author: Moore, 0. J.

text:
    TOWNSHIP OF NORTH ALLIS v. TOWNSHIP OF ALLIS.
    1. Townships — Division—Adjustment of Finances.
    Sections 2407, 2410, and 2413,1 Comp. Laws, providing for apportionment of the real estate, personal property, and debts of a township on its division, do not authorize an agreement by one of the succeeding towns to pay the other the estimated amount expended on highways in its territory in excess of that spent in the other.

      2. Cancellation op Instruments — Jurisdiction in Equity — Propriety op Cancellation.
    . Where a township board has issued promissory notes to another township, which retains the notes in its possession, and such notes, while prima facie valid, so that they may pass into the hands of innocent parties, are in fact invalid and not binding on the township which appears to have executed them, equity should take jurisdiction and cancel the notes.
    Appeal from Presque Isle; Emerick, J.
    Submitted October 13, 1905.
    (Docket No. 255.)
    Decided December 4, 1905.
    Bill by the township of North Allis against the township of Allis for the cancellation of certain promissory notes. From an order overruling a demurrer, defendant appeals.
    Affirmed.

      C. S. Reilley, for complainant.

      Charles F. Hull, for defendant.
   Moore, 0. J.

A bill in chancery was filed by the complainant for the cancellation of certain notes issued by the town board of the complainant on a settlement made by the joint boards of the complainant and defendant. The township of Allis was divided into two townships, known as “North Allis’’and “Allis.” A joint meeting of the township boards of the two townships was held to apportion the assets and liabilities of the townships. They divided the real estate and personal property, and among other matters this meeting attempted to settle was to apportion all the highway moneys spent on»the highways in the two townships, when it was then agreed the complainant should pay the defendant the sum of $3,126.14, being money spent on the highways in the township of complainant in excess of that spent on the highways of the defendant, and this action was declared to be a settlement. Complainant by its officers at that time issued six promissory notes for the above amount, due yearly. These notes are still under the control of the defendant and remain unpaid.

Complainant alleges that the joint boards had no authority to enter into such a settlement, or pass on a question of moneys spent on the highways, that it has no remedy at law, and that such action is not binding on complainant and is a fraud on the taxpayers. It prays that the agreement on the part of complainant to pay tho notes be canceled, and the notes be delivered up and destroyed, and that an injunction issue, if necessary.

Defendant filed a demurrer, denying that a court' of .equity had jurisdiction, and alleging that complainant had an adequate remedy at law. The demurrer was overruled and defendant allowed sufficient time to answer. The case is brought here by appeal. The questions are: (1) Has .the chancery court jurisdiction ? (2) Has the complainant an adequate remedy at law ?

It is insisted by the solicitor of defendant that the joint boards of the two townships have authority to adjust the property rights and liabilities of the two townships, and that, when they have done so, the courts will not interfere — citing Township of Marathon v. Township of Oregon, 8 Mich. 372; Township of Midland v. Township of Roscommon, 39 Mich. 424; and Township of Churchill v. Township of Cummings, 51 Mich. 446. An examination of these cases will disclose a very different situation from that made by the bill of complaint. It is doubtless true that, when the joint boards are acting within the scope of the authority conferred by the statute, the courts will not interfere, except in cases of fraud or mistake. It is pertinent, then, to inquire whether what was done in this instance was within the power conferred. Section 2407, 1 Comp. Laws, provides for a disposition of real .estate belonging to the townships. Section 2410, 1 Comp. Laws, provides for an apportionment of the moneys, rights, and credits, or other personal estate. Section 2413, 1 Comp. Laws, provides for an apportionment of the debts. We find no provision in the statute authorizing the action taken by the township board in relation to highway expenditures already made, and the action of the township board of the complainant township in that regard does not bind the complainant. This action resulted in the giving of promissory notes which may pass into the hands of innocent third parties, and which are prima facie valid. To make the relief speedy and effective, the notes should be canceled. The case presented is one where equity should take jurisdiction.

The order of the court below is affirmed. Defendant is given 20 days in which to answer.

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


source: Caselaw Access Project

license: Public Domain

text:
    HENDERSHOTT v. CITY OF GRAND RAPIDS.
    1. Highways and Streets — Defective Sidewalks — Personal Injuries — Liability of Municipality — Defenses.
    A city is not relieved of its statutory liability 'for injuries caused by a defective sidewalk because the injured person was at the time of the accident in possession as tenant of the premises in front of which the sidewalk was laid, where the defect which caused the injury was not due to any act of his.
    3. Municipal Corporations — Defective Sidewalks — Notice of Defect — Question of Pact.
    Whether a defect in a sidewalk has existed a sufficient length of time and under such circumstances that the city is deemed to have had notice thereof is a question of fact, and not one of law; and it is error for the court to charge that the existence of the defect for a certain time is of itself to be deemed constructive notice.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted October 13, 1905.
    (Docket No. 61.)
    Decided December 4, 1905.

      Case by Henry 0. Hendershott against the city of Grand Rapids for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Moses Taggart and It. M. Ferguson, for appellant.

      William Wisner Taylor, for appellee.
   Moore, 0. J.

The plaintiff recovered a judgment in the sum of $250 for injuries he received upon a defective sidewalk. The case is brought here by writ of error.

There are a great many assignments of error, but we do not deem it necessary to discuss all of them. A short time before plaintiff was injured he rented a house and lot, into which he moved. This house was south of Sweet street, and'about 25 or 30 feet west of North College avenue. It is the claim of plaintiff that he was not familiar with that part of the city, and that when he left his residence, instead of going out the front door and down the walk to North College avenue, and thence on that street, he went in a northeasterly direction to Sweet street, and at the time of the accident was not familiar with the walk in front of the premises where the accident occurred.

We have examined the assignments of error in relation to the admission of testimony, and do not think them well taken. We have also examined the assignments of error in relation to the claim that the testimony does not disclose any negligence on the part of the city. We do not think they are well taken. In relation to the claim that plaintiff was himself negligent, we think the question was properly submitted to the jury by the trial judge.

It is the claim of counsel for the city that, inasmuch as plaintiff was injured upon a defective sidewalk in front of the premises occupied by him, he cannot recover. No case in point is cited by counsel in favor of this proposition. Whatever relation may exist between landlord and tenant, we do not think it can be said that the city is relieved of its statutory liability, growing out of a defective sidewalk, because of the fact that the injured person happens to be one in possession of the premises as tenant at the time of the accident, when the defect which caused the injury was not due to any act of his.

There are several assignments of error in relation to the •charge of the court. As to some of these assignments of error, there are portions of the charge in relation to the liability of the city, which, standing by themselves, are not correct statements of the law; but the jury were told over and over again in the charge that the city was not an insurer of travelers on the street, but that its duty was performed if it kept its walks reasonably safe for ordinary travel, and we do not think the jury could have been misled in that respect. See Gilson v. City of Cadillac, 134 Mich. 189.

In relation to the question of constructive notice the judge charged the jury as follows:

“Now, gentlemen of the jury, before, however, the city can be held liable for damages on account of a defect in a sidewalk, it must be shown that the city had notice of that defect. Now, there are two ways in which notice can be given. Notice may be actual, or it may be constructive. Now, actual notice is where the city knows of itself, or where it has been brought to its attention, the defective condition, and to the knowledge of the city by its officers, or where the officers of the city have seen the defects themselves, but, after they have had that notice, then it becomes the duty of the city to repair it in a reasonable time. Now that is what we call actual notice.
‘ ‘ Constructive notice may be where the city, perhaps, has never seen it — the officers may never have seen it— but, in consequence of the defect being there so long, it was the duty of the city, in exercising its supervision over the streets, to have found out that defect. So, therefore, if you find that that defect had been existing there for quite a length of time — a month or more we will say— that would be constructive notice to the city, because the city, on account of its having the supervision of the streets, should have found what the condition of the walk was. That is what we call constructive notice. The city should have known it, because it has the supervision of the streets, but, of course, it should be long enough, beforehand, so that the city would reasonably have time to repair it in doing its ordinary duty upon the streets by its proper officers.”

This is contrary to the holding of this court in Thomas v. City of Flint, 123 Mich. 10 (47 L. R. A. 499). We think this was error. The question whether the defect has existed a sufficient length of time and under such circumstances that the municipality is deemed to have had notice is a question of fact, and not a question of law. 'The judge cannot say that, if the defect has existed for a certain time, that would of itself be deemed constructive notice.

The other assignments of error have been considered. They are either not well taken or not likely to occur again .in another trial.

Judgment is reversed, and a new trial ordered.

McAlvay, Grant, and Ostrander, JJ., concurred with Moore, C. J. Blair, J., concurred in the result.


author: Blair, J.

text:
    KEYSER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Eminent Domain — Remedies of Property Owner — Action for Damages — Damages Recoverable.
    Where a railroad fails to comply with section 6234, subd. 5, 2 Comp. Laws, requiring the payment of compensation by a railroad to abutting owners before constructing its road upon a public highway, and an abutting owner sues for the damages sustained, all the damages to which he is entitled, and not merely the damages which have accrued up to the time of suit brought, are recoverable in the one action.
    2. Same.
    An abutter on a highway which is excluded by the description contained in his deed can recover no damages on account of any interest in the soil of the highway, in case of the construction of a railroad on the highway.
    3. Same.
    In an action by an abutting owner for damages sustained by a railroad’s failure to comply with section 6234, subd. 5, 2 Comp. Laws, requiring a railroad to compensate adjoining owners before constructing its road upon a highway, only such damages can be recovered as are reasonably permanent in their character and arise from the proper operation of the railroad in the usual way, not including damages resulting in inconvenience and annoyance arising from matters under the control of the railroad, such as blowing whistles, ringing • bells, standing cars, etc.
    Error to Lenawee; Chester, J.
    Submitted October 12, 1905.
    (Docket No. 48.)
    Decided December 4, 1905.
    Case by Sarah Keyser against the Lake Shore & Michigan Southern Railway Company to recover damages for the use of a street in front of plaintiff’s premises. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Weaver, Morgan & Priddy, for appellant.
    Smith, Baldwin & Alexander, for appellee.
   Blair, J.

Plaintiff brought this action under section 6234, subd. 5, 2 Comp. Laws, to recover damages alleged to have been sustained in consequence of the construction by defendant, on the public highway in front of her premises, of a Y track connecting two other tracks of defendant intersecting at right angles. The premises in question are located in the township of Tecumseh, just south of the south line of the village of Tecumseh; and it was conceded by plaintiff’s counsel that the highway in question was excluded by the description in plaintiff’s deed. The Y was constructed by defendant in January, 1903, under a permit from the common council of Tecumseh and the highway commissioner, but without the consent of plaintiff, and without making compensation or paying damages to her, or making any provision therefor, as required by the statute. Plaintiff commenced her suit during the summer following the construction of the Y track.

The principal question in the case concerns the measure of damages. The court charged the jury, in accordance with plaintiff’s theory, that “she would be entitled to recover the difference between the value of the premises for residence purposes before the railway was built and the value of the premises for residence purposes after it was built.” Defendant’s counsel insist that this was manifest error, since our own decisions have settled the law that in such a case as that at bar the plaintiff can only recover for the impaired rental value of the premises up to the time suit is brought, citing Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62, 47 Mich. 393; Hoffman v. Railroad Co., 114 Mich. 316; Phelps v. City of Detroit, 120 Mich. 447. We think the cases cited are distinguishable from the case at bar. In the Heisel Case there was no statutory provision for compensation or damages at the time the track was constructed. In the Hoffman Case the track was constructed before the plaintiff acquired his title to the lot. In the Phelps Case it was said:

“But counsel for defendant contend that the action is barred by the statute of limitations. The action was brought to recover for injuries sustained by the maintenance of the bridge during the period of 3-g- years previous to the commencement of suit. The position of the plaintiff is that the maintenance of the bridge is a continuing wrong or nuisance, and that, though the right of recovery for the original erection of the bridge has been lost by the lapse of time, yet the right to recover for the injury done during the last six years remains. On the other hand, counsel for defendant contend that the bridge in question is a permanent structure, and the injury to the plaintiff, if any — past, present, and future — was ascertainable and complete as soon as the bridge was completed.”

In the Heisel Case, therefore, there was no statutory provision for compensation or damages; in the Hoffman Case the right of action for the original construction of the railroad had never been assigned to the plaintiff; • and in the Phelps Case such right of action for the original construction had been barred by the statute of limitations.

We think the case at bar is ruled by Harper v. City of Detroit, 110 Mich. 427. That was a proceeding under Act No. 92, Pub. Acts 1893, for the construction of a viaduct to carry a street across the railroad tracks without fixing the damages to abutting owners, either by judicial proceedings or by compromise, as required by the act. The plaintiff, who had the right of action for the original construction of the viaduct, brought suit for damages, and the proper measure thereof came under consideration. Mr. Justice Montgomeby, rendering the opinion of the court, says upon this subject:

“A question was raised as to whether the award of damages should be in gross or should only be for the damage which has already accrued to the use of the property. The statute of 1893 contemplates that, where such crossing is made, the damages shall be awarded once for all in that proceeding, and we think, whatever the rule might be otherwise, that, where an action is brought to recover damages for failure to comply with this statute, by analogy the rule provided by statute should control. ”

So in the case-at bar the statute contemplates that, where a railroad is constructed upon a highway, the damages shall be awarded once for all, and, where an action is brought to recover damages for failure to comply with the statute by analogy, the rule provided by statute should prevail. It is manifest, however, that such damages should only include such as are reasonably permanent in their character, and these can only be such as arise from the proper operation of the railroad in the usual way. It is also clear that, as the highway was excluded by the description in plaintiff’s deed, she can recover no damages on account of any interest in the soil thereof:

Error is assigned upon the instruction of the court that in determining the lessened value of plaintiff’s premises the jury—

“Should take into consideration every inconvenience, annoyance, and discomforture which you find was occasioned by the railroad being built, and its being operated in that part of the highway in front of her premises. In determining the inconvenience, annoyance, and discomforture, if any, you will consider the noises, such as blowing of whistles, ringing bells, puffing of the engine, squeaking of the cars, the smoke, the cinders, the odor, if any, standing of cars on the track, if any, the vibration of the house occasioned by the trains passing along there on this Y, the injury, if any, to the rain water, the backing of the water upon her premises, if any, and the restricted enjoyment of the premises, such as sitting on the porch and other places- — these and any other inconvenience, annoyance, and discomforture, if you find they are such, shall be taken into consideration in determining the damages of which I have spoken.”

Several of the elements to be considered under this instruction would be under the control of the defendant, and it cannot be presumed that they would be permanent in their character. Such damages would not be indicated by the statutory analogy, and are inconsistent with the award of damages in gross. For any unlawful interference with plaintiff’s personal or property rights, not compensated for by the award of damages for the diminished value of her premises, she would still have her remedy.

We think the court erred in giving this instruction, and for this error the judgment is reversed.

Moore, C. J., and Grant and Ostrander, JJ., concurred with Blair, J. McAlvay, J., concurred in the result.


text:
    TUTTLE v. BRISTOL.
    Statute of Frauds — Interest in Lands — Construction of Contract.
    A contract, under which defendant advanced money to purchase land and timber on which complainant held an option, examined, and held, to contemplate the acquiring by complainant of an interest in the land and to be therefore unenforceable under the statute of frauds (§ 9509, 3 Comp. Laws) because not in writing.
    Appeal from Kalkaska; Mayne, J., presiding.
    Submitted October 18, 1905.
    (Docket No. 73.)
    Decided December 4, 1905.
    Bill by George Tuttle against Bethel Bristol and William H. Bockes to establish an interest in certain land, and for an accounting. From a decree for complainant, •defendants appeal.
    Reversed, and bill dismissed.

      Parm G. Gilbert and J. L. Boyd, for complainant.

      Govell & Gross, for defendants.
   Blair, J.

The facts of this case and the legal questions arising therefrom are, in the main, well stated by the circuit judge in his opinion for a decree, from which we quote, as follows:

“Complainant held a verbal option upon a parcel of land principally valuable for the timber thereon, situated in Kalkaska county. The consideration in the option was $4,000, which was later raised to $4,500.
“Complainant was a land and timber looker and the option was taken to enable him to find a purchaser. Defendant Bristol’s attention was first called to these lands and complainant’s option at Traverse City, and by agreement they went to the premises in company with Mr. Moran and examined the same, with the result that they concluded the lands were desirable at the price named. It was agreed between them that defendant Bristol was to advance the sum of $2,000, being all the ready money he then had, and, as Tuttle had no ready money, that the title of the real estate should be taken in the name of the party who should advance the balance of the purchase price, $2,500, and that the land should be sold and the proceeds of the entire purchase price be paid, together with the necessary expense of cutting and removing the timber, if the lands were not sold outright, after which the profits arising from the venture were to be divided equally, share and share alike.
“ The testimony is conflicting as to whether Tuttle or Bristol was to obtain the $2,500, but in view of all the. testimony and the acts of the parties, I consider it immaterial which party was to take the active part in finding the person who would advance the money. The land was to be deeded to the party who might advance the money, and this amount was first to be paid. As both parties •considered the land of considerable more value than the sum of $2,500, and that this sum could be readily met by them by taking off and selling the timber and bark, in case they did not find a purchaser for the land, the question as to who would be personally responsible for the $2,500 did not probably enter very largely into their consideration, at least, I do not consider it a controlling question.
“ Bristol advanced the sum of $2,000, as agreed upon, the same being advanced equally for the benefit of Tuttle and himself. He would be, therefore, equally, if not more, interested than Tuttle in finding a person to advance the remainder of the purchase price.
“Later, becoming uneasy, defendant Bristol arranged a meeting with the owners of the land at Kalkaska, without notice to Tuttle, and closed up the deal, defendant Bockes being substituted for complainant, but without the knowledge of Tuttle or of the owners of the land, who made the conveyance to defendant Bockes supposing that Tuttle was the real party in interest with Bristol, and that ■defendant Bockes was advancing the money as a loan and taking title in his own name as security for the money advanced.
“Defendant Bockes was fully advised as to the rights of the complainant, Tuttle, in the premises. Defendants have taken off and sold certain of the timber from these lands. Complainant contends he has a.n interest in the profits, if any, arising from the lumbering operations, by reason of his option and agreement with defendant Bristol, and the subsequent payment of a part of the purchase price by Bristol to the owners and the conveyance by them to Bockes of the land in compliance with the terms of his option, and cites Petrie v. Torrent, 88 Mich. 43, among other cases.
“ Defendants claim the agreement to be for the sale of an interest in lands and within the provisions of the following statutes, and therefore void, viz.: 3 Comp. Laws §§ 8835, 9509.
“ The facts in Petrie v. Torrent, 88 Mich. 43, and 100 Mich. 117, are very similar, and the reasons apply with equal force to the case at bar; while the uncontradicted facts that the owners of the premises recognized their option to Tuttle as a subsisting obligation and received the consideration and made conveyance to Bockes as a security, in the interest of Tuttle, understanding and intending to discharge that obligation, and that Tuttle had no knowledge or notice that the conveyance was made until a later date, when he immediately protested against the acts of defendants, furnish additional reasons why the statutes cited do not apply.”

We add to the above statement of the facts of this case the following: The verbal option covered the land and timber of three 40’s, but the timber only of three other 40’s. It is apparent, from the opinion above quoted, that the circuit judge regarded the contract between the parties as simply a profit-sharing agreement, not involving any interest in lands. We do not think the pleadings and proofs sustain such a construction of the agreement. As bearing upon this question, we quote from the bill of complaint and from complainant’s testimony.

Paragraphs 5, 6, 10, 12,16, 21, and 22 of the bill of complaint, as originally filed, read as follows:

“5. That Bethel Bristol, one of the defendants herein after named, after learning that your orator had the option aforesaid, informed your orator that he would with your orator’s consent become a party thereto with your orator and that in consideration that your orator would permit him to have an interest in said option and in the lands and timber to be procured thereunder on advancing the sum of two thousand dollars ($2,000) as part of the purchase price of the said lands and timber and that as to the remaining two thousand • five hundred dollars ($2,500) required for the payment of the said purchase price, the said Thomas Moran and John Morrison might deed the said lands and timber to whomsoever would be willing to advance the sum of two thousand five hundred dollars ($2,500) to your orator and the said Bristol, to be held in trust, by the person so advancing the money until such time as your orator and the said Bristol might be able to pay for the same under an arrangement to be made between your orator and the said Bristol and the person so advancing the said money; it being expressly understood that your orator and the said Bristol should become the equitable owners of the said lands and timber and should equally bear in share the cost and expenses of conducting the business of cutting down and taking away the timber therefrom, and after the payment of the costs and expenses so incurred should equally share the profits that arise from the business as well as the money to be received in any way from the sale of the lands so to be owned by them.
• “6. And it was expressly understood between your orator and the said Bristol that upon the payment to the party to whom said lands might be deeded of the said sum of two thousand five hundred dollars ($2,500) and that the party so holding the lands should deed the said lands to your orator and the said Bristol.
“ 10. That the said Thomas Moran and John Morrison did not on or before the 21st day of March, 1902, have any notice to the effect that your orator had in any way relinquished his right to the said lands and timber under the said option. On the contrary, on information and belief, your orator charges that the said Thomas Moran and John Morrison in all their acting and doings in the premises believed that they were dealing with your orator and that whatever their dealings were with Bethel Bristol and William H. Bockes, that such dealings on their part were intended to be for the benefit of your orator.
“12. And your orator alleges that upon information and belief that only the sum of two thousand dollars ($2,000.) was paid by the said Bristol to the said Thomas Moran and John Morrison accepted the same with the belief and understanding that your orator and the said Bethel Bristol were equally entitled to the benefit of the said option and were to become equal equitable co-owners of the said land and timber.
“16. Your orator has required the said Bethel Bristol to enter into a formal agreement in writing that your orator embodying the substance of the agreement made with your orator relative to the said lands upon the said 31st day of March, 1903, but the said Bethel Bristol entirely ignores your orator in the premises, and still insists that your orator has no rights in the matter which he is bound in any way to recognize.
“ 31. Your orator further shows that he is without remedy except in a court of equity and that the said Bethel Bristol should be decreed to be a co-owner with your orator in the lands and timber aforesaid, and if not decreed to be such owner, then the said Bethel Bristol should be decreed to have parted with his interest in the said lands and timber to the said William H. Bockes, and that your orator should be decreed to be a co-owner of the said lands and timber with the said William H. Bockes.
“ 33. In consideration of the premises your orator respectfully asks the aid of the court in the premises and prays relief, as follows:
“(a) That upon the filing of this bill of complaint a temporary preliminary writ of injunction issued out of and under the seal of this court to be directed to the said Bethel Bristol and William H. Bockes, and to their agents, servants, and attorneys, commanding them and each of them to desist and refrain from cutting any timber heretofore cut and now lying upon the said lands until the further order of the court, and that upon the final hearing thereof the said writ of injunction should be made perpetual.
“ (5) That the said Bethel Bristol be decreed to be a co-owner of the said lands and timber with your orator subject to the right of the said William H. Bockes, to hold the said lands and timber in trust under his said deed of conveyance, or if the court shall hold that the said Bethel Bristol has parted with his interest in the said lands and timber unto the said William H. Bockes, and that your orator be decreed to be a co-owner of the said lands and timber with the said William H. Bockes, subject to the rights of the said Bockes under his said deed of trust, and subject to the repayment to the said Bethel Bristol of all moneys which he may have advanced toward the purchase price of the said lands and timber.
“(c) And that your orator may have such other and further relief in the premises as may be agreeable to equity and good conscience.”

The bill of complaint was amended upon the hearing, but we do not deem it important to set out the amendments. The complainant testified, upon cross-examination, as follows:

“ Q. To whom did you go.when you thought about commencing suit in this case ?
“A. To Mr. Boyd.
Q. Did you tell him what the agreement, the arrangement was in regard to the land and timber ?
“A. I stated the facts to him.
Q. And you stated them to him as they were and as the contract was ?
“A. Yes, sir.
‘ ‘ Q. And he drafted the bill of complaint in this case ?
“A. I believe so.
‘ ‘ Q. Then you afterwards signed and swore to the bill of complaint setting out the agreement, did you ?
“A. Yes, sir.
“ Q. Did you read it over ?
“A. I think Mr. Boyd read it to me.
Q. So you understood what it was ?
“A. Yes, sir.
Q. Well, did that bill of complaint at that time express the contract and agreement as you understood it ?
“A. I believe so.
Q. At that time?
“A. Yes, sir. * * *
“(Here counsel read paragraph 6-of the bill.)
Q. Now that was the arrangement, was it?
“A. Yes, sir.
Q. That upon payment of the money back to the man from whom it was borrowed, that the land should be deeded to the two of you jointly ?
“A. Yes, sir.
Q. That is what you understood the agreement to have been now, at this time ?
“A. Yes, sir.
Q. So you were to have a half interest in the land as well as in the timber ?
“A. Yes, sir.
Q. That was your understanding of the agreement?
“A. Yes, sir.
Q. And that is what you understand now, is it ?
“A. Yes, sir.
Q. That you were not only to share in the profits arising from the timber, but you should also own a half interest in the land ?
“A. Yes, sir.
Q. Then you understood, did you, that under this arrangement with Mr. Bristol that you were to buy a half interest in the land and timber ?
“A. No, if was understood that he was to buy it and put up his money against my time and option.
Q. And that you would have a half interest in the land and timber ?
“A. Yes, sir. * * *
Q. In your bill of complaint you ask that the said Bethel Bristol be decreed to be a co-owner of said land and timber with you, subject to the right of said William Bockes, who holds the land and timber in trust under his said deed of conveyance, that is what you understood was the arrangement, was it not ? I read from the original bill.
“Mr. Gilbert: Well, that matter has been amended, and that question is not treating the witness fairly.
“The Court: I presume it would have the effect of an admission anyway; being sworn to, if it has that effect.
“Mr. Gilbert: I don’t so understand it. It is simply a matter of pleading and the prayer for relief, not prepared by the man himself.
“The Court: I understand that in the prayer for relief it could be received as an admission, at least, the same as if made for a third person.
“Mr. Gilbert: I suppose the amendment was made for some salutary purpose.
“The Court: I understand the amendments were made in this case for the purpose of obtaining different relief from that first prayed for, and not for the purpose of changing the facts.
“Mr. Gilbert': They do not change the facts, we want simply the relief the facts would warrant.
“The Court: That is true, simply a broadening of the bill.
“Q, By Mr. Cross: Now, I will read you the twenty-first paragraph of the bill. It has not been amended., (Reads it.) Did you understand any such thing as that,, witness ?
“A. Well, I don’t remember seeing that paragraph before, but then, I think, as far as I am concerned, I have made it as plain as I could that I was to have a half interest in these lands and timber.
‘ ‘ Q. Andthat as soon as this money was paid back to whoever loaned it, then the lands should be deeded to you as an equal undivided interest ?
“A. Yes, sir.
The Court: Did you understand that, from the gross receipts obtained from the sale of the'timber, when sold, that there was to be deducted from it $2,500, and the interest on it, whatever that might be, and the balance divided between you, that is, after taking out the other expenses, the profits were to be divided between you ?
“A. Yes, sir, divided equally.
Q. Well, did you understand the $2,500 was to be deducted before any profits were to bé divided ?
“A. Yes, sir, it was understood that the purchase price was to be paid and then, after that, why the profit was to be divided.
“ The Court: As I understand, then, the entire $4,500, the purchase price, was to be deducted from the gross receipts of the timber as part of the expenses, and the remainder, if any, after that, and the paying of other expenses was to be considered as net profits and divided equally between you ?
“A. Yes, sir, it was considered that he was to be credited with $4,500, the amount put into this timber and the profits divided.
“ The Court: That is all I care to ask.
“ Q. Now, this agreement between you and Bristol in regard to this was all a verbal agreement ?
“.A. Yes, sir, no writings at all.
Q. Then you claim that under your arrangement you had just as much interest in that land as Mr. Bristol ?
“A. Yes, sir.
“ Q. That you should own a half interest in it when you got through ?
“A. The profits were to bef divided.
“ Q. Well, you were to have the land too, were you, both of you ?
“A. Well, that would be part of the profits.”

The serious and practically the only question for our consideration is whether the court was correct in his opinion that the facts of this case bring it within the principle of Petrie v. Torrent, 88 Mich. 43, and 100 Mich. 117, and the additional cases relied upon by complainant’s counsel. Davis v. Gerber, 69 Mich. 246; Carr v. Leavitt, 54 Mich. 540. In Carr v. Leavitt, defendant employed the plaintiff as his agent with reference to the purchase and management of certain lands for the defendant, and agreed to pay him for his services in obtaining the lands one-half the profits of a subsequent sale thereof. Mr. Justice Cooley, giving the opinion of the court, said:

“If the contract the plaintiff relied upon was within the statute, it must have been because it contemplated a purchase and then a sale of certain lands. But the plaintiff was to be neither purchaser nor seller and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in him.”

In Davis v. Gerber, likewise, the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in the plaintiff, but he was acting as agent for the defendant, who was to pay him for his services by dividing the profits on a subsequent sale of the lands.

In Petrie v. Torrent, 88 Mich. 43, Mr. Justice Long, speaking for the court, states the relations of the parties, as follows:

“What are the relations between these parties under the claim made by the bill? The complainant held options upon these properties, under which he had the right to purchase them within a given time, or to find a purchaser therefor. He communicated this fact to the defendant, who agreed to pay one-half the expense to investigate the timber, and, if the investigation was satisfactory, to furnish the money to purchase the entire property. If the purchase was so made, then he agreed to give to the complainant one-third of the net profits resulting therefrom. In consideration of this agreement and undertaking on the part of the defendant, the complainant was to pay one-half of the expense of the investigation of the timber, and, if the investigation proved satisfactory to the defendant, then to give him the opportunity to make the purchase, and to contribute his services in carrying out the transaction. It is alleged that the agreement thus made was carried out, and the purchase made, but that defendant refuses to account for the profits accruing therefrom. The complainant trusted the whole matter to the defendant. He had looked the scheme over for the purchase of the properties, and believed that there was a large profit in it. He procured from Hannah, Lay & Co. the right to purchase, and let the defendant into the scheme. He worked it up, assisted the defendant to make the purchase, and permitted him to take the whole properties in his own name, in reliance upon his agree-' ment to account to him for one-third of the net profits. From these facts it appears that the defendant accepted the trust, and agreed to carry out the terms and conditions of the agreement.” .

After quoting from Carr v. Leavitt, the court say:

“ In the present case there is no claim upon the part'of the complainant that he was ever to acquire any interest in these lands or properties. The title was to be taken in the name of defendant, and the only interest which the complainant had or claimed to have was the profits arising from their sale. It is true that the lands which the Smith Lumber Company is now lumbering represent, in the hands of defendant, who holds the legal title, a portion of the profits arising from the contract between the parties; but, under the arrangement between. them, these lands were to be lumbered, and the profits arising therefrom to be apportioned, one-third to the complainant. The defendant denies that complainant has any interest therein.”

In the case before us, it is clear, from the allegations of his bill of complaint and from his own testimony, that the complainant was to have an interest in the lands, which were the subject of the contract, conveyed to him ■and vested in him. Whatever interest Bristol acquired, complainant was to acquire, and it will hardly be contended that Bristol was not to acquire any interest in lands. The agreement, therefore, was for an interest in lands within the statute of frauds and unenforceable.

A decree will be entered, dismissing the bill of complaint, with costs to defendant.

MoAlvay, Grant, Montgomery, and Hooker, JJ., concurred.


author: Grant, J.

text:
    BIALY v. KRAUSE.
    1. Sales — Order for Goods — Construction.
    Where a soliciting agent wrote an order for goods and signed the buyer’s name to it without his knowledge or request, and signed neither his own nor his principal’s name to it, it did not constitute a binding contract, but was a mere order subject to the approval of the agent’s principal.
    2. Same — Action for Price — Instructions.
    In an action for the price of agricultural machinery, in which the evidence conflicts as to whether there was an unconditional sale or a sale subject to the machine being satisfactory to the buyer, instructions examined, and held, to submit both theories fairly to the jury:
    3. Witnesses — Impeachment—Admissibility of Evidence.
    The rejection of testimony tending to impeach a witness on an unimportant point, having no material bearing on the issue, is not error.
    Error to Bay; Shepard, J.
    Submitted October 18, 1905.
    (Docket No. 72.)
    Decided December 4, 1905.
    Assumpsit by Robert 0. Bialy against Ernest Krause for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff is a dealer in hardware and agricultural implements in Bay City; defendant, a farmer, living a few miles distant. Plaintiff had an agent named Laetz, who went among the farmers soliciting orders, among whom was the defendant. Mr. Laetz had a catalogue, in which was a cut or picture of an implement known as “ No. 75 Iron Age Cultivator.” Plaintiff did not keep these cultivators in stock, and had never dealt in them, although he was the agent for the party who manufactured that implement among others. There was considerable conversation between Mr. Laetz and the defendant upon which they did not agree. Mr. Laetz had a printed order book in which he took orders which he reported to the plaintiff. Mr. Laetz reported to plaintiff the following order:
    “$85.00 Bay City, Mich., Feb. 12, 1903. No. 282. “Ihereby order and purchase of R. C. Bialy one No. 75 Iron Age cultivator if satisfactory, if not won’t take, for which I agree to pay as follows: The express con di - tion of the sale and purchase of this cultivator for which this note is given is such that the title, ownership, or possession does not pass from said R. C. Bialy until this note with interest is paid in full, and the said R. C. Bialy has full power to declare this note due, and take possession of said property above mentioned, at any time that he may deem this note insecure, even before maturity of the same.
    “E. Krause.”
    This document was printed, except the date, the figures “$35.00” and “one No. 75 Iron Age cultivator if satisfactory, if not won’t take.” These were written in by Mr. Laetz. Defendant did not sign this paper. Mr. Laetz put his name to it, gave defendant one, and turned in the other to plaintiff. Defendant testified that he did not sign the order, that he did not ask Mr. Laetz to sign it, and that he did not know that Mr. Laetz had signed it until the paper was handed to him.
    Plaintiff testified that he knew nothing about the cultivator, had never dealt in it, and refused to accept the order and send to the manufacturer for the implement. He did not, however, notify the defendant. Three or four weeks after the defendant went to the plaintiff’s store and there had a conversation about the matter. Plaintiff’s claim, supported by his own testimony and of Mr. Laetz, is that he'informed defendant that he would not order the implement of the manufacturer upon the terms proposed in the paper returned to him by Mr. Laetz; that, if defendant desired, the implement, he would order it for him, but it must be at his own risk, and that defendant agreed to these terms; that he then ordered the implement; that it did not come as soon as expected; that, when it did come, he told defendant he was not compelled to take it on account of the delay; and that, if he did not wish it, he would return it to the manufacturer, but that defendant said he would take it, and it was delivered to him.
    Defendant’s claim is that the terms contained in the above-mentioned paper was the contract, and the only one which he made with the plaintiff; that Mr. Laetz came out to his farm to assist in a trial of the cultivator; that it did not work to defendant’s satisfaction; and' that he told Mr. Laetz to take it away if that was the best it would do. Defendant did not return the implement, and it remains in his possession.
    The case was submitted to a jury upon the two theories, and the jury found a verdict for the plaintiff.

      Pierce & Kinnane, for appellant.

      John L. Stoddard, for appellee.
   Grant, J.

(after stating the facts). 1. In the first part of his instruction the court instructed the jury:

“ If that machine was sold to the defendant to be satisfactory, if that machine was sold to defendant and guaranteed to be satisfactory to him, the-plaintiff would have to show that the defendant was satisfied with the machine, and it leaves the entire control and determination of the whole matter with the defendant. The plaintiff would have no standing at all, unless the defendant would determine that the machine was just what he wanted and all he wanted and perfectly satisfactory in every way, and in such case only could he be held for it.”

At the very close of his instruction he said:

“If, on the contrary, you should determine that the order that was taken by the agent was approved by Mr. Bialy and the machine sold under the conditions therein stated, then the plaintiff cannot recover.”

Error is assigned upon the instruction that “the order, of course, was subject to the approval and confirmation of the plaintiff, or, if he refused to approve it or to act upon it, that would be the end of it,” and, further, that “the defendant did not sign the order, and all the order amounts to is simply a memorandum of that talk that was between the agent and the defendant,” and that the order was admissible to fix and determine the talk or understanding between them. Defendant insists that the order was a binding contract. We think this position cannot be maintained. Defendant did not sign the contract, and did not ask the agent to sign it. It was not signed by plaintiff or his agent. It can be construed in no other light than that of an order subject to the approval of the plaintiff. Under his theory of the case, and the theory submitted to the jury, he did not accept it, and so notified the defendant. This point is ruled by Bronson v. Herbert, 95 Mich. 478.

2. Complaint is made that the charge of the court as a whole was argumentative and unfair to the defendant. We think it is not subject to this complaint. The two theories were stated to the jury, and we think that the charge as a whole was a correct statement of the law.

Errors are also assigned upon the rejection of certain testimony, which defendant’s counsel insist, if introduced, would have tended to impeach the testimony of the witness Laetz. The alleged impeachment was on an unimportant point, and could not have had a material bearing upon the issue.

Judgment affirmed.

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


text:
    WALKER v. WESTERN UNDERWRITERS’ ASS’N.
    1. Evidence — Weight of Testimony — Matters Considered.
    In considering the testimony of a witness, his unfamiliarity with our language and customs, and his capacity for comprehending and answering questions propounded through the medium of an interpreter, must be borne in mind.
    2. Insurance — Action on Policy — Loss by Fire and Explosion —Separation of Losses.
    Where, in an action on a fire policy, it appears that a gasoline stove explosion was followed by fire causing loss, defendant is not entitled to verdict because the loss arising from the explosion is not separated from that caused by fire, where there is no evidence that the explosion caused any loss.
    3. Same — Amount of Loss — Difficulty of Ascertainment.
    There being evidence of the loss of enumerated articles which must have been of some value, the fact that it may be difficult, and in many instances impossible, for the jury to arrive at their exact cash value, will not authorize the direction of a verdict for defendant.
    4. Same — False Swearing by Insured.
    The fact that insured has made contradictory or untrue statements does not authorize the direction of a verdict for defendant, provided such statements were made in good faith and without intent to defraud.
    5. Same.
    The act of insured in swearing to his loss as being much less than he knew it actually was could not involve, an intent to defraud, and did not constitute false swearing such as to avoid the policy.
    6. Same — Action on Policy — Instructions.
    In an action on a fire policy, where the amount of the policy was $400, and there was no definite testimony that the property, in gross or by items, was worth $400 or over, although it was valued at between $400 and §500 in the proofs of loss, a charge that plaintiff’s testimony showed that the property was worth $700 and that plaintiff claimed it was worth §700 was erroneous.

      Error to Wayne; Frazer, J.
    Submitted October 19, 1905.
    (Docket No. 79.)
    Decided December 4, 1905.
    Assumpsit by Edward R. Walker against the Western Underwriters’ Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Leo M. Butzel and George E. Stevenson, for appellant.

      George F. Monaghan, for appellee.
   Blair, J.

A Michigan standard form policy was issued to Joseph Zentarski March 30, 1903, insuring his household furniture, wearing apparel, etc., and also the stock of leather, shoes, boots, tools, machines, etc., while contained in the shoe store and dwelling, No. 1061 St. Aubin avenue, Detroit, Mich., against loss by fire to the amount of $400. Attached to the policy is a gasoline permit allowing Zentarski to operate a gasoline or vapor stove. On the 5th day of May, 1903, a fire broke out, caused by the ignition and explosion of the gas or vapor from a gasoline stove, and the insured property was entirely destroyed. Soon after the fire the policy was assigned to plaintiff, a member of a firm of adjusters of fire losses, who brought this suit to recover for the loss covered by the policy.

Zentarski was the only witness sworn as to the cause of the fire or the amount of the loss. As to the cause of the fire, he testified that, when he was going from the ‘ ‘ toilet room ” in the back yard to the house, he heard the noise of the explosion, and, “when the can exploded, the fire followed.”

Q. How much gasoline did you have in your can ?
“A. I cannot say for sure. I didn’t measure it.
Q. Did you have two or three quarts ?
“A. I know there was gasoline in the can, but I can’t tell how many quarts there were.
Q. Did you pour it yourself in the stove ?
“A. The day before I did. * * *
“ Q. How much damage did you suffer because of that fire ?
“A. About $700.
Q. What did that $700 cover ?
“A. I cannot mention each particular article that I had, but I had machinery and tools and furniture and so on.
Q. Did the $700 loss cover anything outside of that furniture in the dwelling and the articles insured in your place of business ?
“A. Why, it is the store and the dwelling place, and I had some heirlooms that were worth quite a bit. * * *
Q. Did you go to the company to get any settlement ?
“ A. Yes, sir ; I wanted to settle the matter.
Q. What was said to you by the agent of the company at that time ?
“A. They told me to write up all the articles on a sheet of paper, and that the agent would be up there from Chicago, and that they could settle the matter up.
Q. Did you make out at that time any list of things that you lost ?
“A. I could not make a list of all the things that were lost, because I could not remember all. They told me to make a list at once, and I had a very short time, so I could not think of all things that were lost in the fire.
Q. Did you at any other time make out any other list?
“A. I made amendments later to the list. I have the list of all the articles here now (showing paper). This is the amended list of articles.
By Mr. Butzel: When did you find out your loss was $700 under this policy ? •
“A. After the fire — as soon as they told me to make out another policy. I don’t remember exactly the date. It wasn’t a week after, but I don’t remember the date. * # *
Q. You didn’t own any bicycle, did you ?
“A. Yes, sir; * * * I bought it from my friend.
Q. How much did you pay him for it ?
“A. I got it for nothing.
Q. What kind was it ?
■“ A. It was a bicycle — what do I know about bicycles ?
* * *
Q. What did you give him for it ?
“ A. I gave $35 in cash, and he gave me the bicycle.
‘‘ Q. Didn’t you say two minutes ago that he gave it to you for nothing ?
“A. The balance that was to be paid on it — he gave that to me.
Q. What was the balance to be paid on it ?
A. The bicycle was worth $50.
Q. What did you give for it ?
“A. I paid $35, and the balance he told me I could keep. * * *
“ Q. As a matter of fact, you don’t know whether it was worth $5 or $100 ?
“A. No; I don’t know. I only know that it was worth to me that much. * * *
‘ ‘ Q. Do you know anything about' the value of clothes ?
“A. If I paid for it myself, I ought to know what it is worth. * * *
Q. Did you lose a black suit ?
“A. Yes, sir.
“ Q. What did you pay for it in the old country ?
“A. I cannot remember now for certain — probably $40.
u Q. You paid $40 for a suit in the old country ?
“A. I don’t know for certain. I think it was. * * *
‘ ‘ Q. Did you come from Germany — northern Germany ?
“A. No, from Russia, Warsaw.
Q. Do you know how much $40 is in the money of the Russian Empire ? Do you know what $40 is in the coin of the Russian realm ?
“A. I know that the value of a ruble in Europe is as much as the value of a dollar in this country, and I figure on that value.
“ Q. So that, when you say $40, you mean 40 rubles?
“A. Yes; it is the same value.
Q. So that you don’t mean American dollars at all when you are swearing to your loss ?
“A. I know it is the same value to me. You buy more ■ for a ruble in Europe than I do here for a dollar.
Q. You are estimating your loss in rubles instead of in American dollars ? When you say $40, you mean 40 rubles in Russia, that the suit was worth ?
“A. Yes; it makes no difference to me.
Q. Answer it ‘ Yes,’or ‘ No.’ Is that what you mean ?
“A. Yes, sir.
Q. How much did you pay for the sewing machine ?
“A. $75.
Q. From whom ?
“A. From the Singer Company. * * *
Q. How much stock did you have ?
A. I cannot tell for sure, just exactly.
Q. Give us your best judgment.
“A. I know I had rubber cement and leather and strings and so on.
Q. How much was it worth at the time of the fire?
“A. It was more worth than it was insured.
‘1 Q. How much were these particular things worth— your stock ?
“A. I don’t know for certain. I don’t know the exact sum.
Q. Have you sworn to it all ?
“A. Everything that was burned there and destroyed was worth about $700.
Q. Have you ever sworn to the specific list of property destroyed and the itemized statement of the value of each particular item claimed to have been destroyed in the fire ?
“A. Yes; I did when the list was made.
Q. You don’t know what furniture is worth, do you ?
“A. I paid for them, and I did know what they were worth.
Q. Is it not a fact that Mr. Walker prepared a list that you swore to ?
“A. I made it myself.
Q. Didn’t he suggest the values to you ?
“A. No.
Q. Didn’t he tell you your sewing machine was worth $75 instead of $50, as you had sworn once under oath ?
“A. No.
“ Q. What did you swear to it different ways at different times for ?
A. I swore just as I said.
“ Q. In what way did you swear ?
“ A. I know that the contract was for $75.
Q. What did you swear under oath for once that the thing was only worth $50 ? Have you sworn under oath it was worth $50 at any time ?
“A. I have sworn to the whole amount. I didn’t swear that the machine was worth $50.
‘ ‘ Q. Have you ever sworn to it ? What do you remember about what value you placed on your stock of leather and your shoestrings and your nails and your hooks and your polish ?
“A. I knew right after the fire broke out, but I don’t remember exactly to it.
“Q. Did you have a wooden bed ?
“A. Yes, sir.
“Q. How much was it worth ?
“A. For the bed alone I think I paid $10.
“Q. How long had you had it ?
“A. About three months.
“Q. Did you have a mattress ?
“A. I didn’t sleep without it.
“Q. What was that worth.?
“A. I didn’t think over it after the fire, and I don’t remember today.
“Q. You know the kind? Tell us what you would swear the thing was worth when it was burned up. I want to know what loss and damage you figure.
“A. I remember the bed was $10, but I don’t remember what the value of the mattress was.
“Q. What was the spring worth ?
“A. What I don’t remember I would not say.
•. “Q. Did you know in May any better than you know now?
“A. I did.
“.Q. Why?
“A. Because the company was never straight with me, and I am almost crazy over the matter, and I don’t remember exactly.
“Q. Did you have a pair of pillows ?
“A. Yes, sir.
“Q. What did you figure they were actually worth at the time of the fire ?
e ‘A. I know there were two, and I don’t remember exactly what I paid for them.
Q. You can’t tell us the value or worth of any of those things that I have been asking you about the last three or four minutes ?
“A. I don’t remember exactly now, but I did remember right after the fire. I think for the pillow I have paid about two and a half.
Q. Do you know what your underwear was worth ?
“A. Yes, sir.
Q. How much did you swear, it ?
A. I paid for the woolen shirt $1.
Q. What did you pay for the two suits of underwear ?
“ A. Two dollars for underwear.
“ Q. Will you tell us what the loss of a brush and comb was worth to you ?
“A. About $2.50.
Q. $2.50 for a brush and comb ?
“A. Yes, sir; it was a nice brush, and it was from Europe. * * *
Q. What was the other suit that you brought from the old country worth ?
“A. I don’t remember exactly what I paid for the other suit.
Q. You think that one black suit that was one year old was worth $40 ?
“A. Yes, sir; I paid about that amount.
Q. It was a year old ?
A. Not exactly a year.
Q. When you came over to America ?
“A. It is pretty near two years since I am in this country, but the suit my friend brought here from Europe for me.
Q. What did you pay your friend for it ?
A. I paid when I was in Europe for that suit, but I left it there.
Q. What did you pay for the suit ?
A. I stated how much I paid.
Q. Say it again.
“A. I have it written down. You had better see what I said before. You have got the list and know what it is.
Q. Here is a list. You had it in your pocket this morning ?
“A. If somebody would read the list I have got and explain it to me, I am willing to testify what I have on the list.
“ Q. Do I understand the list was prepared first and shown you first, and then you swore to it after it had been prepared ?
“A. I made the list and then I swore to it.
Q. So that you would recognize the list that you swore to, if you saw it ?
A. I know the list I have in my pocket.
Q. How do you know it if you do not read English ?
A. Because I give the names of the articles, and Mr. Pasternecki took them down.
Q. Did you get the value ?
“it. Yes, sir.
“Q How many kinds of values did you give ?
A. I don’t remember so many months ago. * * I valued a value upon each article, but I don’t remember, . it is so many years ago. You have it on the list.
Q. You put one value opposite each item ?
A. Yes, sir.
Q. That is all you did put opposite each ?
“A. Yes; I made the list and placed a value on each article and swore to it.
‘ ‘ Q- When you say that the stuff that was insured was damaged $700 you mean the difference in the condition before the occurrence on that day and the condition after the occurrence on the day of the fire ?
“A. I had many heirlooms.
Q- You had others to read the proofs of loss before you swore to them ?
“A. Yes, sir.
“Q. Both proofs?
“A. I only swore to one.
Q. But the one that you swore to you understood that you were swearing to perfectly.
“A. Yes; the one I had in my pocket, which I swore to, I understood.
By Mr. Monaghan:
Q. Were the articles that were in your place at the time of this fire partially burned up, or all burned up.
“A. They were all burned up.
Q. Is this the proof of loss that you signed ?
“A. Yes; this is my signature.”

Proofs of loss received in evidence and marked “Exhibit 3.”

Defendant introduced in evidence Exhibit 4, which reads as follows:

“ State op Michigan, )
County of Wayne. ) ss.:
“ Joseph Zentarski, being duly sworn, deposes and says that he is the owner and proprietor of a certain shoe business at No. 1061 St. Aubin avenue, Detroit, Michigan. That on the 28th day of April, A. D. 1903, there was contained in said premises the following goods and chattels, to'wit:
Clothing and wearing apparel-....................$100 00
Bicycle..........................-............... 50 00
Cook stove.......................... 11 75
Gasoline stove.................................... 3 00
Bed frame with clothes............................ $16 50
Table............................................ 5 00
Dressing case__________________________.......... 10 00
Two pictures _____________________________________ 7 00
Leather, polish, strings, nails and hooks___________ 100 00
17 paid repaired shoes............................ 13 75
1 sewing machine................................ 50 00
1 counter......................................... 16 00
Shoemaker’s tools................................ 40 00
Total...........................................$433 00
“ Deponent further says that the above amounts correctly state and set forth the cost and value of the different items of property herein contained.
[Signed] “Joseph Zentarski.
“ Subscribed and sworn to before me this 29th day of April, A. D. 1903.
“Sherman Littlefield,
“Notary Public, Wayne County, Michigan.
“Witness: Albert C. Lauzon.”

Defendant thereupon rested, and moved the court to direct a verdict, for the reasons:

“First. That there is no testimony here that separates the loss on the insured property that resulted from the explosion from the loss that accrued to this property by fire. The policy does not insure against loss to property from the explosion. It does insure against loss by fire.
' “Second. That there is no competent proof to show or warrant the jury in finding what the actual cash value of the property destroyed was. The policy provides, not for the cost, but for the cash value at the time of the loss. There is absolutely no proof here of that fact at all.”

The refusal of the court to grant this motion, and to give requests to the same effect, constitute the principal questions raised by the assignments of error.

In considering the testimony of the plaintiff’s assignor, all of which, in substance, has been set forth above, so far as it relates to these questions, his unfamiliarity with our language and customs, and his capacity for comprehending and answering the questions propounded through the medium of an interpreter, must be borne in mind.

We do not think there is any force in the proposition that plaintiff cannot recover because the damages resulting from explosion and from fire were not apportioned. There is no evidence that the explosion did any damage. On the contrary, Zentarski swore that the articles were “ all burned upthat “everything that was burned there and destroyed was worth about $700.” Plaintiff at least made a prima facie case that the property was destroyed by fire, and this was sufficient to take the case to the jury.. There is no presumption or even probability that the explosion of the gas of a gasoline can or stove would do serious injury from the forces of the explosion itself.

The second ground of defendant’s motion, and his requests upon the subject, upon which he relies, except the seventh, proceed upon the theory that there was no evidence in the record at all as to the actual cash value of the property destroyed, and that the court, for that reason, must direct a verdict for the defendant. There was evidence from which the jury might find that plaintiff lost in the fire the articles scheduled in his proofs of loss. He testified that he made out a list of the things that he lost, when he was trying to settle with the company, at which time he could not remember all of the things that were lost, but later made out a complete list for his proofs of loss. This property certainly had some value, and the fact that it might be difficult for the jury, and, in many instances, perhaps impossible, to arrive at its exact cash value, would not authorize the court to direct a verdict for the defendant. As to some items, we are not prepared to say that there was no competent evidence as to value. The comb and brush he testified were worth $2.50, and the bed he paid $10 for, and had only had it three months; that he paid $40 for his black suit and had had it about two years. It is apparent from reading his testimony that he had great difficulty in expressing his own ideas and in comprehending the scope of the questions asked, but, under any possible view of the testimony, he was entitled to a verdict for some damages.

It is next insisted that plaintiff’s case could not be maintained because of false swearing. This point was raised by requests to charge Nos. 5, 8, and 9. The fifth and eighth requests to charge required the court to instruct the jury that plaintiff had been guilty of false swearing, and their verdict must be for the defendant. They were properly refused. The fact of contradicting statements, or of statements which were untrue, provided they were made in good faith and without intent to defraud, would not authorize the direction of a verdict. Knop v. Insurance Co., 107 Mich. 323. The language quoted from this case by counsel for defendant is, so far as the point under consideration is concerned, from the dissenting opinion. The ninth request is to the effect that, if the plaintiff swore to his loss as being much less than he knew it actually was, this would constitute false swearing, within the meaning o£ the policy. It can hardly be seriously contended that the court would have been justified in giving this request. There certainly could be no intent to defraud in such a situation.

Error is also assigned upon certain portions of the charge as given, viz.:

“The testimony shows, or tends to show, on the part of the plaintiff, that this property was worth $700.”

And again:

“ And now on the stand he claims it was worth $700 and he gives this value of this property, from the fact that he purchased it — purchased it and knows what he paid.”

We think the instructions complained of were erroneous, and that they were likely to be prejudicial, as giving the jury to understand that there was testimony in the case to the effect that the property insured was worth $700 instead of $422 or $472, as valued in the affidavits of loss. It is at least a fair question for the jury on this record whether the plaintiff did not include in this $700 the heirlooms which he said were worth quite a bit, and by which he seems to endeavor to explain the difference between the $700 valuation and the valuations in the two affidavits. This, we think, is the natural construction of his testimony, and is the construction placed upon it by his counsel in his brief:

“It was the undoubted intent of Zentarski to convey to the jury the idea that his total loss was $700; this amount. to include, not only the property covered by the risk, but also certain other properties which he has designated as ^ heirlooms.”-

This was not the intent of the circuit judge when he said:

“The testimony shows or tends to show on the part of the plaintiff that this property was worth $700. But that testimony seems to have been contradicted in some way by the owner of the property having made one or two different statements or affidavits before in relation to what this property was really worth. In those instances the property is claimed to have been worth in the neighborhood of $400. And now upon the stand he claims it was worth $700,” etc.

These instructions might well be held to be erroneous, without prejudice, if there were any definite testimony in the record that the property, in gross or by items, was worth $400 or over. But there is no such testimony. Plaintiff does not even testify that the valuations of his proofs of loss are correct, and in only a few instances does he give any data from which the jury might estimate the value of the articles burned.

For the errors referred to, the judgment is reversed, and a new trial granted.

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


author: Per Curiam.

text:
    JAQUITH v. BENZIE CIRCUIT JUDGE.
    1. Appeal and Error — Probate Appeal — Jurisdiction.
    A probate appeal, in a case in which the probate court had no jurisdiction, confers no jurisdiction on the circuit court.
    2. Insane Persons — Judgment—Probate Court — Rehearing.
    After adjudging a person incompetent and appointing a guardian for him,- the probate court has no jurisdiction to •rehear the case on a petition in effect alleging the petitioner’s competency and denying the necessity of a guardian, petitioner’s remedy being by appeal from the order adjudging him incompetent.
    Mandamus by Sampson P. Jaquith to compel Clyde 0. Chittenden, circuit judge of Benzie county, to vacate an order dismissing an appeal.
    Submitted October 17, 1905.
    (Calendar No. 21,360.)
    Writ denied December 4, 1905.

      Louisell & Nevius, for relator.

      John W. Wilson, for respondent.
   Per Curiam.

Relator was declared by the probate court of Benzie county, August 1, 1904, to be an incompetent person, and a guardian of his person and property was appointed. Afterwards, on April 17, 1905, he filed a petition in said court praying for the removal and discharge of said guardian, for the reason, among others given, that he was not mentally incompetent. Upon his petition an order of hearing was made, and a hearing had May 23, 1905 ; all parties interested appearing personally or by attorney. Upon this hearing the probate judge made an order denying the petition and determining that petitioner was an incompetent person. From this order and determination petitioner appealed, June 21, 1905, to the circuit court of Benzie county. Notice of this appeal was duly served on all interested parties as directed by an order of said probate court. This appeal coming on to be heard August 24, 1905, in the circuit court, objection was made by the attorney for the appellees to the introduction of any evidence in the case, for the reason that the petition filed in probate court, upon which the hearing w.as had and the order appealed from made, gave that court no jurisdiction, and therefore the circuit court had no jurisdiction to hear the appeal. This objection was sustained, and the following order denying the appeal was entered:

“ This matter came on to be heard in open court, and on motion of defendants’ counsel the petition herein was denied, and plaintiff given 80 days in which to settle a bill of exceptions by filing a bond of $200 within 20 days, to be approved by the clerk of said court.”

A motion was made to set aside said order and to reinstate and hear the said appeal, which was denied. Relator then applied to this court for a mandamus to compel the circuit judge to vacate said order, reinstate the appeal, and hear the same.

If the probate court had no jurisdiction to hear the petition and make the order appealed from, the circuit court would not acquire jurisdiction by reason of the appeal. No appeal was taken from the original order declaring relator incompetent and appointing the guardian of his person and property. The petition which the probate court heard and denied, and from which this appeal was taken, alleges the appointment of the guardian, and that he is proceeding in chancery to set aside a certain deed made by relator and is making him useless expense and greatly annoying him; that relator is mentally competent; that the guardian was appointed upon the theory that he was mentally incompetent; that he had no opportunity to be heard at the time said guardian was appointed; that there was no need for such appointment, and the same was a useless proceeding and contrary to his rights. He therefore prays that said guardian may be removed.

The clear meaning of the petition is that relator was at the time the guardian was appointed, and continues to be, mentally competent; that the whole proceeding was a fraud upon the probate court and upon relator. There is no claim made that the probate court acted without jurisdiction. Relator claims that the probate judge intimated to him that no guardian would be appointed, and that he was not represented by counsel. The record before us shows that the guardian was appointed August 1, 1904; that relator learned the legal effect of this appointment December 23,1904, and filed his petition to have the guardian, removed April 17, 1905, all within the year provided by statute in which an appeal, on cause shown, to the circuit court might have been taken. By his petition to the probate court he in effect asked that court for a rehearing of the case and a reversal of the order made. This the probate court had no jurisdiction to do, although a hearing was in fact had, and relator was again adjudged incompetent. A review of the order first made could only be had on an appeal therefrom as provided by statute. The circuit judge was correct in refusing to hear the case for want of jurisdiction.

The writ is denied.


author: Hooker, J. Grant, J.

text:
    BASS v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO.
    1. Saving Questions for Review — Exoessiveness of Verdiot— Necessity of Motion for New Trial.
    Where a motion for new trial, assigning excessiveness of verdict and other reasons as grounds, is overruled without reasons shown or requested, the question of excessiveness of verdict cannot be raised in this court, the case not being one in which the rule and data for the computation of damages are fixed by law. >■
    2. Carriers — Passengers—Termination of Relation.
    Where a passenger is sleeping when the train arrives at his destination, and those in charge of the train, knowing it to be his destination, fail to awaken him and acquaint him with the fact, his failure to leave the train immediately does not terminate the relation of - passenger and the carrier’s duty to him as such. Grant, J., dissenting.
    Error to Cass; Carr, J.
    Submitted October 20, 1905.
    (Docket No. 89.)
    Decided December 4, 1905.
    Case by Edward Bass against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      O. JE. Cowgill (M. L. Howell, of counsel), for appellant.

      Burns & Sweet, for appellee.
   Hooker, J.

The plaintiff, a young man residing at the time at Kalamazoo, purchased an excursion ticket to Benton Harbor over the Michigan Central and defendant’s' roads. On the return trip the plaintiff rode in the smoking car and a number of passengers in that coach were riotous and disorderly, to a degree that merited severe measures in suppressing their disorder. An altercation with the conductor resulted, and, while the train stopped at the last station but one on the trip, one of the young men procured an ax helve, and it was carried on the car to Niles, where the plaintiff and other young men were to change cars, having to walk a distance of several blocks to take the Michigan Central train. The conductor was warned of the intention of the young men to attack him. They waited some 10 or 15 minutes and until he had signaled the train to start, when they closed about him and one of their number asked his name and entered into conversation with him. At the same time another approached him and lifted the ax helve in a way that led the conductor to believe that a blow was intended, whereupon he wrested the ax helve from him and swung it around. Most of the crowd had stepped back in time to avoid the blow, but the plaintiff was hit on the head and the scalp was cut for two inches. At the time the conductor was so close to the train that it nearly rubbed his back as it moved off. He caught on the train and went with it. There is little, if any, room for controversy about the foregoing statement. The preconcerted arrangement and attack upon the conductor is scarcely denied, and the claim that the plaintiff was not of the party, but was casually passing at the time, strikes us as so improbable, and the verdict is so excessive, that we should unhesitatingly set aside the verdict as contrary to the law and the evidence, did the record permit. The judge’s reasons for denying the motion are not shown, as required by law.

The plaintiff claims that he was asleep when the car reached Niles, and that he so remained until some person came into the car, a few moments before the train left, and aroused him; that he did not loiter, but went immediately out, and was going away when struck. This raised a question of fact as to his participation in the attack upon the conductor, which it was necessary to leave to the jury. Hence we cannot say that it was conclusively proved that he was one who either participated in or loitered to see the .attack.

It is claimed by defendant’s counsel that it was the duty of the plaintiff to be awake, and immediately alight and depart when the train stopped, and, failing to do so within a reasonable time, the relation of passenger had ceased, and the defendant owed him no duty of protection. This question was left to the jury, and the defendant claims it should have been determined by the court.

The declaration is a count for negligence, and counsel claim that, if it be found that there was a question of negligence in the case, the jury should have been instructed that plaintiff could not recover by reason of his contributory negligence (1) in not being awake and leaving the train and premises promptly, and (2) in getting in so close proximity to the parties engaged in the altercation as to be struck, when the immediate attacking parties escaped. We fail to find any allusion to the question of contributory negligence upon the trial. Not once was attention called to such a question. At any rate it is not pointed out to us, and we have not discovered it.

It is true that voluminous requests to charge were presented, in which the effect of plaintiff’s delay was given prominence; but, while the effect of such delay upon his right to protection as a passenger was given prominence, there was nothing to indicate that the doctrine of contributory negligence was in the mind of counsel. The court did not give these requests, but he did instruct the jury, in effect, that the plaintiff was required to depart in a reasonable time under all the circumstances, and, if he did not, could not recover. He refused however to instruct that a failure to keep awake and to leave the train immediately would necessarily deprive him of his right to protection as a passenger. We are not cited to any case which holds that a failure to leave the train immediately by a passenger who is sleeping terminates the relation of passenger and the carrier’s duty to a passenger, where those in charge of the train, knowing it to be his destination, have failed to awaken him and acquaint him with the fact that he should alight.

We have endeavored to examine critically the assignments of error raised, and fail to find one which calls for a reversal of the judgment. It is therefore affirmed.

McAlvay, Blair, and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). I agree with my Brother Hooker that the overwhelming weight of the evidence in this case is in favor of the defendant, and that the verdict is very excessive, but that these questions are not before us for review, under McRae v. Lumber Co., 102 Mich. 488, a case the parallel of this in its facts as to a new trial. Upon the motion for a new trial eight errors were assigned, one of which was that the verdict was excessive. The circuit judge simply overruled the motion, assigning no reasons, and not being asked to assign any. Neither was any exception taken to the order overruling the motion. When the question of an excessive verdict can be raised in the appellate court upon a writ of error without a motion for a new trial under 3 Comp. Laws, § 10504, is stated in McDonald v. Steel Co., 140 Mich. 401.

I cannot agree with my Brother Hooker in holding that the plaintiff established a liability on the part of the defendant. Plaintiff was a passenger over defendant’s road from Benton Harbor to Niles. The defendant had safely carried him to his destination.' The act of carrying had ended, and its duty in that regard fully performed. The law then imposed one duty upon the defendant and another upon the plaintiff. The defendant’s duty was to seasonably announce in each car the station, so that the passengers for that station might alight. This it concededly did. Its next duty was to wait a reasonable time for passengers to alight in safety. This it concededly did. Plaintiff admits it. He testified that, when he started to get off, all the others had gotten off; that his time for crossing from the depot of the defendant to the depot of the Michigan Central — about one-fourth of a mile — to catch a train there for his home was short. His excuse for not alighting he gives as follows:

“Says that he went to sleep and slept there until everybody left the train and that he was sober; that he was sitting in the back seat of the smoking car, close to the door, and that he could have got out as quick as any one, if he had not been asleep; that he got off ‘ as quick as this fellow woke me up, but they were all gone; ’ that some one came back into the car to wake him up, but he did not know who it was.”

When he alighted, the conductor was standing close to the car, with his back to it, surrounded by several riotous young men, evidently determined upon assaulting him. The ax helve was raised by one for that purpose. The conductor seized it, swung it around with his left hand, and struck the plaintiff, inflicting a not serious scalp wound. Plaintiff testified that he was then walking from the car towards the depot, when he got into this crowd. When struck he was the nearest one of them to the conductor. If he did not design to participate in the attack, or intentionally place himself at the front of the crowd for the purpose of seeing, it is difficult to understand why he did not pass around them. His basis for recovery is that he was still a passenger, and that the defendant owed him the high degree of care required of carriers of passengers. The question of contributory negligence under the record may be ignored.

The cases cited in behalf of the plaintiff are not in point. I deem it unnecessary to analyze them. Some are cases of travelers upon the streets or highways. Others are where accidents happened in alighting from the train. Others involve assaults upon passengers by the employes of the company while upon the train. In one case the passenger had promptly alighted from the train, and was promptly passing from the depot grounds, when he was assaulted in the presence of the company’s agent, who took no steps to protect him, and who knew that the assault was to be committed; the assaulter being a friend of his and his guest at the time. Texas, etc., R. Co. v. Dick, 36 Tex. Civ. App. 256. I doubt the soundness of that, opinion. None of the cases involve the right of a passenger deliberately remaining in the car after he has had ample time to alight, and the conductor has no knowledge that he desires to alight, and he is injured in the manner the plaintiff in this case was.. The question is not discussed at any length on behalf of the defendant, and only one case is cited.

Plaintiff was not riding in a sleeping car, when undoubtedly he would have been entitled to be awakened by some employe of the company in sufficient time to get ready to alight. He was riding in the day time in a long train, whose cars were full, and passengers standing, unable to get seats. It was not the duty of any employe of the company to awaken the plaintiff. Nichols v. Railway Co., 90 Mich. 203. It had performed its full duty in this respect in calling out in the cars the name of the station, and in giving the passengers sufficient time to alight. This ruléis founded in reason and common sense. Any other notice would be impracticable and incompatible with the speed and dispatch of business demanded by the traveling public. Thompson, in his valuable work on the Law of Negligence, after stating the duty of the carrier to call out the name of the station in sufficient time, and to stop the train a sufficient length of time, says:

“ The weight of authority is to the effect that a railway company discharges its duty when it stops at any station long enough to afford all passengers intending to alight there a reasonable time to alight in safety, and that the conductor is not bound to go through the train and ascertain that each passenger so intending has alighted before starting the train, but that, having afforded a sufficient time, he is entitled to presume that every passenger has availed himself of the opportunity.” 3 Thompson on Negligence, § 2861.

See, also, section 3864. Where a passenger had been carried to the station at the terminus of the road, which was also his destination, and the proper announcement had been given by the employés of the company, but he remained upon the train for 25 minutes, when the train was backed over a crossing, in which an accident occurred and he was killed, the court held that he had ceased to be a passenger. The court said:

‘ ‘ When he had been safely carried to his destination and to • a point which was then the end of the road, and had been afforded almost half an hour to leave the train, the company no longer owed him any duty as a passenger, nor was it under any obligation to him as such.” Chicago, etc., R. Co. v. Frazer, 55 Kan. 582.

In a similar case, where the train had reached the end of its route which was also the destination of the passenger, but she remained for about 25 minutes upon the train, and was injured while alighting, it was held that the relation of carrier between the railroad company and plaintiff had ceased, and that the defendant was not liable. Imhoff v. Railway Co., 20 Wis. 344. The same ruléis held in the following cases: Illinois Cent. R. Co. v. Slatton, 54 Ill. 133; Straus v. Railroad Co., 75 Mo. 185; Clotworthy v. Railroad Co., 80 Mo. 220; Hurt v. Railway Co., 94 Mo. 255; Raben v. Railway Co., 73 Iowa, 579. There are many cases involving the reciprocal duties of carriers and passengers in boarding and alighting from trains. I have not examined them all. I have examined many, and I find no one holding that, under the circumstances of this case, the relation of carrier and passenger had not ceased.

Upon this point there was no question of fact to submit to the jury. Plaintiff’s own testimony shows that he had ample time to alight and to depart from the platform before he was injured. The train stood there from 10 to 15 minutes. The conductor had given the signal to the engineer to move. The train had started, and was moving, when the difficulty arose. It is further established beyond controversy that 1J to 3 minutes was ample time for all the passengers to alight. They had all alighted, except the plaintiff, and some one, evidently missing him, according to his own statement, returned to the train and awakened him. If, under these circumstances, the baggageman or express messenger had been wheeling a truck upon the platform alongside the car, under the belief that all the passengers had alighted, and plaintiff, in stepping off, had been struck by such truck, under the above authorities defendant would not be liable. If his status as a passenger had ceased when stepping from the train, it did not reattach the moment he stepped upon the platform. It was as much his duty to, with reasonable promptness, alight from the car as it was to leave the platform. The two acts cannot be separated under the facts of this case. The conductor had a right to assume that all the passengers had alighted and left, and that the threatening crowd which was around him had ceased to be passengers. Defendant was no longer required to exercise towards plaintiff that high degree of care.which the law requires when he was in its custody as a passenger, but was only required to exercise the ordinary care which it owes all persons upon its station grounds who are not passengers.

The court instructed the jury that:

“ The uncontroverted evidence in the case shows that from one to three minutes would have been ample time for the plaintiff, after alighting from said train upon the defendant’s passenger station grounds at Niles, to have gone upon and entirely across the said station grounds in the reasonable and practicable direction of his destination beyond. If, therefore, you find from the evidence that he loitered upon the defendant’s said premises some five or six minutes or more beyond what was reasonable or reasonably required for- his leaving the same, and during which time he received his injuries, the defendant’s duty by the plaintiff, under said contract sued upon, would at the time plaintiff received said injuries have ceased. The defendant would not be liable to plaintiff on account of said injuries, and your verdict must be for the defendant, if such be the case.”

His loitering upon the car before alighting was as effectual to destroy his status as a passenger as would have been his loitering after alighting. The charge of the court ignored his loitering upon the car, assumed that his status as a passenger existed when he alighted, and continued until he had a reasonable time to leave the platform. The court should, as requested, have directed a verdict for the defendant.

For the reasons above stated, I think the judgment should be reversed, and new trial granted.