author: Hookee, J.

text:
    ALLEN v. THORNAPPLE ELECTRIC CO.
    Waters and Watercourses — Riparian Proprietors — Rights— Dams — Flooding.
    The owner of land bounded by a stream is entitled to have the water enter and leave his premises in the natural and ordinary way at all times, as well during times of ordinarily high water as during times of ordinarily low water, and a lower proprietor who interferes with that right by building a dam is liable for the damages occasioned, though his dam is not as high as low-water mark at the lowest point of the upper proprietor’s land.

      Appeal from Barry; Smith, J.
    Submitted April 6, 1906.
    (Docket No. 18.)
    Decided June 5, 1906.
    Bill by Thomas B. Allen and Susan Allen against the Thornapple Electric Company to enjoin the maintenance of a dam. ■ From a decree for complainants, defendant appeals.
    Modified and affirmed.

      Hartley E. Hendricks, Milton F. Jordan, and Thomas Sullivan, for complainants.

      Oolgrove & Potter, for defendant.
   Hookee, J.

The complainants are owners of 67 acres «of land, most of ' which is bounded on the east by the Thornapple river. The stream is tortuous, having banks upon complainants’ premises approximating a mile long. It is shown that there is considerable bottom land adjacent to the river, in all about 23 acres. The defendant purchased a dam site at La Barge, 6 miles below the complainants’ farm (where there had previously been a dam 7 feet high), and some rights of flowage, which are said to permit the raising of the dam to 18 feet from low-water mark at a point 300 feet below the new dam.' The defendant admits that it built a new dam 15.59 feet high above low-water mark at La Barge, so constructing it that by the use of slash boards, it could be raised to 18 feet. It does not appear that it acquired any rights of flowage upon the complainants’ land, and it is claimed on its behalf that before building its dam, it caused levels to be taken which, as reported by its surveyor, showed that a dam 20 feet high would ‘ ‘ pond the water ” as far up as the Stauffer bridge, which was two miles down the stream below the north line of complainants’ land. The bill was filed to restrain the maintenance of the dam, and incidentally to recover damages for injury to complainants’ land.

There is no proof that the dam is higher than low-water mark at the north line of the complainants’ land, but the bill alleges that, in times of freshet, the dam so obstructs the flow of the stream that the low lands are submerged and injured by water and ice. - The learned circuit court judge who heard the cause found that this allegation was true, and rendered a decree accordingly, and the defendant appealed. The defendant contends that it has a right of flowage, which permits a dam 20 feet high, and that the complainants cannot complain so long as it does not raise the water at their premises at its ordinary stage. A map was put in evidence, by the defendant, which shows levels from the point called datum, 300 feet below the dam, to various points upon the complainants’ premises. From this we are able to determine that the lowest point of the land is 17.40 feet above datum, other measurements are 18.30, 18.50, 18.60, 18.70, and they run as high as 23.30 feet. There are two levels which show 24.20 and 24.30, but the most of them are below 21 feet, and many below 19 feet. It is complainants’ claim .that, when the freshets come, all of the water in the pond below the level of the dam, is dead water, and an obstacle to the flow of the water coming down from above, and that the consequence is a much greater rise at their premises than would occur if there was no impediment to the flow of the water along the bed of the stream, and that as a consequence their land is not only overflowed but is saturated with water, which it would not otherwise be. The circuit judge has so found, and we are of the opinion that the proof warrants the finding.

The defendant admits that the dam proper is 15.59 feet high, and its manager stated that it was 16 feet high. If by this is meant 16 feet high above datum it is one thing, but if 16 feet above the bed at the point where the dam is located, it may be quite another, for datum is necessarily some and perhaps considerably lower than low water at the dam. It is admitted that, with the flashboards in place, it would pond the water back to the bridge, a distance below complainants’ north line, at an ordinary stage of water, by which we understand is meant ordinarily low water. The evidence on the part of the complainants tends to show some two or three feet more of water at the bridge or ford in times of ordinary low water, and when we consider the volume of the stream, which is naturally a rapid one, and which, under existing conditions, enters at the bridge, on a level of six miles, whereas in its natural state there was a fall of 18 feet between that point and the dam site, it is self-evident that the velocity of the current must be lessened, and that the swifter current above must deliver the water more rapidly than it can be delivered at the dam, and the inevitable result must be a rise of the water above. How far up the stream such rise will be apparent must depend upon the distance necessary to increase the depth of the pond sufficient to establish an equilibrium between the volume of the stream above and the overflow at the dam. Whatever this rise is upon complainants’ land, if any, in ordinary low water, it is an invasion of their rights, and could be recovered for if it has damaged them, if their bill had made claim for such damage.

But the cause for suit alleged is that they are damaged in times of freshets, their claim being that the ponding of the water affects their premises at all times, but especially When the stream is swollen, and that the defendant is at such times liable for the consequences of its ponding the water. To this the defendant replies that it is not responsible for the consequences of freshets, and its counsel •cite the case of Richards v. Peter, 70 Mich. 290, to the proposition that it has the right to back the water to complainants’ north line, and that so long as it does no more, •there is no liability, whatever consequences may ensue. If a proper interpretation of the case of Richards v. Peter, supra, warrants defendant’s claim, it stands practically alone and unsupported. On principle we must say that the owner of land is entitled to have the water enter •and leave his premises in the natural and ordinary way at all times, and this rule applies to ordinary low water and ordinary high water. Subject to this the owners, above and below, may use the water for their own purposes. But the lower proprietor may not raise the bed of the stream below to a level for six miles, where previously there was a fall of 18 feet, either by filling with earth or a dead wall of water, thereby causing the accumulation of a head above to the injury of his neighbor, even if such effect is slight or imperceptible except in seasons of rain. He must act with reference to all ordinary stages of water and all seasons, and the exception relates only to those extraordinary and abnormal conditions and floods, which, if known before, at least occur only on rare occasions. Such. was the limitation placed upon a similar case in Pennsylvania, that of Monongahela Navigation Co. v. Coon, 6 Pa. 383, and the later case of McCoy v. Danley, 20 Pa. 88. See, also, Michigan Paper Co. v. Electric Co., 141 Mich. 48.

We must assume that it was such freshets that the court had in view in Richards v. Peter, supra, and that it did not intend to hold that a lower proprietor was entitled to take away the opportunity for the discharge of water from an upper proprietor, so that every increase in the volume of the stream would necessarily flood, to a greater or less extent, the lands of his adjacent upstream neighbor. See Whitney v. Wheeler Cotton Mills, 7 L. R. A. 614 (151 Mass. 396), note; Barnard v. Shirley, 41 L. R. A. 749 (151 Ind. 160), note; Avery v. Electric Co., 59 L. R. A. 876 (75 Vt. 235), note. We do not discuss at length the many cases, cited in these notes, which sustain the rule that a dam owner will be liable if, in the ordinary times of high water, the overflow passes his neighbor’s line. See Dorman v. Ames, 12 Minn. 451; Ames v. Manufacturing Co., 27 Minn. 245. For late cases, consult 4 Current Law, p. 1826, and note.

The defendant’s "counsel call attention to certain evidence showing that, by extensive dredging and draining in adjoining counties, the volume of water in Thornapple river has been materially increased. How far we would be justified in taking judicial notice of the fact that much,. if not all, of this work was after the year 1903, when this suit was commenced, we need not determine. It is enough to say that it is not shown that it was not after that time that this increase began. We are convinced that the complainants’ land has been injured by the defendant’s dam. If, as the complainants claim, the flashboards were in place at the time, we would think that their removal in .times of high water would do much to lessen the damage, possibly itcould prevent any. If, however, the flashboards were off,- as the defendant’s testimony tends to show, it is manifest that adequate wasteweirs, or gates, to relieve the flood were not provided. Before the decree was rendered, the dam went out. We construe the decree to mean that the court found that the complainants had sustained damages to the amount of $150, and that if the defendant should elect to rebuild its dam to a less height, so that it would not thereafter affect the stream at complainants’ premises, that sum, with costs, should be the limit of their recovery, but, if defendant should elect to rebuild its dam to the former height, they should recover the sum of $1,000, and that the defendant should thereafter have the right to flow such lands by such dam. The decree has not in terms provided for an injunction against the maintenance of the dam. It.has, however, placed a condition upon its erection, viz., the payment of $1,000 to the complainants. This was doubtless upon the theory that complainants, having sought relief in equity, should do equity, and accept reasonable compensation for past and future damages, instead of requiring a disproportionate sacrifice by the defendant, through the crippling of its water power and business.

We are of the opinion, however, that the damages allowed are excessive. The evidence does not show that the land is rendered useless. It will have a material value for farming purposes much of the time, and we think $690 ample compensation for all past and prospective damage to said land from the dam in question. To us it seems obvious that the maintenance of the dam at 15.59 feet in height has been and will continue injurious to the complainants, and that its effect has been to raise the water in times of freshet upon their land at least two feet. It is not improbable that it raised the water more than that. We are of the opinion, therefore, that the height of the dam should be reduced to 14 feet above datum, hereinbefore referred to, and that complainants recover $150 damages, unless defendant shall pay, or tender to the complainants or their solicitor, the sum of $690, within 90 days after notice of this decree, which sum, if paid, shall be in full payment for the fight to flow the. said; bottom lands of said complainants, heretofore and hereafter, by a dam of the height heretofore maintained by the defendant. The case of Blake v. Cornwell, 65 Mich. 467, warrants such a decree.

The decree will be modified in accordance with the opinion; the defendant to recover costs of this court.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DUMAS v. GEER.
    Attachment — Property Subject — Land Contract — Interest op Purchaser — Assignment.
    Where a purchaser of land on executory contract assigns his interest in good faith for value, the assignee being in possession, that interest is not subject to attachment thereafter for a debt previously contracted by him, though the creditor was ignorant of the assignment.
    Appeal from Wexford; Chittenden, J.
    Submitted April 6, 1906.
    (Docket No. 29.)
    Decided June 5, 1906.
    Bill by Lottie Dumas against Harry Geer to remove a cloud from the title to land. From the decree rendered, complainant appeals. ■
    Modified and affirmed.

      E. F. Sawyer, for complainant.

      D. E. McIntyre, for defendant.
   Hooker, J.

Complainant’s husband, Joseph F. Dumas, and his brother Frank, purchased under contract, on June 16, 1902, a house and lot in Cadillac, for $800, one-half being paid down. Joseph F. contributed $350 and Frank $50 of this amount. They all resided in the house until November, 1902, when complainant and her husband separated, at which time Joseph assigned his interest to the complainant, who continued, to live in the house. On October 12, 1904, the defendant levied an attachment against Frank Dumas upon his interest in the premises, and in November, 1904, this bill was filed by the complainant to remove the cloud of such levy upon the title, claiming that she was the owner of the interests of both brothers at the time of the levy; The cause was heard, proof being taken in open court, and the court rendered a decree that — ■

“ It satisfactorily appears * * * that the material facts charged in the bill * * * are true, and that the said complainant is entitled to the relief prayed for as follows: That upon June 16, 1902, Joseph and Frank Dumas purchased the premises upon an executory contract, and that Joseph transferred his interest in the property to the complainant on November 29, 1902, and that the said Frank Dumas sold and transferred his interest in said contract to said Lottie Dumas on July 6, 1904; that therefore said Lottie Dumas is now the sole owner of' said executory contract, and is therefore entitled to a deed thereto upon the completion (i. e., performance) of its terms; that the attachment levy which was made October 15, 1904, * * * constitutes a cloud upon the complainant’s title; and that said levy be and the same hereby is canceled and removed, upon condition, however, that said complainant pay to said defendant, or deposit with the register in chancery for the use and benefit of the defendant, the sum of $95.65, being the amount of certain claims held by said defendant, the goods which were purchased by Frank J. Dumas prior to July 6„ 1904.”

The complainant has appealed.

The evidence shows that the contract for the premises was made as alleged, and signed by all of the parties, and recorded, that complainant has lived upon the premises since, and that Frank boarded with her upon the premises after her husband left until September, 1904. Assignments of both of the brothers’ interests in writing were introduced, Frank’s bearing date July 6, 1904. She paid $115 for the same in money, and turned a claim of' $35 against him upon it, if the testimony of Frank Dumas and herself and her father is to be believed. No testimony is offered on the part of the defense. The attachment was levied, while complainant was in the exclusive possession, Frank having left town some months before.

Counsel for defendant urges in the brief, that all of the parties held out to the world, that Frank held his interest; in the property, at the time the levy was made, and that the’ learned circuit judge was satisfied that complainant had not purchased in good faith. We do not see how the circuit judge reached the result shown by his decree, except upon the theory that the defendant’s levy was made valid by his ignorance of the assignment. He expressly found that the interest of Frank was purchased and transferred on. July 6th, and does not indicate in the finding that it was fraudulent. It must follow that Frank had no interest subject to levy. It is our understanding that defendant’s ignorance of the transfer to the complainant of Frank’s interest would not make the levy valid, and we find nothing in the record which will support the proviso or condition imposed by the decree.

The decree must be modified, and a decree entered here in favor of the complainant as prayed, with costs of both courts.

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


text:
    McDONALD v. CITY ELECTRIC RAILWAY CO.
    1. Trial — Conduct of Counsel — Examination of Witnesses— Harmless Error.
    Where, in a personal injury case, plaintiff’s counsel persisted in asking about the number and ages of» plaintiff’s children, notwithstanding a ruling that such testimony was inadmissible, the judgment will not be reversed, the testimony showing that all but one were large children or adults. •
    2. Evidence —Second. Trial —Failure to Call Witness —Rebuttal of Presumption.
    Testimony explaining the failure to call a witness at a former trial of the case is admissible.
    3. Same — Expert Evidence — Impairment of Use of Feet.
    A physician may state to what extent in his opinion the injury to plaintiff’s feet complained of has reduced his physical ability to perform manual labor.
    4. Same — Conclusion op Witness.
    Plaintiff, suing for an injury to his foot, may state that he cannot use it; that he follows the statement by a full description of the injury, showing conclusively that he can use the foot, affects only the credibility and not the admissibility of his conclusion.
    Error to St. Clair; Tappan, J.
    Submitted May 1, 1906.
    (Docket No. 72.)

    Decided June 5, 1906.
    Case by Daniel McDonald against the City Electric Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Lincoln Avery and Joseph F. Walsh, for appellee.
   Hooker, J.

The defendant has brought this case to this court by writ of error. The action is for an injury to plaintiff, who was run over by defendant’s street car. Upon the trial, the principal question of fact was whether defendant was negligent in starting its car when plaintiff was in the act of stepping from the car to the pavement, or whether he attempted to alight before the car stopped. There was testimony which made this a proper question for the jury. A number of assignments of error are relied upon, most of which are upon rulings which fail to impress us as having been prejudicial to the defendant. Some of them complain of leading questions, which are usually within the discretion of the trial court; one or more to the language used by counsel, which we think was not especially prejudicial; one was a complaint that questions relating to the number and ages of plaintiff’s children were persisted in, after the court ruled against such testimony; and one was to testimony offered to account for the failure of a boy to testify at a former trial. We are of the opinion that there was no necessity for this proof as to the ages of the children, and it should have been omitted. The court so held, and excluded the testimony; but some of the questions were pressed and answered after the court intimated that he considered them improper. The testimony showed, however, that all but one were large children or adults, and we think that the case should not be reversed upon this ground, in view of the ruling made. We think that it was proper to admit the testimony regarding the omission of the boy’s testimony at the earlier trial.

A physician who was familiar with the injury was asked, “How much, in your opinion, have those two injuries — that is, the injuries to each foot — reduced this man’s physical ability to perform manual labor?” to which he answered, “I think it has been reduced fully three-quarters.” This was objected to upon-the ground that it was pure “ speculation.” It is now argued that it was for the jury to determine that, and that it was incompetent for an expert to give an opinion. It would be competent to prove by an expert surgeon that a physical injury would make the use of an injured member an impossibility, and he should be able to tell in cases where an unprofessional man could not determine whether such, an injury would impair a man’s ability to do physical or mental labor, and in such a case no reason is suggested ,for not taking his opinion as to the degree of impairment. The case of Muldraugh’s Hill, etc., Turnpike Co. v. Maupin, 79 Ky. 101, is in point. The court said:

“ Dr. Bass’ statement that, if he were examining the appellee for a pension, he would allow him one-fourth, we understand to be his professional opinion that his capacity for labor is reduced one-fourth by the rupture. This, we think, was competent. The jury cannot be'supposed to be familiar with the character of that injury, or to be able, unaided, to properly estimate its effect in impairing the appellee’s capacity to earn money, and, hence, it was proper to allow them to be enlightened by expert testimony. But the witness should not have been permitted to intimate what he regarded as proper compensation for the injury. That was a question for the jury, and on which expert testimony was not competent, nor should he have been permitted to intimate what the damage would be from apprehension of death from the injury.”

See, also, Pennsylvania R. Co. v. Henderson, 51 Pa. 315. In Atlanta, etc., Railroad v. Johnson, 66 Ga. 259, testimony that a hand was mashed and injured, describing the injury, and how much his ability to work was impaired, was held admissible. See, also, Springfield Consolidated R. Co. v. Welsch, 155 Ill. 512. In our own case of Holman v. Railway Co., 114 Mich. 214, we held it competent to take the opinion of a physician as to whether a plaintiff’s injuries would permit of her doing household duties. In the present case the physician described at length the nature of the injury, and we consider the testimony admissible.

It is contended that it was error to permit the plaintiff to testify that he had no use of his foot. It is admitted that he followed the statement with a full description of its condition, whereby it appeared conclusively that he could use it; but it is said that the testimony first given was the statement of a conclusion by the witness and should have been stricken out. It is proper to permit a witness to state whether he can move an arm or leg, whether he can use a member in the usual way, and this testimony is no more than such a statement. It may have been untrue, but that does not affect its admissibility. It is no more a conclusion of the witness than is permissible in many instances. Not being arrived at by reasoning from known conditions only, as contradistinguished from experimental knowledge, the testimony was competent.

We think it unnecessary to discuss the question relating to .the exclusion of the testimony of the witness Johnson, taken upon another trial. It was not a deposition, and we cannot hold broadly that, before a witness can be asked questions as a basis for impeachment, all of his testimony, taken by a stenographer, must be read to him. But upon recross-examination counsel seem to have read much of such testimony, and obtained answers to the ■questions asked. It is manifest that defendant suffered mo injury from the ruling.

The judgment is affirmed.

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


author: Hooker, J.‘

text:
    BEAM v. REYNOLDS.
    1. Justices oe the Peace — Jurisdiction—Absence of Summons and Return.
    A justice of the peace d'oes not lose jurisdiction through the absence of the summons and return on the return and adjourned days; both being in his possession, though not in the court-room.
    .2. Same — Adjournment—Failure to Object.
    A second adjournment by a justice of the peace, on motion of , plaintiff, defendant and counsel being present and mating no objection till after the departure of plaintiff, is equivalent to an adjournment by consent
    3. Same — Certiorari—Return.
    The return of a justice to a writ of certiorari that an adjournment on motion by plaintiff was against objection implies the presence of defendant at the time of the adjournment.
    4. Same — Doubtful Record.
    Plaintiff in certiorari cannot prevail on a doubtful record.
    Error to Van Burén; Des Voignes, J.
    Submitted May 2, 1906.
    (Docket No. 139.)
    Decided June 5, 1906.
    Assumpsit in justice’s court by Sidney Beam against .'Sylvanus G. Reynolds and another for goods sold and delivered. Plaintiff recovered judgment, and defendant Reynolds appealed to the circuit court by writ of certiorari. There was an order vacating the judgment of the justice’s court, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      Eugene W. Lawton, for appellant.

      Benton & Adams (W. J. Barnard, of counsel), for appellee.
   Hooker, J.‘

The plaintiff having recovered a judgment against both defendants in justice’s court, the cause was reversed at circuit, after the filing of an amended return. The plaintiff brought the case to this court by writ of error.

The summons was returnable on October 13th. Upon that day the cause was adjourned to October 14th and on this latter day it was again adjourned to October 16th on plaintiff’s motion, but without a showing upon oath. At this time both parties were in court, plaintiff declared, the other defendants confessed judgment, and defendant Reynolds, appearing by counsel, refused to take part in the proceedings upon the ground that the court had no jurisdiction. Judgment followed, and Reynolds removed the cause to the circuit court by certiorari, alleging the following errors:

1. Because the second adjournment was in violation of the statute, 1 Comp. Laws, § 791, no showing on oath being made. The justice thereby lost jurisdiction.

2 and 3. That the failure of the officer to have his summons in court on the return and adjourned days worked a discontinuance of the cause.

4. Failure of the plaintiff to show diligence to obtain testimony made the adjournment erroneous and jurisdiction was lost.

5. Failure to require a showing under oath rendered the second adjournment invalid, which was fatal to the jurisdiction.

The judgment was reversed upon the ground that the cause was adjourned twice in the absence of defendant without showing upon oath.

After the first return, the court made an order that a further return be made, it appearing by affidavit, etc., that the return theretofore made was incomplete and erroneous. In the further return the justice stated: That on October 13th the summons was returned personally served on October 7th by the constable, and that the cause was adjourned to October 14th at his office. That on October 14th plaintiff appeared in person, defendant Reynolds by attorney, and that on motion of plaintiff, no objection being made by defendant or his attorney, the cause was adjourned to October 16, 1905, at 10 a. m., at the justice’s office aforesaid. That no person made any objection, or stated any reason why an adjournment should not be granted. That after the plaintiff left the court-room defendant’s counsel filed three objections to the jurisdiction of the court, one of which was that the court had lost jurisdiction (if it ever had it) by the adjournment without showing that a diligent attempt to secure a material witness had been made. Further, that on October 16th a motion was made to dismiss the action for want of jurisdiction:

1. Because no special showing on oath was made to adjourn .the case on October 14th.

2. Jurisdiction was lost by the absence of the summons and return, on the return and adjourned day.

That said motion was overruled, because (1) plaintiff asked for the adjournment and no objection was made. {2) The summons and return had been duly returned to the justice and were in his possession at the time, and no request had been made to see them.

Two questions were reviewable by the circuit court:

•1. Was the absence of the summons and return a fatal defect in the proceedings, resulting in loss of jurisdiction?

2. Was the second adjournment .void, terminating jurisdiction ?

The justice did not lose jurisdiction through the absence of the writ and return. Both were in his possession, though not in the court-room. He so returns specifically, and his return is conclusive. Ordinarily a second adjournment, in the absence of the defendant, is fatal, unless upon a motion supported by the oath of some one. In this case the return shows that the defendant and counsel were present, and did not object to the granting of the adjournment until after the plaintiff had gone. This was equivalent to an adjournment by consent. Tiffany’s Justice’s Guide (1905), p. 303; Dunham v. Heyden, 7 Johns. (N. Y.) 381; Kilmore v. Sudam, 7 Johns. (N. Y.) 529. See, also, Patterson v. McRea, 29 Mich. 258.

We are asked to consider some inconsistencies between the two returns, and to find, as did the learned circuit judge, that it appears from said returns that the first and second continuances were made in the absence of defendant. The first return states that the second adjournment was against objection. This implies the presence of defendant. The second states that defendant and his counsel were present, and on motion of plaintiff for cause shown (but without oath), defendant or his attorney not objecting, the adjournment was made. The plain inference is that the defendant was present at the time this took place, and under the settled rule a plaintiff in certiorari cannot prevail upon a doubtful record.

The judgment is reversed, and that of the justice affirmed.

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


author: McAlvay, J.

text:
    RENDERS v. GRAND TRUNK RAILROAD CO.
    1. Railroads — Collision with Street Car — Injuries to Passenger on Street Car — Negligence.
    A railroad company’s gate beeper shut the east gate at a crossing behind a west-bound street car as it was crossing in front of an approaching passenger train, and attempted to shut the west gate, but a car going east ran under this gate, which prevented it being lowered. The keeper saw the train approaching with the headlight burning, and then raised the east gate to enable the east-bound car to get through, but it was unable to do so, and a collision occurred, injuring plaintiff, who was a passenger on the street car. The car going west had passed in safety, and the gates would have been down, but for the car coming under the west gate making it impossible to close it. Held, that defendant railroad company was not negligent in raising the east gate to enable the east-bound car to get through, as it was the only avenue of escape.

      2. Negligence — Presumption.
    Negligence cannot be presumed, but must be proved.
    3. Same — Fact op Accident — Res Ipsa Loquitur.
    The mere fact of an accident is insufficient to impose a liability for negligence.
    4. Carriers — Street Railroads — Injuries to Passengers — Negligence — Question eor Jury.
    Where the operatives of a street car, without stopping the car and going ahead to ascertain by looking and listening to learn whether the way was clear, as the law requires, ran the same onto a railroad crossing in front of an approaching train, which was in plain view, with a headlight burning, and a collision and injury to a passenger on the street car re- • suited, the question whether the street car company was guilty of negligence is for the jury.
    5. Trial — Objections to Evidence.
    A general objection to the introduction of mortality tables on the ground that they are incompetent, without specifying any other ground, is insufficient.
    6. Damages — Personal Injuries — Elements—Fainting Spells— Issues.
    Where the declaration in an action for personal injuries sets forth in the usual form the injui-ies plaintiff received and the results arising therefrom, and a physician testifies that fainting spells followed as a consequence of such injury, plaintiff is properly allowed to prove that she is troubled with fainting spells as an element of damage, though the declaration contains no specific allegation thereof.
    Error to Wayne; Mandell, J.
    Submitted October 18, 1905.
    (Docket No. 77.)

    Decided July 3, 1906.
    Case by Odelia Renders, by next friend, against the Grand Trunk Railroad Company of Canada, the Detroit, Grand Haven & Milwaukee Railroad Company, and the Detroit United Railway for personal injuries. There was judgment for plaintiff against defendants Grand Trunk Railroad Company and Detroit United Railway, and they bring error.
    Reversed as to the Grand Trunk Railroad Company and affirmed as to the Detroit United Railway.

      Harrison Geer, for appellant Grand Trunk Railroad Co.

      Brennan, Donnelly & Van De Mark, for appellant Detroit United Railway.

      George B. Greening, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment for damages against defendants Grand Trunk Railroad Company and Detroit United Railway in the Wayne circuit court for personal injuries received January 15, 1904. The Detroit, Grand Haven & Milwaukee Railroad Company was also a defendant to the suit. After hearing plaintiff’s proofs, the trial judge directed, a verdict in its favor. Plaintiff was about 20 years old at the time of the accident, and was employed in a cap factory in Detroit, going to and from her work on the cars of defendant street railway. This company operates its cars on Gratiot avenue, a public highway in said city, running east and west, and crossing Dequindre street, which runs north and south. TJpon and along Dequindre street are the tracks of defendant railroad company upon which it operates its trains. At this crossing, on this day, at about 6 o’clock in the evening, defendant railroad’s passenger train going south collided with defendant railway’s street car going east, in which plaintiff was riding, by reason of which ■collision she was injured. At this crossing the Grand Trunk Railroad Company maintains gates. The passenger train was due and on time. A street car going west had crossed the railroad track. The gateman shut the east gate down behind it, and when it passed the west gate he started to close that; but the car which was going east ran under it, so that he could, not get the gate down lower than the trolley, and left it there. He saw the passenger train coming, the headlight burning. He raised the east gate, as he says, “ to give them a chance to get through.” When the street car was struck both gates were up. .,

We are asked by defendants to reverse the judgment for several reasons:

1. No negligence upon the part of either defendant having been shown, a verdict should have been directed in their favor. It is argued that, in order to hold defendants liable, negligence must be presumed. The gate keeper, agent of defendant railroad company, testified when and how he operated the gates on that occasion. The car going west was crossing the track, and he shut the east gate behind it. He then attempted to shut the west gate, but the car going east ran under this gate and it could not be lowered. He saw the train coming with the headlight burning. He raised the east gate to give them a chance to get through. This passenger train was due and on time. As to defendant railroad company, we cannot say that there was evidence of negligence in the manner of the manipulating the gates by its agent. The car going west had passed in safety, and the gates would have been down but for the street car coming under the west gate and making it impossible to close it. To raise the east gate to give them a chance to get through after he saw the car proceeding to cross cannot be held to be negligent. It was the only avenue of escape. No negligence is shown in the operation of the passenger train. The court left the question of the negligence of defendant railroad company to be presumed. It was error to do so. Upon this record the court should have directed a verdict, for the reasons stated, in favor of defendant Grand Trunk. Railroad Company. It is the settled rule in this State that negligence cannot be presumed, that the mere fact of an accident is not sufficient to impose a liability for negligence. Toomey v. Steel Works, 89 Mich. 252, and cases cited — cited and approved in Robinson v. Charles Wright & Co., 94 Mich. 286; Perry v. Railroad Co., 108 Mich. 135.

It is argued that there was also no proof of the negligence of defendant street railway. The law for the protection of the public imposes a duty upon the operators of a street , car, in crossing a railroad track, to stop the car and go ahead to ascertain by looking and listening if the way is clear. In this case there is the undisputed fact that there was a train approaching in plain view with a headlight burning. Under such circumstances, with this undisputed physical fact established, the question of this defendant’s, negligence was one of fact for the jury to determine. It. was not error for the court to submit this question to the jury, and to refuse to direct a verdict for defendant street railway.

2. Defendants claim that the court erroneously allowed the introduction of the mortality tables in evidence. The objection made to their introduction, without specifying any ground upon which it was made, was' that they were incompetent. These tables were not referred to in the charge of the court, and the record does not disclose that they were again mentioned in the case. This court has held, with reference to such a general objection:

“ If anything is settled by bur decisions, it is that, unless an objection clearly advises the trial court of the specific ground upon which it is made, it will not justify a reversal.” Detzur v. Brewing Co., 119 Mich. 287 (44 L. R. A. 500), and cases cited.

3. Error is alleged to have been committed in ^permitting plaintiff to introduce testimony as an element of damages that she was troubled with fainting spells; that such testimony was not admissible under the pleadings and proofs. We think the declaration sufficient. It was in the usual form setting forth the injuries plaintiff received, and the results arising therefrom. The declaration contained no allegation relative to fainting spells, but the testimony of the physician tended to show that they followed as a consequence of the injuries received. This testimony showing fainting spells after the injury was admissible. Montgomery v. Railway Co., 103 Mich. 47 (29 L. R. A. 287); Johnson v. McKee, 27 Mich. 471.

4. It was not error to deny defendant’s motion for a new trial. There was evidence to support the verdict, and it was not excessive.

The judgment of the circuit court is affirmed, with costs, against the Detroit United Railway, and reversed as to defendant Grand Trunk Railroad Company, with costs against plaintiff.

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


author: Montgomery, J.

text:
    EPELETT v. CITY OF SAULT STE. MARIE.
    1. Highways and Streets — Defective Sidewalks — Personal Injuries — Declaration—Variance.
    Where the declaration against a city for personal injuries received from falling on a defective sidewalk alleges that the walk was constructed of plank running lengthwise of .the walk upon stringers laid crosswise, that a plank was decayed at the end allowing it to drop down and rest upon the ground 10 inches below the level of the walk, and that plaintiff stepped into the hole and was injured, and the proof shows that the board looked to be in place, but was rotten at the end and gave way when plaintiff stepped on it, there is no misleading variance.
    2. Municipal'Corporations — Defective Sidewalks — Notice of Defect Causing Injury.
    Evidence that sidewalk in the immediate vicinity of the plank causing an injury had been in bad condition for two or tbiree years before the injury, and that the plank in question had been rotted off for some months, is sufficient on the question of notice to the city of the defect in the walk.
    3. Highways and Streets — Defective Sidewalks — Personal Injuries — Contributory Negligence.
    An instruction which imposes upon a plaintiff, suing for injuries received from a fall on a defective sidewalk while intoxicated, greater care than is required from a person not intoxicated, is properly refused.
    Error to Chippewa; Steere, J.
    Submitted December 5, 1905.
    (Docket No. 134.)
    Decided July 3, 1906.
    Case by Lottie Epelett against the city of Sault Ste. Marie for personal injuries. ‘ There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George B. Holden, for appellant.

      Chapman & Barmouth (if. F. McDonald, of counsel), for appellee.
   Montgomery, J.

The plaintiff recovered a judgment •of $1,000 in an action of trespass on the case, brought to recover for injuries sustained by reason of a defective sidewalk. The defendant brings error.

It is claimed that there was a fatal variance between the ■declaration and proofs. The declaration averred in substance that the sidewalk was constructed of plank running lengthwise of the walk resting upon stringers laid crosswise of the walk; that the end of one of the planks had become rotten or broken off, which allowed the plank to drop down and rest upon the ground, which at that point was, to wit, 10 inches below the level of the sidewalk; ■that plaintiff stepped into the hole above described, and that, her foot being caught in said hole, she fell and received injury. The evidence showed that the board looked to be in place, but that it was rotten at the end, but that when stepped on it went down with plaintiff’s weight. The variance if any was in describing as a hole in the walk the condition of this plank (otherwise accurately described) which resulted in a hole or depression whenever stepped upon. It was not alleged that any portion of the plank was broken off, causing a hole in the walk. The allegation was that the rotted end allowed the board or plank to drop down. Was it a variance when the proof showed that the end dropped down on pressure ? There was no mistaking the place of the accident. The particular plank and its particular defect were described. There was no room for mistaking the case which plaintiff undertook to state. There was no misleading variance. Merkle v. Township of Bennington, 68 Mich. 133.

It is next insisted that the plaintiff failed to make a case, and that error was committed in refusing to direct a verdict for defendant. The contention made is that no notice of the defect was brought home to the officers of the city. It is true that there was no evidence of direct notice to any officer of the city given by word or writing, but the undisputed evidence was that the walk in the immediate vicinity of this plank was in bad condition for two or three years before the injury to the plaintiff. There was also testimony for the jury that the plank in question had been rotted off for some months. That testimony of the condition of the walk for a considerable time-before the accident may be given for the purpose of showing notice to the city, and that such testimony may relate to the walk in the immediate vicinity or to a stretch of walk as a whole, is settled. Strudgeon v. Village of Sand Beach, 107 Mich. 496; Will v. Village of Mendon, 108 Mich. 251; Hunter v. Village of Ithaca, 141 Mich. 539; Nestle v. City of Flint, 141 Mich. 153.

There was testimony tending to show that plaintiff was intoxicated at the time of the fall. Defendant’s counsel asked the court to charge the jury that “ in case she was intoxicated she cannot recover unless she was exercising greater care than would be required on her part if she were-not intoxicated.” No error was committed in refusing this request. Kingston v. Railway Co., 113 Mich. 40 (40 L. R. A. 131). It would be a safe rule to assert that-the intoxication of a pedestrian will not excuse due care-on his part in traveling over a highway, but we are cited to no authority which sustains the proposition that a, higher degree of care is required of an intoxicated person than one in his sober senses. It would seem that if an intoxicated person is capable of exercising, and does exercise, the care which the law requires of a sober person, the fact of intoxication becomes immaterial.

The other assignments of error have been considered.. We discover no error to defendant’s prejudice.

Judgment affirmed.

McAlvay, Ostrander, Hooker, and Moore, JJ.s concurred.


author: Grant, J. Hooker, J.

text:
    WEAVER v. RICHARDS.
    1. Vendor and Purchaser — Contract to Convey — Merchantable Title.
    Under a contract to convey land, the vendor is bound to convey to the purchaser a merchantable title, viz., one which is unassailable on the face of the record as well as in fact.

      %. Brokers —Right to Commissions — Failure to Sell — Title of Vendor.'
    Where a sale of land, negotiated by plaintiff for defendant, failed because the record did not show that the defendant had acquired the alleged outstanding interests of two heirs in the land, plaintiff’s right to recover commissions is not affected by the fact that at the time of the purchaser’s refusal to accept title there was a will in existence under which defendant acquired full title to the property, of which will none of the parties had knowledge.
    3. Principal and Agent-Authority to Convey Land — Revocation — Death of Principal.
    A power appointing an attorney to sell all the property of the estate of a deceased person belonging to the signers of the power, and to receive and distribute the proceeds, containing an express provision that it shall be irrevocable and survive them if any of the parties should die, does not constitute a power coupled with an interest, and is therefore revoked by the death of certain of the grantors prior to the exercise of the power. Grant and Blair, JJ., dissenting.
    Error to Emmet; Shepherd, J.
    Submitted February 9, 1905.
    (Docket No. 122.)
    (Docket No. 2.)
    Reargued April 4, 1906.
    Decided July 3, 1906.
    .Assumpsit by John W. Weaver against George D. Richards for a commission for the sale of land. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.
    Plaintiff claims that he procured a purchaser for the defendant of certain lands owned by him, under an agreement that he, plaintiff, should receive all the purchase price over and above $6,000; that he found a purchaser for $8,000; that the proposed purchaser finally refused to accept a warranty deed from the defendant, because his attorney advised him that defendant had not a marketable title. The court directed a verdict for the defendant. Plaintiff claims under a parol contract, which he states as follows:
    “Mr. Richards stated to me — we had a long talk at my house, and I was to have all I could realize over $6,000 net to Mr. Richards. I says, ‘All right, I’ll go ahead and sell those lands.’ And he says, ‘You can have all you can realize over $6,000 net.’ In pursuance of this conversation, Mr. Richards and I went to Grayling with the deed for the Michelson & Hanson Lumber Company. I went there before this time that Richards and I went there together. I went down there and made the sale to Michelson & Hanson Lumber Company. The price agreed to be paid by them was $8,000.”
    Three days afterwards defendant went to Lansing, paid all the back taxes upon the lands, and wrote the plaintiff a letter authorizing him to sell the lands on certain conditions named therein, which conditions plaintiff claims were'not in the original parol agreement. It is unnecessary to state the contents of this letter. Plaintiff notified the defendant of the proposed purchase, and directed him to make a deed to Sailing, Hanson & Co., the proposed purchaser and grantee. Defendant duly signed and acknowledged a warranty deed of the lands to that company. Plaintiff and defendant then went to the office of the company to carry out the sale. The officers were not at home. The deed was then left at a bank, to be delivered on payment of the purchase price, $8,000, of which $6,000 was to go to defendant, and $2,000 to plaintiff. With the deed was also left an abstract of title. The company submitted the papers to its attorney, who advised it that, in his opinion, defendant was not possessed of the entire title. Consequently the sale was not consummated. The deed made by the defendant and left at the bank was returned indorsed:

      ‘ ‘ Sale not made. This deed refused and returned to grantor April 7, 1900.”
    The title to the lands formerly was in James Gibb Ross, of Quebec, Canada, who died in October, 1888. He was at the time believed to be intestate. An administration was had upon his estate. He owned lands in the county of Marquette, and the probate court there determined that his heirs were two brothers, William and Frank Ross, each entitled to a one-third interest in the estate; and John Theodore, Annie, and Frances Ella Ross, children of a deceased brother, each being entitled to a one-ninth interest in the estate. The defendant derived his title by conveyances from these heirs. Among these muniments of title were some powers of attorney. Mr. Alexander, the attorney for Sailing, Hanson & Co., testified:
    “ I examined the abstract and deed. The deed was not delivered as a matter of law — only conditional upon the terms of agreement. * * * My clients desired me to go to Cheboygan and examine the records to verify the correctness of the abstract. I did so, and found that the abstract was a correct statement of the condition of the title as shown by the records. I reported to my client that in my judgment Mr. Richards did not possess a record title to a one-ninth undivided interest of Annie Ross, and an undivided one-third interest of William Ross. * * * My reason for saying that there was a question of title is because I thought those powers of attorney, and the conveyances under them, did not convey the interest of William and Annie Ross, and it was upon this ground that I turned down the transaction of sale. * * * I therefore reported to my clients that in my judgment Mr. Richards did not possess a record title to a one-ninth undivided interest of Annie Ross, and a one-third interest of William Ross, and that it would not be safe for them to rely upon the title to the entire interest in the lands.”
    The principal objection of the attorneys to the title is based upon an agreement and power of attorney, executed by the heirs of James Gibb Ross, and the fact that subsequent to its execution and before the sale and conveyanee of the land in question by the attorneys two of the parties, William and Annie Ross, had died,' and that thereby the power of attorney was revoked, and the deed from the trustees, or attorneys in fact, was therefore void. This agreement and power of attorney, executed 'in Quebec, Canada, is long', but, as the purport and intent of that instrument can better be understood from a perusal of it in its entirety, we give it in full. It reads as follows:
    “ On this, the fifth of the month of October, in the year of our Lord one thousand eight hundred and eighty-eight, before me, William Noble Campbell, the undersigned notary public, for the Province of Quebec in the Dominion of Canada, and residing in the city of Quebec, personally came and appeared and were present William Ross, of the city of London, in England, Esquire, merchant, Frank Ross of the Banlieue of the city of Quebec, Esquire, merchant, John Theodore Ross, Esquire, merchant, and Miss Annie Ross, spinster, of the full age of majority, these two last of the city of Quebec, the said John Theodore Ross being a party to these presents, as well as in his individual capacity as in his quality of tutor, duly appointed in law to Miss Frances Ella Ross, a minor, the said William Ross, Frank Ross, John Theodore Ross, Annie Ross and Frances Ella Ross being the sole heirs at law of the late Honorable’James Gibb Ross, in his lifetime, of the city of Quebec, merchant, and a Senator of the Dominion of Canada, who departed this life on the first day of October, instant, intestate, his said heirs at law being, to wit, his brothers, the said William Ross and Prank Ross, and the sole representatives of his brother, John Ross, in his lifetime of the city of Quebec, Esquire, merchant, deceased, namely, the said John Theodore Ross, Annie Ross, and Frances Ella Ross, which said parties did, in the presence of me, the said notary, declare that with the view of winding up and dividing among themselves the estate of the said Honorable James Gibb Ross, they have covenanted and agreed, and do covenant and agree among themselves together as follows; that is to say:
    “ The said William Ross and the said Annie Ross do hereby appoint and constitute the said Frank Ross and John Theodore Ross to be jointly and severally their agents and attorneys irrevocable in and for the administration and winding up of the said estate, and the selling and division of the proceeds of the same, according to law, with full power and authority for and in the name and on the behalf of the said William Ross and Annie Ross, or in any legal manner soever to ask, demand, recover and receive of and from all and every person or persons whom it doth, shall or may concern, all and every the sums of money, both principal and interest, costs and charges, goods, wares, merchandise, effects and things whatsoever that now is or are, or hereafter shall or may be anyways due, owing, payable or belonging .to the said estate, and whether such moneys as aforesaid be due, by bill, bond, note, obligation, account, or under and by virtue of any contract, deed or instrument in writing, or by operation of law, or under and by virtue of any judgment or judgments of any court or courts, or otherwise howsoever; also lor the said Frank Ross and John Theodore Ross for and on behalf of the said William Ross and Annie Ross, as such heirs aforesaid, and in their name to examine, settle, adjust and balance all accounts with any person or persons touching or concerning the premises, and to compound, compromise, arbitrate, conclude and agree upon for and respecting all differences and disputes which may arise, grow or be moved in the premises, and what shall be agreed upon, to receive, and of everything that shall be recovered and received by virtue of these presents, to give good and valid receipts and discharges, also for in the name and on behalf of them the said constituents to make, sign, accept, and endorse any bills, promissory notes, drafts, bills of exchange, as the business of the estate of the said late James Gibb Ross may require, and to negotiate the same at any of the ■chartered banks carrying on business at Quebec, and to draw cheques on any of the said banks for the purposes of the business of the said estate, and to borrow such sum or sums of money and discount such note or notes as they, the said Frank Ross and John Theodore Ross, or either of them, shall deem necessary or advisable in the interest of the heirs or of the said estate, and the signature to be used by the said Frank Ross and John Theodore Ross, or either of them or their substitute or substitutes shall be either ‘ estate late Jas. G. Ross,’or ‘ Ross & Co. in Liquidation,’ as may be thought convenient or advisable in the discretion of the party entitled to use and using the same; also for and in the name and on behalf of them, the said William Ross and Annie Ross, or in any legal manner to sue, commence and prosecute any action or actions, suit or suits at law, appear in any court or courts, whether of original or appellate jurisdiction, and before all judges and justices, there to answer, defend and reply to all matters and causes touching or concerning the said estate, refer and defer the serment decisoire, and to do, say, pursue, implead, seize, sequester, arrest and attach persons and effects in the interest of the said estate, and to sell and dispose of the real estate and immovable property in the city of Quebec and elsewhere, belonging to the said estate of the late James Gibb Ross, as they, the said Frank Ross and John Theodore Ross, may deem necessary or advisable, and to give good and valid receipts for the purchase price thereof, and generally all and singular the affairs and concerns of the said estate to manage, negotiate, transact and conduct, liquidate, adjust and settle as fully and amply to all intents and purposes as the said William Ross and Annie Ross, or either of them, might or could, if personally present and acting in conjunction with the other heirs at law of the said late Honorable James Gibb Ross, and without that, any further or other authority shall be necessary or requisite than these presents, and to sign, seal and execute and deliver all such deeds, instruments, documents and writings as shall or may be necessary or needful in the performance of the premises or any of them, and one or more attorney or attorneys, procurator or procurators for all or any of the said purposes under them or either of them, the said Frank Ross and John Theodore Ross to substitute and appoint, the same at pleasure to revoke, and one or more clerks, agents and accountants to appoint and employ at the city of Quebec or elsewhere, at the costs and charges of the said estate, with power to change, dismiss or replace them at pleasure. Hereby ratifying, allowing and confirming, and agreeing to ratify, allow and confirm all and whatsoever, the said Frank Ross and John Theodore Ross jointly or separately, or their substitutes shall jointly or separately legally to do or cause to be done by virtue of these presents, and declaring that in the management of the said estate the said Frank Ross and John Theodore Ross shall not be held liable for any errors of judgment.
    <c And it was further covenanted and agreed between the said parties in the presence of the said notary, that should either or both of the said William Ross and Annie Ross die before the said estate shall have been finally wound up, then that the said Frank Ross and John Theodore Ross, or the survivor of them, shall continue to manage and wind up the said estate in like manner as though the said William Ross or Annie Ross, or both of them, were still living; but that in case of the demise of either of the said William Ross or Annie Ross, the said Frank Ross and John Theodore Ross, or either of them, if only one of them shall then be living, shall be and are authorized and entitled to.use the names of the legal representatives of either or both of the said William Ross or Annie Ross, as the case may be, in any suit at law or legal proceeding in which the names of such representatives should appear in like manner as the said Frank Ross and John Theodore Ross are, by these presents, entitled to use the names of the said William Ross and Annie Ross in all legal proceedings connected with the realization and winding up of the said estate. And it has been further covenanted and agreed that the said Frank Ross and John Theodore Ross shall cause to be opened and regularly kept up, books of accounts in which shall be entered and recorded, all assets, debts and transactions of or concerning the management and properties of the said estate, that balance shall be annually taken from the said books, commencing with the first day of May next, duly certified by the said Frank Ross or John Theodore Ross, and handed to whom it may concern. And it was further agreed between the said parties, in presence of said notary, that as a remuneration for the trouble, loss of time, and sacrifices which the said management and winding up of the said estate will entail upon the said Frank Ross and John Theodore Ross, each of them shall be and are hereby declared to be entitled to draw from the funds of the said estate generally the sum of four thousand dollars annually, commencing from the first day of October instant, for the period of five years from this date.
    “ Thus done and passed at the said city of Quebec, in the office of me, the said notary, under the number one thousand one hundred and ninety-one.
    “ In witness whereof, the said parties have signed these presents with me, the said notary, the same being first duly rea4 according to law.
    [Signed] “Wm. Ross.
    “ “Frank Ross.
    “ “John Theodore Ross.
    “ “John Theodore Ross,
    “ “ Tutor to Frances Ella Ross.
    “ “Annie Ross.
    “ “W. Noble Campbell, N. P.”

      Until after the date of this transaction, it was supposed that Mr. James Gibb Ross died intestate. Shortly thereafter a will was found, duly executed by him, which was duly probated in Canada, and admitted to probate in the county of Marquette, Mich. A certified copy thereof and of the probation was introduced in evidence upon the trial. It devised the entire estate to his brother, Frank Ross. There is no evidence of the death of Annie Ross— nothing but a rumor that she was dead. The court held that the defendant had shown a good and valid title.

      Halstead & Halstead, for appellant.

      Clark & Pearl and J. M. C. Smith, for appellee.
   Grant, J.

(after stating the facts). 1. Plaintiff agreed to effect a sale of defendant’s lands which should net the defendant $6,000. The sale was not effected, and it is urged that the 'reason for the failure is a defect in title, for which the defendant alone is responsible, and that the plaintiff had performed his contract by finding a, purchaser. No bad faith is charged against the defendant. He acted in entire good faith. He believed he had a good title. He was willing to defend it by warranty deed. How the plaintiff obtained knowledge that the defendant owned these lands does not appear. If he obtained knowledge by an examination of the records in the office of the register of deeds, he is chargeable with knowledge of the defendant’s title, and would be held to have contracted with reference to it. He does not testify that he did not know what was the defendant’s source of title, or that he did not see and examine the abstract which the defendant had. Three attorneys of standing had advised defendant that his title was good. The power of attorney and the deed thereunder had been held valid by the circuit court for the county of Schoolcraft. See Chicago Lumbering Co. v. Powell, 120 Mich. 51. That case was appealed to this court and affirmed, although the validity of the power of attorney was not discussed, and the case was determined on other points. Under these circumstances there is no justice or equity in the plaintiff’s claim, and, if it can be sustained, it must be by reason of an inexorable rule of law. Plaintiff made no binding contract with the proposed purchaser, the Sailing, Hanson & Co. It was under no legal or moral obligation to purchase the land. It could decline with or without reason. It declined because its attorney advised it that there was a defect in the title. The opinion of the attorney is not evidence of a defect. Brackenridge v. Claridge, 91 Tex. 527 (43 L. R. A. 593). If the defendant had title by adverse possession, clearly the proposed purchaser would •not be under any obligation to accept such a title. Would plaintiff in that event have earned his commission ? The cases upon such contracts are very numerous. The briefs are very meager upon this important question. Inasmuch as it is unnecessary, we decline to pass upon' it, as the case can be disposed of upon the other point. Upon this point, however, see Blankenship's Adm’r v. Ryerson, 50 Ala. 426; Garcelon v. Tibbetts, 84 Me. 148; Gilchrist v. Clarke, 86 Tenn. 583; Barnard v. Monnot, 34 Barb. (N. Y.) 90; Park v. Hogle, 124 Iowa, 98; Knapp v. Wallace, 41 N. Y. 477; Tombs v. Alexander, 101 Mass. 255; Stewart v. Fowler, 37 Kan. 677. A full discussion of the question and citation of authorities will be found in Fitch on Real Estate Agency, pp. 107-115, and Rapalje on Real Estate Brokers, chap. 13.

2. It is insisted that the above agreement, containing the power of attorney, necessarily incident to the performance of the agreement, conferred only rights and powers revocable by the death of any of the parties thereto; or, in other words, that the power to sell and convey conferred upon Frank and John is a mere naked power, not coupled with any right or interest which they did not possess before the execution of the instrument. Contracts are always to be construed so as to carry out the clear intefit of the parties thereto, unless such intent is unlawful, or opposed to some sound and well-defined policy of the law. Counsel concede that they find no case the parallel of this in its facts. They cite other cases involving the construction of powers of attorney and reason by analogy from, them. Owners of estates, both real and personal, may incumber them, provide for their sale and disposition while they are living, and also after their death, in any manner not inconsistent with the laws prohibiting the entailment of property.

The situation of the parties and the purpose to be attained are of importance in determining the character of the instrument. Here were five tenants in common of a large estate, consisting of both real and personal property, situated in various jurisdictions in Canada and in the United States. The necessity, as well as the wisdom, of placing this estate in the hands of one or more of their number to dispose of and divide the proceeds, is apparent. Under the law each party could apply for partition to the courts in each jurisdiction where the land was located. Such proceedings would be expensive and difficult, and probably would not result in the most beneficial sales. The credits could not be collected, and other personal property sold without the joint action of all. The parties, therefore, wisely came together and executed the above agreement. By it Frank and John agreed to take the possession, control, and management of the entire property for five years, at a compensation of $4,000 each per year. The other tenants in common agreed to this. The power to sell and convey was a necessary part of such a contract. All the expenses of Frank and John and their compensation were to be paid out of the body of the property. They therefore had a lien upon the property -for such expenses and compensation. Each surrendered his legal right for five years to proceed under the law for a partition of the estate. They did not retain the right to sell and transfer any of the property in their own name, nor was it to be transferred necessarily in their names by Frank and John as attorneys in fact. The instrument provided the name or names by-which the property could be transferred. All had a joint- interest in the possession nse, and control of the property. They all agreed for a valuable consideration to surrender these rights to, and place the property.and its control and possession in the hands of, two of their number. A trust deed would not have given them more complete power. The intention of the parties is commendable and legal. The purpose to be attained is not only not contrary to any policy of the law, but one which the law should specially favor. •

The scriyener of this instrument evidently understood the law governing powers of attorney, for he expressly provided in accord with the intent and wishes of the parties that no party thereto should be able to revoke or renounce the agreement or any part thereof during the term covered thereby, and made it binding upon their heirs in case of death. None of the cases cited by plaintiff contain the like provision. A revocation by the act ■of the party or by death would destroy the unity of the agreement and render it of no avail. It was the clear and ■express purpose of the parties by this instrument to prevent such a result, and to provide for an economical and speedy collection, sale, and division of lihe estate. The power of attorney, necessarily incident to the execution of this agreement, cannot, in my judgment, be separated from the rest of the agreement, and be held to be a mere naked power of attorney.

Counsel for defendant do not appear ‡0 claim that either party could revoke this instrument by his own act. In case of a mere naked power the owner may sell the property, the subject of the power, and collect the purchase price, in which case the only remedy of his attorney is to sue him for his compensation. Such was the case of Baker v. Baird, 79 Mich. 255. In this case either party might convey all his interest in the estate, but it would be subject to this contract under which upon the division he would receive only what his vendor would have received.

A mere naked power of attorney is revocable at the will of the principal, for the reason, as stated by the authorities, that “the derivative authority cannot generally exist longer than the original authority. ” Story on Agency, § 481. Or, as stated by the same author, “upon the general principle that he who alone has an interest in the execution of an act is also entitled to control it.” Section 476. The same section of the learned author clearly intimates that if the agent has an interest in the execution of the power, and there is a valid consideration for it, the power is not revocable. To the general rule above stated there are exceptions, viz., where the power is coupled with an interest, or where a consideration is paid for it. Courts have found some difficulty in determining when the power -is coupled with an interest. It is generally held that the interest must be in the thing itself, and not in the, execution of the power, and that the same instrument must confer the power and convey the interest. Where an executor is vested with "the rents and profits for the sale or use .of another, the power survives as an authority coupled with an interest. Peter v. Beverly, 10 Pet. (U. S.) 532. Where the language detached from other parts of the instrument conferred a naked power, but other provisions of the instrument evinced a design that at all events the lands, are to be sold, the power was held to survive. Franklin v. Osgood, 14 Johns. (N. Y.) 553. One authority states the general rule as follows:

“ Where an authority or power is given for a valuable-consideration, or is coupled with an interest, or is part of a security for the payment of money, or the performance of some other lawful act, it is irrevocable, whether so expressed upon its face or not.” Frink v. Roe, 70 Cal. 296.

It is also said:

“ One of the exceptions to the general rule is where the-agency is for a definite time. Where the contract of agency is entered into for a certain specified time, it cannot be rightfully revoked before the expiration of that time, except for sufficient cause.” 1 Clark & Skyles on Law of Agency, § 160.

Two circuit courts, after careful consideration, have> held this power of attorney irrevocable. Chicago Lumbering Co. v. Powell, supra, and the trial court in this case.

It is declared by one authority that, if the act authorized must be performed in the name of the principal, the agency is revocable; but, if such act can be performed by the agent in his own name, then it is not revocable. 1 Parsons on Contracts, p. 72. Tested by this rule the power was not revoked; for, by the very terms of the contract, the various acts contemplated need not be done in the name of the principals.

Where certain parties were partners, and they made an arrangement by which certain property was to be disposed of by one of their number, and the property was actually placed in his custody for that purpose, it was said:

“ The power vested in the plaintiff was not a naked power, but a power coupled with an interest. The death of the other parties would not have revoked it, and neither will their subsequent transfer of their interest. It would be unjust to allow an arrangement of this kind, entered into to prevent the necessity of legal proceedings and to secure to parties their legal rights and no more, to be made and unmade, at the pleasure of one of the parties.” Beecher v. Bennett, 11 Barb. (N. Y.) 374, 380.

Reinhard, in his work on Agency (section 183), cites .as an instance of an irrevocable power “where the power conferred is that the agent may reimburse himself for advances made in the course of the agency,” citing Posten v. Rassette, 5 Cal. 467. That case holds that the power conferred was something more than a mere naked power, but does not state the facts upon which the holding was based. The opinion states that “it was received by Parker as a security for the indebtedness of his principal to him,” and held that he had a vested right founded upon a good consideration. It may be that the indebtedness arose by way of advances made in the course of the agency. If so, it would be an authority for the statement of the author. It is said in Peter v. Beverly, supra:

“It is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question.”

Chancellor Kent said in Bergen v. Bennett, 1 Caine’s Cas. (N. Y.) 1, 15:

“A power simply collateral and without interest, or a naked power, is, when, to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor hath, by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives, under the instrument creating the power, or otherwise a present or future interest in the land, it is then a power relating to the land.”

See, also, Knapp v. Alvord, 10 Paige (N. Y.), 205; Merry v. Lynch, 68 Me. 94; Kelly v. Bowerman, 113 Mich. 446; Baker v. Baird, 79 Mich. 255.

Counsel for plaintiff rely greatly upon Hunt v. Rousmanier, 8 Wheat. (U. S.) 174. To secure a proper application of that case, it is necessary to consider what was there involved and what was decided. The question arose upon a demurrer to a bill in chancery, which was sustained by the court below and reversed by the Supreme Court. The original bill stated:

“That Lewis Rousmanier, the intestate of the defendants, applied to the plaintiff, in January, 1820, for the loan of $1,450, offering to give, in addition to his notes, a bill of sale, or a mortgage of his interest in the brig Nereus, then at sea, as collateral security for the repayment of the money. The sum requested was lent; and on the 11th of January the said Rousmanier executed two notes for the amount, and on the 15th of the same month he executed a power of attorney, authorizing the plaintiff to make and execute a bill of sale of three-fourths of the said vessel to himself or to any other person, and in the event of said vessel, or her freight, being lost, to collect the money which should become due on a policy by which the vessel and freight were insured. This instrument contained, also, a proviso, reciting that the power was given for collateral security for the payment of the notes already mentioned, and was to be void on their payment, on the failure to do which, the plaintiff ..was to pay the amount thereof, and all expenses, out of the proceeds of the said property, and to return the residue to the said Rousmanier.”

The bill, further set forth another loan and a similar agreement upon the schooner Industry. The demurrer to this bill was sustained, and leave given to amend the bill. The amended bill stated an agreement that Rousmanier should give specific security on these vessels, his ■offer to execute a mortgage, the consultation of counsel, and his advice that the power of attorney which was executed should be taken in preference to a mortgage, “because it was equally valid and effectual as a security, and would prevent the necessity of changing the papers of the vessels,” etc. The prayer of the bill was for a sale of the vessels, and the payment out of the proceeds of the debt due the complainant. Counsel for the complainant in the Supreme Court did not argue the question of the construction to be placed upon the power of attorney standing alone, but insisted that the power was not the contract, and was not intended to embrace the whole contract, and sought to show by parol the entire agreement. Counsel for the defendant insisted that the instruments were mere naked powers of attorney, and became extinct by the ■death of Rousmanier, and that only a mistake of law was involved against which courts were powerless to afford relief. ■ In stating the claims of the appellant the court said: . '

“1. That this power of attorney does, by its own operation, entitle the plaintiff, for the satisfaction of his debt, to the interest of Rousmanier in the Nereus and the Industry.

“ 2. Or, if this be not so, that a court of chancery will, the conveyance being defective, lend its aid to carry the contract into execution, according to the intention of the parties.”

The court held that, if the written instrument was to be considered ' alone, it was a naked power of attorney and was revocable by the death of Rousmanier. It then held that parol evidence was admissible to show the contract in connection with the power of attorney, reversed the decree, and remanded it for answer. In discussing the question of the power of attorney the learned Chief Justice said:

“As the power of one man to act for another depends on the will and license of that other, the power ceases when the will, or this permission, is withdrawn. The general rule, therefore, is that a letter of attorney may at any time be revoked by the party who makes it, and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a. contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or, if not so, is deemed irrevocable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet, if he binds himself’ for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death ?' We think it does not. We think it well settled that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death. ”

The opinion means that, if the power of attorney had contained the entire contract showing a lien, it would have been a power of attorney coupled with an interest, and the power would have been merely incidental to the. contract, and intended as a means to carry it into effect. The name given to an instrument is not controlling. Its contents control its character. What difference can it make whether the instrument creating and conveying a lien or other interests, and containing within it the necessary power for execution, be called a power of attorney, or a contract, or a mortgage ? We must look to the four-corners of the instrument to determine what the contract, is, and when that is ascertained it should be enforced. In this case the instrument contains the entire agreement, recites the consideration, transfers the possession of the. property to the trustees or attorneys, conveys the unlimited control of the property for a definite period, and minutely describes how the agreement shall be enforced, and in unequivocal terms makes the agreement binding upon themselves and their heirs. In my opinion the decision of Hunt v. Rousmanier, supra, is not opposed to the validity of this agreement. On the contrary, it is there held that parties may make a contract not to change their will. If they may do this, why may they not make such an express contract binding upon their heirs, so long as the law against the entailment of estates is not violated ? The contract in this case evinces a design that at all events the lands were to be sold. Franklin v. Osgood, supra. It was given for a valuable consideration. Frink v. Roe, supra. It was entered into for a specified time. 1 Clark & Skyles on Law of Agency, § 160. It is similar to partnership property actually placed in the custody of one of its number for disposal. Beecher v. Bennett, supra.

We do not deem it necessary to discuss the effect of the will afterwards discovered, and which established an absolute title in the defendant, although it was not at the time known either to the defendant, the plaintiff, or the proposed purchaser.

The judgment should be affirmed.

Blair, J., concurred with Grant, J.

Hooker, J.

A judgment for the plaintiff would have been warranted only upon the theory that the defendant was in duty bound to convey to the purchaser found by the plaintiff a merchantable title, i. e., one which on the face of the record, as well as in fact, was an unassailable title. That the defendant’s title was in fact such an one is shown in view of the will of James Gibb Ross, as it is thereby made to appear that neither of the deceased persons inherited an interest in the land, and that Frank, his sole legatee, was in a situation to convey, and through his attorney did convey a complete title to the entire premises. At that time, however, the existence of the will was not known, and all of the parties executing the power of attorney supposed that each was an heir and had inherited an interest in the lands; they having been adjudicated to be such by the probate court of Marquette county. The abstract showed these facts, and we understand that they are not disputed. When it appeared that the conveyance made by the supposed heirs by the attorney of record was open to the claim of invalidity as to two interests, owing to the fact that the two heirs who inherited such interests were dead when the attorney made his deed, the persons who expected to purchase the property declined to accept the deed tendered by defendant, for the reason that defendant’s title did not include those interests. As we have said, this was not true, but no one at that time suggested any reason for saying that defendant had full title, except the claim that the power of attorney was not revoked by the deaths. Unless defendant was right in such assertion, the person contemplating a purchase could not be compelled to accept a deed. It would not only be not merchantable, but he might justly claim that defendant had no title to convey, and, had he been bound by an ordinary contract in writing, he would have been justified in refusing to perform it until a valid title should be shown. There was testimony justifying the submission to the jury of plaintiff’s claim, that a contract for the sale of the premises by him upon commission was made, and that under that contract he had a right to understand that defendant would exhibit or prove that he had a valid title to the premises. 2 Page on Contracts, § 664; Carr v. Leavitt, 54 Mich. 540; Hannan v. Prentis, 124 Mich. 417; Stange v. Gosse, 110 Mich. 155. See, also, Brackenridge v. Claridge, 43 L. R. A. note, 609, 612 (91 Tex. 527). See Roche v. Smith, 51 L. R. A. 510 (176 Mass. 595); Livermore v. Crane, 57 L. R. A. 402 (26 Wash. 529); Mattes v. Engel, 15 S. Dak. 337; Corder v. O’Neill, 176 Mo. 438; and other cases cited in 4 L. R. A. Cases as Authorities, 913.

This leaves the defense to stand upon the claim that the power of attorney was not revoked by the death of the two heirs. The power of attorney was included in a contract between the heirs, whereby they agreed to and did appoint one Conolly, attorney, to sell all of the property of the estate of James Gibb Ross belonging to them, and to receive and distribute the proceeds. It contained an express provision that the power should be irrevocable and should survive if any of the principals should die. It is also contended that it survived because coupled with an interest in the land. The reason usually given for the rule that death revokes a power is that, as the act authorized by the power is to be done for and in the name of the principal, it cannot survive the power of the principal to act, which is terminated by his death. Upon this rule is ingrafted an exception, viz., that where the instrument creating the power conveys to the attorney the legal title to the interest covered by the power, it (the power) survives. - But this must be an interest in the thing itself, and must be created by the instrument creating the power, and if it be an interest only in that which is to be produced by the exercise of the power it is not within the exception.

Both of these questions are fully discussed and covered by the decision in the case of Hunt v. Rousmanier, 8 Wheat. (U. S.) 174, the leading casein this country. In that case, while he recognized the irrevocability during the life of the person making the instrument of a power which is the subject of contract, Chief Justice Marshall says that even in such a case it does not retain its efficacy after his death, and he clearly shows.that a contrary rule would involve an absurdity.

“This general rule that a power ceases with the life of the person giving it admits of one exception. If a power be coupled with an ‘interest,’it survives the person giving it, and may be executed after his death.

“ As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression, ‘ a power coupled with an interest ? ’ Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power ? We hold it to be clear that the interest which can protect a power after the death of 'a person who creates it must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing.

‘ ‘ The words themselves would seem to import this meaning. ‘ A power coupled with an interest ’ is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But, if we are to understand by the word ‘ interest ’ an interest in that which is to be produced by the exercise of the power, then they are never united. The power to produce the interest, must be exercised, and by its exercise is extinguished. The power ceases when the interest commences, and therefore cannot in accurate law language, be said to be ‘ coupled ’ with it.

“But the substantial basis of the opinion of the court on this point is found in the legal reason of the principle. The interest or title in the thing, being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which, in such a case, is the act of the principal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the person making it. But, if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate!, being in him, passes from him by a conveyance in his own name. He is no longer a substitute, acting in the place and name of another, but is a principal acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits a power to the life of the person giving it exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected without violating any legal principle.

“This idea may be in some degree illustrated by examples of cases in which the law is clear, and which are incompatible with any other exposition of the term ‘ power coupled with an interest.’ If the word ‘interest’ thus used, indicated a title to the proceeds of the sale,' and not a title to the thing to be sold, then a power to A. to sell for his own benefit would be 'a power coupled with an interest; but a power to A. to sell for the benefit of B. would be a naked power, which could be executed only in the life of the person who gave it. Yet, for this distinction, no legal reason can be assigned. Nor is there any reason for it in justice; for a power to A. to sell for the benefit of B. may be as much a part of the contract on which B. advances his money, as if the power had been made to himself. If this were the true exposition of the term, then a power to A. to sell for the use of B. inserted in a conveyance to A. of the thing to foe sold would not be a power coupled with an interest, and consequently could not be exercised after the death of the person making it; while a power to A. to sell and pay a debt to himself, though not accompanied with any conveyance which might vest the title in him, would enable him to make the conveyance, and to pass a title not in him, even after the vivifying principle of the power had become extinct. But ■ every day’s experience teaches us that the law is not as the first case put would suppose. "We know that a power to A. to sell for the benefit of B. engrafted on an estate conveyed to A. may be exercised at any time, and is not affected by the death of the person .who created it. It is, then, a power coupled with an interest, although the person to whom it is given has no. interest in its exercise. His power is coupled with an interest in the thing which enables him to execute it in his own name, and is, therefore, hot dependent on the life of the person who created it.”

This case has been cited with approval many times. See Frink v. Roe, 70 Cal. 310. The fact that the attorney is given the right to compensation from the proceeds of the sale does not make the power one coupled with an interest. See Simpson v. Carson, 11 Or. 361; Farmers’ Loan & Trust Co. v. Wilson, 139 N. Y. 284; Cassiday v. McKenzie, 39 Am. Dec. 82, and note (4 Watts & S. [Pa.] 282); Peter v. Beverly, 10 Pet. (U. S.) 532.

The judgment should be reversed, and a new trial ordered.

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