text:
    GATES v. McLAULIN.
    1. Specific Performance — Attorney and Ghent — Contract foe Recovery of Land — Identification.
    In a suit for specific performance of a contract between a firm of attorneys consisting of one of plaintiffs and tbe decedent of tbe other and defendant whereby the firm was employed by defendant as her attorneys to prosecute a contemplated suit to recover certain lands and the firm was to have as compensation a one-third interest in recovered lands, a decree for specific performance was not legally objectionable because the specific lands to which such interest should attach were not described in the contract or because the lands were to be divided when recovered, as after recovery the contract would relate to the recovered lands specifically, and it would be as though the specific items recovered had been originally written in the contract.
    2. Same — Equity—Adequate Remedy at Law — Contract fob Recovery of Land.
    In such suit plaintiffs had no adequate remedy at law, where what the recovered lands were worth was in dispute and it was not agreed by the parties that the valuation was to be fixed by triers.
    3. Attorney and Chent — Contracts—Contingent Pees.
    Contracts between attorney and client will be scrutinized with care by the courts.
    4. Same.
    Before entering upon the business of a client, an attorney may stipulate the measure of his compensation, and, if the client assents, the contract is valid and free from objection.

    Appeal from Wayne; Hosmer, J.
    Submitted October 4, 1917.
    (Docket No. 21.)
    Decided December 27, 1917.
    Rehearing denied April 25, 1918.
    Bill by Lulu F. Gates, individually and as executrix of the last will of Jasper C. Gates, deceased, and William H. Wetherbee against Serena McLaulin for the specific performance of a contract. From' a decree for plaintiffs, defendant appeals.
    Affirmed.

      Harold H. Emmons, for plaintiffs.

      Daniel M. McLaughlin (Thomas A. Bogle and Robert E. Bunker, of counsel), for defendant.

      Leo M. Butzel (William S. McDowell, of counsel), for defendant on motion for rehearing.

      On right of attorney who takes case on contingent fee or for certain percentage to implied or equitable lien on fund recovered, see note in 27 L. R. A. (N. S.) 634.

   Ostrander, J.

Plaintiffs, Lulu F. Gates, individually and as executrix of the last will of Jasper C. Gates, deceased, and William H. Wetherbee, complain that the defendant refuses to perform a contract made by her with Jasper C. Gates and Wetherbee, performed on their part, and they seek specific performance of the contract, which it is asserted may involve also, as matter of complete relief, partition of certain real estate, or its sale and a division of the proceeds thereof. The defendant answered, and .claimed affirmative relief, praying the court to set aside the said alleged contract and cancel it as invalid, to require the payment by plaintiff Wetherbee to. defendant of a sum of money in his hands, and to determine and state a reasonable sum to which the plaintiffs are entitled. The cross-bill was answered.

It appears that, when the cause was brought on for hearing, the solicitor for plaintiffs stated to the court the substance of the matters contained in the pleadings, produced the contract relied upon, and said:

“The case being admitted by the pleadings, having stated that to your honor, we will rest upon the admission.”

Thereupon the solicitors for defendant moved to dismiss the bill because:

“It appeared from the bill itself that plaintiffs were not entitled to the relief prayed for, namely, that the defendant should be decreed to convey to the plaintiffs an undivided third interest in and to the lands”

. — describing them, for the reasons:

“(1) Because there is no equity in the bill.
“(2) Because it does not appear from the bill that the plaintiffs and defendant ever made any contract with reference to the lands on Michigan avenue and the land on Greenwood avenue hereinbefore particularly described, or either of said parcels of land; on the contrary, it appears from the bill that the lands last above described were not the subject of the contract between the parties.
“(3) Because it appears from the bill that the parties to the contract did not contract with reference to any particular lands.
“ (4) Because it appears from the bill that the parties to the contract made no contract, the one to convey, the other to acquire, the specific lands described in the bill.
“ (5) Because it appears from the bill that the plaintiffs and defendants at no time made a contract whereby the plaintiffs were to have a third of $26,000, or any other sum in money; but, on- the contrary, it appears from the bill that the defendant and plaintiffs had not at any time made such a contract.
“ (6) Because it appears from the bill that the plaintiffs have a full, complete, and adequate remedy at law.
“ (7) Because it appears from the bill that there was a lack of mutuality of obligation and of remedy in the contract set up in the bill.
“(8) Because it appears from the bill that the contract (Exhibit 1) was of such a kind, character, and nature that the court was bound in the exercise of a sound judicial discretion to deny specific performance of the same.
“(9) Because it appears from the bill that the contract (Exhibit 1) is one-sided, unfair and unconscionable.
“(10) Because it appears from the bill that the specific performance is the main relief prayed for, all other relief prayed for being incidental thereto.”

The motion was overruled. The solicitor for plaintiffs then stated that plaintiffs rested upon the admissions in defendant’s pleadings, the contract and the deeds therein referred to, and the files in the case of Serena McLaulin v. James H. McDonald, “out of which this case arose,” which files and records and the deeds were considered as read in evidence. Defendant rested. There was a decree for plaintiffs.

It is said by plaintiffs, appellees, that the agreement relied upon and its complete performance by Gates & Wetherbee are admitted in the answer and cross-bill of defendant or proved by uncontradicted evidence, the affirmative defense that the contract was procured by plaintiffs under circumstances affecting its validity in their hands is not proven, nor was there an offer to prove it, and that the defense made in argument is technical and unfounded.

Defendant, appellant, says: (1) There is no equity in the bill; (2) the decree is not supported by proofs; (3) the contract is not enforceable. Clearly, there are some admitted facts. The defendant, for herself, and Jasper C. Gates and William H. Wetherbee, for themselves, executed a writing, dated July 10, 1912, which evidences an agreement between them. It is recited therein that in the year 1899 the defendant, personally, and the defendant and her husband, by certain deeds transferred to one James H. McDonald, of Detroit, real estate situated in Detroit and in the village of Hamtramck, Wayne county, Mich., and reference is made to the deeds and to the record of them. It is recited that it is believed that the said McDonald is, as to the property described in said deeds, the trustee of the party of the first part,-and bound to account to her for said property and its proceeds. There are other recitals. The terms of the agreement are:

“(1) Said party of the first part does hereby retain said parties of the second part as her attorneys, solicitors, and counselors for the purpose of commencing and prosecuting such suits in equity, actions at law, and other proceedings as may be necessary or desirable for the purposes aforesaid, and within 30 days of the date of this agreement, will pay to said parties of the second part the sum of two hundred dollars ($200) as a retainer.
“(2) Said party of the first part will pay all of the actual necessary expenses of conducting such suits and proceedings, the said party of the second part receiving no other or further compensation in any manner or form than that provided for expressly by this agreement, and also undertaking that they will to the extent of their ability avoid all actual unnecessary expense to said party of the first part.
“(3) In consideration of the premises, said parties of the second part agree that they will perform all the necessary legal services prosecuting to a final termination through the court of last resort of this State, if necessary, and through whatever other courts such proceedings, or any part of the same, may be removed.
“(4) It is mutually agreed between the parties hereto that said suit shall,not be in any manner settled or compromised without the consent of both parties to this agreement.
“ (5) Upon the compromise or other termination of said suits and proceedings, the amounts paid out in accordance with this agreement by said party of the first part shall first be deducted, and the balance, that shall be recovered or realized in any manner or form, whether consisting of money, lands, or other assets, shall be divided between the parties hereto as follows: Said parties of the second part shall receive one-third in full satisfaction of all their claims growing out of the premises, and the balance shall be the property of the party of the first part.”

It is admitted that pursuant to this agreement, and in the name of Serena McLaulin, as plaintiff, a bill of complaint was filed in the Wayne circuit court, in chancery, against said McDonald and others, as defendants, signed by William H. Wetherbee, Jasper C. Gates, and Daniel M. McLaughlin (son of defendant), respectively, as solicitors for complainant. This bill was answered by the said McDonald and by another of the defendants. The bill was filed in August, 1912, and the answer of said McDonald was filed December 4, 1912. There was a death of one defendant and a revivor against his heirs at law. Various proceedings were taken, as the files and records disclose. Thereafter, in January, 1916, an agreement of parties was reached and was reduced to writing, entitled in said cause, reciting:

“Whereas, an agreement has been reached between the parties to said above-entitled cause for settlement of the same, and for that purpose the said second parties have signed and executed for delivery to first party a certain release to the said James H. McDonald, bearing date the 8th day of January, A. D. 1916:
“Now, therefore, in consideration of the delivery of said release, said first party does hereby agree that he will forthwith pay, or cause to be paid, to the solicitors in said cause, for said Serena McLaulin, the sum of twenty-six thousand dollars ($26,000) in cash, and also that he will forthwith make, execute, and deliver to said solicitors for Serena McLaulin good and sufficient conveyance of the following described pieces or parcels of land situated and being in the city of Detroit, county of Wayne, and State of Michigan, said title to be free and clear from all liens and incumbrances and defects whatsoever, occurring or accruing because of or through the acts or neglect of first party, or any person or persons claiming or holding by, through, or under him, since the 9th day of September, A. D. 1899, to wit:
“(A) Lot three (3) and all of lot two (2) in block forty-five and one-half (45%) of the Cass Farm, except that part of lot two (2) described in a deed from John D. McLaulin and Serena McLaulin to Catherine McLaughlin, recorded in the Wayne county register’s' office in Liber 287 of Deeds, at page 397. Subject to three leases, to wit: A lease to Meyer Barnett, expiring April 30, 1917, on premises numbered 201 and part of No. 203 Michigan avenue; a lease to Morris Grossman, expiring April 30, 1916, on the premises numbered 203 Michigan avenue; and a lease to Leo Chodorowoski and Cseser Chodorowoski, expiring April 30, 1916, on the premises numbered 205 Michigan avenue — said leases to be assigned to Serena Mc-Laulin forthwith, and all rents, etc., to belong tó her from and after January 1, 1916.
“(B) The north sixty feet (60 ft.) of lots two (2) and three (3) in block four (4), Moross and Moran’s subdivision, said lots being situated at the northwest corner of Milwaukee and Greenwood avenues in the said city, and said lot three being otherwise described as lot three (3) in block four (4) of Weber’s subdivision, including all rights and benefits and subject to the obligation, all as contained in the agreement recorded in Liber 785 of Deeds, page 144, Wayne county register of deeds’ office.
“And will at the same time procure and deliver to the solicitors of said Serena McLaulin good and sufficient abstracts of title, satisfactory to said solicitors, showing title as above.
“First party also agrees that the judgments entered in the three cases of McDonald v. Warren, et al, in the circuit court for the county of Wayne be dismissed as satisfied, and the bonds, given in said cause, be canceled, and that he will execute and deliver to second parties such stipulations as may be necessary for the disposition of said cases; and it is also understood and agreed that the special administrator of the estate of John D. McLaulin, deceased, appointed by the probate court for the county of Wayne, in March, 1913, will file in sa'id probate court his resignation as such administrator, and will present no claim for fees or expenses as such administrator, and said special administrator shall not be called upon to account for any funds he has collected.
“It is further understood and agreed that said first party will deliver the filled gold watch and chain, formerly carried by the late John D. McLaulin, to said Serena McLaulin. It is also agreed between said parties that upon the payment of said sum of twenty-six thousand dollars ($26,000) as above specified, and the conveyance of said described property, and the performance of the acts herein specified to be performed by said first party, the said suit so pending in the circuit court for the county of Wayne, in chancery, shall be discontinued by the dismissal of the bill of complaint therein, without cost to either party. Said first party to procure the assent to said dismissal of such defendants in said suit as are not parties to this agreement.”

This was signed by all parties, and, following the signatures, is’the following:

“We, the undersigned, Serena McLaulin, Mary E. Robson, David McLaughlin, Grace D. McLaulin, Andrew McLaulin, Philip McLaulin, Daniel McLaughlin, Alexander McLaughlin, Martin McLaulin, and Lucy McLaulin, being the widow and all the surviving children of John D. McLaulin, which name McLaulin is by some of us commonly spelled ‘McLaughlin/ for a valuable consideration, payment and receipt whereof is hereby acknowledged, do hereby release, discharge, and acknowledge full and complete satisfaction of any and all claims, demands, and causes of suit or action that we, or any of us, have or might have and maintain against James H. McDonald, Elizabeth McDonald, Mary M. McDonald, and Margaret A. McDonald, childreñ of said James H. McDonald, the estate of said John D. McLaulin, deceased, or any or either of them, including all claims, demands, and causes of action or suit, which are the subject-matter of a suit in equity, now pending in the circuit court for the county of Wayne, in chancery, State of Michigan, wherein said Serena McLaulin is complainant and said James H. McDonald and others are defendants, being chancery cause No. 41-746, and including also all claims and demands, causes of action or suit, that the undersigned, or any of them, have or might have or maintain for or on account of any of the parcels of the real estate described in the bill of complaint in said case.
“And the undersigned do further for like consideration sell, assign, and set over and forever quitclaim to the said James H. McDonald all right, title, and interest of them and of each of them of, in, and to each and all of the said parcels of real estate described in said bill of complaint, except the following descriptions of real estate situate in the city of Detroit, Wayne county, Michigan, to wit: (Describing certain parcels of real estate, and signed and acknowledged by Serena McLaulin and others, interested parties.)”

Deeds were executed and delivered as contemplated, and $26,000 by way of a check was paid; the check, running to Serena, being delivered to plaintiff Wetherbee, later indorsed by her, by her son as attorney in fact, and the money paid thereon and deposited in a special account. Serena McLaulin refused to divide the personalty and realty, the fruits of the said litigation and compromise, with her solicitors according to the terms of said agreement, and they filed the bill of complaint in this cause. They aver in the seventh paragraph of the bill: *

“(7) That the value of the property received in said settlement, as agreed by the parties, is as follows, to wit: The three stores on Michigan, the lots extending through to Porter street, $95,966; the 60 feet on Greenwood avenue, near Grand boulevard, $5,000, all of which real estate will be more particularly described hereafter, the sum of $26,000 in cash and the cancellation of a judgment in the circuit court for the county of Wayne, amounting to $450 — together with the allowance of certain claims against the estate of John D. McLaulin at Toronto, Ont., amounting to about $1,450, or a total of $128,866. That there were certain expenses which had been agreed upon by the parties to be deducted from this sum, amounting to $369, leaving a net sum realized from said compromise or settlement amounting to $128,496.96, of which plaintiffs are entitled to receive one-third according to the terms of said agreement.”

They aver (paragraph 8 of the bill):

“(8) That there was not enough personal property received in said settlement, to pay to the plaintiffs herein their one-third of the value thereof, and when the defendant herein desired to receive and record the deed to the real estate, it was proposed by her that she would secure a loan on said property, and with this, and the balance of the cash received from said McDonald after payment of costs as aforesaid she would pay to the plaintiffs their one-third share or interest in said settlement in cash, in lieu of the undivided interest in said land, and plaintiffs believed she would do this, and relied upon her said statements and assurances; but she did not do so, and she has -deferred and postponed, and still continues to defer and put off, the final settlement and division of the property belonging to the parties hereto by virtue of the terms and provisions of said agreement as aforesaid.”

These charges in the bill are answered by her as follows:

“(7) As to the seventh paragraph of said bill this defendant denies upon information and belief that the value of the three stores on Michigan avenue stated in said bill to be $95,966 is the true value thereof, and upon like information and belief avers that their true value does not exceed $73,820. She admits that the 60 feet on Greenwood avenue is worth $5,000 as stated in said seventh paragraph. She avers that the sum of $26,000 in cash mentioned in. said seventh paragraph was disposed of in the manner already stated in the preceding paragraph of this answer. She avers that the judgment referred to in said seventh paragraph was $435, and not' $450, as therein stated.* She denies that anything has been received on claims against the estate of John D. McLaulin stated in said seventh paragraph to be $1,450. This defendant avers that the expenses mentioned in said paragraph amounted to a sum greater than $369.04, but what they amounted to in the aggregate this defendant is not ■informed. She denies that.the net sum realized from said compromise amounted to $128,496.96, and avers that the amount realized therefrom amounts to no more than $105,000, or thereabouts. She denies that plaintiffs are entitled to receive one-third of said sum according to the terms of said agreement, and avers that she has been advised and on information and belief charges it as a fact that said agreement is invalid and unenforceable.
“(8) As to the eighth paragraph of said bill, this defendant denies all the allegations of the eighth paragraph of said plaintiff’s bill, save that she continues to defer and put off the final settlement, in respect to which allegation this defendant says that she has declined and refused, and still declines and refuses to make -a settlement with the plaintiffs in this cause on the basis of paying them one-third of the value of all the property turned over on said compromise for their, services in connection with their said employment as solicitors and counselors for this defendant. She admits that she has refused and still refuses to make a division of the property received on the compromise of said matters as hereinbefore stated, because, as hereinbefore stated by this defendant, she denies that the said plaintiffs are entitled to any division of said property, but avers that said agreement mentioned in said paragraph is invalid, unenforceable and unconscionable. Tlais defendant, further answering said paragraph, avers that she is, and at all times has been, ready to settle with the said' plaintiffs and pay them all that their services in her behalf are reasonably worth. She further avers that she has been deprived of the means of making such settlement by the unauthorized act of the said William H. Wetherbee in converting the cash paid on said settlement to his own use in the manner hereinbefore stated.”

In her cross-bill she sets up that originally she laid her matters in this connection before Mr. Wetherbee, and with him before Mr. Gates, establishing, in so doing, the relation as to each of them of client and attorney, and that they conducted an examination for her as her attorneys into the merits of her demand against McDonald; that there was no agreement concerning their compensation. • Thereafter they presented the contract for their compensation to her, which she protested she would not execute; but, upon certain representations they made to her, and having confidence in them, and in reliance upon what they told her, she finally executed it. She says the contract is unconscionable, and because of the relations then existing between herself and her said counsel was void. She charges that they did not represent her as able and skillful counsel would have done; that additional counsel called in by them, at her expense, performed valuable services in the matter; and that the results were much less than they ought to have been. To employ the language of the cross-bill, it is this:

“(12) This defendant says that the said William H. Wetherbee and Jasper C. Gates did not represent her in said matters as reasonably able and skillful and careful counsel should have done; that they suffered and permitted said cause to drag along for a period of more than 3% years; that no proceedings in court were had, other than a partial opening of the case; that no testimony was taken in said cause; that they permitted said cause to be postponed term after term, against the remonstrance of this defendant; that they were urged by this defendant term after term to cause said cause to be tried; and this defendant charges that their procrastination in bringing the matter to a hearing was unnecessary, was detrimental to the interest of this defendant, and caused her needless expenses and anxiety; that they urged upon this defendant a settlement of said matter for a sum as low as $5,000, and never, prior to December, 1915, for any sum in excess of $15,000; that said William H. Wetherbee and Jasper C. Gates did not represent this defendant as reasonably able, skillful, and careful counsel should have done, in this: Although they claimed that they should be entitled to one-third of the amount recovered, they sought to persuade and use their influence upon this defendant as her counsel to persuade her to make an additional sacrifice of 10 per cent, of the total 'amount recovered as previously stated in paragraph 9 of this cross-bill. This defendant says upon information and belief, and so charges the truth to be, that the said McDonald’s defense to her said bill was neither strong nor meritorious, and that the extent of the said McDonald’s liability on any fair accounting would have been in excess of $200,000 as hereinbefore stated; that because of such delay, and because of the urgent solicitation of the said Wetherbee and Jasper C. Gates, this defendant consented to the compromise made as hereinbefore stated.”

In a general way, omitting the statement of many details, I have set out the arrangement as it was in fact made, and the attitude and contentions, of the parties as presented by the pleadings and by other documentary evidence. Their contentions aside, I have set out no facts which are not admitted or proven. In Gibb v. Mintline, 175 Mich. 626, 630 (141 N. W. 538, 539), this court, approving the rule stated by Mr. Pomeroy, said that:

"To entitle one party to specific performance of a contract against the other party thereto: ‘The contract must be certain, unambiguous, mutual, and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, imposition, or surprise ; not an unconscionable or hard bargain; and its performance not oppressive upon the defendant; finally, it must be capable of specific execution through a decree of the court/ ”

This rule, or these rules, counsel for appellant asks to have applied here, and says:

"Not one of these requisites was established by the proofs heretofore referred to or by the admissions of defendant. All of them were in issue and even more.”

It was the claim of Serena, and the theory of her bill filed against McDonald, that the descriptions of land theretofore conveyed to him by herself and herself and husband were, and had always been, her property. The deeds describe specific parcels of land; the contract made with her counsel refers to the deeds.. It was in contemplation that the identical lands, or some of them, would be recovered freed from the alleged trust and from any claim McDonald might have upon them, and it was agreed that a one-third interest in any recovered lands should be the compensation of counsel. To which of them the interest of counsel should finally attach depended only upon which were recovered by decree or by compromise. When some of them were so recovered, then the contract of these parties related to. them specifically. There is therefore no legal objection to a decree for the specific performance of the contract based upon the alleged fact that no specific lands are described therein, or based upon the notion that if these lands are divided the court will be required to make a new contract for the parties, instead of the one they themselves made.

The contract could not be specifically enforced until there had been some recovery. It is of the essence of the contract that what should be finally recovered was to be divided. Therefore, by the agreement itself, it was in respect of the property to be divided to be made certain by what would alone make it enforceable at all, namely, by a recovery or a settlement. After recovery, it is as though the specific items recovered had been originally written in the contract — as though it was with special regard to them that the contract was made.

This disposes, to my satisfaction, of the defense principally relied upon in argument. It may be added that plaintiffs have, no adequate remedy at law. What the recovered lands are worth is matter of dispute. It was not agreed by the parties that the valuation .was to be fixed by triers. Quite the contrary.

Beyond doubt, the court will scrutinize with care contracts made between attorneys and a client. Here it fairly appears, upon the face of the record, that what the attorneys for defendant first did was. to ascertain whether upon her statement and facts at hand they would enter at all upon the necessary litigation. They finally offered to do so upon terms. The agreement itself retains counsel “for the purpose of commencing and prosecuting such suits * * * as may be necessary,” * * * and provides for a retainer to be thereafter paid. Defendant undoubtedly had confidence in them, or she would not have approached them, or finally made an agreement with them. But it is evident that until the agreement was made the relations of counsel to her matters were inquiring relations, and that it depended upon the result of the inquiries made and upon the terms of employment which should be agreed to whether they would undertake to serve her. Before entering upon the business of a client, an attorney may stipulate the measure of his compensation, and, if the client assents, the contract is valid and free from objection. So, apparently, the fruits of the services performed were accepted by her. There is nothing before this court tending to prove that the settlement was one which she ought to have declined to make.

I am impressed that upon this record, applying the rules stated, no reason appears for refusing plaintiffs what their contract with defendant gives them. If there are facts which support defendant’s contentions, she has not brought them, as she might have done, upon the record.

The decree is affirmed, with costs to appellees.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
      In re BRISTOL.
    1. Guardian and Ward — Accounting—Equitable Character of Proceeding — Province of Jury — Duty of Court.
    A guardian’s accounting is an equitable and not a legal proceeding, involving not merely the ordinary items of debit and credit, but considerations as to the propriety of the actions of the guardian and as to the allowance of his compensation, and with these things a jury cannot meddle, but disputed matters of fact may be submitted on proper issues to a jury to determine definitely such specific facts as will, when found, aid the court in determining questions which belong to its equitable discretion.

      2. Appeal and Error — Scope op Review — Probate Courts — Chancery Appeals.
    The decision, of the trial court upon disputed facts will not be reviewed by the Supreme Court on appeal from the circuit court, to which an appeal was taken from the probate court, nor will testimony be reviewed as upon an appeal in chancery.
    3. Probate Courts — Guardian and "Ward — Accountino.
    In a trial in the probate court without a jury, on an application for the allowance of a guardian’s account, the trial judge may draw inferences from the facts.
    4. Same.
    There is no question of law for review on an appeal from an order of the circuit court dismissing an appeal taken from an order of the probate court for the allowance of a guardian’s final account where it is not asserted that the findings of fact of the trial court are not supported by the evidence or that they do not support the judgment.
    Error to Genesee; Stevens, J.
    Submitted October 23, 1917.
    (Docket No. 167.)
    Decided December 27, 1917.
    Delos Bristol presented his final account as guardian of Harlow Bristol, an incompetent. The account was allowed in the probate court, and Elizabeth Bristol and another appealed to the circuit court. Judgment dismissing appeal. Contestants bring error.
    Affirmed.

      William V. Smith and John H. Farly, for appellants.

      George W. Cook, for appellee.
   Per Curiam.

An appeal was taken from an order of the probate court for the county of Genesee allowing the final account of Delos Bristol, who^ was, by appointment of the court, guardian of the person and estate of his father, Harlow Bristol, an incompetent person; his father being dead when the hearing was had. In the circuit court, by stipulation, the issues were narrowed; it being agreed that no objection would be made to the allowance of the items of the account allowed in probate court except the item of $100 for services of the guardian, and that the issue of fact to be submitted to the jury involved the charging of the account—

“with the amount of money contained in a box in the possession of Harlow Bristol, the ward, which was brought to the attention of the guardian after his appointment as such, and which was also in the guardian’s possession, and the mixed question of law and fact as to whether the guardian exercised due and reasonable prudence in failing to take possession of this box of money and preserving it for his ward; and also whether the guardian was not himself a party to a conspiracy to take this money and deprive the estate of the ward thereof.”

The record affords no evidence that a jury was called. The issues seem to have been tried by the court, without a jury. Nor does it appear that the court was requested to make, or did make, a finding of facts or of law. There is, in the printed record, a “decision of the trial court,” which concludes:

“On the whole case, as presented, after hearing the testimony on both sides, the court is of the opinion that the appeal should be dismissed, and the case remanded to the probate court for such further proceedings as may be proper.”

No exception to any ruling appears. The appealing parties sued out a writ of error. The assignments of error are:

“First. The court erred in its determination that the guardian was not chargeable with the moneys contained in the tin box which came into the possession. of the guardian as stated in his testimony and which he estimated to be $700 or $800, but which the widow of incompetent person claimed to be $1,400.
“Second. The court erred in allowing to the guardian any compensation for his execution of the trust.”

Upon the first page of the record appears the following :

“It is hereby stipulated and agreed that on the hearing of the above matter the questions submitted to the appellate court shall be limited to the charging of the said guardian with the moneys claimed to have come into his possession from a tin box found m the hay mow, or to have come to his knowledge so that his duties as guardian required him to preserve the same. ^ Also the matter of allowing to the said guardian of the sum of $100 as his compensation for the execution of his trust as such guardian.”

The record being so, it is at once suggested whether any question is presented for consideration by this court. Counsel for appellee makes the suggestion. It has been the law in this State since Gott v. Culp, 45 Mich. 265 (7 N. W. 767), was decided that a guardian’s accounting is an equitable and not a legal proceeding, involving not merely the ordinary items of debit and credit, but considerations as to the propriety of the actions of the guardian and as to the allowance of his compensation, and that with these things a jury cannot meddle. Matters of fact which are disputed may be submitted on proper issues to a jury to determine definitely such specific facts as will, when found, aid the court in determining questions which belong to its equitable discretion. See, also, Chubb v. Bradley, 58 Mich. 268 (25 N. W. 186); In re Estate of Cook, 99 Mich. 63, 67 (57 N. W. 1085). It is not the province of this court to review the decision of the circuit judge upon disputed facts (In re Grammel’s Estate, 120 Mich. 487, 490 [79 N. W. 706]), nor to review testimony as upon an appeal in chancery (In re Hoffman’s Estate, 183 Mich. 67, 70 [148 N. W. 268, 152 N. W. 952]).

It is apparent that in the case at bar the court found certain facts to exist. They are not before us in the form of definite findings, but it is evident that the questions raised upon the trial must have been answered as the facts, were found to be. It was the province of the trial court to draw inferences from the facts, and to determine whether the guardian was or was not negligent — whether a sufficient reason appeared for his admitted conduct. If we treat the decision of the trial court as a finding, it is not asserted that the findings of fact are not supported by evidence or that they do not support the judgment. It is conceded that whether the claim for compensation should be allowed depends upon whether, upon the other issue, it is determined that the guardian was guilty of nonfeasance or of malfeasance in the execution of his trust. We find no question of law presented for decision.

The judgment must be affirmed, with costs to appellee.


text:
    COUZENS v. SELLERS.
    Habeas Corpus — Refusal to Comply with Invalid Order — Police Courts — Detroit Charter.
    The release from custody of a woman charged with disorderly conduct is invalid under the Charter of Detroit, p. 472, § 10, where it appeared that at the time of entering into a recognizance she was not brought before the magistrate; and a commitment of plaintiff for ' contempt of court for refusal to comply with such order will be set aside in habeas corpus proceedings.
    Certiorari to Wayne; Codd, J.
    Submitted October 10, 1917.
    (Docket No. 71.)
    Decided December 27, 1917.
    Rehearing denied June 20, 1918.

      Habeas corpus proceedings by James Couzens against Albert F. Sellers, police justice of the city of Detroit, and Edward Stein, sheriff of Wayne county, for his release from a commitment for contempt of court. From an order quashing the commitment, defendant Sellers brings certiorari.
    Affirmed.

      Louis J. Colombo (Fred A. Baker, of counsel), for appellant.

      Allan H. Frazer (Otto Kirchner, of counsel), for ■ appellee.
   Per Curiam.

In the city of Detroit, a woman named Jessie West was arrested by a policeman, taken to and locked in police quarters. It was during the forenoon of Saturday, May 19, 1917. Later on, on Monday, May 21, 1917, a complaint was made by the officer to one of the police justices of Detroit, in which complaint she was charged with being a disorderly person because she was a common prostitute “for the above-mentioned offense committed in his presence and view as such police officer.” A warrant was issued, dated May 21, 1917, the woman was arraigned and convicted, and sentence was suspended. She is not asserting any right here nor complaining of any wrong.

Soon after she was taken to police headquarters, on Saturday, a member of the Wayne county bar appeared before Albert F. Sellers, one of the police justices of the city of Detroit, in behalf of Jessie West. He produced a man willing to enter into a recognizance for her immediate release. A written recognizance was prepared and executed by him, dated on that day, which recited that Jessie West was arrested and in custody at Central Police Station “on suspicion of being a disorderly person, to which charge the said Jessie West is ready to plead not guilty, and said Jessie West was ordered to recognize herself in the sum of $100 with one surety in the like sum, for her appearance at the police court for arraignment on said charge.” It recited that Jessie West as principal, and Noah A. Rounds as surety, personally came before the undersigned and severally and respectively acknowledged themselves indebted to the people of the State of Michigan in the sum of $100, etc. The condition was that if Jessie West appeared personally in the court on the 21st day of May, 1917, at 9 o’clock in the forenoon for arraignment on said charge, etc., the recognizance should be void. The instrument was subscribed before Albert F. Sellers, one of the police justices. No complaint had been, in fact, made against the woman in any court. She did not appear before the said police justice, or in his court, she did not sign the recognizance, and, except as it may be inferred that the attorney was acting in her interest, the record of the court does not show that she was demanding bail or interested in the matter. The recognizance having been thus executed, the said magistrate executed and delivered to the said attorney an instrument partly printed and partly in writing, which in its caption and otherwise recited and indicated that it was issued out of the police court, addressed to James Couzens, commissioner of police, Ernest Marquardt, superintendent of police, and to “any officer” of the metropolitan police department. The precise form of this instrument is somewhat in dispute, but in substance it commanded the persons, so addressed to forthwith release from custody the said Jessie West “now being held at P. H. Station on a charge of dis. person,” stating, also, that she was to appear in the police court on the 21st day of May, 1917, at 9 o’clock a. m. It was signed, “Albert F. Sellers, One of the Police Justices of the City of Detroit.” It contained no recital that a recognizance had been taken in her behalf. The attorney presented this document at the police station, and the clerk in charge, after conferring with his superior, refused to release the said Jessie West, returning the order for her release to the said attorney.

On the 23d of May, at a session of the police court, the said Roxborough presented an affidavit and petition, in which he set out various matters, among others the order hereinabove referred to, which in his petition does not, however, contain the words, “defendants not to be released if held on a warrant or some other charge,” sets up that he presented it to John Hayes, lieutenant of the clean-up squad of the department, who in obedience to an order issued by James Couzens, police commissioner, refused to discharge from custody the persons named therein; that some time prior to May 19,1917, the said James Couzens issued an order to the police officers, directing and ordering them to refuse to honor and obey orders of release signed by Albert F. Sellers, one of the police magistrates of the police court. The affidavit of the said Roxborough continues by saying that in issuing that order James Couzens knew that he was ordering and commanding said officers of the metropolitan police department to wilfully disobey lawful orders of Albert F. Sellers, a police magistrate of the police court of the city of Detroit, and that in issuing said order said James Couzens wilfully became guilty of contempt of the police court of the city of Detroit:

“In that the said action upon his part tends to defame and degrade and insult Albert F. Sellers, one of the police magistrates of said police court, and the said police court of the city of Detroit, and that action of the said James Couzens in issuing the said order brings the said Albert F. Sellers as a police magistrate and said police court, one of the most important departments in the judicial branch of the State government, charged with the enforcement of law, and the administration of justice, into disrepute, contumely and contempt, and tends to and does destroy the power and influence of the said Albert F. Sellers as a police magistrate and the said police court _ as_ one of the most important departments, of the judicial branch of the State government in the enforcement of the law and the administration of justice, and tends to and does excite and inflame the feelings and prejudices of the people against the said Albert F. Sellers as a police magistrate and the said police court, and tends to and does affect the said Albert F. Sellers as a police magistrate and the said police court so as to interfere with the due administration of law and justice by the said Albert F. Sellers as a police magistrate and the said police court.”

Upon receiving this paper, the said Albert F. Sellers signed, and there was issued out of the police court, an order which, after stating in substance the contents of the said Roxborough affidavit, commands James Couzens, Ernest Marquardt, and John Hayes to appear before Albert F. Sellers, one of the police magistrates, on the 29th day of May, 1917, at 2 o’clock in the afternoon, at the police court, to show cause-why each and all of them should not be punished for contempt of court in issuing said order and in obeying the same. -s

As the others were discharged, it is important only to consider the case of James Couzens, who showed cause in writing to the effect:

(1) That he had been served with no papers in the matter other than the order of the court and the affidavit of the said Roxborough.

(2) That he never made any order directing Marquardt and Hayes, -or either of them, or any officer of the police department, wilfully or otherwise, to refuse to honor and obey the lawful orders of Honorable Albert F. Sellers, one of the police magistrates of the police court.

(3) That at the time of the making of the order for the release of Jessie West she had been arrested and was held by the metropolitan police department at the detention home on the charge of being a common prostitute.

(4) That some time prior to the 19th of May, 1917, he had been advised by the attorney and counsel for the metropolitan police department that any order issued by the police court of the city of Detroit, or by any magistrate thereof, for the release of any person from custody for the violation of a certain ordinance of the city of Detroit (section 10 of the police act) when such person had not been brought before the said police court or the police magistrate or entered into recognizance as provided by section 10, is null and void, and in reliance upon the advice, which he then believed and still believes to be true, he instructed the said Hayes not to obey any such order.

(5) He denies that the said Roxborough presented said order for the release from custody of Jessie West to John Hayes, but upon information and belief that it was presented to Derrick S. Brown, a clerk of said police department, and that no knowledge or notice of the order came to him until some time after May 21, 1917, and on information and belief that the said Jessie West had not been brought before the police court or any police magistrate to answer the charge for which she was then held in custody or for any other purpose and that she did not enter into any recognizance, and had not otherwise been lawfully let to bail. He submits that the order for the release from custody of the said Jessie West was on its face void and of no legal force:

First. Because it does not appear that the said police magistrate or said police court ever had jurisdiction over the person of the said Jessie West.
Second. It does not appear that the police court or said police magistrate had jurisdiction, power, or authority to order the release of the said Jessie West.
Third. It does not appear that at the time of making the order the said Jessie West had appeared or been brought before the said police court or police magistrate of said police court to answer the charge on which she was held in custody, or for any other purpose.
Fourth. It does not appear that she had entered into recognizance or been lawfully let to bail.
Fifth. That it does not appear that any complaint or charge had been made in said police court against the said Jessie West.

Justice Sellers appointed counsel, friends of the court, who appeared in the matter. On June 1, 1917, there was a hearing in the police court of the city of Detroit before the Honorable Albert F. Sellers, police justice, at which testimony was taken, at the conclusion of which the said Albert F. Sellers issued a commitment, dated June 1, 1917, which recites that the court adjudged the defendant James Couzens guilty of a contempt and sentenced him to pay a fine of $100 or be committed to the county jail for a period of 30 days, and the fine had not been paid, and commanding the superintendent, captain, sergeant, or patrolman of the metropolitan police to forthwith take and deliver the said James Couzens into the custody of the sheriff of the county of Wayne, who was commanded to receive him in the Wayne county jail and there safely keep and employ him until the expiration of his sentence or until he should be thence discharged by due course of law.

Being in the custody of the sheriff, Mr. Couzens sued out a writ of habeas corpus (and a writ of certiorari to bring up the record in the contempt proceeding). There was a hearing before the Honorable George P. Codd, one of the circuit judges for Wayne county, who allowed the writ and who discharged him from custody, being of opinion, as appears from the record, that the order of the police court which he was charged with having disobeyed was illegal and no contempt proceedings could be based thereon.

At the hearing in the police court in the contempt proceedings, one, and what was made perhaps the most important, phase of the matter, was the refusal of the police to honor the order of Justice Sellers, while honoring like orders made by other justices and by the recorder. It is evident from the record that Justice Sellers regarded the action of the police complained about as directed at himself. There was testimony tending to prove that a like practice had been followed for many years, and that similar orders from other .magistrates were honored. At the hearing in the circuit court, like testimony was offered; but it seems finally to have been agreed that the question to be decided was whether the particular order was, or was not, valid. The said Albert F. Sellers petitioned this court for the allowance of a writ of certiorari to review and reverse the ruling of Judge Codd. The writ having been allowed, it was executed by bringing up' a record, not certified by the trial judge or by the clerk of the circuit court, but by the attorneys for Justice Sellers and Mr. Couzens, respectively, as a true transcript of the proceedings.

For Mr. Couzens, it is contended that the order of release is a nullity, and for plaintiff in certiorari it is. said that the only question to be determined is whether the order of release is null and void because Jessie West was not personally brought before Justice Sellers when he granted and issued the release.

The power of the police justice to admit to bail, the power to punish for contempt, the right of the police justice, as a plaintiff in certiorari, to review in this court an order of the circuit court made in habeas corpus proceedings, discharging one held upon a commitment for a criminal contempt, the sufficiency of the recitals in the order of commitment, none of these things is questioned in this court.

Upon the question which it is sought to have determined, we have been referred to Clute v. Ionia Circuit Judge, 131 Mich. 203 (91 N. W. 159), in which it is broadly held that the justice of the peace had no authority to accept the recognizance except in a case actually pending before him. We are of opinion that the question before us should be decided upon the interpretation and application of the provisions of the charter of Detroit. The charter of Detroit provides that:

“The police court shall have concurrent jurisdiction with the recorder’s court of the city of Detroit to hear, try and determine cases arising under the ordinances of the common council relative to common prostitutes, vagrants, mendicants, street beggars, drunken persons, disorderly persons, disturbances and breaches of the peace, indecent exposure of the person, indecent conduct, indecent exhibitions and other disorderly conduct. And any person arrested for a breach of any of the ordinances aforesaid shall be discharged from custody upon entering into recognizance in a sum not exceeding the penalty provided for the violation of the same, and with sureties satisfactory to the officer taking said recognizance conditioned for the appearance of such person to answer to any complaint that may be preferred against him or her. Either of said police justices, the clerk of the police court and the clerk of the recorder’s court of the city of Detroit shall have power to take said recognizance, and it shall be the duty of the officer having such person in custody to produce him before any of said officers for the purpose of giving bail when required so to do. All recognizances taken as hereby provided shall be filed as soon as practicable in the office of the clerk of the court before whom such person is brought for trial, and said court shall have full jurisdiction and authority to control and enforce the same.” Charter of Detroit 1914-16, p. 472, § 10.

The statute contemplates that, when a person is arrested for a breach of any of the ordinances mentioned therein, a recognizance may be taken and the person discharged before .arraignment. The charge — the ordinance claimed to have been violated — is in this connection the important thing. The maximum penalty of the recognizance is fixed, and persons other than judicial officers may accept it. All recognizances so taken are to be filed in the office of the clerk of the court “before whom such person is brought for trial.” The law contemplates that for the purpose of giving the recognizance the officer having the accused person in custody shall produce such person before the person who takes the recognizance. The words “when required to do so” we interpret as meaning “when requested to do so” by one of those who may accept the recognizance, or by the accused. The law aims at speedy releases of persons arrested for breaches of ordinances and not immediately put upon their trial. The term “recognizance” as employed in the law is interpreted, as. it commonly is, to mean the undertaking of the principal and surety or sureties. Applied with this interpretation, the law provides for speedy releases and for the orderly conducting of the proceedings to a release.

We agree with the learned circuit judge.


author: Ostrander, J.

text:
    FITE v. NORTH RIVER INSURANCE CO.
    1. Damages — Fire Insurance — Market Value.
    Where there is no market value for hotel property in the place where it was situated, at the time of its destruction by fire, its real or ordinary cash value at the time of fire should be ascertained, if it can be, from all the testimony as to the cost, uses it has been put to, its age, condition and location.
    2. Same.
    The price at which the owner sold a hotel later destroyed by fire is competent evidence, but not conclusive as to the cost of the building.
    3. Insurance — Fire Insurance — Evidence—Sufficiency.
    On a bill to correct the form of certain fire insurance policies and to enforce them as corrected, where all the policies were issued by an agent of the insurers, and previous to the complete destruction of the building a small fire loss had been adjusted by the insurers’ agent, and the latter had some knowledge of the value of the property, and there was no evidence of fraud and deceit practiced by plaintiff, evidence held, to show that the property was of the claimed value.
    Appeal from Lapeer; Williams, J.
    Submitted October 12, 1917.
    (Docket No. 113.)
    Decided December 27, 1917.
    Bill by Norman J. Fite and another against the North River Insurance Company and others to correct the form bf certain policies of fire insurance, and to enforce them. From a decree for plaintiffs, they appeal.
    Modified, and affirmed.

      W. E. Brown, for plaintiffs.

      De Foe & Converse, for defendants.
   Ostrander, J.

The bill is filed to correct the form of certain policies of insurance, and to enforce them, The property insured was a hotel building and barn and certain outbuildings, with their contents. The court found the cash value of the hotel building to be $7,186.86, and the total damage to plaintiffs covered by the insurance $8,386.36. For this sum a decree was entered, which was apportioned to six policies of insurance issued by the defendants — four by the North River Insurance Company, and two by the German Fire Insurance Company. The recovery was apportioned, in the decree, between the plaintiffs. Plaintiffs appeal, asserting that the court was in error in fixing the cash value of the building, and that the evidence requires the finding that the loss on buildings was $9,114.18. The insurance carried on the personal property was less than the loss, and that carried on buildings was greater than the sum found due, and greater than the sum claimed by the plaintiffs. The court filed an opinion, in which the method of arriving at the indemnity to be paid is stated as follows:

■ “I find, therefore, that at the time of the fire the hotel property, including the personal property and the adjoining outlots, was worth $10,500. The personal property included in the proofs of loss was $2,-' 513.64. Of this $500 was new, having been purchased after the hotel property was purchased, so that the personal property in the hotel at the time of the contract was $2,013.64. Deducting that from $10,000 leaves the value of the real estate at the time of the purchase, and at the time of the fire, at $7,986.36. I find the salvage to be, the barn and lot $350, five lots $250, the woodshed $100, and the icehouse $100, making $800, and deducting this $800 from $7,986.36 leaves the amount of the loss caused by the burning of the hotel building $7,186.36. To this I add $1,000, the amount of the insurance on the personal property, and $200, the amount of the insurance on the bar fixtures, or $1,200, making the total damage which the plaintiffs sustained by reason of the fire $8,386.36, for which amount I find the defendants in the case liable according to the terms of the six policies of insurance.”

This computation is explained by what precedes it in the opinion and by reference to a contract for the purchase and sale of certain real estate, including the buildings insured. The property is described in the contract as lots 10, 9, 8, 7, south half of lots 5 and 6, and east 30 feet of lot 3, Cummings’ addition to the village of Otter Lake, and the consideration to be paid therefor was $10,000. The court said:,

“The village of Otter Lake, where this property is situated, is a small country village, and this, I think, was the only hotel in the village. This property was sold by Mr. Sherman to Mr. Fite on the 7th of .March, 1914, for $10,000, payable $2,000 on delivery of the contract, and $150 the first of each month thereafter. The plaintiff has offered testimony showing what it would cost to erect that building new at Otter Lake, including its fixtures, and lighting and heating appliances. That price is considerably more than the price at which Mr. Sherman contracted to sell the property to Mr. Fite. It also appears that the depreciation of the property from the time it was built, some 25 years ago, would be about 10 per cent. In the estimate made by the contractors they gave what was included for heating and lighting, and I think some other items from bids that they received from persons doing such work, and not from personal knowledge of the value of the work. That part of their testimony would possibly not be competent, and would not be considered by the court, but I have not considered that. I am, however, persuaded to believe that the best evidence that is in the case as to the value of the property was the amount that Mr. Sherman sold it for to Mr. Fite, viz., $10,000. -The property certainly has not increased in value since that time. The contract provides that if Lapeer county should go dry within four years from the date of the contract, that Mr. Fite would be relieved from making his monthly payments for four years; that is, those monthly payments would simply be deferred. It was not a discount on the contract price, but merely a longer deferring of the monthly payments. I am satisfied from that fact that the parties, at least, contemplated that the fact that this property would be used and could be used as a saloon and bar materially enhanced its value, and that was the reason that induced them to so modify the contract. While I am not sure that it is a material matter to be considered by the court, I am satisfied that a hotel to cost more than $10,000 without a bar in the village of Otter Lake would not be a profitable investment, and that this hotel having burned, no one would think of building as expensive a hotel as that in the village of Otter Lake. I think I may also take notice of the fact that in Lapeer there are now three or four vacant hotel buildings made vacant by the changed condition of affairs as to the sale of liquor, and because of the fact that a bar may not now be maintained in either of those places they are practically closed and of comparatively little value.”

There had been a prior loss by fire and something had been paid on account thereof by the insurers. Plaintiffs, claiming that the evidence shows, a loss in excess of the insurance carried, computed the sum which should be found to be due as follows:

Total insurance on buildings................$9,300 00
Former payments and $100 not burned.....185 82
$9,114 18
Due on personal............................ 1,200 00
$10,314 18

Defendants introduced no testimony. The testimony for plaintiffs tended to prove that the hotel was on lots 8 and 10, the barn on the east 30 feet of lot 3, across, the street from the hotel. The barn did not burn, nor did a woodshed worth $45 to $50, an ice-house worth $100, a pumphouse worth $25. The barn and lot were worth $350, and the vacant lots $350. No witness testified to the value of the hotel building at the time of the fire, but one of the plaintiffs testified that his estimate of the total loss sustained, on personal and real property, was $17,500. There was also testimony tending to prove that the hotel was in good condition and repair. A witness who said he obtained measurements of the hotel building from one of the plaintiffs multiplied the cubic contents by 16 (16 cents a cubic foot), and his estimate of what it would cost to replace it was $15,968. Another witness estimated that it would cost $12,078.19 to replace the building without any contractor’s profit, and still another estimated the cost of replacing it at $14,700.

It seems to be conceded that there is no market value for such property in the place where it is situated, and therefore its real or ordinary cash value at the time of the fire should be ascertained, if it can be, from all the testimony as to the cost, uses it has been put to, its age, condition, and location. Close v. Railroad Co., 169 Mich. 401 (135 N. W. 346); William R. Roach & Co. v. Blair, 190 Mich. 11 (155 N. W. 696). Unfortunately,, there is here no evidence of what the building cost. The price at which the owner contracted to sell it, while competent evidence, is not controlling, since he might have made a good or a bad bargain. We have no estimate of its value at the time of the fire from any one competent to make such an estimate.

There is, however, other testimony of considerable probative value in this connection which, in my opinion, strongly supports the contention of the appellants. It is the testimony of facts existing before and at the time of the fire, before disagreement had arisen. The policies of insurance were all of them issued by an agent of the insurers residing at Otter Lake, upon the dates, respectively, March 4, 1913, November 1, 1913, March 12, 1914, May 5, 1914, September 28, 1914, March 20, 1915. The loss occurred June 3, 1915. A small fire occurred March 21, 1915, and the loss was adjusted. It may be assumed that the agent had some knowledge of the value of the property. There is no evidence of any deceit intended or practiced by the insured. It should not be assumed that the sum deliberately put at risk by the insurers was equal to the cash value of the property in the estimation of the agent. His estimate of its value, so evidenced, may, in the state of this record, be considered with other testimony for plaintiffs, and, when considered, is enough, in my opinion, to warrant a disagreement with the conclusion of the learned trial judge.

The decree should be modified by adding thereto the sum of $1,927.82 as loss and damage to the buildings, and by a proper apportionment of this additional sum to the defendants respectively, and to the plaintiffs, and, as modified, affirmed, with costs to appellants.

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


author: Bird, J.

text:
    HORTON v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Eminent Domain — Railroads—Highways and Streets — Injunction.
    Where a city street railroad franchise for the occupancy of a street by a spur track provides that before the street shall be occupied by the tracks the claims and rights of abutting owners within the prescribed limits shall be adjusted either by agreement or by condemnation proceedings, the owner of abutting property on such street within the prescribed limits is entitled to an injunction against proceeding with the construction work until compensation is given or settlement made with him, although the railroad company does not contemplate extending its line to or past such owner’s premises.

      2. Same.
    A railroad company has the right to proceed to condemn land for railroad purposes in a street under the eminent domain statute, independently of a city franchise.
    3. Same.
    Under 2 Comp. Laws, § 6234 (2 Comp. Laws 1915, § 8243), providing that a railroad shall not he constructed on a street until damages and compensation be made to abutting property Owners,'the owner of abutting property who has not received compensation is entitled to have construction work enjoined until he receives compensation, even though the railroad is not to be constructed in front of his premises.
    4. Same.
    Where the owners of a subdivision by deed reserved “the right to construct, or assign to others to construct, railways on any of said streets” such reservation should be construed as being limited to street railways, where, at the time the subdivision was 'platted, the rule that a street railway imposes no additional servitude was not well known and understood and appreciated by the profession and laity.
    Appeal from Kent; Barton, J., presiding.
    Submitted January 5, 1917.
    (Docket No. 41.)
    Decided December 28, 1917.
    Bill by Levi F. Horton and another against the Grand Rapids & Indiana Railway Company and another to enjoin the construction of a spur track on a street. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      William J. Landman, for plaintiffs.

      James H. Campbell (Elvert M. Davis, of counsel), for defendants.
   Bird, J.

In April, 1914, the defendants applied to and obtained a franchise from the city of Grand Rapids, permitting them to lay a spur track within the city limits, a portion of which was through Cottage Grove street from Division street on the west to Eastern avenue on the east, upon the following condition:

“Without prejudice to the rights of owners of property abutting upon Cottage Grove Street, S. E., within the limits hereinbefore specified for compensation for occupancy of the northerly portion of said street for railroad purposes as provided for herein; and provided, further, that the condition of this grant is that before the said street shall be occupied for spur tracks as herein authorized, the claims, and rights of property owners abutting upon said Cottage Grove street within the limits hereinbefore specified for compensation for occupancy of the northerly portion of said street as provided herein shall be adjusted either by mutual agreement or by the institution and carrying through to successful termination condemnation proceedings which shall settle and determine the amount of such damages respectively, and without such adjustment of damage claims and until the adjustment thereof, this ordinance shall not have practical effect.”

The defendants accepted the terms of the franchise in writing, and in July, 1915, commenced to grade Cottage Grove street. The work of grading progressed until it reached as far east as Union street, when these plaintiffs filed their bill, praying for a permanent injunction, restraining any further work on Cottage Grove street until the conditions of the ordinance were complied with and a settlement made with them. A temporary injunction was granted. A demurrer was interposed, and several motions made to modify the injunction, but these were all overruled, and defendants then answered the bill and went to a hearing. At the conclusion of the hearing the temporary injunction was made permanent.

Plaintiffs’ interest in the litigation arises out of the fact that they are owners of property situate on the south side of Cottage Grove street east of Union street. While no work has been done in front of their premises, it is their contention under the ordinance they are entitled to have the work enjoined on the street until settlement is made with them.

Defendants insist, for various reasons, that it has a right to proceed with the work; one reason assigned being that plaintiffs are entitled to neither compensation nor relief, unless the track is constructed or intended to be constructed opposite plaintiffs’ premises. Defendants, in the lower court and in this court, disavowed any intention, at this time, of extending the track in front of plaintiffs’ premises or further east than Union street, and therefore they insist that plaintiffs are not entitled to the relief sought. We are unable to agree with counsel in this contention. The franchise sought by defendants and accepted by them, fairly construed, provides for compensation or settlement with the abutting property owners before any construction work is begun on the street. But counsel say they had a right to proceed under the statute to condemn the right of way independently of the franchise. This, undoubtedly, is true, but this would not relieve the obligation to compensate or settle with the abutting property owners in advance of construction work, as the statutory provisions impose the same obligation :

“Such railway shall not be constructed upon any public street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway, or private way, and opposite where such railroad is to be constructed, either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.” 2 Comp. Laws, § 6234 (2 Comp. Laws 1915, § 8243).

It is evident that it was the intention of the legislature in passing this statute to prohibit the work of construction until compensation or settlement was made with the abutting property owners. In other words, we think any abutting property owner who has not been compensated nor settled with has the right to insist that the work be enjoined, whether it is being done in front of his premises or elsewhere on the street. We think the statute contemplates that an abutting property owner may be affected by the construction of a steam railroad on his street, even if not constructed in front of or opposite his premises. It is therefore immaterial whether defendants were proceeding under the statute or franchise, its obligation was the same.

The further reason is given, namely, that the right to construct a railway in- Cottage Grove street was reserved by the owners of the subdivision, and is expressed on the plat as follows:

“Reserving the right to construct, or assign to others to construct, railways on any of said streets”

■ — and that such reserved right has been duly assigned to defendants; the contention being that plaintiffs purchased their premises subject to such reservation, although no such reservation appears in their deed except by general reference to the plat. Plaintiffs reply that the word “railways” as used in the reservation should be construed as street railways instead of steam railways, and they cite the fact that upwards of 25 years ago a street railway was constructed on the subdivision. The only thing which seems to throw any light on the question as to whether street railways or steam railways was intended is the- locus in. quo. The street is a residence street; The construction of a street railway on a residence street is of frequent occurrence, and is consistent with its use, while the construction thereon of a steam railway is of infrequent occurrence and inconsistent with the general purposes for which it is dedicated and used. As- opposed to this construction counsel suggest that the reservation was not intended to be confined to street railways, because the rule that a street railway is not an additional servitude on a street and does not entitle owners of abutting lands to compensation is settled in this State, and that by reason of this fact no reservation— only a city franchise — was necessary to construct a street railway. In a technical sense this is true, but it is also true that 30 years ago when this subdivision was platted the rule that a street railway imposes no additional servitude on the street was not as well known and understood by the profession and laity in this State as it has been in more recent years. By reason of this the suggestion is not as persuasive as it might otherwise have been. Inasmuch as the meaning of the reservation is in doubt, it should receive that construction which will make it more nearly conform to the general purposes of a residence street and be consistent with its use.

Other phases of the case are discussed, but we think them unimportant, in view of our construction of the franchise and statute.

The decree must be affirmed.

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


author: Bird, J. Ostrander, J.

text:
    BOYLE v. WATERS.
    1. Carriers — Duty to Passengers — Alighting from Train.
    A passenger is entitled to protection as such by the carrier until she has alighted and had reasonable opportunity to get away from the railroad premises in the direction ordinarily taken.
    2. Same — Injuries to Passengers — Liability for Injuries — Failure to Light Premises.
    The mere fact that a passenger with a through ticket necessitating making a connection with another railroad at a junction point is beyond the premises of the initial carrier and on the premises of the connecting carrier does not relieve the initial carrier from ■ liability for injury while pursuing her way on an unlighted cross-walk constructed between the stations of the respective carriers and used in the transfer of passengers between the stations.
    3. Same — Personal Injuries — Question for Jury.
    In an action by the passenger against both carriers to recover for personal injuries due to being struck by a train of the connecting carrier while on the cross-walk on the latter’s premises it was a question for the jury whether it was necessary to light the walk so as to make it reasonably safe for passage and whether such duty had been discharged.
    4. Same — Duty to Passengers.
    .The duty rested upon both railroads to see that the crosswalk was properly lighted for passengers using it between the stations, irrespective of any agreement between the railroads.
    5. Same — Negligence—Evidence—Question for Jury. Evidence held, to present a jury question whether the
    initial carrier was negligent in failing to inform plaintiff that she would have to cross the track of the connecting carrier before reaching the latter’s station, and in failing to warn her of an approaching train.
    6. Same.
    Evidence held, to present a jury question as to whether the connecting carrier was negligent in approaching the cross-walk with its train without maintaining a proper lookout and giving due and timely warning of its approach.

      7. Same — Contributory Negligence — Evidence.
    PlaintifE was not guilty of contributory negligence in failing to observe a train of the connecting carrier, where, when she started over the cross-walk used for the transfer of passengers under directions from the initial carrier’s agent, her view of the oncoming train was obscured by a large pile of snow and she did not know that a train was due or approaching at the time, and it also appeared that the walk was laid flush with the rails and she did not discover the track, upon approaching it, because of the darkness, that the train came into the station quietly, without warning, and that the headlight of the engine was very dim.
    8. Same — Failure to Light Premises — Personal Injuries — Proximate Cause.
    The failure to light the cross-walk was the proximate cause of plaintiff's injuries, since the passenger had not had opportunity to get away from the premises of the initial carrier in the way ordinarily taken.
    9. Same.
    Where two railroad companies are charged with the joint duty of maintaining a cross-walk between their respective stations, and the neglect to properly light the cross-walk resulted in the injury to a passenger of one railroad using the cross-walk to take a train at the station of the other railroad by a train of the latter, a recovery may be had against both companies.
    10. Same — Service of Process — Jurisdiction.
    When two railroads are charged with torts, contributing to the injury of a passenger using a cross-walk between the respective stations, the service of process on one railroad outside the county in which the trial is had after due service on the other railroad in the latter county is proper and confers jurisdiction on the court.
    Error to Kent; Perkins, J.
    Submitted January 16, 1917.
    (Docket No. 45.)
    Decided December 28, 1917.
    Case by Lillian Boyle against Dudley E. Waters and Paul H. King, receivers of the Pere Marquette Railroad Company, and the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Gustavus Ohlinger and Edgar H. Johnson (A. L. Smith, of counsel), for appellant Ann Arbor Railroad Company.

      Parker, Shields & Brown (Charles E. Ward, of counsel), for appellants Waters and King.

      Hatch, McAllister & Raymond, for appellee.
   Bird, J.

Defendants’ railway lines intersect and cross at Thompsonville. The Ann Arbor line at that point extends nearly north and south. The Pere Marquette crosses the Ann Arbor in a southwesterly course at an angle of about 45 degrees. The Ann Arbor station is located on the east side of its track near the intersection and target house. The Pere Marquette station is situated on the west side of its track nearly opposite the Ann Arbor station. The defendants exchange passenger traffic at this point. To accommodate its respective passengers defendants built a walk across the angle between the two stations. This walk is about 100 feet in length and has been in use for 18 years.

On the 8th day of March, 1913, plaintiff became a passenger of the Ann Arbor Railroad at Cadillac with through transportation to Charlevoix via Pere Marquette from Thompsonville. She arrived at Thompsonville on the Ann Arbor train at 6:15 o’clock in the evening. It was dark, and, being unacquainted with the situation, she informed the agent that she was going to Charlevoix, and inquired where she would take the train. He stepped to the door, called her attention to a light observable through a window of the Pere Marquette station nearly opposite, and directed her to go over the crosswalk to the light. She went to the waiting room, secured her baggage, and followed the way pointed out. When within a few feet of the Pere Marquette station platform she was struck by a belated south-bound Pere Marquette passenger train and carried on the pilot beam of the locomotive for something like 100- feet, finally falling to the ground just before the train stopped. Her left foot was severed at the ankle joint, and the bones of her leg were so badly crushed that amputation four inches above the knee was necessary, and she was otherwise seriously injured.

The negligence charged against the Ann Arbor Railroad was the failure of the agent to inform plaintiff that she would have to cross the Pere Marquette track before she reached the station, and its failure to warn her of the approaching south-bound train which was then standing north of the target. The Pere Marquette Railroad was charged with negligence in running the south-bound train into the station without giving sufficient warning of the approach, and with failing to maintain a proper lookout as it approached the crosswalk to avoid colliding with persons thereon. The negligence charged against both defendants was their failure to properly light the passageway so as to make it safe. The trial resulted in a judgment for plaintiff, and both defendants assign error.

Plaintiff was a passenger of the Ann Arbor Railroad from Cadillac to Thompsonville, and she was entitled to protection as such until she had alighted and had reasonable opportunity to get away from the company’s premises in the direction ordinarily taken. Burnham v. Railway Co., 91 Mich. 523 (52 N. W. 14); Collins v. Railway Co., 80 Mich. 390 (45 N. W. 178); Cross v. Railway Co., 69 Mich. 363 (37 N. W. 361, 13 Am. St. Rep. 399).

There is no controversy between counsel as to this general rule, but their differences arise the moment an attempt is. made to apply the rule to the facts of the case. Counsel for the Ann Arbor insist that at the time plaintiff was injured she was outside the protection of this rule, because she was on the premises of the Pere Marquette Railroad Company. We cannot agree with this contention. The testimony shows that the land over which the crosswalk was constructed belonged to both companies; that each company constructed half of the walk for the common purpose of facilitating the passage of their passengers from one station to the other. There was not only an implied invitation to plaintiff to use this way, but an express direction by the Ann Arbor agent to use it in reaching the premises of the connecting carrier. She therefore had the right to assume that it was reasonably safe for such use, and if the failure to properly light it made it unsafe, the Ann Arbor Company, as well as the Pere Marquette Company, would be liable. But counsel insist that the question must turn upon whether she was still upon its premises. It is true she had just stepped off from its premises, but she was still using the way she was directed to use.

The mere fact that plaintiff had gotten beyond the Ann Arbor premises would not relieve that company from liability if she were still pursuing the way which the Ann Arbor Company had assisted in constructing for her convenience, and one which was in general use for the transfer of its passengers. Cotant v. Railway Co., 125 Iowa, 46 (99 N. W. 115, 69 L. R. A. 982); Watson v. Oxanna Land Co., 92 Ala. 320 (8 South. 770); Alabama, etc., R. Co. v. Godfrey, 156 Ala. 202 (47 South. 185, 130 Am. St. Rep. 76); Haselton v. Railway, 71 N. H. 589 (53 Atl. 1016); Tobin v. Railroad Co., 59 Me. 183 (8 Am. Rep. 415); Skottowe v. Railway Co., 22 Or. 430 (30 Pac. 222, 16 L. R. A. 593); Louisville, etc., R. Co. v. Lucas, 119 Ind. 583 (21 N. E. 968, 6 L. R. A. 193). All of these cases support the proposition that a carrier may be made liable for the injury of passengers beyond its own premises.

In the last case cited a platform was used by the Monon Railway and the Pennsylvania Railway upon which to transfer passengers. The plaintiff was injured by falling into a hole in the walk on the premises of the Pennsylvania line. In affirming a judgment against the Monon Railway it was said in part:

“It was the duty of the appellant to keep the platform which it used in conjunction with the Pennsylvania Company in a safe condition. The situation of the platform and the manner of its construction were such as to make it the duty of the appellant to see that it was safe; for it was bound to know that, if it became unsafe, the lives and limbs of its passengers were put in peril. * * * The negligence of the appellant in leaving a platform, constructed as was the one described in the verdict, in a dangerous condition, without lights or guards, might have been expected to bring upon a passenger just such an injury as the plaintiff actually received, and the appellant was in fault for not foreseeing and guarding against what did occur. The consequences which resulted were the naturahconsequences of the appellant’s breach of duty, and it must answer to the injured person.” ,<j

We think it was a fair question for the jury under all the circumstances to say whether it was necessary to light the walk to make it reasonably safe for passage, and, if necessary, whether defendants had discharged that duty.

Counsel for the Ann Arbor further insist that it is not liable because it was the duty of the Pere Marquette to light the walk; that it had electric lights under the eaves of its station, one of which was nearly opposite this walk, which served to light it, and that it had no notice that the Pere Marquette did not intend to do as it had done in the past. If this way were constructed and maintained for the purpose of transferring passengers from one station to the other, as the proof shows that it was, the duty rested upon both defendants to see that the way was properly lighted. If there were a failure to light it on the night in question, then both defendants would be liable to plaintiff for such neglect. If the defendants had any arrangement between themselves that the Pere Marquette should light the way, and it neglected to do so, and injury resulted, that is a matter to be disposed of by defendants between themselves.

We think the trial court was in no error in submitting to the jury the question whether the Ann Arbor Railroad Company was guilty of negligence in failing to inform plaintiff of the fact that she would be obliged to cross, a railroad track before reaching the Pere Marquette station, and in failing to warn her of the approaching train. Neither do we think the court was in error in submitting to the jury the question whether the Pere Marquette Railroad was negligent in approaching the crosswalk with its train without maintaining a proper lookout and giving due and timely warning of its approach. There was much conflicting testimony bearing on the manner of its approach.

Both defendants insist that plaintiff was guilty of contributory negligence in failing to discover the train, and for that reason they should have had a directed verdict. The conclusion of the jury upon this question finds justification in the fact that when plaintiff started across the walk her view of the incoming train was partially or wholly obscured by a large pile of snow and the target house; that she was not informed and did not know that any train was. due or approaching at that time; that the board walk was laid flush with the rails, and by reason of the darkness she did not discover the track as she approached it; that the train came into the station quietly, without giving the usual warnings; and that the headlight of the locomotive was so dim that it might easily have been mistaken for a switch light.

Defendants’ contention that the failure to light the way was not the proximate cause of the injury is sufficiently answered by what this court said in Burnham v. Railway Co., supra:

“The duty of the defendant did not cease the moment plaintiff alighted from the train, nor until plaintiff had a reasonable opportunity to get away from the company’s premises in the direction ordinarily taken. Until that point was reached and passed, any dangerous obstruction causing the injury was proximate under the declaration.”

It is contended by the Ann Arbor that plaintiff should have been compelled at the outset of the trial to elect against which defendant she would proceed. The reason offered is that the declaration did not allege nor prove a joint duty. We know of no rule which would compel plaintiff to allege a joint duty. If defendants were charged with several duties, and the neglect of them concurred to injure plaintiff, suit might be maintained and recovery had against both. We think the declaration, however, reasonably construed, does charge a joint duty in failing to light the crosswalk.

Both defendants having been charged with' torts which contributed to plaintiff’s injury, the service of process on the Ann Arbor Railroad outside of Kent county after due service was made upon the receivers of the Pere Marquette in Kent county was proper, and conferred jurisdiction upon the court. Act No. 225, Pub. Acts 1901 (8 Comp. Laws 1915, § 12430). Several other assignments are answered by these conclusions. The remaining ones we think are not well taken.

The judgment is affirmed.

Kuhn, C. J., and STone, Moore, and Brooke, JJ., concurred with. Bird, J.

Ostrander, J.

(concurring specially). Matter, including some legal principles, I think much too broadly stated in the opinion of my Brother Bird in the fifth subdivision thereof, especially in view of the facts of the particular case.

The plaintiff was injured while following a way leading from the premises of one defendant to the premises of the other, a way constructed partly upon the premises of each and the only way provided for leaving the premises of the defendant Ann Arbor Railroad Company. The way was not defective, but it led across railroad tracks and trains passed over it. Testimony for the plaintiff warranted the jury in finding that to a stranger, passing over the way and the tracks in the darkness, the danger of which the tracks themselves were a notice and warning could not be apprehended, and that the way ought to have been lighted to make it reasonably safe at the time and under the circumstances disclosed. The duty to sufficiently light the way was one which each defendant owed to the plaintiff. Peters v. Railway Co., 178 Mich. 481 (144 N. W. 827). It is alleged in the declaration to be1 the several duty of each defendant to light the way. The testimony of the plaintiff tends to prove that the way was not lighted. This duty owed by each defendant arose, in part, from the fact that danger from passing trains was to be apprehended, a danger which would not be perceived by a stranger using the way in darkness. The thing which should have been apprehended occurred. The negligence of one defendant, concurring with the breach of the duty owed by both, caused the injury complained about. During the delivery of the charge the following occurred:

“Mr. OMinger: May it please your honor, during the argument I brought your honor’s attention to the question of the separate verdict for or against either of the companies separately, and, as I understand it, this is being submitted simply on one verdict against two companies jointly, and in view of that I would' like to show that I make a request for a separate verdict as to each railroad.
“The Court: On this question of separate verdicts, in case the jury should so find, that involves this question: That the joint liability to maintain the lights over this walk, if the verdict is for the plaintiff, a joint verdict follows of necessity, but, if the jury should find that the walk was lighted sufficiently light, and yet under the circumstances the plaintiff was not guilty of contributory negligence in passing over this track, and should further find that the lookout, namely, the fireman, was not sufficiently observant of his duty and neglected that duty to the. extent of failing to see the plaintiff in the danger she was in, it may be that under those circumstances the verdict would be against only one company, and not against the Ann Arbor. What have you to say about that, gentlemen? I had not quite thought of that proposition before, but, after analyzing the case, I saw that probably or possibly that that may be something that should be submitted to the jury. I. think I will instruct you, gentlemen, inasmuch as counsel on both sides keep still about it.
“Mr. Ohlinger: I don’t know that you want to hear from me again.
“The Court: No; you have presented your point. I directed my remark to the plaintiff.
“Mr. Ward: I did not intend to say anything, because it would take some time, but I understood your honor has instructed the jury, if there was a proper lookout on the train—
“The Court: There was a proper lookout on the train, but whether he could have seen the plaintiff, even though he was performing his duty as lookout, will depend on the degree of darkness or light there.
“Mr. Ward: Well, we won’t say so now. It is a peculiar situation that we were in, between the light of the engine and—
“The Court: That is a question for the jury to determine. I think I have sufficiently instructed them. I think I will also instruct you, gentlemen, that if you should find that the plaintiff received her injuries by reason of the negligence of the lookout to observe her and stop the engine in time to save her, and you should further find that she was not guilty of contributory negligence under the instructions I have given you and in crossing that track, that that would be the negligence of the Pere Marquette Railroad Company alone, and your verdict would be against that company alone, should you find for the plaintiff, and no cause of action as to the Ann Arbor Railroad Company.
“On the other hand, if your verdict is based upon the question of lights and where the duty to maintain them was mutual and concurrent, then your verdict should be as against both railroad companies, if you find for the plaintiff.”

In view of this instruction, the last word given to the jury, I am of opinion that the verdict and judgment against both defendants may be sustained, upon the theory that the jury found a breach of the duty owed by both defendants, and that it was the proximate cause of the injury.

Stone, Steere, and Fellows, JJ., concurred with Ostrander, J.