text:
    ALGATE v. CITY OF LANSING.
    1. Appeal and Error — Trial—Directed Verdict — Evidence.
    On error to review a directed verdict, the testimony of the defeated party must be taken as true and considered in the view most favorable to him.

      2. Contracts — Breach—Evidence—Municipal Corporations.
    Evidence in an action against a municipal corporation for breach of a sewer contract that plaintiff was unable tó get sufficient brick of the kind specified by the city engineer, who was charged with the duty of inspection, and that plaintiff substituted a kind of brick which was more expensive and conformed to the requirements of the contract, but the engineer rejected the work in which such material was employed and refused to give an estimate such as the contract provided for on work thereafter done in a proper manner by the contractor, held, to present a question for the jury whether the defendant had violated the agreement.
    3. Same — Arbitration—Inspection—Municipal Corporations.
    A provision in a contract for the construction of a city sewer that all materials should be furnished by the contractor and approved by the city engineer before being used, did not make the decision of the engineer final and conclusive: nor was a further contract proviso that all work should be done in a neat, substantial, and workmanlike manner, “to the satisfaction of the common council, under the direction of the engineer whose orders are to be obeyed in all matters pertaining to workmanship or materials subject to these specifications,” sufficient to vest in the city officials authority to finally pass upon work and materials used.

    4. Same.

    And whether or not the decision of the engineer was fair and reasonable so as to bind the parties, plaintiff was entitled to have an estimate on work which was not questioned and which he had done after the rejection of the substituted brick: failure to furnish such estimate constituted an actionable breach of a contract that provided that estimates for partial payments should be made upon request of the contractor presented prior to Saturday of any week.
    •5. Same —Contracts—Satis faction.
    The contract was not of the class known as satisfaction contracts, in which the taste or judgment of one of the parties is made the sole basis of acceptance or rejection, but if the work which was done by the contractor conformed in a reasonably sufficient manner to the requirements of the contract it was a complete performance and he was entitled to an estimate.
    Error to Ingham; Wiest, J.
    Submitted October 13, 1914.
    (Docket No. 28.)
    Decided June 1, 1914.
    Assumpsit by John H. Algate against the city of Lansing for breach of a contract for construction of a sewer. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Seymour H. Person, for appellant.

      Joseph H. Dunnebaeke (C. P. Black, of counsel), for appellee.-

       The question of the conclusiveness as between, municipality and contractor of decision of engineer or other empowered officer as to matters concerning contract for public improvement is treated in a note in 23 L. R. A. (N. S.) 317.

   Steere, J.

Plaintiff, by a writ of error, seeks review and asks reversal of a judgment on a directed verdict rendered against him in the circuit court of Ingham county in an action brought upon a written contract entered into between him and defendant whereby he engaged to construct a sewer system for a portion of the city of Lansing according to certain plans and specifications made a part of said contract.

The' system, involving an expenditure of near $40,000, contemplated an egg-shaped, trunk sewer built of brick and concrete, 72 inches from top to bottom at the lower end, and gradually growing smaller as it receded from its outlet, with several laterals of tile extending from the main sewer in different directions.

The contract, following a form approved and adopted by the common council of the city of Lansing on October 11, 1909, is an elaborate document covering 20 pages of the printed record, very full and complete as to all matters involved in the undertaking, with specifications divided and subdivided under headings as to method of construction, workmanship, material, and other details relating to different branches of the work and the rights, duties, and responsibilities of the parties. It was executed May 9, 1910, requiring the work to be commenced June 1, 1910, and completed not later than November 30, 1911. Further reference will be made to such portions of this contract as become material to questions which it is necessary to pass upon or consider.

Performance of the contract was entered upon, and the work progressed, under plaintiff’s general control, but in direct charge of his son and other foremen; he being absent portions of the time looking after other contracts he had taken until July 10, 1911, when plaintiff took personal charge. About August 5th the city engineer, who was inspector by the terms of the contract, made objection to the manner in which certain work was done, and especially forbade the use of some red sand brick, in the trunk sewer, which was from the same brickyard but varied in color from that previously used. Just at that time the brickmakers were unable to furnish the light colored sand brick which had been previously used, and plaintiff, claiming that the red was just as good or better, more expensive, and fully complied with the specifications of the contract, continued its use for a time, until the other brick could be again furnished, building about 32 feet of the sewer with it.

On August 10, 1911, the engineer sent plaintiff a written communication stating that on August 5th notice had been given him not to lay the red brick, and later to discontinue laying certain inverted stone in an unworkmanlike manner, with notice that no estimate would be given him for work done until the same was replaced according to specifications. This notice was received while plaintiff was unable to get the light brick, and he continued to use the red for a time thereafter, until authorized by the engineer to use a certain mud brick which the brickyard was able to furnish, when he continued with the latter, joining them to the red brick which he did not replace. During the time he was laying the mud brick the city engineer and chairman of the sewer committee were many times at the sewer and observed what was being done. The culminating and chief cause of friction between the parties appears to be plaintiff’s refusal to replace the red brick with others. On August 18th plaintiff made written application to the engineer for an estimate claimed due him under the contract, with which to obtain a partial payment “on work done on said sewer, and not previously estimated by you,” which was refused. Plaintiff continued the work for a time, until after the next meeting of the city council, and, being unable to secure an estimate or payment, withdrew his tools and men and discontinued work on September 1st, claiming defendant had violated the contract in not paying him the percentage due on work done according to the contract, and that he was unable to continue through lack of funds resulting from the city refusing to pay him money then due. On September 11th he received a communication of defendant, from the common council, inclosing a copy of a resolution directing him to proceed with his contract at once, or his bond for its faithful performance would be forfeited and he held responsible for all resulting damages. He sought legal advice, and on September 14th. his attorney wrote the city engineer, stating the facts as plaintiff claimed them, and concluding :

“Kindly advise me, as Mr. Algate’s attorney, if you will now make these estimates and when. Also whether you do withdraw your objections as stated in said letter, or still insist on same. Also if you insist on work being replaced as stated in said letter.
“Mr. Algate is entitled to the information that he may know how to proceed and is entitled to his money, in order to continue to finance the work.”

On September 17th he sent to the city council copies of the correspondence and resolution accompanied by the following letter:

“Lansing, Mich., Sept. 17, 1911. “Hon. Common Council,
“City of Lansing.
“Gentlemen:
“Annexed you will please find copy of a letter to City Engineer Sparks; also copy of letter from said City Engineer Sparks to John Algate; also resolutions of common council to John Algate.
“Kindly advise us as to attitude of city in reference to matters mentioned in said letters. Your early advice will be kindly appreciated.”

This communication was received and placed on file, but not answered. On August 23, 1912, this action was begun.

By the opposing claims of these litigants, as set forth in their elaborate pleadings, each charges the other with numerous violations of their contract in many detailed particulars.

The theory of plaintiff’s declaration is a hostile attitude towards him manifested in the inspection of the work, which was unjust, captious, oppressive, and in effect fraudulent, in that proper material was repeatedly rejected, and the work objected to when being properly carried on in strict compliance with the contract; that the inspector hampered and interfered with the progress of the work by abusive and profane language and brutal conduct towards plaintiff’s employees to an extent which rendered it difficult to keep men on the job, and captiously ordered work which complied with the contract to be changed and done again, refusing estimates and payments for work done, and not objected to, until such orders were obeyed, and by such refusal deprived plaintiff of the necessary means to continue.

The theory and claim of defendant, as indicated by its special notice under a plea of the general issue and lengthy cross-examination of plaintiff’s witnesses, is that plaintiff persisted in slighting the requirements of his contract by faulty construction and inferior material, in defiance or evasion of the inspector, repeatedly violating the terms of his contract, and finally, when compliance was insisted upon, abandoned it.

Most of these conflicting claims presented by the pleadings involve issues of fact and call for but incidental consideration as the case is now presented by this bill of exceptions on a directed verdict, for in this inquiry plaintiff’s testimony must be taken as true, and considered in the light most favorable to him.

On the trial of the case defendant offered no evidence, but moved the court for a directed verdict in its favor at the conclusion of plaintiff’s testimony, for the following reasons:

“(1) Under the undisputed evidence in this case it appears that the plaintiff, on September 1, 1911, abandoned all work upon the contract which he had entered into with the defendant to construct the sewer in question, alleging for his reason therefor that the city engineer had refused to make and furnish to him an estimate of work done and material furnished, up to and including August 18, 1911, and not previously estimated, which estimáte under the undisputed • evidence in this case he was not then entitled to demand and receive.
_ “ (2) For the reason that the plaintiff admits in his testimony that the city engineer had rejected certain brick which plaintiff was using in the construction of said sewer and notified the plaintiff not to use them in such work, and that he, the plaintiff, disregarded such directions of the city engineer and did use such brick in such work after he was so notified by the city engineer not to use them, and that it was for the work thus done with such rejected brick that he claims he was entitled to such estimate from said city engineer.
“(3) Because there is no evidence in this case from which any inference can be drawn that the act of the city engineer in rejecting the brick in question and notifying the plaintiff not to use them was not the exercise of his honest judgment.
“ (4) Because the plaintiff did not, before he abandoned work upon said sewer, bring to the notice of the common council of the city of Lansing his reasons for such abandonment.”

This motion was granted on the ground, as indicated in the reasons stated when directing a verdict, that the contract made the engineer an arbiter, and his decision on questions arising under it was final and conclusive, unless he acted fraudulently, and in bad faith, of which there was no competent proof; that the engineer had a right to and did reject the brick, and “it was his duty not to give plaintiff an estimate upon the city to pay for something he had ■rejected;” that plaintiff’s own testimony showed he first violated the contract, abandoned the same, and did not fully perform it, and therefore could not recover upon it.

In leading up to these conclusions, the court stated plaintiff’s rights in case of defendant’s default in payments as follows:

“If he was entitled to an estimate, and without reason it was refused him, then he was justified in abandoning his contract, because one who performs work for another upon an agreement that from time to time as he has performed part of it he shall have his pay is entitled to his pay, and, if he does not get it when he is entitled to have it, then he need not proceed with further performance of the contract. But if he demands an estimate, and because he does not get it he abandons the contract and later on brings suit on the contract, he must come prepared to show that he was justified in abandoning it; the justification being that he was entitled to his estimate, and it was refused him.”

The contract provided upon the subject of partial payments as the work progressed:

“Estimates for partial payments will be made by the engineer, upon a request of the contractor, if made prior to Saturday'of any week; twenty-five per cent, will be retained therefrom until completion of the work.”

Under this provision of the contract, plaintiff had received from the engineer 15 different estimates as the work progressed. While he complains these were made on a wrong basis, too small, and unfair to him, because they were based on a prorating of the percentage over the entire cost or contract price of the system, and not on the relative value of the work actually done, he states that he submitted to it so long as he was financially able to continue the work, as under the contract he would have just that much more coming to him when the contract was completed, but that, when he asked for the estimate, a refusal of which compelled him to cease operations, not only were his previous estimates too small under the contract, but from three to four weeks’ work had been done since his last estimate, during which time he had built a receiving chamber and 250 feet of the trunk sewer, only 32 feet of which contained the red brick objected to, and there was due him for such work, most of which was not objected to, about $2,000.

While plaintiff has numerous complaints of unfair treatment, in violation of the contract, his ultimate grievance which culminated in his ceasing work is, not that he was unjustly forbidden to use brick which fully complied with the specifications, for he testified that he did not stop work for such reason, but that defendant breached the contract by the refusal of an estimate and payment to which he was entitled and so crippled him financially that he did not have the requisite funds and could not continue. His own testimony confines him to this as the test question in the case and we think defendant is equally limited to such issue by its motion for a directed verdict based on plaintiff’s undisputed evidence.

Irrespective of their previous differences, work in performance of the contract progressed, and payments were made from time to time on the engineer’s estimates, with no indication that either party contemplated terminating it because of a breach by the other until the difficulty arose over the use of the red brick, and then the work continued for a time, and more of the sewer was constructed with brick approved by the engineer. Plaintiff thereafter was apparently doing the work in a manner and with material satisfactory to the inspector and proposed to continue if he could secure the payment he claimed was due him. He quit because unsuccessful in that particular, and defendant demanded in writing that he should continue.

The question on this record, therefore, is whether plaintiff, by his evidence, has prima facie established his right to discontinue work and bring this action for breach of contract, for the reason that defendant’s inspector refused to give him an estimate, and defendant refused him a payment to which he was entitled.

No question is raised as to tile laterals to be constructed under the contract. Of the large, egg-shaped trunk sewer plaintiff constructed about 3,000 feet, and the break between the parties arose over the use of the forbidden red brick in 32 feet of this construction. All the brick used was furnished by Clippert & Spaulding, a local firm of brickmakers. They manufactured both a white and red sand brick and a cheaper clay or mud brick. Their white sand brick had been in use for construction of sewers in Lansing for about 12 years, and was mostly‘used on this contract. At the time plaintiff used the red sand brick Clippert & Spaulding were unable to furnish the white. Plaintiff claims, and testified, that the red brick complied fully with the specifications, were equally good and more expensive than the white, costing from $1 to $2 a thousand more, that the cheaper mud brick, which the engineer later authorized him to use, were laid in the sewer, and connected to the red, so as to form one continuous construction, in the presence of the engineer.

The specifications in the contract relative to brick were as follows: .

“All brick used in the work must be sound, hard, and thoroughly burned through, clean and free from lime. None but whole brick are to be used except by permission of the engineer. All brick must be thoroughly soaked in water before being used. All brick which break under this test must be rejected. If required by the engineer, the contractor must provide a suitable tank in which to soak the brick for a period of twelve hours. All brick must be well wet immediately before being used in dry, hot weather.”

It is plaintiff’s testimony that the red brick as laid fully complied with all these requirements. George Clippert, who had been engaged in manufacturing brick for over 40 years, and was a member of the firm which made these, testified that the red brick fully complied with the specifications in every particular; that they were as good as the white for sewer purposes ; that the clay for their manufacture came from the same bed; that they were mixed the same, put through the same machines, and burned in the same Mins, but some burned red and some white, the latter predominating; that the red, on account of their more attractive color, were more desirable for facing brick, and brought a better price; that they were otherwise practically the same and equally durable as the white. Of the reason for delivering plaintiff the red brick, he says:

“Why, I ran out of the white ones, and I had some of them red ones on hand, and I delivered them, even though these brick were more expensive than the others; that was nothing to me. I would not stop my work on account of the brick, not when I had any brick of any kind.”

Spaulding, the other member of the firm, testifying to the same effect, said:

“The reason why they are called sand brick is you have to mix them with sand to make them, for if we do not they would crack, if they are not strong. We have some clay that burns red and some that burns white. We have to mix the sand with both of them; other than the color they are the same brick, only the difference in the color. The clay with the white are made out of magnesia, and the red has more iron sub«tance in it.”

The written notice given plaintiff by the engineer to replace the red brick, in default of which an estimate would be refused, required that he replace the same “according to the specifications for the construction of said sewer,” thus directly referring his demand to such specifications, and implying that in his judgment they did not comply therewith. This necessarily raised a question of fact, unless the decision of the engineer was final and conclusive. The court held that under the terms of the contract it was, unless plaintiff showed the inspector acted dishonestly and in bad faith, saying:

“Under this contract he could not use any material unless it was approved by the engineer or the inspector. I do not understand, however, that that would require the engineer to be there and pass upon each particular item of material going into the work. If the engineer was about and made no objection to material that was visible and being used, then it could be treated as approved. But when the engineer told the plaintiff that he must not use the red sand brick, then the red sand brick had not only not had his approval but his express rejection, and it was the duty of the plaintiff to immediately cease using them, because he had contracted that he would not use material except as it had been approved by the engineer.”

The then charter of defendant provided that the city engineer should “have the supervision and charge of the construction and repair of all sewers and drains whenever and wherever ordered by the common council.” In harmony with this provision the form of contract for sewer work previously adopted by the common council and used in this case designated him as inspector to have charge of and supervise the contemplated construction. As its official and employee he was defendant’s agent and representative in protecting its interests and seeing that the work was performed in compliance with the contract. This, however, would not preclude the contracting parties from agreeing that he should also be the arbitrator between them and his decision final in any matter in difference. ' If they did so agree, his determination would be conclusive and binding between them, to the exclusion of any appeal to the courts, unless he acted in bad faith and fraudulently.

On the subject of inspection this contract provides that:

“Whenever the word ‘inspector’ is used in these specifications it is understood to refer to the city engineer or, in his absence, such special inspector as may be appointed by the council or engineer for the purpose of supervising the work.”

A special inspector was appointed by the engineer and inspected the work under his supervision. The most stringent provisions in the contract as to inspection, and those upon which defendant relies, are:

“All materials of whatever nature required in the work are to be furnished by the contractor, and must be approved by the engineer before being used, and the contractor must furnish full facilities for such tests as may be required. * * *
“All work to be done in a neat, substantial, and workmanlike manner, to the satisfaction of the common council, under the direction of the engineer, whose orders are to be obeyed in all matters pertaining to workmanship or materials, subject to these specifications.”

The contract nowhere provides in exact words that the engineer or inspector shall be an arbitrator, or that his decision shall be final, in the clear and concise language commonly found in contracts construed as appointing an arbitrator. It is well settled that the contracting parties may agree to the arbitrament of even an interested party, if they see fit, and when they do so with full knowledge they must abide the result, in the absence of fraud; but there must be no room to doubt that such was the intention of the parties. The agreement must be express, not implied. Central Trust Co. v. Railway Co. (C. C.), 70 Fed. 282; Mercantile Trust Co. v. Hens ey, 205 U. S. 298 (27 Sup. Ct. 535, 10 Am. & Eng. Ann. Cas. 572). In Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78), relied upon in this case as authority for directing a verdict, the contract under consideration provided :

“In case of misunderstanding of the meaning of such plans, specifications, and contract, or any of them, the engineer’s interpretation shall be taken as final.”

Equally clear and conclusive language appears in the contracts construed in Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Guthat v. Gow, 95 Mich. 527 (55 N. W. 442) ; Moran v. Schmitt, 109 Mich. 282 (67 N. W. 323) ; Kelley v. Public Schools of Muskegon, 110 Mich. 529 (68 N. W. 282).

While this contract confers upon defendant and its engineer strong controlling authority over the construction during its progress, in the particulars that material furnished by the contractor must be approved by the engineer before being used, and the work must be done to the satisfaction of the common council, under direction of the engineer, whose orders are to be obeyed, the requirements of the contract are yet made the final test by the provision that such matters are “subject to these specifications.” This is emphasized in behalf of defendant by the further provision that:

“Any direction in relation to the work that may be given by said inspector in contravention to the provisions of the plans or specifications shall-in no wise be binding upon the city.”

While the work is required to be to the satisfaction-of the common council, this is not of that class of satisfaction contracts involving the personal sentiment, taste, or sensibility of the party to be satisfied, in which case his expression of satisfaction or dissatisfaction cannot be questioned, but involves, as in Schliess v. City of Grand Rapids, 131 Mich. 52 (90 N. W. 700), “gross considerations of operative fitness and mechanical utility which are capable of being seen and appreciated by others,” where compliance with the requirements of the contract is held to import satisfaction.

The proposition is urged in behalf of defendant that:

“It makes no difference in what capacity the city engineer acted, whether as an arbitrator between the parties, or as a supervising agent for the city; the agreement was that the brick should, before being used, be passed upon by the city engineer and approved by him. It would be unreasonable to suppose that the contractor had the right to furnish such brick as he saw fit to use, place it in the sewer against the objection of the city engineer, go forward with the work and construct a large sewer and cover it up, and then try out the question as to whether the brick were good and complied with the specifications in a lawsuit afterwards, when it would be impossible to determine from examination whether such was the case.”

As a general proposition this contention, as stated, presents a reasonable rule of construction, but applied to the facts of this case, disclosed by the thus far undisputed testimony, it becomes of less force.

It is plaintiff’s claim that the brick in dispute not only complied with all specifications of the contract, but that in effect they had been passed upon and approved by the engineer, inasmuch as they were shown by the testimony to be of the same quality, from the same clay bed, made by the same parties, in the same manner, and with the same machines as that previously approved and used in the construction; the only difference being the color, in relation to which the contract contained no requirement. Plaintiff’s testimony also showed that it was yet possible to determine from examination whether they were good and complied with the specifications, there being no difficulty in traversing the interior of this large, egg-shaped sewer and making a thorough inspection and comparison of all its parts, and that this had been done, with an acetylene lamp, prior to the trial; that most of the red brick which he was directed to replace had been laid before the engineer ordered him not to use them; and that after such order, and before the clay brick he was authorized to use came, he had laid only from 500 to 700 red brick, and then under the engineer’s orders proceeded with the clay brick.

Plaintiff’s evidence also shows that the value of the work done subsequent to the last estimate, exclusive of the red brick ordered replaced, amounted to approximately $1,600, and that to replace the red brick would cost about $200.

It is admitted by plaintiff that he laid some red brick after the engineer told him not to do so, and that he did not remove those he had laid when ordered to do so. On the strength of these admissions a verdict was directed for defendant under the theory that the decision of the inspector was conclusive, and in disregarding it plaintiff breached the contract.

There is no language of finality in the contract which in our view makes the decision of the inspector an arbitrator between the parties to the extent that his decision is binding and conclusive to the exclusion of an appeal to the courts for an adjudication of whether the material furnished by plaintiff in truth complied with the specifications. For the time being, while the work was in progress, the engineer was vested with authority to judge, direct, and reject, to compel faithful performance, and, as suggested by the trial court, to refuse an estimate upon the city to pay for something he had rejected. While he had rejected this 32 feet of red brick sewer, he had not rejected the other $1,600 worth of work done since the last estimate. The notice he gave plaintiff stated, “No estimate for work done will be given you until same is replaced according to specifications for the construction of said sewer.” What portion of the work done was not in accordance with specifications or in what particular is not stated. It does appear that no answer was given to inquiries upon the subject, and all estimates were cut off, but the work ordered continued.

It also appears that both parties thereafter recognized the contract as in force, and construction of the sewer was continued by plaintiff beyond the red brick, over which the difference had arisen, under direction and inspection of the engineer, with work and material to which no objection was made; operations only being suspended when lack of funds, owing to refusal of estimates for work performed, rendered continuance impossible. Under the contract 25 per cent, was retained on all work until its final completion and accéptance by the council, and plaintiff’s bond for faithful performance required him “to keep the whole work in perfect repair for a period of twelve months from its acceptance by the council as completed.”

In the case of Montgomery v. Mayor, 151 N. Y. 249 (45 N. E. 550), under a contract for construction of a sewer providing for the appointment of an inspector by the park commissioners to see that the material furnished corresponded with the plans and specifications, whose certificate approved by the engineer was a condition precedent to payment, the court said, as can be said here, that the effect of the contract was to vest in the inspector a right or capacity to pass upon the performance of the work “which came very near to constituting him, as between the parties, the judge as to that matter,” and further said:

“For all that the case discloses, there was nothing to prevent the plaintiffs going on with the work and relying upon their ability to prove, if upon completion the city should refuse to make payment, that the work and materials were up to the requirements of their contract.”

In Gearty v. Mayor, 171 N. Y. 61 (63 N. E. 804), under a contract and contentions analogous in many respects to the instant case, touching the rights of the parties and the course to be pursued, the court said:

“We thus have a situation where each party charges the other with breach of the contract. The city insists that the work was improperly done, and the contractor urges that the commissioners are arbitrarily or improperly exercising the powers vested in them by the contract. Questions of fact and law are thus presented, which can only be determined by a trial.
“It is very clear that the plaintiff could have stopped work as ordered by the engineer of construction and stood upon his contention that the work had been properly done, brought his action to recover for labor and materials performed and furnished under the contract, and claimed his prospective profits. Smith v. Wetmore, 167 N. Y. 234 [60 N. E. 419] ; Roehm v. Horst, 178 U. S. 1 [20 Sup. Ct. 780]. * * * The fact that this work was to be performed to the satisfaction of the commissioners and their engineer of construction is not conclusive against the plaintiff. That power cannot be exercised in an arbitrary manner, but reasonably and in accordance with fairness and good faith.
“This court has frequently held that under such a provision, that which the law will say a contracting party ought iri reason to be satisfied with, that it will say he is satisfied with.”

Many of plaintiff’s assignments of error relate to adverse rulings on the admission of testimony offered, made upon the theory that the inspector was a final arbitrator whose decisions were conclusive and could not be questioned. In view of what has already been said, we think those questions, as now presented, are not likely to arise on a retrial of the case, and therefore need not be reviewed in detail.

We conclude, from the copious record before us, that this is a case which, on a full trial, inevitably involves, not only interesting questions of law, but numerous and serious issues of fact for a jury, that plaintiff’s evidence prima facie established his right to an estimate, at least for some amount', on work which had not been questioned, and therefore his right, on refusal of payment, to bring this action for breach of contract; therefore defendant’s motion, at the conclusion of plaintiff’s testimony, for a directed verdict in its favor, should have been denied.

The judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
      In re QUINN’S ESTATE. McCartney v. saul.
    1. Trial — Jury—Entertainment of Juror by Attorney — Prejudicial Error — Attorney and Client — Misconduct.
    Where one of the jurors at the trial of a hotly contested will case was entertained at the house of the attorney for the prevailing party on Thanksgiving day, during the progress of the trial, among the members of a club which had been invited before the trial, and the attorney subsequently retired from participation in the case, but acted as a witness, and the court had warned the jurors not to talk with the parties or their attorneys, it was erroneous to deny proponent’s motion for a new trial on the ground of prejudicial influence.
    2. Same — New Trial — Grounds.
    Without reference to the question of the correctness of the verdict, a new trial will, in most cases, be ordered, where a juror has been fed or entertained by the successful party or his counsel during the progress of the trial.

    3. Evidence — Witnesses—Attorneys—Cross-Examination.
    On the trial of a contest over decedent’s will, which contestants claimed was void for incompetency of the testatrix, an attorney for the contestants who had given testimony tending to show the mental and physical condition of the testatrix at times when he called upon her in relation to a certain proposed compromise of pending or threatened litigation, should have been permitted to answer, on cross-examination, what was his purpose in making the visit and whether he was there at another time.
    4. Wills. — Evidence—Extent of Cross-Examination.
    In the trial of a contested will case it was improper to exclude cross-examination of the attorney for contestants which was offered to show decedent’s motive for changing her will to the disadvantage of the contestants, because they threatened to commence certain litigation.

      Error to Shiawassee; Miner, J.
    Submitted January 27, 1914.
    (Docket No. 89.)
    Decided June 1, 1914.
    Margaret McCartney and others presented for probate the will of Bridget Quinn, deceased, which was admitted to probate in the probate court and contestant Margaret Saul appealed to the circuit court. Judgment for contestants and proponents bring error.
    Reversed.

      Neil R. Walsh and Edwin H. Lyon, for appellants.

      A. L. Chandler and George E. Pardee (John T. Mc-Curdy, of counsel), for appellees.

       On the question of treating jurors as ground for new trial, see note in 19 L. R. A. (N. S.) 733.

   Steere, J.

The writ of error herein brings before the court for review proceedings had in the circuit court of Shiawassee county in contesting the validity of the will of Bridget Quinn, who died in the city of Owosso November 28, 1911, at the age of 84 years, leaving an instrument as her last will and testament, executed November 16, 1911. Said instrument was duly probated in the probate court for Shiawassee county, and contestant Margaret Saul, a sister of deceased, appealed to the circuit court, where trial by jury was had resulting in verdict and judgment sustaining her contention and adjudicating said instrument invalid. The validity of said instrument was contested on the grounds that, at the time of its execution, deceased was “mentally incompetent to make the will, and was unduly influenced and coerced to sign (if she did so sign) said alleged will.”

The amount of deceased’s estate is not definitely disclosed, but sufficient appears in'the record to indicate it was of considerable proportions and adequate to develop a bitter and exhausting contest over it amongst her numerous surviving relatives. By the terms of the instrument in controversy, which contained 14 bequests and devises, she gave an adopted son named W. W. Quinn, of Battle Creek, certain real estate in Owosso; to two nieces, Mrs. McCartney and Mrs. Cunningham, certain real estate in Owosso, with a proviso that the latter, upon payment to her of $1,000, should deed her interest therein to the former, and to the same parties also other described real estate with her household effects; to a young woman, Esther Lyke, who had lived with her many years, $200; to two of her nephews, and her four brothers and sisters, including said contestant Margaret Saul, $5 each; $30 for five low masses for certain named relatives; and the balance of her estate in trust to Frank McCartney, husband of a niece, to be used for the benefit of the Catholic schools of Owosso. She had made two previous wills of similar import, but designating different executors; the second will having been executed May 20, 1911, about six months prior to the one in question.

The scrivener, á reputable attorney of Owosso, who drafted those wills and also the one in question, testified that he had no knowledge of what property she owned, or of the relatives whom she made objects of her charity, other than that shown by the wills; that he received suggestions for their contents only from her, and the occasion of the last one was her desire to make some changes relative to disposition of the residue of her estate and the amount given to certain beneficiaries, one of which was a reduction of the bequest to Margaret Saul, the contestant. Said attorney, who was later one of the attorneys for proponents, and deceased’s family physician were the subscribing witnesses, and both testified that, at the time of the execution of her will on November 16, 1911, her mental condition was good; that in their opinion she was capable of understanding the provisions of the will, knew what property she possessed and who were the objects of her bounty. Various relatives and other witnesses also testified that she was then possessed of all her faculties, of good understanding, bright, and mentally sound.

To the contrary it was claimed, and testimony was produced tending to show, that she was then hopelessly of weak and unsound mind, childish, forgetful, possessed of hallucinations, incoherent in her talk, and often during that summer and fall lapsed into a comatose condition from which it was difficult to arouse her, and that she was mentally incapable of understanding or executing the instrument in question, or any other matter of importance and was hopelessly stricken with arterio sclerosis, which an expert, of 18 years’ general practice of medicine, defines as a hardening of the arteries, usually expected to be found in people above 60 years of age, progressive in its nature, and by reason of which, in his opinion, the average person of 70 years of age would be partially incompetent to make a will, and would require some assistance “to get it clear, concise, and make it legal” (although a less degree of mental capacity is requisite for the execution of a will than for making a contract) . Upon this paramount issue of deceased’s mental capacity when the instrument in question was executed, as well as that of undue influence exerted over her by certain relatives, a volume of testimony of wide scope was introduced, professional and nonprofessional, covering her life habits and history, ranging through her likes and dislikes, pursuits, associations, quarrels, language, appearance, and state of health, as well as her mental and physical condition at or about the time of executing the contested will. For the present disposition of this case it is not deemed essential to consider this voluminous testimony at length upon all the many questions raised by the numerous alleged errors assigned by appellants.

When trial of this case was entered upon, after the jury was selected and sworn, the court, in the presence of counsel, very properly took pains to instruct the jury in a preliminary way as to their duties and deportment during the progress of the trial, cautioning them to avoid any conduct which might possibly give rise to suspicion of outside influence, saying, amongst other things:

“This is a case of interest to both parties, and both parties have a right to a fair and impartial verdict at your hands, and so, in order to accomplish that, I desire you to be careful and not talk with any one, witnesses or attorneys, who have anything to do with this case,” etc.

Under this very proper rule of conduct, so clearly stated, and in view of the rather unusual and delicate situation which presented itself in the particular that three of the attorneys in the case were also important witnesses, one for proponents and two for contestant, testifying positively and at length in favor of their respective clients upon the controlling issue of deceased’s mental competency, we are impressed that the following circumstance of familiar intercourse in violation of the mandate of the court should not be lightly disregarded. It was shown that a juror who sat in the case was, during the progress of the trial, entertained at the home of one of the witnesses and attorney of record for the successful litigant, inadvertently and innocently it is claimed, and may be conceded, but nevertheless an undisputed fact. This was learned by appellant’s counsel after the trial was concluded and presented to the court by affidavits, as one of the grounds of a motion for a new trial. Counter affidavits were filed, not denying the essential facts as above stated, but in explanation and extenuation of them. This case was tried in November, and, ■ while it was in progress, Thanksgiving day intervened. On that day the attorney and his wife entertained'at their home and served refréshments to the members of the Maple River Farmers’ Club. The juror in question, not a member of .that club but of a kindred organization, was present on that occasion and partook of the hospitalities. It is stated in the counter showing that he was there by reason of an invitation extended to him and his wife, before com-r mencement of the trial in question, in connection with other members of the kindred club to which the juror belonged, the invitation not having been participated in or known to the attorney; that the trial was not mentioned or in the minds of either of the parties, and no special attention or favors were shown the juror beyond the usual courtesies of hospitality extended to all present; that the attorney, though his firm was of record as attorneys in the case for contestant, had no interest in the result, had withdrawn from participation in the trial, owing to his being a witness, and had when on the witness stand so stated; that the whole transaction complained of was a mere innocent incident of ordinary hospitality which had its inception before it was known the guest might be a juror in the case, devoid of suspicious circumstances, was not designed to, could not, and did not, exert the slightest influence on the juror, who was a reputable farmer of strict integrity, nor bias him in performing his duties as a juror. It is also shown, and urged' by appellants as directly prejudicial, that on the occasion of this social function, in a general discussion of the welfare of the Maple River Club, the attorney emphasized his kindly disposition towards such organizations by stating that, if the club felt too poor to pay the State dues of 20 cents per family, he would pay them while he lived, and arrange in his will for them to be paid as long as the club existed, and, in response to an expression by the juror or “wonder” if he would make such a promise to his club, made some facetious reply indicating a friendly inclination, hampered by the results of a recent campaign. It is urged that “no man, be he ever so honest, could feel otherwise than touched by the munificent offer” to pay the dues for those who were or felt too poor to pay them and to perpetuate such payments by will after the donor had joined the silent majority, followed by expressions of regret that his limit of financial resources only prevented extending the aid to other kindred organizations.

It was the opinion of the trial court that sufficient facts were not shown to demand granting a new trial, referring to the high character and integrity of the parties involved, and the fact that, after the selection of a jury, the attorney withdrew and took no further part in the trial of the case except as a witness.

Conceding that the juror knew or believed that the attorney had retired as such from the case and was not interested in the result, he yet knew that the attorney was a witness and that the court had emphatically instructed the jurors not to even “converse with any one connected with the trial of the case,” saying, “That means the witnesses, the parties, and the attorneys.”

It is undisputed that the juror violated the plain and positive instructions of the court, thus giving occasion for the imputations which he was cautioned to avoid, and affording special opportunity for the exercise over him of improper influences, was either party so disposed. The gracious hospitality and pleasant entertainment extended on that occasion to the juror and other guests, by the host and hostess in their own home, with congenial conversation on a subject in which the juror was interested, disclosing on the part of the host a generosity and good will towards organizations with which the juror was affiliated, would naturally give rise to an especially kindly and fraternal feeling between them. Just to what extent the attorney was connected with the case is not the controlling question. He was an important witness. The record shows that he was present at the beginning of the trial, sat by and consulted with attorneys for contestant until half an hour after the jury was selected, and while on the witness stand testified on cross-examination that his firm was employed by contestant. The juror whom he helped select, and whom he entertained as an invited guest at his home during the progress of the trial, unknown to opposing counsel, participated in a verdict in this case supported by his testimony and favorable to his firm. On this question it is not necessary that it be shown a bad motive or intent existed in the conduct of counsel or juror, or that the impropriety complained of did in fact exert an influence resulting unfavorably to the party defeated.

As was said in Solomon v. Loud, 173 Mich. 233 (140 N. W. 651):

“The effect of the misconduct upon the determination of the particular case is not apparent. But when misconduct, calculated, if not intended, to have a generally pernicious effect upon legal proceedings, is traceable to the prevailing party in such proceedings, we are of opinion that reason appears for treating the trial as a mistrial and for setting aside the judgment.”

In 2 Thompson on Trials, § 2564, it is said:

“Where a juror has been treated, fed, or entertained by the successful party, or his counsel, or at the expense of either, a new trial will, in nearly all cases, be granted. This rule is, by most courts, deemed indispensably necessary to preserve the. integrity of juries. It being, as already stated, a rule of public policy, it will be enforced without reference to the question whether or not the verdict was right.”

This general rule is further sustained and elaborated by apt language in People v. Montague, 71 Mich. 447 (39 N. W. 585) ; Churchill v. Alpena Circuit Judge, 56 Mich. 536 (23 N. W. 211) ; People v. Hull, 86 Mich. 449 (49 N. W. 288) ; Cooper v. Carr, 161 Mich. 405 (126 N. W. 468) ; State v. Hartmann, 46 Wis. 248 (50 N. W. 193); Knight v. Inhabitants of Freeport, 13 Mass. 218; Commonwealth v. Roby, 12 Pick. (Mass.) 496.

We are impelled to conclude that the conduct complained of, though perhaps inadvertent, is of such a nature as to require the application of that rule.

Another assignment of error calling for serious consideration is the refusal of the court to permit answers to certain questions asked in cross-examination of one of contestant’s attorneys, who was also an important witness to facts bearing on deceased’s mental competency. He testified to having visited deceased’s home on three different occasions during the month the will in controversy is claimed to have been executed, at which times he saw but was unable to converse with her owing to her condition; that on the first occasion she was lying on a couch with her eyes closed, and Margaret McCartney, who was apparently in charge of the household, was unable to arouse her, although she took hold of and shook her, without any apparent effect; that on the two subsequent visits her physical and mental condition were apparently the same; that witness observed her lower jaw somewhat dropped, muscles of her face apparently relaxed, her complexion of extreme pallor, “and with every appearance of a person knowing nothing of her surroundings.” Objection was sustained to the following questions asked by appellants’ counsel:

“Q. At that time [referring to the second visit] you went there for the purpose, did you not, of making a demand for retraction of an alleged slander by Mrs. Quinn, and for the purpose of securing from her a money settlement?
“Q. Did you not go to the house of Bridget Quinn after this occasion that you talked with Dr. Willson, on business matters, in relation to a suit you proposed to start against Mrs. Quinn?”

The witness should have been permitted to answer these questions. The fact that witness visited her to negotiate in regard to an important business matter relating to a proposed lawsuit, and contemplated settlement involving a substantial sum of money, and having on the first visit ascertained her condition, as testified to, returned a second and third time on the same mission, was clearly competent as bearing on the weight of his testimony touching her mental condition.

The competency and bearing of this inquiry is more clearly disclosed, we think, in connection with a later ruling, refusing counsel permission to show by Margaret McCartney more fully what was said and done on the occasion of such visits. Counsel for proponents, after an adverse ruling, being permitted to state privately the purpose of the proposed testimony, said:

“We expect to show by this witness that Mr. Pardee, representing the McNamaras, called there and told the witness that he represented the McNamaras in a proposed slander suit, and that Mrs. Saul was their witness in that respect to prove the fact; that upon all of the visits he made there it was for the same purpose, and the facts communicated by Mr. Pardee to Mrs. McCartney were communicated by her to Mrs. Quinn, and it had the effect of showing her that Mrs. Saul was taking steps adverse to Mrs. Quinn desiring to collect the sum of $500 in said slander action, and therefore was made the basis for the change in the will which was subsequently made.”

We think, under the circumstances disclosed, full latitude should have been given to the proposed line of cross-examination of the attorney, and that, as bearing upon deceased’s mental attitude and reason for changing her will, the offered testimony of Mrs. McCartney was competent.

For the reasons stated, the judgment must be reversed, and a new trial granted.

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


author:
Bird, J.
      Ostrander, J.

text:
    SYLVESTER v. SYLVESTER.
    Divorce — Annulment—Marriage.
    Evidence of the complainant in divorce proceedings that his wife had been guilty of improper relations with other men prior to her marriage, met by her testimony that the complainant also had illicit relations with her, held, by an evenly divided court, to be insufficient to sustain the averments of the bill.
    Appeal from Wayne; Mandell, J.
    Submitted October 14, 1918.
    (Docket No. 42.)
    Decided June 1, 1914.
    Bill by Ernst Sylvester against Della Sylvester for divorce. From a decree dismissing bill and cross-bill, complainant appeals.
    Affirmed.

      Louis H. Wolfe, for complainant.

      Ralph S. Moore, for defendant.
   Bird, J.

By this proceeding the complainant seeks to have his marriage with defendant annulled on the ground of her previous unchastity. The defendant answered the bill, and charged complainant with extreme cruelty, and prayed for affirmative relief. After hearing the testimony offered by the parties, the chancellor refused to grant relief to either, and accordingly dismissed both bill and cross-bill. From this decree complainant has appealed.

These parties were married in January, 1912, after an acquaintance of six months and a courtship of four months. After marriage they lived with complainant’s parents in the city of Detroit for a time, and later they lived at a boarding house until they separated in August, 1912. At the time of marriage complainant was 23 and defendant 21 years of age. Complainant charges that he was induced to marry defendant by reason of her representations that she was a chaste girl; that before marriage he talked with her concerning her chastity, and she assured him that she had never indulged in sexual intercourse. He gives as a reason for his great concern in this regard that the Lutheran Church, to which they belonged, lays great stress on the chastity of women. He asserts that he married defendant believing and relying upon these representations, and that they lived happily for about four months, when he began to hear rumors of her previous unchastity; that an investigation convinced him of the truth of them, and he at once left her, and has neither lived nor cohabited with her since. Upon the hearing three witnesses testified that defendant was pregnant and suffered a miscarriage in February, 1911. One of these witnesses was a nurse who attended her on that occasion. It was further shown that defendant had sexual intercourse on several occasions in the month of October, 1910, with a young man whose name was given upon the hearing. Defendant afterward testified in her own behalf, but she made no denial of these charges; therefore, it is fair to assume that they are true. Defendant admitted in her answer and also in her testimony that she suffered a miscarriage about a month after she was married, but she testified that complainant was responsible for her condition, as he was intimate with her previous to their marriage. It having been established without contradiction that defendant was sexually intimate with another in October, 1910, that she gave birth to twins 11 months before marriage, and it having been established by her own admission that she was pregnant at the time of marriage, we think a case was made entitling complainant to relief. Harrison v. Harrison, 94 Mich. 559 (54 N. W. 275, 84 Am. St. Rep. 364). It is true, as argued, that if complainant was sexually intimate with defendant before marriage, he is not entitled to the relief sought. He denies, however, that he had any such relations with her before marriage, and his denial is given credence by the admitted conduct of defendant with others before marriage. The burden of proof upon this question rested with her (Thomas v. Thomas, 19 Neb. 81 [27 N. W. 84]) and conceding that her testimony is entitled to equal weight with his, she has failed to discharge that burden.

Defendant’s showing fell short of making a case of extreme cruelty against complainant. She testified to a few instances of personal violence and to one occasion when he threatened to kill her. Her testimony in this regard lacks corroboration, except in a single instance, and is denied by complainant. Defendant’s charges that complainant made love to their landlady are denied by them. Both complainant and defendant agree that they lived happily together until the last month or six weeks before they separated, and a reading of the record leads to the conclusion that whatever there was in his treatment of her which merited criticism occurred in the last six weeks they were together, and was due to quarrels growing out of her deception as to her past life.

It is also contended by defendant that the allegations of the bill are insufficient to admit of proof that defendant was pregnant at the time of the marriage. The amendment to the bill, allowed upon the application of complainant at the hearing, fully meets this objection.

The decree should be reversed, and one be entered annulling the marriage; neither party to recover costs.

Brooke, Steere, and Moore, JJ., concurred with Bird, J.

Ostrander, J.

The complainant seeks a decree annulling his marriage with defendant, which took place January 11, 1912. They ceased cohabitation in August, 1912, and the bill was filed September .17, 1912. It is established, I think, that prior to her marriage the defendant had illicit sexual relations with some man or men in October, 1910, and that as a result there was a miscarriage in February, 1911. The serious question is whether complainant had not such relations with her before their marriage. In her answer she tenders such an issue, charging upon oath that while they were engaged to be married complainant had sexual intercourse with her, which resulted in a miscarriage after they were married. This issue she maintains with her testimony, stating that, discovering her condition, she wrote to him and" took the matter up with his father and mother, who insisted they be married. After marriage they lived with complainant’s father and mother for some time, and about a month after the marriage she suffered a miscarriage. A doctor attended her. When asked if defendant had a miscarriage after their marriage complainant answered, “I don’t recollect.” The father and mother of complainant were not called as witnesses. Assuming that the testimony of each of the parties is apparently entitled to equal credence, I am of opinion that the testimony of defendant must be held to preponderate, for the reason that no attempt was made to disprove her statements by calling either of the parents of complainant, or by excusing the calling of them, and by the further fact that complainant does not deny that defendant suffered a miscarriage after marriage as she says she did. The testimony of defendant is specific, and affords the opportunity for its complete refutation by other witnesses, namely, the father and mother of complainant and the physician who attended her. It is met by complainant’s denial of the antenuptial intimacy. The circuit judge had the advantage, not an inconsiderable one in such a case, of seeing the parties, and the relief asked for by complainant was refused.

For these reasons I feel compelled to disagree with my Brother Bird, and to hold that the decree of the court below should be affirmed, with costs to defendant.

McAlvay, C. J., and Kuhn and Stone, JJ., concurred with Ostrander, J.


author: Bird, J.

text:
    MEYER v. MICHIGAN CENTRAL RAILROAD CO.
    Carriers — Snow and Ice — Negligence—Railways.
    While it is the duty of a railroad company to provide safe platforms, free from snow and ice, if reasonable opportunity to remove it occurs, there is no obligation requiring such carriers to keep the platforms of its cars entirely free from snow during bad, stormy weather, or to remove the accumulated snow at every station; and a passenger who was injured in passing from one car to another by slipping on accumulated snow, soon after leaving a main station and before arrival at a point where the work of clearing the ears was usually performed, the weather having been snowy and stormy, could not recover against the carrier.

    Error to Berrien; Coolidge, J.
    Submitted June 10, 1918.
    (Docket No. 62.)
    Decided June 1, 1914.

      Case by Herman Meyer against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      T. Fred Laramie (Cady & Andrews, of counsel), for appellant.

      Gore & Harvey (Henry Russel and Frank E. Robson, of counsel), for appellee.

       On the question of the duty of a carrier to keep steps of cars free from snow and ice, see notes in 15 L. R. A. (N. S.) 523 and 35 L. R. A. (N. S.) 592.

   Bird, J.

On December 25, 1909, plaintiff, who was a resident of Chicago, took passage on one of defendant’s local trains at 3:15 in the afternoon to come to Three Oaks, in this State. He sat in the smoking car until the train was within about two miles of his destination, when he got up and started for the coach in the rear, while the train was running at the rate of 40 miles an hour. When he got upon the platform there was a “lurch or jerk” of the train, and he slipped and fell to the ground, thereby sustaining serious and permanent injuries. The negligence which he relies on was the failure of defendant to keep the platforms free from snow and ice. After plaintiff had made his case, the trial court directed a verdict for the defendant on the ground that no negligence was shown on the part of the defendant. The question before us is whether this was a proper direction.

It appears that, when the train left Chicago, the platforms and steps of the cars were free from snow and ice. There had been a heavy snowfall during the day and it was yet snowing when the train left Chicago. The snow ceased falling at about 4 o’clock, but it continued to blow and drift for some time after that hour. The testimony shows that at Michigan City (a station 17 miles west of Three Oaks), where the train arrived at about 5:05, there was snow on the platforms, and here and there were lumps of packed snow which had evidently been deposited there by the feet of oncoming passengers, and which had made the platform and steps more or less slippery. We are asked under this state of facts to say that the testimony was sufficient to submit to a jury upon the question of defendant’s negligence.

This request raises the question as to whether the defendant neglected any duty which it owed to plaintiff in keeping its car platforms free from snow and ice. By reason of the varying conditions under which this duty has been considered and applied in the adjudicated cases, they are not very helpful in the solution of this one. We think it is a matter of common knowledge that when passenger trains are operated in midwinter and during snowstorms and while the snow is blowing and drifting, more or less snow will collect on the platforms and steps. To hold that the platforms and steps are to be freed from snow and ice at each station, or before a passenger is allowed to pass over them, would be to impose an unreasonable rule, and one which would make it extremely difficult to operate trains in the winter season. The testimony shows that the snowfall had been very heavy that day, and, while it had abated at about 4 o’clock, it was still blowing and drifting when the plaintiff went upon the platform. The testimony fails to disclose that the conditions were other or different on the platforms than they ordinarily are during a snowstorm, or that the accumulation of snow was greater. In the absence of unusual conditions, created by snow and ice on car platforms, we think there is no rule which would compel those operating the cars to see that they are entirely free from snow and ice until the storm is over and reasonable opportunity is had to remove them at places where such work is usually done. Palmer v. Pennsylvania Co., 111 N. Y. 488 (18 N. E. 859, 2 L. R. A. 252).

In the foregoing case, where a like question was dealt with, it was said:

“The immediate and continuous removal of all snow and ice from such trains, or the covering of them with sand or ashes in such manner that no slippery places shall be at any time exposed, would be quite impracticable and beyond the duty which a railroad company owes to its passengers. The presence of snow or ice upon exposed places on moving cars is an accident of the hour, and no ordinary diligence could, during the prevalence of a storm, wholly remove its effects from the places exposed to its action, so as to prevent accidents to heedless and inattentive travelers. A passenger on a railroad train has no right to assume that the effects of a continuous storm of snow, sleet, rain, or hail will be immediately and effectually removed from the exposed platform of the car while making its passage between stations, or the termini of its route, and it would be an obligation beyond a reasonable expectation of performance to require a railroad corporation to do so.”

See, also, Dorrance v. Railway Co., 175 Mich. 198 (141 N. W. 697).

We are of the opinion that the conclusion which the trial court reached was a proper one; and the judgment will be affirmed.

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


author: Ostrander, J. Bird, J.

text:
    HEETHUIS v. KERR.
    1. Taxation — Redemption — Notice — Persons Entitled to be Notified.
    The purchaser of a tax interest in real property whose deed, has not been placed on record, is not entitled to notice under the statutory provisions for redemption of Act No. 229, Pub. Acts 1897, as amended by Act No. 142, Pub. Acts 1905 (1 How. Stat. [2d Ed.] §§1911-1914), to cut off his right of redemption from a subsequent purchase of lands delinquent for taxes.
    2. Same — Notice to Redeem.
    The fact that a purchaser of such tax title served a defective notice on the persons who were entitled to be notified would not entitle the holder of an unrecorded tax deed, who was not in possession of the premises conveyed, to rede.em: he could not complain of any defects in the notice' served on the owners of record.
    Bird and Kuhn, JJ., dissenting.
    Appeal from Muskegon; Sullivan, J.
    Submitted April 21, 1913.
    (Docket No. 105.)
    Decided June 1, 1914.
    Rehearing denied July 25,1914.
    Bill by Jacob Heethuis against William F. Kerr, Antha D. Keys and others to quiet title to real property. From a ‘decree for complainant, defendant Keys appeals.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for complainant.

      F. E. De Camp (Albert De Camp, of counsel), for defendant Keys.
   Ostrander, J.

Complainant has acquired the title of the State to certain premises in tax proceedings. The title which the State held is not, and apparently cannot be, successfully attacked by any one. Complainant undertook to give, and did give, to all persons entitled thereto, personally or by publication, notice of his having acquired the title and of the sum necessary to be paid to secure a conveyance from him. No one who was entitled to the notice is complaining about it. The appellant, who was not one of the class entitled to notice, who was not in possession of the land, but who asserted an interest in the premises, an interest cut off by the State’s title, was made a party defendant by complainant’s bill to quiet his title. She compiains that the notice complainant gave was in various respects informal and not in compliance with governing law. The assignments of the failures to comply with the law in giving notice are several and raise various questions besides the one discussed in the opinion of Mr. Justice Bird. I am of opinion that appellant cannot take advantage of any infirmities in the method of giving the notices. The case is not like White v. Shaw, 150 Mich. 270 (114 N. W. 210), in which a cotenant entitled to notice was permitted to assert failure to serve a notice upon his cotenant’s executor, who was also entitled to notice. It was held that the tax title owner cannot proceed by piecemeal to cut off the right of redemption of each part owner, and that, until he had served notice upon all who were entitled thereto, the right to redeem continued in all. In the case at bar, as has been pointed out, the appellant was not one of the class entitled to notice, nor a cotenant with any one entitled to notice. If it is held that complainant is unlawfully in possession of the land, must again give notice and accept a sum certain for a reconveyance, appellant may be greatly benefited, and the complainant greatly injured. It appears that appellant’s title is evidenced by tax deeds for taxes for the years 1901 and 1902. Complainant acquired the title for taxes for the year 1908. Appellant did not record her deeds. Complainant, since acquiring his title, has paid taxes, has built two houses on the premises, and made other improvements. The appellant December 23, 1911, deposited with the register in chancery of Muskegon county $96.21 to obtain a reconveyance from complainant. Of this fact the register notified the complainant. The bill in this cause was filed January 4, 1912. It is therefore apparent that no equitable considerations favor appellant.

The decree will be affirmed.

McAlvay, C. J., and Brooke, Stone, Moore, and Steere, JJ., concurred with Ostrander, J.

Bird, J.

(dissenting). In May, 1906, the complainant purchased lot 1, block 264, in the city of Muskegon, at a tax sale, for the delinquent taxes of 1903. He afterwards received a deed therefor from the auditor general, and gave the statutory notice to terminate the period of redemption to all of the defendants save appellant, whose tax deed was not at that time of record. He then filed this bill to quiet his title thereto.

The appellant contends that complainant is not entitled to the relief prayed, because the statutory notice served upon the other defendants was defective, and several defects therein are pointed out, chief of which is because the notice stated that they would be entitled to a reconveyance upon payment of the sum named therein, at any time within six months after the service of the notice, instead of any time within six months after the return of service of the notice. The notice prescribed by Act No. 229 of the Public Acts of 1897 provided that the owner and mortgagee of the premises should be advised as to the time in which they could redeem, as follows:

“That you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice.”

This part of the notice was later amended by Act No. 142 of the Public Acts of 1905, to read:

“That you are entitled to a reconveyance thereof, at any time within six months after return of service of this notice.”

The notice served upon defendant was in form a compliance with the law of 1897, although it was served after the amendment took effect, and we are now asked to hold that such notice is valid. Doubtless the effect intended by the amendment was to lengthen the time for redemption, as more or less time usually elapses after service and before return is made, but in fact it did not have that effect, as this court had already construed Act No. 229, holding that the period of limitation did not commence to run until the return was made and filed. Pike v. Richardson, 136 Mich. 414 (99 N. W. 398). We recognize, however, the importance of this notice to those interested in the title to real property, and it was evidently the intention of the legislature, not only that such persons should be advised, but correctly advised as to the time when their rights would expire by limitation. This is made manifest by the fact that the legislature itself prescribed the form of the notice to be given. The question is therefore presented whether we shall hold that the form of the notice prescribed by the Public Acts of 1897, aided by a construction thereof by this court, is equivalent to a notice in accordance with the amended form prescribed' by the Public Acts of 1905. If we hold that it is, then a landowner could be served with a notice which would clearly mislead him as to the time in which he could redeem, unless he happened to have knowledge of the construction this court has placed thereon. We are of the opinion that the purpose of this legislation will be better conserved by holding that the form of the notice prescribed by the statute should be strictly followed, and that a failure in this respect will invalidate the notice. Having reached this conclusion, it

The decree should be reversed, and the bill dismissed, with costs of this court to defendant, will be unnecessary to consider the other assignments of error.

Kuhn, J., concurred with Bird, J.


author: Moore, J.

text:
    BEACH v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Death—Railroads — Personal Injuries— Negligence — Carriers—Evidence.
    Evidence, in an action for negligence resulting in the death of defendant’s brakeman, held, insufficient to remove the cause from the field of conjecture as to the manner and cause of decedent’s death.
    Error to Wayne; Hosmer, J.
    Submitted January 21, 1914.
    (Docket No. 49.)
    Decided June 1, 1914.
    Case by August Beach, administrator of the estate of Louis Beach, deceased, against the Michigan Central Railroad Company for the negligent killing of decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Clarence P. Milligan and Harry C. Milligan, for appellant.

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

Louis Beach, the plaintiffs decedent, was employed by the defendant as a freight brakeman, and was injured on the night of April 19, 1910, at Ypsilanti, dying at the Railroad Sanitarium at the city of Detroit, where he was taken a few hours after the accident, from the injuries received. The above suit was instituted by his father to recover damages. From a directed verdict in favor of defendant at the close of the testimony for plaintiff, the case is brought here by writ of error.

The claim of counsel for appellant is summarized as follows in the brief:

“There were no eyewitnesses to the accident. There was no contention that decedent was negligent in the case as it stood when verdict was directed. The law is settled that in the absence of eyewitnesses the deceased will be held to have been in the exercise of due care. See Gilbert v. Ann Arbor Railroad, 161 Mich. 73 [125 N. W. 745].
“On the question of the negligence of defendant we are confident in stating that we produced substantial proof, certainly more than a scintilla of evidence, which was unanswered in the slightest degree when verdict was directed. We offered testimony to show, first, decedent was on the top of the car braking the same in the line of his duty when last seen before the accident; second, that the other car was shunted down in a hurried, violent, and careless manner so that it struck his car with more than usual force and noise and drove it 1,000 feet to the ^ derailer and off the track, with brakes partly on; third, that deceased was found immediately thereafter beside the track, not run over, but crushed and injured such as a fall from a car would do; fourth, that the circumstances were such as to cause the engineer of the freight to hurry with' the work, i. e., the necessity of clearing the line for the passenger train. Even if there was negligence proven on behalf of both under the act suit was brought, the question would still be one for the jury.”

The trouble with this contention is that there is a dearth of facts disclosed by the record upon which to base it. It is shown that deceased was in the employ of the railroad company; but it is not shown how many persons were in the crew in charge of the freight train at Ypsilanti, nor is it shown whether there was one brakeman or more. While it was shown that there was a lantern upon the first car, which was switched upon the side track, it is not shown that deceased carried that lantern, or that he was upon that car. While it was shown that one or more other cars were sent in on the switch, it is not shown whether a brakeman was or was not on the car or cars so sent in. While the cars were heard to come together, it is not shown whether decedent was on either of the cars, and as the result of the impact was thrown to the ground, or whether he was already on the ground, and while there was injured. The cause of his injury is entirely in the field of conjecture. The case is within Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Micari v. Stone Co., 154 Mich. 362 (117 N. W. 939).

Judgment is affirmed.

McAlvay, C. J., and Beooke, Kuhn, Stone, OsTEANDEE, Bied, and Steeee, JJ., concurred.


author: Ostrander, J.

text:
    HOLMES v. SOULE.
    fir Deeds — Quitclaim Deed — Good Faith.
    The owner of realty by virtue of a quitclaim deed stands in no better position than his grantor.
    12. Limitation oe Actions — Taxation—Tax Title — Statutes.
    Act No. 58, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1848), imposing a five-year limitation upon the right to attack a tax title, does not affect tax interests purchased prior to its enactment, since the legislative in.tent to give the act retroactive effect is not made clear.
    3. Same — Taxation.
    As a rule general statutes of limitation must operate uniformly.
    4. Taxation — Possession—Quieting Title.
    By entering into possession of lands under a claim of ownership through certain tax deeds, the grantees did not obtain any rights, if a valid notice to redeem was not served on.the proper parties. Service of notice is a condition precedent to the vesting of title in the purchaser.
    5. Same — Limitations, Five Year.
    Section 73 of Act No. 206, Pub. Acts 1893, providing that
    ■ no tax sale or deed of the State shall be set aside after the purchaser has been iü actual possession for five years has been held to be repealed by implication. Cook Land, etc., Go. v. McDonald, 155 Mich. 175 (118 N. W. 959).
    6. Same — Equity.
    Where the holder of a tax title served a notice upon the owner of record, stating the total amount required for the redemption of two parcels, which was therefore defective and insufficient, and where neither party was shown to have been in possession of the land, no equitable relief could be granted to the grantee of the holder of title who did not ask for the right to redeem or offer to pay the amount required.
    7. Same — Laches—Effect.
    Mere delay on the part of the owner to assert his rights against the claimant under a tax title who did nothing in reliance upon the silence of such record owner, is insufficient to confer any right although an insufficient notice to redeem was served.
    Appeal from Ottawa; Cross, J.
    Submitted January 23, 1914.
    (Docket No. 50.)
    Decided June 1, 1914.
    Bill by Clyde J. Holmes against Charles E. Soule and others. From a decree dismissing bill and defendants’ cross-bill, both parties appeal.
    Affirmed.

      Walter I. Lillie, for complainant.

      Soule & Soule, for defendants.
   Ostrander, J.

Complainant claims title to lots 3 and 4, section 18, town 8 N., of range 16 W. His evidence of title is a quitclaim deed from the owner of the original title, dated March 5, 1913, and recorded. He filed the bill of complaint in this cause March 24, 1913, setting up his title and the defendants’ title, and praying that defendants may be decreed to convey to him all right, title, and interest in the land claimed by them, or either of them. Defendants answered the bill, and in their answer claim the benefit of a cross-bill, and as affirmative relief ask that a decree be entered that the complainant’s deed is void, and requiring complainant to convey to defendants all his right, title, and interest in the lands. The cross-bill was answered, and, the cause being at issue, it came on for hearing in open court in September, 1913, and certain testimony was offered and received. The court below found and decreed:

“I. That the bill of complaint was filed in this cause to quiet the title to the following described real estate, viz.: Lots 3 and 4 of section 18, town 8 north, range 16 west, Ottawa county, Michigan.
“II. That the complainant claims title through a quitclaim deed obtained from the person to whom the fee vested through a regular chain of title from the original purchaser.
“HI. That the cloud upon the title which the complainant seeks to have removed are a tax deed given by the auditor general to Edward S. Craw, a deed given by Edward S. Craw to Charles E. Soule, a deed for one-half interest given by Charles E. Soule and wife to Wm. N. Angel, and a deed given by Wm. N. Angel to Daniel W. Andrews, Anna Angel Andrews, George E. Angel, Clara M. Angel, Henry A. Angel, and Edith Angel.
“IV. That at the tax salé the lots were sold separately, being so assessed. The aggregate purchase price paid was $228.89, being the taxes upon both lots from the year 1888 to 1901. Both lots were included in one deed, and the notice given to perfect the tax title gave the total amount paid for both lots, but did not specify the amount paid for each. That such notice did not comply with the law.
“V. That said notice as above described was served upon complainant’s grantor on the 8th day of December, 1902, and was actual notice of the sale of the lots for delinquent taxes, although the notice was not in legal form to cut off redemption, or upon which a writ of assistance could be based.
“VI. The complainant, holding by quitclaim deed, has imputed to him the delinquencies of his grantor. The lots had been returned delinquent for taxes since 1888, and since 1902 the defendant had paid the taxes. That no attempt or offer was ever made since 1888 by the complainant or his grantor to pay these taxes.
“VII. The claim of laches urged by the defendant under and by virtue of the decision of the case of Clothier v. Miller [173 Mich. 530 (139 N. W. 253)], is conclusive in this case.
“VIII. It is therefore adjudged and decreed that the bill of complainant be and the same is hereby dismissed, without prejudice, with costs to the defendant, to be taxed, and that they have execution therefor.”

All parties have appealed. It should be stated as a fact relied upon by complainant that no attack is made by the bill upon the tax proceedings or the sale of the land for taxes. The contrary is expressly charged in the bill.

The real contentions of parties may be briefly stated. Complainant claims that, because no valid notice to redeem was given to his grantor within five years after the purchase of the tax title, defendants are barred from asserting the title, and from claiming a lien upon the land by virtue thereof. Act No. 58, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1843). Defendants say this act cannot have a retroactive effect. They also claim that their grantor gave a notice, imperfect it is true, which the original owner admitted receiving, and before receiving, expressly, and thereafter, by conduct, refused to redeem the land; that after six months after giving said notice defendants’ grantor entered into possession of the premises, claiming them by virtue of his tax title, and peaceably occupied them until this suit was begun, paying the taxes. The laches of complainant’s grantor, and his practical abandonment of the premises in 1902, is asserted as a bar to any equitable relief favoring complainant, and all the circumstances are relied upon as entitling defendants to a decree quieting their title.

Befqre investigating the claim of either party to equitable relief, it is well enough to see where the law leaves them. Complainant is in no better position than his grantor was, but, for convenience of statement, may be said to have the original, or government, title to the land. Assuming, as we must, that the tax titles are valid, the original or government title is extinguished (Griffin v. Kennedy, 148 Mich. 583 [112 N. W. 756] ; Embury v. Goodenough, 157 Mich. 140 [121 N. W. 744] ; Haney v. Miller, 154 Mich. 337 [117 N. W. 71, 745] ; Horton v. Helmholtz, 149 Mich. 227 [112 N. W. 930]), saving only the right, given by the statute, to redeem the land by paying the taxes and a penalty. No other or additional right accrued to him by virtue of Act No. 58, Pub. Acts 1907, because the act has no application. In the first place, the intention of the legislature that the act passed in 1907 shall have retroactive effect is not clear, and, in the second place, the tax deeds established between the purchaser and the State contract relations which it will not be presumed the State intended to violate or to change. A third reason may be stated, which is that a general statute of limitations must operate uniformly, and the statute invoked would not do so if it were applied to titles acquired before the law was passed.

Defendants own the tax title and the land, subject to the right of complainant to redeem — a right which in law has not been extinguished because no proper notice to redeem has ever been given. Defendants are not aided, in law, by having occupied the land, if in fact they have occupied it (a fact not found by the trial court, and of which the testimony is not convincing), because they had no right to its possession. Corrigan v. Hinkley, 125 Mich. 125 (83 N. W. 1020) ; Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032) ; Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109); Cook Land, etc., Co. v. McDonald, 155 Mich. 175 (118 N. W. 959); Morrison v. Semer, 164 Mich. 208 (129 N. W. 1) ; White v. Dunsmore, 167 Mich. 542 (133 N. W. 523) ; Powell v. Pierce, 168 Mich. 427 (134 N. W. 447) ; McRae v. Barber, 171 Mich. 111 (136 N. W. 1118). In Huron Land Co. v. Robarge, it was said that service of a notice is a condition precedent to vesting title in the tax title purchaser. In Morrison v. Semer, White v. Dunsmore, and Powell v. Pierce, imperfect notices had been given. In White v. Dunsmore, the lands in question were wild and uncultivated, and it was held that the owner of the record title could not maintain trespass for the wrongful entry of the holder of the tax title before tendering the amount required to be paid for a reconveyance. In Adkin v. Pillen, 136 Mich. 682 (100 N. W. 176), the land was occupied by the owner of the original record title, and we said:

“Notwithstanding the fact that the State had acquired the absolute ownership of this land, and notwithstanding the language above quoted, the title acquired by defendant was, by Act No. 229 of the Public Acts of 1897, subject to redemption for a period of six. months, and during this time defendant was not entitled to possession of the land. We have recently held (see Auditor General v. Sherman, 136 Mich. 157 [98 N. W. 995]) that, notwithstanding the language of section 72, above quoted, the title thereby conveyed is subject to sale for prior taxes under certain conditions, by virtue of Act No. 169 of the Public Acts of 1899. It is equally clear that we are bound to hold that, by Act No. 229 of the Public Acts of 1897, said title acquired under section 72 did not become absolute — and this is true whether that title had or had not become absolute in the State before sale — until the period for redemption had expired. Until the expiration of this period, during which the original owner has the sole right of possession and the right to redeem from outstanding tax titles, such owner, and not the owner of said tax titles, which may or may not become absolute, is the owner of the property.”

Section 73 of the tax law (Act No. 206, Pub. Acts 1893 [1 How. Stat. (2d Ed.) §1842]), relied on by defendants, was, as applied to a case like this, held repealed by implication in Cook Land, etc., Co. v. McDonald, supra.. Proceeding no further, it would appear that, when this suit was begun, the parties in interest were in no better nor worse position, relatively, than when the defendant’s grantor acquired the tax titles.

Complainant, in a court of equity, admits that the tax title purchaser served a notice upon his grantor December 8, 1902, and charges, what is admitted to be true, that the notice was defective because, in advising his grantor of the sale of both parcels and of the amount required to redeem both, it did not specify nor disclose what amount could be paid to secure a reconveyance of either parcel. Jackson v. Mason, 143 Mich. 355 (106 N. W. 1112). He asks the court to apply in his behalf the statute which has been referred to. No other ground of relief being asserted, and complainant not having offered to now redeem the land, nor asked for permission to do so, no equitable relief can be granted to him.

Neither party having been in possession of the land, there is no controlling statute of limitations. Defendants and their grantor have done nothing in reliance upon the silence of complainant’s grantor. They have paid the taxes, which they were obliged to do to protect their interest. Laches implies negligence — a neglect or failusf to do what ought to be done under the circumstances to protect the rights of the parties to whom it is imputed, or involving injury to the opposite party through neglect to assert rights within a reasonable time. Usually one having an interest in land which is not in the actual possession of another is under no obligation to assert his interest until it is attacked, and there seems to be no good reason for saying that one having such a right as the complainant claims may not remain silent until his right is questioned. In any event there is no apparent reason for holding that the right is cut off and lost in favor of another who has taken ineffectual proceedings to divest it. The case presented is not like Bending v. Auditor General, 137 Mich. 500 (100 N. W. 777), Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363), McFarlane v. Simpson, 153 Mich. 193 (116 N. W. 982), Owens v. Auditor General, 147 Mich. 683 (111 N. W. 354), Clothier v. Miller, 173 Mich. 530 (139 N. W. 253), and similar cases, in which, because of laches, relief is denied to a complainant. Nor is it like Aztec Copper Co. v. Auditor General, 128 Mich. 615 (87 N. W. 985), Croskery v. Busch, 116 Mich. 288 (74 N. W. 464), Horton v. Salling, 155 Mich. 502 (119 N. W. 912), Morrison v. Semer, 164 Mich. 208 (129 N. W. 1), and Backus v. Hoyt, 164 Mich. 407 (129 N. W. 693), where equitable relief was granted upon condition that the complainant do equity.

I am of opinion that the parties must be remitted to enforcement of their legal rights — a conclusion which requires the affirmance of the decree, without costs of this court to either party.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred. Moore, J., did not sit.


text:
    EVANS v. RUSSELL.
    Brokers — Evidence—Commissions.
    Evidence tending to show that plaintiff brokers undertook to sell real property of the defendant for a price agreed upon, that they found a purchaser ready and willing to pay the price asked, that defendant declined to make the conveyance because his wife would not sign the deed, defendant disputing the claim of plaintiffs as to the contract, held, to present an issue of fact which was properly submitted to a jury.
    Error to Ingham; Wiest, J.
    Submitted April 15, 1914.
    (Docket No. 46.)
    Decided June 1, 1914.
    Assumpsit by Louis M. Evans and Charles L. Fratcher against Henry Russell for brokers’ commissions. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Frank L. Dodge, for appellant.

      Harry A. Silsbee (Person, Shields & Silsbee, of counsel), for appellees.
   Ostrander, J.

The issue in this cause is simple. The testimony on the part of plaintiffs, who are partners, tended to prove that they undertook for the defendant to sell his real estate for $14,000 for which they were to be paid a commission of $400; that they produced a purchaser able and willing to pay the price; that the defendant then refused to sell, giving as a reason that his wife would not join him in conveying the property. On the part of defendant the testimony tended to prove that he made no such bargain with plaintiffs; that his property was only for sale upon a contingency, which did not occur. Specific denials of the material testimony of plaintiffs were given. There was testimony which, if believed, warranted a verdict for plaintiffs. The cause was submitted to a jury with instructions, which, although criticised, seem to us to correctly state applicable rules of law. A motion for a new trial was denied. We have examined the assignments of error, 47' in number, have read the record with care, and are of opinion that none of the errors are well assigned.

The judgment is affirmed.

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