be submitted to the jury. An examination of the entire record satisfies us that there was no such evidence, and that the court was not in error in instructing a verdict for plaintiff.

The judgment of the circuit court is affirmed.

Brooke, Kuhn, and Steere, JJ., concurred with Mc-Alvay, C. J.

Ostrander, J.

(dissenting). Plaintiff’s right to recover in this action is based, initially, upon the fact that she owned a note for $2,400, dated September 1, 1908, payable $40 each month, with interest at 6 per cent, per annum, payable annually, made by one A. S. Miles to defendant and sold and assigned to plaintiff by defendant September 16, 1909, payment of which note, according to its terms, defendant guaranteed. Payment of the note was secured by a collateral assignment of stock of the Miles Shoe Company. Payments were made on this note to and including the one due in May, 1911, and when this action was begun in January, 1912, only a portion of the note was due and only a portion of it could have been recovered, of the maker or the guarantor, in an action on the note.

Plaintiffs right to recover rests immediately upon the alleged fact that defendant, who had the note for collection of the monthly payments, received payment of the entire balance due thereon June 17, 1911, by way of a check dated that day, made by the Miles Shoe Company, payable to the order of defendant. It will be noted that the Miles Shoe Company was not the maker of the note and not obligated to pay it; nor could plaintiff have been obliged, at that time, to accept payment of the note. The check was produced and is set out in the opinion of Mr. Justice McAlvay. As he points out, the check was drawn on the Benton Harbor State Bank, and it bore on its face the bank stamp, “Paid June 17, 1911.” In addition, plaintiff introduced the testimony of Mr. Miles, who testified that he paid the note in question to defendant by way of this check. There is the admission of the defendant that the check — one of two or more checks given —was for the amount of the note and for other indebtedness owed to defendant. This is, in substance, the evidence tending to prove that defendant had ever received money or money’s worth on plaintiff’s account. In saying this, I have not overlooked the testimony of defendant, upon his cross-examination, to be hereinafter referred to. Such evidence as the check afforded of payment to and receipt by defendant of money belonging to plaintiff was by the court held to be indisputable.

Defendant offered to prove that the check did not represent money and that not a penny of cash ever was disturbed by it, and, further, that none of the parties to a transaction of which the giving of the check was a part ever intended that any money should pass by the check. He offered to prove that the Miles Shoe Company and A. S. Miles were indebted to defendant in the sum of $6,300, evidenced by notes of which the one belonging to plaintiff was one; that the shoe company was involved, financially; that, to obtain security, a third person, one W. G. Newland, was introduced into the affair; that to Newland Miles gave three notes of $2,100 each, dated June 10, 1911, and to secure their payment executed a chattel mortgage on the stock of goods of the shoe company; that in return for these notes Miles received from Newland the check of defendant, drawn on the Benton Harbor State Bank, for $6,300; that Newland indorsed the notes and assigned the chattel mortgage to defendant for the check; that against this apparent credit created by defendant’s check, Miles drew checks to the same amount, in payment of old notes, including plaintiff’s note, and in this manner new notes, with new security, were substituted for the old; and that not one dollar in cash changed hands; and that no party to the transaction intended that any money should change hands. Repeatedly, rulings such as are indicated in the following excerpt from the record were made by the court (the witness Miles was being cross-examined):

“Q. Did you get any money from the bank on this check given by W. G. Newland to you on the 10th of June, 1911?
“Mr. Andrews: I object to that as immaterial and irrelevant.
“The Court: The objection is sustained.
“Mr. Sterling: Note an exception.
“Q. Was there a single penny of coin or currency that you obtained on the Newland check, or that Mr. Wells obtained on your check given him on the 17th of June?
“Mr. Andrews: I object to the question.
“Q. Was there any money, either currency or coin, obtained by anybody on that transaction?
“Mr. Andrews: I object to the question as irrelevant and immaterial.
“The Court:' The objection will be sustained. I don’t think it is well to contradict the paper itself.
“Mr. Sterling: Note an exception.”

Defendant was a witness and gave testimony. The following is a portion of what took place upon his direct examination:

“Q. Does this check, dated June 17, 1911, which bears your signature, marked ‘Exhibit 2,’ represent any money that you obtained from the Benton Harbor State Bank to the Miles Shoe Company?
“Mr. Andrews: We object to the question as irrelevant, incompetent, and immaterial.
“The Court: The objection will be sustained. The paper speaks for itself.
“Q. During the entire transaction between you and Miles, in which this check figures, and was given to you, did you obtain for Mrs. Hogue from Mr. Miles a single penny?
“Mr. Andrews: I object to that question as irrelevant, incompetent, and immaterial, and, further, calls for the conclusion of the witness.
“The Court: The objection will be sustained, and the question has substantially been answered three times, and has been substantially asked and ruled on three times.
“Mr. Sterling: I take exception to the ruling of the court.
“Q. Have you in your possession, or have you ever had in your possession, any money belonging to Mrs. Hogue that you have not turned over to her ?
“Mr. Andrews: The same objection.
“The Court: That objection will be sustained also. That would be his conclusion. What you are endeavoring to get at is his legal conclusion.
“Mr. Sterling: I do not think the question is susceptible of that interpretation.
“The Court: The court so thinks it is. There is a paper signed by Mr. Wells in which it appears that there was $3,700 passed to him. That represents money because it was paid to him by the bank, and that says it was to pay the Miles notes, and that whole paper is to be taken together. As long as the bank paid him that money, he must have had it. The question whether it was or not to pay the Miles notes— it was to pay some notes, and the court held if it didn’t pay those notes you might show what notes it was intended to pay, but that he had that money. A blanket question whether he had the money in his possession that he had not paid to Mrs. Hogue might be misleading to the jury.
“Mr. Sterling: The witness testified that he did not get any money on this check.
“The Court: No, he has not. The court said he could hot 'contradict that paper very well.
“Mr. Sterling: I take an exception to the ruling.”

It is said in the brief for appellee:

“The trial court held that the check being drawn to defendant, as payee, and indorsed by him upon its back, and no other indorsement appearing thereon, except the stamp ‘Paid’ by the bank, and the check being returned to Miles, the maker, in the regular course of business showed conclusively that Miles had paid defendant the amount of money named in the check.”

This action is trover for money. It may be conceded that if, when all of the facts are elucidated, it appears that defendant directly or indirectly received from the maker of plaintiff’s note, or from anybody, money in payment thereof, he may be held liable in trover for the money so received by him. Defendant held the note for collection and if money, or its equivalent, was paid to him for plaintiff, he was bound to pay it over to her. It must be held, however, .that the check he received was not conclusive evidence that he received any money. He had the right to show, and was prevented from showing, that no money came to him, and that no one intended that any should come to him— to show the real transaction. Alfred Shrimpton & Sons v. Culver, 109 Mich. 577 (67 N. W. 907).

Defendant testified on cross-examination that, having concluded the transaction referred to, he did not pay plaintiff the amount due on her note because he regarded plaintiff indebted to himself in a greater sum. This statement he later on amended; but, assuming that the jury had the right to take this statement as true, it does not change the legal aspect of the affair. Plaintiff was not bound to accept for her old note and defendant’s guaranty a new note and chattel mortgage security. Defendant had the right to pay her her note and himself own the new secured notes. And if plaintiff insisted upon the demand evidenced by her note, she could insist upon payment only in accordance with its terms, namely, $40 monthly.

It is said in the brief of counsel for appellee:

“In conclusion, we submit the real and only question in this case is whether the trial court should have permitted defendant to have shown that Newland was a mere figurehead in the case, and loaned himself, and his credit, to defendant to secure defendant’s claim against Miles, by Newland taking a note and chattel mortgage from Miles, and then assigning this note and mortgage to Wells, on the ground that this circuitous transaction was for the purpose only of securing the indebtedness from Miles to Wells. The real result of this transaction, if it had been successful, would have been to defeat the claims of all the other creditors of Miles, and the Miles Shoe Company, and enforced the payment to defendant of his claim in full.
“Defendant says the purpose of this transaction was only to secure his claim against Miles. Defendant could have taken the chattel mortgage direct from Miles to himself, and secured his claim. Then the real object in involving Newland in the transaction was to gain an undue advantage over the other creditors of Miles by having the deal pass through the bank, and through an apparently innocent third party, thereby leaving behind the footprints of a legitimate transaction, and have the transaction less liable to a successful attack by the injured creditors of Miles. The defendant having failed in this unworthy attempt, by these creditors asserting their rights before the expiration of four months, fixed by the bankruptcy law, will not permit defendant to dispute the payment of the Hogue note by Miles to the defendant with the money he (Miles) had received from Newland, and for which he had given Newland his note secured by a chattel mortgage. As held by the trial court, it is immaterial where Miles obtained his money to pay defendant. However, it does appear by defendant himself that he obtained it from Newland. Plaintiff’s action cannot be defeated by defendant showing that at the time the money was obtained from Newland, that it was understood that defendant was to pay back to Newland the money he (defendant) had received from Miles, and take an assignment of the Miles note and chattel mortgage from Newland. Defendant will not be permitted to play fast and loose with the courts in this manner, changing front as often as it appears to him to be to his advantage so to do. As this court has many times said, Mr. Wells ‘will be left to lie in the bed he has made for himself.’
“The offer of defendant’s counsel set forth on pages 46 and 47, of the record, shows that the defendant’s position was that he had a right to show that, at the time Miles obtained the money from Newland to pay Wells, it was agreed that Newland was to assign the note and mortgage back to defendant, and, if so shown, it would refute the question of payment to defendant of the Hogue note. The proposition itself shows he had no such right. The payment from Miles to defendant was bona fide, or it was not; and, if not, it was fraudulent. If it was fraudulent, defendant was a party to the fraud, and he will not now be permitted to use this fact to defeat plaintiff’s action. If the payment was bona fide the payment was conclusively established. In either event, defendant is bound by the payment, and the case should be affirmed.”

Upon this, the comment which I make is this: There was a certain transaction, as a result of which plaintiff is claiming that defendant is liable to her in trover for money. If the transaction had not occurred, she would have no foundation for her action. Defendant seeks to show all of it. She seeks to rely upon the transaction to the point where the facts, with certain alleged rules of law, benefit her. It was not a divisible transaction. To the demand that the whole transaction be shown, it is no answer to say that in its entirety it was probably intended as a fraud upon the creditors of Miles, or of the Miles Shoe Company. The court does not sit in this case to penalize the defendant for his fraudulent conduct, if it was fraudulent, nor to permit plaintiff to profit by such portion of it as appears to benefit her. The essential thing to be determined is whether defendant, in fact, ever collected any money for plaintiff which he refused to turn over to her. The history of the whole of the transaction in the course of which it is claimed that such a collection of money was made should have been admitted in evidence.'

It seems to me to be unfortunate that the real, the meritorious, question in the case should not be considered in the majority opinion; that the case skould be made to turn upon a ruling that an offer of counsel to produce testimony was too broad. I have pointed out that the defendant, by repeated rulings of the trial court, was denied the right to prove that he received no money on the checks, no money from any source, for the plaintiff. To those rulings exceptions were taken, and error is assigned upon them. These rulings, these exceptions, the majority of the court decline to even consider.

The judgment should be reversed and a new trial granted.

Stone, Bird, and Moore, JJ., concurred with Ostrander, J.


text:
    COMMERCIAL STATE SAVINGS BANK v. STEVENS.
    1. Mortgages — -Discharge—Construction.
    In the case of -a mortgage for $1,500, which contained the proviso that when the indebtedness of the mortgagors should be reduced to $3,500 the mortgage should be deemed satisfied, the lien was not affected before such reduction, as security for the $1,500 for which it purported to be a lien.
    2. Same — Payment.
    Where defendants had never made any claim that the mortgage had been satisfied and should be discharged, and the evidence showed only that the total indebtedness had been reduced to about $3,500 and the mortgage had been recognized as in force by a written agreement between the parties, the circuit court was justified in holding that it was not satisfied.
    3. Same — Admissions.
    And an admission of counsel for the complainant in his opening statement that the amount of loans and discounts upon which the defendants were liable had fallen in 1908 below $3,500, not including overdrafts, could not be treated as ’ an admission that the entire indebtedness had been reduced below the amount stated.
    Appeal from Montcalm; Davis, J.
    Submitted June 16, 1913.
    (Docket No. 92.)
    Decided March 28, 1914.
    Bill by the Commercial State Savings Bank of Greenville against Egbert G. Stevens and others to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      N. O. Griswold, for complainant.

      B. A. Hawley, for defendants.
   McAlvay, C. J.

Complainant filed its bill of complaint in the circuit court for the county of Montcalm, in chancery, against defendants, to foreclose a certaih mortgage for the sum of $1,500, dated March 10,1905, executed by defendants Egbert G. and Mary E. Stevens, upon certain property in the city of Greenville belonging to them and occupied as a homestead. This was the usual long-form mortgage, and contained the following express condition:

“Provided always, and these presents are upon the express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part any and all sums of money that may at any time be due to the party of the second part, its successors and assigns, from either the party of the first part, or the firm of G. W. Stevens and Son, whether such obligation now exists or is hereafter created, whether the same consists of notes, endorsements, guaranties or overdraft, according to the terms and tenor of such obligations, as therein expressed, with interest as therein provided. But when the obligation of said E. G. Stevens and George Stevens & Son is reduced to thirty five hundred dollars and does not exceed that amount, this mortgage shall be deemed satisfied and shall be discharged.”

The bill of complaint avers that the firm of G. W. Stevens & Son, at the time such mortgage was executed, were indebted to complainant in the sum of $5,000, upon notes, indorsements, guaranties, and overdrafts, and that this indebtedness was increased from time to time, and finally, on May 24, 1912, when said firm became insolvent and were adjudged bankrupts, amounted to $7,000; that many of their obligations and interest thereon, together with taxes on land mortgaged, are past due and unpaid. The bill prays for a determination of the amount due and for a sale of the premises. Defendant James Gracey is their trustee in bankruptcy. Defendants Egbert G. and Mary E. Stevens answered this bill of complaint, admitting the execution and delivery of the mortgage as alleged, but averring that after the execution of said mortgage during the year 1908, the indebtedness

of Egbert G. and G. W. Stevens & Son to the complainant was reduced to less than $3,500, and thereby the mortgage by its own terms was fully satisfied and discharged; that if such indebtedness had never been so reduced, the mortgage could not be enforced as security for any sum of such indebtedness, except for the excess over $3,500. These defendants prayed in their answer, which was in the nature of a cross-bill, that the mortgage be declared fully paid and discharged, and that in case of a decree favorable to defendants, the mortgage be declared to be security only for amounts, if any, of indebtedness in excess of $3,500. A hearing was had before the court on the issue joined between complainant and defendants Egbert G. and Mary E. Stevens, which resulted in a decree in favor of complainant and against defendants, for the sum of $1,500 and interest from the date of such decree at the rate of 6 per cent, per annum. From this decree these defendants have appealed to this court.

The record shows that the firm of G. W. Stevens & Son, was composed of George W. Stevens and defendant Egbert G. Stevens, engaged in the hardware business at Greenville, Mich., and were the parties whose indebtedness was secured by the mortgage in question, and at the time it was given they were indebted to complainant upon notes, to the amount of several thousand dollars, which was represented by their several promissory notes, and by their indorsements and guaranties upon notes of their customers taken by them upon sales of hardware and discounted for them at complainant bank. At about the time of giving this mortgage defendant Egbert G. Stevens, as further security, assigned to complainant a life insurance policy, then estimated to have a surrender value of $500. It appears that G. W. Stevens & Son, after these securities were given, continued to do business with the bank in the same manner as before, and from that time up to April 20, 1908, their indebtedness to complainant, although fluctuating in amount from time to time, gradually increased until it amounted to the sum of $4,500, and at about this time a representative of the bank interviewed both members of the firm relative to further securities, and as a result, on April 20,1908, George W. Stevens, the senior member of the firm, to further secure the firm indebtedness, executed and delivered to complainant a mortgage of $2,000 on his individual real estate, and also assigned to complainant a certificate of telephone stock of $500. On the same date, and as part of the same transaction, complainant and the firm of G. W. Stevens & Son made and entered into the following written agreement relative to this indebtedness to complainant, which on the part of the said firm was signed by Egbert G. Stevens:

“Articles of agreement made and entered into by and between the Commercial State Savings Bank, a banking corporation organized and existing under the laws of this State and having its place of business at the city of Greenville, county of Montcalm, and State of Michigan, party of the first part, and George W. Stevens and Egbert G. Stevens, copartners doing business under the firm name and style of G. W. Stevens & Son, of 'said city of Greenville, Michigan, parties of the second part, witnesseth as follows:
“Whereas said parties of the second part are indebted unto said party of the first part in the sum of two thousand (2,000.00) dollars or thereabouts upon their several promissory notes and the payment of which is already secured by mortgage and which is hereinafter referred to as the original individual indebtedness of said second parties and are also indebted to said first party as indorsers or guarantor of payment or collection in the sum of two thousand and five hundred ($2,500.00) dollars upon certain promissory notes or contracts of purchase taken by said second parties of third persons and sold and transferred by said second parties to said first party and which still remain unpaid and which are hereinafter referred to as commercial or collateral indebtedness and whereas said second parties have this day secured to the satisfaction of said first party the eventual payment and satisfaction of said commercial or collateral indebtedness, now therefore in consideration thereof said first party hath agreed and doth hereby agree to and with said second party as follows
“First: That said first party shall from time to time as the same or any part thereof shall fall due extend or renew the said original or individual indebtedness of said second parties or such part thereof as they may desire for such term or terms as they may desire and not exceeding the period of three months.
“Second: That said first party shall from time to time as the same or any part thereof shall fall due extend or renew the several notes or obligations constituting the said commercial or collateral indebtedness for such term or terms as said second parties may desire and not exceeding the period of three months.
“Third: That said first party shall from time to time as said second parties may desire make loans necessary in the conduct of their business but not exceeding the sum of three hundred dollars in the aggregate and not for term to exceed ninety days at any one time.
“It is hereby understood and agreed by and between parties hereunto aforesaid that the said first party shall give said second party three months’ notice whenever they see fit to have any or all of said second parties’ obligation paid.
“Witness our hands the 20th day of April, A. D. 1908.
“Commercial State Savings Bank,
“By Charles M. Miller, Second Vice President. “Geo. W. Stevens & Son,
“By E. G. Stevens.”

Defendants and appellants contend that by the condition of the mortgage, already quoted, complainant acquired security only for so much of Egbert G. Stevens’ and G. W. Stevens & Son’s indebtedness to it in excess of the amount of $3,500 to the extent of $1,500 above such sum. A careful reading of this condition does not indicate to us that complainant was accepting security for anything less than the amount of $1,500 expressed in the mortgage. It is an express agreement on the part of the mortgagors to pay to complainant any and all sums of indebtedness, of the character described, that might be due to it at any time from defendant Stevens or his firm during the life of the mortgage. The last sentence of the condition which defendants rely upon to sustain their construction reads:

“But when the obligation of said E. G. Stevens and Geo. Stevens & Son is reduced to thirty-five hundred dollars and does not exceed that amount, this mortgage shall be deemed satisfied and shall be discharged.”

It is clear that the intention of the parties as here expressed was that when these obligations were reduced to the amount named, the mortgage would be fully satisfied and should be discharged, but we do not find the expression of any intent that the operation of this mortgage as a security for the $1,500 was in any respect to be affected until that time.

The principal contention of defendants is that the record shows twice during the year 1908 the indebtedness of E. G. Stevens and George Stevens & Son to complainant, being the indebtedness mentioned and described in this mortgage, the payment of which was secured by it, was reduced to the sum of $3,500. The determination of the correctness of this contention requires a careful examination of all of the evidence in the record bearing upon this proposition. Upon the hearing of this cause neither these defendants nor George W. Stevens, the senior member of the firm, were sworn as witnesses. The only testimony introduced by them in the case was that of the son of defendants Stevens, who testified that the property covered by the mortgage in suit was the homestead of said defendants. Defendants, therefore, rely entirely upon the testimony on the part of complainant to support their contention above stated. The only witness in the case who gave any testimony relative to the contention that in 1908 this indebtedness was reduced below $3,500 was Mr. Miller, the vice president of complainant bank. He testified that the bank did not keep a liability register; that from the discount register he had found that in December, 1908, upon notes and discounts their liability was just a few dollars under $3,500, but that this computation was upon the face of the notes, and did not include interest on notes that had not matured, and did not take into account any overdraft; that he could not tell the exact overdraft at that time; that the books would not show it for the reason that part of it was very frequently kept as a cash item, and there usually was an overdraft. This is all the direct testimony in the case upon the subject.

Reliance appears to be placed by defendants upon the opening statement- of counsel for complainant to the court as admissions that the amount of loans and discounts upon which defendants were liable during these transactions had,- in 1908, fallen below the sum of $3,500. This statement was not unequivocal, but in terms was given “so far as can be gathered today from the discount register,” and with the positive statement that it did not include overdrafts. It was not intended, and cannot be construed, as contended by defendants, as an admission that the amount of this indebtedness was reduced to $3,500. As bearing upon this question we find from the record that these personal notes of different dates and amounts were renewed from time to time, and consequently did not all become due at one time; also that during these transactions the notes and contracts turned over to complainant by these parties with their indorsements were small notes and numerous; that they arose from sales of hardware to customers in the course of trade; that from time to time,they were paid; that sometimes they were renewed, and during all the time new notes were continually being indorsed and put into the bank and credited to G. W. Stevens & Son. It appears, also, that all of these were interest-bearing obligations. The record further shows that at no time before the commencement of suit was any claim made by these defendants that this mortgage was satisfied, and should be discharged.

The contract made between complainant and G. W. Stevens & Son April 20, 1908, which already appears in this record, and under which the parties acted from that date until the failure of the firm, is an admission in writing that this indebtedness at the time amounted to $4,500, and in terms recognizes the mortgage in question as in full force and effect. It appears in evidence that Mrs. Stevens, who was employed in the store of G. W. Stevens & Son much of the time during these transactions with complainant, and frequently did its banking, knew of and recognized that this mortgage was in force in October, 1911; that during that month she personally brought and delivered to complainant an insurance policy dated October 11, 1908, placed by defendant Egbert G. Stevens on these premises pursuant to the terms of the mortgage. Our conclusion from all of the evidence in the case is that it appears that the amount of the indebtedness secured by this mortgage was not at any time reduced to the sum of $3,500.

It appears from the record that beside the mortgage in suit of $1,500 and the life insurance policy of $500, complainant in 1908 required further security, and received a mortgage from G. W. Stevens of $2,000, and his telephone stock of $500, making all these securities $4,500. After the bill was filed, and up to December 20, 1912, there had been collected by complainant upon these securities, and upon some of the collateral notes, $1,452.72. Upon that date, which was but three days before the hearing, the entire amount of the balance due complainant upon personal and collateral indebtedness was the sum of $4,122.41. The trial court held that the mortgage in suit remained in force as a security for the full amount of $1,500, and granted complainant a decree for that amount, with interest at 6 per cent, per annum after the decree, together with costs to be taxed. A decree in the usual form, providing for a sale of said premises in case of default in payment of that amount, was duly entered. We agree with the learned trial judge in his construction of the condition of the mortgage, and also upon his findings upon the evidence.

It will not be necessary to discuss other questions presented.

The decree of the circuit court is affirmed, with costs.

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


text:
    HILGBRANDT v. OVAL WOOD DISH CO.
    1. Master and Servant — Fellow-Servants—Negligence.
    An employee of a wood products factory, who was a member of the crew which unloaded logs from cars in the yard and who knew the method employed in doing the work, assumed the risk of any negligence of his co-employees in the crew in failing to chain or bind up a car load of logs from which a portion had been removed, and he could not recover for injuries caused by logs being jarred off the car while it was being switched about.
    2. Same — Risks Assumed — Personal Injuries.
    Where plaintiff and other members of the crew were all so situated that they knew how the work was done, and all the operations were apparent and the dangers obvious, plaintiff assumed the risk of the action of his foreman in taking plaintiff from his work of unloading and placing him in charge of the team which moved cars about, part of his duties being to stop the moving cars of logs by means of a block, which, when used, jarred off logs upon him.

    3. Same — Warning and Instructing Employee.
    The direction of the foreman, changing plaintiff’s work from unloading to driver of a team which transferred the cars from one skidway to another, without warning or advising plaintiff of the hazards of his work, did not effect such a change in employment as that it could be held to have taken plaintiff out of the scope of his employment, where other members of the crew had also been put in charge of the team.
    4. Same — Fellow-Servant Rule — Superior Servant.
    And the foreman was a fellow-servant of the plaintiff, although he had authority to hire and discharge men.
    Error to Grand Traverse; Mayne, J.
    Submitted June 5, 1913.
    (Docket No. 34.)
    Decided March 28, 1914.
    Case by Adelbert Hilgbrandt against the Oval Wood Dish Company for personal injuries. Judgment for plaintiff, and defendant brings error.
    Reversed, new trial denied.

      Parm C. Gilbert and Thomas Smurthwaite, for appellant.

      Coveil & Cross, for appellee.

       As to servant’s assumption of risk in obeying orders to perform obviously dangerous work, see note in 4 L. R. A. (N. S.) 830. And for servant’s assumption of obvious risks of hazardous employment, see note in 1 h. R. A. (N. S.) 272.

   McAlvay, C. J.

This suit was brought to recover damages for an injury plaintiff claimed to have been caused by the negligence of defendant, and a trial of the issue resulted in a verdict against defendant, upon Which a judgment was duly entered. The case is before this court for review, defendant and appellant seeking a reversal on account of alleged errors committed upon the trial.

Defendant operated at Traverse City, Mich., a mill and factory in the production of wood dishes and other hard-wood products, principally from beech and maple sawlogs, which are brought to the factory on railroad cars and are delivered on a railroad siding which runs into defendant’s logyard. These cars are placed by defendant’s employees where required for sorting and unloading at the proper skidways; the cars being moved from place to place by a team kept for that purpose. The beech logs are placed upon the beech skid-way and the maple logs upon the maple skidway, more commonly called the iron skidway. These skidways are about two car lengths from each other. The logs put upon the iron skidway are rolled into a pond of warm water, called “the soup hole,” and from this place are taken up the slide into the factory for manufacture.

Plaintiff, at the time of his injury, was employed by defendant and was a member of the crew which had charge of unloading these cars and sorting these logs, moving the cars where desired, from place to place, for that purpose. The cars, after being unloaded, were moved some distance from the factory and left to be taken in charge by the railroad employees. All the movement of the cars after delivery by the railroad is done by a team of horses and one of this crew of men as a driver by hooking a chain to the car and pulling it along the track to the place where needed, the driver carrying a stick or block to drop in front of the wheels of the car to stop it as desired. This crew doing this work in the logyard usually numbered about six men.

The foreman of this crew, of which plaintiff was one, was Mr. Watson, who had worked for the defendant for some time and had a right to hire and discharge men, subject to the approval of the superintendent. This foreman scaled the logs, and the balance of the time worked with the crew, helping in different parts of the yard at whatever they were doing. The loaded cars were brought into defendant’s yard on a side track by the railroad company, usually once a day, and about 15 loaded cars at a time. It was the duty of this crew each day to unload these cars. When they were delivered the cars were loaded, and the logs secured on the cars with chains just as they had been loaded and chained in the woods. These were flat cars upon which the logs were loaded, having stakes along each side 16 or 18 inches high. The cars were long enough to receive two lengths of logs, which were rolled on, covering the entire car. Over these logs binder chains were placed, fastened on each side, and upon them as many other logs were rolled as would finish the load, which top logs held the chains and bound the load fast. When the cars were unloaded they were moved to the skidways as stated, according to convenience, as the loads happened to be made up. If beech logs were on top the car would be moved first to the beech rollway, and all such logs unloaded as could be handily taken off, and then the car would be moved and maple logs unloaded at the iron skid-way. In doing this unloading the logs were necessarily shifted around. When the top logs were unloaded the chains were untoggled to get at the bottom tier, which would be unloaded in such manner at such skidway as would be proper for that class of logs. As the cars were moved from place to place, after the binding chains had been unloosed, the remaining logs on a car would be rebound or not as in the judgment of those who were unloading seemed necessary. All of the members of this crew worked together, taking part in the different portions of the work necessary to be done to accomplish the unloading of these cars, each day. Plaintiff had worked as a member of this crew at this work in the logyard for about a month or six weeks before his injury. He had never before driven the team in moving cars. On the day in question he had been told by the foreman to drive the team. In doing this work he carried in his hand a stick, or block, which he selected for that purpose, which he used to block the wheels of the car to stop it at the proper place, when notified by the other men. This continued during the day until some time in the afternoon, when, in moving a car, which had been partly unloaded, from one of the beech skidways to the iron skidway, standing with his back toward the car, not looking at it or the logs on it, he used his block to stop the car at the proper place, jarring two of the logs off the car, which struck plaintiff on his legs, throwing him down on his face upon the ground, and caused the injury for which he seeks to recover.

The sole negligence charged by plaintiff and relied upon in the declaration is that he was put at work by the foreman outside the scope of his employment, with the dangers incident to which he was unacquainted, and without notice or warning of such dangers. The dangers referred to are that the cars were moved from one skidway to another after the binding chains had been removed, and some logs unloaded without refastening such chains to prevent logs from rolling off from the cars, and by reason of which negligence he suffered his injuries.

Appellant, in presenting its reasons why the judgment against it should be reversed, has grouped the errors duly assigned and relied upon, among others, as follows: The danger was obvious, and plaintiff assumed the risk. The negligence, if any appears in the record, was the negligence of fellow-servants. As has been said in the statement of facts, and as appears from the testimony of plaintiff, he was a member of this crew of men which unloaded the cars and decked the logs in defendant’s yard for about a month before this accident. The skidways were alongside of the car track, and men on the cars rolled the logs off onto the skidways, where plaintiff and others decked them up (which means arranged them in tiers on the skid-ways). During all this time plaintiff, as one of this crew, assisted in and saw how the work was done. From his testimony he was not engaged in rolling logs from the cars, but in handling them on the skidways after they left the cars; for all the time he was engaged in such work he was situated where he could observe and know how the crew handled the logs in unloading a car and in doing all of the work in relation thereto.

In deciding a motion which was made at the close of plaintiff’s case to direct a verdict for defendant, for the reasons that the dangers incident to the work were obvious and could be seen and appreciated by plaintiff, that the negligence, if any, was that of fellow-servants, which included the foreman, and on the ground of contributory negligence, the court, in denying the motion, among other things, found the following facts:

“In the business of defendant as conducted, it is shown conclusively, for the purpose of this motion, that the defendant had furnished a safe place and suitable appliances. That they were sufficient, if used, to insure the safety of the employees, barring unaccountable accident. The logs had been brought from a distance upon those same cars, and had been bound and held in place with the same chains and stakes. This applies until they arrived at the beech skidway. At this point the beech logs or a portion of them as was convenient were removed. For years — I assume from the evidence, those logs that remained on the cars had been moved a few feet to the iron skidway where the maple logs were unloaded from the cars. There is no question as to the competency of the men who unloaded those cars, and, as I said, there is no question as to
the sufficiency of the appliances, nor as to the safe place, and there is no question but that the business had been conducted in such a way that no injury had befallen any workman, and no accident had occurred during all the years that the business had been run there. This was the condition on March 18th when the plaintiff was employed to drive the team which hauled the cars from the beech siding — skidway, to the iron skidway.”

It is apparent that it is unnecessary to digest the testimony at length as to the character of this work and how it was performed. There is no question of safe place involved, nor of proper instrumentalities. There is no dispute in the testimony but that plaintiff and the other members of the crew were all so situated in performing this work as to know how it was done, and all of the operations could be seen and appreciated by the plaintiff. He must be held to have assumed the risk.

The record clearly shows that the foreman and the other members of the crew were engaged in a common occupation in unloading logs from the cars and placing them on different skidways in defendant’s logyard. The several members of the crew helped with different parts of the work, and were changed from one place of the work to another as occasion required. Under the facts proven we think the relation of the foreman to the employer and men was like that of a section foreman, and that he was a fellow-servant with plaintiff within the decisions of this court.

The court was requested to charge that the foreman and other, men were fellow-servants, and if there was any negligence on the part of either or any of them, it was the fault or negligence of a fellow-servant. It requires no citation of authorities to sustain the proposition that all of the members of this crew, except the foreman, were fellow-servants, and the authorities sustain the proposition that the foreman under such circumstances was a fellow-servant. McClure v. Railroad Co., 146 Mich. 457 (109 N. W. 847) ; Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737), and cases cited.

The fact that on the day in question he was sent from the work on the skidway by the side of the car to drive team in moving the car cannot be said to have been beyond the scope of his employment. His testimony recognizes that he was one of the men engaged at this work, and moving the car was but a part of the work; the record showing also that this had been done by several of the men.

In deciding the motion referred to, and also in charging the jury, the court held that a custom had been established by this crew of men, in moving cars from one rollway to another, to do so without rebinding the load with the chains, and that plaintiff’s claim was that he was ignorant of that custom, and therefore the court refused to take the case from the jury. We do not find in the declaration any such claim of negligence. The only ground of negligence, as already stated, was that plaintiff was not warned, in being put outside the scope of his employment, of the dangers attending the new work. If the declaration may be construed to include this ignorance of a custom, it is obvious from what we have said that the negligence was the negligence of one of plaintiff’s fellow-servants. The learned trial judge was in error in not granting the motion referred to, and in also not charging the jury as requested.

For the reasons given, the judgment is reversed, and, as no different case can be presented under the admitted facts in this record, no new trial will be granted.

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